POST CONVICTION RELIEF

If you have been wrongfully convicted of a crime or wrongly sentenced for a crime in Arizona, you may be able to file for post conviction relief. Too often, through no fault of the criminal defendant, things go wrong during the criminal justice process. Fortunately, when you or a loved one has been convicted or sentenced unfairly there are still avenues of relief available. Contact an experienced post conviction relief attorney at Feldman & Royle to see how we can help you or a loved one.

What is Post Conviction Relief?

Post conviction relief is when a court gives relief to a person who has already been convicted of a crime. The purpose of post conviction relief is to allow a convicted person to raise issues that were unknown or unavailable at the time of trial, at the time they pleaded guilty, or at the time of sentencing. These issues must show that their conviction or sentence goes against fundamental fairness, which is essential to justice. Typically, the type of relief granted is either a new trial or sentencing hearing.

The types of issues that you can raise and the procedures you must follow when you seek post conviction relief are specifically set forth in the Arizona Rules of Criminal Procedure:

• Rule 32 applies to filing post conviction relief petitions when you have been convicted after being found guilty at trial (or sentenced after a probation violation hearing). See Rule
• Rule 33 applies to filing post conviction relief petitions when you have been convicted after pleading guilty (or after admitting to violating probation or found in automatic violation of probation). See Rule

Filing a post conviction relief petition is a way that you can challenge the legality of your conviction or sentence. But these types of petitions are not supposed to be used as a second appeal. You cannot seek post conviction relief based on any issues that you can still raise on direct appeal or in a post-trial motion. You also cannot raise the same issues that were raised and decided in any appeal of your case.

Post Conviction Relief vs Appeals

A petition for post conviction relief and a direct appeal are similar in that they are both ways to challenge the legitimacy of a conviction or sentence. They both ultimately seek the same result of a new trial or sentencing hearing. However, the post conviction relief process is not the same as a direct appeal.

• Direct appeals are only available if you were convicted after a trial—not if you were convicted by pleading guilty. Generally, plea deals are beneficial because they allow you to plead guilty to a less serious crime and/or reduce your punishment. When you plead guilty, however, you give up your right to a direct appeal.
• For defendants who plead guilty, post conviction relief proceedings are like direct appeals since they do not have a right to direct appeals.
• Post conviction relief is more limited than a direct appeal in the types of issues that you can raise. The types of issues you can raise in post conviction relief proceedings are limited by Rule 32 (trials) and Rule 33 (guilty pleas) of the Arizona Rules of Criminal Procedure.
• Direct appeals are limited to facts and issues on the official court record from your trial, guilty plea, or sentencing hearing. Post conviction relief proceedings allow you to present new facts and issues that are outside of the court record.

Colorable Claim

When you file a post conviction relief petition the court first determines whether you have raised what is called a “colorable claim.” A colorable claim is one that, if its allegations are true, might have changed the outcome of your case.

• If you do not have any colorable claims, then the court dismisses your petition.
• If you have any colorable claims, then you get an evidentiary hearing on those claims.

During an evidentiary hearing, you or your attorney present evidence to support your colorable claims. At the evidentiary hearing, you have burden of proving the facts of your claims by a preponderance of the evidence.

• This is unlike trial where the prosecution has the burden of proving your guilt beyond a reasonable doubt. Before convicted, defendants are presumed innocent and the prosecution has the burden to prove the case against you.
• After you are convicted, the law presumes that your conviction is valid. So, when you challenge the conviction, it is your burden to prove your claims.
• But, if you prove a constitutional violation, then the prosecution has the burden of proving beyond a reasonable doubt that the violation was harmless.

Usually within 10 days after the hearing (unless the issues are complex or there is a lot of evidence for the court to consider), the court will write a ruling on your claims. The court will either deny your claims or grant relief, typically by ordering a new trial or a new sentencing hearing.

Types of Post Conviction Relief Claims

Examples of the types of claims you can raise in a post conviction relief petition under Rule 32 (trials) or Rule 33 (guilty pleas) include the following:

1. Ineffective Assistance of Counsel

The most common claims for post conviction relief are claims of ineffective assistance of counsel. These can be claims against your attorney who represented you during trial, plea negotiations, sentencing, direct appeal, or even your first post conviction relief proceeding.

• A defendant’s right to assistance of counsel are guaranteed by the United States Constitution and the Arizona Constitution. Therefore, if a defendant has the ineffective assistance of counsel, then the defendant’s conviction or sentence is in violation of both the federal and state constitutions.
• Ineffective assistance of counsel claims must show that your attorney’s representation was defective. And that there is a reasonable probability that the results of your case would have been different if your attorney’s representation had not been defective.
• Examples of defective representation that could support an ineffective assistance of counsel claim include:
• • Failure to investigate evidence that could help your case.
  • Giving you false, misleading, or wrong information about your case.
  • Failure to properly advise you about the options you have in your case.
  • Failure to report a conflict of interest.
  • Failure to hire experts when necessary to fight the prosecution’s evidence.
  • Missing important court dates and deadlines.

