State v. Chavez

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

LINO ALBERTO CHAVEZ, Petitioner.

No. 1 CA-CR 15-0482 PRPC
FILED 11-16-2017

Petition for Review from the Superior Court in Maricopa County
No. CR2012-005785-001
The Honorable Bruce R. Cohen, Judge

REVIEW GRANTED, RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Petitioner

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Amicus Curiae Arizona Attorney General’s Office
Arizona Attorneys for Criminal Justice, Tucson
By David J. Euchner
Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

Federal Public Defender’s Office, Phoenix
By Keith James Hilzendeger (argued)
Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge
Jon W. Thompson joined. Presiding Judge Kent E. Cattani concurred in the
result and offered a concurring opinion.

M c M U R D I E, Judge:

¶1 Lino Alberto Chavez petitions this court to review the
dismissal of his petition for post-conviction relief of-right. We grant review
but deny relief, holding an of-right Rule 32 petitioner is not entitled to a
review of the record by the superior court for arguable issues as required
for direct appeals under Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969). 1

FACTS AND PROCEDURAL BACKGROUND

¶2 In January 2012, Chavez was indicted on one count of first
degree murder, a Class 1 dangerous felony, one count of robbery, a Class 4
felony, and one count of trafficking in stolen property, a Class 3 felony. The
State alleged that Chavez drove the vehicle in which he and his codefendant
fled after the codefendant stole a laptop computer. The victim died from
injuries she sustained when she attempted to hang on to Chavez’s vehicle
as it sped away. Chavez pled guilty to one count of second degree murder,

1 Chavez raises other issues that do not meet the criteria for
publication. See Ariz. R. Sup. Ct. 111(b); ARCAP 28(b). We address those
issues in a separate, contemporaneously filed memorandum decision. See
Ariz. R. Sup. Ct. 111(h); Bobrow v. Bobrow, 241 Ariz. 592, 594, ¶ 2, n.3 (App.
2017).

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Opinion of the Court

a Class 1 dangerous felony, and the superior court sentenced him to a
presumptive term of 16 years’ imprisonment.

¶3 Chavez filed a timely notice of post-conviction relief (“PCR”)
and his appointed Rule 32 counsel filed a notice of completion. Chavez then
filed a pro se petition for post-conviction relief, which the superior court
summarily denied. This timely petition for review followed.

¶4 In Pacheco v. Ryan, the United States District Court for the
District of Arizona granted a petition for writ of habeas corpus filed after
this court denied relief to a defendant seeking an Anders type of review after
pleading guilty to child molestation in superior court.
CV-15-02264-PHX-DGC, 2016 WL 7407242, *10 (D. Ariz. Dec. 22, 2016). 2 In
that case, the defendant, Pacheco, entered into a written plea agreement and
therefore had no right to a direct appeal under Arizona law. Id. at *1. After
sentencing, Pacheco was appointed counsel in a PCR proceeding, who
notified the court, after reviewing the record, that there were no arguable
issues. Pacheco subsequently filed a pro se petition for post-conviction relief
in superior court. Id. at *1–2. The superior court summarily denied his
petition, and Pacheco filed a petition for review in this court arguing the
superior court erred by not reviewing the record for “fundamental error”
in accordance with Anders. Id. at *2. This court granted review but denied
relief stating the court was not required to review Pacheco’s petition for
fundamental error. Id.; State v. Pacheco, 2 CA-CR 2015-0240-PR, 2015 WL
5945442, at *1, ¶ 4 (Ariz. App. Jan. 1, 2015) (mem. decision). The district
court found that “Petitioner’s rights under Anders were violated by the
failure of the trial court to independently review the record for
non-frivolous issues for review,” and granted the petition, ordering
Pacheco released unless the superior court conducted an independent
review of the record consistent with Anders within 90 days. Id. at *2, *10.
The district court held Anders protections applied to Rule 32 of-right
proceedings because, under Pennsylvania v. Finely, 481 U.S. 551, 554 (1987),

2 While we consider the opinions of the lower federal courts regarding
the interpretation of the Constitution, such authority is not controlling on
Arizona courts. State v. Montano, 206 Ariz. 296, 297, n.1 (2003) (“We are not
bound by the Ninth Circuit’s interpretation of what the Constitution
requires.”); State v. Vickers, 159 Ariz. 532, 543, n.2 (1989) (declining to follow
a Ninth Circuit decision which held Arizona’s death penalty statute
unconstitutional because that decision rested on “grounds on which
different courts may reasonably hold different views of what the
Constitution requires”); State v. Swoopes, 216 Ariz. 390, 401 (App. 2007).

