Opinion
No. 2 CA-CR 2017-0270-PR
03-09-2018
THE STATE OF ARIZONA, Respondent, v. ANDREW BRADFORD TREE, Petitioner.
Andrew Tree, Eloy In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Cochise County
No. CR201200536
The Honorable Wallace R. Hoggatt, Judge
REVIEW GRANTED; RELIEF DENIED
Andrew Tree, Eloy
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Andrew Tree seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Tree has not shown such abuse here.
¶2 After a jury trial, Tree was convicted of first-degree burglary, false reporting, and two counts each of aggravated assault with a deadly weapon, weapons misconduct, and aggravated assault against a peace officer. The trial court imposed consecutive and concurrent prison terms totaling 21.25 years. We affirmed his convictions on appeal, but vacated his sentences for weapons misconduct, ordering the court to resentence Tree on those counts and impose those sentences concurrently to his other terms. State v. Tree, No. 2 CA-CR 2013-0374 (Ariz. App. July 14, 2014) (mem. decision). We corrected two other sentences and affirmed the remainder. Id. ¶ 7. Resentencing resulted in a 16.75-year aggregate prison term, which we affirmed after Tree was granted leave to file a delayed appeal. State v. Tree, No. 2 CA-CR 2016-0059 (Ariz. App. Sep. 15, 2016) (mem. decision).
¶3 In August 2013, while his first appeal was pending, Tree filed a notice of post-conviction relief and the trial court appointed counsel. The proceeding was stayed until after Tree was granted permission to pursue his late appeal after resentencing, when counsel moved to dismiss "the Rule 32 proceedings." The motion stated the pending proceedings were now "moot" because "Mr. Tree was filing a Rule 32 so that he could get back into the Court of Appeals" and the request for a late appeal had been granted. The court granted that motion in January 2016.
While the initial proceeding was stayed, Tree filed a pro se notice of post-conviction relief in August 2014 and another pro se notice in August 2015. --------
¶4 In April 2017, after our decision but two months before our mandate issued in Tree's second appeal, Tree filed a pro se notice of post-conviction relief. Although the trial court appointed counsel, Tree filed a pro se petition for post-conviction relief in which he argued his various counsel had been ineffective for failing to argue that his arraignment was delayed improperly and that he was charged via an unconstitutional "secret[] indict[ment]," thereby depriving the court of jurisdiction. He additionally claimed his counsel had failed to comply with "American BAR Association standards," apparently because they did not disclose a conflict of interest based on their status as "government agent[s]" paid by the state. The state filed a response, and Tree filed a reply.
¶5 At a hearing held at appointed counsel's request, Tree explained that he was "not comfortable having any counsel that is unable to disclose the conflicts that are inherent in this case; i.e., being the third party payment scheme and their first duty to the court and not to me." The trial court determined that it would not "force Mr. Tree to accept counsel if he's telling me he doesn't want [assigned counsel] and doesn't want me to appoint anybody else," and that Tree did not have a right to counsel in the proceeding. Thus, the court concluded, Tree had "withdrawn his request for post-conviction counsel" and "wishes to represent himself."
¶6 After reviewing the petition, response, and reply, the trial court summarily denied relief. It concluded the bulk of Tree's claims were precluded because they could have been raised on appeal or in his first post-conviction proceeding. The court further concluded that, although Tree's claim that counsel had been ineffective at resentencing was not precluded, it was not colorable. This petition for review followed.
¶7 On review, Tree first asserts the trial court "ignored" his "jurisdictional challenge," apparently his claims regarding his arraignment and indictment. Tree raised these claims as claims of ineffective assistance. As such, they cannot be raised in an untimely or successive proceeding, nor can a challenge to the court's jurisdiction. See Ariz. R. Crim. P. 32.1(a), (b), 32.2(b), 32.4(2)(A). Not only was Tree's most-recent notice of post-conviction relief successive because he voluntarily dismissed his first proceeding, it was untimely because it was not filed within thirty days of our mandate affirming his convictions and the bulk of his sentences. See Ariz. R. Crim. P. 32.4(2)(D); cf. State v. Rosales, 205 Ariz. 86, ¶ 8 (App. 2003) (claims regarding resentencing are independent of claims of ineffective appellate counsel). Thus, like the trial court, we consider Tree's claims only insofar as they relate to his resentencing.
¶8 To the extent Tree claims his counsel at resentencing was ineffective for failing to disclose a conflict of interest, that claim fails because Tree has not established that any conflict exists. Tree does not assert the trial court erred by concluding he was or should have been aware his appointed counsel was being paid by public funds and had nonetheless raised no objection. Cf. Ariz. R. Sup. Ct. 42, ER 1.8(f) (permitting lawyer to accept compensation from third party if "client gives informed consent"). In any event, to find such a conflict would be absurd in light of the fact that indigent defendants are entitled to counsel at county expense. See generally A.R.S. §§ 11-584, 13-4013; Gideon v. Wainwright, 372 U.S. 335 (1963). Moreover, Tree has cited no authority, and we find none, suggesting that counsel's ethical duties to the court and opposing counsel create a conflict of interest. For the same reasons, we reject Tree's claim that appointed counsel in this proceeding was somehow unable to represent him as a result of a conflict of interest.
¶9 We grant review but deny relief.