                                                                        FILED BY CLERK
                             IN THE COURT OF APPEALS
                                                                           AUG 31 2010
                                 STATE OF ARIZONA                           COURT OF APPEALS
                                   DIVISION TWO                               DIVISION TWO




THE STATE OF ARIZONA,                        )          2 CA-CR 2010-0018-PR
                                             )          DEPARTMENT A
                             Respondent,     )
                                             )          OPINION
              v.                             )
                                             )
JAMES N. PETTY,                              )
                                             )
                               Petitioner.   )
                                             )


     PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR20074550

                           Honorable John S. Leonardo, Judge

                      REVIEW GRANTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                                Tucson
                                                                Attorneys for Respondent

Isabel G. Garcia, Pima County Legal Defender
 By Joy Athena                                                                     Tucson
                                                                   Attorneys for Petitioner


E S P I N O S A, Judge.

¶1            Petitioner James Petty seeks review of the trial court‟s order summarily

dismissing his successive notice of post-conviction relief filed pursuant to Rule 32, Ariz.

R. Crim. P. For the reasons stated below, we grant his petition for review and grant

relief.
                          Factual and Procedural Background

¶2            Petty was convicted of theft by control or misrepresentation pursuant to a

plea agreement entered in May 2009.          The trial court sentenced him to a partially

aggravated prison term of five years. By pleading guilty, he waived the right to a direct

appeal to this court from his conviction and sentence.            See A.R.S. § 13-4033(B)

(defendant may not appeal from judgment or sentence entered pursuant to plea agreement

or admission of probation violation); see also Ariz. R. Crim. P. 17.1(e) (among rights

waived by defendant who pleads guilty or no contest is “right to have the appellate courts

review the proceedings by way of direct appeal, and [defendant] may seek review only by

filing a petition for post-conviction relief pursuant to Rule 32 and, if denied, a petition for

review”). A pleading defendant‟s only means of obtaining review is pursuant to Rule 32,

in a proceeding “known as a Rule 32 of-right proceeding.” Ariz. R. Crim. P. 32.1.

¶3            Petty filed his of-right notice and petition, and the trial court granted partial

relief on November 13, 2009. Within the thirty-day period prescribed by Rule 32.4(a),

Petty then filed a second notice of post-conviction relief. The notice was prepared by the

same attorney who had represented Petty in his of-right proceeding, and she had checked

a space on the notice next to the following paragraph:

                     Defendant is entitled to the effective assistance of
              counsel in first Rule 32 of-right proceedings. The Legal
              Defender‟s Office represented defendant in his Rule 32 of
              right, and therefore, the Legal Defender‟s Office cannot
              evaluate its own effectiveness under the conflict rules. It is
              requested that the court appoint counsel outside the Legal
              Defender‟s Office.




                                              2
The notice did not otherwise identify any claims Petty intended to raise in the successive

proceeding.

¶4            In a minute entry order filed on December 14, 2009, the trial court

dismissed the notice. It correctly observed that Rule 32.2(a)(3) precludes a defendant

from seeking relief in a successive petition for post-conviction relief on any ground

“„[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding.‟”

The court added, also correctly, that claims under Rule 32.1(d), (e), (f), (g), or (h) may be

raised in a successive post-conviction proceeding and are excepted by Rule 32.2(b) from

the preclusive effect of Rule 32.2(a)(3). As the court further noted, Rule 32.2(b) provides

that, when a defendant files an untimely or successive notice of post-conviction relief and

intends to raise a claim under Rule 32.1(d), (e), (f), (g), or (h), the notice

              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.

Finding the “specific exception and meritorious reasons for not raising the claim in the

previous petition are not apparent from the notice,” the court dismissed Petty‟s second

notice.

¶5            Petty subsequently moved for reconsideration, asserting only that because

the petition was timely, it should not have been dismissed. In denying the motion, the

trial court acknowledged Petty‟s second notice had been timely filed but explained it had

dismissed it because this was a successive proceeding and the notice “failed to meet the



                                               3
requirements of Rule 32.2(b).” We have jurisdiction over Petty‟s petition for review

pursuant to A.R.S. § 13-4239(C); see also Ariz. R. Crim. P. 32.9(c).

                                        Discussion

¶6            In his petition for review, Petty contends the trial court incorrectly

interpreted Rules 32.4 and 32.2 as applied to a pleading defendant, depriving him of the

opportunity to assert in a successive post-conviction proceeding a claim of ineffective

assistance of counsel in his of-right post-conviction proceeding. And, he contends, his

notice of post-conviction relief was sufficient to withstand summary dismissal.

¶7            We will not disturb the trial court‟s ruling in a post-conviction proceeding

absent an abuse of its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948

(App. 2007). Committing an error of law constitutes an abuse of discretion. State v.

