dissenting:
The majority holds that a defendant who files a petition for post-conviction relief, and whose attorney can find no meritorious issue to argue, is not entitled to file a supplemental memorandum pro per in support of his petition. The majority concludes that to allow a petitioner to raise issues on his own behalf is to endorse hybrid representation, and that this court’s opinion in Montgomery, 178 Ariz. at 86, 870 P.2d at 1183, was an impermissible exercise in judicial rule making. I reaffirm my concurrence in Montgomery, and I address the specific arguments the majority makes.
Hybrid representation, according to Stone, 122 Ariz. at 308, 594 P.2d at 562, is undesirable because it can cause interruptions in judicial proceedings. Commentators have noted that hybrid representation detracts from the dignity and decorum of the courtroom, can result in a defendant insisting that counsel surrender substantial prerogatives of the office of attorney, and can be used as a guise for a defendant’s presentation of unsworn statements. Wayne R. LaFave and Jerold H. Israel, Criminal Procedure, Vol. 2, § 11.5, at pp. 51 through 53 (1984). What all of this boils down to is that hybrid representation is undesirable because it makes it difficult to run an efficient and orderly judicial proceeding. But this objection does not apply when counsel for a petitioner is no longer actively involved in the case. While the Petitioner’s attorney may still be counsel of record, for every practical purpose his activity in the case ended when he filed notice that he found no meritorious issue to argue.
The majority, citing cases, asserts that a party is bound by the acts of his counsel and that to allow the Petitioner to file his own memorandum violates that rule. None of the cases the majority mentions, however, deal with the situation where counsel asserts that there are no arguable issues at all. Under the rule the majority adopts, a petitioner would be denied access to the court no mat*200ter how mistaken counsel might be in the belief that the case lacks merit. The fear that meritorious cases might thus escape redress is by no means fanciful. For example, during oral argument in Montgomery, able counsel for Montgomery pointed out that in two cases in which he had represented other defendants, the courts had granted relief to his clients on issues that he had not raised because he considered them lacking in merit. See State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980); State v. O’Dell, 108 Ariz. 53, 492 P.2d 1160 (1972).6
In Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), the Supreme Court squarely recognized that when counsel for a defendant finds his case to be wholly frivolous the defendant himself must be allowed to raise any points that he chooses. The majority says that this facet of Anders does not apply in the case before us because the right to self-representation which Anders mandates is “based on the defendant’s right to appeal and predicated on counsel’s request to withdraw.” The Petitioner in this case has as much right to access to the court for his petition for post-conviction relief as the defendant in Anders had the right to access for his appeal. While the issues that can be considered on a petition for post-conviction relief might be much narrower than those that can be considered on appeal, the right to request the court to consider those issues is the same in both cases. The petitioner has a right under the Arizona Constitution to bring his claim, any claim within the ambit of the rule, to the attention of the court. Our supreme court recently made this point clear in Wilson v. Ellis, 176 Ariz. 121, 859 P.2d 744 (1993), which held that a defendant who files a petition for post-conviction relief is entitled to a transcript of the relevant proceedings, even without specifying the nature of his claim of error.v The court noted that article 2, section 24 of the Arizona Constitution provides that an accused has the right of appeal in all cases and said:
It was precisely because of art. 2, § 24 that this court expressly left open the avenue of appellate review by PCR in lieu of direct appeal when it amended the rules with respect to cases involving admissions of probation violations.
Id. at 123, 859 P.2d at 746.
The defendant having a right to access, counsel cannot unilaterally shut the courthouse door. As the Supreme Court observed in Anders, “the .court—not counsel—... proceeds ... to decide whether the case is wholly frivolous.” 386 U.S. at 744, 87 S.Ct. at 1400.
The majority’s second reason for avoiding the application of Anders—that counsel has not withdrawn in this case—was touched on in my earlier discussion. Whether there has been a formal withdrawal or not, counsel who certifies that there are no meritorious grounds for relief no longer controls the case. Indeed, although Anders does say that counsel who can find no issue to argue should withdraw, as a matter of custom withdrawal has never been required in Arizona in Anders cases as a prerequisite to allowing a defendant to file his own memorandum.
Finally on this question of hybrid representation, the majority argues that our supreme court, in Wilson v. Ellis, said that the courts should not “Ander-ize” Rule 32 proceedings. The majority reads Wilson broadly to mean that a petitioner ought not be allowed to file a memorandum pro se when counsel can find no issue to argue. What the majority said in Wilson was that “Contrary to the intimations of the dissent, we are not commanding, nor do we want, trial courts to conduct Awders-type reviews in PCRs.” 176 Ariz. at 124, 859 P.2d at 747. A reading of both the majority opinion and the dissent suggests what the court was referring to as an “Anders-type review” was a review for fundamental error. I simply do not read Wilson to say that a petitioner may not file a pro per memorandum when his attorney asserts the case is without merit.
*201-211I turn to the question whether Montgomery was the exercise in impermissible rule making the majority believes it to have been. It is possible that when the rules relating to post-conviction relief were amended, nobody really considered what would happen if counsel avowed that there was no meritorious issue for review. It is also possible that the drafters of the rule simply assumed that in such a case the well established procedure mandated by Anders would apply. In any event, I suggest that to whatever extent rule making is involved in these cases, it is just as much an exercise in rule making for the majority to say that a petitioner cannot approach the court pro per as it is for us to have said in Montgomery that he can.
Speculation aside, Wilson v. Ellis settles the question. Since the Petitioner has a right under the Arizona Constitution to review, we should apply the rules relating to post-conviction relief in a manner which preserves access to the courts. See State v. Birmingham, 95 Ariz. 310, 316, 390 P.2d 103, 107 (1964). The time tested remedy the Supreme Court of the United States fashioned in Anders v. California is the way to preserve that access. I would grant the relief the Petitioner requests.
. See also letter of James H. Kemper to Arthur Hazelton dated August 17, 1993, filed with the court in Montgomery. Both McDaniel and O’Dell were appealed before State v. Stone foreclosed hybrid representation, which explains how the issues were brought to the attention of the court by the defendants themselves.