Montgomery v. Sheldon , 181 Ariz. 256 ( 1995 )

OPINION

FELDMAN, Chief Justice.

These cases are before us on petitions for review from conflicting opinions of the court of appeals. The state petitioned for review of a decision granting special action relief in Montgomery v. Superior Court, 178 Ariz. 84, 870 P.2d 1180 (App.1993). A criminal defendant petitioned for review of a decision denying relief on the same issue in Campbell v. Superior Court, 178 Ariz. 193, 871 P.2d 740 (App.1994). We granted review and consolidated these cases for oral argument with two others raising the same substantive issue.¹ Ariz.R.Civ.App.P. 8(b). We have jurisdiction under Ariz. Const, art. 6, § 5(3).

FACTS AND PROCEDURAL HISTORY

The relevant facts in all eases are the same. After pleading guilty to various felonies and receiving prison sentences, each petitioner filed a notice of post-conviction relief (“PCR”) under Ariz.R.Crim.P. 32. The trial court appointed counsel to file a PCR petition for each petitioner within the sixty days allowed by Rule 32.4(c). In each case, counsel told the petitioner near the end of that period that there were no grounds for Rule 32 relief. Counsel also said, however, that each petitioner could still file a PCR petition on his own behalf. Toward that end, counsel filed motions requesting thirty-day extensions to permit the petitioners to file pro se petitions.

Each trial judge denied the request. The court of appeals granted Montgomery special action relief, holding that he had a right to file a PCR petition pro se and that appointed counsel’s eleventh-hour notification that he could find no colorable claims constituted “good cause” entitling him to an extension under Rule 32.4(c). Montgomery, 178 Ariz. at 86-88, 870 P.2d at 1182-84. Rejecting Montgomery, a divided department of the court of appeals reached the opposite conclusion on the same issue. Campbell, 178 Ariz. at 199, 871 P.2d at 746. We granted review to reconcile these divergent interpretations of Rule 32. See Ariz.R.Civ.App.P. 23(c)(4). Because we conclude that Montgomery correctly interpreted our constitution and Rule 32, we affirm that opinion and vacate the opinion in Campbell.

DISCUSSION

A. The Nature of a Rule 32 PCR Proceeding

Rule 32 provides that “any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief____” Ariz.R.Crim.P. 32.1. Although proeedurally distinct, Rule 32 proceedings and direct appeal are both devices for ensuring that every defendant receives due process of law. State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). Rule 32 provides that when a defendant timely files a notice of PCR, the trial court shall appoint counsel upon request. Ariz.R.Crim.P. 32.4(c). The rule requires the defendant or counsel to file a PCR petition within sixty days but contemplates a thirty-day extension on “a showing of good cause.” Id.

Our constitution guarantees that in “criminal prosecutions, the accused shall have ... the right to appeal in all cases.” Ariz. Const, art. 2, § 24. A defendant normally may exercise that right through a direct appeal. But under Ariz.R.Crim.P. 17.1(e) and 27.8(e), a defendant in a noncapital case who pleads guilty or admits a parole violation waives the right to a direct appeal. In accord with art. 2, § 24, however, those rules specifically allow the defendant to “seek review ... by filing a petition for post-conviction relief pursuant to Rule 32.” Ariz.R.Crim.P. 17.1(e), 27.8(e); Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) (“It was precisely because of art. 2, § 24 that this court expressly left open the avenue of appellate review by PCR in lieu of direct appeal when it amended the rules with respect to cases involving [guilty pleas].”). Thus, for such defendants, including the defendants in the cases before us, a Rule 32 proceeding is the only means available for exercising the constitutional right to appellate review. As we recently explained, “[t]hat right cannot be waived merely by a plea or admission.” Wilson, 176 Ariz. at 123, 859 P.2d at 746.²

B. Does a Defendant Have a Right to File a Pro Se Rule 32 Petition?

That then brings us to the basic ques-' tion: given a constitutional right to appellate review “in all cases,” is a defendant entitled to exercise that right pro se after appointed counsel declines to provide assistance?

Self representation is, of course, a fundamental constitutional right. Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985). We reject the notion, asserted by the state and accepted by the Campbell majority, that “Rule 32 creates an either/or choice” at the commencement of the proceeding to either proceed pro se or request counsel. Campbell, 178 Ariz. at 199, 871 P.2d at 746. If this were the rule, a defendant who chose to commence the proceeding through counsel, but whose counsel refused to proceed, would be unable to obtain appellate review. Nothing in the rule compels that result. Nor did we intend, when adopting the current rule, to so restrict a defendant’s constitutionally protected right to appellate review.³ Wilson, 176 Ariz. at 123, 859 P.2d at 746; see also State v. Birmingham, 95 Ariz. 310, 316, 390 P.2d 103, 107 (“The right to appeal is substantive. The rules promulgated by this Court ... may not diminish or augment substantive rights.”), on reh’g, 96 Ariz. 109, 392 P.2d 775 (1964). We do not so interpret the rule today. Nor do we customarily find the need when adopting a rule to explicitly disavow an intent to violate the constitution. Cf. dissent, post at 262 n. 2, 889 P.2d at 620 n. 2. It may, we think, be taken for granted that we intend to abide by the constitution.

