*1 231, presumed testimony the two P.2d 502 Austin, v. 124 Ariz. State changed of a mo- would not the verdict. We denying (1979). granting or testimony discre- also note that the offered the sound new trial is within tion for signed was not made under and its determination statements the trial court tion of abuse of the trial unless an oath. We have indicated will not be reversed v. affirmatively appears. justified denying a motion for court is discretion Jones, trial will evi- supra. Generally, upon newly a new based discovered new trial permit the introduction statements are not made un- dence where identity by whose was affidavit. See testimony of a witness der oath or submitted Peters, moving time of P.2d 814 party at the 60 Ariz. known State v. State, Urry, (1942); v. trial. State Rosser v. Further, (1969). (1935). did not err in 450 P.2d 1018 The trial court testify judgment. expected to must to vacate denying witness who is the motion credible. His to the court and the sen- judgment of conviction judge credibility by the is to be determined affirmed. tence are Urry, supra; hearing the motion. State Blankenship, 99 Ariz. Y. C. (1965). JJ., GORDON, J., and CAMERON and C. above, origi defendant’s As noted was a that Solis was aware

nal counsel of trial. well in advance

potential witness

However, denying statement due to Solis’ police incident in the

any knowledge of the coupled with the fact

report, un Campos was whereabouts of Solis 631 P.2d 523 sought po as a known, was person neither Petitioner, GALAZ, where The fact tential witness. was unknown of these two men abouts requirement satisfy CARRUTH, Judge serve to James C. ample did not have Respondent. show he witnesses, but opportunity to obtain No. M-353. showing testi that their no there has been Supreme changed the probably mony would have verdict. the motion to post-trial At the Campos judgment,

vacate neither Solis presented were was present.

was All that wit- signed by each and

typed statements related that person which

nessed a third hugging and kiss-

they saw rape. Had this prior to the the victim high- it is presented at

testimony been the out- unlikely it would have affected

ly coincide did not These statements

come. testimony on the stand.

with defendant’s were and the victim

He stated Also, was the fact that Solis

holding hands. friend Campos was a cousin and

defendant’s In credibility. their have affected facts, judge was

light of these determining

acting his discretion in within

369 Prison, na petition filed a for pursuant relief to Rule of the Rules of Procedure, A.R.S., alleging var- Criminal speedy ious denial of including defects a re- trial and excessive sentence. Defendant counsel, quested and petition alleges this court an affidavit of to indigency. peti- filed an to the

tion moved and summary in court. dismissal upon motion was based State’s “strictly” failure of the defendant to com- ply provisions supra, of Rule and with knowingly the defendant and plea agreement, a voluntarily entered into any question regard in to his waived right that the trial court a sentencing, did in not abuse its discretion these that defendant could have raised response timely appeal. issues in a In the this special action to jurisdictional, the State also raises procedural, evidentiary objections acceptance by this court of the special action. right As to the to counsel in criminal generally, matters Rules Procedure, A.R.S., as Criminal reads Galaz, pro. per. in follows: Stephen Neely, County Atty. D. Right “b. in- Appointed Counsel. An Tucson, Lynne Gallagher, A. respon- digent be defendant shall entitled to dent. attorney appointed represent him in any proceeding result CAMERON, Justice. punishment by of liberty loss and in accepted special any proceeding We this ac- other criminal pursuant tion to Art. 5 of the § Arizona court concludes that interests of Procedure Constitution Rule Rules of so Actions, 17A Special deter- A.R.S. assume, purposes argu- If we for the Rules mine whether Rule of the of ment, instant case does not involve Procedure, A.R.S., requires proceedings in punishment by loss of requested by when appointment of counsel result, liberty already of the im- defendant because being deprived liberty, of his then the dis- portance question in the determina- cretionary portion allowing rule matters and because appointment only of counsel when adequate, equally plain, is no there jus- “court concludes that the interests of way appeal. speedy remedy by tice require” apply, and we would necessary required facts for a determination determine whether appoint- as On Janu- of this matter are follows. interests of prisoner Arizo- ary ment of counsel in this case. Justice, however, Chief dissent- supra, contains specific provision ing. post-conviction matters. Rule disposition agree I cannot with the of this 32.5(b) reads as follows: provisions regard- case. The pe- Appointment of Counsel. “b. indigents of counsel for titioner desires with the conflict *3 oath, question- complete, under shall the 32.5(b). 6.1(b) provides Rule under what 6.4(b), Rule where- naire shall circumstances an defendant court, is upon the if satisfied that he attorney appointed. be entitled to have appoint counsel who indigent, shall 32.5(b) petitioner provides if the Rule days petition within 15 file an amended complete appointed he shall sires appointment.” provided questionnaire under oath the general provi- It would that the 6.4(b) pertaining to his financial in Rule regarding sion of Rule that the If the court is satisfied resources. the of counsel is in conflict with appoint it shall coun- indigent, is specifically requires 32.5(b) should not be read in sel. But Rule post-convic- counsel in light in the vacuum. It should be read being a conflict in proceedings. There 6.1(b), says language rules, prevail will over the specific indigent, he is still entitled is if a defendant Davis, 529, 582 general, “proceedings in only in counsel (1978), 32.5(b) is and Rule control- P.2d interests that the which the court concludes ling. 32.5(b) mandatory. says Rule is 32.5(b) recognizes Rule court, The comment to indi if satisfied that he is * * (empha together with gent, appoint counsel must be read shall added) proceedings A review of the

