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Post-Conviction Relief

Although an appeal is, technically, post-conviction relief, I am focusing on what rights a defendant has after a conviction outside of an appeal. Even if an appeal is “affirmed”, there is another method to review what happened in court and it is known by different names but generally, “Post-Conviction Relief”. Criminal Rules are found in every state and in Arizona the post-conviction relief is known more commonly by its rule name - Rule 32. This blog only refers to state post-conviction proceedings, the federal proceedings will be covered in a different summary.

If you are convicted it will be by a plea agreement or at the end of a trial upon a finding of guilty. If you have entered a plea agreement and get a sentence you are not happy with your chances at getting a remand (case returned to the trial court) from the court of appeals are very slim. In Arizona, you even have no right of appeal after a sentence if you have entered a plea agreement. Your remedy is to file a Rule 32 within 90 days of the sentence. There are other grounds that can extend this time limit but, basically, that is the deadline. Every plea agreement I have ever seen contains language that by entering the plea, you are giving up any motions and defenses you may have had. Furthermore, there is just a very limited record when a conviction is obtained by a plea agreement rather than a trial. Throughout a trial, the judge and prosecutor have numerous chances to do something wrong that will result in overturning the conviction. Not so much in a change of plea, particularly since by entering a plea you specifically give up any motions or defenses you might have had.

In Arizona there are seven grounds for post-conviction relief. By far and away, the most common one raised is ineffective assistance of counsel. Before the mid-80's, the test throughout the nation as to whether your attorney was effective was the requirement of proving that the trial “was a sham and a farce”. There was a famous murder case in Texas where the hack attorney defending the man was constantly falling asleep in trial. The Texas Supreme Court had no problem with this and made a finding that the defense attorney “was sleeping during unimportant parts of the proceedings”. Thankfully, the federal courts reversed this travesty right away. The United States Supreme Court in Strickland v. Washington, set a new standard for effective counsel.

Strickland, a 1984 case set forth a two “pronged” analysis as to whether your attorney effectively represented you or not. First, did the attorney do something, or neglect to do something that a reasonably competent criminal attorney would have done? Basically, that is the easiest of the two parts to prove. Second, was the trial error such that it would have probably changed the outcome of the case if it were done. That is the kicker. How does one prove that something in the past would have changed if the attorney did such and such? In Arizona, the trick is in getting a hearing on your claim. Approximately 95% of Rule 32 (post-conviction) petitions are summarily dismissed. The judge is required to set a hearing on the matter if you have raised what is called a “colorable” claim. A colorable claim is one that has merit on its face. Furthermore, the state and federal court cases have interpreted Strickland as giving wide latitude to trial counsel deciding matters of a tactical nature.

One method wherein our office has had some success with plea agreement reversals is in cases in which the defendant maintains that his attorney did not fully explain the plea offer to him and he or she elected to proceed to trial and received more time. In Arizona, there were so many post-conviction proceedings where the defendant claimed this that the Arizona Supreme Court ruled in State v. Donald that a hearing must be held to inform the defendant of the benefits of the plea versus the potential time if the defendant is convicted at trial. This has greatly reduced the post-conviction claims being filed but they still occur. The remedy if the trial court finds that the defendant did not understand or was not properly informed by his trial attorney is to reinstate the plea agreement. Often, believe it or not, trial attorney’s will sign an affidavit in support of their former client saying that they did not adequately inform him of the plea.

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