SB1413 - 511R

Be it enacted by the Legislature of the State of Arizona:START_STATUTE

Section 1. Section 13-4033, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4033. Appeal by defendant; appointment of counsel in capital cases; time limits

A. An appeal may be taken by the defendant only from:

1. A final judgment of conviction or verdict of guilty except insane.

2. An order denying a motion for a new trial.

3. An order made after judgment affecting the substantial rights of the party.

4. A sentence on the grounds that it is illegal or excessive.

B. In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.

C. In capital cases a defendant's direct appeal is to the Arizona supreme court. Following a notice of appeal that is filed pursuant to rule 31.2, Arizona rules of criminal procedure, the supreme court shall immediately appoint qualified appellate counsel. A defendant's opening brief is due within sixty days after the filing of the defendant's petition for review from the trial court's denial of relief in the first postconviction relief proceeding.

C. D. A defendant may not appeal under subsection A, paragraph 1 or 2 of this section if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary. END_STATUTE

Sec. 2. Section 13-4041, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4041. Fee of counsel assigned in criminal proceeding or insanity hearing on appeal or in postconviction relief proceedings; reimbursement

A. Except pursuant to subsection G of this section, if counsel is appointed by the court to represent the defendant in either a criminal proceeding or insanity hearing on appeal, the county in which the court from which the appeal is taken presides shall pay counsel, except that in those appeals where the defendant is represented by a public defender or other publicly funded office, compensation shall not be set or paid. Compensation for services rendered on appeal shall be in an amount as the supreme court in its discretion deems reasonable, considering the services performed.

B. After the supreme court has affirmed a defendant's conviction and sentence filing of a notice of appeal in a capital case, the supreme court or, if authorized by the supreme court, the presiding judge of the county from which the case originated shall appoint counsel to represent the capital defendant in the state postconviction relief proceeding.

C. The supreme court shall establish and maintain a list of persons who are qualified to represent capital defendants in postconviction proceedings. The supreme court may establish by rule more stringent standards of competency for the appointment of postconviction counsel in capital cases than are provided by this subsection. The supreme court may refuse to certify an attorney on the list who meets the qualifications established under this subsection or may remove an attorney from the list who meets the qualifications established under this subsection if the supreme court determines that the attorney is incapable or unable to adequately represent a capital defendant. The court shall appoint counsel from the list. Counsel who are appointed from the list shall meet the following qualifications:

1. Be a member in good standing of the state bar of Arizona for at least five years immediately preceding the appointment.

2. Have practiced in the area of state criminal appeals or postconviction proceedings for at least three years immediately preceding the appointment.

3. Not previously have represented the capital defendant in the case either in the trial court or in the direct appeal, unless the defendant and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation.

D. Before filing a petition, the capital defendant may personally appear before the trial court and waive counsel. If the trial court finds that the waiver is knowing and voluntary, appointed counsel may withdraw. The time limits in which to file a petition shall not be extended due solely to the change from appointed counsel to self‑representation.

E. If at any time the trial court determines that the capital defendant is not indigent, appointed counsel shall no longer be compensated by public monies and may withdraw.

F. Unless counsel is employed by a publicly funded office, counsel appointed to represent a capital defendant in state postconviction relief proceedings shall be paid an hourly rate of not to exceed one hundred seventy-five dollars per hour for up to two hundred hours of work, whether or not a petition is filed. Monies shall not be paid to court appointed counsel unless either:

1. A petition is timely filed.

2. If a petition is not filed, a notice is timely filed stating that counsel has reviewed the record and found no meritorious claim.

G. On a showing of good cause, the trial court shall compensate appointed counsel from county funds in addition to the amount of compensation prescribed by subsection F of this section by paying an hourly rate in an amount that does not exceed one hundred seventy-five dollars per hour. The attorney may establish good cause for additional fees by demonstrating that the attorney spent over two hundred hours representing the defendant in the proceedings. The court shall review and approve additional reasonable fees and costs. If the attorney believes that the court has set an unreasonably low hourly rate or if the court finds that the hours the attorney spent over the two hundred hour threshold are unreasonable, the attorney may file a special action with the Arizona supreme court. If counsel is appointed in successive postconviction relief proceedings, compensation shall be paid pursuant to section 13‑4013, subsection A.