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Opinion of the Court

“Anders requirements extend to any case in which a constitutional right to
counsel exists.” Id. at *8. The court reasoned that because defendants in Rule
32 of-right proceedings have a federal constitutional right to counsel,
Anders protections must apply to them. Id. While the district court noted
Anders procedures can be independently developed by states, it found
Arizona’s current procedure did not adequately comply with those
protections. Id. at *8, *10.

¶5 Chavez, like Pacheco, requested that this court review the
record for “fundamental error.” Recognizing the recurring issue raised by
the district court’s order in Pacheco, this court requested briefing on the
issue from Chavez’s appointed counsel and from the State, as well as from
Amici Curiae with interest in our current Rule 32 procedure. We have
jurisdiction to review this petition pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

DISCUSSION

A Criminal Defendant Is Not Entitled to Sua Sponte Review
for Arguable Issues Under Anders in an Of-Right Petition
for Post-Conviction Relief.

¶6 Chavez claims, based on Pacheco, that an Anders-type review
is constitutionally required when a pleading defendant files an of-right

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Opinion of the Court

petition for post-conviction relief. 3 Thus, we address whether the superior
court had a sua sponte obligation to review for arguable issues under Anders
and Leon, and whether this court is similarly required to conduct such
review. Because the claim is that the obligation under Anders requires sua
sponte review by the superior court, Chavez did not waive the issue under
Rule 32.2(a)(3) by failing to raise the claim in the superior court. See United
States v. Dreyer, 705 F.3d 951, 960–61 (9th Cir. 2013) (when there is a genuine
doubt about a defendant’s competency, regardless of objection, it arises to
reversible plain error because of the court’s independent duty to establish
competency); State v. Schossow, 145 Ariz. 504, 508 (1985) (failure of defense
counsel to object to competency of witnesses under the age of ten did not
waive argument because error was fundamental and prejudicial based on
trial court’s duty to sua sponte inquire about the competency of child
witnesses). However, the better practice, to avoid waiver, is always to ask
the superior court to correct its alleged errors in the first instance.

1. Arizona’s Elimination of the Conventional Direct Appeal for
Criminal Defendants Who Plead Guilty.

¶7 The Arizona Constitution guarantees criminal defendants the
right to an appeal. Ariz. Const. art. 2, § 24. In 1992, to reduce the burden on
appellate courts, the legislature amended Arizona Revised Statutes
(“A.R.S.”) section 13-4033(B) to state: “In noncapital cases a defendant may
not appeal from a judgment or sentence that is entered pursuant to a plea

3 Although Chavez phrased his claim for independent review
required by Anders as “fundamental error” review, it is important to note
Anders required courts to independently review the record to confirm
counsel’s finding that an appeal is “frivolous.” Smith v. Robbins, 528 U.S.
259, 279 (2000). This is different than fundamental error review under
Arizona law. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). For direct
appeal cases, Arizona courts have sometimes referred to Anders review as
a review for fundamental error. See, e.g., State v. Flores, 227 Ariz. 509, 512,
¶ 12 (App. 2011). In other direct appeal cases, appellate courts have denied
relief after determining that there were no non-frivolous or arguable issues
requiring additional briefing. See, e.g., State v. Thompson, 229 Ariz. 43, 44–45,
¶¶ 1, 4 (App. 2012). Regardless of the nomenclature, Arizona courts have
been appropriately reviewing for arguable issues on direct appeal as
required by Anders. See Penson v. Ohio, 488 U.S. 75, 81 (1988) (reversible error
committed if reviewing court finds arguable issues but fails to have counsel
present such claims); Anders, 386 U.S. at 744 (if arguable issues are found,
court “must, prior to decision,” have those issues presented by counsel).

