Wilson v. Ellis

• Decision Date: 05 October 1993
• Docket Number: No. CV-93-0107-PR,CV-93-0107-PR
• Citation: 176 Ariz. 121,859 P.2d 744
• Parties: Christopher W. WILSON, Petitioner, v. Hon. Lindsay ELLIS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, STATE of Arizona, Real Party in Interest.
• Court: Arizona Supreme Court

Page 744

859 P.2d 744

176 Ariz. 121

Christopher W. WILSON, Petitioner, v. Hon. Lindsay ELLIS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, STATE of Arizona, Real Party in Interest.

No. CV-93-0107-PR.

Supreme Court of Arizona, In Banc.

Oct. 5, 1993.

Reconsideration Granted in Part and Amended Dec. 1, 1993.

[176 Ariz. 122] Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper, Deputy Public Defender, Phoenix, for petitioner.

Richard M. Romley, Maricopa County Atty. by Gerald R. Grant and Kevin H. Maricle, Deputy County Attys., Phoenix, for real party in interest.

OPINION

MOELLER, Vice Chief Justice.

FACTS

After Christopher Wilson (defendant) admitted that he had violated his probation, it was revoked, and he was sentenced to five years in prison. The court of appeals dismissed his appeal for lack of subject matter jurisdiction pursuant to A.R.S. § 13-4033(B) ¹ and Ariz.R.Crim.P. 27.8(e). ² State v. Wilson, 174 Ariz. 564, 851 P.2d 863 (App.1993). Defendant filed a petition for post-conviction relief (PCR) pursuant to Rule 32 and, alleging indigence, requested a transcript, at public expense, of the probation revocation proceedings, along with other items. The trial court, although finding defendant indigent, denied his request.

Defendant filed a special action in the court of appeals. That court denied relief on the ground defendant had not complied with Rule 32.4(d) by showing the trial court what portions of the transcript were necessary to resolve the issues raised in the PCR. Defendant petitioned this court for review. We granted review, accepted jurisdiction, ordered that defendant be provided with a transcript, and stated that an opinion would follow. This is that opinion. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3).

ISSUE

Whether an indigent defendant who admits a probation violation and thereby waives his direct appeal rights under A.R.S. § 13-4033(B) and Ariz.R.Crim.P. 27.8(e) is entitled to a transcript of the proceedings for purposes of pursuing relief in the trial court under Rule 32.

DISCUSSION

At the outset, we note that defendant's request for free copies of the entire record is excessively broad. Indigent defendants have no right to have documents reproduced that they or their attorneys can peruse in public places. This opinion is limited to defendant's request for a transcript of the probation revocation and sentencing proceedings, because the transcript, unless already prepared, is not otherwise available to an indigent defendant.

The state argues that defendant must comply with Rule 32.4(d) before he is entitled to a transcript. In the state's view, the rule requires defendant to specify the portions of the record necessary to resolve the issues raised (or to be raised) in the petition. The state contends that, like the defendants in United States v. MacCollom, 426 U.S. 317, 324-25, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976) and State v. Drozd, 116 Ariz. 330, 569 P.2d 272 (1977), defendant is not entitled to a transcript to pursue his PCR. According to the state, defendant waived that right, along with the right to a direct appeal, when he admitted a probation violation. The state contends that defendant could have insisted on a probation revocation hearing and then exercised his right to appeal, but he chose not to do so. Citing MacCollom, 426 U.S. 317, 96 S.Ct. 2086, and Drozd, 116 Ariz. 330, 569 P.2d 272, the state posits that "the right to receive transcripts at public expense in connection with ancillary post conviction proceedings is not a right guaranteed either by the due process or equal protection clauses of the United States Constitution." 116 Ariz. at 331, 569 P.2d at 273.

