Jacob T. Osterkamp v. State of Arizona ( 2011 )

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA FEB 25 2011
DIVISION TWO
COURT OF APPEALS
DIVISION TWO
JACOB T. OSTERKAMP, )
)
Petitioner, )
)
v. ) 2 CA-SA 2010-0091
) DEPARTMENT B
HON. CHRISTOPHER BROWNING, Judge )
of the Superior Court of the State of Arizona, ) OPINION
in and for the County of Pima, )
)
Respondent, )
)
and )
)
THE STATE OF ARIZONA, by and through )
the Pima County Attorney, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause Nos. CR20040659, CR20033788, and CR20091842001
JURISDICTION ACCEPTED; RELIEF GRANTED
Isabel G. Garcia, Pima County Legal Defender
By Joy Athena Tucson
Attorneys for Petitioner
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Real Party in Interest
V Á S Q U E Z, Presiding Judge.
¶1 In this special action, petitioner Jacob Osterkamp challenges the respondent
judge‟s order denying his request for counsel in the underlying post-conviction
proceeding. For the reasons stated below, we accept jurisdiction and hold that Rule 32.4,
Ariz. R. Crim. P., entitles an indigent, pleading defendant to the appointment of counsel
in the defendant‟s second, timely filed post-conviction proceeding so that he may
investigate and possibly assert a claim that counsel in the defendant‟s first, “of-right”
post-conviction proceeding had rendered ineffective assistance.
BACKGROUND
¶2 The following facts are either undisputed or established by the scant record
with which we have been provided. Pursuant to a plea agreement in three causes,
Osterkamp was convicted of three felonies and sentenced to a combination of consecutive
and concurrent aggravated prison terms. He sought post-conviction relief pursuant to
Rule 32, and the respondent judge granted him partial relief.
¶3 Within thirty days of the July 2010 minute entry order granting Osterkamp
partial relief, he filed a second notice of post-conviction relief, which the respondent
dismissed summarily. Osterkamp requested that the respondent reinstate the post-
conviction proceeding in light of this court‟s recent decision in State v. Petty, 225 Ariz.
369, 238 P.3d 637 (App. 2010). Osterkamp also requested that counsel be appointed to
represent him. The respondent reinstated the post-conviction proceeding but, stating he
was “[e]xercising [his] discretion,” denied Osterkamp‟s request for counsel. Osterkamp
filed a motion for reconsideration, which the respondent denied, apparently staying the
post-conviction proceeding while Osterkamp sought special action relief from this court.
2
SPECIAL ACTION JURISDICTION
¶4 We accept jurisdiction of this special action for several reasons. First, the
challenged order is interlocutory and Osterkamp has no “equally plain, speedy, and
adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1; see Potter v. Vanderpool, 225
Ariz. 495, ¶ 7, 240 P.3d 1257, 1260 (App. 2010) (appropriate to accept special action
jurisdiction to review interlocutory order); cf. J.A.R. v. Superior Court, 179 Ariz. 267,
272, 275-78, 877 P.2d 1323, 1328, 1331-34 (App. 1994) (accepting jurisdiction of denial
of motion to intervene and addressing, inter alia, whether child party entitled to
independent counsel and counsel of choice); Okeani v. Superior Court, 178 Ariz. 180,
181, 871 P.2d 727, 728 (App. 1993) (finding order denying counsel‟s motion to withdraw
proper subject for special action review). Second, even assuming Osterkamp could raise
this issue in a petition for review of the final order ultimately entered in the underlying
proceeding, see Ariz. R. Crim. P. 32.9, such a review is not the same as a direct appeal.
See A.R.S. § 13-4033(A) (identifying orders from which defendant in criminal action
may seek direct appeal as matter of right); State v. Whipple, 177 Ariz. 272, 274 & n.4,
866 P.2d 1358, 1360 & n.4 (App. 1993) (citing Rule 32.9(f) and noting review of order in
post-conviction proceeding by appellate court discretionary).
¶5 But even assuming the review of a final order entered in a post-conviction
proceeding obtained pursuant to Rule 32.9 is substantively indistinguishable from review
by direct appeal, that review nevertheless would be inadequate here. See Ariz. R. P.
Spec. Actions 1 (special action jurisdiction should be accepted when remedy by appeal
not “equally plain, speedy, and adequate”). As Osterkamp correctly points out, if the
3
case is permitted to proceed, once a final order is entered, he will have been deprived of
the assistance of counsel and the damage will have been done. Cf. Washington v.
