SUPREME COURT OF ARIZONA 

En Banc 

 

 ) Arizona Supreme Court 

 ) No. CR-03-0326-PR 

STATE OF ARIZONA, ) 

 ) Court of Appeals 

 Appellee, ) Division One 

 ) Nos. 1 CA-CR 02-0278 

 v. ) 1 CA-CR 02-0279 

 ) (Consolidated) 

VICTOR TORRES, ) 

 ) Maricopa County 

 Appellant. ) Superior Court 

 ) Nos. CR 1992-010210 

 ) CR 2001-005372 

 )

__________________________________) O P I N I O N 

Appeal from Maricopa County Superior Court 

Nos. CR 1992-010210, CR 2001-005372 

The Honorable Stephen A. Gerst, Judge 

The Honorable Jeffrey A. Hotham, Judge 

REMANDED 

Court of Appeals, Division One 

206 Ariz. 52, 75 P.3d 142 (App. 2003) 

 

VACATED IN PART 

________________________________________________________________ 

TERRY GODDARD, Arizona Attorney General Phoenix 

By: Randall M. Howe, Chief Counsel 

 Criminal Appeals Section 

and Karla Hotis Delord, Assistant Attorney General 

Attorneys for Appellee 

SUSAN SHERWIN, Office of the Legal Advocate Phoenix 

By: Tennie B. Martin, Deputy Legal Advocate 

Attorneys for Appellant 

________________________________________________________________

R Y A N, Justice 

 
¶1 The question this case presents is whether a trial 

court’s failure to conduct an inquiry into an indigent 

defendant’s request to change appointed counsel mandates an 

automatic reversal of the defendant’s conviction. We conclude 

that it does not. Instead, we hold that the matter must be 

remanded for a hearing on the defendant’s request. 

I. 

¶2 The State charged Victor Torres with several felonies. 

Because Torres was indigent, the trial court appointed the 

Maricopa County Public Defender’s Office to represent him. Two 

months before Torres’ original trial date, he filed a written 

motion in propria persona asking for a change in his appointed 

counsel. Torres claimed that he could no longer speak with his 

lawyer about the case, he did not trust him, he felt threatened 

and intimidated by him, there was no confidentiality between 

them, and his counsel was no longer behaving in a professional 

manner. The trial judge denied the motion, stating that he did 

not have the authority to appoint new counsel, but suggested 

that Torres contact the Public Defender’s Office. Subsequently, 

Torres went to trial with his appointed counsel and was 

convicted. At sentencing before another judge, Torres renewed 

his request for new counsel, which the judge granted. 

¶3 On appeal, Torres argued that the trial court’s 

failure to consider his motion to substitute counsel violated 

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his constitutional right to adequate representation under the 

Sixth Amendment. State v. Torres, 206 Ariz. 52, 53, ¶ 2, 75 

P.3d 142, 143 (App. 2003). Because the trial judge had not 

conducted an inquiry into Torres’ claims, the court of appeals 

concluded it could not decide if an irreconcilable conflict 

existed between Torres and his counsel. Id. at 56, ¶ 15, 75 

P.3d at 146. Nevertheless, the court held that the trial 

judge’s “summary denial” of Torres’ motion “violated his Sixth 

Amendment right to counsel because it may have subjected him to 

‘representation by a lawyer with whom he had a completely 

fractured relationship.’” Id. at 57, ¶ 17, 75 P.3d at 147 

(quoting State v. Moody, 192 Ariz. 505, 509, ¶ 23, 968 P.2d 578, 

582 (1998)) (emphasis added). Concluding that the “[f]ailure to 

hold a hearing on an allegation of a fundamental constitutional 

violation is reversible error,” id., the court of appeals 

reversed Torres’ convictions and ordered a new trial, id. at 58, 

¶ 22, 75 P.3d at 148. 

¶4 The State petitioned for review, arguing that a trial 

court’s failure to inquire into a defendant’s request for 

appointment of new counsel should not require automatic 

reversal. We granted review because of the statewide importance 

of the issue. We have jurisdiction under Article 6, Section 

5(3), of the Arizona Constitution and Arizona Revised Statutes 

(“A.R.S.”) sections 13-4031 and -4032(3) (2001). 

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II. 

