Montgomery v. Sheldon

Decision Date07 February 1995
Docket NumberCV-94-0159-PR,Nos. CV-94-0008-P,s. CV-94-0008-P
Citation889 P.2d 614,181 Ariz. 256
PartiesJackie MONTGOMERY, Petitioner, v. Honorable Steven D. SHELDON, Judge, Maricopa County Superior Court, State of Arizona, Respondent Judge, STATE of Arizona, Real Party in Interest. Joe David CAMPBELL, Petitioner, v. Honorable Michael J. O'MELIA, Judge, Maricopa County Superior Court, State of Arizona, Respondent Judge, STATE of Arizona, Real Party in Interest.
CourtArizona Supreme Court

FELDMAN, Chief Justice.

These cases are before us on petitions for review from conflicting opinions of the court of appeals. The state petitioned for review of a decision granting special action relief in Montgomery v. Superior Court, 178 Ariz. 84, 870 P.2d 1180 (App.1993). A criminal defendant petitioned for review of a decision denying relief on the same issue in Campbell v. Superior Court, 178 Ariz. 193, 871 P.2d 740 (App.1994). We granted review and consolidated these cases for oral argument with two others raising the same substantive issue. 1 Ariz.R.Civ.App.P. 8(b). We have jurisdiction under Ariz. Const. art. 6, § 5(3).


The relevant facts in all cases are the same. After pleading guilty to various felonies and receiving prison sentences, each petitioner filed a notice of post-conviction relief ("PCR") under Ariz.R.Crim.P. 32. The trial court appointed counsel to file a PCR petition for each petitioner within the sixty days allowed by Rule 32.4(c). In each case, counsel told the petitioner near the end of that period that there were no grounds for Rule 32 relief. Counsel also said, however, that each petitioner could still file a PCR petition on his own behalf. Toward that end, counsel filed motions requesting thirty-day extensions to permit the petitioners to file pro se petitions.

Each trial judge denied the request. The court of appeals granted Montgomery special action relief, holding that he had a right to file a PCR petition pro se and that appointed counsel's eleventh-hour notification that he could find no colorable claims constituted "good cause" entitling him to an extension under Rule 32.4(c). Montgomery, 178 Ariz. at 86-88, 870 P.2d at 1182-84. Rejecting Montgomery, a divided department of the court of appeals reached the opposite conclusion on the same issue. Campbell, 178 Ariz. at 199, 871 P.2d at 746. We granted review to reconcile these divergent interpretations of Rule 32. See Ariz.R.Civ.App.P. 23(c)(4). Because we conclude that Montgomery correctly interpreted our constitution and Rule 32, we affirm that opinion and vacate the opinion in Campbell.

A. The Nature of a Rule 32 PCR Proceeding

Rule 32 provides that "any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief...." Ariz.R.Crim.P. 32.1. Although procedurally distinct, Rule 32 proceedings and direct appeal are both devices for ensuring that every defendant receives due process of law. State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). Rule 32 provides that when a defendant timely files a notice of PCR, the trial court shall appoint counsel upon request. Ariz.R.Crim.P. 32.4(c). The rule requires the defendant or counsel to file a PCR petition within sixty days but contemplates a thirty-day extension on "a showing of good cause." Id.

Our constitution guarantees that in "criminal prosecutions, the accused shall have ... the right to appeal in all cases." Ariz. Const. art. 2, § 24. A defendant normally may exercise that right through a direct appeal. But under Ariz.R.Crim.P. 17.1(e) and 27.8(e), a defendant in a noncapital case who pleads guilty or admits a parole violation waives the right to a direct appeal. In accord with art. 2, § 24, however, those rules specifically allow the defendant to "seek review ... by filing a petition for post-conviction relief pursuant to Rule 32." Ariz.R.Crim.P. 17.1(e), 27.8(e); Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) ("It was precisely because of art. 2, § 24 that this court expressly left open the avenue of appellate review by PCR in lieu of direct appeal when it amended the rules with respect to cases involving [guilty pleas]."). Thus, for such defendants, including the defendants in the cases before us, a Rule 32 proceeding is the only means available for exercising the constitutional right to appellate review. As we recently explained, "[t]hat right cannot be waived merely by a plea or admission." Wilson, 176 Ariz. at 123, 859 P.2d at 746. 2

B. Does a Defendant Have a Right to File a Pro Se Rule 32 Petition?

That then brings us to the basic question: given a constitutional right to appellate review "in all cases," is a defendant entitled to exercise that right pro se after appointed counsel declines to provide assistance?

