State v. Lewis

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ANOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 11/17/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Respondent, v. DEANDRAY VESCHONNE LEWIS, Petitioner. Petitioner Deandray Veschonne No. 1 CA-CR 10-0390 PRPC DEPARTMENT A MARICOPA County Superior Court No. CR2006-162448-001 SE DECISION ORDER Lewis petitions this court for review from the summary dismissal of his petition for postconviction relief. Presiding Judge Ann A. Scott Timmer, and Judges Patrick Irvine and Daniel A. Barker, have considered this petition for review, and for the reasons stated, grant review and grant relief. FACTS AND PROCEDURAL HISTORY Lewis pled guilty to attempted first-degree murder. He was sentenced to an aggravated term of eighteen years imprisonment. He timely filed his post-conviction relief of-right, and he was appointed counsel. After reviewing the file, appointed counsel notified the court she was unable to find any claims for relief. Counsel remained as advisory counsel, and Lewis was 1 CA-CR 10-0390 PRPC MARICOPA COUNTY Superior Court No. CR2006-162448-001 SE Page 2 permitted to file a pro se petition. raised claims of ineffective In his petition, Lewis assistance of counsel ( IAC ), prosecutorial misconduct, and an abuse by the trial court of its sentencing discretion. The State filed its response and addressed each claim. Lewis filed a reply, and the trial court, citing the reasons set forth in the State s response, found no colorable claims and dismissed the petition. Lewis timely petitioned this court for review, but review was denied. State v. Lewis, 1 CA-CR 08- 0826PR (Ariz. App. Feb. 3, 2010) (order). On March 3, 2010, Lewis timely filed a notice of postconviction relief ( PCR ) in which he sought to raise a claim of ineffective assistance of his Rule 32 counsel. court appoint counsel. He requested the However, on April 29, 2010, the trial court summarily dismissed the notice of PCR as an untimely and successive PCR proceeding. Lewis timely petitioned this court for review. DISCUSSION Relying on Arizona Rule of Criminal Procedure 32.4(a) and State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995) (holding that pleading defendant may file second notice of 1 CA-CR 10-0390 PRPC MARICOPA COUNTY Superior Court No. CR2006-162448-001 SE Page 3 PCR alleging IAC of Rule 32 of-right counsel within thirty days of final order by appellate court in first PCR proceeding), Lewis argues the trial court abused dismissed his second notice of PCR. its discretion when it The State concedes: In this case, Defendant filed his second notice within the timeframe of Rule 32.4(a) and in that notice and accompanying petition his claims were characterized as ones of ineffective assistance of his first PCR counsel. For this reason, the State agrees that Defendant s second notice and PCR should not have been dismissed on timeliness grounds. The State contends, however, the PCR was properly dismissed on other grounds. after appointed Lewis represented himself in his first PCR counsel claims to present. notified the court she had found no The State argues that Lewis may not now challenge his own asserted ineffectiveness or challenge advisory counsel s effectiveness. This argument challenging his effectiveness. misses own the mark. effectiveness, nor Lewis was advisory neither counsel s He claimed in his notice of PCR that his Rule 32 counsel was ineffective for failing to find and/or raise certain issues. find any In other words, he claimed that counsel s failure to claims for relief was ineffective assistance, a 1 CA-CR 10-0390 PRPC MARICOPA COUNTY Superior Court No. CR2006-162448-001 SE Page 4 cognizable claim. This situation is analogous to the one in which files a defendant a PCR and challenges his appellate counsel s effectiveness when counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1969). As noted by this court, Moreover, if the defendant perceives that counsel has not effectively assisted in the presentation of his appeal, the defendant may petition for post-conviction relief under our rules. See State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (App. 1995) (holding that an allegation of ineffective assistance of appellate counsel is encompassed within Ariz. R. Crim. P. 32.1 as a claim that the conviction or sentence was in violation of the federal or state constitution). This procedure provides additional scrutiny of appointed counsel s and the court s determination that the appeal is frivolous. State v. Clark, 196 Ariz. 530, 538, ¶ 35, 2 P.3d 89, 97 (App. 1999). The State s second argument is equally unavailing. the IAC claims identical or set forth derivative in of the those second raised notice in the of Whether PCR first are PCR, Lewis asked for and is entitled to the appointment of counsel to review previous Rule 32 counsel s effectiveness. Ariz. R. Crim. P. 32.4(c)(2); Pruett, 185 Ariz. at 131, 912 P.2d at 1360. 1 CA-CR 10-0390 PRPC MARICOPA COUNTY Superior Court No. CR2006-162448-001 SE Page 5 Because Lewis timely filed his second notice of PCR, he is entitled to have independent counsel appointed to assist him and to review previous Rule 32 counsel s effectiveness. Osterkamp v. Browning, 226 Ariz. 485, 488, ¶ 11, 250 P.3d 551, 554 (App. 2011) (defendant investigate and entitled possibly to assert counsel had been ineffective). appointment a claim of that counsel first Rule to 32 Therefore, it was an abuse of discretion for the trial court to summarily dismiss the second PCR. CONCLUSION We vacate the trial court s order of dismissal and remand this matter for reinstatement of the second PCR and for further proceedings consistent with this decision. /s/ Ann A. Scott Timmer Presiding Judge

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