263 P.3d 680
Ariz. Ct. App.2011Background
- Harden was convicted in April 2010 of one count of child molestation and one count of a second-degree preparatory offense (a preparatory crime), with minimum ten-year prison term for the molestation and lifetime probation for the preparatory offense.
- In March 2011 Harden filed an untimely notice of post-conviction relief under Rule 32, asserting a significant omission in his probation contract that creates uncertainty about his sentence.
- He claimed grounds under Rule 32.1(e) (newly discovered material facts) and Rule 32.1(f) (accepting untimely filing if failure was not his fault) and sought appointed counsel.
- The trial court summarily dismissed the notice under Rule 32.2(b) for lack of meritorious reasons and merit in an untimely or successive filing.
- Harden challenged the court’s decision, arguing Rule 32.4(c)(2) requires appointment of counsel before summary dismissal, and contends the court should have afforded counsel; the court held no abuse of discretion and denied relief.
- Concurring judges noted the discussion on counsel appointment but affirmed denial of relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary dismissal of an untimely Rule 32 notice was proper | Harden argues dismissal was improper given potential meritorious issues | The State argues Rule 32.2(b) supports summary dismissal for untimely/successive notices lacking meritorious reasons | Yes, dismissal proper |
| Whether counsel must be appointed before Rule 32.2(b) review | Harden contends Rule 32.4(c)(2) requires prompt appointment before gatekeeping review | The State argues appointment is not required prior to initial screening under Rule 32.2(b) | No, not required for the initial dismissal |
| Whether Rule 32.4(c)(2) governs timing of counsel in the context of untimely notices | Rule 32.4(c)(2) supports timely appointment after first notice | Rule 32.2(b) governs dismissal regardless of counsel timing | Counsel timing does not override Rule 32.2(b) dismissal |
Key Cases Cited
- Osterkamp v. Browning, 226 Ariz. 485 (App. 2011) (discusses appointment of counsel under Rule 32.4(c)(2))
- State v. Petty, 238 P.3d 637 (App. 2010) (intent of Rule 32.4(c)(2) and interpretation of Rule 32 provisions)
- State v. Shrum, 203 P.3d 1175 (Ariz. 2009) (importance of timely post-conviction claims and gatekeeping functions)
- State v. Martinez, 250 P.3d 241 (App. 2011) (de novo review of rule interpretations; abuse standard for denial of relief)
- Petty, 238 P.3d 637 (App. 2010) (interpretation of Rule 32.4(c)(2) and post-convictionProcedure)