NOTICE: NOT FOR PUBLICATION.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.

CHRISTOPHER ADAM ROSS, Appellant.

No. 1 CA-CR 13-0064

Appeal from the Superior Court in Maricopa County

No. CR2011-142440-001

The Honorable Robert E. Miles, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Craig W. Soland

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Louise Stark

Counsel for Appellant
STATE v. ROSS

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Christopher Adam Ross appeals his convictions and 

sentences for first-degree murder, first-degree burglary, and kidnapping. 

Ross filed a timely notice of appeal, and we have jurisdiction pursuant to

Arizona Revised Statutes sections 12-120.21(A)(2), 13-4031, and 13-4033(A).

For the following reasons, we affirm.

ANALYSIS

¶2 Ross argues that the trial court abused its discretion in 

denying his post-trial, presentencing motions for change of counsel, and in 

failing to conduct sufficient inquiry into the alleged “irreconcilable 

differences” and “lost confidence and trust that formed the basis of the 

motions.” The Sixth Amendment guarantees a criminal defendant the right 

to be represented by competent counsel. U.S. Const. amend. VI; State v. 

Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). The Sixth 

Amendment does not entitle a defendant to “counsel of [his or her] choice, 

or to a meaningful relationship with his or her attorney.” Moody, 192 Ariz. 

at 507, ¶ 11, 968 P.2d at 580 (citation omitted).

I. The trial court did not abuse its discretion when it denied Ross’s 

post-trial, presentencing motions for change of counsel. 

¶3 A trial court is required to appoint new counsel only if there 

exists an irreconcilable conflict or an entirely broken relationship between 

the defendant and counsel. State v. Cromwell, 211 Ariz. 181, 186, ¶ 29, 119 

P.3d 448, 453 (2005). “A single allegation of lost confidence in counsel does 

not require the appointment of new counsel, and disagreements over 

defense strategies do not constitute an irreconcilable conflict.” Cromwell, 

211 Ariz. at 186, ¶ 29, 119 P.3d at 453. A claim of ineffective assistance of 

counsel must be more than a disagreement over trial strategy, or a general 

personality conflict, and the defendant bears the burden of presenting 

evidence of “severe and pervasive conflict” to prove there is irreconcilable 

conflict or a total breakdown of communication with his attorney. State v. 
STATE v. ROSS

Decision of the Court

3

Hernandez, 232 Ariz. 313, 318, ¶ 15, 305 P.3d at 378, 383 (2013) (internal 

punctuation and citations omitted). We review the trial court’s decision to 

deny a request for new counsel for abuse of discretion. Cromwell, 211 Ariz. 

at 186, ¶ 27, 119 P.3d at 453 (citation omitted). 

¶4 In support of his post-trial motions to change counsel, Ross 

alleged only that he was not able to communicate with his attorney 

“effectively enough” and that he would not “feel comfortable” continuing 

with his attorney for sentencing, because of the “irreconcilable differences” 

that had arisen because of his belief that this attorney had provided 

ineffective assistance during trial and in post-verdict compromises.

1 In an 

ex parte hearing on the first such motion, Ross read a lengthy written 

statement into the record, contending that his counsel had provided 

ineffective assistance in numerous instances, requiring reversal of his 

convictions. Specifically, Ross claimed his counsel failed to advise him that 

he had ten working days to file a motion for new trial, advised Ross not to 

call witnesses that he wanted called, advised Ross that if he testified, 

counsel would not ask him any questions on redirect because counsel did 

not believe Ross’s proposed testimony regarding the facts in his case, and 

failed to ask for an instruction “that no person should be convicted upon 

suspicion or mere probability or from the fact that he may have had an 

opportunity to commit the crime.”

¶5 The trial court listened to his statement and asked questions

before denying this first motion to change counsel, reasoning that Ross’s 

claims all related to an ineffective assistance of counsel claim, which could 

be raised later during different proceedings. Before sentencing Ross, the 

trial court made further inquiries of both Ross and his counsel, and stated 

that it would deny Ross’s second motion to change counsel based on his 

claim of ineffective assistance of his counsel in agreeing to post-verdict

compromises – which the trial court had already addressed in the earlier 

hearing – for the same reason.

¶6 “[A] trial judge has a duty to inquire as to the basis of a 

defendant’s request for substitution of counsel.” State v. Torres, 208 Ariz. 