H. The county shall request reimbursement for fees it incurs pursuant to subsections F, G and I of this section arising out of the appointment of counsel to represent an indigent capital defendant in a state postconviction relief proceeding. The state shall pay fifty per cent of the fees incurred by the county out of monies appropriated to the supreme court for these purposes. The supreme court shall approve county requests for reimbursement after certification that the amount requested is owed.

I. H. The trial court may authorize additional monies to pay for investigative and expert services that are reasonably necessary to adequately litigate those claims that are not precluded by section 13‑4232. END_STATUTE

Sec. 3. Section 13-4231, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4231. Scope of postconviction relief

Subject to the limitations of section 13‑4232, any person who has been convicted of or sentenced for a criminal offense may, without payment of any fee, may institute a proceeding to secure appropriate relief on any of the following grounds:

1. The conviction or the sentence was in violation of the Constitution of the United States or of this state.

2. The court was without jurisdiction to render judgment or to impose sentence.

3. The sentence imposed exceeded the maximum authorized by law or is otherwise not in accordance with the sentence authorized by law.

4. The person is being held in custody after his sentence has expired.

5. Newly discovered material facts probably exist and that the facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:

(a) The newly discovered material facts were discovered after the trial.

(b) The defendant exercised due diligence in securing the newly discovered material facts.

(c) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which that was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.

6. The defendant's failure to appeal from the judgment or sentence, or both, within the prescribed time was without fault on his part.

7. There has been a significant change in the law that if determined to apply to the defendant's case would probably overturn the defendant's conviction or sentence.

8. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that a reasonable fact finder would not have found the defendant guilty of the underlying offenses beyond a reasonable doubt, or in a capital case a reasonable fact finder would not have found the defendant guilty of at least one aggravating circumstance that made the defendant eligible for a death sentence. END_STATUTE

Sec. 4. Section 13-4232, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4232. Preclusion of postconviction relief; exceptions

A. A defendant is precluded from relief under this article based on any ground:

1. Still raisable on direct appeal or on a post‑trial motion based on the existing record at the time the postconviction petition is filed.

2. Finally adjudicated on the merits on appeal or in any previous collateral proceeding.

3. That was waived at trial, on appeal or in any previous collateral proceeding.

B. This section does not apply to claims for relief pursuant to section 13‑4231, paragraph 4, 5, 6 or 7. If a claim under section 13‑4231, paragraph 4, 5, 6 or 7 is to be raised in a successive or untimely petition, the notice shall set forth the substance of the claim and the reasons for not raising the claim in the previous petition or in a timely manner. If the notice does not state meritorious reasons substantiating the claim and why the claim was not stated in the previous petition or in a timely manner, the proceeding shall be summarily dismissed.

C. Except for summary dismissals pursuant to subsection B of this section, the state shall plead and prove any ground of preclusion by a preponderance of the evidence. Though the state has the burden to plead and prove grounds of preclusion, Any court on review of the record may determine and hold that an issue is precluded regardless of the state's failure to raise the preclusion issue. END_STATUTE

Sec. 5. Section 13-4233, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4233. Nature of proceeding and relation to other remedies

A proceeding pursuant to this article is a part of the original criminal action and not a separate action. It displaces and incorporates all trial court post‑trial remedies except post‑trial motions. and habeas corpus. If a defendant applies for a writ of habeas corpus in a court having jurisdiction of his person attacking the validity of his conviction or sentence, that court pursuant to this article shall transfer the cause to the court where the defendant was convicted or sentenced and that court shall treat it as a petition for relief under this article and the procedures of this article apply. END_STATUTE

