dissenting.
The supplemental opinion of the majority illustrates the unsuitability of a post-conviction relief rule for direct appellate review. I dissented from the court’s conversion of review of the denial of a post-conviction petition to constitutionally required direct appellate review. Montgomery v. Sheldon, 181 Ariz. 256, 261, 889 P.2d 614, 619 (1995) (Mar-tone, J., dissenting). I do not repeat that dissent here. But the supplemental opinion is no satisfactory answer to the dilemma raised by the motion for reconsideration. Review for fundamental error was not the issue raised in this case. It was first raised by this court in footnote 5 of the majority opinion. Because of unintended consequences, it is always risky to decide issues that are not presented by a case.
The majority says that the court of appeals can review for fundamental error in a case in which the record is incomplete, and even in one with no transcript. But is that fundamental error review at all? This problem is created by trying to fit a square peg into a round hole. Review for fundamental error is incompatible with a rule that states “[flailure to raise any issue that could be raised in the petition or the cross-petition for review shall constitute waiver of appellate review of that issue.” Rule 32.9(c), Ariz.R.Crim.P.
Discretionary review, which the majority acknowledges, ante, at 120, 893 P.2d at 1283, and review for fundamental error are also incompatible. To make them compatible, the majority says that the court of appeals need not grant a petition for review but nevertheless must look for fundamental error. Id. But how can one summarily deny review and look for fundamental error at the same time?
This will be the first, but not the last, case of this sort. Will the court of appeals have to go back to 1992 and conduct a fundamental error review in all the cases in which it has not been done? If review of the denial of a petition for post-conviction relief is constitutionally based, does the defendant have the right to counsel through resolution of the case by the court of appeals?
If all the court wants to do is to provide direct appellate review as a substitute for review by way of petition for review, all it has to do is change the rule. I respectfully dissent.