Cowles, 207 Ariz. 8, ¶ 3, 82 P.3d 369, 370 (App. 2004). And the interpretation of rules is

a question of law, which we review de novo. State v. Campoy, 220 Ariz. 539, ¶ 11, 207

P.3d 792, 797 (App. 2009). In interpreting rules, we apply the same principles we use in

interpreting statutes. Id. To determine and give effect to our supreme court‟s intent in

promulgating a rule, we look first to its language as the clearest reflection of that intent.

Id.

¶8            Relying on Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614, supp op.,

182 Ariz. 118, 893 P.2d 1281 (1995), and State v. Pruett, 185 Ariz. 128, 912 P.2d 1357

(App. 1995), Petty contends on review that, because the first of-right proceeding is

“equivalent to a direct appeal” for a pleading defendant, such a defendant is entitled to

raise in a successive post-conviction proceeding the claim that Rule 32 counsel in the first


                                             4
proceeding was ineffective.1 He argues that, because he “may raise a claim of ineffective

assistance of counsel under Rule 32.1(a)” in the second proceeding, the requirements of

Rule 32.2(b) are “irrelevant.” Petty asserts that some of-right petitioners will not have a

claim to raise under Rule 32.1(d), (e), (f), (g), or (h) at all and therefore should not be

required to set forth in the second notice the nature of those nonexistent claims and why

they were not raised in the first proceeding. He further contends that of-right petitioners

cannot be limited, in a successive petition, to claims under these subsections because they

have the right to raise a claim of ineffective assistance by of-right Rule 32 counsel. And,

he argues, the rule does not require the notice to contain the language required by Rule

32.2(b) when the proposed claim falls within any other subsection. Upon this court‟s

order directing the state to respond to the petition for review, the state conceded the trial

court‟s summary dismissal was erroneous.2


       1
        Rule 32.1 suggests that the first such proceeding is the of-right proceeding. But
Rule 32.4(a), which prescribes the time for filing a notice of post-conviction relief,
suggests that a successive notice filed by a pleading defendant also is considered part of
the of-right proceeding, which is how Petty characterizes that subsequent proceeding. It
states: “In a Rule 32 of-right proceeding, the notice must be filed within ninety days after
the entry of judgment and sentence or within thirty days after the issuance of the final
order or mandate by the appellate court in the petitioner‟s first petition for post-
conviction relief proceeding.” Thus, Rule 32.4(a) appears to anticipate a successive post-
conviction proceeding for pleading defendants. But whether the two provisions create an
ambiguity in this regard is not material and does not affect the outcome of this case;
therefore, we need not address or resolve any such ambiguity here.
       2
        Petty alternatively contends that, even if the trial court were correct that an of-
right petitioner must comply with Rule 32.2(b) when filing a successive notice, he
“should be given the opportunity to either refile his notice or file an amendment to his
notice at the same time as his petition.” Because we grant relief on different grounds, we
need not reach this issue.


                                             5
¶9             Petty is correct that, for a pleading defendant, Rule 32 is “the only means

available for exercising the [defendant‟s] constitutional right to appellate review.”

Montgomery, 181 Ariz. at 258, 889 P.2d at 616. “Therefore, a pleading defendant such

as [Petty] is constitutionally entitled to the effective assistance of counsel on his first [of-

right] petition for post-conviction relief, the counterpart of a direct appeal.” Pruett, 185

Ariz. at 131, 912 P.2d at 1360. The pleading defendant “must be afforded an opportunity

to assert a claim regarding the effectiveness of the attorney representing him [in] the first

petition for post-conviction relief, . . . [and] the obvious method is by means of a second

petition.”   Id.; cf. State v. Bennett, 213 Ariz. 562, ¶ 16, 146 P.3d 63, 67 (2006)

(nonpleading defendant‟s claim of ineffective assistance of appellate counsel not waived

when appeal and first Rule 32 proceeding filed by same attorney).

¶10           Rule 32.2(a) states the general rule of preclusion: a defendant may not seek

relief based on a ground that could have been raised on appeal or in a motion pursuant to

Rule 24, Ariz. R. Crim. P.; that was adjudicated on the merits on appeal or in any

collateral proceeding; or that was waived by the defendant‟s failure to raise the ground at

trial, on appeal, or in any collateral proceeding. Rule 32.2(b), which applies to both

successive and untimely notices, provides that the rule of preclusion stated in subsection

(a) does not apply to claims cognizable under subsections (d), (e), (f), (g), or (h) of Rule

32.1, and it requires a defendant seeking to raise such a claim in a successive or untimely




