State v. Krum
| Decision Date | 21 September 1995 |
| Docket Number | No. CR-95-0149-PR,CR-95-0149-PR |
| Citation | 903 P.2d 596,183 Ariz. 288 |
| Parties | STATE of Arizona, Respondent, v. Jack R. KRUM, Petitioner. |
| Court | Arizona Supreme Court |
Richard M. Romley, Maricopa County Attorney by Arthur G. Hazelton and Grant Woods, Arizona Attorney General by Paul J. McMurdie, Phoenix, for the State of Arizona.
Wisdom, Logan & McNulty by Charles M. McNulty, Phoenix, for Jack R. Krum.
Arizona Capital Representation Project by Denise I. Young, Tempe, Amicus Curiae.
The state petitioned for review of a court of appeals' opinion holding that Defendant Jack Krum is entitled to an evidentiary hearing in this post-conviction relief ("PCR") proceeding. We granted review of the following issues:
1. Did the Court of Appeals err as a matter of law by finding a statutory right to counsel in a post-conviction proceeding is enforceable by the doctrine of effective assistance?
2. Did the Court of Appeals err by recognizing third party affidavits in this instance to establish a colorable claim of newly discovered evidence?
We have jurisdiction under Ariz. Const. art. 6, § 5(3), and we now vacate the court of appeals' opinion and affirm the trial court's order dismissing Krum's Rule 32 petition.
In 1988 Krum pleaded no contest to the attempted sexual abuse of his thirteen-year-old step granddaughter. 1 After the court of appeals affirmed his conviction on direct appeal, 2 Krum filed a petition for post-conviction relief claiming that the victim recanted her allegations. Ariz.R.Crim.P. 32.1(e). The trial court appointed counsel to supplement the petition 3 but later summarily dismissed it because nothing corroborated the alleged recantation. Krum petitioned for review, claiming that his appointed post-conviction counsel was ineffective because he did not obtain and submit an affidavit from Krum's wife corroborating the recantation. The Krum then filed a second Rule 32 petition that included third-party affidavits from his wife and natural grandson claiming that the victim recanted. Apparently as a defense to an anticipated argument that the recantation claim had previously been adjudicated and was therefore precluded under former Rule 32.2(a)(2), Krum also renewed his claim that his appointed counsel had ineffectively presented the issue in the first Rule 32 petition. The state argued both that the claim was precluded and that the affidavits did not warrant an evidentiary hearing. Reasoning that there is no constitutional right to counsel in PCR proceedings, the trial court rejected the ineffective assistance claim. The judge added, however, that even if cognizable "[i]n any event, on these facts, the Court does not conclude that former counsel was ineffective." Addressing the underlying new evidence claim, the trial court concluded that Krum's affidavits did not establish a colorable claim that the victim recanted and summarily dismissed the petition.
[183 Ariz. 291] court of appeals accepted review but denied relief in a memorandum decision, noting that the ineffective assistance argument would have to be raised in another PCR petition. State v. Krum, No. 1 CA-CR 92-560-PR (Ariz.App. Dec. 8, 1992).
The court of appeals granted Krum's petition for review, holding that the statutory right to counsel in a first Rule 32 proceeding under former A.R.S. § 13-4235(B) and § 13-4234(C) includes the right to effective assistance. State v. Krum, 182 Ariz. 108, 111-12, 893 P.2d 759, 762-63 (App.1995). The court reasoned that the right would otherwise be illusory and that the legislature could not have intended such a "meaningless gesture." Id. Disagreeing with the trial court, the court of appeals concluded that the third-party affidavits Krum presented with his second Rule 32 petition would have entitled him to an evidentiary hearing on his new evidence claim under State v. Wagstaff, 161 Ariz. 66, 775 P.2d 1130 (App.1988), modified on other grounds, 164 Ariz. 485, 794 P.2d 118 (1990). Reasoning that counsel's failure to obtain and submit those affidavits with the first Rule 32 petition was thus ineffective unless done to further some undisclosed strategic motive, the court held that Krum was entitled to an evidentiary hearing to show the alleged ineffectiveness. Krum, 182 Ariz. at 113, 893 P.2d at 764. The court concluded that if Krum made that showing, he would then be entitled to another evidentiary hearing on the merits of the new evidence claim. Id.
Although there is intuitive appeal to the court of appeals' conclusion that the statutory right to counsel in post-conviction proceedings necessarily includes a right to reasonably competent representation, we do not decide it here for several reasons. First, the legislature has significantly altered the statutory landscape since the court of appeals issued its opinion, eliminating the statutory right to appointed counsel in post-conviction proceedings under A.R.S. § 13-4234(C). 1995 Ariz.Sess.Laws ch. 198, § 5. We note, however, that A.R.S. § 13-4234(C) was not the sole source of appointed counsel for Rule 32 petitioners. Well before the legislature codified a right to counsel in first post-conviction proceedings, the Rules of Criminal Procedure provided for appointed counsel. See Ariz.R.Crim.P. 32.5(b) (1973). 4 The court of appeals recognized this, partly supporting its conclusion that Krum was entitled to an evidentiary hearing by referring to the comment to current Rule 32.2(a)(3). See Krum, 182 Ariz. at 111, 893 P.2d at 762. Nevertheless, because the court of appeals relied primarily on the now-repealed statutory provision, reviewing its analysis here would serve little useful purpose.
Additionally, post-conviction proceedings generally provide a remedy only for constitutional errors involving the defendant's trial or direct appeal of right. Krum does not claim, however, that his trial or appellate counsel was ineffective. His only substantive Rule 32 claim is newly discovered evidence--the alleged recantation. Indeed, ineffective assistance on a prior PCR petition is not a valid, substantive claim under Rule 32 because, for petitioners like Krum, there is no federal constitutional right to effective counsel in a PCR proceeding. 5 Thus, even if a statutory right to effective assistance existed, Rule 32 would not provide a remedy for its violation. See Ariz.R.Crim.P. 32.1 ().
Krum nevertheless argues that the comment to the revised Rule 32 supports recognizing a claim for ineffective assistance at a post-conviction proceeding. The comment says that if "defense counsel's failure to raise an issue at trial, on appeal or in a previous collateral proceedings [sic] is so egregious as to result in prejudice as that term has been constitutionally defined, such failure may be raised by means of a claim of ineffective assistance of counsel." Ariz.R.Crim.P. 32.2(a)(3) cmt. (Supp.1994). The court of appeals believed, however, that a defendant could at most use the ineffective assistance claim contemplated by the rule comment to overcome an assertion of procedural bar by the state and have the trial court reach the merits of the underlying claim for post-conviction relief. We need not address the meaning of the comment because in this case there was no such procedural hurdle; despite the state's preclusion argument, the trial court considered the merits of both Krum's first and second Rule 32 petitions. Whether Krum's first Rule 32 counsel was deficient 6 for not obtaining corroborating affidavits is therefore irrelevant. Because Krum's second Rule 32 counsel submitted affidavits and because the trial court ruled on the merits of the new evidence argument, Krum's claim regarding the deficiencies of his first Rule 32 counsel is not relevant. Thus, we need not address the ineffective assistance issues or the comment to Rule 32.2. State v. Wood, 180 Ariz. 53, 72, 881 P.2d 1158, 1177 (1994) (), cert. denied, --- U.S. ----, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995). Nor is there any need for an evidentiary hearing on the subject. The single dispositive issue in this case is whether the trial judge properly decided the merits. Thus, we turn to whether the third-party affidavits eventually filed were sufficient to entitle Krum to an evidentiary hearing on the merits of his post-conviction claim.
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