State v. Goracke
Decision Date | 22 February 2005 |
Docket Number | No. 1 CA-CR 03-0187.,1 CA-CR 03-0187. |
Citation | 210 Ariz. 20,106 P.3d 1035 |
Parties | STATE of Arizona, Respondent, v. Darrell Wayne GORACKE, Petitioner. |
Court | Arizona Court of Appeals |
Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Andrew P. Thomas, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney, Phoenix, Attorneys for Respondent.
Law Offices of Kerrie M. Droban By Kerrie M. Droban, Scottsdale, Attorney for Petitioner.
¶ 1 Darrell Wayne Goracke ("petitioner"), while incarcerated, filed a pro per petition for review by the Arizona Supreme Court three days after the deadline. The issue before us is whether the prisoner mailbox rule that applies in other specified post-trial settings applies here. We hold that it does.
¶ 2 On November 16, 2000, petitioner was convicted of burglary in the second degree, theft, misconduct involving weapons, and theft of a means of transportation. Petitioner appealed and we affirmed on October 16, 2001. Following his appeal, petitioner timely filed a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. That petition was summarily denied by the trial court. Ariz. R.Crim. P. 32.6(c). Petitioner filed a petition for review of that decision with this court.
¶ 3 On May 26, 2004, petitioner's petition for review of post-conviction relief was denied by this court. A petition for review by the Arizona Supreme Court must be filed "[w]ithin 30 days after the filing of a decision or within 15 days after the clerk has mailed notice of the determination of a motion for reconsideration." Ariz. R.Crim. P. 31.19(a).1
¶ 4 In response to petitioner's several requests for extensions of time, this court set August 30, 2004 as the deadline for petitioner to file his petition for review by the Arizona Supreme Court. The petition for review was not received for filing in the clerk's office until September 2, 2004, three days after the deadline.2 The petition was dated August 30, 2004. A "Proof/Certificate of Service" was attached, which indicated on that date petitioner "placed this Petition for Review in the institutional mail at Menard Correctional Center, Menard, Illinois, properly addressed ... for mailing through the United States Postal Service."
¶ 5 Because this court did not receive the petition by the August 30 deadline, we consider whether to accept the petition as timely pursuant to the prisoner mailbox rule. The prisoner mailbox rule, as applied to appeals, is "that a pro se prisoner is deemed to have filed his notice of appeal at the time it is delivered, properly addressed, to the proper prison authorities to be forwarded to the clerk of the superior court." Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995). Each party has briefed the issue at our request and submits that we should apply the prisoner mailbox rule to petitions for review.
¶ 6 We have applied the prisoner mailbox rule to a notice of appeal. Id. We have also applied this rule to a notice of a petition for post-conviction relief. State v. Rosario, 195 Ariz. 264, 266, ¶ 10, 987 P.2d 226, 228 (App.1999). The question presented here is whether this same rule should be applied to petitions for review. We turn to the reasoning behind the prisoner mailbox rule to decide if it is applicable here.
¶ 7 We stated in Mayer that a Mayer, 184 Ariz. at 244, 908 P.2d at 58. In Mayer, we relied upon the United States Supreme Court's adoption of a similar rule for federal appeals. Id. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the Court applied the prisoner mailbox rule to an incarcerated petitioner's pleading. It held:
[T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.... [A prisoner's] control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.
Id. at 271-72, 108 S.Ct. 2379. In Rosario, dealing with petitions for post-conviction relief, we applied the same rule. We held that "[a]lthough no law directly deals with the notice of a petition for post-conviction relief, the rationale for determining the date of the filing is the same as for a notice of appeal." 195 Ariz. at 266, ¶ 10, 987 P.2d at 228.
¶ 8 The rule that Houston articulated, and that we applied in both Mayer and Rosario, has been applied widely in other jurisdictions to a broad range of filings. See, e.g., Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990) ( ); Sulik v. Taney County, Mo., 316 F.3d 813, 815 (8th Cir.2003) ( ); Massaline v. Williams, 274 Ga. 552, 554 S.E.2d 720, 721-23 (2001) ( ); Munson v. State, 128 Idaho 639, 917 P.2d 796, 800 (1996) ( ); Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423, 426 (1997) (); State ex rel. Shimkus v. Sondalle, 239 Wis.2d 327, 620 N.W.2d 409, 413 (Ct.App.2000) () .
¶ 9 We recognize, however, that in determining state procedural issues we are not bound by the Court's rulings on federal procedural issues absent a controlling constitutional consideration. Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990) (). Indeed, some state courts have declined to follow the prisoner mailbox rule announced in Houston. See, e.g., Carr v. State, 554 A.2d 778, 779-80 (Del.1989) ( ); State ex rel. Tyler v. Alexander, 52 Ohio St.3d 84, 555 N.E.2d 966, 967 (1990) ( ).
¶ 10 We find that the Houston rule, which we applied in Mayer and Rosario, is equally applicable here. The considerations that pertain to the filing of a notice of appeal and a notice of a petition for post-conviction relief are the same as those for a petition for review by the Arizona Supreme Court.3 Thus, application of the prisoner mailbox rule is appropriate in this case.
¶ 11 The state urges, however, that the factual record is not clear on whether petitioner complied with the prisoner mailbox rule; namely, that the record does not show the petition for review was tendered to prison authorities by August 30, 2004. "When there is no clear record as to when the notice of appeal was delivered to prison authorities, the proper course of action is to remand to the trial court to make this determination." Mayer, 184 Ariz. at 245, 908 P.2d at 59. We agree with the principle that a remand is appropriate when the factual record is unclear.
¶ 12 In this case, however, certification on the mailing certificate was that "on August 30, 2004, I have placed this Petition for Review in the institutional mail at Menard...
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