Superior Court, 180 Ariz. 91, 93, 881 P.2d 1196, 1198 (App. 1994) (accepting special
action jurisdiction, finding remedy of post-conviction proceeding inadequate because
probationer would have served period of incarceration while proceeding was pending).
Osterkamp also is at risk for further prejudice because in any successive proceeding, he
will be precluded from raising any claim that he did not raise but could have raised in this
proceeding, and perhaps would have raised had he been provided with counsel‟s
assistance. See Ariz. R. Crim. P. 32.2(a)(3) (precluding defendant from obtaining relief
based on claim waived “in any previous collateral proceeding”); see also State v. Shrum,
220 Ariz. 115, ¶¶ 5-6, 12, 203 P.3d 1175, 1177-78 (2009) (noting “preclusive effect of
the dismissal of [defendant]‟s first [Rule 32] proceeding” on claim of illegal sentence;
finding rule precludes relief on ground raised or that could have been raised on direct
appeal or previous Rule 32 proceeding); Petty, 225 Ariz. 369, ¶ 10, 238 P.3d at 640
(acknowledging “Rule 32.2(a) states the general rule of preclusion” and finding
defendants may not seek relief based on claim raised or that could have been raised);
State v. Swoopes, 216 Ariz. 390, ¶¶ 23-25, 166 P.3d 945, 952-53 (App. 2007) (finding
precluded in successive proceeding claims of ineffective assistance of counsel not raised
but which could have been raised in first post-conviction proceeding).
¶6 Additionally, the issue raised requires us to interpret various provisions of
Rule 32. Interpretation of procedural rules involves questions of law, which are
appropriately reviewed by special action. See State v. Nichols, 224 Ariz. 569, ¶ 2, 233
4
P.3d 1148, 1149 (App. 2010). Finally, because the respondent abused his discretion,
post-conviction relief is warranted. See Ariz. R. P. Spec. Actions 3(c).
DISCUSSION
¶7 A pleading defendant does not have the right to a direct appeal from a
conviction and sentence. See A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e). But a
pleading defendant does have the right to obtain review by the trial court pursuant to Rule
32 in what the rule defines as “a rule 32 of-right proceeding.” Ariz. R. Crim. P. 32.1.
“[F]or a pleading defendant, Rule 32 is „the only means available for exercising the
[defendant‟s] constitutional right to appellate review.‟” Petty, 225 Ariz. 369, ¶ 9, 238
P.3d at 640, quoting Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616,
supp. op., 182 Ariz. 118, 893 P.2d 1281 (1995) (alteration in Petty).
¶8 Osterkamp contends this court‟s decision in Petty “compels the conclusion
that appointment of counsel should be mandatory” here, as does the case law establishing
that a pleading defendant‟s of-right proceeding is tantamount to an appeal. He maintains
the rule and a comment to it are “flawed” to the extent they give the trial court discretion
to determine whether to appoint counsel in all but the first post-conviction proceeding.
Arguing the second proceeding is still part of the “of-right” proceeding for the pleading
defendant, Osterkamp asserts, as he did below, that without the assistance of counsel, a
pleading defendant is unable to “vindicate” the recognized right to the effective
assistance of counsel in the first “of right” Rule 32 proceeding. He also maintains that,
unless the appointment of counsel is mandatory in these circumstances, the rule cannot be
administered fairly because “there is no objective basis on which trial courts” can make
5
that decision. Real party in interest the State of Arizona suggests the rule is unclear but
contends, based in part on the same comment Osterkamp rejects, any defendant seeking
post-conviction relief has the right to appointed counsel in the first proceeding only. The
state asserts in all other situations that decision is left to the discretion of the trial judge.
And here, it argues, the respondent did not abuse his discretion.
