Osterkamp v. Browning

• Decision Date: 25 February 2011
• Docket Number: No. 2 CA–SA 2010–0091.,2 CA–SA 2010–0091.
• Citation: 250 P.3d 551,226 Ariz. 485,602 Ariz. Adv. Rep. 12
• Parties: Jacob T. OSTERKAMP, Petitioner,v.Hon. Christopher BROWNING, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona, by and through the Pima County Attorney, Real Party in Interest.
• Court: Arizona Court of Appeals

226 Ariz. 485

250 P.3d 551

602 Ariz. Adv. Rep. 12

Jacob T. OSTERKAMP, Petitioner,

v.Hon. Christopher BROWNING, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona, by and through the Pima County Attorney, Real Party in Interest.

No. 2 CA–SA 2010–0091.

Court of Appeals of Arizona, Division 2, Department B.

Feb. 25, 2011.

Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Tucson, Attorneys for Petitioner.Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Real Party in Interest.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 In this special action, petitioner Jacob Osterkamp challenges the respondent judge's order denying his request for counsel in the underlying post-conviction proceeding. For the reasons stated below, we accept jurisdiction and hold that Rule 32.4, Ariz. R.Crim. P., entitles an indigent, pleading defendant to the appointment of counsel in the defendant's second, timely filed post-conviction proceeding so that he may investigate and possibly assert a claim that counsel in the defendant's first, “of-right” post-conviction proceeding had rendered ineffective assistance.

BACKGROUND

¶ 2 The following facts are either undisputed or established by the scant record with which we have been provided. Pursuant to a plea agreement in three causes, Osterkamp was convicted of three felonies and sentenced to a combination of consecutive and concurrent aggravated prison terms. He sought post-conviction relief pursuant to Rule 32, and the respondent judge granted him partial relief.

¶ 3 Within thirty days of the July 2010 minute entry order granting Osterkamp partial relief, he filed a second notice of post-conviction relief, which the respondent dismissed summarily. Osterkamp requested that the respondent reinstate the postconviction proceeding in light of this court's recent decision in State v. Petty, 225 Ariz. 369, 238 P.3d 637 (App.2010). Osterkamp also requested that counsel be appointed to represent him. The respondent reinstated the post-conviction proceeding but, stating he was “[e]xercising [his] discretion,” denied Osterkamp's request for counsel. Osterkamp filed a motion for reconsideration, which the respondent denied, apparently staying the post-conviction proceeding while Osterkamp sought special action relief from this court.

SPECIAL ACTION JURISDICTION

¶ 4 We accept jurisdiction of this special action for several reasons. First, the challenged order is interlocutory and Osterkamp has no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. Actions 1; see Potter v. Vanderpool, 225 Ariz. 495, ¶ 7, 240 P.3d 1257, 1260 (App.2010) (appropriate to accept special action jurisdiction to review interlocutory order); cf. J.A.R. v. Superior Court, 179 Ariz. 267, 272, 275–78, 877 P.2d 1323, 1328, 1331–34 (App.1994) (accepting jurisdiction of denial of motion to intervene and addressing, inter alia, whether child party entitled to independent counsel and counsel of choice); Okeani v. Superior Court, 178 Ariz. 180, 181, 871 P.2d 727, 728 (App.1993) (finding order denying counsel's motion to withdraw proper subject for special action review). Second, even assuming Osterkamp could raise this issue in a petition for review of the final order ultimately entered in the underlying proceeding, see Ariz. R.Crim. P. 32.9, such a review is not the same as a direct appeal. See A.R.S. § 13–4033(A) (identifying orders from which defendant in criminal action may seek direct appeal as matter of right); State v. Whipple, 177 Ariz. 272, 274 & n. 4, 866 P.2d 1358, 1360 & n. 4 (App.1993) (citing Rule 32.9(f) and noting review of order in post-conviction proceeding by appellate court discretionary).

