Montgomery v. Sheldon

889 P.2d 614

Ariz.

1995

Check Treatment

Jackie MONTGOMERY, Petitioner, v. Honorable Steven D. SHELDON, Judge, Maricopa County Superior Court, State of Arizona, Respondent Judge, STATE of Arizona, Real Party in Interest. Joe David CAMPBELL, Petitioner, v. Honorable Michael J. O‘MELIA, Judge, Maricopa County Superior Court, State of Arizona, Respondent Judge, STATE of Arizona, Real Party in Interest.

Nos. CV-94-0008-PR, CV-94-0159-PR

Supreme Court of Arizona, En Banc.

Feb. 7, 1995

889 P.2d 614

Opinion Supplemented April 4, 1995.

Commission agrees with the Hearing Officer‘s analysis of these factors. Many factors were found in aggravation. Kobashi had a dishonest or selfish motive, he exhibited a bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency, and he refused to acknowledge the wrongful nature of his conduct. Kobashi also has substantial experience in the practice of law, having been admitted to practice in 1969, and has shown an indifference to making restitution. Finally, Kobashi has a prior disciplinary history, having been suspended earlier this year for six months and one day for violation of many of the same ethical rules, which establishes a pattern of misconduct.

Neither the Hearing Officer nor the Commission found the existence of any mitigating factors.

Kobashi‘s complete disregard for both his client and the disciplinary system is appalling. A client should be secure in the knowledge that he can have absolute trust in his attorney‘s ethics and honesty. Kobashi seriously breached that trust by taking his client‘s money. In addition, Kobashi failed to cooperate with the State Bar‘s investigation into this matter, and made no attempt to explain his lack of participation.

In determining the sanction appropriate for the misconduct, the focus is on such considerations as the maintenance of the integrity of the profession in the eyes of the public, the protection of the public from unethical or incompetent lawyers, and the deterrence of other lawyers from engaging in unprofessional conduct.

In re Murray, 159 Ariz. 280, 767 P.2d 1 (1988). The Commission also considered the fact that the Court has stated that a lawyer‘s failure to respond to Bar inquiries borders on contempt for the legal system. .

Upon review of these considerations, the Commission agrees with the Hearing Officer that the only appropriate result in this instance is disbarment; a lesser sanction would not provide the public with any basis for continued confidence in the Bar and the judicial system. The Commission also recommends that Kobashi make restitution of $15,000 to his client, with interest from July 31, 1991.

RESPECTFULLY SUBMITTED this 17th day of October, 1994.

/s/ Mark D. Rubin

Mark D. Rubin, Chairman

Disciplinary Commission

Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper, Phoenix, for petitioner Montgomery in No. CV-94-0008-PR.

Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Diane E.W. Gunnels, Phoenix, for real party in interest in No. CV-94-0008-PR.

Grant Woods, Atty. Gen. by Paul J. McMurdie, Randall H. Howe, Phoenix, for amicus curiae in No. CV-94-0008-PR.

Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, James H. Kemper, Phoenix, for petitioner Campbell in No. CV-94-0159-PR.

Richard M. Romley, Maricopa County Atty. by Arthur G. Hazelton, Diane E.W. Gunnels, Phoenix, for real party in interest in No. CV-94-0159-PR.

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FELDMAN, Chief Justice.

These cases are before us on petitions for review from conflicting opinions of the court of appeals. The state petitioned for review of a decision granting special action relief in

Montgomery v. Superior Court, 178 Ariz. 84, 870 P.2d 1180 (App.1993). A criminal defendant petitioned for review of a decision denying relief on the same issue in . We granted review and consolidated these cases for oral argument with two others raising the same substantive issue.¹ Ariz.R.Civ.App.P. 8(b). We have jurisdiction under Ariz. Const. art. 6, § 5(3).

