                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          THE STATE OF ARIZONA,
                                Appellant,

                                     v.

                           RICHARD J. GLASSEL,
                                Appellee.

                            No. CR-13-0060-AP
                         Filed November 21, 2013

           Appeal from the Superior Court in Maricopa County
                 The Honorable Joseph C. Welty, Judge
                          No. CR2000-006872
                         VACATED IN PART

COUNSEL:

William G. Montgomery, Maricopa County Attorney, Gerald R. Grant
(argued), Deputy County Attorney, Phoenix, for State of Arizona

Christina Phillis, Public Advocate, Charles J. Babbitt, III, (argued), Deputy
Public Advocate, Phoenix, for Richard J. Glassel

Colleen Clase (argued), Daniel L. Miranda, and Jeffrey Johnson of Arizona
Voice for Crime Victims, Tempe, for Amici Curiae Duane Lynn, David
Lynn, Cathy Morgan, Cindy Bays, Thomas Lynn, Phillip Lynn, and
Patricia Wyatt

Randall S. Udelman, DeFusco & Udelman, P.L.C., Scottsdale, for Amicus
Curiae National Crime Victim Law Institute

CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE
CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.
                           STATE V. GLASSEL
                           Opinion of the Court

CHIEF JUSTICE BERCH, opinion of the Court:

¶1            In State v. Griffin, 121 Ariz. 538, 592 P.2d 372 (1979), the
Court held that when a convicted defendant dies before his direct appeal
is decided, the death abates the prosecution from the outset, and the
conviction is set aside. Today, we hold that Griffin’s doctrine of abatement
ab initio does not apply when a defendant dies after his conviction is
affirmed, but while post-conviction relief proceedings are pending.

                            I. BACKGROUND

¶2            A jury found Richard J. Glassel guilty of two counts of first
degree murder and thirty counts of attempted first degree murder
following a shooting spree at a homeowners’ association meeting in 2000.
He was sentenced to death in 2003. We affirmed his convictions and
sentences in 2005, State v. Glassel, 211 Ariz. 33, 116 P.3d 1193 (2005), and
the Supreme Court denied his petition for certiorari a year later, Glassel v.
Arizona, 547 U.S. 1024 (2006).

¶3            In 2010, Glassel filed a petition for post-conviction relief
under Rule 32, Ariz. R. Crim. P., alleging, among other things, that he was
denied his right to competent counsel at trial. That petition was pending
when he died in January 2013. After Glassel’s death, the superior court
judge dismissed the Rule 32 proceeding as well as the indictment and
conviction, concluding that Griffin compelled that result.

¶4            We granted the State’s petition for review because this case
calls into question the scope and the continuing vitality of this Court’s
opinion in Griffin. We have jurisdiction pursuant to Article 6, Section 5(3)
of the Arizona Constitution and A.R.S. § 13-4031.

                             II. DISCUSSION

¶5           Whether the court must set aside a validly obtained and
affirmed conviction if the defendant dies while a post-conviction relief
proceeding is pending is a question of law, which we review de novo.
Wilmot v. Wilmot, 203 Ariz. 565, 569 ¶ 10, 58 P.3d 507, 511 (2002).

¶6          In Griffin, this Court held that “death pending appeal abates
the appeal and the conviction.” 121 Ariz. at 539, 592 P.2d at 373. We


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                            STATE V. GLASSEL
                            Opinion of the Court

reasoned, as had a majority of jurisdictions at that time, that upon the
defendant’s death, “the interests of the state in protection of society have
been satisfied, the imposition of punishment is impossible, and collection
of fines or forfeiture result[s] in punishing innocent third parties.” Id. at
538-39, 592 P.2d at 372-73. The parties here disagree whether a Rule 32
petition asserting ineffective assistance of counsel is the kind of “appeal”
that should cause Glassel’s convictions to abate.

¶7            The State maintains that Griffin requires abatement only if a
defendant dies during the pendency of a direct appeal, not a collateral
proceeding such as a post-conviction relief proceeding. In Griffin, we
noted that the federal courts distinguish direct appeals from requests for
discretionary review, such as petitions for certiorari, and abate convictions
only when defendants die while their direct appeals are pending. Id. at
538 n.1, 592 P.2d at 372 n.1 (citing Dove v. United States, 423 U.S. 325 (1976);
United States v. Bechtel, 547 F.2d 1379 (9th Cir. 1977)).

