Osterkamp v. Browning, 226 Ariz. 485

Osterkamp pled guilty to three felonies in three cases and was sentenced to aggravated prison terms.
He sought post-conviction relief under Rule 32; the trial court granted partial relief.
Within 30 days of the July 2010 partial-relief order, Osterkamp filed a second notice of post-conviction relief, which the trial court dismissed.
Osterkamp requested reinstatement and counsel; the court reinstated the proceeding but denied counsel, then denied reconsideration.
Osterkamp filed a special action seeking review of the denial of counsel; the matter proceeded to the Arizona Court of Appeals.
The court addressed whether indigent defendants are entitled to appointed counsel in the second, timely filed post-conviction proceeding to investigate possible ineffectiveness of first-post-conviction counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 32.4(c)(2) mandates counsel for indigent pleading defendants in the second post-conviction proceeding	Osterkamp argues mandatory appointment of counsel in the second proceeding.	State contends discretion remains in the trial court for non-first notices in non-capital cases.	Osterkamp entitled to counsel; trial court abused discretion.
Whether the second post-conviction proceeding is governed as a timely or first notice for counsel appointment	Second proceeding qualifies as timely/first notice triggering appointment.	Rule 32.4(c)(2) discretion applies; timeliness not automatic in second proceeding.	Rule 32.4(c)(2) requires appointment upon timely or first notice; pleading defendants are entitled in the second proceeding when timely.
Whether pleading defendants have a right to effective counsel in the first post-conviction proceeding	First proceeding requires effective counsel; second proceeding ensures necessary access to challenge first-counsel ineffectiveness.	Rule 32 rights are limited to the first proceeding for counsel; second proceeding is not required to supply new counsel.	First proceeding requires effective counsel; second proceeding must provide counsel to pursue claims of ineffectiveness.

State v. Pruett, 185 Ariz. 128 (App. 1995) (pleading defendant may raise ineffectiveness in second petition; right to counsel on first petition)
Petty, 225 Ariz. 369 (App. 2010) (second notice to investigate ineffective assistance in first proceeding; counsel appointment not precluded)
Bennett, 213 Ariz. 562 (2006) (counsel cannot be expected to argue own ineffectiveness; relevant to multiple proceedings)
Montgomery v. Sheldon, 181 Ariz. 256 (1995) (Rule 32 right to appellate-like review via first post-conviction proceeding)
Evitts v. Lucey, 469 U.S. 387 (1985) (due process right to effective appellate counsel)
State v. Berlat, 146 Ariz. 505 (1985) (due process in counsel effectiveness in appeals/post-conviction context)
State v. Jackson, 209 Ariz. 13 (App. 2004) (ineffective assistance for appellate counsel may be raised in Rule 32)
State v. Mata, 185 Ariz. 319 (1996) (non-pleading defendants have no right to counsel in post-conviction proceedings)
State v. Krum, 183 Ariz. 288 (1995) (distinguishing rights to counsel in post-conviction contexts)
Potter v. Vanderpool, 225 Ariz. 495 (App. 2010) (special-action review of abuse of discretion by trial court in post-conviction context)