FACTS AND PROCEDURAL HISTORY

The relevant facts in all cases are the same. After pleading guilty to various felonies and receiving prison sentences, each petitioner filed a notice of post-conviction relief (“PCR“) under Ariz.R.Crim.P. 32. The trial court appointed counsel to file a PCR petition for each petitioner within the sixty days allowed by Rule 32.4(c). In each case, counsel told the petitioner near the end of that period that there were no grounds for Rule 32 relief. Counsel also said, however, that each petitioner could still file a PCR petition on his own behalf. Toward that end, counsel filed motions requesting thirty-day extensions to permit the petitioners to file pro se petitions.

Each trial judge denied the request. The court of appeals granted Montgomery special action relief, holding that he had a right to file a PCR petition pro se and that appointed counsel‘s eleventh-hour notification that he could find no colorable claims constituted “good cause” entitling him to an extension under Rule 32.4(c).

Montgomery, 178 Ariz. at 86-88, 870 P.2d at 1182-84. Rejecting Montgomery, a divided department of the court of appeals reached the opposite conclusion on the same issue. . We granted review to reconcile these divergent interpretations of Rule 32. See Ariz.R.Civ.App.P. 23(c)(4). Because we conclude that Montgomery correctly interpreted our constitution and Rule 32, we affirm that opinion and vacate the opinion in Campbell.

DISCUSSION

A. The Nature of a Rule 32 PCR Proceeding

Rule 32 provides that “any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief....” Ariz.R.Crim.P. 32.1. Although procedurally distinct, Rule 32 proceedings and direct appeal are both devices for ensuring that every defendant receives due process of law.

State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984), cert. denied, . Rule 32 provides that when a defendant timely files a notice of PCR, the trial court shall appoint counsel upon request. Ariz.R.Crim.P. 32.4(c). The rule requires the defendant or counsel to file a PCR petition within sixty days but contemplates a thirty-day extension on “a showing of good cause.” Id.

Our constitution guarantees that in “criminal prosecutions, the accused shall have the right to appeal in all cases.” Ariz. Const. art. 2, § 24. A defendant normally may exercise that right through a direct appeal. But under Ariz.R.Crim.P. 17.1(e) and 27.8(e), a defendant in a noncapital case who pleads guilty or admits a parole violation waives the right to a direct appeal. In accord with art. 2, § 24, however, those rules specifically allow the defendant to “seek review by filing a petition for post-conviction relief pursuant to Rule 32.” Ariz.R.Crim.P. 17.1(e), 27.8(e);

Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) (“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 [guilty pleas].“). Thus, for such defendants, including the defendants in the cases before us, a Rule 32 proceeding is the only means available for exercising the constitutional right to appellate review. As we recently explained, “[t]hat right cannot be waived merely by a plea or admission.” .²

B. Does a Defendant Have a Right to File a Pro Se Rule 32 Petition?

That then brings us to the basic question: given a constitutional right to appellate review “in all cases,” is a defendant entitled to exercise that right pro se after appointed counsel declines to provide assistance?

Self representation is, of course, a fundamental constitutional right.

Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); . We reject the notion, asserted by the state and accepted by the Campbell majority, that “Rule 32 creates an either/or choice” at the commencement of the proceeding to either proceed pro se or request counsel. . If this were the rule, a defendant who chose to commence the proceeding through counsel, but whose counsel refused to proceed, would be unable to obtain appellate review. Nothing in the rule compels that result. Nor did we intend, when adopting the current rule, to so restrict a defendant‘s constitutionally protected right to appellate review. ; see also (“The right to appeal is substantive. The rules promulgated by this Court ... may not diminish or augment substantive rights.“), on reh‘g, . We do not so interpret the rule today. Nor do we customarily find the need when adopting a rule to explicitly disavow an intent to violate the constitution. Cf. dissent, post at 262 n. 2, 889 P.2d at 620 n. 2. It may, we think, be taken for granted that we intend to abide by the constitution.