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Opinion of the Court

agreement or an admission to a probation violation.” In conjunction with
this change, the Arizona Supreme Court amended several rules of
procedure to make clear that, “[b]y pleading guilty or no contest in a
noncapital case, a defendant waives the right to have the appellate courts
review the proceedings by way of direct appeal, and may seek review only
by filing a petition for post-conviction relief pursuant to Rule 32 . . . .” Ariz.
R. Crim. P. 17.1(e); see Ariz. R. Crim. P. 17.2(e), 32.1.

¶8 Although pleading defendants waive a direct appeal, the
Arizona Supreme Court held that such defendants can nonetheless file a
petition for post-conviction relief challenging the judgment and sentence.
Wilson v. Ellis, 176 Ariz. 121, 123 (1993) (“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 [pleas].”). The filing of a post-conviction relief petition by a
pleading defendant became known as an “of-right” petition. Ariz. R. Crim.
P. 32.1. The Arizona Supreme Court also amended Rule 32 to require the
appointment of counsel for indigent defendants seeking “of-right”
post-conviction relief. Ariz. R. Crim. P. 32.4(c)(2). Under the rule, if counsel
“determines there are no colorable claims which can be raised,” counsel
must notify the court by way of what is known as a Montgomery notice. Id.;
Montgomery v. Sheldon, 181 Ariz. 256, 260 (Montgomery I); op sup., 182 Ariz.
118, 119 (Montgomery II) (1995), overruled by State v. Smith, 184 Ariz. 456
(1996) (a pleading defendant does not have a right to appointed counsel in
a review from denial of post-conviction relief proceeding). 4 The court must
then allow the defendant the opportunity to file a pro se petition. Ariz. R.
Crim. P. 32.4(c)(2). Importantly, counsel does not withdraw from
representing the defendant at this stage, but rather “[c]ounsel’s role is then
limited to acting as advisory counsel until the trial court’s final
determination.” Id. After following this procedure, the court may either

4 Montgomery II was overruled in part because the legislature repealed
former A.R.S. § 13-4035, which required the appellate courts to review for
fundamental error when considering a criminal matter. Smith, 184 Ariz. at
459; 1995 Ariz. Sess. Laws, ch. 198, § 1 (1st Reg. Sess.).

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dismiss the petition by summary disposition or set a hearing on the claims
presented in the pro se petition. Ariz. R. Crim. P. 32.6(c). 5

2. The Arizona Supreme Court Has Determined That the Superior
Courts are Not Required to Review Of-Right Petitions for
Post-Conviction Relief for Arguable Issues.

¶9 The United States Supreme Court established the Anders
procedure to ensure substantial equality and fair process when defense
counsel concludes that a client’s appeal is “wholly frivolous.” Anders, 386
U.S. at 744; see also Penson v. Ohio, 488 U.S. at 82–83. In such cases, counsel
should advise the appellate court of this conclusion and request permission
to withdraw along with providing a brief referring to portions of the record
that “might arguably support the appeal.” Anders, 386 U.S. at 744. The
defendant must be afforded an opportunity to raise any points of error in a
pro se filing. Id. Thereafter, to ensure the defendant’s Sixth Amendment
right to counsel, the court must (1) satisfy itself that counsel diligently and
thoroughly searched the record for any arguable claim on appeal, and (2)
determine whether counsel correctly concluded that the case is wholly
frivolous. McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988). If the
court agrees with counsel’s determination, it may grant the withdrawal
request and either dismiss the appeal or, if state law requires, decide the
case on the merits. Anders, 386 U.S. at 744. If the court “finds any of the legal
points arguable on their merits (and therefore not frivolous) it must, prior
to decision, afford the indigent the assistance of counsel to argue the
appeal.” Id. The Arizona Supreme Court later adopted this procedure for
direct appeals in Leon. 104 Ariz. at 299.

