                                                                      FILED BY CLERK
                            IN THE COURT OF APPEALS                      SEP 30 2011
                                STATE OF ARIZONA
                                                                          COURT OF APPEALS
                                  DIVISION TWO
                                                                            DIVISION TWO




THE STATE OF ARIZONA,                          )      2 CA-CR 2011-0139-PR
                                               )      DEPARTMENT B
                               Respondent,     )
                                               )      OPINION
             v.                                )
                                               )
ROBERT TAYLOR HARDEN,                          )
                                               )
                                 Petitioner.   )
                                               )


     PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20093875001

                          Honorable John S. Leonardo, Judge

                       REVIEW GRANTED; RELIEF DENIED


Robert T. Harden                                                               Florence
                                                                     In Propria Persona


E S P I N O S A, Judge.


¶1           Robert Harden seeks review of the trial court‟s summary denial of his

notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. After

entering into a plea agreement, Harden was convicted in April 2010 of one count of child

molestation and one count of “molestation of a child in the second degree, . . . a
preparatory . . . crime,” both dangerous crimes against children. The court sentenced him

to a minimum, ten-year prison term for the molestation count and imposed lifetime

probation for the preparatory offense.

¶2            In March 2011, Harden filed his first, untimely, notice of post-conviction

relief, in which he alleged he had “discovered a significant omission or error on his

contract for „Uniform Conditions of Supervised Probation‟” that “introduces a condition

of uncertainty regarding the legal merits of the sentence.” On the notice form, Harden

indicated his claims were grounded in Rule 32.1(e), which permits claims based on

“newly discovered material facts,” and Rule 32.1(f), which excuses untimely filing of a

notice of post-conviction relief of right if the failure to file timely was “without fault on

the defendant‟s part.” Harden also included a request for the appointment of counsel.

¶3            The trial court summarily dismissed Harden‟s notice, citing Rule 32.2(b),

which provides, in relevant part,

              When a claim under Rules 32.1(d), (e), (f), (g) and (h) is to be
              raised in a successive or untimely post-conviction relief
              proceeding, the notice of post-conviction relief must set forth
              the substance of the specific exception and the reasons for not
              raising the claim in the previous petition or in a timely
              manner. If the specific exception and meritorious reasons do
              not appear substantiating the claim and indicating why the
              claim was not stated in the previous petition or in a timely
              manner, the notice shall be summarily dismissed.

The court appears to have found Harden‟s “discovery” of an ambiguity in his terms of

probation insufficient to explain his delay in filing for post-conviction relief, noting that

the record “reflects that he reviewed and signed that document on the day of sentencing.”

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We review the court‟s summary denial of post-conviction relief for an abuse of

discretion, but we review de novo the court‟s interpretation of relevant rules. State v.

Martinez, 226 Ariz. 464, ¶ 6, 250 P.3d 241, 243 (App. 2011).

                                           Discussion

¶4            On review, Harden asserts the merits of his claim, disagrees with the trial

court‟s findings, and seems to argue he should have been permitted to file a petition

before the court considered summary dismissal of his claims. 1 But Rule 32.2(b) clearly

provides for summary dismissal based on an insufficient notice in an untimely or

successive petition, and we see no abuse of discretion in the court‟s determination that

Harden‟s reasons for filing his Rule 32 notice more than seven months past the deadline,

as stated or implied in his notice, lacked merit.

¶5            Harden also argues the trial court “erred in its „summary‟ dismissal of [his]

„notice‟ without benefit of counsel who would‟ve provided the content required by the

. . . court.” Relying on Rule 32.4(c)(2), he maintains the court should have appointed

counsel before considering whether his notice was subject to summary dismissal pursuant

to Rule 32.2(b).

¶6            “In interpreting rules, we apply the same principles we use in interpreting

statutes.” State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 640 (App. 2010). We thus


       1
        We decline to address Harden‟s additional argument that we should accept review
“because the [trial] court‟s decision effectively relieves [him] of any obligation to comply
with any „Special Conditions of Probation‟ after his release.” Our silence on the issue
signals neither our agreement with nor acquiescence in this novel proposition.

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endeavor to “determine and give effect to our supreme court‟s intent in promulgating the

rule . . . „keeping in mind that the best reflection of that intent is the plain language of the

rule.‟” Osterkamp v. Browning, 226 Ariz. 485, ¶ 14, 250 P.3d 551, 555 (App. 2011),

quoting Potter v. Vanderpool, 225 Ariz. 495, ¶ 8, 240 P.3d 1257, 1260 (App. 2010). “As

with statutes, court rules „should be harmonized wherever possible and read in

conjunction with each other.‟” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 25,

189 P.3d 1114, 1123 (App. 2008), quoting State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d

166, 168 (2007).

¶7            In Osterkamp, we considered whether, pursuant to Rule 32.4(c)(2), a

pleading defendant was entitled to appointment of counsel in a timely filed, second post-

conviction proceeding, in order to “investigate and possibly assert a claim that counsel in

[his] first, „of-right‟ post-conviction proceeding had rendered ineffective assistance.”

