State v. Bigger

• Decision Date: 14 October 2020
• Docket Number: No. 2 CA-CR 2019-0012-PR,2 CA-CR 2019-0012-PR
• Citation: 250 Ariz. 174,476 P.3d 722
• Parties: The STATE of Arizona, Respondent, v. Ronald Bruce BIGGER, Petitioner.
• Court: Arizona Court of Appeals

250 Ariz. 174

476 P.3d 722

The STATE of Arizona, Respondent,

v.Ronald Bruce BIGGER, Petitioner.

No. 2 CA-CR 2019-0012-PR

Court of Appeals of Arizona, Division 2.

Filed October 14, 2020

Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent

Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Petitioner

Chief Judge Vásquez authored the opinion of the Court, in which Presiding Judge Staring and Judge Eppich concurred.

VÁSQUEZ, Chief Judge:

¶1 Petitioner Ronald Bigger seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes , 216 Ariz. 390, ¶ 4, 166 P.3d 945 (App. 2007). Bigger has not sustained his burden of establishing such abuse here.

Factual and Procedural Background

¶2 After a jury trial, Bigger was convicted of first-degree murder and conspiracy to commit first-degree murder. On July 16, 2007, the trial court sentenced him to concurrent prison terms of natural life. This court affirmed his convictions and sentences on appeal and issued its mandate on March 30, 2012. State v. Bigger , 227 Ariz. 196, 254 P.3d 1142 (App. 2011).

¶3 On May 2, 2012, Bigger filed a motion for an extension of time for filing his notice of post-conviction relief, which the trial court granted. Bigger filed his notice on May 21, 2012, but did not file his petition until January 2016, following multiple extensions. Bigger argued he had received ineffective assistance of trial counsel based on counsel's "putting forth a theory of the case that was unfounded and completely contradicted by the evidence," "stipulating ... to make no hearsay objections" to certain evidence, "rescinding a character defense," "making claims during opening statements that could only have been testified to by [Bigger], knowing [he] would not be testifying," and calling an expert witness as to the possible time of the victim's death. Bigger also argued Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), was a significant change in the law that entitled him to relief. In a pro se petition,¹ Bigger asserted claims of judicial bias, due process claims relating to identification, disclosure violations by the state, additional claims of ineffective assistance of trial counsel, actual innocence, and denial of his right to counsel based on conflicts with counsel. The trial court summarily denied relief.

Discussion

Timeliness of Petition for Post-Conviction Relief

¶4 In his petition for review, Bigger argued the trial court had abused its discretion in denying relief on his claims of ineffective assistance of counsel and in rejecting his claim of a significant change in the law. This court, however, ordered supplemental briefing pointing out that although the trial court had granted an extension of time for Bigger to file his notice of post-conviction relief, it lacked jurisdiction to do so. See State v. Lopez , 234 Ariz. 513, 323 P.3d 1164 (App. 2014). Noting that recently passed amendments to the Arizona Rules of Criminal Procedure could arguably apply, we asked the parties to address the applicability of the new rules and whether A.R.S. § 13-4234 nonetheless required dismissal of Bigger's notice or the claims raised therein.

¶5 In its supplemental brief, the state concedes that the new rules apply. We agree. As the state points out, our supreme court's order provides that the amended and additional rules apply to actions pending on January 1, 2020, "except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). And both divisions of this court have applied the new rules to cases pending review in the appellate court. See State v. Mendoza , 249 Ariz. 180, n.1, 467 P.3d 1120 (App. 2020) (Division Two); State v. Botello-Rangel , 248 Ariz. 429, n.1, 461 P.3d 449 (App. 2020) (Division One).

¶6 Under former Rule 32.1(f), a defendant filing a "notice of post-conviction relief of-right"² could seek relief if the failure to timely file that notice was "not the defendant's fault." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). Pursuant to Rule 32.4(a)(2)(D), a notice in any other noncapital case, however, had to be filed within ninety days after sentencing or thirty days after the mandate on appeal. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). As provided in Rule 32.4(a)(2)(A), these time limits did not apply to claims made pursuant to Rule 32.1(d) through (h), but constitutional claims raised under Rule 32.1(a), such as claims of ineffective assistance of trial counsel, were subject to these deadlines. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).

