IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent,

v. ADAM ALBERT ROSALE S, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2002-0362-PR

DEPARTMENT A O P I N I O N

PETITION FOR REVIEW F ROM THE SUPERIOR C OURT OF PIMA COUNTY Cause No. CR-58354 Honorable Deborah Bernin i, Judge REVIEW GRANTED; RELI EF GRANTED Isabel G. Garcia, Pima County Legal Defender By Joy Athena Tucson Attorneys for Petitioner H O W A R D, Judge. ¶1 Petitioner Adam Albert Rosales seeks review of the trial court’s dismissal ofpostconviction

relief proceedings broug ht pursuant t

o Rule 3 2, Ariz. R. Crim. P., 17 A.R.S., after the conclusion of his delayed a ppeal. Because we

find that the trial court abused its discretion in summarily

dismissing the proceeding based solely on the notice of post-conviction relief , without appointing counsel and before any p etition was filed, we

vacate that

dismissal and remand the case forfurther proceedings. See State v. Watton , 164 Ariz. 323, 325, 793 P .2d 80, 82 (1990) (trial court’s disposition of Rule 32 proceedings reviewed for abuse of discretion).1 The judge who presided over petitioner’s trial and sentencing and who di smi s sed the

current post-conviction proceedings, at issue here, w as not th e same judge who ruled on t he request for delayed app

eal. 2 ¶2 Petitioner was convicted after a jury tr ial of aggravated assau

lt, aggravated assault of a peace officer, e

ndangerment, possession of marijuana for sale, possession of adeadly weapon while committing a felony drug o ffense, fleeing from

law enforcement o

fficers, t hreatening or intimidating, and conspiracy. The trial court imposed concurrent prison and jail terms, the longest of which was twenty-one ye ars. ¶3 Petitioner did not timely appeal but later petitioned the trial court for leave to file

adelayed appeal under Rule 32.1(f), Ar iz. R. Crim. P., w hich the state did not oppose. Rule 32.1(f) provides as a possible ground for post-conviction r elief that “[t]he defe

ndant’s failure to file a . . . notice of

appeal within

the prescribed time was without fault on the defendant’s part.” This court cannot exercise its jurisdiction over an appeal unless a defendan t timel y appeals or successfully

gains leave to file

a delayed appeal pursuant to this rule. SeeAriz. R. Crim. P. 31.3, 17 A.R.S.; State v. Berry , 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (A pp. 1982). The comme

nt to Rule 32.1(f) explains

that the provision is meant to a pply when “the defendant intended t o appeal and though[t] timely appe al had been filed by his atto rney when in

reality it had not.” This

was petitioner’s situation as outline d in his first

Rule 32 petition, which was entitled “Motion and Order for Delayed Appeal”; it c ontained one paragraph of argumen t, and resulted in the trial court 1 granting him leave to file a delayed appeal. In that delayed appeal, we affirmed petitioner’s convictions, modified some of his sent ences, and vacated th

e remaining sentences , remanding the

caseforresentencing on those counts. State v. Rosales , No. 2 CA-CR 2001-003 7 (memorandum decision filed April 30, 2002 ). Our mandate issued on June 12, 2002.3

¶4 On

June 21, 2002, petitioner f iled a notice of post-convi ction r elief thr ough app ellatecounsel, the Pima Coun ty Legal Defender. In th e notice, petitioner outl ined th e procedural history of the case, althou gh he omitted that his appea l ha d been a dela

yed appeal procured under Rule 32.1(f). He also re quested appointment of counsel outside the legal defender’s office. The trial court promptly dismissed the proceedings with the followin g order, which quoted petitioner’s notice of post-conviction relief:

The Court has reviewed the Defendant’s petition and notes thatwhile the Defendant corr ectly indicated that he had prev iously filed a direct appeal, he incorr ectly stated that he had not filed previous Rule 32 proceedings. The Defendant filed a prev ious petition on March 22, 2000. The sole issue urged on the Court was Defendant’s Request to File a Delayed Appeal. The relief requested was granted which res[u] lted in a successful appeal on

the issue of sentencing

only. The new sentencing da te is J uly 22, 2002. The sole issue alleged in Defe ndant’s second Petition re ads: “Defendant

is entitled to the

effective assistance of cou nsel on direct appeal and trial. The Legal Defender’s Office represented defe nda nt in his appeal (in

which partial relief was obtained). Although counsel will represent petitioner in the resentencing

proceedings, the Legal Defender’s Office cannot evaluate their own effe ctiveness under the conflict rules. It is requested that the cou rt appoint counsel outside the Legal Defender’s Office.” The request to evaluate the effectiveness of t h e Legal Defender’s Office is both premature (re-sente

ncing pursuant to

the m and ate has not yet taken place) a nd inappropriate. Rule 32 , Arizona Rules [of] Criminal Proce dure, sets out the

seven grounds upon whichpost-conviction relief may be pursued. “Evaluating” a lawyer’s performance, without specific facts alleged, i s not a recognized ground. Therefore, the COURT FINDS no cla ims in th e second petition whichwould entitle the Defendant to relief under the rule. IT IS ORDERED that the p etition be DISMISSE

