Don SHOOTER, Individually, Plaintiff/Appellant, v. Toby FARMER, Individually, Real Party in Interest; Helen Purcell, in Her Official Capacity as Maricopa County Recorder; Board of Supervisors of Maricopa County, a Public Entity; Robyn Stallworth Pouquette, in Her Official Capacity as Yuma County Recorder; Yuma County Board of Supervisors, a Public Entity; Leslie M. Hoffman, in Her Official Capacity as Yavapai County Recorder; Yavapai County Board of Supervisors, a Public Entity; Ken Bennett, in His Official Capacity as Arizona Secretary of State, Defendants/Appellees.
No. CV-14-0180-AP/EL.
Supreme Court of Arizona.
July 29, 2014.
330 P.3d 956
See Faretta, 422 U.S. at 834, 95 S.Ct. 2525;
¶ 20 If the defendant makes an untimely request (after the thirty days have expired), the court of appeals may exercise its discretion. Cf. De Nistor, 143 Ariz. at 413, 694 P.2d at 243 (stating that if a defendant makes an untimely request to proceed pro se at the trial court level, “then whether defendant will be given the opportunity to waive counsel is within the discretion of the trial court“). The court may consider the same factors that a trial court does when a request for self-representation is made during trial. These factors include “the reasons for the defendant‘s request the quality of counsel, the defendant‘s proclivity to substitute counsel, and the disruption and delay expected in the proceedings if the request were to be granted.” Id. Delay may result because of the need to revest the trial court with jurisdiction to conduct a Faretta-like hearing. Requests made after the filing of the opening brief should be disfavored, as defendants are not entitled to switch back and forth between representation and self-representation. Cf. State v. Cornell, 179 Ariz. 314, 326, 878 P.2d 1352, 1364 (1994) (recognizing that, at the trial level, once defendant has invoked right to counsel, the trial court has discretion to deny a request to “switch back” to self-representation).
er, in its discretion, whether to grant the request.
III.
¶ 21
I.
¶ 2 “[A]ll petitions . . . submitted by a candidate who is found guilty of petition forgery shall be disqualified and that candidate shall not be eligible to seek election to a public office for a period of not less than five years.”
¶ 3 Shooter demonstrated at trial that seven of the signatures on two of Farmer‘s petition sheets were signed by persons other than the voters whose names had been signed. He did not provide any evidence, however, as to who had forged the signatures, and he chose not to call Farmer as a witness. Farmer, on the other hand, presented a handwriting expert who opined that Farmer had not signed the questioned signatures. Shooter showed that Farmer had signed the circulator‘s oath on both sheets, attesting that he had been present when the signatures were signed. Farmer signed the circulator‘s oath on a total of thirty-three sheets, bearing 216 voter signatures. From these facts, Shooter asked the trial court to infer that Farmer knew of the forgeries, which the court declined to do. Finding “no evidence” that Farmer knew of the forgeries, the court determined that petition forgery had not been proved and therefore did not remove Farmer‘s name from the ballot.
Keith Beauchamp, Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix, for Toby Farmer.
William G. Montgomery, Maricopa County Attorney, M. Colleen Connor, Deputy County Attorney, Phoenix, for Maricopa County Appellees.
Thomas C. Horne, Arizona Attorney General, Michele L. Forney, Assistant Attorney General, Phoenix, for Ken Bennett.
The Court, by a panel comprising Chief Justice BALES, Vice Chief Justice PELANDER, and Justice TIMMER, issued its decision per curiam.
PER CURIAM.
¶ 1 This petition challenge seeks to remove Toby Farmer‘s name from the primary ballot for the office of State Senator for Legislative District 13. Don Shooter appeals from the trial court‘s order declining to remove Farmer‘s name based on alleged “petition forgery.” We entered an order affirming the trial court‘s judgment and denying Farmer‘s request for attorney‘s fees, stating that a written decision would follow. This is that decision.
II.
¶ 4 We defer to the trial court‘s findings of fact unless they are clearly erroneous. State v. Forde, 233 Ariz. 543, 556 ¶ 28, 315 P.3d 1200, 1213 (2014). Shooter argues that whether an inference ought to be
¶ 5 Because we cannot say that the trial court‘s factual findings were clearly erroneous, we affirm the trial court‘s ruling that petition forgery was not proved. Even without the seven signatures that the trial court found to be forgeries, Farmer still had hundreds more valid signatures than he needed for his name to appear on the ballot.
¶ 6 Farmer requests attorney‘s fees, arguing that Shooter‘s petition forgery claim was “without substantial justification,”
III.
¶ 7 We therefore affirm the trial court‘s judgment and deny Farmer‘s request for attorney‘s fees.