Osterkamp, 226 Ariz. 485, ¶ 1, 250 P.3d at 552. In that case, the trial court initially

summarily dismissed Osterkamp‟s second notice of post-conviction relief, apparently

finding he had failed to state a claim permitted in a successive or untimely notice, based

on limitations imposed by Rule 32.2(b). The court then reinstated the proceeding based

on our decision in Petty.2 Id. ¶ 3. When the court denied his request for appointed

counsel, Osterkamp petitioned for special action relief. Id.



       2
        In Petty, we concluded that, notwithstanding the limitations on untimely or
successive claims found in Rule 32.2(b), a pleading defendant, who is constitutionally
entitled to effective assistance of counsel in his first, of-right proceeding, may challenge,
in a second proceeding, that counsel‟s performance, because the second Rule 32
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¶8            In granting relief, we considered the plain language of the requirement that

counsel be appointed when requested by an indigent defendant “[u]pon the filing of a

timely or first notice in a Rule 32 proceeding.” Id. ¶¶ 11, 13, 15, quoting Ariz. R. Crim.

P. 32.4(c)(2). Noting that “the rule is phrased in the disjunctive,” we stated,

                     Had the rule read, “[u]pon the filing of a timely, first
              notice,” the mandatory appointment of counsel would have
              been limited to first proceedings that have been timely filed.
              But this is not how the rule reads. Instead, rather than
              limiting first notices to those that are timely, it distinguishes a
              “timely” notice from one that is first, establishing the two
              circumstances in which the trial court must appoint counsel.

Id. ¶¶ 15-16. Thus, to the extent Harden asserts, as a general matter, that he is entitled to

appointment of counsel after filing his “first”—albeit untimely—notice of post-

conviction relief, Osterkamp may be read to support his claim.

¶9            But, in essence, Harden‟s argument pertains to the timing of the

appointment of counsel, pursuant to Rule 32.4(c)(2), when considered in the context of

Rule 32.2(b), which directs the trial court to review an untimely notice to ensure it

contains “meritorious reasons” substantiating a non-precluded claim and “indicating why

the claim was not stated . . . in a timely manner” and to dismiss a notice that fails to meet

these threshold requirements. According to Harden, because Rule 32.4(c)(2) specifies

that “the presiding judge, or his or her designee,” shall appoint counsel “[u]pon” a

defendant‟s filing of a first notice of post-conviction relief, id., and because Rule 32.4(e)

refers to the assignment of the matter “to the sentencing judge where possible,” id., “the

proceeding provides the first opportunity to raise such a claim. 225 Ariz. 369, ¶ 11, 238
P.3d at 641.
                                            5
Law provides access to Counsel prior to assignment of a Judge to preside over [the Rule

32 proceeding].”

¶10           Although we agree the language in Rule 32.4(c)(2) suggests counsel should

be appointed promptly, nothing in Rule 32.4 mandates the legal principle Harden

proposes. Specifically, the rule requires that counsel be appointed “within 15 days if

requested and the defendant is determined to be indigent.” Ariz. R. Crim. P. 32.4(c)(2).

Pursuant to Rule 32.4(a), (c), and (e), a notice of post-conviction relief is filed “with the

court in which the [defendant‟s] conviction occurred” and “assigned to the sentencing

judge where possible”; it generally is not subject to a delayed assignment by the presiding

judge. Ordinarily, the “assignment” of the proceeding is effective upon the filing of the

notice, and thus would precede any appointment of counsel. In addition, Rule 32.4(c)(2)

provides that, once appointed, “counsel for the defendant shall have sixty days . . . to file

a petition raising claims under Rule 32.1.”

¶11           We cannot disregard the reference in Rule 32.2(b) to “untimely” as well as

“successive” petitions.   Commenting on the “important societal interests” served by

related rules of preclusion found in Rule 32.2(a), our supreme court has observed,

              By requiring that all post-conviction claims be raised
              promptly, Rule 32.2(a) not only serves important principles of
              finality, . . . but also allows any relief to be issued at a time
              when the interests of justice, from the perspectives of the
              defendant, the State, and the victim, can be best served. If a
              new trial or further proceedings are required, these can take
              place promptly, before the defendant has suffered undue
              prejudice and evidence becomes stale.


                                              6
State v. Shrum, 220 Ariz. 115, ¶¶ 12-13, 203 P.3d 1175, 1178 (2009). These same

interests are served by the special requirements imposed by Rule 32.2(b) when a

defendant files an untimely notice. Nothing in Rule 32.2(b) suggests that counsel must

be appointed for an indigent defendant before a trial court conducts the preliminary

review mandated by that rule, and we decline to impose such a requirement. Indeed, to

do so would effectively eviscerate the applicable time limits and the trial courts‟ gate-

keeping function to dismiss facially non-meritorious notices.

¶12          We find no fault with the trial court‟s straightforward application of

Rule 32.2(b). Accordingly, although we grant review, relief is denied.




                                             /s/ Philip G. Espinosa
                                             PHILIP G. ESPINOSA, Judge

CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




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