¶ 5 But even assuming the review of a final order entered in a post-conviction proceeding obtained pursuant to Rule 32.9 is substantively indistinguishable from review by direct appeal, that review nevertheless would be inadequate here. See Ariz. R.P. Spec. Actions 1 (special action jurisdiction should be accepted when remedy by appeal not “equally plain, speedy, and adequate”). As Osterkamp correctly points out, if the case is permitted to proceed, once a final order is entered, he will have been deprived of the assistance of counsel and the damage will have been done. Cf. Washington v. Superior Court, 180 Ariz. 91, 93, 881 P.2d 1196, 1198 (App.1994) (accepting special action jurisdiction, finding remedy of post-conviction proceeding inadequate because probationer would have served period of incarceration while proceeding was pending). Osterkamp also is at risk for further prejudice because in any successive proceeding, he will be precluded from raising any claim that he did not raise but could have raised in this proceeding, and perhaps would have raised had he been provided with counsel's assistance. See Ariz. R.Crim. P. 32.2(a)(3) (precluding defendant from obtaining relief based on claim waived “in any previous collateral proceeding”); see also State v. Shrum, 220 Ariz. 115, ¶¶ 5–6, 12, 203 P.3d 1175, 1177–78 (2009) (noting “preclusive effect of the dismissal of [defendant]'s first [Rule 32] proceeding” on claim of illegal sentence; finding rule precludes relief on ground raised or that could have been raised on direct appeal or previous Rule 32 proceeding); Petty, 225 Ariz. 369, ¶ 10, 238 P.3d at 640 (acknowledging “Rule 32.2(a) states the general rule of preclusion” and finding defendants may not seek relief based on claim raised or that could have been raised); State v. Swoopes, 216 Ariz. 390, ¶¶ 23–25, 166 P.3d 945, 952–53 (App.2007) (finding precluded in successive proceeding claims of ineffective assistance of counsel not raised but which could have been raised in first post-conviction proceeding).

¶ 6 Additionally, the issue raised requires us to interpret various provisions of Rule 32. Interpretation of procedural rules involves questions of law, which are appropriately reviewed by special action. See State v. Nichols, 224 Ariz. 569, ¶ 2, 233 P.3d 1148, 1149 (App.2010). Finally, because the respondent abused his discretion, post-conviction relief is warranted. See Ariz. R.P. Spec. Actions 3(c).

DISCUSSION

¶ 7 A pleading defendant does not have the right to a direct appeal from a conviction and sentence. See A.R.S. § 13–4033(B); Ariz. R.Crim. P. 17.1(e). But a pleading defendant does have the right to obtain review by the trial court pursuant to Rule 32 in what the rule defines as “a rule 32 of-right proceeding.” Ariz. R.Crim. P. 32.1. “[F]or a pleading defendant, Rule 32 is ‘the only means available for exercising the [defendant's] constitutional right to appellate review.’ ” Petty, 225 Ariz. 369, ¶ 9, 238 P.3d at 640, quoting Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616, supp. op., 182 Ariz. 118, 893 P.2d 1281 (1995) (alteration in Petty ).

¶ 8 Osterkamp contends this court's decision in Petty “compels the conclusion that appointment of counsel should be mandatory” here, as does the case law establishing that a pleading defendant's of-right proceeding is tantamount to an appeal. He maintains the rule and a comment to it are “flawed” to the extent they give the trial court discretion to determine whether to appoint counsel in all but the first post-conviction proceeding. Arguing the second proceeding is still part of the “of-right” proceeding for the pleading defendant, Osterkamp asserts, as he did below, that without the assistance of counsel, a pleading defendant is unable to “vindicate” the recognized right to the effective assistance of counsel in the first “of right” Rule 32 proceeding. He also maintains that, unless the appointment of counsel is mandatory in these circumstances, the rule cannot be administered fairly because “there is no objective basis on which trial courts” can make that decision. Real party in interest the State of Arizona suggests the rule is unclear but contends, based in part on the same comment Osterkamp rejects, any defendant seeking post-conviction relief has the right to appointed counsel in the first proceeding only. The state asserts in all other situations that decision is left to the discretion of the trial judge. And here, it argues, the respondent did not abuse his discretion.

¶ 9 In Petty, we reversed the trial court's summary dismissal of the pleading defendant's second notice of post-conviction relief in which he had expressed his intent to investigate and possibly raise a claim of ineffective assistance of counsel in his first post-conviction proceeding. 225 Ariz. 369, ¶¶ 1, 3, 238 P.3d at 638–39. Petty also stated in the notice that the Legal Defender's Office had represented him in the first proceeding, and he asked the court to appoint counsel from outside that office. Id. ¶ 3. The court dismissed the notice because Petty had failed to specify which exception to the rule of preclusion the claims he intended to raise fell under and the “meritorious reasons for not raising the claim in the previous petition,” as required by Rule 32.2(b). Id. ¶ 4. Petty, 225 Ariz. 369, ¶ 4, 238 P.3d at 639.

¶ 10 Petty had made clear his intent to investigate and possibly raise a claim of ineffective assistance of initial Rule 32 counsel, a claim that falls under Rule 32.1(a).¹ Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at 641. We concluded that, although claims under that subsection are not excepted from the general rule of preclusion, see Ariz. R.Crim. P. 32.2(b), Petty nevertheless could not be precluded from raising it in a successive post conviction proceeding because he could not have raised it in the first proceeding. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at 641. As we acknowledged, counsel could not be expected to evaluate and assert his or her own ineffectiveness. Id. ¶ 13, citing State v. Bennett, 213 Ariz. 562, ¶ 14, 146 P.3d 63, 67 (2006) (where non-pleading defendant represented by same counsel on appeal and in Rule 32 proceedings, defendan...