NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOHNNY PORTILLO, Appellant.

No. 1 CA-CR 16-0057

Appeal from the Superior Court in Maricopa County

No. CR 2014-001256-001 

The Honorable Alfred M. Fenzel, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Elizabeth B.N. Garcia

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant
STATE v. PORTILLO

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Johnny Portillo appeals his criminal convictions and 

sentences, challenging the superior court’s denial of his motion for new 

appointed counsel. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Portillo was indicted on one count of armed robbery, two 

counts of aggravated assault, and one count of first degree murder 

stemming from a pawn shop robbery that resulted in the death of one of 

the robbery suspects. According to Portillo, “[o]ne of the first things the 

State disclosed to the defense” was a surveillance video that showed the 

suspects entering the pawn shop. After a new prosecutor took over the 

case and viewed the surveillance video in “slow motion,” he saw that it

also depicted the robbery suspects exiting Portillo’s vehicle. The 

prosecutor advised defense counsel of his discovery. 

¶3 On the date set for trial, Portillo filed a pro se “Motion for a 

Change of Counsel,” outlining several complaints about his courtappointed counsel and stating:

I have recently just lost whatever little confidence I’ve had 

with them about important evidence that was shown to me 

recently that has changed everything. And to know that my 

attorneys have just been sitting on important information 

without disclosing it to me has left me feeling shattered and 

vulnerable. I’ve lost all confidence in them. If the 

information was shown to me when it was released I 

strongly believe I could’ve made better decisions. [It is] hard 

to believe what they are telling me now. I’m [facing] a life 

sentence and I do not trust my attorneys I believe this latest 

incident and differences is irreconcilable as well as proves 

ineffective assistance of counsel. 
STATE v. PORTILLO

Decision of the Court

3

¶4 The superior court considered Portillo’s motion at two 

separate hearings. During the first hearing, Portillo reiterated his lack of 

trust in his lawyers and asserted that, had he known the contents of the 

surveillance video earlier, he could have made “better decisions.” The 

defense lawyers took no position on Portillo’s motion but stated they were 

“prepared to go forward.” The court denied Portillo’s motion, finding no 

evidence that the attorney-client relationship was “irretrievably broken” 

or that an “irreconcilable conflict” existed between Portillo and his 

counsel. The court transferred the case to a different judge for trial. 

¶5 Several days later, the newly assigned trial judge permitted 

Portillo to re-urge his motion for a change in counsel. Portillo initially 

refused to disclose the “new evidence” he claimed had altered his “whole 

defense strategy.” The court followed up with the prosecutor, who 

responded:

Your Honor, I don’t know what the new evidence would be. 

My guess would be is that it would be the revelation that on 

the surveillance video from one of the neighboring 

businesses, we can discern that the armed robbers actually 

came out of the defendant’s vehicle. 

Portillo then argued his attorneys had “pretty much been sitting on” the 

surveillance video for “over a year” and that the video “changes 

everything.” The court again denied Portillo’s motion, but permitted him 

to review the surveillance video in slow motion while in the courtroom. 

¶6 After a jury trial, where the video was received in evidence, 

Portillo was convicted of the charged offenses. He timely appealed. We 

have jurisdiction pursuant to Article 6, Section 9, of the Arizona 

Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21,

13-4031, and -4033.

DISCUSSION

¶7 We review the denial of a motion for new court-appointed 

counsel for an abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318, 

¶ 11 (2013). A court abuses its discretion if it commits an error of law or if 

the record lacks substantial support for its decision. State v. Cowles, 207 

Ariz. 8, 9, ¶ 3 (App. 2004). 

¶8 Although the Sixth Amendment guarantees criminal 

defendants the right to counsel, “an indigent defendant is not entitled to 

counsel of choice, or to a meaningful relationship with his or her 
STATE v. PORTILLO

Decision of the Court

4

attorney.” Hernandez, 232 Ariz. at 318, ¶ 12. In evaluating a request for

new counsel, trial courts assess:

Whether 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.

State v. Torres, 208 Ariz. 340, 344, ¶ 15 (2004). 

¶9 Portillo contends that during the first hearing on his motion, 

the court improperly focused on the quality of his current counsel.

1 Torres

states: 

[I]n most cases, the “quality of counsel” factor will not be a 

consideration when a defendant requests substitution of 

counsel . . . [because] 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.

208 Ariz. at 344, ¶ 15. Torres, however, “does not preclude the trial court 

from considering facts related to effective assistance of counsel in 

determining whether the relationship was completely fractured.” State v. 

Peralta, 221 Ariz. 359, 362, ¶ 12 (App. 2009). Moreover, the record does not 

support the assertion that the court gave undue weight to the quality of 

current counsel. In ruling on Portillo’s motion, the court recited the 

proper test: whether Portillo had shown that the existing attorney-client 

relationship was irretrievably broken or that an irreconcilable conflict 

existed. 

¶10 Portillo also contends the court impermissibly focused on 

the question of prejudice during the second hearing. But Portillo himself 

raised that issue, arguing the surveillance video “completely changed” his 

“whole defense strategy.” The superior court simply followed up on 

Portillo’s claims of prejudice with several questions. Moreover, the fact 

that prejudice is an element of an ineffective assistance of counsel claim, 

see State v. LaGrand, 152 Ariz. 483, 485 (1987), does not mean trial courts 

 

1 One of Portillo’s court-appointed lawyers had represented him 

since his March 2014 arraignment, and her co-counsel, also appointed by 

the court, had been working on the case for approximately six months. 
STATE v. PORTILLO

Decision of the Court

5

are precluded from considering whether a defendant has been or will be 

prejudiced by the existing attorney-client relationship. 

¶11 Finally, the superior court did not abuse its discretion by 

concluding Portillo had not demonstrated an irreconcilable conflict

mandating appointment of new counsel. See State v. Henry, 189 Ariz. 542, 

547 (1997) (“Unlike other factors, the presence of a genuine irreconcilable 

conflict requires the appointment of new counsel.”); State v. Paris-Sheldon, 

214 Ariz. 500, 505, ¶ 12 (App. 2007) (defendant bears burden of 

establishing severe and pervasive conflict with counsel). An irreconcilable 

conflict or completely fractured relationship can be established by 

evidence of a “severe and pervasive conflict” between defendant and 

counsel or “minimal contact” between lawyer and client, rendering 

“meaningful communication” impossible. Hernandez, 232 Ariz. at 318, 

¶ 15. Disagreements over trial strategy, personality conflicts, or a general 

loss of confidence or trust in counsel, though, do not require appointment 

of new counsel. Id.; see also Paris-Sheldon, 214 Ariz. at 505, ¶ 14. 

¶12 Portillo repeatedly argued his attorneys’ failure to watch the 

surveillance video frame-by-frame and share its contents with him caused 

him to lose trust in them and to question their preparedness for trial. 

These claims, though, do not establish an irreconcilable conflict. See, e.g., 

State v. Moody, 192 Ariz. 505, 507–08, ¶¶ 13, 16 (1998) (irreconcilable 

conflict existed between defendant and attorney who were “almost at 

blows” and “antagonistic towards each other”). When the court asked 

Portillo whether he was claiming he could not “even talk to [counsel] or 

share your concerns with them,” Portillo responded that he was “not 

going to trust whatever . . . they’re going to tell me.” He did not assert 

that meaningful communication with counsel had become impossible. 

¶13 The superior court did not abuse its discretion by denying 

Portillo’s motion to change court-appointed counsel. 
STATE v. PORTILLO

Decision of the Court

6

CONCLUSION

¶14 For the foregoing reasons, we affirm Portillo’s convictions

and sentences.