¶9 In Petty, we reversed the trial court‟s summary dismissal of the pleading
defendant‟s second notice of post-conviction relief in which he had expressed his intent
to investigate and possibly raise a claim of ineffective assistance of counsel in his first
post-conviction proceeding. 225 Ariz. 369, ¶¶ 1, 3, 238 P.3d at 638-39. Petty also stated
in the notice that the Legal Defender‟s Office had represented him in the first proceeding,
and he asked the court to appoint counsel from outside that office. Id. ¶ 3. The court
dismissed the notice because Petty had failed to specify which exception to the rule of
preclusion the claims he intended to raise fell under and the “meritorious reasons for not
raising the claim in the previous petition,” as required by Rule 32.2(b). Id. ¶ 4. Petty,
225 Ariz. 369, ¶ 4, 238 P.3d at 639.
¶10 Petty had made clear his intent to investigate and possibly raise a claim of
ineffective assistance of initial Rule 32 counsel, a claim that falls under Rule 32.1(a).1
Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at 641. We concluded that, although claims under
1
Rule 32.1(a) provides the following among the grounds for obtaining post-
conviction relief: “The conviction or the sentence was in violation of the Constitution of
the United States or of the State of Arizona.” As we noted in Petty, both case law and the
comment to the rule establish that a claim of ineffective assistance of counsel is
cognizable under this subsection of Rule 32.1. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at
641.
6
that subsection are not excepted from the general rule of preclusion, see Ariz. R. Crim. P.
32.2(b), Petty nevertheless could not be precluded from raising it in a successive post-
conviction proceeding because he could not have raised it in the first proceeding. Petty,
225 Ariz. 369, ¶ 11, 238 P.3d at 641. As we acknowledged, counsel could not be
expected to evaluate and assert his or her own ineffectiveness. Id. ¶ 13, citing State v.
Bennett, 213 Ariz. 562, ¶ 14, 146 P.3d 63, 67 (2006) (where non-pleading defendant
represented by same counsel on appeal and in Rule 32 proceedings, defendant did not
waive and was not precluded from raising in successive proceeding claim of ineffective
assistance of appellate counsel for failing to raise same in first post-conviction
proceeding). We concluded that Rule 32.2(b) was not implicated and, therefore, the trial
court had erred by “examin[ing] 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).” Petty, 225 Ariz. 369, ¶ 12, 238 P.3d at
641. We added that, because Petty had “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,” the notice of post-conviction
relief contained “sufficient [information] to avoid a summary dismissal . . . .” Id. ¶ 14.
¶11 Although Petty informs our decision here, the issue in this special action is
distinct. There, the question was whether the notice was sufficient to withstand summary
dismissal. Here, the question we must answer is whether the respondent judge erred in
finding he had discretion to decide whether to appoint counsel in Osterkamp‟s second
post-conviction proceeding so that Osterkamp could investigate and possibly assert a
7
claim that his first Rule 32 counsel had been ineffective, and then denying Osterkamp‟s
request in the exercise of that discretion. Our decision in Petty suggested, but neither
expressly addressed nor specifically stated, that upon remand of his case to the trial court,
Petty was entitled to appointed counsel. We conclude Osterkamp was entitled to
appointed counsel based on the plain language of the rule and that the respondent judge
abused his discretion by refusing Osterkamp‟s repeated requests for counsel. See Potter,
225 Ariz. 495, ¶ 14, 240 P.3d at 1262 (when judge “err[s] as a matter of law” he abuses
discretion).
¶12 Rule 32.4 governs the commencement of post-conviction proceedings and
the appointment of counsel. Subsection (a) of the rule establishes the time within which a
notice of post-conviction relief must be filed. With respect to “of-right proceedings,” the
rule provides that “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 proceeding.” The rule
also prescribes the time within which non-pleading defendants in capital and non-capital
cases must commence post-conviction proceedings. Ariz. R. Crim. P. 32.4(a).2
¶13 Rule 32.4(c)(2) provides the following with respect to the appointment of
counsel in of-right and non-capital cases:
2
The rule provides that “[i]n all other non-capital cases,” that is, other than those
involving pleading defendants, addressed in the preceding sentence, “the notice must be
filed within ninety days after the entry of judgment and sentence or within thirty days
after the issuance of the order and mandate in the direct appeal, whichever is the later.”
Ariz. R. Crim. P. 32.4(a).
8
Upon the filing of a timely or first notice in a Rule 32
proceeding, the presiding judge, or his or her designee, shall
appoint counsel for the defendant within 15 days if requested
and the defendant is determined to be indigent. Upon the
filing of all other notices in non-capital cases, the
appointment of counsel is within the discretion of the
presiding judge.