340, 343, ¶ 7, 93 P.3d 1056, 1059 (2004). “The nature of the inquiry will 

depend upon the nature of the defendant’s request.” Torres, 208 Ariz. at 

343, ¶ 8, 93 P.3d at 1059. We find no abuse of discretion in the extent of the 

 

1 The compromises related to Ross admitting to a finding of 

dangerousness relative to the burglary and kidnapping counts, and to the 

existence of three prior felony convictions.
STATE v. ROSS

Decision of the Court

4

trial court’s inquiry into the nature of the claimed conflict between the 

defendant and his appointed counsel. The facts of this case distinguish it 

from the facts in Torres, which our supreme court held required the trial 

judge to conduct additional inquiry. In Torres, the defendant claimed 

several issues with his counsel, including lack of trust, communication, 

and confidentiality, and that counsel no longer acted professionally. 

Torres, 208 Ariz. at 342, ¶ 2, 93 P.3d at 1058. The judge summarily denied 

Torres’s motion for new counsel, suggesting only that he contact the public 

defender’s office. Id. Our supreme court held that the court abused its 

discretion in denying the motion without inquiring into the “specific 

factual allegations that raised a colorable claim that he had an 

irreconcilable conflict with his appointed counsel.” See Torres, 208 Ariz. at 

343, ¶ 9, 93 P.3d at 1059. In this case, the trial court asked Ross questions 

about his claimed irreconcilable differences with his attorney and listened 

to Ross’s numerous claims of ineffective assistance of counsel before 

denying his motions. The trial court’s inquiry into the nature of Ross’s 

claims was sufficient under the circumstances. See Torres, 208 Ariz. at 343,

¶ 8, 93 P.3d at 1059.

¶7 Further, the trial court did not abuse its discretion in denying 

Ross’s motions to change counsel. Ross’s motions were based solely on 

Ross’s disagreement with his counsel’s trial strategy – claims based on his 

view that his attorney had not provided him with an effective defense at 

trial, or with proper advice before he admitted he had prior convictions

and that the burglary and kidnapping offenses were dangerous offenses. 

“[D]isagreements over defense strategies do not constitute an 

irreconcilable conflict.” Cromwell, 211 Ariz. at 186, ¶ 29, 119 P.3d at 453

(citations omitted). Ross’s claims of ineffective assistance of counsel 

during trial and in the post-verdict proceeding do not rise to the level of an 

irreconcilable conflict, in light of his tacit admission that he could 

communicate with his attorney, just simply not “effectively enough” to 

subjectively feel comfortable in going forward with him. In short, Ross

failed to meet his burden to show the “severe and pervasive conflict with 

his attorney” or “such minimal contact with the attorney that meaningful 

communication was not possible” that is necessary for appointment of new 

counsel. See Hernandez, 232 Ariz. at 318, ¶ 15, 305 P.3d at 383.

2 The trial

 

2 We recognize that the trial court should also consider 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 
STATE v. ROSS

Decision of the Court

5

court accordingly did not abuse its discretion in denying Ross’s postverdict motions to change counsel.

¶8 We are not persuaded otherwise by the information provided 

by Ross’s attorney in his two pleadings titled Ex Parte Motion to Determine 

Counsel, the first filed a month before sentencing and the second filed the 

day before sentencing. In the first ex parte motion, submitted to the 

presiding judge of the trial court, Ross’s attorney outlined various bases 

for Ross’s dissatisfaction with him, and informed the presiding judge that

the trial judge had denied the motion for new counsel. Ross’s attorney also 

noted his concern over a potential conflict in his office’s representation of 

a jailhouse informant who had just recently given police the name of a 

woman who may have been involved in the murder of which Ross had

been convicted. The presiding judge suggested that any possible conflict 

might be resolved by referring the jailhouse informant to other counsel, but 

concluded that the trial judge was the appropriate party to rule on this 

motion.

¶9 Defense counsel did not reurge his first ex parte motion with 

the trial judge, but instead filed with the trial judge a second ex parte motion

the day before sentencing, seeking a determination of counsel based on (1) 

Ross’s claim that, notwithstanding an explicit colloquy with the trial court,

he had been misled into admitting the dangerous nature of the burglary 

and kidnapping offenses and the existence of his prior convictions as

aggravating circumstances; and (2) the potential dilemma that might arise 

if a jury trial on aggravating circumstances were allowed, in light of Ross’s 

intention to testify “in a manner that will ethically challenge counsel’s 

ability to develop his testimony.” In this motion, Ross’s attorney asked the 

court to “consider appointing new counsel in order to determine whether 

current counsel misled Mr. Ross, and to allow Mr. Ross to present 

testimony during any potential new trial on aggravating circumstances.” 

