State v. Diaz

• Decision Date: 30 December 2014
• Docket Number: No. CR–14–0063–PR.,CR–14–0063–PR.
• Citation: 340 P.3d 1069,703 Ariz. Adv. Rep. 30,236 Ariz. 361
• Parties: STATE of Arizona, Respondent, v. Daniel DIAZ, Petitioner.
• Court: Arizona Supreme Court

236 Ariz. 361
340 P.3d 1069
703 Ariz. Adv. Rep. 30

STATE of Arizona, Respondent
v.
Daniel DIAZ, Petitioner.

No. CR–14–0063–PR.

Supreme Court of Arizona.

Dec. 30, 2014.

340 P.3d 1069

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals Section, Phoenix, Jonathan Bass, Assistant Attorney General, Tucson; Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy County Attorney, Tucson, for State of Arizona.

Emily Danies, Attorney at Law, (argued), Tucson, for Daniel Diaz.

Justice TIMMER authored the opinion of the Court, in which Chief Justice BALES, Vice Chief Justice PELANDER and Justices BERCH and BRUTINEL joined.

Opinion

Justice TIMMER, opinion of the Court.

236 Ariz. 361

¶ 1 A criminal defendant cannot obtain post-conviction relief based on a ground that has been waived in a prior post-conviction relief proceeding. Ariz. R.Crim. P. 32.2(a)(3). Under the unusual facts of this case, Daniel Diaz did not waive his ineffective assistance of trial counsel claim when, through no fault of Diaz's, his counsel failed to file petitions in two prior post-conviction relief proceedings.

I. BACKGROUND

¶ 2 Before his 2007 conviction for possession of methamphetamine for sale, Diaz rejected two plea offers to stipulate, respectively, to prison terms of nine or fifteen years, after his trial attorney advised him that his presumptive sentence would be ten years and

236 Ariz. 362

340 P.3d 1070

his maximum sentence would be fifteen years. The superior court ultimately sentenced Diaz to an aggravated prison term of twenty-five years, and this Court affirmed Diaz's conviction and sentence. State v. Diaz, 224 Ariz. 322, 323 ¶ 3, 325 ¶ 18, 230 P.3d 705, 706, 708 (2010).

¶ 3 Diaz filed a notice of post-conviction relief (“PCR”), but the trial court dismissed the proceeding with prejudice after his new attorney failed to timely file a petition, despite receiving several extensions of the filing deadline. The court of appeals granted review but denied relief. State v. Diaz, 2 CA–CR 2010–0300–PR, at *1 ¶ 1, 2011 WL 213853 (Ariz.App. Jan. 21, 2011) (mem.decision).

¶ 4 Diaz filed a second PCR notice through a different attorney. As in the initial PCR proceeding, the trial court dismissed the matter with prejudice when Diaz's attorney failed to file a petition after obtaining several extensions of time. The court of appeals granted review but denied relief, although it acknowledged the procedural injustice to Diaz and referred both PCR attorneys to the State Bar of Arizona for potential discipline. State v. Diaz, 228 Ariz. 541, 542 ¶ 1, 543 ¶ 7, 545 ¶ 12, 269 P.3d 717, 718, 719, 721 (App.2012).

¶ 5 After Diaz initiated his third PCR proceeding, a third PCR attorney timely filed Diaz's first PCR petition, which alleged that trial counsel's ineffective assistance led Diaz to reject the State's plea offers and proceed to trial. The trial court summarily denied the petition after finding that Diaz's ineffective assistance of counsel (“IAC”) claim was precluded because the claim had been both waived and finally adjudicated on the merits in a prior PCR proceeding. See Ariz. R.Crim. P. 32.2(a) (listing grounds for preclusion). The court of appeals granted review but denied relief, reasoning that Diaz waived his claim pursuant to Rule 32.2(a)(3). State v. Diaz, 2 CA–CR 2013–0387–PR, at *2 ¶¶ 6–7, 2014 WL 586049 (Ariz.App. Feb. 13, 2014) (mem. decision).

¶ 6 We granted review to decide an important issue of law concerning waiver in Rule 32 proceedings. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

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