¶14 “In interpreting rules, we apply the same principles we use in interpreting
statutes.” Petty, 225 Ariz. 369, ¶ 7, 238 P.3d at 640. Accordingly, we must determine
and give effect to our supreme court‟s intent in promulgating the rule, id., “keeping in
mind that the best reflection of that intent is the plain language of the rule,” Potter, 225
Ariz. 495, ¶ 8, 240 P.3d at 1260. Unless a rule is unclear or ambiguous, we will not
employ other principles of construction to determine its meaning and the supreme court‟s
intent in promulgating it.3 Id.
¶15 The relevant provisions of Rule 32.4 are clear. Rule 32.4(c)(2) provides
that in of-right and non-capital cases, the trial court must appoint counsel for the indigent
defendant in two circumstances: “[u]pon the filing of a timely or first notice in a Rule 32
proceeding.” (Emphasis added.) Thus, both pleading and non-pleading defendants are
clearly entitled to counsel in the first post-conviction proceeding. But a defendant who
files a “timely” notice, as defined in subsection (a) of the rule, is also entitled to counsel.
Because the rule is phrased in the disjunctive, “timely” notices must mean something
different than first notices of post-conviction relief. Otherwise, the word “timely” would
3
It is undisputed that Osterkamp is indigent. An assistant legal defender from the
office of the Pima County Legal Defender was appointed to represent him in the first
post-conviction proceeding, filed the second notice of post-conviction relief, sought the
appointment of different counsel in that proceeding, and has filed this special action on
Osterkamp‟s behalf.
9
be superfluous. “In construing a rule . . . we consider it and any related rules as a whole,
attempting to give meaning to every word, and not making any word superfluous.”
Alejandro v. Harrison, 223 Ariz. 21, ¶ 8, 219 P.3d 231, 234 (App. 2010) (citations
omitted).
¶16 Had the rule read, “[u]pon the filing of a timely, first notice,” the
mandatory appointment of counsel would have been limited to first proceedings that have
been timely filed. But this is not how the rule reads. Instead, rather than limiting first
notices to those that are timely, it distinguishes a “timely” notice from one that is first,
establishing the two circumstances in which the trial court must appoint counsel.
¶17 Rule 32.4(a) identifies what a “timely” notice is for purposes of the rest of
the rule and, in particular, subsection (c)(2). In an of-right proceeding, a “timely” notice
is one filed within ninety days after the entry of judgment and sentence, clearly
contemplating the pleading defendant‟s first post-conviction proceeding following a
conviction. It is also a notice filed within thirty days either after the trial court has
entered a final order in the first post-conviction proceeding or, if the defendant seeks
review of the trial court‟s ruling pursuant to Rule 32.9, Ariz. R. Crim. P., within thirty
days after this court issues its mandate. Based on its plain language, the rule therefore
affords counsel to pleading defendants in their first post-conviction proceeding and,
assuming the first proceeding is the one that immediately follows conviction, in the
subsequent proceeding, assuming the notice is timely filed. And based on this
subsection, the of-right proceeding includes the first post-conviction proceeding as well
as the timely filed proceeding that follows it.
10
¶18 Our interpretation of the rule is consistent with case law that characterizes
the pleading defendant‟s first post-conviction proceeding as the equivalent of a non-
pleading defendant‟s appeal and acknowledges the pleading defendant‟s right to the
effective assistance of counsel in that proceeding. See Evitts v. Lucey, 469 U.S. 387, 396
(1985) (due process entitles defendant to effective appellate counsel); State v. Berlat, 146
Ariz. 505, 509, 707 P.2d 303, 307 (1985) (same); see also State v. Jackson, 209 Ariz. 13,
¶ 3, 97 P.3d 113, 115 (App. 2004) (recognizing non-pleading defendant has right to
effective assistance of appellate counsel and “ineffective assistance of appellate counsel
is a cognizable Rule 32 claim”); State v. Herrera, 183 Ariz. 642, 646, 905 P.2d 1377,
1381 (App. 1995) (same). By comparison, a non-pleading defendant “is entitled to a
direct appeal with the assistance of counsel” and has the parallel right to challenge the
effectiveness of appellate counsel in what will usually be his or her first post-conviction
proceeding. But, the non-pleading defendant has “no constitutional right to counsel or
effective assistance in post-conviction proceedings”; although the non-pleading defendant
has the right to effective representation on appeal, he has no “valid, substantive claim
under Rule 32” for “ineffective assistance on a prior [post-conviction relief] petition.” 4
4
The case before us presents questions relating to the rights of a pleading
defendant only. Nevertheless, we note that, consistent with the case law establishing a
non-pleading defendant does not have the right to effective representation in a post-
conviction proceeding, see, e.g., State v. Mata, 185 Ariz. 319, 336, 916 P.2d 1035, 1052
(1996), Rule 32.4(a) does not include among the timely notices a non-pleading defendant
may file, one that correlates to a petition for post-conviction relief. But for a non-
pleading defendant, like a pleading defendant, there are two categories of timely notices:
one filed within the specified period after the judgment of conviction and sentence, and
the other after the appeal is complete. Ariz. R. Crim. P. 32.4(a). Thus, although a non-
pleading defendant is encouraged to wait for the resolution of the appeal before seeking
11
State v. Krum, 183 Ariz. 288, 292 & n.5, 903 P.2d 596, 600 & n.5 (1995); cf. State v.