2. Illegal Sentence

This is when you receive a sentence that is not authorized by law or the plea agreement.

• For example, in 2003, a defendant pleaded guilty to two counts of attempted child molestation that occurred between 1994 and 1996. The superior court sentenced the defendant to 10 years of prison for the first count and lifetime probation on the second count. The defendant sought relief from the lifetime probation sentence by filing a post conviction relief petition. He argued that lifetime probation was not authorized by Arizona law when he committed his crimes.
• The superior court denied his petition and the court of appeals denied review. But the Arizona Supreme Court agreed to review his case and held that the statutes in effect when the defendant committed his crimes did not authorize lifetime probation for attempted child molestation. A law that was amended to allow lifetime probation for attempted child molestation came into effect in 1997, after the defendant’s offense.
• So, the defendant’s lifetime probation sentence on count 2 was illegal. The Arizona Supreme Court vacated his lifetime probation sentence and sent his case back to the superior court for resentencing. In 2009, he was resentenced on count 2 and placed on 5 years of probation.

3. New Evidence

• This is when you discover new evidence that probably would have changed the outcome of your case or sentence. For example, new DNA evidence, a new significant witness, or a new mental health diagnosis for a condition that was not recognized at the time of your trial or sentencing.
• However, you can only bring a claim of new evidence if:
  • The evidence was discovered only after trial or sentencing; and
  • The evidence existed at the time of trial but could not have been discovered and produced at trial by you or your trial attorney through due diligence; and
  • You or your attorney must have exercised due diligence in discovering the new evidence and bringing the new evidence to the court’s attention; and
  • The new evidence is material to your case (meaning that it’s not only relevant, but it’s evidence that would have altered the outcome of your case).
• The new evidence cannot just add onto the evidence that you already had at trial. And it cannot just be impeachment evidence to attack the credibility of or contradict a witness’s testimony.
• But if the impeachment evidence probably would have changed the outcome of your case because it seriously undermines crucial testimony used to convict you, then it may qualify as a colorable claim of newly discovered evidence.
• For example, new evidence that the prosecution’s key witness lied to the jury regarding the witness’s drug use may establish a colorable claim. Drug use and lying about drug use call into question the witness’s ability to observe and recall events.

4. Change in the Law

• This is when there has been a significant change in the law that would apply to your case and overturn your conviction or sentence.
• Even if there has been a significant change in the law, you can only get relief if the new law can be applied retroactively to your case. This means that the new law has to be able to be applied to past events.

Deadlines for Post Conviction Relief

Filing Notice Requesting Post Conviction Relief

To start a post conviction relief proceeding, you must file a Notice Requesting Post Conviction Relief. This notice provides information about you, your sentence, and states generally which claims you are raising under either Rule 32 or Rule 33 of the Arizona Rules of Criminal Procedure.

• Due 90 days after sentencing or 30 days after direct appeal mandate. For claims involving constitutional violations, such as ineffective assistance of counsel, you must file your notice requesting post conviction relief within 90 days after the date you were sentenced or within 30 days after a direct appeal mandate is issued, whichever is later. A direct appeal mandate is the final order of the appellate court.
• Due within reasonable time after discovery. For all other claims, you must file your notice requesting post conviction relief within a reasonable time after discovering the basis of your claims.
• Untimeliness not the defendant’s fault. If the failure to meet the filing deadline was not your fault, then you can explain this to the court. The court may excuse your untimely notice requesting post conviction relief if it accepts your explanation.

Filing Petition for Post Conviction Relief

The Petition for Post Conviction Relief is where you must provide facts, legal authorities, and documents to support your claims. The goal is to show the court that your claims are colorable claims and to give you an evidentiary where you can present further evidence to the court.

• Due 60 days after notice filed. Generally, you must file your petition for post conviction relief no later than 60 days after your notice requesting post conviction relief is filed.

Post Conviction Relief Attorney

The attorneys at Feldman & Royle can help you navigate the complexities of seeking post conviction relief. Additionally, in rare situations, if you are granted a new trial or sentencing hearing, you may expose yourself to even more serious convictions or punishment. Therefore, it is important for you to have a post conviction relief attorney with the proper experience to assess whether you should move forward with a request for post conviction relief. If post conviction relief is the correct path, then you will also need an experienced post conviction relief attorney to conduct a post conviction investigation and file the appropriate records to best support your claims. Call us at Feldman & Royle to discuss your post conviction relief options.