JOHN VINCENT FITZGERALD, Petitioner, v. HONORABLE SAM MYERS, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent Judge, STATE OF ARIZONA EX REL. MARK BRNOVICH, ARIZONA ATTORNEY GENERAL, Real Party in Interest.
No. CR-16-0285-PR
SUPREME COURT OF THE STATE OF ARIZONA
Filed September 26, 2017
Appeal from the Superior Court in Maricopa County, The Honorable Sam Myers, Judge, No. CR2005-111543, AFFIRMED. Order of the Court of Appeals, Division One, No. 1 CA-SA 16-0154, Filed Jul. 25, 2016
COUNSEL:
Randall J. Craig (argued), The Law Offices of Randall J. Craig, PLLC, Scottsdale, Attorneys for John Vincent Fitzgerald
Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Julie A. Done (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
Eric John Aiken (argued), Jessica A. Gattuso, Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorneys for Frank Fitzgerald and Mary Kennedy
Emily Skinner (argued), Arizona Capital Representation Project, Phoenix, Attorneys for Amicus Curiae Arizona Capital Representation Project
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, JUSTICES BRUTINEL, TIMMER, BOLICK, and GOULD joined. JUDGE VÁSQUEZ* concurred in the result.
¶1 After affirming a defendant’s conviction and death sentence in a capital case, this Court is statutorily required to appoint counsel to represent the defendant in state post-conviction relief (“PCR”) proceedings.
¶2 In April 2005, John Vincent Fitzgerald traveled from his home in Hawaii to Arizona, where his mother Margaret (Peggy) Larkin lived in Sun City West. He brought numerous weapons, ammunition, and tactical gear. Fitzgerald asked Peggy’s fiancé, J.T., to pick him up at his motel and to keep the visit a surprise. They went to Peggy’s house and when she answered the door, Fitzgerald pushed J.T. aside and attacked Peggy with a samurai sword. After she fell to the floor, Fitzgerald shot her twice in the head, yelling that she was a pedophile. Fitzgerald was arrested a few blocks away, later confessed during a police interview, and was charged with first degree murder and burglary. The State sought a death sentence.
¶3 In pretrial competency proceedings pursuant to
¶4 This Court affirmed the convictions and sentences. State v. Fitzgerald, 232 Ariz. 208, 217 ¶ 51 (2013). In late 2013, attorney Randall Craig was appointed to represent Fitzgerald in this Rule 32 PCR proceeding. Craig initially reported that he “always noticed delusional behavior” exhibited by Fitzgerald, but that they “could hold meaningful meetings and discussions” about preparing the PCR petition. Over time, however, Craig noticed “a slow decline in [Fitzgerald’s] ability to hold a meaningful conversation.” In November 2015, Fitzgerald refused to meet with the mitigation specialist, who opined that Fitzgerald’s competency was deteriorating quickly. Craig “did not notice this decline in telephone conversations or visits at that time although [Fitzgerald] did appear to suffer from paranoid episodes.” At that time, Fitzgerald’s prison mental health records did not reveal a change in mental health status except for notations about paranoia.
¶5 Prison records indicate that Fitzgerald refused his medication in December 2015 because he believed he was being poisoned, he was experiencing audio and visual hallucinations, and he refused to be treated or evaluated. The next month, Fitzgerald met with defense team members but accused them of conspiring to harm him. After receiving a letter from Fitzgerald that caused greater concern about his mental status, Craig retained Dr. Alan Abrams and Dr. Bhushan Agharkar to evaluate competency, but Fitzgerald refused to be evaluated, claiming they were part of the “illuminati.” Finally, in March 2016, Fitzgerald was evaluated by Dr. Agharkar, who concluded that Fitzgerald could not rationally assist counsel in preparing the PCR petition and was “incompetent to proceed” with the PCR proceedings.
¶6 In May, Fitzgerald moved the superior court to conduct a hearing to determine competency and to stay all PCR proceedings until the court found him competent. Fitzgerald argued that
¶7 Fitzgerald then petitioned for special
II.
¶8 The issues raised in Fitzgerald’s petition for review are whether the superior court’s order denying his motion to determine competency in his PCR proceeding violated his rights under
¶9 Arizona statutorily authorizes PCR proceedings. See
¶10 Section 13-4041 addresses the appointment of counsel. Subsection (B) provides: “After the supreme court has affirmed a defendant’s conviction and sentence in a capital case, the supreme court or, if authorized by the supreme court, the presiding judge of the county from which the case originated shall appoint counsel to represent the capital defendant in the state postconviction relief proceeding.”
