IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

DEMIRUS ANANDA KOEPKE,

Appellant.

No. 2 CA-CR 2015-0308

Filed June 29, 2016

Appeal from the Superior Court in Pima County

No. CR20144294001

The Honorable Carmine Cornelio, Judge

The Honorable Jane L. Eikleberry, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Adele G. Ponce, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Rebecca A. McLean, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. KOEPKE

Opinion of the Court

2

OPINION

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

Judge Vásquez and Chief Judge Eckerstrom concurred.

M I L L E R, Judge:

¶1 Demirus Koepke appeals her conviction for seconddegree burglary, for which she was ordered to complete two years’ 

supervised probation. She argues her attorney’s assistance by a law 

student under Rule 38(d), Ariz. R. Sup. Ct. without her written 

consent amounted to a denial of her right to counsel. For the 

reasons that follow, we affirm.

Factual and Procedural Background

¶2 The undisputed evidence showed that in October 2014, 

Koepke entered her neighbors’ house without permission while they 

were away on vacation and took some jewelry. A licensed attorney 

from the public defender’s office was appointed to represent Koepke

one week after she was indicted. The attorney filed several motions 

in limine before trial. The court held a hearing on the motions in 

April 2015. Koepke, who was not in custody, did not attend the 

hearing and her presence was waived. Koepke’s attorney was 

present, together with a law student who told the court he was 

appearing on Koepke’s behalf as a certified limited practice student 

pursuant to Rule 38(d)(5). The law student and the attorney both 

substantially participated in arguing the motions, some of which the 

court granted and others it denied. 

¶3 The case proceeded to a jury trial, at which Koepke’s 

attorney and the law student were again present. The law student 

gave the opening statement, cross-examined several of the state’s

witnesses, and conducted the direct and redirect examination of 

Koepke. She was convicted and sentenced as outlined above, and 
STATE v. KOEPKE

Opinion of the Court

3

we have jurisdiction over her appeal pursuant to A.R.S. §§ 13-4031 

and 13-4033(A)(1).

Right to Counsel

¶4 The record reveals, and Koepke does not dispute, that a 

licensed attorney represented her and was present in all 

proceedings. However, the record contains no written consent to a

law student’s appearance on Koepke’s behalf, nor any indication 

that such written consent (if it existed) was ever “brought to the 

attention of the judge,” a twofold violation of Rule 38(d)(5)(C)(i). 

Koepke argues that counsel’s failure to strictly comply with Rule 

38(d) meant that she lacked “licensed counsel” at the hearing on her 

motions in limine and at trial in violation of her right to counsel. 

¶5 It is “axiomatic” that a criminal defendant threatened 

with a loss of liberty has the right to assistance of competent counsel

at trial and on appeal. Zarabia v. Bradshaw, 185 Ariz. 1, 3, 912 P.2d 5, 

7 (1996); see U.S. Const. amends. VI, XIV; Ariz. Const. art. II, §§ 4, 24; 

A.R.S. § 13-114(2); Ariz. R. Crim. P. 6.1. The right to counsel attaches 

at “every critical stage of criminal proceedings”; that is, every stage 

at which “‘substantial rights of the accused may be affected.’” 

State v. Conner, 163 Ariz. 97, 104, 786 P.2d 948, 955 (1990), quoting 

Mempa v. Rhay, 389 U.S. 128, 134 (1967). For an indigent defendant, 

the right to counsel includes the right to appointed counsel, but 

includes neither a right to counsel of choice nor a guarantee of a 

“‘meaningful relationship’” with counsel. State v. Hernandez, 232 

Ariz. 313, ¶ 12, 305 P.3d 378, 383 (2013), quoting State v. Gomez, 231 

Ariz. 219, ¶ 19, 293 P.3d 495, 500 (2012). 

¶6 We review Sixth Amendment issues de novo. See State 

v. Glassel, 211 Ariz. 33, ¶ 59, 116 P.3d 1193, 1210 (2005). A complete 

denial of the right to counsel is structural error requiring reversal.1 

 

1 It is not entirely clear from Koepke’s briefs whether her 

argument is one of complete denial of counsel, a structural error, 

see State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 233, 235-36 & 

n.2 (2009), or rather an argument that counsel’s failure to strictly 

comply with Rule 38(d) constitutes fundamental, prejudicial error, 

see State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 
STATE v. KOEPKE

Opinion of the Court

4

State v. Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d 233, 235-36 & n.2 

(2009); State v. Moody, 192 Ariz. 505, ¶ 23, 968 P.2d 578, 582 (1998); 

see also United States v. Cronic, 466 U.S. 648, 658-59 (1984) (complete 

denial of counsel, or counsel’s utter failure to subject state’s case to 

meaningful adversarial testing, renders adversary process 

presumptively unreliable).

¶7 In State v. Terrazas, 237 Ariz. 170, ¶¶ 2-5, 347 P.3d 1151, 

1151-52 (App. 2015), we faced a situation similar to the one before 

us. Terrazas was represented by an attorney who was supervising a 

law student properly certified to practice pursuant to Rule 38(d). 

Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. However, the 

student’s Rule 38(d) certification expired before the representation 

was complete. Terrazas, 237 Ariz. 170, ¶¶ 2-3, 347 P.3d at 1152. We 

rejected Terrazas’s argument that he had been completely deprived 

of counsel as a result of the student’s appearance after the 

expiration. See id. ¶¶ 4-5 (“we can discern no reason to adopt . . . a 

rule” regarding failure to strictly comply with Rule 38(d) as 

structural error). Notwithstanding the Rule 38(d) violation, we 

emphasized that Terrazas was at all times represented by a licensed 

attorney who was “‘fully responsible for the manner in which [the 

proceedings] [we]re conducted.’” Terrazas, 237 Ariz. 170, ¶ 5, 347 

P.3d at 1152, quoting Ariz. R. Sup. Ct. 38(d)(5)(C)(i)(c) (alterations in 

Terrazas); see also Ariz. R. Sup. Ct. 38(d)(5)(E)(iii) (supervising 

attorney “assume[s] personal professional responsibility for any 

work performed” by law student). We expressly adopted the 

reasoning of the Illinois Supreme Court, holding 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.” Terrazas, 237 Ariz. 170, ¶ 5, 347 P.3d at 

 

(2005) (fundamental error review applies when defendant fails to 

object to alleged trial error). Although failure to obtain a 

defendant’s consent to representation by a law student in violation 

of Rule 38(d) could constitute fundamental error, Koepke has not 

met her burden of showing prejudice in this case. Thus, we proceed 

with our analysis under a structural error framework.
STATE v. KOEPKE

Opinion of the Court

5

1152, quoting In re Denzel W., 930 N.E.2d 974, 982 (Ill. 2010)

(alteration in Terrazas).

¶8 Koepke attempts to distinguish Terrazas and Denzel W.

on their facts. She argues that Terrazas did not consider the question 

of the client’s consent to representation by a Rule 38(d) student and 

that the student in her case was involved with the representation to 

a greater degree than the student in Denzel W. We find these 

arguments unpersuasive, because they do not address the critical 

issue for purposes of a structural error analysis—was the defendant 

completely denied counsel at any critical stage of the proceeding? 

See Valverde, 220 Ariz. 582, ¶ 10 & n.2, 208 P.3d at 235-36 & n.2; 

cf. City of Seattle v. Ratliff, 667 P.2d 630, 631, 634-35 (Wash. 1983)

(representation solely by non-attorney legal intern denied defendant 

right to counsel; intern was apparently prevented from contacting 

supervising attorney, who was not present during trial).

¶9 Koepke’s reliance on State v. Coghill, 216 Ariz. 578, 

¶¶ 40-45, 169 P.3d 942, 952-53 (App. 2007) is misplaced. In that case 

we concluded the trial court did not err by rejecting the defendant’s 

motion permitting his father, an Illinois attorney, to appear pro hac 

vice on his behalf, because the defendant did not attach a 

certification form from the State Bar of Arizona as required by 

Rule 38(a)(3)(B). Coghill, 216 Ariz. 578, ¶¶ 40, 42, 169 P.3d at 952. In 

contrast, we are not presented with the question of whether a trial 

court errs by preventing a law student who has not strictly followed 

Rule 38(d) from appearing on a defendant’s behalf. Nothing in 

Coghill suggests that a defendant’s right to counsel is vitiated when, 

although the defendant is represented by an attorney, a law student 

working with the attorney is not in compliance with Rule 38(d).

¶10 The record leaves no doubt that Koepke was 

represented by a licensed attorney at all critical stages. Her attorney

was personally present at all proceedings in which the law student

participated, and the attorney retained full responsibility for the 

representation. See Ariz. R. Sup. Ct. 38(d)(5)(C)(i)(c), (E)(iii). 
STATE v. KOEPKE

Opinion of the Court

6

Koepke’s argument that she was completely denied her right to 

counsel therefore fails.

2 Terrazas, 237 Ariz. 170, ¶ 5, 347 P.3d at 1152.

Effective Assistance of Counsel

¶11 A criminal defendant’s claim that she was completely 

denied her right to counsel at a critical stage of the proceedings is 

cognizable on direct appeal, as illustrated above.

3 See, e.g., State v. 

Kiles, 222 Ariz. 25, ¶¶ 3, 39-45, 213 P.3d 174, 178, 183-84 (2009); 

Moody, 192 Ariz. 505, ¶¶ 1, 23, 968 P.2d at 578-79, 582. In contrast, a 

claim that counsel of record was ineffective is properly raised in 

post-conviction proceedings pursuant to Rule 32, Ariz. R. Crim. P. 

State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). To the extent 

Koepke indirectly contends that the absence of her written consent

for Rule 38(d) counsel means that her licensed counsel was 

ineffective, we do not address it because it can be litigated only 

under Rule 32. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d at 527 (appellate 

court “will not address” ineffective assistance of counsel on direct 

appeal); see Ariz. R. Crim. P. 32.1(a); see also Denzel W., 930 N.E.2d at 

983-84 (ineffective assistance of counsel standard from Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984) provides appropriate 

 

2Although the record does not support Koepke’s contention 

that structural error occurred in this case, we do not minimize the 

seriousness of counsel’s failure to secure a defendant’s written 

consent to representation by a Rule 38(d) student. The mandatory 

consent requirement of Rule 38(d)(5)(C)(i) operates in the shadow of 

a defendant’s Sixth Amendment rights—it is not a “‘mere 

suggestion[].’” Denzel W., 930 N.E.2d at 980, quoting People v. 

Houston, 874 N.E.2d 23, 27 (Ill. 2007); see also Gideon v. Wainwright, 

372 U.S. 335, 344 (1963).

3 Given that the right to counsel is of constitutional stature, 

such a claim can also be cognizable in post-conviction proceedings if

it is not precluded by Rule 32.2, Ariz. R. Crim. P. See Ariz. R. Crim. 

P. 32.1(a); see also Terrazas, 237 Ariz. 170, ¶¶ 3-5, 347 P.3d at 1152

(considering merits of deprivation of counsel claim in Rule 32 

proceedings when defendant learned only after conviction that law 

student’s Rule 38(d) certification had expired during representation).
STATE v. KOEPKE

Opinion of the Court

7

framework for reviewing court where law student aiding defense 

has not complied with applicable certification rules). 

Disposition

¶12 We affirm for the reasons stated above.