Opinion
No. 2 CA-CR 2017-0059-PR
06-13-2017
THE STATE OF ARIZONA, Respondent, v. SEAN PATRICK KELLEY, Petitioner.
Sean Kelley, 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pima County
Nos. CR20134079001 and CR20134714001
The Honorable Kenneth Lee, Judge
REVIEW DENIED IN PART AND GRANTED IN PART; RELIEF GRANTED
Sean Kelley, Eloy
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Howard concurred. VÁSQUEZ, Presiding Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Sean Kelley seeks review of the trial court's ruling denying his petition for post-conviction relief filed pursuant to Rule 32.1, Ariz. R. Crim. P. Because Kelley is entitled to appointed counsel, we grant review and relief in part.
¶2 In CR20134079001, Kelley pled guilty to aggravated assault and was sentenced to a 4.5-year prison term. In CR20134714001, he was convicted of resisting arrest and four counts of aggravated driving under the influence of an intoxicant. He was sentenced to concurrent prison terms, the longest of which were ten years, to be served consecutively to the term imposed in CR20134079001. We affirmed on appeal his convictions and sentences in CR20134714001. State v. Kelley, No. 2 CA-CR 2014-0366 (Ariz. App. Apr. 13, 2015) (mem. decision).
¶3 Kelley filed a notice of post-conviction relief in CR20134079001, and appointed counsel filed a notice stating she had reviewed the record but "found no viable legal issues which could be raised under Rule 32." The trial court granted leave for Kelley to file a pro se petition, but dismissed the proceeding when he failed to do so within the time allowed.
¶4 Kelley filed a motion for reconsideration listing both cause numbers and asking that his Rule 32 proceeding be reinstated and that he be allowed to file a petition for post-conviction relief. The trial court granted the motion as to both cause numbers. Kelley then filed a petition arguing his trial counsel in CR20134714001 had been ineffective. The court summarily denied relief, and this petition for review followed.
Although the trial court's order denying relief initially listed only CR20134079001, the court later clarified that it denied relief in both cause numbers.
¶5 On review, Kelley restates his claim of ineffective assistance and asserts he is entitled to an evidentiary hearing. We do not address these arguments, however, because Kelley was entitled to counsel in his Rule 32 proceeding in CR20134714001. Pursuant to Rule 32.4(c)(2), the trial court is required, if requested, to appoint counsel for an indigent defendant in his first post-conviction proceeding. Here, rather than require Kelley to initiate a Rule 32 proceeding in CR20134714001 by filing a notice of post-conviction relief, see Ariz. R. Crim. P. 32.4(a), the court permitted Kelley to file a pro se petition. In doing so, it essentially deemed his notice in CR20134079001 effective as to both cause numbers. Kelley requested counsel in that notice, and thus he was entitled to appointed counsel in his first post-conviction proceeding in CR20134714001.
We initially suspended this case to allow the trial court to evaluate whether Kelley was entitled to counsel in CR20134714001. The court declined to do so, noting his case had been reviewed on direct appeal and the issues he had raised were "not viable." Nothing in Rule 32.4(c), however, premises a first-time petitioner's right to counsel on the trial court's view whether he has any cognizable claims. --------
¶6 Because Kelley has raised no arguments related to CR20134079001, we deny review as to that cause number. As to CR20134714001, we grant review and relief. The trial court is directed to appoint counsel for Kelley.