¶7 When our supreme court amended Rule 32.4, it provided that although a notice of post-conviction relief raising claims under Rule 32.1(a) must still be filed within ninety days after sentencing or thirty days after entry of the appellate court's mandate, trial courts "must excuse an untimely notice ... if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." Ariz. R. Crim. P. 32.4(b)(3)(A), (D).³ In this case, Bigger's motion for an extension of time to file his notice, which was filed after the time for the notice had passed, explained that appellate counsel needed additional time "to secure counsel to represent [Bigger] in his post-conviction proceedings." Thus, because Bigger was represented and clearly relying on counsel at that point, counsel and not Bigger was at fault for the late filing of the motion for an extension.

And, as noted above, the trial court granted the motion, resulting in a delay of the filing of the notice. Under these circumstances we cannot say Bigger was at fault in regard to the untimely filing of the notice—indeed in view of counsel's actions and the court's having granted the motion, he could only have assumed he had been granted the additional time. Thus, under current Rule 32.4, the court was required to excuse the untimely notice.

¶8 As we pointed out in our order for supplemental briefing, however, § 13-4234 arguably conflicts with this provision of Rule 32. Section 13-4234(C) provides the same thirty- and ninety-day limits set forth in Rule 32, but the statute does not include a provision excusing the untimely filing of a notice of post-conviction relief when the defendant is not at fault.⁴ Rather, it provides that "[t]he time limits are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice." § 13-4234(G). And although A.R.S. § 13-4232(B), like former Rule 32, allows claims pursuant to A.R.S. § 13-4231(4) through (7) "to be raised in a successive or untimely petition," no such provision is made for claims pursuant to subsections (1) through (3), including constitutional claims such as the claims of ineffective assistance of counsel raised here.⁵

¶9 Bigger argues the statute "is unconstitutional to the extent that it contradicts the Arizona Rules of Criminal Procedure."⁶ The state contends that this provision has never been declared unconstitutional, and contends the statute does not conflict with Rules 32 and 33, but "[r]ather, the rules provide an escape route to diminish the harsh penalty for untimely filed notices."

¶10 Under Arizona law, "the legislature ‘has all power not expressly prohibited or granted to another branch of the government.’ " State ex rel. Napolitano v. Brown , 194 Ariz. 340, ¶ 5, 982 P.2d 815 (1999) (quoting Adams v. Bolin , 74 Ariz. 269, 283, 247 P.2d 617 (1952) ). Article VI, § 5 of the Arizona Constitution allocates to our supreme court the "[p]ower to make rules relative to all procedural matters in any court." The constitution further separates the three departments of government and precludes any department from "exercis[ing] the powers properly belonging to either of the others." Ariz. Const. art. III. Therefore, the legislature may not enact a statute that conflicts with the rulemaking authority of our supreme court. State v. Reed , 248 Ariz. 72, ¶ 9, 456 P.3d 453 (2020) (quoting Brown , 194 Ariz. 340, ¶ 6, 982 P.2d 815 ). But, the courts will "recognize ‘reasonable and workable’ procedural laws" passed by the legislature "if they supplement rather than conflict with court procedures." Id. ¶ 10 (quoting Seisinger v. Siebel , 220 Ariz. 85, ¶ 8, 203 P.3d 483 (2009) ).

¶11 Furthermore, "[r]ules and statutes ‘should be harmonized wherever possible and read in conjunction with each other.’ " State v. Hansen , 215 Ariz. 287, ¶ 7, 160 P.3d 166 (2007) (quoting Phoenix of Hartford, Inc. v. Harmony Rests., Inc. , 114 Ariz. 257, 258, 560 P.2d 441, 442 (App. 1977) ). When they cannot be harmonized, "we must then determine whether the challenged statutory provision is substantive or procedural." Seisinger , 220 Ariz. 85, ¶ 24, 203 P.3d 483. Substantive provisions are to be made by the legislature, while the courts control procedural matters. Id. ¶¶ 26-28. "[T]he substantive law is that part of the law which creates, defines and regulates rights; whereas the adjective, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion."

Id. ¶ 29 (quoting State v. Birmingham , 96 Ariz. 109, 110, 392 P.2d 775 (1964) ).

¶12 In 1987, in State v. Fowler , 156 Ariz. 408, 752 P.2d 497 (App. 1987), this court addressed portions of §§ 13-4232 and 13-4234, which set a time limit on the filing of a notice in post-conviction proceedings, providing that a petitioner could not obtain relief based on a ground raised more than a year after the mandate on appeal. At that time Rule 32.4 did not include any time...