Self representation is, of course, a fundamental constitutional right. Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985). We reject the notion, asserted by the state and accepted by the Campbell majority, that "Rule 32 creates an either/or choice" at the commencement of the proceeding to either proceed pro se or request counsel. Campbell, 178 Ariz. at 199, 871 P.2d at 746. If this were the rule, a defendant who chose to commence the proceeding through counsel, but whose counsel refused to proceed, would be unable to obtain appellate review. Nothing in the rule compels that result. Nor did we intend, when adopting the current rule, to so restrict a defendant's constitutionally protected right to appellate review. 3 Wilson, 176 Ariz. at 123, 859 P.2d at 746; see also State v. Birmingham, 95 Ariz. 310, 316, 390 P.2d 103, 107 ("The right to appeal is substantive. The rules promulgated by this Court ... may not diminish or augment substantive rights."), on reh'g, 96 Ariz. 109, 392 P.2d 775 (1964). We do not so interpret the rule today. Nor do we customarily find the need when adopting a rule to explicitly disavow an intent to violate the constitution. Cf. dissent, post at 262 n. 2, 889 P.2d at 620 n. 2. It may, we think, be taken for granted that we intend to abide by the constitution.

Even if art. 2, § 24 would permit a contrary result, practical concerns support allowing a defendant to proceed pro se if appointed counsel refuses to pursue a PCR petition. As the dissent implicitly concedes, such a result is "practical and sensible." That conclusion is a compelling factor in construing our rule. We cannot ignore the fact that even the most able lawyers occasionally fail to see arguable or even winning issues on appeal. See, e.g., State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980) (reversing capital conviction based on defendant's supplemental pro se argument). Nor can we assume, unfortunately, that defendants always have competent lawyers. We agree that the "defendant having a right to access, counsel cannot unilaterally shut the courthouse door." Campbell, 178 Ariz. at 200, 871 P.2d at 747 (Kleinschmidt, J., dissenting). 4 This approach finds further support in the procedure long utilized on direct appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which entitles a defendant to file a supplemental pro se brief if appointed counsel concludes an appeal has no merit. Although the defendant may raise fewer issues in a PCR proceeding than in a direct appeal, under art. 2, § 24 the right to present those issues for judicial review when appointed counsel declines to do so should be the same. We recognize, of course, that Anders was based on a defendant's Fourteenth Amendment right to counsel in a first appeal and that there is no such right in state PCR proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). A Rule 32 proceeding followed by appellate review, however, is similar to a direct appeal for an Arizona defendant who pleads guilty. Because Rule 32.4(c) provides for appointment of counsel, Anders is persuasive insofar as it authorizes a defendant to proceed pro se if counsel finds no merit. Cf. Austin v. United States, 513 U.S. 5, ---- - ----, 115 S.Ct. 380, 381-82, 130 L.Ed.2d 219 (1994) (commenting on appointed counsel's obligation not to file a frivolous certiorari petition and an indigent defendant's right to prosecute an appeal).

That is not to say, however, that an Anders-like review for fundamental error is required whenever a defendant exercises the right to file a PCR petition. We reject that idea, as we have before. Wilson, 176 Ariz. at 124, 859 P.2d at 747 ("[We] are not commanding, nor do we want, trial courts to conduct Anders-type reviews in PCRs."); State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984) (noting that Anders does not require fundamental error review at every level of the appellate process). 5 To the contrary, we hold only that if counsel refuses to proceed, a pleading defendant has a right under Ariz. Const. art. 2, § 24 to file a pro se PCR petition. Trial courts should treat such petitions like any other and...

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