State v. Rosales

• Decision Date: 25 April 2003
• Docket Number: No. 2 CA-CR 2002-0362-PR.,2 CA-CR 2002-0362-PR.
• Citation: 66 P.3d 1263,205 Ariz. 86
• Parties: The STATE of Arizona, Respondent, v. Adam Albert ROSALES, Petitioner.
• Court: Arizona Court of Appeals

66 P.3d 1263

205 Ariz. 86

The STATE of Arizona, Respondent, v. Adam Albert ROSALES, Petitioner.

No. -0362-PR.

Court of Appeals of Arizona, Division Two, Department A.

April 25, 2003.

Isabel G. Garcia, Pima County Legal Defender, By Joy Athena, Tucson, for Petitioner.

OPINION

HOWARD, J.

¶ 1 Petitioner Adam Albert Rosales seeks review of the trial court's dismissal of post-conviction relief proceedings brought pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., after the conclusion of his delayed appeal. Because we find that the trial court abused its discretion in summarily dismissing the proceeding based solely on the notice of post-conviction relief, without appointing counsel and before any petition was filed, we vacate that dismissal and remand the case for further proceedings. See State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990)

(trial court's disposition of Rule 32 proceedings reviewed for abuse of discretion).

¶ 2 Petitioner was convicted after a jury trial of aggravated assault, aggravated assault of a peace officer, endangerment, possession of marijuana for sale, possession of a deadly weapon while committing a felony drug offense, fleeing from law enforcement officers, threatening or intimidating, and conspiracy. The trial court imposed concurrent prison and jail terms, the longest of which was twenty-one years.

¶ 3 Petitioner did not timely appeal but later petitioned the trial court for leave to file a delayed appeal under Rule 32.1(f), Ariz. R.Crim. P., which the state did not oppose. Rule 32.1(f) provides as a possible ground for post-conviction relief that "[t]he defendant's failure to file a ... notice of appeal within the prescribed time was without fault on the defendant's part." This court cannot exercise its jurisdiction over an appeal unless a defendant timely appeals or successfully gains leave to file a delayed appeal pursuant to this rule. See Ariz. R.Crim. P. 31.3, 17 A.R.S.; State v. Berry, 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (App.1982). The comment to Rule 32.1(f) explains that the provision is meant to apply when "the defendant intended to appeal and though[t] timely appeal had been filed by his attorney when in reality it had not." This was petitioner's situation as outlined in his first Rule 32 petition, which was entitled "Motion and Order for Delayed Appeal"; it contained one paragraph of argument, and resulted in the trial court¹ granting him leave to file a delayed appeal. In that delayed appeal, we affirmed petitioner's convictions, modified some of his sentences, and vacated the remaining sentences, remanding the case for resentencing on those counts. State v. Rosales, No. 2 CA-CR XXXX-XXXX (memorandum decision filed April 30, 2002). Our mandate issued on June 12, 2002.

¶ 4 On June 21, 2002, petitioner filed a notice of post-conviction relief through appellate counsel, the Pima County Legal Defender. In the notice, petitioner outlined the procedural history of the case, although he omitted that his appeal had been a delayed appeal procured under Rule 32.1(f). He also requested appointment of counsel outside the legal defender's office. The trial court promptly dismissed the proceedings with the following order, which quoted petitioner's notice of post-conviction relief:

The Court has reviewed the Defendant's petition and notes that while the Defendant correctly indicated that he had previously filed a direct appeal, he incorrectly stated that he had not filed previous Rule 32 proceedings. The Defendant filed a previous petition on March 22, 2000. The sole issue urged on the Court was Defendant's Request to File a Delayed Appeal. The relief requested was granted which res[u]lted in a successful appeal on the issue of sentencing only. The new sentencing date is July 22, 2002. The sole issue alleged in Defendant's second Petition reads:

"Defendant is entitled to the effective assistance of counsel on direct appeal and trial. The Legal Defender's Office represented defendant in his appeal (in which partial relief was obtained). Although counsel will represent petitioner in the resentencing proceedings, the Legal Defender's Office cannot evaluate their own effectiveness under the conflict rules. It is requested that the court appoint counsel outside the Legal Defender's Office."

The request to evaluate the effectiveness of the Legal Defender's Office is both premature (re-sentencing pursuant to the mandate has not yet taken place) and inappropriate. Rule 32, Arizona Rules [of] Criminal Procedure, sets out the seven grounds upon which post-conviction relief may be pursued. "Evaluating" a lawyer's performance, without specific facts alleged, is not a recognized ground.

