As stated earlier, a person who loses at trial has two potential options for relief: 1) an appeal and 2) a petition for post-conviction relief. In general, an appeal is a chance for a convicted person to challenge legal rulings in his or her case to a higher court, the Arizona Court of Appeals or Supreme Court. But in Arizona, an appeal is limited to what is in the court record. Sometimes, new facts are required and this must be done in the lower courts. This is because the trial court is the fact-finding court. This type of action is known as a Rule 32 Petition for Post-Conviction Relief (PCR for short). If a person is convicted through a plea agreement, then this is the only form of relief. This is now called a Rule 33 Petition for Post-Conviction Relief.

A person convicted at trial has both forms of possible relief while a person who accepts a plea agreement only has a Rule 33 petition for post-conviction relief. This is because a person convicted by plea agreement waived their trial so there is nothing to appeal from.

The deadline for filing a petition for post-conviction relief is 30 days from the issuance of the final mandate (the date a person’s appeal becomes final) in the case of a Rule 32 petition or 90 days from the date of sentencing in the case of Rule 33 petition (conviction from a plea agreement).

While it’s easy to track 90 days from sentencing, the final mandate is a little trickier. A mandate is issued 30 days after a decision in an appeal is issued. So, for example, if the Arizona Court of Appeal issued a decision in my appeal on January 1, 2020, I would have 30 days to file a petition for review with the Arizona Supreme Court. If I chose not to do so, then the decision from the Court of Appeals would become final 30 days later. The mandate is the document that confirms the appellate decision is now final. Let’s say the mandate issues on January 31, 2020, the deadline to file a petition for post-conviction relief would start running on January 31st and I’d have 30 days to file my petition from that date.

But what if you’ve missed the deadline? There are still some avenues for relief, but they are much narrower in scope. Consult with an attorney to see if you have a potential claim. But please note that the longer you wait, the harder and less likely it is that you’ll have a claim. In other words, don’t delay consulting with an attorney.

There are 8 enumerated grounds of relief for post-conviction relief. They are:

The conviction or sentence was in violation of the United States are Arizona constitutions;

There was no jurisdiction to render a judgement or sentence;

The sentence exceeded the maximum authorized by law or was not in accordance with it;

The defendant remains in custody after his or her sentence expired;

There are newly discovered material facts that would probably change the verdict or sentence that were discovered after the trial or sentencing, and they were not able to be discovered previously despite due diligence;

The failure to timely file a petition for post-conviction relief was no fault of the defendant’s (this is one of the rare claims that can be filed at any time);

There was a significant change in the law that would probably overturn the conviction or sentence (this is one of the rare claims that can be filed at any time);

The defendant demonstrates by clear and convincing evidence that the facts underlying the claim were insufficient to support a guilty verdict beyond a reasonable doubt (this is one of the rare claims that can be filed at any time).

Even though there are 8 possible claims that can be raised in a petition for post-conviction relief, the three most popular are ineffective assistance of counsel (a subset of claim #1), newly discovered evidence, and that a person remains in custody after his or her sentence expired. The first two might be obvious but the latter happens when the court inadvertently miscalculates the appropriate credit for time a person should have received at sentencing.

One of the biggest reasons a Rule 32 or 33 is tricky is the rule of preclusion. The rule of preclusion states that:

A defendant is precluded from relief under Rule 32 (or Rule 33) based on any ground:(1) still raiseable on direct appeal…or in a post-trial motion… or finally adjudicated on the merits in an appeal or in any previous collateral proceeding; or (3) waived at trial, on appeal, or in any previous collateral proceeding.

In other words, if the Court of Appeals could have decided the issue and you failed to raise it, it’s gone. Alternatively, if the issue was already raised with the Court of Appeals and they decided the issue, it’s gone. Lastly, if the issue was waived in the plea agreement, it’s gone. There are some exceptions to that rule because there are some things a person can’t waive in a plea agreement but, for the most part, the rule narrows the claims down substantially.

The reason for the rule of preclusion is Arizona law wants finality to its judgments. To prevent an endless loop of litigation, Rule 32 and 33 petitions are, in effect, the last-ditch effort to get relief from a conviction. There are some narrow exceptions to this but, for the most part, this is the last chance for relief. Essentially, you have one shot in a PCR to raise any claims that are not already precluded. That’s why it is so important to have a good attorney handle your Rule 32 or 33 petition.

At the Heath Law Firm, there are a couple of ways we can help. The first question a person has is whether they even have a cause of action. We would like to discuss your case with you, sift through the trial or appeal record, and provide a detailed analysis of what causes of action we think you may have and the chances for success.

If you decide to move forward after that, we can handle your entire PCR from start to finish. This includes investigating the facts, drafting the petition for post-conviction relief, and arguing your petition before the trial court.

We also provide consultation services if you already are in the PCR process to help identify any additional issues and provide a second opinion.

If you are considering filing a petition for post-conviction relief, do not delay seeking out an experienced attorney. Time is of the essence. These causes of action are time-sensitive. Also, it is important not to trust your petition to just anyone. Make sure that your attorney is experienced in handling these types of cases. Ask them about their success rate and if they have successfully won a PCR. At the Heath Law Firm, we promise to provide our very best work and we will bring our experience and past successes to this unique area of Arizona law.