Even if art. 2, § 24 would permit a contrary result, practical concerns support allowing a defendant to proceed pro se if appointed counsel refuses to pursue a PCR petition. As the dissent implicitly concedes, such a result is “practical and sensible.” That conclusion is a compelling factor in construing our rule. We cannot ignore the fact that even the most able lawyers occasionally fail to see arguable or even winning issues on appeal. See, e.g., State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980) (reversing capital conviction based on defendant’s supplemental pro se argument). Nor can we assume, unfortunately, that defendants always have competent lawyers. We agree that the “defendant having a right to access, counsel cannot unilaterally shut the courthouse door.” Campbell, 178 Ariz. at 200, 871 P.2d at 747 (Kleinsehmidt, J., dissenting).⁴

This approach finds further support in the procedure long utilized on direct appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which entitles a defendant to file a supplemental pro se brief if appointed counsel concludes an appeal has no merit. Although the defendant may raise fewer issues in a PCR proceeding than in a direct appeal, under art. 2, § 24 the right to present those issues for judicial review when appointed counsel declines to do so should be the same. We recognize, of course, that Anders was based on a defendant’s Fourteenth Amendment right to counsel in a first appeal and that there is no such right in state PCR proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). A Rule 32 proceeding followed by appellate review, however, is similar to a direct appeal for an Arizona defendant who pleads guilty. Because Rule 32.4(c) provides for appointment of counsel, Anders is persuasive insofar as it authorizes a defendant to proceed pro se if counsel finds no merit. Cf. Austin v. United States, — U.S. —, —-—, 115 S.Ct. 380, 381-82, 130 L.Ed.2d 219 (1994) (commenting on appointed counsel’s obligation not to file a frivolous certiorari petition and an indigent defendant’s right to prosecute an appeal).

That is not to say, however, that an Anders-like review for fundamental error is required whenever a defendant exercises the right to file a PCR petition. We reject that idea, as we have before. Wilson, 176 Ariz. at 124, 859 P.2d at 747 (“[We] are not corn-manding, nor do we want, trial courts to conduct Anders-type reviews in PCRs.”); State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984) (noting that Anders does not require fundamental error review at every level of the appellate process).⁵ To the contrary, we hold only that if counsel refuses to proceed, a pleading defendant has a right under Ariz. Const, art. 2, § 24 to file a pro se PCR petition. Trial courts should treat such petitions like any other and may, if appropriate, summarily dismiss them under Ariz. R.Crim.P. 32.6(c).⁶ Wilson, 176 Ariz. at 124, 859 P.2d at 747.

C. The Mix-Up over Hybrid Representation

The state claims that recognizing a defendant’s constitutional right to file a pro se PCR petition violates the “prohibition” against hybrid representation. We disagree. Although there is no constitutional right to hybrid representation, the trial court has discretion to permit it in limited circumstances. State v. Cornell, 179 Ariz. 314, 325 n. 2, 878 P.2d 1352, 1363 n. 2 (1994). We need not address the narrow scope of that discretion here, however, because no hybrid representation occurs when counsel declines to file a PCR petition and a defendant proceeds pro se. Hybrid representation is concurrent representation by both counsel and defendant— not consecutive representation. Id. at 325, 878 P.2d at 1363. Although counsel in these eases did not formally withdraw, for all practical purposes their representation ended when they refused to submit PCR petitions.⁷ It is not concurrent representation when appointed counsel refuses to file a PCR petition and the defendant then files a pro se petition.

Nor do these cases involve alternate representation, a form of hybrid representation occurring when a defendant switches back and forth between representation by counsel and self-representation. See Cornell, 179 Ariz. at 325-26, 878 P.2d at 1363-64. The state mistakenly relies in this regard on State v. Stone, which held only that a defendant has no “right to have his case presented in court both by himself and by counsel acting alternately.” 122 Ariz. 304, 307, 594 P.2d 558, 561 (App.1979) (emphasis added). Here, in contrast, appointed counsel never presented a case for the defendants; albeit for arguably appropriate reasons. In such cases, a subsequent pro se filing does not involve alternate hybrid representation.

D. Is Appointed Counsel’s Late No Merit Notification “Good Cause?”

Ariz.R.Crim.P. 32.4(c) provides:

In non-capital eases, appointed counsel for the defendant shall have sixty days from the date of appointment to file a petition raising claims under Rule 32.1____ On a showing of good cause, a defendant in a non-capital case may be granted a thirty day extension within which to file.

We believe that good cause exists in each of these cases. Absent a finding of dilatory tactics or other abuse, there is good cause under Rule 32.4(c) when appointed counsel does not indicate an intent not to file a PCR petition until well into the initial sixty-day period.⁸ Trial courts, therefore, should grant defendants an appropriate extension upon such a showing. Only then can defendants fully enjoy the access to appellate review that art. 2, § 24 guarantees. Misapprehending the legal issue, the trial courts here did not act within their discretion in refusing to grant the requested extensions.