D.4

¶5 Petitioner subsequently filed an extensiv e motion to reconsider that order. He supplemented thatmotion with an affidavit fr om theattorney who had petitioned f or leave to file the delayed appeal, in which counsel explained that she had sought a delaye d appeal under Rule 32.1(f) in order to preserve petitioner’s appeal rights after discovering that no notice of appeal had been filed in his case and that, by doing so, she had not

purposefully waived any sub stantive Rule 32 claims or otherwise

intended to hinder petitioner ’s right to raise substantive claims in Rule 32 proceedings

following the conclus ion of his appeal. The trial court denied the motion for reconsideration without com ment. Petitioner was re

sentenced approximate

ly ten days later. ¶6 We note initially that the trial court’s order app ears to use “notice” and

“petition” interchangeably when, in fact, these terms ap ply to two distinct procedural ste ps in a Rule 32 action. Rule 32.4(a), Ariz. R. Crim. P., provides that a Rule 32 “proceedin g is commenced by timely filing a notice of post-conviction relief.” The petition itself is not required to be filed fo r at least sixty days following the timely filing of the notice. Ariz. R. Crim. P. 32.4(c ). The court dismissed the proceedings on the notice, thereby pre venting the filing of any petit ion. ¶7 Assuming the court used the word “petition” to refer to the notice, we examine whether there were deficiencies in petitioner’s notice, in the procedural context of t his c ase, justifying summary dismissal of the proceedings

without the filing of a petition. First, petitioner’s notice was timely. In non-capital cases tha t have not been resolved thr ough guilty pleas, such as petitioner’s, “the notice must be filed within ninety da ys after the entry

of judgment and sentence

or within thirtydays after the issuance of the order and mandate in the direct appeal, whichever is the later.” Ariz. R. Crim. P. 32.4(a). Petitioner filed his notice within thirty day s of this court’s issuance of the m andate in his appeal.2 See State v. Robles , 135 Ariz. 92, 95-96, 659 P.2d 645, 648- 49 (1983) (disapproving of an attorney arguing his

own ineffectiveness); ER

1.10, Ariz. R. Prof’ l Conduct, Ariz. R. S up. Ct. 42, 17A A.R.S. (lawyers a ssociated in a

firm shall not knowingly repr esent a client when any one of them practicing alone would be prohibited from doing so because of a conflict of interest ). 5 ¶8 Second, petitioner’s notice was no t premature. We understand the trial court’s ruling to mean that any claim of the legal defender’s ineffective assistance could only be raised after the resentencing hearin g, at which the legal defe nder would continue to repre sent petitioner. However, the legal defender also represented p etitione r on appeal, and ineffe ctive assistance of appellate counsel is a cognizable claim under Rule 32. See State v. Herrera , 183 Ariz. 642, 905 P.2d 1377 (App. 1995). The only possible way to

raise such a claim would b e by initiating Rule 32 proceedings by filing a notic e within thirty days of the issua nce of this court’s manda te finalizing the appeal, pursuant to Rule 32.4(a), which petitioner did. Although petition er might also have had a potential claim that the legal defender w as ineffective in th

e resen tencing, that would be aseparate claim, inde pendent of any

claim of ineffective

assistance of appellate

counsel, whichwould have to be litigated in a different Rule 32 proceeding initiated by filing a separate notice of post-conviction relief within ninety days of the resentencing or, i f petitioner has appealed from his resentencing, w ithin thirty days of our mandate following the disposition of any s uch appeal. ¶9 Third, the trial court faulted peti tioner for failing to allege in the notice anything

morespecific than

an intent ion to evaluate appellate counsel’s performanc

e. However, we understand

that allegation to have bee n made only in support of app e lla te counsel’s request that different Rule 32 counsel be appointe d to avoid any pot

ential co nflict of interest. 2 Appellate counsel did not purport to set forth in the notice an exhaustive list of the claims to be raised in the3 Rule 32.1 was drafted within the “structure of the second Revised Uniform PostConviction

