dissenting.
Counsel should have been allowed to withdraw. In reaching a contrary conclusion, the majority retreats from Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614, op. supp., 182 Ariz. 118, 893 P.2d 1281 (1995),. and creates a new right to hybrid representation in a Rule 32 proceeding without any basis or reason for doing so.
The court says that even after counsel concludes that there are no grounds to support a petition for post-conviction relief, two consequences flow: (1) the defendant has a right to file one pro per, and (2) the lawyer cannot withdraw from the case. But in Montgomery v. Sheldon, the majority said “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.” 181 Ariz. at 260, 889 P.2d at 618. The majority also said that “no hybrid representation occurs when counsel declines to file a PCR petition and a defendant proceeds pro se, [because] [h]ybrid representation is concurrent representation by both counsel and defendant-woi consecutive representation.” Id. In short, under Montgomery, after counsel in a PCR setting concludes that there is no issue to present, he is entitled to withdraw and the defendant is entitled to proceed pro per.
Now the court says that counsel should not be allowed to withdraw until the trial court proceedings are concluded. But if the defendant is proceeding pro per, what is the lawyer supposed to do? The court says that he must remain on the case even after the defendant is allowed to proceed pro per “to assist the pro per defendant should that defendant or the trial court discover a viable issue which counsel had not previously considered, or when, in the interest of justice, appointment of counsel seems necessary.” Ante, at 663. What does this mean? It is directly contrary to Montgomery. It looks likes the court is adopting the Shattuck procedure and engrafting it on a Rule 32 proceeding. But in Shattuck, counsel filed an Anders brief and stayed "with the defendant through resolution of the appeal by the court of appeals. The defendant did not proceed pro per simultaneously.
There is a second problem. The majority says, “that following an unfavorable disposition by the trial court, counsel need only inform the defendant of the status and defendant’s future options, unless an issue appropriate for submission to the court of appeals has come to light.” Ante, at 663. What does this mean? It seems to suggest that if an issue does come to light, counsel’s obligation does not end. Yet, the majority acknowledges that “[t]he pleading defendant does not, however, have a right to appointed counsel in Rule 32 proceedings beyond the trial court’s mandatory consideration and disposition of the PCR.” Id.
I do not believe it is wise to create and amend Rule 32 on a case-by-case basis. See Wilson v. Ellis, 176 Ariz. 121, 124-25, 859 P.2d 744, 747-48 (1993), Montgomery v. Sheldon, 181 Ariz. 256, 261-63, 889 P.2d 614, 619-21 (1995) [Montgomery I], Montgomery v. Sheldon, 182 Ariz. 118, 121, 893 P.2d 1281, 1284 (1995) [Montgomery II], and State v. Smith, 184 Ariz. 456, 460-461, 910 P.2d 1, 5-6 (1996). By doing so, we have created a process which simply cannot be found by reference to Rule 32 itself.
Because I do not believe a right to hybrid representation can be found in our constitution, our laws, or in our rules, I -respectfully dissent from the court’s latest development in this unending series of cases.