State of Arizona v. Daniel Diaz

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Respondent,
v.
DANIEL DIAZ,
Petitioner,
No. CR-14-0063-PR
Filed December 30, 2014
Appeal from the Superior Court in Cochise County
The Honorable Charles A. Irwin, Judge
No. CR-200700013
VACATED AND REMANDED
Memorandum Decision of the Court of Appeals, Division Two
No. 2 CA-CR 2013-0387-PR
VACATED
COUNSEL:
Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals
Section, Phoenix, Jonathan Bass, Assistant Attorney General, Tucson;
Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, for State of Arizona
Emily Danies, Attorney at Law, (argued) Tucson, for Daniel Diaz
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER and JUSTICES BERCH
and BRUTINEL joined.
JUSTICE TIMMER, opinion of the Court:
¶1 A criminal defendant cannot obtain post-conviction relief
based on a ground that has been waived in a prior post-conviction relief
proceeding. Ariz. R. Crim. P. 32.2(a)(3). Under the unusual facts of this
STATE v. DIAZ
Opinion of the Court
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.
I. BACKGROUND
¶2 Before his 2007 conviction for possession of
methamphetamine for sale, Diaz rejected two plea offers to stipulate,
respectively, to prison terms of nine or fifteen years, after his trial attorney
advised him that his presumptive sentence would be ten years and his
maximum sentence would be fifteen years. The superior court ultimately
sentenced Diaz to an aggravated prison term of twenty-five years, and this
Court affirmed Diaz’s conviction and sentence. State v. Diaz, 224 Ariz. 322,
323 ¶ 3, 325 ¶ 18, 230 P.3d 705, 706, 708 (2010).
¶3 Diaz filed a notice of post-conviction relief (“PCR”), but the
trial court dismissed the proceeding with prejudice after his new attorney
failed to timely file a petition, despite receiving several extensions of the
filing deadline. The court of appeals granted review but denied relief. State
v. Diaz, 2 CA-CR 2010-0300-PR, at *1 ¶ 1 (Ariz. App. Jan. 21, 2011) (mem.
decision).
¶4 Diaz filed a second PCR notice through a different attorney.
As in the initial PCR proceeding, the trial court dismissed the matter with
prejudice when Diaz’s attorney failed to file a petition after obtaining
several extensions of time. The court of appeals granted review but denied
relief, although it acknowledged the procedural injustice to Diaz and
referred both PCR attorneys to the State Bar of Arizona for potential
discipline. State v. Diaz, 228 Ariz. 541, 542 ¶ 1, 543 ¶ 7, 545 ¶ 12, 269 P.3d
717, 718, 719, 721 (App. 2012).
¶5 After Diaz initiated his third PCR proceeding, a third PCR
attorney timely filed Diaz’s first PCR petition, which alleged that trial
counsel’s ineffective assistance led Diaz to reject the State’s plea offers and
proceed to trial. The trial court summarily denied the petition after finding
that Diaz’s ineffective assistance of counsel (“IAC”) claim was precluded
because the claim had been both waived and finally adjudicated on the
merits in a prior PCR proceeding. See Ariz. R. Crim. P. 32.2(a) (listing
grounds for preclusion). The court of appeals granted review but denied
relief, reasoning that Diaz waived his claim pursuant to Rule 32.2(a)(3).
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STATE v. DIAZ
Opinion of the Court
State v. Diaz, 2 CA-CR 2013-0387-PR, at *2 ¶¶ 6–7 (Ariz. App. Feb. 13, 2014)
(mem. decision).
¶6 We granted review to decide an important issue of law
concerning waiver in Rule 32 proceedings. We have jurisdiction pursuant
to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.
II. DISCUSSION
¶7 Rule 32.2(a)(3) precludes defendants from relief “based upon
any ground . . . waived . . . in any previous collateral proceeding.” See also
A.R.S. § 13-4232(B) (same). The state must prove waiver by a
preponderance of the evidence. Ariz. R. Crim. P. 32.2(c). We review the
interpretation and application of Rule 32.2(a)(3) de novo as an issue of law.
See State v. Gutierrez, 229 Ariz. 573, 576–77 ¶ 19, 278 P.3d 1276, 1279–80
(2012).
¶8 PCR counsel can waive most claims of trial error on the
defendant’s behalf by failing to assert them in a PCR petition. Stewart v.
Smith, 202 Ariz. 446, 449 ¶ 9, 46 P.3d 1067, 1070 (2002). If the claim is of
“sufficient constitutional magnitude,” however, the state must prove that
the defendant knowingly, voluntarily, and intelligently waived the claim.