¶8             Glassel asserts that his Rule 32 petition was “equivalent to a
direct appeal” because it provided the first opportunity to assert his claim
for ineffective assistance of counsel. He correctly notes that this Court has
instructed defendants not to bring ineffective assistance of counsel claims
on direct appeal, but instead to raise them in Rule 32 petitions. See State v.
Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002).

¶9            This Court, however, has consistently distinguished post-
conviction relief proceedings from direct appeals. “The right to appeal is
guaranteed by our constitution, Ariz. Const. art. 2, § 24, but the Rule 32
procedure is not.” State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994
(1984). Moreover, we have explained that a Rule 32 petition exists
“separate and apart from the right to appeal” and is “a collateral attack
upon the judgment.” Id. at 145, 148, 692 P.2d at 994, 997. Thus, following
a conviction, a defendant has the right to challenge the sufficiency of
evidence and to assert any trial errors through direct appeal. Glassel
exercised that right, and his convictions and sentences were affirmed.
Glassel, 211 Ariz. at 59 ¶ 119, 116 P.3d at 1219.

¶10           Even when a Rule 32 petition provides the first opportunity
for review, as occurs when a defendant pleads guilty, admits a probation
violation, or asserts an ineffective assistance of counsel claim, the Rule 32
process does not equate to a direct appeal. See State v. Smith, 184 Ariz. 456,


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                            STATE V. GLASSEL
                            Opinion of the Court

458, 910 P.2d 1, 3 (1996) (differentiating between direct appeals and Rule
32 proceedings); Montgomery v. Sheldon, 181 Ariz. 256, 259 n.2, 889 P.2d
614, 617 n.2 (1995) (referring to Rule 32 proceedings as “a distinct form of
appellate review”); Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.3d 744, 746
(1993) (discussing “appellate review by PCR in lieu of direct appeal”). A
post-conviction relief proceeding under Rule 32 is, in most circumstances,
a proceeding “supplementary to the direct appeal.” People v. Valdez, 911
P.2d 703, 704 (Colo. App. 1996).

¶11           Once this Court affirmed Glassel’s convictions, his direct
appellate process was complete. Thus, Glassel’s convictions were
presumed to have been regularly obtained and valid well before he died.
See Canion v. Cole, 210 Ariz. 598, 600 ¶ 13, 115 P.3d 1261, 1263 (2005)
(noting that “the State is entitled to a presumption that [the defendant’s]
convictions were regularly obtained and are valid”). Therefore, Griffin
does not require that we set aside Glassel’s convictions, even though his
Rule 32 petition was not resolved before he died, and we decline to extend
Griffin’s abatement doctrine beyond the context of direct appeals. Cf.
Valdez, 911 P.2d at 704 (concluding that after a “defendant has already
pursued unsuccessfully a direct appeal,” “collateral appeals should be
subject to dismissal but not abatement ab initio upon the defendant’s
death”); Surland v. State, 895 A.2d 1034, 1035 (Md. 2006) (stating that a
defendant’s convictions remain intact once affirmed on direct appeal).
Indeed, principles of finality militate against expanding the doctrine.

¶12            The victims in this case participated as amici, and they urge
us to overrule Griffin and allow convictions to stand when a defendant
dies while a direct appeal is pending. The victims contend that abatement
ab initio violates victims’ constitutional and statutory rights to restitution,
justice, and fairness and suggest that we follow the lead of state courts
that have abandoned or modified the doctrine. See State v. Carlin, 249 P.3d
752, 754 (Alaska 2011); State v. Korsen, 111 P.3d 130, 130 (Idaho 2005); State
v. Benn, 274 P.3d 47, 50 (Mont. 2012). They argue that the presumption of
innocence disappears upon conviction and that when a defendant dies
while an appeal is pending, the victims’ interest in finality should prevail
over the defendant’s diminished interest in challenging his or her
conviction. Although the victims’ arguments may have merit, we decline
to reach the issue in this case. The facts do not require us to decide
whether Griffin should be overruled, and neither Glassel nor the State
directly advanced the issue. See Ruiz v. Hull, 191 Ariz. 441, 446 ¶ 15, 957


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                          STATE V. GLASSEL
                          Opinion of the Court

P.2d 984, 989 (1998) (observing that “we base our opinion solely on legal
issues advanced by the parties themselves”).

                           III. CONCLUSION

¶13          For the reasons set forth above, we vacate that portion of the
superior court’s order that dismisses Glassel’s indictment and voids his
convictions pursuant to Griffin.




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