State v. Herrera

• Decision Date: 17 October 1995
• Docket Number: CA-CR,No. 1,1
• Citation: 905 P.2d 1377,183 Ariz. 642
• Parties: STATE of Arizona, Respondent, v. Daniel Mark HERRERA, Petitioner. 94-0664-PR.
• Court: Arizona Court of Appeals

Page 1377

905 P.2d 1377

183 Ariz. 642

STATE of Arizona, Respondent, v. Daniel Mark HERRERA, Petitioner.

No. 1 CA-CR 94-0664-PR.

Court of Appeals of Arizona Division 1, Department E.

Oct. 17, 1995.

[183 Ariz. 643] Terence C. Hance, Coconino County Attorney by Richard S. Vihel, Deputy County Attorney, Flagstaff, for Respondent.

Daniel Mark Herrera, Chandler, Petitioner in pro. per.

OPINION

TOCI, Judge.

Daniel Mark Herrera ("defendant") seeks review of the trial court's denial of his petition for post-conviction relief under Rule 32, Arizona Rules of Criminal Procedure ("Rule 32"). We hold that a trial court has jurisdiction under Rule 32 to determine a claim of ineffective assistance of appellate counsel. Furthermore, in this case, the trial court did not err in dismissing that claim nor in denying defendant's allegations that (1) he received ineffective assistance of trial counsel, (2) perjured testimony had been introduced at trial, and (3) nondisclosure of a confidential informant prejudiced his defense.

I. FACTUAL AND PROCEDURAL BACKGROUND

The grand jury indicted defendant and charged him with one count of transportation of more than one pound of marijuana for sale, a class 2 felony, and one count of possession of more than one pound of marijuana for sale, a class 3 felony. A jury found defendant guilty of the latter charge.

Juventino Ruiz, a co-defendant, was tried on similar charges. Ruben Villegas, a prosecution witness in both trials, pled guilty to possession of marijuana for sale in exchange for a stipulated sentence of ten years imprisonment.

The trial court sentenced defendant to a mitigated term of five years imprisonment enhanced by a prior felony conviction for endangerment and by former Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-604(M) (1989) because he committed the drug offense while on pre-trial release for the endangerment charge. ¹

Defendant appealed the conviction and sentence. Appellate counsel argued that the trial court erred in denying defendant's motion to suppress evidence and in enhancing his sentence pursuant to A.R.S. section 13-604.02. This court affirmed the conviction but deleted the erroneous reference to A.R.S. section 13-604.02 in the sentencing minute entry. State v. Herrera, 1 CA-CR 91-1216, Memo.Dec. at 6 (Feb. 3, 1993). Appellate counsel unsuccessfully sought review in the Arizona Supreme Court of the denial of the motion to suppress.

In October 1992, defendant initiated this Rule 32 proceeding. He raised numerous claims, including ineffective assistance of both appellate and trial counsel as well as newly-discovered evidence that Villegas has perjured himself at defendant's trial. The trial court ruled that it was without jurisdiction to determine the claim of ineffective assistance of appellate counsel, held an evidentiary hearing on the effectiveness of trial counsel, and summarily dismissed the remaining claims.

At the evidentiary hearing, defendant argued that trial counsel was ineffective in failing to secure the testimony of Librado Mondragon. Mondragon had testified at Ruiz's trial under a grant of immunity and, defendant contended, would have aided his defense by contradicting Villegas' account of the marijuana sale. Defendant also argued that trial counsel was ineffective in failing to subpoena telephone records that would have shown that numerous calls were made from Ruiz's residence around the time of the offenses. The trial court entered findings of fact and conclusions of law and denied defendant's claims.

Defendant, in propria persona, filed a petition for review under Rule 32.9(c), asserting that the trial court erred:

1. in dismissing his claim of ineffective assistance of appellate counsel;

2. in denying his claims of ineffective assistance of trial counsel;

3. in dismissing his claim of newly-discovered evidence of perjury; and

4. in dismissing his claim that the trial court erred in failing to disclose the identity of a confidential informer. ²

The state filed a response to the petition for review, arguing that the petition was untimely.

II. DISCUSSION

A. Timeliness of the Petition for Review

The state relies on Rule 32.9(c) to argue that defendant's petition is untimely because his counsel failed to file the petition within thirty days of the trial court's March 1, 1994 minute entry denying post-conviction relief. The March 1 minute entry, however, did not contain the trial court's dispositive ruling. The court rendered its "final decision" with findings of fact and conclusions of law on March 24, 1994. On April 25, 1994, defendant's counsel timely filed a motion for extension of time to allow defendant to file a petition for review in propria persona. By minute entry dated May 26, 1994, the trial court granted that motion and allowed defendant thirty days to file a petition for review. See State v. Pope, 130 Ariz. 253, 256, 635 P.2d 846, 849 (1981) (Rule 32.9 time limits are not jurisdictional).