Even if art. 2, § 24 would permit a contrary result, practical concerns support allowing a defendant to proceed pro se if appointed counsel refuses to pursue a PCR petition. As the dissent implicitly concedes, such a result is “practical and sensible.” That conclusion is a compelling factor in construing our rule. We cannot ignore the fact that even the most able lawyers occasionally fail to see arguable or even winning issues on appeal. See, e.g.,

State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980) (reversing capital conviction based on defendant‘s supplemental pro se argument). Nor can we assume, unfortunately, that defendants always have competent lawyers. We agree that the “defendant having a right to access, counsel cannot unilaterally shut the courthouse door.” (Kleinschmidt, J., dissenting).³ ⁴

This approach finds further support in the procedure long utilized on direct appeal under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which entitles a defendant to file a supplemental pro se brief if appointed counsel concludes an appeal has no merit. Although the defendant may raise fewer issues in a PCR proceeding than in a direct appeal, under art. 2, § 24 the right to present those issues for judicial review when appointed counsel declines to do so should be the same. We recognize, of course, that Anders was based on a defendant‘s Fourteenth Amendment right to counsel in a first appeal and that there is no such right in state PCR proceedings. . A Rule 32 proceeding followed by appellate review, however, is similar to a direct appeal for an Arizona defendant who pleads guilty. Because Rule 32.4(c) provides for appointment of counsel, Anders is persuasive insofar as it authorizes a defendant to proceed pro se if counsel finds no merit. Cf. (commenting on appointed counsel‘s obligation not to file a frivolous certiorari petition and an indigent defendant‘s right to prosecute an appeal).

That is not to say, however, that an Anders-like review for fundamental error is required whenever a defendant exercises the right to file a PCR petition. We reject that idea, as we have before.

Wilson, 176 Ariz. at 124, 859 P.2d at 747 (“[We] are not commanding, nor do we want, trial courts to conduct Anders-type reviews in PCRs.“); (noting that Anders does not require fundamental error review at every level of the appellate process).⁵ To the contrary, we hold only that if counsel refuses to proceed, a pleading defendant has a right under Ariz. Const. art. 2, § 24 to file a pro se PCR petition. Trial courts should treat such petitions like any other and may, if appropriate, summarily dismiss them under Ariz.R.Crim.P. 32.6(c).⁶ .

C. The Mix-Up over Hybrid Representation

The state claims that recognizing a defendant‘s constitutional right to file a pro se PCR petition violates the “prohibition” against hybrid representation. We disagree. Although there is no constitutional right to hybrid representation, the trial court has discretion to permit it in limited circumstances.

State v. Cornell, 179 Ariz. 314, 325 n. 2, 878 P.2d 1352, 1363 n. 2 (1994). We need not address the narrow scope of that discretion here, however, because no hybrid representation occurs when counsel declines to file a PCR petition and a defendant proceeds pro se. Hybrid representation is concurrent representation by both counsel and defendant — not consecutive representation. . Although counsel in these cases did not formally withdraw, for all practical purposes their representation ended when they refused to submit PCR petitions.⁷ It is not concurrent representation when appointed counsel refuses to file a PCR petition and the defendant then files a pro se petition.

Nor do these cases involve alternate representation, a form of hybrid representation occurring when a defendant switches back and forth between representation by counsel and self-representation. See

Cornell, 179 Ariz. at 325-26, 878 P.2d at 1363-64. The state mistakenly relies in this regard on , which held only that a defendant has no “right to have his case presented in court both by himself and by counsel acting alternately.” (emphasis added). Here, in contrast, appointed counsel never presented a case for the defendants; albeit for arguably appropriate reasons. In such cases, a subsequent pro se filing does not involve alternate hybrid representation.

D. Is Appointed Counsel‘s Late No Merit Notification “Good Cause?”

Ariz.R.Crim.P. 32.4(c) provides:

In non-capital cases, appointed counsel for the defendant shall have sixty days from the date of appointment to file a petition raising claims under Rule 32.1.... On a showing of good cause, a defendant in a non-capital case may be granted a thirty day extension within which to file.

