                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      CHIP MORAY SMITH, Petitioner,

                                        v.

   THE HONORABLE RICK A. WILLIAMS, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
                 MOHAVE, Respondent Judge,

  STATE OF ARIZONA ex rel. MATTHEW J. SMITH, Mohave County
                Attorney, Real Party in Interest.

                             No. 1 CA-SA 14-0042
                               FILED 4-8-2014


 Petition for Special Action from the Superior Court in Mohave County
                            No. CR-2001-1143
                 The Honorable Rick A. Williams, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Petitioner
                   SMITH v. HON. WILLIAMS/STATE
                         Decision of the Court



                           DECISION ORDER

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1            Petitioner, Chip Moray Smith (Smith), filed this petition
requesting special action relief from the trial court’s order dismissing his
Notice of Post Conviction Relief (PCR). The trial court ruled that Smith’s
counsel’s assertion that she was unaware she needed to file a separate
notice of appeal from the trial court’s order denying Smith’s motion to
vacate judgment (MVJ) in order to comply with State v. Wynn, 114 Ariz.
561, 562 P.2d 734 (App. 1977), was an insufficient reason to allow the filing
of a delayed appeal. No response was filed by Real Party in Interest, the
State of Arizona (the State). 1 For the reasons discussed below, we accept
special action jurisdiction and grant relief.

                FACTS AND PROCEDURAL HISTORY

¶2           Smith was convicted of a crime and sentenced on August 8,
2012. Thereafter, on August 20, 2012, Smith’s counsel filed a MVJ
pursuant to Arizona Rule of Criminal Procedure 24, and on August 22,
2012, Smith’s counsel filed a notice of appeal, which specifically appealed
Smith’s conviction and sentence. The trial court subsequently denied
Smith’s MVJ. Neither Smith’s trial nor appellate counsel filed a notice of
appeal from the trial court’s denial of the MVJ.

¶3           Smith currently has an appeal pending before this court,
designated as 1 CA-CR 12-0550 (the Appeal). Within the Appeal, Smith
argues, among other things, that the trial court improperly denied the
MVJ, which the trial court decided after Smith filed his notice of appeal of
the underlying conviction. Smith properly noticed the appeal of the
underlying conviction and sentence, and included the denial of the MVJ in
the Appeal. However, Smith’s counsel failed to file a second notice of


1      The record indicates that both the Attorney General’s Office and
the Mohave County Attorney’s Office were served with the Petition for
Special Action.



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                   SMITH v. HON. WILLIAMS/STATE
                         Decision of the Court

appeal for the denial of the MVJ. As a result, we determined we lacked
jurisdiction to review the denial of the MVJ because a ruling on a MVJ is a
separate appealable order pursuant to this court’s decision in Wynn, 114
Ariz. at 563, 562 P.2d at 736. We entered an order on February 12, 2014,
staying the appeal to allow Smith to request the trial court’s permission to
file a delayed appeal from the denial of the MVJ.

¶4            Upon return to the trial court, Smith’s counsel filed a notice
of PCR pursuant to Rule 32.1. Smith’s counsel informed the trial court
that PCR relief was appropriate because counsel had been unaware of the
Wynn requirement to file a separate notice of appeal following the trial
court’s denial of a MVJ. And if she did not know a new notice of appeal
needed to be filed, Smith could not have known of the requirement, which
was a ground for the trial court to grant relief and accept a delayed appeal
of this issue. See Ariz. R. Crim. P. 32.1.f (2014). Smith’s counsel also
contended the State’s briefing on the issue of the denial of the MVJ and its
failure to raise Wynn as a defense in its appellate briefing, possibly
indicated the State was also unaware of Wynn’s requirements. The State
filed a response and objected to Smith’s Rule 32 PCR notice.

¶5            The trial court treated the notice of PCR as a “request for
Permission to file a delayed appeal,” denied the request and dismissed
Smith’s notice of PCR.

¶6           Smith filed this special action seeking relief from the trial
court’s dismissal. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution, Arizona Revised Statutes (A.R.S.) sections 12-
120.21.A.1 (2003), -2101.A.4 (Supp. 2013), Arizona Rule of Criminal
Procedure 32, and Arizona Rules of Procedure for Special Action 1 and 3.

                               DISCUSSION

I.     Special Action Jurisdiction

¶7            Special action relief is appropriate when a petitioner does
not have an “equally plain, speedy, and adequate remedy by appeal.”
Ariz. R.P. Spec. Act. 1(a). A petitioner may seek special action relief to
determine whether a trial court’s ruling “was arbitrary and capricious or
an abuse of discretion.” Ariz. R.P. Spec. Act. 3(c). We may accept special
action jurisdiction when the petitioner is foreclosed from otherwise
obtaining judicial review. See State ex rel. McDougall v. Super. Ct. in and for
Cnty. of Maricopa, 172 Ariz. 153, 155, 835 P.2d 485, 487 (App. 1992). Smith
argues the trial court abused its discretion and acted in excess of its
authority by dismissing Smith’s notice of Rule 32 PCR. We accept


                                      3
                   SMITH v. HON. WILLIAMS/STATE
                         Decision of the Court

jurisdiction to determine whether the trial court’s dismissal was arbitrary,
an abuse of discretion, or in excess of its authority.

II.   Arizona Rule of Criminal Procedure 32

¶8             As previously stated, following our determination that this
court lacked jurisdiction to review Smith’s appellate challenge to the
denial of the MVJ, Smith filed a notice in the trial court of his intent to
request relief to file a delayed appeal pursuant to Rule 32.1.f. Rather than
evaluate Smith’s notice under the requirements for relief outlined in Rule
32.1.f, the trial court dismissed the notice, remarking that the question
before the trial court was “whether or not the trial court should grant the
defendant permission to seek a delayed appeal of its denial of the [MVJ].”
However, the proper standard to evaluate a Rule 32.1 PCR notice is
whether relief is appropriate under one of the grounds enumerated in the
rule.

¶9             A defendant has the right to obtain PCR, or institute a
proceeding to secure “appropriate relief,” when the defendant has failed
to file a timely notice of appeal and such failure was not the defendant’s
fault. Ariz. R. Crim. P. 32.1.f. Here, Smith’s counsel incorrectly assumed
the filing of the first notice of appeal was sufficient to grant this court
jurisdiction to also review the denial of the MVJ. Moreover, the State’s
actions in briefing the issue in the Appeal seem to indicate the State was
also unaware of the notice problem and was prepared to defend Smith’s
appeal of both the denial of the MVJ as well as Smith’s conviction and
sentence. We agree with Smith that if counsel on both sides were unaware
Smith needed to file a second notice of appeal following the denial of the
MVJ, then Smith, himself, cannot be expected to have known he needed to
do so.

¶10           Therefore, Smith was not at fault for failing to file a second
notice of appeal from the denial of the MVJ, and he is entitled to PCR.
Accordingly, we reverse the trial court’s order denying Smith Rule 32.1.f
relief and grant his request to file a delayed notice of appeal on the denial
of the MVJ.




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                  SMITH v. HON. WILLIAMS/STATE
                        Decision of the Court

                            CONCLUSION

¶11           For the foregoing reasons, we accept special action
jurisdiction, grant relief, and vacate the trial court’s order dismissing
Smith’s Notice of PCR pursuant to Rule 32.1. We also order that Smith
may file a delayed notice of appeal regarding the denial of the MVJ,
within ten days from the date of this decision.




                                :MJT




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