¶11 Under the ABA Guidelines, Fitzgerald argues, capital PCR counsel “are required to investigate and consider any and all claims potentially available to a petitioner.” See ABA Guidelines 10.5 (“Relationship with the Client”); 10.7 (“Investigation”); 10.8 (“The Duty to Assert Legal Claims”); 10.15.1 (“Duties of Post-Conviction Counsel”). Specifically,
¶12 Citing
¶13
¶14 Significantly, in the PCR statutory scheme itself, the legislature has specified circumstances when competency is required. As noted above, under
¶15 Contrary to Fitzgerald’s unsupported assertion, the ABA Guidelines do not establish a statutory right to competency in Rule 32 PCR proceedings. The requirement in our procedural rules that capital case PCR counsel “be familiar with and guided by” the ABA Guidelines does not, and cannot,
¶16 To the extent Fitzgerald urges a Rule 32 competency requirement or right based on the right to counsel under
¶17 Fitzgerald contends that Gonzales is distinguishable because federal habeas proceedings are materially different from, and more limited than, Rule 32 proceedings. We recognize that Rule 32 proceedings often involve IAC or other claims that are not strictly “record-based” and that depend on, or might be aided by, the petitioner’s competent input. Id. Despite those differences, we conclude that the right to PCR counsel under
¶18 Our conclusion also finds analogous support in State v. White, a capital case in which this Court held that a defendant’s incompetence during the appellate process does not violate due process and that “an appeal should proceed regardless of a defendant’s competency.” 168 Ariz. 500, 509 (1991) (internal quotation marks and citation omitted), abrogated on other grounds by State v. Salazar, 173 Ariz. 399 (1992). In White, the defendant argued that he was denied due process because this Court “refused to order a mental examination after a prima facie showing of incompetency to assist in the appeal.” Id. In rejecting that argument, we reasoned that convicted defendants generally do not participate in the appeal and therefore mental incompetence does not affect the accuracy or fairness of decisions. Id. And we made that
¶19 We also noted in White that “[s]uspending the appeal would preclude this court from considering even the most clearly reversible or prejudicial error until the defendant regained competency.” 168 Ariz. at 509. Just as suspending a capital appeal until the defendant is found competent could prejudice the defendant by delaying adjudication of potentially just claims, so too could indefinite suspension of a capital case PCR proceeding (for resolution of any competency issues) unduly delay relief for a deserving petitioner. As the State acknowledged at oral argument, any alleged prejudice caused by the petitioner’s incompetency may be addressed in a successive PCR petition. See
¶20 Direct appeals, of course, differ from PCR proceedings in that the latter sometimes involve factual investigation that might require or be aided by the defendant’s input. In that regard, the State acknowledges that White “addresse[d] post-sentencing competency during the appellate process, which is record-based,” that “Rule 32 [PCR] proceedings specifically provide for claims outside the record to be raised,” and that White “recognized that prejudice flowing from the incompetency could be addressed in a post-conviction proceeding.” See White, 168 Ariz. at 509 (citing ABA Criminal Justice Mental Health Standards (1989), Standard 7-5.4(c)). Nonetheless, we find White analogous and its reasoning and conclusion persuasive, albeit in this different context. Just as no statute requires a convicted capital defendant’s competence before his appeal may proceed,
¶21 Fitzgerald’s argument fares no better when we consider its second basis,
¶22
¶23 In addition, as the State argues, “to the extent a defendant does not have the capacity to sign the [Rule 32.5] declaration, his attorney—acting as next friend—can sign for his client, thus allowing the [PCR] petition to go forward.” Cf. Whitmore v. Arkansas, 495 U.S. 149, 162–63 (1990) (discussing counsel acting on behalf of defendant who lacks the capacity to act on his own); Carter v. State, 706 So. 2d 873, 876 (Fla. 1997) (stating that “[c]ollateral counsel will be in a position to adequately represent the inmate’s best interest, to determine which claims must be raised, and to
¶24 We hold that neither
III.