We believe that good cause exists in each of these cases. Absent a finding of dilatory tactics or other abuse, there is good cause under Rule 32.4(c) when appointed counsel does not indicate an intent not to file a PCR petition until well into the initial sixty-day period.⁸ Trial courts, therefore, should grant defendants an appropriate extension upon such a showing. Only then can defendants fully enjoy the access to appellate review that art. 2, § 24 guarantees. Misapprehending the legal issue, the trial courts here did not act within their discretion in refusing to grant the requested extensions.

CONCLUSION

Ariz. Const. art. 2, § 24 guarantees all criminal defendants some form of appellate review. Because a Rule 32 PCR proceeding is the only way a defendant can exercise that right after pleading guilty, such a defendant has a constitutional right to file a pro se PCR petition if appointed counsel refuses to do so. A late finding by counsel that no colorable claim for relief exists is good cause entitling a defendant to a thirty-day extension under Rule 32.4(c). We therefore vacate the decision in Campbell and order the trial court to grant Campbell a thirty-day extension to file a pro se petition. We approve the opinion in Montgomery as modified by this opinion.⁹

MOELLER, V.C.J., and CORCORAN and ZLAKET, JJ., concur.

MARTONE, Justice, dissenting.

I do not believe it is wise to rewrite the Rules of Criminal Procedure through judicial opinions. The majority‘s result is unrequired by our constitution and unsupported by our rules. If the result is otherwise thought to be practical and sensible, a simple rule amendment would be a more direct and candid approach.

The court prefers the pre-1992 version of our Rules of Criminal Procedure, under which a defendant could appeal from a judgment of guilt entered pursuant to a plea.¹

Indeed, the majority‘s opinion is premised on the assumption that a defendant cannot waive the right to appeal contained in art. 2, § 24 of the Arizona Constitution. But this assumption is based on the court‘s failure to distinguish the holding in

State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979) (one cannot contract away the right to appeal) from the formal procedures we adopted in 1992 that allow a defendant to knowingly and voluntarily waive the right to appeal in front of a judge. See Rules 17.2(e) and 27.8(e), Ariz.R.Crim.P. Contract is one thing. A formal procedure that allows the waiver of every other right listed in art. 2, § 24 (counsel, confrontation, speedy trial, etc.) is quite another. See (holding that a criminal defendant may stand in open court and waive the right to appeal, noting that “[a]lthough it is clear that a court may not properly negotiate a plea with a defen-dant or ‘place a price’ on his right to appeal, neither situation arises where a defendant, with the participation of his attorney and the prosecutor, makes his own terms, under-stands them, and thereby brings an end to a prosecution or trial“). This failure to distin-guish between the two explains , where a majority held that the procedures for the formal waiver of the right to appeal contained in Rule 17.2(e), Ariz.R.Crim.P., and Rule 27.8(e), Ariz.R.Crim.P., mean nothing. See (Martone, J., dissenting).² See also (“We thus conclude that the right to appeal, like any other constitutional right, may be waived.“).³

What do these rules mean if not exactly what they say — that by pleading guilty, a defendant waives certain rights, among them, the right to appeal? The majority answers this by defining “waiver” as merely “post-ponement.” Ante, at 259, n. 2, 889 P.2d at 617, n. 2. But if a defendant merely post-pones his appeal rather than waives it, why do we require such rigorous formal waiver procedures? The court says, on the one hand, that it does “not hold today that a pleading defendant cannot waive his right to a direct appeal,” id., and, on the other, “a Rule 32 proceeding is the only means available for exercising this constitutional right to appellate review.” Ante, at 258, 889 P.2d at 616. The majority, thus, feels constitutionally compelled to convert appellate review of the denial of post-conviction relief, which all agree is not waived, and is not constitutionally based, into direct appellate review, which is constitutionally based.

Arizona‘s rules are not exceptional. At the time this court considered them, research indicated that only a few states failed to restrict a defendant‘s right to appeal after pleading guilty. See the clerk‘s record in R-91-0027. In fact, a majority of states recognizes that the right to appeal, like other fundamental constitutional rights, may be waived if the defendant does so knowingly, intelligently, and voluntarily.