Procedure Act (1966).” Ariz. R. Crim. P. 32.1, cmt., 17A.R.S. The model statute included in that Act sets forth specific substan tive grounds for post-convic tion relief very similar to Rule 32.1, except that the model statute contains no equivalent to Ru l e 32.1(f) providing for seeking a d elaye d appeal. SeeUnif. Post-Conviction Pr oc. Act (1966) § 1, 11A U. L.A. 274 (1995). 6 petition. If

anything, the notice mer ely noted the possibility that a claim of ineffective assistance of counsel might be raise d. ¶10 Finding no fatal flaws on the fac e of petitioner’s notice of post-c onviction relief, we turn to whether it was subject to sum mary dismissal because

it followed the earlier pet ition, whichhad been based on Rule 32.1(f). Rule 32.1(f) is atypical of the eight possible grounds for post-conviction

relief listed in Rule 32.1( a) through (h); it mere ly p ro vides a procedural mechanism

whereby a defendant who has failed to appeal through no fault of his orher own can obtain jurisdiction in this court. In contrast, the remai ning seven grounds state

substantive Rule 32 claims on which a trial court, operating as a reviewing court, can directly vacate or modify a defendant’s conviction or sentence or o rder that the defendant b e released fro

m pr ison. 3 In dismissing this post-conviction relief p roceeding based on the not ice, the trial court eff

ectively dismissed all potential claims arising under any of these grounds. ¶11 Rule 32 provides for the possible dismissal of a second or successivenotice of postconviction relief based on the ground of preclusion. Rule 32.2(a)(3) provides that “a defendan t shall be precluded from reli ef under this

rule based upon any ground . . . [t]hat has been waived

. . . in any previous collate ral proceeding.” An exception to this preclusio nary rule exists under Rule 32.2(b) fo r a def

endant who raises claims under Rules 32.1(d), (

e), (f), (g), or (

h) “in a successive

or untimely post-conviction r elief proceeding” if

the defendant alleges th

e specific facts underlyingthose claims, and his or he r reasons for

not raising such claims pre viously, in the7

notice of post-conviction relief. Rule 32.2(b) expressly directs that th e trial court “shall” summarily

dismiss the notice if the peti tioner fails to comply with this r equirement. Rule

32.2(c) provides that “any court on review of the record may determine a nd hold that an issue is precluded.” Thus, if, as here, a trial court is presented with a suc cessive notice of post-c

onviction relief in which no claims under Rule 32.1(d) through (h) are articulated, suppor

ted by facts, and excused for being tardily raised, th e court could di smiss the ent ire proceeding on the notice, implicitlyfinding that all potential claims ar e precluded by being waive d in the previous proceeding. Such a

ruling would necessarily include potential claims under Rule 32.1(a) through (c), for which no exception to the preclusion or

timeliness rules exists. The key issue here, then, is whether, by requesting le ave to file a delayed appeal pursuant to Rule 32.1(f), petitioner waived all other potential claims under the other grounds found in Rule 32.1, thereby re ndering them precluded. We conclude that, for pr actical and policy reaso

ns, no w aiver occurred under these circumstances. ¶12 To begin with, finding no such wa iver is consistent with the purpose of the preclusion

rule, which essentially requires a defendant to raise all kno wn claims for relief in a single petition to the

trial cour t, thereby avoiding piecemeal litigation and fostering judicial efficiency. See Stewart v. Smith , 202 Ariz. 446, ¶11, 46 P .3d1067, ¶11 (2002)(“Rule 32.2 is

arule of preclusion designe d to limit those reviews, to pre vent endlessor nearly endless reviews of the same case in

the same trial court.”). As discussed earlier, a request for a delayed appeal is not a substantive request

for relief, but a procedural gateway to the appellate court. The trial court, in evaluating such arequest, does not review th e trial, conviction, or sen tence; at most, it may be called on

to make limited factua

l findings about post-trial com munication

between counsel anddefendant regarding an appeal. Thus, if a def

endant who successfully obtains leave to file a8

delay ed appeal under Rule 32.1(f) is permitted to bring a substantive post-conviction relief proceeding

after the conclusion of th e appeal, the trial cour

t will be functioning as a reviewing court for the first time, albei

t that techni cally it will be addressing the seco nd petition. If the substantive grounds were de emed waived by virtue

of the first petition containing on ly the Rule 32.1(f) request, the trial court would not review the case at a ll. The preclusion rules exis t to prevent multiple post-conv iction reviews, not to preve nt review entirely. ¶13 Moreover, to find that a defe n dant such as petitioner who seeks leave to file a delayed appeal under Rule 32.1 (f) waives all other cla ims would compel defend ants to include all known substantive Rule 32 claim s in their first