¶25 Having disposed of the specific issues raised by Fitzgerald, we add some important caveats. Depending on the nature, scope, and substance of a PCR claim, and considering all the circumstances of a case, situations may arise in which a capital defendant’s input and participation regarding a particular Rule 32 claim are needed and perhaps imperative. In such situations, as the State conceded at oral argument, the superior court has inherent authority and discretion to stay the PCR proceeding to determine whether the petitioner is incompetent and, if so, can be restored to competency relatively quickly. Cf.
¶26 If a court deems a PCR-related competency evaluation appropriate, ordinarily it should order that evaluation as soon as practicable, even if the court does not stay the proceedings. At the least, a competency determination would then serve as a “marker” (i.e., the petitioner either was or was not competent at that point in time) for any successive PCR petition that asserts that a new claim could not have been raised at the initial PCR proceeding due to the petitioner’s incompetence. See State v. Debra A.E., 523 N.W.2d 727, 735 (Wis. 1994) (stating that “a ruling on competency during postconviction relief proceedings enables a [trial] court to consider a defendant’s assertion at a later proceeding . . . that the defendant did not raise an issue at an earlier proceeding because he or she was incompetent,” and noting the inherent difficulty in retrospectively determining a petitioner’s competence). We do not address here, however, whether due process may require the court to consider the merits of such a successive petition if the petitioner was incompetent at the time of the initial, earlier Rule 32 proceedings.
¶27 We emphasize the limited nature of our holding in this case — neither the statute nor the rule on which Fitzgerald’s argument is solely based,
¶28 Consideration of such factors might warrant a competency evaluation, particularly in the initial capital case PCR proceeding, and thereby alleviate the due process concerns that some courts have recognized. See, e.g., Reid, 197 S.W.3d at 700 (stating that although “there is no constitutional or statutory right to competency,” “[d]ue process concerns may nevertheless be implicated in the post-conviction context where a potential litigant is denied an opportunity for the presentation of claims at a meaningful time and in a meaningful manner”); Debra A.E., 523 N.W.2d at 733 (alluding to due process rights in prescribing procedures when competency issues arise in PCR proceedings). We have utmost confidence in our trial courts discerning when competency evaluations and determinations are called for in PCR proceedings, and unlike Judge Vásquez, infra ¶¶ 32, 34, do not believe they will be hampered or confused in doing so. And, depending on the totality of circumstances, a PCR court’s decision to order a competency evaluation will address Judge Vásquez’s (and our) concern for a “meaningful resolution of all claims in a capital defendant’s first post-conviction proceeding.” Infra ¶ 40. We leave for another day, however, whether due process may require in a particular capital case (or a non-capital case) a competency evaluation and determination with respect to certain proffered PCR claims. Nor do we decide here what the applicable standards should be for evaluating a PCR petitioner’s request for a competency determination or for that determination itself.3
¶29 On this record, the superior court did not abuse its discretion in declining to exercise its inherent authority by ordering a competency evaluation. In its ruling, the court noted that Fitzgerald “claims that he is unable to assist counsel, but provides no indication of the assistance that he is unable to provide at this stage of the proceedings” or that his assistance at this point “is essential.” The court further observed that Fitzgerald “is represented by competent and experienced counsel who is capable of reviewing the record, conducting an investigation, and identifying potential claims to be raised in a [PCR] petition.” In view of those findings, the superior court did not err in concluding that Fitzgerald “has not established that his assistance is required” at this stage of the PCR proceedings, and ruling that “an indefinite stay to resolve competency . . . would be detrimental to the State, [Fitzgerald,] and any victims.”
IV.
¶30 For the reasons stated above, we affirm the superior court’s order denying Fitzgerald’s
JUDGE VÁSQUEZ, concurring in the result:
¶31 Today the court holds that a Rule 32 petitioner is not entitled to competency in a post-conviction relief (PCR) proceeding based on
¶32 I disagree, however, that petitioners are not entitled to competency in Rule 32 proceedings for certain claims. In State v. Spreitz, this court held that “ineffective assistance of counsel claims are to be brought in Rule 32 proceedings” and that “[a]ny such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit.” 202 Ariz. 1, 3 ¶ 9 (2002). The majority’s decision in this case undermines this precept. At a minimum, it will cause confusion and problems for attorneys and judges in recognizing, raising, and resolving certain claims, such as ineffective assistance of counsel (IAC) and other claims, that do not appear from the record and that can only be brought to light by a petitioner who is competent and, thus, capable of effectively communicating with counsel. It also creates the real potential that those claims will be lost altogether for those defendants who are incompetent and never restored to competency. Although I disagree with the majority’s reasoning, I cannot say the trial court abused its discretion in finding that “at this stage of the current proceedings [Fitzgerald’s] competence is not necessary to assist PCR counsel or the Court” and that Fitzgerald “does not have a right to a competency determination at this point in a post-conviction proceeding.” The trial court implicitly recognized that competency could become a factor and thus be raised in the current or successive proceedings.
