645 P.2d 816 (Ariz. 1982), 4457-2, State v. Carriger

Docket Nº:4457-2-PC.
Citation:645 P.2d 816, 132 Ariz. 301
Opinion Judge:[10] Cameron
Party Name:STATE of Arizona, Appellee, v. Paris Hoyt CARRIGER, Appellant.
Attorney:[7] Thomas E. Collins, Maricopa County Atty. by Jessica Gifford, Deputy Maricopa County Atty., Phoenix, for appellee. [8] Hirsh & Bayles by Donald H. Bayles, Jr., Tucson, for appellant.
Case Date:May 05, 1982
Court:Supreme Court of Arizona
 
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Page 816

645 P.2d 816 (Ariz. 1982)

132 Ariz. 301

STATE of Arizona, Appellee,

v.

Paris Hoyt CARRIGER, Appellant.

No. 4457-2-PC.

Supreme Court of Arizona.

May 5, 1982

In Banc.

Page 817

[132 Ariz. 302] Thomas E. Collins, Maricopa County Atty. by Jessica Gifford, Deputy Maricopa County Atty., Phoenix, for appellee.

Hirsh & Bayles by Donald H. Bayles, Jr., Tucson, for appellant.

CAMERON, Justice.

We granted the petition of the defendant, Paris Hoyt Carriger, for review of the trial court's denial of his petition for post-conviction relief. We have jurisdiction pursuant to A.R.S. § 13-4031 and Rule 32.9, Arizona Rules of Criminal Procedure, 17 A.R.S.

We must answer two questions on review:

1. Does the record show that the defendant was denied effective assistance of counsel at the sentencing hearing?

2. Did the trial court abuse its discretion in failing to hold a hearing on defendant's petition for post-conviction relief?

The facts necessary for a determination of this matter are as follows. Defendant was tried, convicted and adjudged guilty of the crimes of robbery and murder in the first degree. He was sentenced to death for the murder and 99 years for the robbery. He appealed the matter to this court and we affirmed the conviction and sentence. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979).

Defendant was represented by one lawyer at trial and a second lawyer on appeal. After the appeal, a third lawyer was appointed for defendant and he petitioned the trial court for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S. Upon filing, the trial court ordered the time for response and reply, and indicated the court would then "determine whether to dismiss the petition summarily, set it for an informal conference or an evidentiary hearing." After the pleadings were filed, the trial court set an informal (prehearing) conference at which time counsel for the State and the defendant were heard. The trial judge then denied the petition. Thus, the petition for post-conviction relief was denied without an evidentiary hearing. Defendant petitioned this court for review of the decision of the trial court pursuant to Rule 32.9, Arizona Rules of Criminal Procedure, 17 A.R.S.

EFFECTIVE ASSISTANCE OF COUNSEL

In the petition for post-conviction relief pursuant to Rule 32, supra, the defendant stated that he was denied effective assistance of counsel during sentencing because of the failure of his counsel

" * * * to act as a partisan advocate on behalf of defendant Carriger in investigating and assembling available mitigating evidence. Defense counsel absolutely failed to contact available witnesses or otherwise undertake any investigation [132 Ariz. 303]

Page 818

whatsoever in an effort to present mitigating evidence to the court. As a result of this utter failure, the court was deprived of available mitigating evidence which was necessary to properly evaluate and render a decision as to whether or not Paris Carriger should be executed. * * * "

This allegation is supported by the transcript of the record which was in the file and available to the trial court at the time of the ruling and which was referred to and quoted from in the petition for post-conviction relief. The transcript of the sentencing reads as follows:

"THE COURT...

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