Rodriguez, 480 N.W.2d at 291 (“We agree with the decisions in a majority of jurisdictions that suggest there is no affirmative public policy to be served in fostering appeals or prohibiting their waiver.“); (criticizing State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979) and noting that “‘almost all courts have agreed that defendants can waive those rights [to appeal] by pleading guilty, so long as they do so knowingly and voluntarily.‘“) (quoting J. Bond, Plea Bargaining and Guilty Pleas, § 5.14, at 5-29 (2d ed. 1983)). Because this court‘s understanding of the ability to waive the right to appeal is unique, it is difficult to understand its statements that it sees no “need when adopting a rule to explicitly disavow an intent to violate the constitution,” and “[i]t may, we think, be taken for granted that we intend to abide by the constitution.” Ante, at 259, 889 P.2d at 617.

Today, the court completes its rejection of the new Rule 32 by adding language that is not there. I believe that if we wanted to accord a defendant who is represented by counsel an absolute right to file a pro per petition we would have said so. We would not have relied upon a “showing of good cause.” Today the court rewrites Rule 32.4(c), Ariz.R.Crim.P., so that it reads, in part, as follows:

In non-capital cases, appointed counsel for the defendant shall have sixty days from the date of appointment to file a petition raising claims under Rule 32.1. IF APPOINTED COUNSEL IN NON-CAPITAL CASES IS OF THE VIEW THAT NO COLORABLE ISSUE IS SUFFICIENT TO WARRANT THE FILING OF A PETITION, HE OR SHE SHALL, WITHIN THE SIXTY DAY PERIOD FOR FILING A PETITION, MOVE TO WITHDRAW.⁴ THE DEFENDANT SHALL HAVE 30 DAYS AFTER THE ENTRY OF AN ORDER ALLOWING WITHDRAWAL TO FILE A PETITION. OTHERWISE, [a] non-capital defendant proceeding without counsel shall have sixty days to file a petition from the date the notice is filed or from the date the request for counsel is denied. (Capitalized words indicate the court‘s addition).

Counsel for the defendants admitted at oral argument that an amendment like this would be acceptable. If that is the case, we should adopt it under Rule 28, Ariz.R.Sup.Ct. While I would quickly vote to adopt such an amendment, I dissent here because the court‘s opinion is a reach, unrequired by our constitution and unsupported by our existing rule.

In the Matter of a Member of the State Bar of Arizona, Gaila Vivian DAVIS, Respondent.

No. SB-94-0070-D

Supreme Court of Arizona, En Banc.

Feb. 9, 1995

Disc. Comm. Nos. 89-1783, 90-0791, 90-1800.

889 P.2d 621

Margaret H. Downie, Chief Bar Counsel, Phoenix, for State Bar of Ariz.

Notes

; . In 1992, we amended our rules to coincide, in part, with A.R.S. § 13-4033(B) (“In noncapital cases a defendant may not appeal from a judg-ment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.“).

Contrary to the dissent‘s view, post at 262, 889 P.2d at 620, we have never held, and we do not hold today, that a pleading defendant cannot waive his right to a direct appeal consistent with art. 2, § 24. Both Wilson and this case, however, involve only Rule 32 proceedings, a distinct form of appellate review. See (Martone, J., dissenting) (“Collateral review by way of Rule 32 ... does, however, provide a safeguard against defective plea or admission proceedings.“). As noted, the waiver provisions in Rules 17.1 and 27.8 specifically exclude Rule 32 proceedings. The dissent‘s primer on the propriety of waiving a direct appeal, although informative, is therefore irrelevant. And its claim that we somehow equate waiver with postponement is neither relevant nor correct. These defendants waived their right to direct appeal by pleading guilty. But as we held in Wilson, because of art. 2, § 24 this is not equivalent to waiving all appellate review. Hence our opinion is not based on any “assumption” except the principle of law established by our most recent case on the subject. Evidently the dissent is unwilling to concede that Wilson is the law. It is, although not everyone agrees with it. See (Martone, J., dissenting). We see no purpose in reopening the Wilson debate in every subsequent case and thus end it here. An exhaustive search of the record in the Rule 28 file for each of these rules reveals no support for what the majority characterizes as the “court‘s intent then or now.” Ante, at 259, n. 3, 889 P.2d at 617, n. 3. See the clerk‘s record in R-91-0027.