CONCLUSION

Ariz. Const, art. 2, § 24 guarantees all criminal defendants some form of appellate review. Because a Rule 32 PCR proceeding is the only way a defendant can exercise that right after pleading guilty, such a defendant has a constitutional right to file a pro se PCR petition if appointed counsel refuses to do so. A late finding by counsel that no colorable claim for relief exists is good cause entitling a defendant to a thirty-day extension under Rule 32.4(c). We therefore vacate the decision in Campbell and order the trial court to grant Campbell a thirty-day extension to file a pro se petition. We approve the opinion in Montgomery as modified by this opinion.⁹

MOELLER, V.C.J., and CORCORAN and ZLAKET, JJ., concur.

1 . Brooks v. Superior Court, Ariz.Sup.Ct. No. CV-94-0298-PR; Harris v. Superior Court, Ariz.Sup. Ct. No. CV-93-0392-PR.

2 . Contrary to the dissent’s view, post at 262, 889 P.2d at 620, we have never held, and we do not hold today, that a pleading defendant cannot waive his right to a direct appeal consistent with art. 2, § 24. Both Wilson and this case, however, involve only Rule 32 proceedings, a distinct form of appellate review. See Wilson, 176 Ariz. at 125, 859 P.2d at 748 (Martone, J., dissenting) ("Collateral review by way of Rule 32 ... does, however, provide a safeguard against defective plea or admission proceedings.”). As noted, the waiver provisions in Rules 17.1 and 27.8 specifically exclude Rule 32 proceedings. The dissent’s primer on the propriety of waiving a direct appeal, although informative, is therefore irrelevant. And its claim that we somehow equate waiver with postponement is neither relevant nor correct. These defendants waived their right to direct appeal by pleading guilty. But as we held in Wilson, because of art. 2, § 24 this is not equivalent to waiving all appellate review. Hence our opinion is not based on any “assumption” except the principle of law established by our most recent case on the subject. Evidently the dissent is unwilling to concede that Wilson is the law. It is, although not everyone agrees with it. See id. at 124-25, 859 P.2d at 747—48 (Mar-tone, J., dissenting). We see no purpose in reopening the Wilson debate in every subsequent case and thus end it here.

3 . We substantially revised Rule 32 in 1992. The former version required a defendant to file his own PCR petition raising claims of error. The defendant could then request that counsel be appointed to supplement and refine the pro se petition. Significantly, we note that under the former rule, counsel’s refusal to supplement a petition did not prevent the defendant from proceeding pro se. Our purpose in adopting the current rule was to expedite the procedure for exercising the constitutional right to appellate review "in all cases.” We did not intend, sub silentio, to abolish that right in some cases. The dissent’s view, post at 262, 889 P.2d at 620, of what the court intended in Wilson or by the amendment of the rule is just that: the dissent’s view, not the court’s intent then or now.

4 . The state erroneously cites Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), for the proposition that after electing to be represented by counsel, a defendant "may no longer represent himself” and must accept the decisions of counsel. Coleman is silent on continued self-representation and holds only that counsel’s acts in state PCR proceedings bind a defendant for purposes of habeas corpus procedural default. Indeed, the fact that claims not properly preserved in state post-conviction proceedings may be defaulted in federal habeas review strengthens our conclusion that a defendant must be able to proceed pro se when appointed counsel is unable or refuses to raise any issues.

5 . There is some confusion about whether the court of appeals must review the record for fundamental error when a pleading defendant petitions for review of a trial court’s denial of post-conviction relief. See State v. Whipple, 177 Ariz. 272, 273 n. 3, 866 P.2d 1358, 1359 n. 3 (App. 1993). Because Rule 32 review is analogous to a direct appeal for a pleading defendant, the court of appeals must review for fundamental error when considering a petition for review from denial of post-conviction relief by a pleading defendant. The court may, of course, deny the petition by summary order if it finds no such error. The court of appeals should, however, state in its order denying review that it has examined the record for fundamental error and found none. A.R.S. § 13-4035.

6 . Nothing in this opinion, however, should be read as' discouraging trial courts from sua sponte reviewing the record in plea proceedings if they believe such review is warranted, e.g., if it appears no factual basis supported a guilty plea.

7 . Counsel candidly conceded at oral argument that formal withdrawal is the correct procedure under Ariz.R.Crim.P. 6.3(b) and stated that they would seek to do so in the future. Nevertheless, when requesting thirty-day extensions in these cases counsel made it "crystal clear” to their clients and the trial courts that they would no longer assist in the PCR proceedings.

8 . Nothing in this opinion nor in Wilson supports the dissent’s view that the court has rejected "the new Rule 32 by adding language that is not there.” Post at 263, 889 P.2d at 621. To the contrary, both here and in Wilson we have only interpreted the language of the rule in accord with art. 2, § 24, as we are obligated to do. In this case we considered the rule’s express "good cause” provision and concluded that it was satisfied. The dissent apparently does not dispute that conclusion.

9 . The issue in Montgomery is moot. After obtaining a thirty-day extension below, Montgomery did not file a Rule 32 petition. We therefore do not disturb the trial court’s order.