Id. at 449–50 ¶¶ 9–10, 46 P.3d at 1070–71; see also Ariz. R. Crim. P. 32.2, cmt.
(“[S]ome issues not raised . . . in a previous collateral proceeding may be
deemed waived without considering the defendant’s personal knowledge,
unless such knowledge is specifically required to waive the constitutional
right involved.”).
¶9 Whether a defendant must personally waive an IAC claim to
warrant preclusion under Rule 32.2(a)(3) depends on the particular right
implicated by the allegedly ineffective representation. Stewart, 202 Ariz. at
450 ¶ 12, 46 P.3d at 1071. The defendant must personally waive an IAC
claim only if the attorney’s alleged defective performance affected a right
of sufficient constitutional magnitude. Id.; State v. Swoopes, 216 Ariz. 390,
399 ¶ 28, 166 P.3d 945, 954 (App. 2007) (“[T]o avoid preclusion, a defendant
must show a constitutional right is implicated, one that can only be waived
by a defendant personally.”). The IAC claim here does not implicate such
a right because defendants do not have a constitutional right to a plea
bargain. See Rivera-Longoria v. Slayton, 228 Ariz. 156, 158 ¶ 10, 264 P.3d 866,
868 (2011).
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STATE v. DIAZ
Opinion of the Court
¶10 Nevertheless, as the State commendably acknowledged at
oral argument in this Court, this case presents unusual circumstances that
compel a conclusion that Diaz did not waive his IAC claim.1 Although
defendants have a constitutional right to appeal, Ariz. Const. art. 2, § 24,
they may not present an IAC claim until the first PCR proceeding, State v.
Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). This is not a case in which
a defendant fails to timely file a pro per PCR petition after PCR counsel filed
a notice stating that counsel could not find any meritorious claims. Rather,
despite Diaz’s efforts to assert an IAC claim, he was deprived of that
opportunity through no fault of his own. He timely filed a notice of PCR to
raise an IAC claim, but his former PCR attorneys failed to file a petition to
enable adjudication of the claim. Cf. Canion v. Cole, 210 Ariz. 598, 600 ¶ 11,
115 P.3d 1261, 1263 (2005) (noting that a PCR petition triggers consideration
of PCR claims and related discovery requests).
¶11 The petition filed by Diaz’s current counsel was the first PCR
petition filed on Diaz’s behalf. Because Diaz timely filed a notice of PCR
seeking to assert an IAC claim, and he was blameless regarding his former
attorneys’ failures to file an initial PCR petition, we will not deem his IAC
claim waived pursuant to Rule 32.2(a)(3). Cf. Ariz. R. Crim. P. 1.2 (requiring
construction of rules “to secure . . . fairness in administration . . . and to
protect the fundamental rights of the individual while preserving the public
welfare.”).
¶12 Our holding in this peculiar scenario does not frustrate Rule
32’s preclusion provisions. Preclusion is designed to “require a defendant
to raise all known claims for relief in a single petition,” State v. Petty, 225
Ariz. 369, 373 ¶ 11, 238 P.3d 637, 641 (App. 2010) (citation and internal
quotation marks omitted), and thereby “prevent endless or nearly endless
reviews of the same case in the same trial court,” Stewart, 202 Ariz. at
450 ¶ 11, 46 P.3d at 1071. 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. Once the petition
is adjudicated, and assuming that Diaz does not obtain relief, this and all
1 The procedural unfairness here could have been avoided by the trial
court had it chosen to sanction Diaz’s former PCR attorneys rather than
dismiss the PCR proceedings. We encourage trial courts to fashion
remedies for defense counsel’s failures to follow time deadlines in a way
that does not punish a blameless defendant.
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STATE v. DIAZ
Opinion of the Court
other claims that Diaz might have brought will be precluded and Diaz will
not be able to raise them in a successive petition. Cf. id. (“If the merits were
to be examined on each petition, Rule 32.2 would have little preclusive
effect and its purpose would be defeated.”).
¶13 In sum, because former counsel failed to file any petition in
Diaz’s previous PCR proceedings and those failures were not Diaz’s fault,
he did not waive his IAC claim. The trial court therefore erred by
dismissing Diaz’s PCR petition pursuant to Rule 32.2(a)(3). In addition,
because, through no fault on Diaz’s part, the trial court did not adjudicate
the merits of the IAC claim in a previous PCR proceeding and the merits
could not have been adjudicated absent a petition, the court erred by
alternatively precluding the petition pursuant to Rule 32.2(a)(2).
III. CONCLUSION
¶14 We vacate the court of appeals’ decision, vacate the trial
court’s order, and remand the case to the trial court for further proceedings
consistent with this opinion.
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