 

change counsel, and the quality of counsel. See Hernandez, 232 Ariz. at 321, 

¶ 34, 305 P.3d at 386. The trial court here implicitly found that some of these 

factors were not applicable in light of the already completed trial, and 

focused instead on the ineffective assistance of counsel complaints, 

implicitly recognizing that new counsel would likely be faced with Ross’s 

dissatisfaction with the manner in which the case had been tried. The trial 

court correctly concluded that these issues were “more properly analyzed 

in post-conviction relief proceedings.” See Hernandez, 232 Ariz. at 321 n.3,

¶ 33, 305 P.3d at 386 n.3 (citation omitted).
STATE v. ROSS

Decision of the Court

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At this point, Ross’s attorney concluded, “[t]he relationship has reached a 

level that the conflict is now irreconcilable.”

¶10 The trial judge denied this second motion to determine 

counsel, reasoning that counsel’s claims did not affect his representation at 

sentencing, and Ross’s potential claim of ineffective assistance of counsel 

could be raised later during a Rule 32 proceeding. We conclude that the 

trial court did not abuse its discretion in denying defense counsel’s motion 

to determine counsel, and the reasons defense counsel cited in his motion 

– which were simply reiterations of Ross’s arguments – did not warrant 

any additional inquiry into, or granting of, Ross’s motions to change

counsel.

II. The trial court did not fundamentally err in failing to explicitly 

inform Ross that his admission of his prior felony convictions 

allowed the court to find and consider additional aggravating 

circumstances in imposing the sentence. 

¶11 Ross argues that the trial court fundamentally erred in failing 

to conduct “a complete colloquy” before accepting Ross’s admission to the 

existence of three prior felony convictions for use as aggravating 

circumstances, by not expressly informing him that this admission allowed 

the court to consider additional aggravating circumstances in sentencing 

him. Following the jury verdict, Ross admitted the existence of three prior 

felony convictions and the dangerous nature of the burglary and 

kidnapping offenses, pursuant to an agreement that the prior convictions 

would be used only as aggravating circumstances. The agreement resulted 

in Ross being sentenced for the kidnapping and burglary offenses as a 

dangerous, non-repetitive offender, exposing him to an aggravated 

sentence of 21 years, instead of as a repetitive offender, which could have 

exposed him to a maximum sentence of 28 years. Compare A.R.S. § 13-

704(A) (10.5 years presumptive, 21 years maximum sentence for class 2 

dangerous felony) with A.R.S. § 13-703(C) and (J) (15.75 years presumptive, 

28 years maximum, 35 years aggravated sentence for class 2 felony with 

two or more prior felony convictions). 

¶12 Before finding that the admissions had been made knowingly, 

intelligently, and voluntarily, the trial court ascertained that Ross 

understood that his admissions would expose him to sentences on the 

burglary and kidnapping convictions of up to 21 years. Before accepting 

his admissions to the prior convictions (and to the dangerous nature of the 

kidnapping and burglary offenses), the trial court confirmed that Ross was 

making a knowing and intelligent waiver of his constitutional rights to a 
STATE v. ROSS

Decision of the Court

7

jury trial, to require the state to prove dangerousness and the existence of 

the prior convictions, to representation by counsel, to confront witnesses, 

and to testify on his own behalf. The trial court also confirmed with Ross 

that he had been convicted of the three prior felony offenses, that he had 

been represented by an attorney at the time, and that no threats had been 

made to force these admissions. Defense counsel did not object to the 

extent of the colloquy.

¶13 Two weeks before sentencing, the trial court requested 

simultaneous briefing on whether it could consider additional aggravating 

circumstances in sentencing Ross as a result of Ross’s admission to the 

single aggravating circumstance of the prior felony convictions. The trial 

court informed the parties that it did not think there had been “a specific 

relinquishment of the right to trial on the aggravators” in the colloquy with 

Ross, but wondered whether that was necessary in light of the decision in 

State v. Martinez, 210 Ariz. 578, 115 P.3d 618 (2005). After reviewing the 

requested briefing, the court concluded it could consider any additional 

aggravating circumstances “to determine where in an aggravated range 

the sentence should fall.” The court subsequently considered as 

aggravating circumstances the three prior felonies, the death of the victim,

the harm to the victim’s family, and the cruel and graphic nature of the 

offenses. After identifying several mitigating circumstances, the court 

found that “any and all of the aggravating circumstances justify a term 

greater than the presumptive,” and sentenced Ross to the maximum terms 

of 21 years on the burglary and kidnapping convictions, to be served 

concurrently with a life term with possibility of release after 25 years on 

the first-degree murder conviction. (Emphasis added.).

