                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                           Respondent,

                                 v.

                     DARREN IRVING GOLDIN,
                          Petitioner.

                    No. 2 CA-CR 2015-0208-PR
                     Filed December 22, 2015


    Petition for Review from the Superior Court in Pima County
                         No. CR20101551001
                  The Honorable Paul E. Tang, Judge

       REVIEW GRANTED; RELIEF GRANTED IN PART


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Kimberly H. Ortiz, Section Chief Counsel, Tucson
By Nicholas Klingerman, Assistant Attorney General, Tucson
Counsel for Respondent

Law Office of Paul S. Banales, Tucson
By Paul S. Banales
Counsel for Petitioner
                        STATE v. GOLDIN
                        Opinion of the Court


                             OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Vásquez and Judge Brammer1 concurred.


H O W A R D, Presiding Judge:

¶1           In this petition for review, Darren Goldin challenges the
trial court’s order denying his petition for post-conviction relief
pursuant to Rule 32, Ariz. R. Crim. P., after an evidentiary hearing,
and finding his claim of ineffective assistance of counsel (IAC)
precluded. Based on our supreme court’s decision in State v. Diaz,
236 Ariz. 361, 340 P.3d 1069 (2014), and the unique circumstances of
this case, we grant relief in part, remanding this matter to the trial
court to determine whether Goldin is entitled to relief pursuant to
Rule 32.1(f) and, if so, to allow Goldin to present his IAC claim in a
timely post-conviction proceeding.

                         Procedural History

¶2           Goldin was charged by indictment with first-degree
murder, committed in March 2000. Pursuant to a plea agreement, he
pled guilty to second-degree murder. The plea agreement stipulated
Goldin would be sentenced to a prison term of eleven years, to be
served consecutively to another prison term he began serving in
Maricopa County Superior Court No. CR-00-092448B in September
2005. During the change-of-plea hearing, when the trial court
explained to Goldin the sentence was consecutive, trial counsel
Thomas Hippert interjected that the sentence “goes back to the time




      1 The   Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and our supreme court.



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                         STATE v. GOLDIN
                         Opinion of the Court

of his arraignment,” and “it does run from I think May of 2010.” 2
The court did not pursue the issue further.

¶3           At the sentencing hearing on January 31, 2013, the
parties submitted an addendum to the plea agreement, which stated:
“Pursuant to A.R.S. § 13-712(b) and ARCP Rule 26.10(4), the parties
stipulate that the Court shall order that Defendant’s pretrial
incarceration dating from his Arraignment on June 15, 2010 be
credited against his sentence of imprisonment . . . .” The trial court
sentenced Goldin to the eleven-year prison term, and granted him
988 days of presentence incarceration credit. In imposing that term,
the court confirmed the sentence was consecutive to the sentence in
the Maricopa County case, but added, “which, as the parties have
indicated on the record today, by stipulation, that date is to start to
commence from June 15, 2010. At this point, I understand that the
presentence report author has calculated 988 days.”

¶4             A year later, on February 10, 2014, Goldin filed a pro se
notice of post-conviction relief. On the form notice, he checked the
space to reflect he was not asserting a claim of ineffective assistance
of counsel.        He also requested that Hippert and Raymond
Panzarella, the second attorney who had represented him, be
appointed in the post-conviction proceeding. In the paragraph
pertaining to an untimely notice, however, the form required Goldin
to specify whether he intended to raise a claim pursuant to Rule
32.1(d), (e), (f), (g) or (h); Goldin did not check the space indicating
“yes” or “no.” The trial court dismissed the notice as untimely,
noting Goldin had “failed to indicate in his Notice that an exception
to a timely Notice applied. Ariz. R. Crim. P. 32.2(b).” See Ariz. R.
Crim. P. 32.4(a) (notice of post-conviction relief must be filed within
ninety days of sentencing).

¶5            On February 27, Goldin filed a form petition for post-
conviction relief, in propria persona, in which he stated he wished to
assert a claim pursuant to Rule 32.1(c). He also filed a motion to
clarify his sentence. The state filed its response to the petition and
motion on March 13. On March 19, the trial court entered an order

      2The   actual date of Goldin’s arraignment was June 15, 2010.


