IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Respondent,

v.

ESTEBAN JAVIER TERRAZAS,

Petitioner.

No. 2 CA-CR 2015-0002-PR

Filed April 13, 2015

Petition for Review from the Superior Court in Pima County

No. CR20100580001

The Honorable Jane L. Eikleberry, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Barbara LaWall, Pima County Attorney

By Jacob R. Lines, Deputy County Attorney, Tucson

Counsel for Respondent

Law Office of Harley Kurlander, Tucson

By Harley Kurlander

Counsel for Petitioner

OPINION

Presiding Judge Kelly authored the opinion of the Court, in which 

Judge Howard and Judge Vásquez concurred.
STATE v. TERRAZAS

Opinion of the Court

2

K E L L Y, Presiding Judge:

¶1 Esteban Terrazas seeks review of the trial court’s order 

summarily denying his petition for post-conviction relief filed 

pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that

ruling unless the court clearly abused its discretion. State v. Swoopes, 

216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Terrazas has not 

met his burden of demonstrating such abuse here.

¶2 After a jury trial, Terrazas was convicted of 

manslaughter and sentenced to a 10.5-year prison term. We 

affirmed his conviction and sentence on appeal, but vacated the 

criminal restitution order entered at sentencing. State v. Terrazas, 

No. 2 CA-CR 2011-0341 (memorandum decision filed May 17, 2013).

Terrazas initially had been charged with aggravated assault and 

first-degree murder. He was acquitted of aggravated assault, and 

the trial court declared a mistrial as to the first-degree murder 

charge when the jury failed to reach a verdict. During the first trial,

Terrazas had been represented by an attorney as well as by a law

student who had been certified to practice pursuant to Rule 38(d), 

Ariz. R. Sup. Ct.

1 The same attorney and the student, who had since 

graduated law school and taken the bar exam but had not yet been 

admitted to the state bar, represented Terrazas at his second trial. 

¶3 After his conviction, Terrazas learned that the former 

student’s Rule 38(d) certification had expired before the second trial. 

He then sought post-conviction relief, arguing that, as a result, he 

had been denied the right to counsel. The trial court summarily 

denied relief, concluding that Terrazas had not been denied his right 

to counsel because, irrespective of the former student’s lack of 

current Rule 38(d) certification, Terrazas had been represented by 

 

1Rule 38(d) allows qualified law students and recent graduates 

to “be deemed an active member of the state bar” and, inter alia, 

participate in certain court proceedings, including criminal 

proceedings in superior court when accompanied by a supervising 

attorney.
STATE v. TERRAZAS

Opinion of the Court

3

the properly licensed attorney throughout his trial. This petition for 

review followed.

¶4 On review, Terrazas reurges his claim that 

representation by the former student violated his right to counsel 

and “require[s] reversal of [his] conviction without the necessity of 

showing actual prejudice.” We agree with Terrazas that the 

complete deprivation of counsel during a critical stage of the 

proceedings is structural error—that is, it is presumptively 

prejudicial. See State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 

233, 235-36 & 236 n.2 (2009). Terrazas relies primarily on Solina v. 

United States, in which the Second Circuit Court of Appeals 

determined that representation by an individual never authorized to 

practice law constituted the complete deprivation of counsel and 

that a defendant represented by such an individual suffered 

prejudice per se. 709 F.2d 160, 167-68 (2d Cir. 1983). The Second 

Circuit limited its reasoning to those

situations where, unbeknown to the 

defendant, his representative was not 

authorized to practice law in any state, and 

the lack of such authorization stemmed 

from failure to seek it or from its denial for 

a reason going to legal ability, such as 

failure to pass a bar examination, or want 

of moral character.

Id. at 167.

¶5 The situation presented in Solina does not exist here, nor 

is it remotely analogous. While represented by the uncertified 

former student, Terrazas also was represented by a member of the 

bar. That attorney was “fully responsible for the manner in which 

[the proceedings] [we]re conducted.” Ariz. R. Crim. P. 38(d)(5)(C)(i)(c).

Thus, his right to counsel was not violated. Although Terrazas 

complains the attorney’s presence cannot “cure[]” the former 

student’s lack of proper certification, he does not support this 

argument with citation to authority, and we can discern no reason to 
STATE v. TERRAZAS

Opinion of the Court

4

adopt such a rule.2 Indeed, we find authority adverse to Terrazas’s 

position. The Illinois Supreme Court has concluded that, “[t]he 

presence of the licensed attorney, who certainly is counsel for 

constitutional purposes, is not somehow ‘cancelled out’ by the law 

student’s participation, even if the law student has not complied 

with” the applicable rules. In re Denzel W., 930 N.E.2d 974, 982 (Ill. 

2010). We agree.

¶6 Although we grant review, we deny relief.

 

2Terrazas asserts the attorney had “no authority” to supervise 

the former student due to the lack of Rule 38(d) certification and was 

“merely present” during trial. He has identified nothing in the 

record suggesting either party or the court was aware of the former 

student’s lack of proper certification or that the attorney failed to 

adequately supervise the student or be present during all 

proceedings as required by Rule 38(d)(5)(C)(i)(c).