MacCollom and Drozd are distinguishable. In each case, defendant declined a right of direct appeal, and with it the right to a free transcript. See Britt v. North Carolina, 404 U.S. 226, 226-27, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971) (holding that defendants have right to free transcript on direct appeal). Here, however, defendant did not have a right to a direct appeal once he admitted a probation violation. Denying defendants a free transcript in this situation creates a disincentive for defendants to admit probation violations, which we think is unwise. But see Fleming v. State, 553 So.2d 505, 508 (Miss.1989) (holding that a defendant waives his right to direct appeal by pleading guilty and, therefore, has no right to a free transcript for a PCR).

In our interpretation and application of A.R.S. § 13-4033(B) and Rule 27.8(e), we must also be cognizant of the higher command of art. 2, § 24 of the Arizona Constitution. It provides: "In criminal prosecutions, the accused shall have ... the right to appeal in all cases...." Clearly, art. 2, § 24 guarantees some form of appellate relief. That right cannot be waived merely by a plea or admission. State v. Ethington, 121 Ariz. 572, 573-74, 592 P.2d 768, 769-70 (1979) (state cannot be allowed to insulate itself from its errors). It also cannot be diluted by a defendant's poverty. See Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972) (state cannot arbitrarily and capriciously deny appeal rights to indigent defendants). It was precisely because of art. 2, § 24 that this court expressly left open the avenue of appellate review by PCR in lieu of direct appeal when it amended the rules with respect to cases involving admissions of probation violations.

Thus, although A.R.S. § 13-4033(B) and Ariz.R.Crim.P. 27.8 deny a direct appeal to the defendant who admits a probation violation, that defendant still may file a PCR. A PCR allows the defendant, under certain circumstances, to attack the factual or legal basis for the admission or to attack the process by which the admission of probation violation was accepted by the judge. ³ Rarely could an effective attack on the proceedings be mounted without access to a transcript. The cost to the state is minimal because, by definition, we are dealing with admission proceedings, not lengthy contested hearings. After a transcript is provided, if a PCR without a colorable claim is presented it may, of course, be summarily dismissed. Ariz.R.Crim.P. 32.6(c). Contrary to the intimations of the dissent, we are not commanding, nor do we want, trial courts to conduct Anders-type reviews in PCRs.

We believe that Rule 32.4, properly interpreted, allows an indigent defendant who admits a probation violation a transcript of his hearing for use in pursuing a PCR. Rule 32.4(d) states that "[t]he court shall order those portions of the record prepared that it deems necessary to resolve the issues to be raised in the petition." When direct appeal is unavailable simply because the defendant has admitted the violation, the transcript of the probation revocation hearing is necessary "to resolve the issues to be raised in the petition." Ariz.R.Crim.P. 32.4(d). To interpret the rule otherwise would raise serious state constitutional issues.

CONCLUSION

The state constitution guarantees some form of appellate review. By admitting a probation violation, defendant must first seek post-conviction relief in the trial court, pursuant to Rule 32, before exercising his constitutional right to appeal. An indigent defendant is entitled to a transcript of the revocation and sentencing proceedings to pursue his rights under Rule 32, when no such transcript is available from another source.

FELDMAN, C.J., and CORCORAN and ZLAKET, JJ., concur.

MARTONE, Justice, dissenting.

Because an appeal is inconsistent with the idea of settling a case, we amended the Arizona Rules of Criminal Procedure to prohibit appeals from pleas of guilty, no contest, and admissions to probation violations. Because the constitution accords a right to appeal, we created formal waiver procedures. Rule 17.2(e), Ariz.R.Crim.P., and Rule 27.8(e), Ariz.R.Crim.P., require the judge to expressly tell the defendant that he or she will be waiving the right of direct appeal if the defendant chooses to plead guilty or no contest, or admits to a probation violation. There is nothing in art. 2, § 24 of the constitution that says that the right of appeal cannot be waived. As long as it is a knowing, intelligent, and voluntary waiver, it is like every other right articulated in art. 2, § 24 (jury trial, counsel et al ).

State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979), is not to the...