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                         STATE v. GOLDIN
                         Opinion of the Court

stating it lacked “jurisdiction to address the Petition” and the
accompanying memorandum because the untimely notice with
which it was associated had been dismissed and no new notice of
post-conviction relief had been filed. Goldin did not seek review of
that ruling.

¶6           On April 16, 2014, Goldin filed a second pro se notice of
post-conviction relief. In that notice he stated he was asserting a
claim of IAC and requested the appointment of counsel. He also
indicated that he was raising claims of newly discovered material
facts and that failure to file a timely notice of post-conviction relief
was without fault on his part. Goldin asserted in the notice that
Hippert and Panzarella had told him his sentence would commence
in 2010 but he had learned it commences in 2016.

¶7          The trial court appointed Paul Banales to represent
Goldin. In a petition Banales filed in October 2014, Goldin asserted
that, based on erroneous assurances from Hippert and Panzarella,
he had believed his sentence “would start to run as of May of 2010.”
Goldin relied, in part, on Hippert’s statements during the change-of-
plea hearing and correspondence with Hippert, who confirmed he
had understood the sentence would “start” in May or June of 2010.
Goldin argued he recently had learned of a discrepancy between his
understanding of when his sentence commenced and what the
Arizona Department of Corrections (DOC) had told him, which was,
according to Goldin, that the sentence “would not start to run until
September of 2013.”

¶8             The state argued in its response to the petition that the
IAC claim was precluded because Goldin had not raised it in the
first post-conviction proceeding and, alternatively, the claim was
untimely. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(a). The state also
argued that no claim had been or could be raised pursuant to Rule
32.1(e) or (f), refuting the merits of such claims had they been raised;
the state argued, too, that Goldin had asserted no meritorious reason
for failing to raise such claims in the initial proceeding or in a timely
manner.       See Ariz. R. Crim. P. 32.2(b) (requiring defendant
attempting to raise claim under Rule 32.1(d), (e), (f), (g) and (h) in
successive or untimely proceeding to establish meritorious reasons
why not raised in timely or previous proceeding).

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                        STATE v. GOLDIN
                        Opinion of the Court

¶9            In his reply, Goldin again asserted he had
misunderstood his sentence because of the ineffectiveness of his
attorneys, and explained he had failed to raise the IAC claim in a
timely or previous proceeding because he only recently had learned
he had such a claim. He then argued he was entitled to relief based
on newly discovered evidence pursuant to Rule 32.1(e) both as an
independent claim and interrelated with the IAC claim. 3 Goldin
concluded in his reply, “Whether Defendant’s claim is based on IAC,
or newly-discovered evidence, there are those exceptional cases
which deserve post-conviction consideration, even if the defendant
failed to raise IAC in his first Rule 32 Notice.”

¶10         Over the state’s objection, the trial court set the matter
for an evidentiary hearing.      A DOC employee in the Time
Computation Unit testified at that hearing that Goldin’s Maricopa
County sentence would be completed in June 2016, and the
consecutive sentence in this case then would commence. He
explained that to apply 988 days’ credit to the eleven-year sentence,
the sentence-commencement date essentially is back-dated so that it
would, for time-calculation purposes, begin January 31, 2013, and
would be completed on September 17, 2024.

¶11         Hippert and Panzarella testified that although the plea
agreement provided and the trial court had imposed a consecutive
prison term, they had believed Goldin essentially would begin
serving his sentence from the time of his arraignment in 2010
because of the nearly three years’ presentence incarceration credit.
Both attorneys believed this was the import and intent of the
addendum to the plea agreement. And, they testified, this is what
they had told Goldin.4




      3 Goldin also argued, as an independent claim, that the
sentence was illegal because he was entitled to the credit by statute;
he has since expressly abandoned that claim.
      4 In
         this regard, Hippert testified, “So if I made a mistake,
that’s what Mr. Goldin was told.” Panzarella testified he and
Hippert told Goldin that even though he had agreed to the

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                         STATE v. GOLDIN
                         Opinion of the Court

¶12          Goldin testified consistently with Hippert and
Panzarella about what they had told him. He conceded he had
stipulated to a consecutive prison term and neither the plea
agreement nor the addendum stated he would begin serving his
sentence in May or June of 2010, although he believed the sentence,
in effect, would be partially concurrent because of the presentence
incarceration credit. He testified further that, had he known he
would not begin serving the eleven-year term until June 2016, and
would have to serve eight more years, not five, after receiving the
three years’ credit, he would not have accepted the plea agreement.