¶33 The majority’s first holding, that neither the statute nor the rule requires a trial court to determine whether a Rule 32 petitioner is competent is based on its conclusion that there is no right to competency in post-conviction proceedings. That conclusion undermines its second holding, that a trial court nonetheless “may” in its discretion order a competency evaluation “if it is helpful or necessary” in presenting or ruling on a Rule 32 claim. See supra ¶¶ 1, 25–26. The plain language construction of the first holding renders the second holding problematic for trial courts to apply, and potentially meaningless. A trial court may be disinclined to order a competency evaluation for a petitioner who does not have a right to competency in the first place.
¶34 The majority essentially has identified two circumstances in which a petitioner’s competency may be addressed. The first, “if helpful or necessary . . . [in] ruling on . . . certain Rule 32 claims,” focuses on whether a competency determination would aid the trial court. Supra ¶ 1. Like the majority, I have “utmost confidence” in trial judges, supra ¶ 28, but this standard appears to me to be somewhat broad and nebulous. If counsel is unable to identify and raise a claim because of the petitioner’s incompetence, and neither the rule nor the statute requires competency in Rule 32 proceedings, under what circumstances and for what kinds of claims would the trial court be expected to find the petitioner’s competency helpful or necessary to ruling on those claims?
¶36 As the majority points out, Fitzgerald relies on
¶37 This Court’s two opinions in Spreitz support my view. In his direct appeal to this Court, Spreitz asserted one claim of ineffective assistance of counsel. State v. Spreitz, 190 Ariz. 129, 146 (1997). This Court noted it had stated previously that it would not “‘resolve an ineffective assistance of counsel claim on direct appeal unless the record clearly indicates that the claim is meritless.’” Id. (quoting State v. Maturana, 180 Ariz. 126, 133 (1994)). In addressing the claim, this Court found it “entirely without merit and decide[d] the issue against [Spreitz].” Id. After his convictions were upheld, Spreitz petitioned for post-conviction relief under Rule 32. Spreitz, 202 Ariz. at 1 ¶ 3. He asserted several additional claims of ineffective assistance of counsel. Id. But “[b]ecause the single claim was raised and addressed in the direct appeal, the trial court held that Spreitz had waived any further claims of ineffective assistance of trial counsel under
¶38 However, on review of the trial court’s decision, despite the express language of
¶39 Our case law provides numerous other examples of courts finding implicit meaning in a statute or rule given the overall structure. See State v. Sang Le, 221 Ariz. 580, 581 ¶ 5 (App. 2009) (although plain language of rule appears to allow IAC claims to be brought in post-trial motion to vacate judgment, defendants cannot do so “in the interest of procedural regularity,” given that this Court designated Rule 32 as vehicle for raising such claims); State v. Rosales, 205 Ariz. 86, 89–90 ¶ 11 (App. 2003) (“for practical and policy reasons,” petitioner did not waive other claims under
¶40 Based on the statutory scheme and the related rules of procedure, capital defendants have a right to competency for non-record based claims in Rule 32 proceedings when raising those claims is dependent upon the petitioner’s ability to effectively communicate with counsel.5 First, an automatic appeal to the supreme court occurs in all capital cases for which a sentence of death has been imposed. See
¶41 By requiring petitioners to assert all ineffective assistance claims in Rule 32 proceedings, Spreitz, 202 Ariz. at 3 ¶ 9, this Court undoubtedly intended that all, not just some, would receive meaningful review. I recognize that certain IAC claims are apparent from the record and do not depend on a petitioner’s ability to effectively communicate with counsel. But in many instances, such claims will be non-record based, meaning Rule 32 counsel will only learn of a prior attorney’s mistake through communication with the petitioner. Thus, a petitioner’s ability to communicate the existence of non-record
¶42 By holding that capital defendants have no statutory or rule-based right to competency in Rule 32 proceedings, the majority severely impairs a petitioner’s ability to assert any IAC or other claims that do not appear in the record. See Martinez v. Ryan, 566 U.S. 1, 12 (2012) (“A prisoner’s inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel.”). The right to assert those types of claims is meaningless for incompetent petitioners unless they somehow are eventually restored to competency.6 Cf. Osterkamp v. Browning, 226 Ariz. 485, 490–91 ¶ 20 (App. 2011) (“The right to the effective assistance of counsel in the first Rule 32 proceeding is meaningless unless the pleading, indigent defendant is afforded counsel in the second proceeding.”). And even if such petitioners somehow are restored to competency, they may have a difficult task of showing their claims are not precluded. A practical, common-sense interpretation of the relevant statutes and rules dictates otherwise. See Fragoso, 210 Ariz. at 430 ¶ 7; see also Wood, 198 Ariz. at 277 ¶ 7.
