State v. Chavez

• Decision Date: 16 November 2017
• Docket Number: No. 1 CA-CR 15-0482 PRPC,1 CA-CR 15-0482 PRPC
• Citation: 407 P.3d 85
• Parties: STATE of Arizona, Respondent, v. Lino Alberto CHAVEZ, Petitioner.
• Court: Arizona Court of Appeals

407 P.3d 85

STATE of Arizona, Respondent,

v.Lino Alberto CHAVEZ, Petitioner.

No. 1 CA-CR 15-0482 PRPC

Court of Appeals of Arizona, Division 1.

FILED November 16, 2017

Maricopa County Attorney's Office, Phoenix, By Robert E. Prather, Counsel for Respondent

Janelle A. McEachern Attorney at Law, Chandler, By Janelle A. McEachern, Counsel for Petitioner

Arizona Attorney General's Office, Phoenix, By Terry M. Crist, Counsel for Amicus Curiae Arizona Attorney General's Office

Arizona Attorneys for Criminal Justice, Tucson, By David J. Euchner, Co–Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

Federal Public Defender's Office, Phoenix, By Keith James Hilzendeger (argued), Co–Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Jon W. Thompson joined. Presiding Judge Kent E. Cattani concurred in the result and offered a concurring opinion.

McMURDIE, Judge:

¶ 1 Lino Alberto Chavez petitions this court to review the dismissal of his petition for post-conviction relief of-right. We grant review but deny relief, holding an of-right Rule 32 petitioner is not entitled to a review of the record by the superior court for arguable issues as required for direct appeals under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).¹

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In January 2012, Chavez was indicted on one count of first degree murder, a Class 1 dangerous felony, one count of robbery, a Class 4 felony, and one count of trafficking in stolen property, a Class 3 felony. The State alleged that Chavez drove the vehicle in which he and his codefendant fled after the codefendant stole a laptop computer. The victim died from injuries she sustained when she attempted to hang on to Chavez's vehicle as it sped away. Chavez pled guilty to one count of second degree murder, a Class 1 dangerous felony, and the superior court sentenced him to a presumptive term of 16 years' imprisonment.

¶ 3 Chavez filed a timely notice of post-conviction relief ("PCR") and his appointed Rule 32 counsel filed a notice of completion. Chavez then filed a pro se petition for post-conviction relief, which the superior court summarily denied. This timely petition for review followed.

¶ 4 In Pacheco v. Ryan, the United States District Court for the District of Arizona granted a petition for writ of habeas corpus filed after this court denied relief to a defendant seeking an Anders type of review after pleading guilty to child molestation in superior court. CV–15–02264–PHX–DGC, 2016 WL 7407242, *10 (D. Ariz. Dec. 22, 2016).² In that case, the defendant, Pacheco, entered into a written plea agreement and therefore had no right to a direct appeal under Arizona law. Id. at *1. After sentencing, Pacheco was appointed counsel in a PCR proceeding, who notified the court, after reviewing the record, that there were no arguable issues. Pacheco subsequently filed a pro se petition for post-conviction relief in superior court. Id. at *1–2. The superior court summarily denied his petition, and Pacheco filed a petition for review in this court arguing the superior court erred by not reviewing the record for "fundamental error" in accordance with Anders. Id. at *2. This court granted review but denied relief stating the court was not required to review Pacheco's petition for fundamental error. Id. ; State v. Pacheco, 2 CA–CR 2015–0240–PR, 2015 WL 5945442, at *1, ¶ 4 (Ariz. App. Oct. 13, 2015) (mem. decision). The district court found that "Petitioner's rights under Anders were violated by the failure of the trial court to independently review the record for non-frivolous issues for review," and granted the petition, ordering Pacheco released unless the superior court conducted an independent review of the record consistent with Anders within 90 days. Id. at *2, *10. The district court held Anders protections applied to Rule 32 of-right proceedings because, under Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), " Anders requirements extend to any case in which a constitutional right to counsel exists." Id. at *8. The court reasoned that because defendants in Rule 32 of-right proceedings have a federal constitutional right to counsel, Anders protections must apply to them. Id. While the district court noted Anders procedures can be independently developed by states, it found Arizona's current procedure did not adequately comply with those protections. Id. at *8, *10.