We substantially revised Rule 32 in 1992. The former version required a defendant to file his own PCR petition raising claims of error. The defendant could then request that counsel be appointed to supplement and refine the pro se petition. Significantly, we note that under the former rule, counsel‘s refusal to supplement a petition did not prevent the defendant from proceeding pro se. Our purpose in adopting the current rule was to expedite the procedure for exercising the constitutional right to appellate review “in all cases.” We did not intend, sub silentio, to abolish that right in some cases. The dissent‘s view, post at 262, 889 P.2d at 620, of what the court intended in Wilson or by the amendment of the rule is just that: the dissent‘s view, not the court‘s intent then or now. And neither , nor A.R.S. § 13-4035(B) support the court‘s imposition of an Anders review on the court of appeals. Ante, at 260, n. 5, 889 P.2d at 618, n. 5. Leon and Anders apply to direct appellate review — not collateral post-conviction relief. A.R.S. § 13-4033(B) refers to “an appeal,” not post-conviction relief. Today, the court ignores the difference. Admittedly this flows naturally from the court‘s refusal to acknowledge the right to waive an appeal. Soon the court will be confronted with the argument that the more limited scope of review under Rule 32, as compared to an appeal, is itself unconstitutional.

The state erroneously cites , for the proposition that after electing to be represented by counsel, a defendant “may no longer represent himself” and must accept the decisions of counsel. Coleman is silent on continued self-representation and holds only that counsel‘s acts in state PCR proceedings bind a defendant for purposes of habeas corpus procedural default. Indeed, the fact that claims not properly preserved in state post-conviction proceedings may be defaulted in federal habeas review strengthens our conclusion that a defendant must be able to proceed pro se when appointed counsel is unable or refuses to raise any issues. Contrary to the majority‘s suggestion that “(a)lthough counsel in these cases did not formally withdraw, for all practical purposes their representation ended,” ante, at 260, 889 P.2d at 618, Rule 6.3(b), Ariz.R.Crim.P., specifically provides that a lawyer “shall continue to represent” the defendant “unless the court permits him or her to withdraw.”

There is some confusion about whether the court of appeals must review the record for fundamental error when a pleading defendant petitions for review of a trial court‘s denial of post-conviction relief. See . Because Rule 32 review is analogous to a direct appeal for a pleading defendant, the court of appeals must review for fundamental error when considering a petition for review from denial of post-conviction relief by a pleading defendant. The court may, of course, deny the petition by summary order if it finds no such error. The court of appeals should, however, state in its order denying review that it has examined the record for fundamental error and found none. A.R.S. § 13-4035.

Nothing in this opinion, however, should be read as discouraging trial courts from sua sponte reviewing the record in plea proceedings if they believe such review is warranted, e.g., if it appears no factual basis supported a guilty plea.

Counsel candidly conceded at oral argument that formal withdrawal is the correct procedure under Ariz.R.Crim.P. 6.3(b) and stated that they would seek to do so in the future. Nevertheless, when requesting thirty-day extensions in these cases counsel made it “crystal clear” to their clients and the trial courts that they would no longer assist in the PCR proceedings.

Nothing in this opinion nor in Wilson supports the dissent‘s view that the court has rejected “the new Rule 32 by adding language that is not there.” Post at 263, 889 P.2d at 621. To the contrary, both here and in Wilson we have only interpreted the language of the rule in accord with art. 2, § 24, as we are obligated to do. In this case we considered the rule‘s express “good cause” provision and concluded that it was satisfied. The dissent apparently does not dispute that conclusion.

The issue in Montgomery is moot. After obtaining a thirty-day extension below, Montgomery did not file a Rule 32 petition. We therefore do not disturb the trial court‘s order.