¶5 In analyzing the question presented by this case, we 

must address two core issues. First, we must decide whether a 

trial judge has a duty to inquire when a defendant requests 

substitution of counsel. If so, we must define the scope of 

that duty in light of the nature of a defendant’s request. 

Second, if the trial judge does not conduct an inquiry, we must 

determine the appropriate remedy. 

A. 

¶6 The Sixth Amendment guarantees criminal defendants the 

right to representation by counsel. U.S. Const. amend. VI; see 

also Ariz. Const. art. 2, § 24. The Supreme Court extended that 

right to indigent defendants charged with felonies in state 

courts. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).

And, not only does an indigent criminal defendant have the right 

to counsel, but he also has the right to competent counsel. 

State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987) 

(citing State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124 

(1974)). Nevertheless, an indigent defendant is not “entitled 

to counsel of choice, or to a meaningful relationship with his 

or her attorney.” Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 

580 (citing State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 

1194 (1993)). But when there is a complete breakdown in 

communication or an irreconcilable conflict between a defendant 

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and his appointed counsel, that defendant’s Sixth Amendment 

right to counsel has been violated. See id. Accordingly, this 

court has held that if a defendant is forced to go to trial with 

counsel with whom he has an irreconcilable conflict or a 

complete breakdown in communication, a resulting conviction must 

be reversed. See id. at 509, ¶ 23, 968 P.2d at 582 (holding 

that a trial court’s erroneous denial of a request to change 

counsel deprives a defendant of his Sixth Amendment right to 

counsel, which “infect[s] the entire trial process,” requiring 

automatic reversal (quoting Bland v. Cal. Dep’t of Corr., 20 

F.3d 1469, 1478 (9th Cir. 1994), overruled on other grounds by 

Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000))). 

¶7 Therefore, as the court of appeals correctly concluded 

in this matter, to protect a defendant’s Sixth Amendment right 

to counsel, a trial judge has the duty to inquire as to the 

basis of a defendant’s request for substitution of counsel. 

Torres, 206 Ariz. at 57, ¶ 18, 75 P.3d at 147; e.g., Smith v. 

Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (finding that 

“[w]hen a defendant raises a seemingly substantial complaint 

about counsel, the judge ‘has an obligation to inquire 

thoroughly into the factual basis of defendant’s 

dissatisfaction’” (quoting United States v. Hart, 557 F.2d 162, 

163 (8th Cir. 1977) (per curiam))); United States v. Lott, 310 

F.3d 1231, 1249 (10th Cir. 2002) (“If a defendant makes 

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sufficiently specific, factually based allegations in support of 

his request for new counsel, the . . . court must conduct a 

hearing into his complaint.”). It is not sufficient to advise 

the defendant to contact the Public Defender’s Office, as the 

trial court did in this case. Instead, the court must make an 

inquiry on the record. See, e.g., United States v. Morrison, 

946 F.2d 484, 499 (7th Cir. 1991) (finding that the court must 

make some inquiry into the reasons for the defendant’s 

dissatisfaction with his lawyer). 

¶8 The nature of the inquiry will depend upon the nature 

of the defendant’s request. For example, generalized complaints 

about differences in strategy may not require a formal hearing 

or an evidentiary proceeding. See State v. Henry, 189 Ariz. 

542, 547, 944 P.2d 57, 62 (1997) (finding that a disagreement 

over tactical decisions that may raise concerns about an 

attorney’s competence is more properly analyzed in a postconviction relief proceeding); State v. Tejeda, 677 N.W.2d 744, 

751 (Iowa 2004) (stating that courts are not required to 

“conduct a hearing every time a dissatisfied defendant lodges a 

complaint about his attorney”). However, “[i]f a defendant 

makes sufficiently specific, factually based allegations in 

support of his request for new counsel, the . . . court must 

conduct a hearing into his complaint.” Lott, 310 F.3d at 1249. 

At such a hearing, the defendant bears the burden of 

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demonstrating that he has a genuine irreconcilable conflict with 

his counsel or that there has been a total breakdown in 

communications. Id. (stating that “to prove a total breakdown 

in communication, a defendant must put forth evidence . . . that 

he had such minimal contact with the attorney that meaningful 

communication was not possible”). If a defendant establishes a 

total breakdown in communication, or an irreconcilable conflict 

with his attorney, then the trial judge must grant the request 

for new counsel. Henry, 189 Ariz. at 547, 944 P.2d at 62. 