petition, along with the motion for leave to file a delayed appeal. Such defendants would th erefore be forced to

litigate all their known Rule 32 claims, including their request for a delay ed appeal, before

appealing to this court. This or der of proceedings might make

sense in some cases, a

nd nothing in this decision should be understood to prevent it. In many othe r cases, however, it wou ld not. ¶14 Forexample, many Rule 32 claims require time- and- reso urce-intensive investigation, research, and drafti ng. Some of these cla

im s, such as c laims alleging ineffec tive assistance of counsel, become more or less viable, and sometimes disappear e

ntirely, depending

on the outcome of the appe al. The premature litiga tion of these claims wa

stes scarc e criminal justice resour ces. In add ition, if, as commonly ha ppens, more than ninety da ys pass after the judgment and sentence is imposed b efore the defendant di

scovers that defense co

unsel failed to file

anotice of appeal as instructed, any ensuing R ule 32 action would not be timely, c asting doubt on the validity of any

claims raised at that point under Rule 32.1(a), (b), or (c). SeeAriz. R. Crim. P. 32.2(b); 32.4(a). Moreover, defendan ts who wis h to proceed directly to app eal would be forced to omit their known substa ntive Rule32 claims from their fir st petition. That omission9

would result in those claims being effectively abandoned, which is the practical result of what we understand the trial court’s ruling to be in this case. ¶15 The latter result is contrary to Rule 3 2.4(a), whic h, as discussed in ¶7, clea rly contemplates the possibility of initiating Rule 32 proceedings after the appeal is final. It is also contrary to the order in which our supre me court addresses ca

pital appeals and post-con viction proceedings. SeeAriz. R. Crim. P. 3 1.2(b) (notice of appe al automatically filed by

clerk of trial court upon imposition of death sente nce); Ariz. R. Crim P. 32.4(a) (notice of post-convictio n relief filed by clerk of supreme cou rt upon issuance of mandat e affirming capital co

nviction and sentence on appeal). We see no basis for finding that either the drafters of Rule 32 o

r oursupreme court, which adopted that rule, int ended to mandate a diff

erent order of procee

dings, a less prompt right to appe al, or a mo re limited access to post-conviction relief for that class of convicted defendants

whose sole distinction is that their trial attorney failed to timely file a notice of appeal

on their behalf. Although ther e is scant case law discuss ing Rule 32.1(f), nothin

g we have found suggests that that rule

is intended to force a defendant to elect between a speed

y appeal and the pursuit of post-conviction relief. SeeAriz. R. Crim. P. 32.1(f) cmt.; In re Acosta , 97 Ariz. 333, 336, 400 P.2d 328, 330 (1965) (citing underlying principle of “[f]undamental justice” in granting delayed appeal under predecessor statute to Rule 32.1(f)). ¶16 We conclude that petitioner, by restricting his first Rule 3 2 petition toarequest for

adelayed appeal under Rule 32.1(f), filed solely as a procedural means of obtaining this court’s review and raising no substantive issue s on which the trial court ruled, did not waive any potential claims arising under any of the other provisions of Rule 32.1. Accordingly, none of those claims is precluded, and his secon d notic e of pos t-conviction relief was not subject to being dismissed pursuant to Rule 32.2(b) or (c) w ithout the fil ing of a petition. Petitioner ’s notice of post-10

conviction

relief filed within thirty day s o f thi s court’s mandate should h ave been treated as a timely not ice of po st-conviction relief, whi ch entitled him to the appointm ent of new counsel. Rule 32.4(c)(2) (“Upon the filing of a timely or first notice” counsel shall be appoin ted.). Further, petitioner was not required to specify his

claims until the filing of his petition. SeeAriz. R. Crim. P. 32.5, “C

ontents of Petition” (“The defend ant shall include every gro und known

to him or her for vacating, reducing, correcting or otherwise c hangi ng all judgments or sentences imposed upon him or her . . . .”). ¶17 Accordingly, we grant review and grant relief. We vacate the trial court’s order dated June 25, 2002, dismissing petitioner’s notice of post-conviction

relief and remand the

case for further proceedings in accordance with this de cision.

____________________________ ___________ JOSEPH W. HOWARD, Jud ge CONCURRING:

____________________________ ___________ J. WILLIAM BRAMMER , JR., Presiding Judge

____________________________ ___________ M. JAN FLÓREZ, Judge