Mata, 185 Ariz. 319, 336, 916 P.2d 1035, 1052 (1996) (holding non-pleading defendant
has no constitutional right to effective assistance of counsel in post-conviction
proceeding, notwithstanding state-created right to representation).
¶19 In State v. Pruett, 185 Ariz. 128, 130, 912 P.2d 1357, 1359 (App. 1995),
this court examined the nature of the pleading defendant‟s rights to review and counsel
and how Rule 32 serves as the procedural conduit for the defendant‟s exercise of these
rights. The pleading defendant‟s second and third notices of post-conviction relief had
been summarily dismissed because they were untimely filed. 185 Ariz. at 130, 912 P.2d
at 1359. On review, the court addressed whether the defendant was entitled to assert in a
second post-conviction proceeding the ineffectiveness of counsel who had represented
him in the first proceeding. Id. at 130-31, 912 P.2d at 1359-60. Observing that the right
to effective representation arises out of principles of due process and equal protection, the
court noted that this right “only „extends to the first appeal of right, and no further.‟” Id.
at 130, 912 P.2d at 1359, quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Because the pleading defendant‟s only means of obtaining appellate review is through a
Rule 32 proceeding, the court reasoned, he “is constitutionally entitled to the effective
post-conviction relief so that all claims may be raised in one proceeding, see generally
Krone v. Hotham, 181 Ariz. 364, 366-67, 890 P.2d 1149, 1151-52 (1995); State v.
Rosales, 205 Ariz. 86, ¶¶ 13-14, 66 P.3d 1263, 1267-68 (App. 2003), conceivably the
defendant could seek relief in a first post-conviction proceeding commenced while the
appeal is pending and raise a claim of ineffective assistance of appellate counsel in a
second, timely filed post-conviction proceeding. The defendant would be entitled to
counsel in both timely filed proceedings based on the plain language of the rule, but in no
other successive proceeding.
12
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. Thus, the
pleading defendant must be given the “opportunity to assert a claim” of ineffective
assistance of initial Rule 32 counsel; “the obvious method is by means of a second
petition for post-conviction relief.” Id.
¶20 The right to the effective assistance of counsel in the first Rule 32
proceeding is meaningless unless the pleading, indigent defendant is afforded counsel in
the second proceeding. Cf. John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, ¶ 13, 173
P.3d 1021, 1025 (App. 2007) (characterizing right to counsel as “„illusory‟ without
remedy for ineffective assistance”), quoting In re Geist, 796 P.2d 1193, 1200 (Or. 1990).
And that it must be a different attorney than the one who represented the defendant in the
first proceeding was made clear by our supreme court in Bennett, as we noted in Petty.
225 Ariz. 369, ¶ 13, 238 P.3d at 641. In Bennett, the court found the trial court had erred
in finding the non-pleading defendant precluded from raising a claim of ineffective
assistance of appellate counsel in his second post-conviction proceeding. 213 Ariz. 562,
¶¶ 1, 10, 13, 146 P.3d at 63, 65-67 (2006). The defendant had raised a claim of
ineffective assistance of trial counsel in the first Rule 32 proceeding. Id. ¶ 8. The court
reasoned that because initial Rule 32 counsel and appellate counsel was the same person,
counsel could not be expected to argue his own ineffectiveness. Id. ¶ 14.
