State v. Bell
| Decision Date | 06 February 1975 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Parties | STATE of Arizona, Appellee, v. Roy Sylvester BELL and Linda Jane Bell, Appellants. 665, 1 673. |
| Court | Arizona Court of Appeals |
This appeal requires an interpretation of Rule 32, Rules of Criminal Procedure, 17 A.R.S., dealing with post-conviction relief.
On December 20, 1973, appellants Roy S. Bell and Linda Jane Bell entered pleas of guilty to one amended charge each of unarmed robbery pursuant to a plea bargain whereby charges of possession of prescription only drugs for purposes of sale, not upon a valid prescription; possession of dangerous drugs for sale; second degree conspiracy; assisting the escape of prisoners; escape from county jail and armed robbery were dismissed as to each defendant. Roy Bell was sentenced to serve a term of not less than 18 nor more than 50 years, and Linda Bell was sentenced to a term of not less than 6 nor more than 15 years. Both filed in personam appeals which were consolidated.
Upon the filing of the appeals, the appellants being indigents, the trial court appointed the counsel who represented them at trial as counsel on appeal. After interviewing his clients, this counsel ascertained that appellants wished to urge his alleged incompetency as the basis of their appeal. Trial counsel brought this matter to the attention of the court by his motion to withdraw as counsel and a request that other counsel be appointed for appeal purposes. Trial counsel's motion was granted and present appellate counsel were appointed.
Present counsel then filed a motion in the trial court entitled 'Motion to Permit Withdrawal of Appellants' Plea,' and filed a motion in this court to stay the appeal pending a determination of his trial court motion. This court denied the motion on the basis that the motion to withdraw the pleas under Rule 17.5, Rules of Criminal Procedure, was untimely filed in the trial court. In addition, this court ordered the filing of appellants' opening brief.
Counsel complied with that order raising the issue of incompetency of counsel, but asserting that he was unable to factually present this issue to this court because of the lack of an evidentiary hearing on this issue. At this point it is important to point out that the only transcripts filed in this court in connection with this appeal deal with the hearings on the change of plea and sentencing. It is also important to point out that the grounds giving rise to the alleged claim of incompetency allegedly occurred prior to these hearings.
In the meantime and after opening memoranda in this court had been filed, appellants' motion to withdraw their plea came on for hearing before the trial court. At that hearing, counsel for the first time moved to amend his motion to seek relief under Rule 32.1, Rules of Criminal Procedure, and requested an evidentiary hearing on the allegations of incompetency of counsel. 1 This motion was resisted by the prosecution on the basis that incompetency of counsel had been raised on direct appeal and under Rule 32.2, Rules of Criminal Procedure, 2 the trial court was precluded from granting post-conviction relief on this ground. The trial court denied appellants' request.
Appellants are thus left in the quandary of attempting to raise an issue on appeal for which they readily admit a record establishing a factual basis is lacking and being unable to develop this factual basis in a Rule 32 post-conviction setting because of their appeal.
In our opinion Rule 32 has as its aim the establishment of proceedings to determine the facts underlying a defendant's claim for relief when such facts are not otherwise available. The comments to Rule 32.2 make this clear when they discuss the availability of federal review of state criminal proceedings:
'The federal courts will indulge in only limited review of state court rulings on claims of deprivation of federally protected constitutional rights when those claims have been Resolved on the merits after an adequate fact-finding inquiry.' (Emphasis added).
When Rule 32.2 is viewed with this aim in mind, we are of the opinion that the rpeclusion of post-conviction relief under this rule on the ground that the matter is still raisable on direct appeal applies only to those matters in which a sufficient factual basis exists in the record for the appellate court to resolve the matter.
Because the Rules of Criminal Procedure contemplate that matters may be pending in both the trial court and the appellate court simultaneously, the question arises as to which court makes the determination of whether a sufficient factual basis exists for meaningful appellate review. In our opinion this determination, in the interest of judicial economy, may first be made by the trial court. This could possibly be done by considering the factual basis for the contentions made and reviewing, if available, the transcripts on...
To continue reading
Request your trial
-
State v. Schrock
... ... denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983) ... "In our opinion Rule 32 has as its aim the establishment of proceedings to determine the facts underlying a defendant's claim for relief when such facts are not otherwise available." State v. Bell, 23 Ariz.App. 169, 171, 531 P.2d 545, 547 (1975). See also State v. Carriger, 132 Ariz. 301, 305, 645 P.2d 816, 820 (1982). Here there are no facts for either the trial court or this court to determine conclusively whether defendant's sentence was affected by this interview. When such doubts ... ...
-
State v. Watton
... ... Scrivner, 132 Ariz. 52, 54, 643 P.2d 1022, 1024 (App.1982); see also State v. Cabrera, 114 Ariz. 233, 236, 560 P.2d 417, 420 (1977); State v. Bell, 23 Ariz.App. 169, 171, 531 P.2d 545, 547 (1975). The goal of post-conviction relief is the elimination of confusion and avoidance of repetitious applications for relief while protecting a defendant's rights. Post-conviction relief provides a simple and efficient means of inquiry into a ... ...
- State v. Escobar
-
State v. Phillips
... ... See State v. Herrera, 183 Ariz. 642, 646, 905 P.2d 1377, 1381 (1995) (trial court "better equipped to resolve the factual disputes that frequently underlie assertions of ineffective assistance of counsel"); State v. Bell, 23 Ariz. App. 169, 171, 531 P.2d 545, 547 (1975) ("Rule 32 has as its aim the establishment of proceedings to determine the facts underlying a defendant's claim for relief when such facts are not otherwise available."). The passage of time, of course, may render evidence relevant to those findings ... ...