¶13          Goldin also testified he did not recognize an issue with
his sentence until he sought transfer to minimum security, which
required a calculation of the amount of time remaining on both
prison terms. When he wrote to Hippert telling him what DOC had
told him, Hippert said he should “write a Rule 32” about DOC’s
miscalculation of his sentence.5 Goldin explained that this advice
caused him to file the first notice of post-conviction relief, followed
by a petition and motion for clarification of the sentence. He
testified that it was not until the state filed its response that he
realized DOC had not miscalculated the sentence, but that his
attorneys had given him incorrect information. At that time, he filed
the second notice and petition raising the IAC claim. After taking
the matter under advisement, the trial court denied Goldin’s
petition. This petition for review followed.




consecutive prison term, he would begin serving his prison term in
this case in June 2010 because of the three years’ credit.
      5Goldin   attached to his Rule 32 petition an undated letter from
Hippert responding to Goldin’s inquiry about the sentence in light
of DOC’s calculations. In that letter, Hippert stated the eleven-year
sentence began in June 2010, that Goldin only had five more years to
serve after the term on the other case ended, and the sentence in this
case would end in 2021. Hippert directed Goldin to file a “rule 32
yourself back to the sentencing judge . . . as to miscalculation of time
served.”


                                   6
                         STATE v. GOLDIN
                         Opinion of the Court

                              Discussion

¶14            In his petition for review, Goldin argues the trial court
erred by finding precluded his IAC claim based on newly
discovered evidence. But IAC claims fall under Rule 32.1(a). See,
e.g., State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010);
Ariz. R. Crim. P. 32.1(a) cmt. (acknowledging ineffective-assistance-
of-counsel claims fall under this subsection). As a claim that falls
under Rule 32.1(a), Goldin’s IAC claim had to be raised in a timely
notice, that is, within ninety days of sentencing; Goldin’s first notice,
filed over a year after he was sentenced, clearly was untimely, unless
excused. See Ariz. R. Crim. P. 32.4(a). Furthermore, IAC claims may
not be raised in a successive proceeding. See State v. Swoopes, 216
Ariz. 390, ¶¶ 23-24, 166 P.3d 945, 952-53 (App. 2007); see also State v.
Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) (“Our basic rule is
that where ineffective assistance of counsel claims are raised, or
could have been raised, in a Rule 32 post-conviction relief
proceeding, subsequent claims of ineffective assistance will be
deemed waived and precluded.”).

¶15          Neither the plain language of the rule nor case law
interpreting it prior to Diaz supports Goldin’s suggestion that
because of his attorneys’ ineffectiveness, his newly discovered IAC
claim should be excepted from the preclusive effect of Rule 32.2 and
32.4. Based solely on the rule, the trial court did not abuse its
discretion in finding the IAC claim precluded. See Swoopes, 216 Ariz.
390, ¶ 4, 166 P.3d at 948 (appellate court will not disturb ruling in
post-conviction proceeding absent clear abuse of discretion).

¶16          Nevertheless, in its draft decision provided to the
parties before oral argument, this court suggested the supreme
court’s recent decision in Diaz could be applicable to Goldin’s case.6

      6Although   Goldin did not raise Diaz below or here, that case
was published after his second petition was filed. Diaz, 236 Ariz.
361, 340 P.3d 1069. And because the state received the draft decision
prior to oral argument, it was given the opportunity, which it took,
to argue and provide legal authority to support its proposition that
Diaz is inapplicable to this case. See State v. Ortiz, No. 2 CA-CR 2014-
0330, ¶ 71, 2015 WL 6143128 (Ariz. Ct. App. Oct. 16, 2015)

                                   7
                         STATE v. GOLDIN
                         Opinion of the Court

In Diaz, the defendant’s first and second notices of post-conviction
relief were dismissed after different appointed counsel in both
proceedings failed to file a petition despite having been granted
several extensions to do so. 236 Ariz. 361, ¶¶ 3-4, 340 P.3d at 1070.
The trial court found the IAC claim Diaz raised in his third post-
conviction proceeding had been waived and was precluded, based
on the clear language of the rule and existing case law. We agreed
on review. Id. ¶ 5.