¶ 5 Chavez, like Pacheco, requested that this court review the record for "fundamental error." Recognizing the recurring issue raised by the district court's order in Pacheco, this court requested briefing on the issue from Chavez's appointed counsel and from the State, as well as from Amici Curiae with interest in our current Rule 32 procedure. We have jurisdiction to review this petition pursuant to Arizona Rule of Criminal Procedure 32.9(c).

DISCUSSION

A Criminal Defendant Is Not Entitled to Sua Sponte Review for Arguable Issues Under Anders in an Of–Right Petition for Post–Conviction Relief.

¶ 6 Chavez claims, based on Pacheco, that an Anders -type review is constitutionally required when a pleading defendant files an of-right petition for post-conviction relief.³ Thus, we address whether the superior court had a sua sponte obligation to review for arguable issues under Anders and Leon, and whether this court is similarly required to conduct such review. Because the claim is that the obligation under Anders requires sua sponte review by the superior court, Chavez did not waive the issue under Rule 32.2(a)(3) by failing to raise the claim in the superior court. See United States v. Dreyer, 705 F.3d 951, 960–61 (9th Cir. 2013) (when there is a genuine doubt about a defendant's competency, regardless of objection, it arises to reversible plain error because of the court's independent duty to establish competency); State v. Schossow, 145 Ariz. 504, 508, 703 P.2d 448, 452 (1985) (failure of defense counsel to object to competency of witnesses under the age of ten did not waive argument because error was fundamental and prejudicial based on trial court's duty to sua sponte inquire about the competency of child witnesses). However, the better practice, to avoid waiver, is always to ask the superior court to correct its alleged errors in the first instance.

1. Arizona's Elimination of the Conventional Direct Appeal for Criminal Defendants Who Plead Guilty.

¶ 7 The Arizona Constitution guarantees criminal defendants the right to an appeal.

Ariz. Const. art. 2, § 24. In 1992, to reduce the burden on appellate courts, the legislature amended Arizona Revised Statutes ("A.R.S.") section 13–4033(B) to state: "In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation." In conjunction with this change, the Arizona Supreme Court amended several rules of procedure to make clear that, "[b]y pleading guilty or no contest in a noncapital case, a defendant waives the right to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for post-conviction relief pursuant to Rule 32...." Ariz. R. Crim. P. 17.1(e) ; see Ariz. R. Crim. P. 17.2(e), 32.1.

¶ 8 Although pleading defendants waive a direct appeal, the Arizona Supreme Court held that such defendants can nonetheless file a petition for post-conviction relief challenging the judgment and sentence. 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 [pleas]."). The filing of a post-conviction relief petition by a pleading defendant became known as an "of-right" petition. Ariz. R. Crim. P. 32.1. The Arizona Supreme Court also amended Rule 32 to require the appointment of counsel for indigent defendants seeking "of-right" post-conviction relief. Ariz. R. Crim. P. 32.4(c)(2). Under the rule, if counsel "determines there are no colorable claims which can be raised," counsel must notify the court by way of what is known as a Montgomery notice. Id.; Montgomery v. Sheldon, 181 Ariz. 256, 260, 889 P.2d 614, 618 ( Montgomery I ); op sup., 182 Ariz. 118, 119, 893 P.2d 1281, 1282 (Montgomery II ) (1995), overruled by State v. Smith, 184 Ariz. 456, 910 P.2d 1 (1996) (a pleading defendant does not have a right to appointed counsel in a review from denial of post-conviction relief proceeding).⁴ The court must then allow the defendant the opportunity to file a pro se petition. Ariz. R. Crim. P. 32.4(c)(2). Importantly, counsel does not withdraw from representing the defendant at this stage, but rather "[c]ounsel's role is then limited to acting as advisory counsel until the trial court's final determination." Id. After following this procedure, the court may either dismiss the petition by summary disposition or set a hearing on the claims presented in the pro se petition. Ariz. R. Crim. P. 32.6(c).⁵

2. The Arizona Supreme Court Has Determined That the Superior Courts are Not Required to Review Of–Right Petitions for Post–Conviction Relief for Arguable Issues.

¶ 9 The United States Supreme Court established the Anders procedure to ensure substantial equality and fair process when defense counsel concludes that a client's appeal is "wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. 1396 ; see also Penson v. Ohio, 488 U.S. at 82–83, 109 S.Ct. 346. In such cases, counsel should advise the appellate court of this conclusion and request permission to withdraw along with providing a brief referring to portions of the record that "might arguably support the appeal." Anders, 386 U.S. at 744, 87 S.Ct. 1396. The defendant must be afforded...