Opinion
No. 1 CA-CR 18-0555 PRPC
03-28-2019
STATE OF ARIZONA, Respondent, v. ABDUL MAHADDIE UNDERWOOD, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Abdul Mahaddie Underwood, Eloy Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Review from the Superior Court in Maricopa County
No. CR2010-105811-001 CR2016-115949-001 CR2016-157480-001
The Honorable William R. Wingard, Commissioner
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Abdul Mahaddie Underwood, Eloy
Petitioner
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.
CAMPBELL, Judge:
¶1 Petitioner Abdul Mahaddie Underwood petitions this Court for review from the dismissal of his post-conviction relief proceeding. He has sought relief in three cases, which we have consolidated for review. For the following reasons, we grant review and deny relief.
BACKGROUND
¶2 In 2010, Underwood pled guilty to one count of misconduct involving weapons and one count of unlawful flight from a law enforcement vehicle. The superior court sentenced Underwood to six years' imprisonment, followed by two years of probation.
¶3 Underwood completed his prison term and started serving his consecutive probationary period. In 2016, Underwood committed new criminal offenses. The State charged him with misconduct involving weapons and possession of marijuana, dangerous drugs, and narcotic drugs for sale. While on warrant status in that case, Underwood committed additional criminal offenses and was charged with unlawful flight, theft of a means of transportation, and misconduct involving weapons.
¶4 In the 2016 cases, Underwood pled guilty to one count of possession of dangerous drugs for sale, one count of possession of narcotic drugs for sale, one count of unlawful use of means of transportation, and two counts of misconduct involving weapons, all non-repetitive offenses. The superior court sentenced Underwood to the aggregate term of twelve years' imprisonment, to be followed by four years of probation. The court revoked Underwood's probation he was serving in the 2010 case and sentenced him to an additional 1.5 years' imprisonment, concurrent to the twelve years he was serving in the 2016 cases.
¶5 Underwood filed a timely of-right notice of post-conviction relief in his 2016 cases. Ariz. R. Crim. P. 32. He also asked the superior court to appoint counsel, which the court granted. His court-appointed counsel subsequently filed a notice of completion, avowing she reviewed the record
in the 2010 and 2016 cases and found no colorable claims for relief. Counsel transferred the case files to Underwood with instructions that should he choose, he may proceed in pro per.
¶6 The superior court issued an order giving Underwood the opportunity to file a pro per petition for post-conviction relief by March 26, 2018 and directing appointed counsel to act in an advisory capacity. Underwood did not file a petition and the court summarily dismissed the proceeding on April 26, 2018. On July 2, 2018, Underwood filed an "Objection to Notice of Completion - and - Request for Appointment of Counsel and Independent Review by Court." The court declined to take action, finding the objection to be untimely. Underwood now seeks review of the superior court's dismissal of his post-conviction relief proceeding.
DISCUSSION
¶7 On review, Underwood argues the superior court abused its discretion in denying his objection to appointed counsel's notice of completion and request for new counsel. Underwood further argues he is entitled to independent review under Anders v. California, 386 U.S. 738 (1967), and its progeny. We will reverse the superior court's ruling on a Rule 32 petition only if an affirmative abuse of discretion appears. State v. Bowers, 192 Ariz. 419, 422, ¶ 10 (App. 1998). We have consistently held that "compliance with Rule 32 is not a mere formality." Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005). A petitioner must "strictly comply" with Rule 32 to be entitled to relief. Id.
¶8 Upon the filing of a timely or first notice in a Rule 32 proceeding, the superior court must appoint counsel for the defendant if the defendant requests it and the defendant is indigent. Ariz. R. Crim. P. 32.4(b)(2). Appointed counsel is required to review the record for any colorable claims and, if none are found, file a notice of completion advising the superior court of their determination. Ariz. R. Crim. P. 32.4(d)(1)-(2). The court must then allow the petitioner to file a Rule 32 pro per petition, extending the filing deadline to 45 days after counsel's notice of completion. Ariz. R. Crim. P. 32.4(d)(2)(B). The court is permitted to grant additional extensions based on a showing of extraordinary circumstances. Id.
¶9 Here, appointed counsel reviewed the record in all three cases and, finding no colorable claims, filed a timely notice of completion and promptly transferred the case file to Underwood. The superior court then ordered counsel to remain in an advisory capacity and provided Underwood with over 45 days to file a Rule 32 petition on his own behalf.
Underwood failed to file a petition within the time period granted by the court, nor did he request an extension. Instead, he let the time lapse and sought relief over three months after the court dismissed the proceeding.
¶10 In his objection to the notice of completion, filed after the court dismissed the proceeding, Underwood argued he was not provided meaningful assistance and therefore was unable to file a substantive petition in time. Underwood's Rule 32 counsel and the superior court proceeded in compliance with Rule 32.4. See Ariz. R. Crim. P. 32.4(b)(2), (d)(1)-(2). Underwood was appointed counsel and his counsel found no colorable claims; his next step was to proceed pro per within the timeframe set by the superior court. Because Underwood failed to "strictly comply" with Rule 32, he is not entitled to relief. See Canion, 210 Ariz. at 600, ¶ 11.
¶11 Underwood argues the superior court denied his right to counsel by accepting the notice of completion filed by appointed counsel. This claim similarly fails. The court complied with Rule 32.4, appointing counsel to represent Underwood and search for colorable grounds for relief. Finding none, counsel forwarded the record to Underwood, and continued to act in an advisory capacity. See Ariz. R. Crim. P. 32.4(d)(1)-(2). Underwood has not shown that the court's compliance with Rule 32.4 violated his right to counsel in this proceeding.
¶12 Lastly, Underwood is not entitled to a second independent review by a second court-appointed attorney. Nothing in Rule 32 requires the superior court or this court to conduct an Anders review of a defendant's case. Ariz. R. Crim. P. 32.6(c). We have previously held that an "Anders-type review" for arguable issues is not constitutionally required in a Rule 32 proceeding. State v. Chavez, 243 Ariz. 313, 318-19, ¶¶ 17-18 (App. 2017). The holding in Chavez is not somehow abrogated by federal law and Underwood has failed to provide any relevant supporting legal authority to support such a contention. See id. at ¶ 17.
CONCLUSION
¶13 For the foregoing reasons, we find the court did not abuse its discretion in dismissing the Rule 32 proceeding and declining to take action on Underwood's untimely objection and request for new counsel. Accordingly, we grant review but deny relief.