sis 6.1(b). of the comment The first sentence wisdom of this rule. The here indicates the states: post-convic ap- procedures standards “The summary dismiss tion relief and motion for intended to con- pointment of counsel are example, al trial asks that in Rule 6.” form with those deny petitioner’s request the court pro- recognized While it is to be imposition relief from of an inefficient meth- counsel is an ceed without sentence because “Petitioner does excessive merits of treating od of the substantive imposed ex not contend that the sentence relief, applications for maximum law.” ceeded the authorized 4.4, Relat- commentary well be that Standards way, contending just inartful that. Not Remedies of the ing to Post-Conviction knowing the subtleties of the law or Bar Association Standards American Rule, pleadings is at a under the defendant Draft, Justice, Approved specifi- disadvantage presenting his case. definite cally states: can be Not the defendant but the court hand, necessary to the other it is not “On present this mat assisted every application. If appoint counsel for is found ter to the court. light the state’s re- application, are, prisoners indigent, as most cognizable in a sponse, raises no claim ap 32.5(b), supra, requires that counsel be post-conviction proceeding, it is wasteful pointed. solely if appoint counsel to determine ap- granted. Remanded for the Relief grounds for relief has some and the pointment of counsel application.” not stated in his post-conviction relief. Superior Court application in the cogniza- a claim County not raise does V. C. and HAYS proceed- GORDON, JJ., ble in an Arizona 32.1, specifies ing. See Rule

grounds relief. Peti- Appeal In the Matter of the in PIMA post-con- tioner asserted COUNTY, ACTION, JUVENILE “that viction relief he had NO. 63212-2. been denied fast and trial and that harshly excessively he was sentenced No. 15151-PR. * * grounds These are not for relief Supreme Court of Salazar, under Rule 32.1. In State 404, 406, Ariz. 595 P.2d Court said:

“Rule 32.1 defines the reme- dy specifies only per- available and grounds

missible for relief.” Guthrie,

This

471, 473, said:

“Post designed conviction relief is not delays giving

add the law’s an days in

accused three court where one is doing

sufficient substantial grant fundamental law fully repetitious appeal,

additional Superior Court rec- this,

ognized for after examined Ga- application

laz’s it following

entered the order:

“The Court has received this date post

fendant’s conviction re-

lief, it has reviewed the and files records this matter. opinion is of the that no

material issue of fact law exists which

would entitle the to relief un- purpose

der 32 and that no would be by any proceedings.

served

IT IS ORDERED that the Petition is

DENIED.”

Nonetheless, this Court now directs that go

this matter back court purpose! counsel. For what

Seemingly pursue matters which are not

within the relief. opinion does not construe the rules of procedure sensibly or as a harmoni- requires

ous whole. every counsel for relief even

where “the interests do not re-

quire places unnecessary expense it. provide counsel, solely

on the state engage

end a convict can frivolous

attacks on his conviction and waste the time county attorney.

of both the court and