¶43 Moreover, because IAC claims often are non-record based, I find Ryan v. Gonzales, 568 U.S. 57 (2013), and State v. White, 168 Ariz. 500 (1991), abrogated on other grounds by State v. Salazar, 173 Ariz. 399 (1992), distinguishable. See supra ¶¶ 16–18. In Gonzales, the Supreme Court determined that federal habeas petitioners on death row did not have a right to competency during federal habeas proceedings. 568 U.S. at 65–66, 71. However, the Court also pointed out that federal habeas proceedings are generally “backward-looking” and “record-based,” such that “counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence.” Id. at 68. Similarly, in White, while this Court found that an appeal should proceed regardless of a defendant’s competency, it explained that criminal defendants generally do not participate in record-based appellate proceedings. 168 Ariz. at 509. Neither Gonzales nor White dealt with non-record based claims, including certain IAC claims, that necessarily require the defendant to effectively communicate with Rule 32 counsel.
¶44 The majority insists White is analogous, notwithstanding the fact that it was a direct appeal, noting that this Court had made its observation in that case at a time when “a defendant could raise IAC claims on direct appeal,” before Spreitz mandated that IAC claims be raised in a Rule 32 proceeding. Supra ¶ 18. But in its 1989 decisions in Valdez, 160 Ariz. at 14–15, and Carver, 160 Ariz. at 175, decided before White, this Court repeatedly discouraged defendants from raising IAC claims on direct appeal. In fact, in Carver, this Court made clear it would not consider an IAC claim raised for the first time on appeal unless the record clearly showed the claim was meritless. 160 Ariz. at 175;
¶45 Nonetheless, I agree with the majority that a petitioner should be required to raise an issue of incompetency in his first Rule 32 proceeding to serve as a “marker” for successive proceedings. See supra ¶ 26. Although a trial court should address the competency issue, it should not be required to stay the current proceedings while it does so. It may proceed with a resolution of any record-based claims, as well as any non-record based claims that do not rely on the petitioner’s ability to effectively communicate with counsel, and may enter a final order that disposes of the initial Rule 32 petition. The marker, however, would permit the petitioner to file a successive petition for post-conviction relief as to his non-record based claims that can only be developed and presented after he is restored to competency. See
¶46 I am compelled to make two final comments regarding the “marker” procedure described by the majority—with which I agree. First, the “marker” requirement is not set forth in the statute or the rule; nevertheless, the majority finds it a viable method for asserting certain claims, reasoning that the trial court’s authority to permit it is derived from its “inherent authority and discretion.” Supra ¶ 27. It is precisely this kind of reasoning that leads me to conclude with respect to certain non-record based claims, that the statute and the rule contemplate the petitioner’s competency. Similarly, the majority suggests that, notwithstanding the unambiguous rules of preclusion in
¶47 Second, I continue to be concerned that claims a petitioner must raise in the initial PCR proceeding, particularly IAC claims, will be forever lost because of a defendant’s incompetency. Agreeing with the State’s comments during oral argument, the majority states, “[A]ny alleged prejudice caused by the petitioner’s incompetency may be addressed in a successive PCR petition.” Supra ¶ 19. The majority has refused to address “whether due process may require the court to consider the merits of such a successive petition if the petitioner was incompetent at the time of the initial, earlier Rule 32 proceedings.” Supra ¶ 26. To the extent the majority is suggesting that such a claim may be raised as a claim of newly discovered evidence pursuant to
¶48 I believe my position in this case is supported by our legislature’s directive: “Penal statutes shall be construed according to the fair import of their terms, with a view to effect their object and to promote justice.”