¶21 Our reading of the rule is consistent with the 2000 comment to
Rule 32.4(a), which provides that the rule was amended “to meet the requirements of
Montgomery and . . . Pruett . . . .” Ariz. R. Crim. P. 32.4, cmt. 2000 amend.
13
Acknowledging that Pruett recognizes the pleading defendant‟s right to the effective
assistance of initial Rule 32 counsel, “the counterpart to a direct appeal,” the comment
adds, “the rule is amended to allow the pleading defendant thirty days within which to
file a second notice if the defendant seeks to challenge counsel‟s effectiveness in the Rule
32 of-right proceeding.” Ariz. R. Crim. P. 32.4, cmt. 2000 amend. This second
proceeding is the “timely” proceeding referred to in Rule 32.4(c)(2).
¶22 We also must address the comment to Rule 32.4(c)(2), which reads:
“Paragraph (2) requires appointment of counsel upon the timely filing of a first notice in
a Rule 32 proceeding, when requested, but makes all other appointments of counsel in
non-capital cases discretionary.” Ariz. R. Crim. P. 32.4, cmt. 2000 amend. We
acknowledge the comment could be viewed as expressing our supreme court‟s intent that
the 2000 amendment to that subsection was intended to limit the mandatory appointment
of counsel for all defendants in non-capital cases to the first post-conviction proceeding.5
5
We note that before Rule 32.4 was amended on October 31, 2000, effective
December 1, 2000, it had provided that the trial court was required to appoint counsel for
an indigent defendant “[u]pon the filing of [the] first notice . . . in a non-capital case, or
the second or subsequent notice in a non-capital case which, for the first time, raises a
claim of ineffective assistance of counsel . . . .” 198 Ariz. CXV. By eliminating the last
sentence and replacing it with “timely or first,” and defining “timely” in subsection (a) to
include the pleading defendant‟s second post-conviction proceeding, the supreme court
limited the circumstances in which a defendant must be appointed counsel. The effect of
this amendment is to encourage non-pleading defendants to raise claims of ineffective
assistance of trial or appellate counsel in the first post-conviction proceeding, rather than
any successive proceeding, and similarly to encourage pleading defendants to raise
claims of ineffective assistance of Rule 32 of-right counsel in the second post-conviction
proceeding, which was precisely the purpose for which that second proceeding was
designed.
14
¶23 To the extent the comment is inconsistent with the rule with respect to
pleading defendants, we need not rely on it because the rule‟s language is clear and
unambiguous. See State v. Canaday, 119 Ariz. 335, 336, 580 P.2d 1189, 1190 (1978)
(clear language of Rule 17.6, Ariz. R. Crim. P., governs when defendants admit prior
conviction for purposes of increasing punishment and as element of offense, despite
comment that rule “applies only to prior offenses which are an element of the crime”);
see also Ariz. R. Crim. P. 17.6 cmt. Moreover, comments, like notes and section
headings, “do not constitute substantive portions of the Rules of Criminal Procedure.”
State v. Bernecker, 164 Ariz. 200, 201, 791 P.2d 1083, 1084 (App. 1990). We follow the
language of the rule, not what appears to be an inconsistent comment as applied to
pleading defendants.
¶24 Again, as discussed above, our supreme court repeatedly has clarified in
this context that, for a pleading defendant, the first post-conviction petition is the
procedural equivalent of a first appeal. See Pruett, 185 Ariz. at 131, 912 P.2d at 1360.
For pleading defendants, a timely second post-conviction proceeding raising a claim of
ineffective assistance of Rule 32 counsel in the first post-conviction proceeding is the
procedural equivalent of a first post-conviction proceeding commenced by a non-
pleading defendant who wishes to raise a claim of ineffective assistance of appellate
counsel. Id.
¶25 We conclude the respondent judge abused his discretion in denying
Osterkamp‟s initial request for counsel and denying his motion for reconsideration. See
Ariz. R. P. Spec. Actions 3(c) (special action relief may be granted when respondent
15
judge abused discretion). Because the respondent did not have the discretion to deny
Osterkamp counsel in his second proceeding, he erred as a matter of law.6 Granting
special action relief, we vacate the respondent‟s ruling and direct him to appoint counsel
in the underlying post-conviction proceeding.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
6
We note that, even if the decision were discretionary, given the pleading
defendant‟s right to the effective assistance of counsel in the first of-right proceeding, we
would regard the denial of counsel here an abuse of that discretion and would, in any
event, grant special action relief.
16