¶9 In this case, Torres presented specific factual 

allegations that raised a colorable claim that he had an 

irreconcilable conflict with his appointed counsel. In light of 

Torres’ allegations, the trial judge abused his discretion by 

not conducting an inquiry into Torres’ request for substitution 

of counsel. See United States v. Morris, 714 F.2d 669, 673 (7th 

Cir. 1983) (“In order to exercise its discretion properly the 

court must elicit from the defendant the reasons for his 

objection to counsel . . . .”). Accordingly, we must decide the 

appropriate remedy when a trial judge does not conduct an 

inquiry into a defendant’s colorable claim of an irreconcilable 

conflict with his counsel. 

B. 

¶10 The court of appeals in this case held that the 

failure to conduct an inquiry into a colorable claim for 

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substitution of counsel requires automatic reversal. Torres, 

206 Ariz. at 57, ¶ 17, 75 P.3d at 147. In effect, this holding 

classifies a trial court’s failure to conduct such an inquiry as 

structural error. Two factors lead us to a contrary conclusion. 

First, very few errors have been found to be of such magnitude 

that they constitute structural errors. Second, a trial court’s 

error in not conducting an inquiry often can be remedied without 

having to reverse the conviction in the first instance. 

¶11 The United States Supreme Court has defined 

“structural error” as error that affects “the framework within 

which the trial proceeds, rather than simply an error in the 

trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 

(1991). The Court has limited structural errors to the 

following: the complete denial of counsel; a biased trial 

judge; the unlawful exclusion of members of defendant’s race 

from the jury; the denial of self-representation at trial; the 

denial of a public trial; and a defective reasonable doubt 

instruction. Neder v. United States, 527 U.S. 1, 8 (1999); 

Fulminante, 499 U.S. at 309-10. Thus, the Court finds 

structural errors in a “very limited class of cases.” Neder, 

527 U.S. at 8 (quoting Johnson v. United States, 520 U.S. 461, 

468 (1997)). 

¶12 As mentioned previously, we have held that forcing a 

defendant to go to trial with counsel with whom he has a 

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completely fractured relationship constitutes a deprivation of 

the right to counsel, which is structural error. Moody, 192 

Ariz. at 509, ¶ 23, 968 P.2d at 582. But it does not 

necessarily follow that a superior court’s failure to conduct an 

inquiry into a request for change of counsel violates the 

defendant’s Sixth Amendment right to counsel. The court of 

appeals here implicitly conceded as much when it speculated that 

the trial court’s error “may have subjected [Torres] to 

‘representation by a lawyer with whom he had a completely 

fractured relationship.’” Torres, 206 Ariz. at 57, ¶ 17, 75 

P.3d at 147 (quoting Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 

582) (emphasis added). The mere possibility that the defendant 

had a fractured relationship with counsel does not amount to 

structural error. Rather, most courts apply a harmless error 

analysis to a trial court’s erroneous summary denial of a 

request to change counsel. See Lott, 310 F.3d at 1250-52;

Morrison, 946 F.2d at 499; McKee v. Harris, 649 F.2d 927, 933-

34 (2d Cir. 1981). We agree with those courts and hold that a 

trial judge’s summary denial of a defendant’s motion to change 

counsel is not structural error requiring automatic reversal. 

¶13 Instead, we conclude that the appropriate remedy for a 

trial court’s error in this situation is to remand for a hearing 

on the defendant’s allegations. See, e.g., Lott, 310 F.3d at 

1250 (remanding the case to the district court to conduct a 

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hearing regarding the defendant’s allegation of total breakdown 

in communication); People v. Olivencia, 251 Cal. Rptr. 880, 885-

86 (Ct. App. 1988) (holding that the appropriate remedy for a 

trial court’s refusal to consider an indigent defendant’s 

request for new counsel is to remand for a hearing); City of 

Billings v. Smith, 932 P.2d 1058, 1063 (Mont. 1997) (same); 

State v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998) (same). 

If on remand the trial judge rules that the defendant was not 

entitled to a change in counsel, that decision can then be 

reviewed on appeal. See, e.g., People v. Maese, 214 Cal. Rptr. 

365 (Ct. App. 1985) (reviewing case on appeal after remand for 

hearing on defendant’s request for new counsel). 