¶10 After Anders, the United States Supreme Court has reviewed
several state procedures and, on a case by case basis, decided whether those
procedures met the federal constitutional standard. See, e.g., Smith v.
Robbins, 528 U.S. at 265 (“The procedure we sketched in Anders is a
prophylactic one; the States are free to adopt different procedures, so long
as those procedures adequately safeguard a defendant’s right to appellate
counsel.”); McCoy, 486 U.S. at 444 (upholding Wisconsin’s procedure);
Penson v. Ohio, 488 U.S. at 81–82 (finding Ohio’s procedure inadequate). If

5 Chavez’s PCR counsel complied with Arizona practice by filing a
detailed Montgomery notice which included the list of documents she
reviewed and an explanation that she was unable to find any claims for
relief. The superior court did not release counsel until after dismissing the
issues raised in the pro se petition. Chavez’s superior court PCR counsel has
not been involved in the briefing of the issues on review.

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a state procedure “afford[s] adequate and effective appellate review to
indigent defendants” by ensuring “an indigent’s appeal will be resolved in
a way that is related to the merit of that appeal,” the federal constitutional
requirements are met. Robbins, 528 U.S. at 276–77.

¶11 Chavez contends, echoing the Pacheco order, that because
defendants who have pled guilty in Arizona have a right to counsel in
post-conviction relief proceedings, they should also have a right to have the
superior court review the record under Anders to determine if their petitions
for post-conviction relief are truly frivolous.

¶12 While the District Court in Pacheco found a defendant who
had pled guilty at trial was entitled to have the superior court
independently review the record under Anders in a Rule 32 petition because
he had a right to counsel during that proceeding, Pacheco, 2016 WL 7407242
at *8, the Arizona Supreme Court, and this court, have held that no
Anders-type review is required in Rule 32 proceedings. Compare Graves v.
McEwen, 731 F.3d 876, 880–81 (9th Cir. 2013) (Ninth Circuit Rule 4-1
requires appointed counsel in 28 U.S.C. § 2254 proceedings to file an Anders
brief), with Smith, 184 Ariz. at 459, and Wilson v. Ellis, 176 Ariz. at 124 (“[W]e
are not commanding, nor do we want, trial courts to conduct Anders-type
reviews in PCRs.”), and State v. Thompson, 139 Ariz. at 554, and State v.
McFord, 125 Ariz. 377, 380 (App. 1980). Additionally, nothing in Arizona
Rule of Criminal Procedure 32 requires the superior court or this court to
conduct an Anders review of a defendant’s case. Ariz. R. Crim. P. 32.6(c). 6

¶13 While Arizona has granted defendants in of-right
post-conviction proceedings the right to counsel, State v. Pruett, 185 Ariz.
128, 131 (App. 1995), and the federal constitution guarantees defendants
counsel in such proceedings, Halbert v. Michigan, 545 U.S. 605, 610 (2005),
our supreme court has found no requirement that such state-created
post-conviction review be subject to Anders review. See Smith, 184 Ariz. at
460; see also Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (“[W]e reject [the]
argument that the Anders procedures should be applied to a state-created
right to counsel on postconviction review just because they are applied to
the right to counsel on first appeal that this Court established . . . .”);

6 While Chavez argues both the superior court and this court should
review his record for error, because this court’s review of petitions for
post-conviction relief is discretionary, Smith, 184 Ariz. at 459, there is
accordingly no right to an Anders-type review in this court of the dismissal
of an of-right PCR proceeding. See Pennsylvania v. Finley, 481 U.S. at 556.

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Fitzgerald v. Superior Court (State), 402 P.3d 442, 448, ¶ 17 (2017) (“[T]he right
to PCR counsel under § 13-4041(B) does not also create or include ‘a
“statutory right” to competence.’”).

