Opinion
No. 1 CA-SA 15-0006
02-24-2015
ANTONIO ROJAS, Petitioner, v. THE HONORABLE DEREK CARLISLE, Judge Pro Tempore of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MOHAVE, Respondent Judge Pro Tempore, STATE OF ARIZONA, Real Party in Interest.
COUNSEL The Brewer Law Office, Show Low By Benjamin M. Brewer Counsel for Petitioner Mohave County Attorney's Office, Kingman By Matthew J. Smith Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Special Action from the Superior Court in Mohave County
No. CR 2013-1533
The Honorable Derek Carlisle, Judge Pro Tempore
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART
COUNSEL The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Petitioner
Mohave County Attorney's Office, Kingman
By Matthew J. Smith
Counsel for Real Party in Interest
DECISION ORDER
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined. CATTANI, Judge:
¶1 Antonio Rojas seeks special action relief from the superior court's orders denying his post-conviction counsel's request for a copy of the court file and request for preparation of two transcripts. The State did not file a response to the petition. Because Rojas has no timely or adequate right to appeal these denials, we accept jurisdiction. See Ariz. R.P. Spec. Act. 1(a). For reasons that follow, we grant relief in part and direct the superior court to order preparation of one of the requested transcripts (relating to proceedings on April 9, 2014).
¶2 Rojas pleaded guilty to two counts of promoting prison contraband and one count of possession of narcotic drugs for sale, and he was sentenced to three concurrent 8-year prison terms. He then filed a notice of post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure, noting a claim of ineffective assistance of counsel and requesting appointment of post-conviction counsel.
¶3 Post-conviction counsel requested that the court provide him a copy of the entire court file. The court denied this request and a subsequent motion for reconsideration, noting that counsel had not specified any particular documents that could not be accessed in trial counsel's file.
¶4 Post-conviction counsel also filed a motion requesting preparation of (1) the transcript of a hearing on April 9, 2014 during which the court denied Rojas's motion for change of counsel, which post-conviction counsel characterized as relevant to a claim of ineffective assistance of counsel, and (2) the transcript of a Donald hearing on May 8, 2014, to ensure that the court correctly detailed the potential sentencing ranges for the crimes at issue before Rojas entered his guilty plea. The court denied these requests, reasoning that the motion did not show the requisite connection between the transcripts requested and the issues to be raised in the Rule 32 petition.
¶5 In his special action petition, Rojas first argues that the superior court erred by denying post-conviction counsel's request for a copy of the court file. But post-conviction counsel had access to the relevant case documents through trial counsel's file. See Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) (noting that the right to production of documents in Rule 32 of-right proceedings is limited to those documents not otherwise available). And the superior court stated that, to the extent trial counsel's file is incomplete, post-conviction counsel may request copies of missing documents from the court. Notwithstanding current counsel's assertion that reviewing trial counsel's file is "time consuming," the superior court's approach regarding file review is reasonable.
¶6 Rojas next claims the court erred by denying his request for a transcript of the May 8, 2014 Donald hearing. He argues that if Rojas was advised of an incorrect sentencing range at that hearing, the transcript could disclose a basis for withdrawal of the guilty plea. The record shows that two transcripts—presumably of a July 7, 2014 change of plea hearing and an August 4, 2014 sentencing hearing—were produced in early December 2014. The minute entry from the July 7 change of plea hearing recounts that the court advised Rojas of the possible penalties associated with the charged offenses as required under Ariz. R. Crim. P. 17.2(b), as well as the penalty provisions in the plea agreement. Because this transcript—including the court's description of the sentencing ranges—is apparently already available, Rojas has not shown how the transcript of the May 8 hearing is "necessary to resolve the issues to be raised in the petition," Ariz. R. Crim. P. 32.4(d), and the superior court did not err by denying his request for the that transcript. If counsel proffers different grounds for why the transcript may be relevant, or if counsel specifies why the transcript is necessary despite the availability of the change of plea transcript, he may reurge the matter.
¶7 Finally, Rojas argues the superior court erred by denying his request for a transcript of a nine-minute hearing on April 9, 2014 during which the court addressed and denied Rojas's motion for change of counsel. We agree. Rojas's notice of post-conviction relief indicated an intent to raise a claim of ineffective assistance of counsel, and the on-the-record discussion of his motion for change of counsel—which, according to the minute entry, included statements by Rojas, argument from trial counsel, and oral findings and a ruling by the court—may arguably be related to this issue. The superior court thus should have ordered preparation of the April 9, 2014 transcript under Rule 32.4(d).
¶8 Accordingly, we accept jurisdiction and grant relief in part by directing the superior court to order a transcript of the April 9, 2014 hearing; all other relief requested is denied.
State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000).