                                               6
proceeding to identify the claim and explain why it was not timely raised or not raised in

a previous petition.3

¶11           Because Petty had filed a previous Rule 32 petition and the notice here was

his second, Rule 32.2(b) would have applied had Petty‟s notice identified a claim falling

under Rule 32.1(d), (e), (f), (g), or (h). But it appears Petty‟s only proposed claim is one

of ineffective assistance of counsel pursuant to Rule 32.1(a). A claim of ineffective

assistance of Rule 32 of-right counsel does not fall within Rule 32.1(d), (e), (f), (g), or

(h). Rather, implicating the Sixth Amendment, the claim is cognizable under Rule

32.1(a), which applies if “[t]he conviction or the sentence was in violation of the

Constitution of the United States or of the State of Arizona.” State v. Robbins, 166 Ariz.

531, 533, 803 P.2d 942, 944 (App. 1991); see also Ariz. R. Crim. P. 32.1(a) cmt.

(acknowledging claims of ineffectiveness of counsel fall under this subsection).

Although a claim under Rule 32.1(a) is not exempted from the preclusive effect of Rule

32.2(a)(3), that does not mean the claim is necessarily precluded when raised for the first

time in a successive post-conviction proceeding. The “purpose of the preclusion rule” is

to “require[] a defendant to raise all known claims for relief in a single petition to the trial

court, thereby avoiding piecemeal litigation and fostering judicial efficiency.” State v.

Rosales, 205 Ariz. 86, ¶ 12, 66 P.3d 1263, 1267 (App. 2003). “The preclusion rules exist


       3
        Rule 32.4 sets forth time limits and other matters relating to the commencement
of initial and successive post-conviction proceedings and, like Rule 32.2(b), provides
that, when a defendant files an untimely notice, the defendant may raise claims only
under Rule 32.1(d), (e), (f), (g), or (h). Because Petty‟s successive notice of post-
conviction relief was timely, however, Rule 32.4(a) is not implicated here, as the trial
court correctly found.

                                               7
to prevent multiple post-conviction reviews, not to prevent review entirely.” Id. By its

very nature, a claim that Rule 32 counsel was ineffective in a pleading defendant‟s first

of-right post-conviction proceeding is not a known claim that could have “been

waived . . . in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3).

¶12           Based on the trial court‟s orders dismissing the notice and denying the

motion for rehearing, the court appears to have examined only whether Petty‟s notice had

identified nonprecluded claims falling within subsections (d) through (h) of Rule 32.1

and whether the notice contained the language required by Rule 32.2(b). However, by

virtue of the checked paragraph indicating that separate counsel was needed to evaluate

the effectiveness of counsel in the first Rule 32 proceeding, the notice sufficiently

apprised the court of Petty‟s intent to pursue a claim falling under Rule 32.1(a)—the

nonprecluded claim of ineffective assistance of his first Rule 32 counsel.4

¶13           In Rosales, the defendant had checked a similar paragraph that pertained to

direct appeals. The trial court nevertheless had dismissed the notice, finding that merely

evaluating whether counsel had been ineffective, “without specific facts alleged, is not a

recognized ground [for relief under Rule 32].” 205 Ariz. 86, ¶ 4, 66 P.3d at 1265. This

court found the allegation had been made by appellate counsel, who was asking that a

different attorney be appointed to investigate whether a claim of ineffective assistance of


       4
         It appears neither Petty nor the trial court focused on the implications of Petty‟s
checking a particular box on the petition. Rather, litigation below was limited to the
issue of timeliness; Petty‟s assertions specific to an ineffectiveness claim were raised for
the first time before this court. Although the trial court‟s failure to perceive the full scope
of Petty‟s petition was understandable under the circumstances, we nevertheless grant
relief because Petty was, in fact, entitled to review.

                                              8
appellate counsel existed in order “to avoid any potential conflict of interest.” Id. ¶ 9. As

we noted, an attorney cannot evaluate his or her own effectiveness. Id.; see also Bennett,

213 Ariz. 562, ¶ 4, 146 P.3d at 67; State v. Robles, 135 Ariz. 92, 95-96, 659 P.2d 645,

648-49 (1983). Thus we concluded there were “no fatal flaws on the face of petitioner‟s

notice of post-conviction relief.” Rosales, 205 Ariz. 86, ¶ 10, 66 P.3d at 1266.

¶14           We reach a similar conclusion here. Petty asked for the appointment of

different counsel to evaluate whether he might have a claim of ineffective assistance of

his previous, of-right counsel that he could raise in the subsequent proceeding. This was

sufficient to avoid a summary dismissal of his notice.

                                        Disposition

¶15           For the reasons stated, we grant Petty‟s petition for review and grant relief.

We remand the matter to the trial court for further proceedings consistent with this

opinion.


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

CONCURRING:




/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


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



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