State v. Smith

MARTONE, Justice,

concurring in the judgment.

The court of appeals correctly read our cases. The majority changes course here. In Wilson v. Ellis, 176 Ariz. 121, 124, 859 P.2d 744, 747 (1993), Montgomery v. Sheldon, 181 Ariz. 256, 261, 889 P.2d 614, 619 (1995) [Montgomery I], and Montgomery v. Sheldon, 182 Ariz. 118, 121, 893 P.2d 1281, 1284 (1995) [Montgomery II ], I expressed in dissent my view that the right to appeal, as guaranteed by the constitution, can be waived, and that this court has needlessly constitutionalized Rule 32 proceedings. I join in the judgment because, having waived the right to appeal, there is no right to appointed counsel. I cannot join the court’s opinion because it restates the conceptual incongruity of the majority’s original design.

The majority tries to solve the dilemma its eases create by changing its view on whether its analogous constitutional right to appellate review is satisfied by Rule 32 proceedings in the trial court or in the court of appeals. In Wilson, the majority said “we are not commanding, nor do we want, trial courts to conduct Anders-type reviews in PCRs.” 176 Ariz. at 124, 859 P.2d at 747. (Emphasis added). In Montgomery I the majority said “[b]ecause 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.” 181 Ariz. at 260 n. 5, 889 P.2d at 618 n. 5. (Emphasis added).

But today, the court holds that “the trial court provides the pleading defendant a form of post-conviction appellate review via motion under Rule 32.” Ante, at 458, 910 P.2d at 3. (Emphasis added). It says further that “a Rule 32 petition for post-conviction relief in the trial court is ‘analogous to a direct appeal for a pleading defendant.’ ” Id. (Emphasis added). Based upon this understanding, the court goes on to hold that the right to appointed counsel does not extend to “Rule 32 proceedings beyond the trial court’s mandatory consideration and disposition of the PCR.” Ante, at 459, 910 P.2d at 4.

The majority acknowledges that Montgomery I held that the court of appeals (and not the trial court) had to review for fundamental error on petition for review from the denial of post-conviction relief. Ante, at 459-460, 910 P.2d at 4-5. The majority now says that because the legislature repealed A.R.S. § 13-4035 “such review is no longer required.” Id. at 460, 910 P.2d at 5. But, if it was the trial court all along that provided appellate review, then that court, and not the court of appeals, had the obligation under former A.R.S. § 13-4035 to engage in fundamental error review. Furthermore, Montgomery I held that the court of appeals had to review for fundamental error not only because of A.R.S. § 13-4035, but also “[bjecause Rule 32 review is analogous to a direct appeal for a pleading defendant.” 181 Ariz. at 260 n. 5, 889 P.2d at 618 n. 5. Montgomery II was even more explicit:

Consistent with Ariz. Const, art 2, § 24 and A.R.S. § 13-4035, the court of appeals must examine the record before it for fundamental error when a pleading defendant petitions for review from the denial of a Rule 32 petition.

182 Ariz. at 120, 893 P.2d at 1283. The majority seemed to be saying that in addition to § 13-4035, the constitution imposed upon the court of appeals the obligation to review for fundamental error. I understood the majority to be referring to those cases in which an Anders review was otherwise constitutionally required. The repeal of § 13-4035 could not change that, as the majority now says it does. Ante, at 460, 910 P.2d at 5.

So we are still left with uncertainty. A Rule 32 proceeding in the trial court is a constitutionally required form of appellate review, but neither that court, Wilson v. Ellis, 176 Ariz. at 124, 859 P.2d at 747, nor the court of appeals, ante, at 459—460, 910 P.2d at 4-5, need perform a fundamental error review. If, as the majority says, “the trial court performs the initial appellate review providing the only appeal as of constitutional right from the plea or admission,” ante, at 460, 910 P.2d at 5, but the trial court need not perform a review even where constitutionally required under Anders, Wilson, 176 Ariz. at 124, 859 P.2d at 747, then the majority is properly evolving toward an understanding that a Rule 32 proceeding, wherever located, is not a constitutionally required form of appellate review for pleading defendants. The abandonment of Wilson’s erroneous interpretation of State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979) would be a more direct approach to this inevitable conclusion. Wilson, 176 Ariz. at 124, 859 P.2d at 747 (Martone, J., dissenting).