¶14 Because Ross failed to object to the extent of the colloquy, we 

review this claim for fundamental error only, in which defendant bears the 

burden of establishing error, that the error was fundamental, and that he 

was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 

P.3d 601, 608 (2005). Error is fundamental when it goes to the foundation 

of the defendant’s case, takes from him a right essential to his defense, and 

is error of such magnitude that he could not possibly have received a fair 

trial. Id. at 567, ¶ 19, 115 P.3d at 607. “A complete failure to afford a Rule 

17.6 colloquy is fundamental error.” State v. Morales, 215 Ariz. 59, 61, ¶ 10, 

157 P.3d 479, 481 (2007). To prove prejudice arising from the absence of a

colloquy, the defendant must show that he would not have admitted the 

prior convictions if the colloquy had been given. Morales, 215 Ariz. at 62, 

¶ 11, 157 P.3d at 482.
STATE v. ROSS

Decision of the Court

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¶15 Ross has not met his burden. A trial court may accept a 

defendant’s admission to a prior conviction only if it “advise[s] the 

defendant of the nature of the allegation, the effect of admitting the 

allegation on the defendant’s sentence, and the defendant's right to 

proceed to trial and require the State to prove the allegation.” State v. 

Young, 230 Ariz. 265, 268, ¶ 8, 282 P.3d 1285, 1288 (App. 2012) (citations 

and internal punctuation omitted); see also Boykin v. Alabama, 395 U.S. 238, 

242-43 n.5 (1969) (holding due process requires voluntary and intelligent 

admission to the existence of a prior conviction); Morales, 215 Ariz. at 61, 

¶ 8, 157 P.3d at 481 (2007) (stating Arizona Criminal Procedure Rule 17.6 is 

designed to ensure “that the Boykin directive is fulfilled when a defendant 

admits a prior conviction”). The required information includes: (1) “[t]he 

nature of the charge to which the plea is offered”; (2) “[t]he nature and 

range of possible sentence for the offense to which the plea is offered, 

including any special conditions regarding sentence, parole, or 

commutation imposed by statute”; (3) “[t]he constitutional rights which 

the defendant foregoes by pleading guilty”; and (4) “[t]he right to plead 

not guilty.” Ariz. R. Crim. P. 17.2.

¶16 The trial court clearly satisfied these requirements before 

accepting Ross’s admission to his three prior felony convictions. The trial 

court informed Ross he had the right to a trial on the existence of the prior 

convictions, the right to representation by counsel, and the right to 

confront witnesses and to testify on his own behalf. Ross acknowledged 

that he understood those rights and agreed to waive them. Ross also 

acknowledged that he understood that his admission to the dangerous 

nature of the offenses and the existence of the prior convictions as 

aggravating circumstances exposed him to a sentence of 21 years. 

Moreover, the trial court’s explicit finding that “any and all of the 

aggravating circumstances justify a term greater than the presumptive” 

further diminishes Ross’s claim, as the use of the admitted prior 

convictions was not the sole basis for the court’s sentence.

¶17 It has long been the law in Arizona that “once a jury finds or 

a defendant admits a single aggravating factor, the Sixth Amendment 

permits the sentencing judge to find and consider additional factors 

relevant to the imposition of a sentence up to the maximum prescribed in 

that statute.” Martinez, 210 Ariz. at 585, ¶ 26, 115 P.3d at 625; see also A.R.S. 

§ 13-701(F). This is because “the Sixth Amendment does not remove from 

a trial judge the traditional sentencing discretion afforded the judge, so 

long as the judge exercises that discretion within a sentencing range 

established by the fact of a prior conviction, facts found by a jury, or facts 

admitted by a defendant.” Martinez, 210 Ariz. at 583, ¶ 16, 115 P.3d at 623. 
STATE v. ROSS

Decision of the Court

9

Thus, once the trial court informed Ross of the range of sentence to which 

he would be exposed by admitting the dangerous nature of his offenses 

and the existence of the prior convictions as aggravating factors, and 

accepted his admission to the prior convictions, it could exercise its 

discretion to find any additional factors relevant to impose a sentence up 

to the maximum prescribed in the statute. See id., 210 Ariz. at 585, ¶ 26, 115 

P.3d at 625. Moreover, implicit in the jury’s verdict that Ross was guilty of 

first-degree murder was a finding that Ross caused the victim’s death. The 

use of this jury finding as an aggravating factor also allowed the trial judge 

to find and consider additional factors in aggravating Ross’s sentences on 

the kidnapping and burglary convictions. See id., 210 Ariz. at 583, ¶ 16, 115 

P.3d at 623. Under these circumstances, we conclude that the trial court 

did not fundamentally err in failing to explicitly inform Ross in the Rule 

17.6 colloquy that if he admitted the existence of the prior convictions for 

use as aggravating circumstances, the court could find and consider 

additional aggravating circumstances in imposing the sentence.

CONCLUSION

¶18 For the foregoing reasons, we affirm Ross’s convictions and 

sentences.