¶17           Our supreme court accepted Diaz’s petition for review
“to decide an important issue of law concerning waiver in Rule 32
proceedings.” Id. ¶ 6. The court noted that Diaz’s first Rule 32
notice was filed timely. Id. ¶ 11. It also acknowledged that a
defendant is precluded from raising a claim waived by his failure to
raise it in a previous post-conviction proceeding. Id. ¶ 1. But, the
court concluded, “Under the unusual facts of this case, Daniel Diaz
did not waive his ineffective assistance of trial counsel claim when,
through no fault of Diaz’s, his counsel failed to file petitions in two
prior post-conviction relief proceedings.” Id.

¶18            The supreme court reasoned that its “holding in this
peculiar scenario does not frustrate Rule 32’s preclusion provisions[,
which] . . . ‘require a defendant to raise all known claims for relief in
a single petition.’” Id. ¶ 12, quoting Petty, 225 Ariz. 369, ¶ 11, 238
P.3d at 641. The purpose of preclusion, the court observed, is to
“‘prevent endless or nearly endless reviews of the same case in the
same trial court.’” Id., quoting Stewart v. Smith, 202 Ariz. 446, ¶ 11,
46 P.3d 1067, 1071 (2002). The court concluded, “Permitting Diaz to
file his first petition to assert an IAC claim under the circumstances
here will not result in repeated review of the IAC claim; it would
result in its first review.” Id.

¶19         The state contended during oral argument that the
reasoning and holding in Diaz could completely undermine the rules
of preclusion if not strictly confined to very unusual cases.
However, the rule of law requires that “similarly situated litigants


(addressing issue not briefed when opposing party had opportunity
to address it at oral argument).


                                   8
                         STATE v. GOLDIN
                         Opinion of the Court

should be treated the same.” James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 540 (1991); see also Am. Trucking Assns., Inc. v. Smith, 496
U.S. 167, 214 (1990) (“The Court has no . . . authority . . . to disregard
current law or treat similarly situated litigants differently.”);
In re Fulton, 211 B.R. 247, 256 (Bankr. S.D. Ohio 1997) (“The very idea
of law connotes the same treatment for similarly situated persons for
indistinguishable factual situations.”); Gaines v. State, 998 P.2d 166,
173 (Nev. 2000) (“The Equal Protection Clause of the Fourteenth
Amendment mandates that all persons similarly situated receive like
treatment under the law.”).         This principle of equality is a
“fundamental component of stare decisis and the rule of law
generally,” and prevents a court “from pick[ing] and choos[ing]
among similarly situated defendants . . . who alone will receive the
benefit of a ‘new’ rule.” James B. Beam Distilling Co., 501 U.S.
at 537-38, quoting Desist v. United States, 394 U.S. 244, 258-59 (1969)
(Harlan, J., dissenting). Indeed, the “‘[d]ifferent treatment of two
cases is justified under our Constitution only when the cases differ
in some respect relevant to the different treatment.’” Griffith v.
Kentucky, 479 U.S. 314, 327 (1987), quoting Michigan v. Payne, 412 U.S.
47, 60 (1973) (Marshall, J., dissenting).         Therefore, we must
determine whether Goldin’s situation is sufficiently similar to Diaz’s
to merit applying Diaz’s reasoning to him.

¶20           The record establishes that both of Goldin’s attorneys
misinformed him concerning the functional length of his sentence,
rendering ineffective assistance. The prosecuting attorney also
contributed to the confusion. And, because of the improper advice,
the trial court’s colloquy at the change-of-plea hearing, which
followed the standard outline, was inadequate to properly inform
Goldin of the true effect of the sentencing provisions. See Ariz. R.
Crim. P. 17.2(b). Accordingly, based on this record, he pled guilty
without understanding the sentence being imposed. Ariz. R.
Crim. P. 17.1(b) (plea must be made intelligently and voluntarily);
see also State v. Cordova, 105 Ariz. 597, 598, 469 P.2d 82, 83 (1970)
(“due process requires a plea of guilty to be made voluntarily and
with understanding”); cf. State v. Lamas, 143 Ariz. 564, 567, 694 P.2d
1178, 1181 (1985) (plea could not be made voluntarily or intelligently
where trial court failed to fully inform defendant of all conditions
surrounding sentence).


