Opinion
No. 2 CA-CR 2014-0288-PR
11-21-2014
THE STATE OF ARIZONA, Respondent, v. PAUL JESUS TORRES, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Paul Jesus Torres, Buckeye 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 NOT FOR PUBLICATION See Ariz.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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20103926001
The Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF GRANTED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Paul Jesus Torres, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
VÁSQUEZ, Judge:
¶1 Petitioner Paul Torres seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Because we conclude the trial court abused its discretion in appointing the same counsel to represent Torres on appeal and in his first Rule 32 proceeding, we grant relief.
¶2 After a jury trial, Torres was convicted of aggravated assault with a deadly weapon and simple assault. The trial court imposed an enhanced, maximum prison term of fifteen years for the aggravated assault conviction and a time-served term on the simple assault count. This court affirmed the convictions and sentences on appeal. State v. Torres, No. 2 CA-CR 2012-0379 (memorandum decision filed Mar. 29, 2013).
¶3 Torres initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record and could "find no issues for review." In a supplemental pro se petition, however, Torres raised claims of ineffective assistance of trial and appellate counsel. The trial court summarily denied relief.
¶4 On review Torres repeats his claims that trial and appellate counsel were ineffective. But, we do not now address those claims specifically because the trial court abused its discretion in appointing as Rule 32 counsel the same attorney who had represented Torres on appeal. Torres raised claims of ineffective assistance of appellate counsel in his pro se filings and asked for
new counsel based on "irreconcilable conflict" with appointed counsel, including that she had failed to investigate his claims and that counsel had a "conflict of interest" with him.
¶5 Pursuant to Rule 32.4(c)(2), the trial court is required to appoint counsel "[u]pon the filing of a timely or first notice in a Rule 32 proceeding." And, our supreme court has stated that just as "it is improper for appellate counsel to argue his own ineffectiveness at trial," Rule 32 counsel should not "argue his own ineffectiveness on direct appeal." State v. Bennett, 213 Ariz. 562, ¶ 14, 146 P.3d 63, 67 (2006). Discussing Bennett in the context of a pleading defendant's right to counsel in his or her second post-conviction relief proceeding and comparing that proceeding to one challenging counsel's effectiveness on appeal, this court concluded it was clear that Bennett required appointed counsel "be a different attorney than the one who represented the defendant in the first proceeding." Osterkamp v. Browning, 226 Ariz. 485, ¶ 20, 250 P.3d 551, 557 (App. 2011). Thus, the trial court abused its discretion in appointing the same attorney to represent Torres in his first Rule 32 proceeding and to investigate and raise his claims of ineffective assistance of appellate counsel.
¶6 Therefore, we grant the petition for review and grant relief. The matter is remanded to the trial court for appointment of new Rule 32 counsel.