¶14 Beyond theses authorities, the practicalities of the matter
demonstrate the fallacy in Chavez’s contentions. Chavez argues that,
because a defendant who goes to trial receives Anders review on direct
appeal, a defendant who pleads guilty should receive the same protections
in an of-right Rule 32 proceeding. But that argument ignores the significant
difference between a trial—where a record is created for review—and a plea
proceeding, where the proceedings (and record) are necessarily truncated
because of the guilty plea. A defendant who pleads guilty waives the right
to assert on review all non-jurisdictional defenses, including deprivations
of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“a
guilty plea represents a break in the chain of events which has preceded it
in the criminal process”; when a criminal defendant, on advice of counsel,
“has solemnly admitted in open court that he is guilty of [a charged
offense], he may not thereafter raise independent claims relating to
deprivation of constitutional rights” that antedated the plea). The rights a
defendant waives by pleading guilty include the right to a preliminary
hearing, the right to a jury trial, the right to cross-examine witnesses and
present evidence, the right to remain silent, and the right to a direct appeal.
See Halbert, 545 U.S. at 637, 642 (Thomas, J., dissenting) (“Legal rights, even
constitutional ones, are presumptively waivable.”). And because a pleading
defendant waives those rights, there is no need to create in the first instance
in the trial court a record relating to possible appellate claims—other than
for issues relating to the voluntariness of the guilty plea.

¶15 Unlike the direct appeal, where the appellate court has access
to the same record that appellate counsel reviews for error, the
post-conviction proceeding is one in which counsel can raise issues that are
not apparent from the court record. Generally, to prevail on a PCR claim,
counsel must investigate beyond the court record and present that evidence
to the superior court. For example, if PCR counsel raises an ineffective
assistance of counsel claim for failing to properly advise the defendant
about the plea agreement, PCR counsel must present evidence developed
outside the court record. But such an ineffective assistance of counsel claim
cannot be made without undertaking an investigation into extra-record
information. In contrast, when reviewing for the limited issues that can
arise in an of-right proceeding, superior courts do not undertake an
extra-judicial record investigation necessary to search for arguable issues.
Indeed, the necessity for an extra-judicial record was part of the reasoning
behind the elimination of direct appeals in plea agreement cases and the

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Opinion of the Court

change in the Arizona Rules of Criminal Procedure. See Charles R. Krull,
Eliminating Appeals from Guilty Pleas, ARIZONA ATTORNEY, Oct. 1992, at 35;
Crane McClennen, Eliminating Appeals from Guilty Pleas: Making the Process
More Efficient, ARIZONA ATTORNEY, Nov. 1992, at 16. Because the superior
court is not able to undertake an extra-record investigation, the court is
simply not situated to undertake an Anders-type review in a PCR
proceeding.

¶16 Additionally, the sheer volume of post-conviction of-right
petitions in the superior court bolsters our current procedure as well. There
were more than 3000 petitions for post-conviction relief pending in superior
court at the end of fiscal year 2016. Arizona Supreme Court, Superior Court
Case Activity Fiscal Year 2016, available at
http://www.azcourts.gov/Portals/39/2016DR/SuperiorCourt.pdf#page
=3. To require the superior court to conduct Anders-type reviews of the
record in all these cases would only further burden our already taxed state
court system, especially when “the number of meritorious cases is
‘infinitesimally small.’” Davila v. Davis, 137 S.Ct. 2058, 2070 (2017) (rejecting
a proposed rule that “would likely generate high systemic costs and low
systemic benefits”).

¶17 As the Amici have recognized in their briefing, without
further guidance from either the Arizona Supreme Court or the United
States Supreme Court, we will continue to follow our state’s established
procedure. See State v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) (“The
courts of this state are bound by the decisions of [the Arizona Supreme
Court] and do not have the authority to modify or disregard this court’s
rulings.”). Currently, that procedure does not require the superior court to
review of-right petitions for post-conviction relief for arguable issues in
accordance with Anders.

CONCLUSION

¶18 In accordance with the Arizona Supreme Court’s decisions
and our current Arizona Rules of Criminal Procedure, we hold that the
superior courts are not required to conduct Anders review in a Rule 32 of-
right petition. Accordingly, we grant review but deny relief.