The state also argues that defendant's pro per petition for review was untimely. Again, we disagree. Because the trial court mailed to defendant the minute entry granting the extension of time, defendant was entitled to an additional five days to comply with the court's order. See Rule 1.3; State v. Savage, 117 Ariz. 535, 536, 573 P.2d 1388, 1389 (1978). Thus, his petition, filed June 29, 1994, was timely.

Additionally, we reject the argument that defendant improperly filed the petition for review in the trial court. Rule 32.9(c) states, in pertinent part, "The petition for review ... shall be filed with the trial court."

B. Ineffective Assistance of Appellate Counsel

1. Trial Court Jurisdiction

Due process requires that a defendant receive effective assistance of counsel in exercising his right of appeal. See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985); State v. Berlat, 146 Ariz. 505, 509, 707 P.2d 303, 307 (1985). The state successfully argued below, however, that the trial court lacked jurisdiction to consider an allegation of ineffective assistance of appellate counsel in a petition for post-conviction relief. Although this court has previously addressed ineffectiveness claims in reviewing Rule 32 proceedings, we have never explicitly considered whether a defendant properly addresses such a claim to the trial court in a post-conviction proceeding. See State v. Alford, 157 Ariz. 101, 754 P.2d 1376 (App.1988); State v. Stanley, 123 Ariz. 95, 597 P.2d 998 (App.1979).

A defendant must assert "substantive grounds which bring him within the provisions of the rule in order to be entitled to any relief." State v. Manning, 143 Ariz. 139, 141, 692 P.2d 318, 320 (App.1984). One of the grounds for relief enumerated in Rule 32.1(a) is, "[t]he conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona." We must consider whether a constitutional violation in the conviction or sentencing proceedings encompasses deficient representation on appeal.

Courts in other jurisdictions have reached differing conclusions on whether a claim of ineffective assistance of appellate counsel is properly raised in the trial court. A majority has determined that such a claim must be presented to the appellate court with jurisdiction over the appeal. United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir.1983); Rivera v. United States, 477 F.2d 927, 928 (3rd 1973); Watson v. United States, 536 A.2d 1056, 1059-61 (D.C.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988); Smith v. State, 400 So.2d 956, 960 (Fla.1981); Commonwealth v. Wine, 694 S.W.2d 689, 694 (Ky.1985); Hemphill v. State, 566 S.W.2d 200, 207-08 (Mo.1978); People v. Bachert, 509 N.E.2d 318, 319 (N.Y.1987); State v. Murnahan, 584 N.E.2d 1204, 1208 (Ohio 1992); State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540, 544-45 (1992). The Wisconsin Supreme Court summarized the basis for this viewpoint as follows:

These courts view the postconviction remedy in the trial courts as designed to set aside a sentence only for infirmities arising during the trial proceedings. If the trial court concludes that the defendant's claim of ineffective assistance of counsel is meritorious, the trial court proceeding results in an order setting aside the appellate decision, not in an order setting aside the trial proceedings. These courts therefore conclude that a motion to the trial court for postconviction relief is not suitable for a defendant's claim of ineffective assistance of appellate counsel.

Knight, 484 N.W.2d at 543.

Despite this contrary authority, we join a significant minority and hold that an allegation of ineffective assistance of counsel is encompassed within Rule 32.1 as a claim that a defendant's "conviction or ... sentence was in violation of the Constitution of the United States or the State of Arizona." See United States v. Pearce, 992 F.2d 1021, 1023 (9th Cir.1993); Page v. United States, 884 F.2d 300, 301-02 (7th Cir.1989); Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir.1981); United States v. DeFalco, 644 F.2d 132, 137 (3rd Cir.1979); Wilson v. State, 284 Md. 664, 399 A.2d 256, 264 (1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1858, 64 L.Ed.2d 275 (1980); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 475 (1977).

We do not agree with the majority rule that a trial court's assessment of appellate counsel's performance usurps an appellate court function. In Wilson, for example, the Maryland Court of Appeals held that a trial court could consider the issue under a post-conviction relief statute which, like our Rule 32, permitted a defendant to challenge "his sentence upon claim that it was in violation of the federal constitution or the constitution or laws of Maryland." Wilson, 399 A.2d at 262. The court stated that claims of ineffective assistance of appellate counsel were not errors relating to "the appellate stage of criminal proceedings ... but rather are errors relating to the...