Therefore, the COURT FINDS no claims in the second petition which would entitle the Defendant to relief under the rule.

IT IS ORDERED that the petition be DISMISSED.

¶ 5 Petitioner subsequently filed an extensive motion to reconsider that order. He supplemented that motion with an affidavit from the attorney who had petitioned for leave to file the delayed appeal, in which counsel explained that she had sought a delayed appeal under Rule 32.1(f) in order to preserve petitioner's appeal rights after discovering that no notice of appeal had been filed in his case and that, by doing so, she had not purposefully waived any substantive Rule 32 claims or otherwise intended to hinder petitioner's right to raise substantive claims in Rule 32 proceedings following the conclusion of his appeal. The trial court denied the motion for reconsideration without comment. Petitioner was resentenced approximately ten days later.

¶ 6 We note initially that the trial court's order appears to use "notice" and "petition" interchangeably when, in fact, these terms apply to two distinct procedural steps in a Rule 32 action. Rule 32.4(a), Ariz. R.Crim. P., provides that a Rule 32 "proceeding is commenced by timely filing a notice of post-conviction relief." The petition itself is not required to be filed for at least sixty days following the timely filing of the notice. Ariz. R.Crim. P. 32.4(c). The court dismissed the proceedings on the notice, thereby preventing the filing of any petition. ¶ 7 Assuming the court used the word "petition" to refer to the notice, we examine whether there were deficiencies in petitioner's notice, in the procedural context of this case, justifying summary dismissal of the proceedings without the filing of a petition. First, petitioner's notice was timely. In non-capital cases that have not been resolved through guilty pleas, such as petitioner's, "the notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." Ariz. R.Crim. P. 32.4(a). Petitioner filed his notice within thirty days of this court's issuance of the mandate in his appeal.

¶ 8 Second, petitioner's notice was not premature. We understand the trial court's ruling to mean that any claim of the legal defender's ineffective assistance could only be raised after the resentencing hearing, at which the legal defender would continue to represent petitioner. However, the legal defender also represented petitioner on appeal, and ineffective assistance of appellate counsel is a cognizable claim under Rule 32. See State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (App.1995)

. The only possible way to raise such a claim would be by initiating Rule 32 proceedings by filing a notice within thirty days of the issuance of this court's mandate finalizing the appeal, pursuant to Rule 32.4(a), which petitioner did. Although petitioner might also have had a potential claim that the legal defender was ineffective in the resentencing, that would be a separate claim, independent of any claim of ineffective assistance of appellate counsel, which would have to be litigated in a different Rule 32 proceeding initiated by filing a separate notice of post-conviction relief within ninety days of the resentencing or, if petitioner has appealed from his resentencing, within thirty days of our mandate following the disposition of any such appeal.

¶ 9 Third, the trial court faulted petitioner for failing to allege in the notice anything more specific than an intention to evaluate appellate counsel's performance. However, we understand that allegation to have been made only in support of appellate counsel's request that different Rule 32 counsel be appointed to avoid any potential conflict of interest.² Appellate counsel did not purport to set forth in the notice an exhaustive list of the claims to be raised in the petition. If anything, the notice merely noted the possibility that a claim of ineffective assistance of counsel might be raised.

¶ 10 Finding no fatal flaws on the face of petitioner's notice of post-conviction relief, we turn to whether it was subject to summary dismissal because it followed the earlier petition, which had been based on Rule 32.1(f). Rule 32.1(f) is atypical of the eight possible grounds for post-conviction relief listed in Rule 32.1(a) through (h); it merely provides a procedural mechanism whereby a defendant who has failed to appeal through no fault of his or her own can obtain jurisdiction in this court. In contrast, the remaining seven grounds state substantive Rule 32 claims on which a trial court, operating as a reviewing court, can directly vacate or modify a defendant's conviction or sentence or order that the defendant be released from prison.³ In dismissing this post-conviction relief proceeding based on the notice, the trial court effectively dismissed all potential claims arising under any of these grounds.

¶ 11 Rule 32 provides for the possible dismissal of a second or successive notice of post-conviction relief based on the ground of preclusion. Rule 32.2(a)(3) provides that "a defendant shall be precluded from relief under this rule based upon any ground ... [t]hat has been...