                                    9
                         STATE v. GOLDIN
                         Opinion of the Court

¶21            Later, when Goldin told one of his attorneys that DOC
was miscalculating his sentence, that attorney told him to file a Rule
32 notice. But a miscalculation by DOC, without more, would not be
grounds for relief under Rule 32. See Ariz. R. Crim. P. 32.1(d) & cmt.
(post-conviction relief for miscalculated sentence only available
when petitioner would have been released already but for alleged
error); see also State v. Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App.
1985) (challenges to DOC time computation not cognizable under
Rule 32 “unless they result in the defendant remaining in custody
when he should otherwise be free”). And the attorney did not
inform Goldin that he would have to justify his untimely filing
under Rule 32.1(d)–(h).

¶22         When Goldin discovered that the problem was not a
DOC error, he filed his second notice and petition, arguing he had
received ineffective assistance. The trial court held an evidentiary
hearing during which the true facts concerning Goldin’s attorneys’
inadequate advice were revealed for the first time.

¶23          Based on Diaz, we cannot conclude that any of Goldin’s
actions or inaction could be construed as a waiver of his Rule 32
rights. Rather, just as in Diaz, Goldin was “blameless” and allowing
his claim to move forward would result in a “first review,” not
repeated review. 236 Ariz. 361, ¶¶ 11-12, 340 P.3d at 1071.

¶24            However, in Diaz, our supreme court noted the
petitioner had filed his first notice in a timely manner, and the
ensuing problems stemmed from his attorneys’ failures to file an
initial petition. Id. ¶ 11. Here, Goldin had ninety days to file his first
Rule 32 notice but did not file it until a year after he had been
sentenced. See Ariz. R. Crim. P. 32.4(a). The state argues Goldin
failed to file his notice in a timely fashion and that the time limits are
jurisdictional under A.R.S. § 13-4234(G), which states that an
untimely notice “shall be dismissed with prejudice.”

¶25         However, Rule 32.1(f) provides that a notice may be
considered timely if “[t]he defendant’s failure to file a notice of post-
conviction relief of-right or notice of appeal within the prescribed




                                   10
                         STATE v. GOLDIN
                         Opinion of the Court

time was without fault on the defendant’s part” 7 See also A.R.S.
§ 13-4231(6) (defendant may institute post-conviction proceeding if
the “failure to appeal from the judgment or sentence, or both, within
the prescribed time was without fault on his part.”); Osterkamp v.
Browning, 226 Ariz. 485, ¶ 24, 250 P.3d 551, 557 (App. 2011)
(pleading defendant’s first Rule 32 proceeding equivalent of non-
pleading defendant’s appeal); State v. Pruett, 185 Ariz. 128, 130-31,
912 P.2d 1357, 1359-60 (App. 1995). But, as the state argued, the trial
court was not asked to consider Rule 32.1(f) and did not do so.
Therefore, we remand to the trial court for that determination.

                             Disposition

¶26           As we observed in State v. Rosales, 205 Ariz. 86, ¶ 12, 66
P.3d 1263, 1267 (App. 2003), “The preclusion rules exist to prevent
multiple post-conviction reviews, not to prevent review entirely.”
And, “Rule 32 ‘is designed to accommodate the unusual situation
where justice ran its course and yet went awry.’” State v. Carriger,
143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), quoting State v. McFord,
132 Ariz. 132, 133, 644 P.2d 286, 287 (App. 1982). Such a situation
exists here. Based on the unusual circumstances of this case and
given our supreme court’s decision in Diaz, we are compelled to
grant Goldin’s petition for review and grant relief, in part. We
remand this matter to the trial court so that it may determine
whether Goldin’s initial post-conviction proceeding may be
regarded as timely filed pursuant to Rule 32.1(f) and, if so, to permit
him to present the IAC claim as though it had been raised in a timely
commenced, of-right proceeding. The issues on the merits having
been briefed and an evidentiary hearing having been conducted, the
court may determine on the existing record whether the apparently
deficient performance by Goldin’s attorneys was prejudicial, see
Strickland v. Washington, 466 U.S. 668, 687 (1984), or it may conduct
any further proceedings necessary.




      7Notably,   relief under Rule 32.1(f) was not available to Diaz
because he was a non-pleading defendant. State v. Diaz, 228 Ariz.
541, ¶ 2, 269 P.3d 717, 718 (App. 2012); see Ariz. R. Crim. P. 32.1(f).


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