¶14 Having decided that the appropriate remedy for the 

trial court’s failure to conduct an inquiry into Torres’ request 

is to remand for a hearing, we now turn to the factors and 

procedures that the trial court should apply on remand. 

II. 

¶15 A trial judge confronted with an indigent defendant’s 

request to change counsel should consider the following factors: 

[W]hether an irreconcilable conflict exists between 

counsel and the accused, and whether new counsel would 

be confronted with the same conflict; the timing of 

the motion; inconvenience to witnesses; the time 

period already elapsed between the alleged offense and 

trial; the proclivity of the defendant to change 

counsel; and quality of counsel. 

Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580 (quoting LaGrand, 

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152 Ariz. at 486-87, 733 P.2d at 1069-70). However, in most 

cases, the “quality of counsel” factor will not be a 

consideration when a defendant requests substitution of counsel. 

In essence, this factor generally relates more to a claim of 

ineffective assistance of counsel, which we have since concluded 

must be raised in a Rule 32 proceeding. See State v. Spreitz, 

202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (“[I]neffective 

assistance of counsel claims are to be brought in Rule 32 

proceedings.”). 

¶16 In applying these factors to Torres’ motion on remand, 

the trial judge should not consider itself limited to the facts 

as they existed at the time it denied the motion. Indeed, 

subsequent events may be relevant to prove or disprove whether 

an irreconcilable conflict or a total breakdown in communication 

occurred. For instance, Torres’ motion may have prompted his 

attorney to address Torres’ complaints, thereby resolving the 

alleged conflict. E.g., Bass v. United States, 580 A.2d 669, 

671 (D.C. 1990) (“[We] agree with the government that it would 

be unreasonable to ignore any relevant preparation that counsel 

might have conducted in the three months between the date of 

[defendant’s complaint about the ineffectiveness of his counsel] 

and the beginning of the trial.”). The trial court, therefore, 

may consider the motion to substitute counsel in light of the 

facts and circumstances both when the motion was originally made 

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and also after it was denied. 

¶17 We emphasize, however, that the issue at the hearing 

will not be whether Torres received effective assistance of 

counsel under the standards set forth in Strickland v. 

Washington, 466 U.S. 668 (1984), as some jurisdictions require. 

See, e.g., United States v. Graham, 91 F.3d 213, 217, 221-22 

(D.C. Cir. 1996) (holding that the defendant must demonstrate 

not only that the district court abused its discretion in 

denying a motion for substitution of counsel, but that the 

defendant was prejudiced by that error under Strickland). 

Ineffective assistance of counsel is a separate issue that can 

be raised only in a proceeding for post-conviction relief. 

Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527; see also Lott, 310 

F.3d at 1252 (noting that ineffectiveness claims “must almost 

always be brought on collateral attack”). Applying a Strickland

standard would, in effect, “eliminate a defendant’s ability to 

bring a right to counsel claim on direct appeal.” Lott, 310 

F.3d at 1252. Moreover, it is possible for a clearly guilty 

defendant and his counsel to have an irreconcilable conflict. 

The fact that the defendant would have been convicted absent the 

conflict does not obviate the Sixth Amendment violation when the 

trial court errs in denying a motion to substitute counsel. See 

Henry, 189 Ariz. at 547, 944 P.2d at 62 (“Unlike other factors, 

the presence of a genuine irreconcilable conflict requires the 

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appointment of new counsel.”). 

¶18 Accordingly, the trial court’s inquiry on remand is 

limited to whether Torres can establish that he had a completely 

fractured relationship with his appointed counsel either because 

of an irreconcilable conflict or because of a total breakdown in 

communications. Moody, 192 Ariz. at 509, ¶ 23, 968 P.2d at 582. 

If Torres establishes that he had a fractured relationship with 

his lawyer, the trial court must vacate the convictions and 

order a new trial.

III. 

¶19 For the foregoing reasons, we vacate that portion of 

the court of appeals opinion that reversed Torres’ conviction. 

We remand the case to the trial court for further proceedings 

consistent with this opinion. 

__________________________________ 

Michael D. Ryan, Justice 

CONCURRING: 

_________________________________________ 

Charles E. Jones, Chief Justice 

_________________________________________ 

Ruth V. McGregor, Vice Chief Justice 

_________________________________________ 

Rebecca White Berch, Justice 

_________________________________________ 

Andrew D. Hurwitz, Justice 

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