C A T T A N I, J., specially concurring:

¶19 I agree that under controlling Arizona Supreme Court
authority and our current Rules of Criminal Procedure, Chavez is not
entitled to the relief he requests. I write separately, however, to express my
view that there are compelling reasons for the Arizona Supreme Court to

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Opinion of the Court

consider modifying the procedural rules to provide for a limited Anders-
type review in Rule 32 of-right proceedings for pleading defendants that is
similar to the review currently provided on appeal for non-pleading
defendants.

¶20 I recognize that there are significant differences between the
scope of review available following a guilty plea and that available
following a trial. As the Opinion notes, a pleading defendant waives all
non-jurisdictional defects—even constitutional claims—relating to issues
underlying the conviction. Moreover, the record created in plea
proceedings is necessarily more truncated than that developed during trial
proceedings. Nevertheless, certain claims—for example, those relating to
the voluntariness of the plea and to the sentence imposed—are not waived
by pleading guilty, and the truncated record is sufficient to enable review
of those types of claims. And because a pleading defendant in a noncapital
case may not appeal and is instead limited to a Rule 32 of-right proceeding,
the protections provided by an Anders procedure on appeal—in which a
court reviews the appellate record for non-frivolous issues after being
advised that counsel has not found any, see State v. Leon, 104 Ariz. at 299—
should arguably be applied as to viable issues in the of-right proceeding.

¶21 The Opinion notes the large number of cases that are resolved
through plea proceedings and the burden on the superior court that will
result from Anders-type review in those cases. Although I agree that
proposed procedures that generate significant systemic costs with low
systemic benefits should not be lightly undertaken, in my view, a carefully
tailored Anders-type procedure providing limited review of record-based,
non-waived claims should be provided by the superior court in of-right
post-conviction proceedings to ensure that pleading defendants are given
the same type of review of non-waived claims that non-pleading
defendants receive on appeal. 7

7 The Opinion notes—and I agree—that Anders-type review of
ineffective assistance of counsel claims is not feasible given that such claims
generally rely on an investigation beyond the judicial record. In the
hopefully rare case in which post-conviction counsel fails to identify and
develop a viable claim of ineffective assistance of plea counsel, such a claim
must be developed through a subsequent Rule 32 claim of ineffective
assistance of appellate (here, post-conviction) counsel, rather than through
an Anders-type review. And the same can be said for any other claim that
requires evidentiary development beyond the judicial record. Such claims
are necessarily beyond the scope of an Anders-type review.

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¶22 Furthermore, as detailed in the Opinion, in Pacheco v. Ryan,
the United States District Court for the District of Arizona ruled that the
United States Constitution requires the type of review Chavez seeks in this
case. The State apparently did not appeal the Pacheco decision and agrees
with Chavez and Amici that Anders-type review should be provided in of-
right post-conviction proceedings. Thus, assuming federal courts continue
to apply the rule set forth in Pacheco, unless Arizona institutes an Anders-
type review in Rule 32 of-right proceedings, those courts will presumably
continue to order the state court to conduct such an Anders-type review
following federal habeas proceedings under 18 U.S.C. § 2254, often years
after a defendant’s conviction becomes final in state court. Given these
circumstances, failing to incorporate Anders-type review in Rule 32 of-right
proceedings in the first instance simply delays the requested review.

¶23 The State has proffered a proposed rule to provide for
Anders-type review in Rule 32 of-right proceedings. And Amici in support
of Chavez note that several other jurisdictions provide such review
following plea proceedings, and that appellate courts in some of those
jurisdictions have published checklists for counsel to follow when filing an
Anders-type brief. I would adopt such a checklist, along with a requirement
that post-conviction counsel’s briefing detail the work done in assessing
whether there are viable claims for relief, as procedures to help to ensure
compliance with counsel’s obligations to the client and the court. And given
the general agreement by the parties and Amici that Anders-type review
should be provided in Rule 32 of-right proceedings, I would seek further
input from them, as well as others interested in the criminal justice system,
to craft procedures to ensure meaningful review of non-waived claims in
Rule 32 of-right proceedings.

AMY M. WOOD • Clerk of the Court
FILED: AA

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