Sec. 6. Section 13-4234, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4234. Commencement of proceedings; notice; appointment of counsel for capital defendants; assignment of judge; stay

A. A proceeding is commenced by timely filing a notice of postconviction relief with the clerk of the court in which the conviction occurred. The clerk of the trial court shall provide notice forms for commencement of first and successive postconviction relief proceedings. The notice shall bear the caption of the original criminal action to which it pertains. The notice in successive postconviction relief proceedings shall comply with section 13‑4232, subsection B. On receipt of the notice, the clerk of the trial court shall file a copy of the notice in the case file of each original action and promptly send copies to the defendant, the defendant's attorney, if known, the county attorney and the attorney general, noting the date and manner of sending the copies in the record. The state shall notify the victim on request.

B. If an appeal of the defendant's conviction or sentence, or both, is pending, the clerk, within five days after the filing of the notice for postconviction relief, shall send a copy of the notice to the appropriate appellate court, noting the date and manner of sending the copy in the record.

C. In noncapital cases, the notice shall be filed within ninety days after the judgment and sentence are entered or within thirty days after the order and mandate affirming the judgment and sentence is issued on direct appeal, whichever is later. A defendant has sixty days from the filing of the notice in which to file a petition. On the filing of a successive notice, a defendant has thirty days from the filing of the notice in which to file a petition.

D. In capital cases, on the issuance of a mandate affirming the defendant's conviction and sentence on direct appeal filing of the notice of appeal, the clerk of the supreme court expeditiously shall file a notice of postconviction relief with the trial court. On the first notice in capital cases, a defendant has sixty one hundred twenty days from the filing of the notice of the completion of the direct appeal record in which to file a petition. The supreme court shall appoint counsel pursuant to section 13‑4041, subsection B. All indigent state prisoners under a capital sentence are entitled to the appointment of counsel to represent them in state postconviction proceedings. A competent indigent defendant may reject the offer of counsel with an understanding of its legal consequence. On successive notice in capital cases, the trial court shall appoint the previous postconviction relief counsel of the capital defendant unless counsel is waived pursuant to section 13‑4041, subsection D or good cause exists to appoint another qualified attorney pursuant to section 13‑4041, subsection B. On the filing of a successive notice, a capital defendant or an appointed attorney has thirty sixty days from the filing of the notice in which to file a petition.

E. A defendant who has pled guilty and who is precluded from filing a direct appeal pursuant to section 13‑4033 may be granted an additional thirty day extension of time in which to file the petition if the defendant's counsel refuses to raise issues and leaves the defendant insufficient time to file a petition within the time limits.

F. On a specific and detailed showing of good cause, a defendant in a noncapital case may be granted up to a sixty day extension of time in which to file the petition. On a specific and detailed showing of good cause, a defendant in a capital case may be granted one thirty day extension extensions of time in which to file the petition.

G. The time limits are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice.

H. If the record of the trial proceeding has not been transcribed, the defendant may request on a form provided by the clerk of the superior court that the record be prepared. The court shall order that those portions of the record be prepared that it deems necessary to resolve the issues to be raised in the petition. The preparation of the record is a county expense if the defendant is indigent. The time for filing the petition is tolled from the time a request for the record is made until the record is prepared or the request is denied.

I. The proceeding shall be assigned to the sentencing judge if it is possible. If it appears that the sentencing judge's testimony is relevant, the sentencing judge shall transfer the case to another judge.

J. If the defendant has received a sentence of death and the supreme court has fixed the time for execution of the sentence, a stay of execution shall not be granted on the filing of a second or subsequent petition except on separate application for a stay to the supreme court setting forth with particularity those issues raised which that are not precluded under section 13‑4232. The warrant shall not be stayed to allow for the filing of a petition. END_STATUTE

Sec. 7. Section 13-4239, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4239. Review

A. Any party aggrieved by a final decision of the trial court in these proceedings may, within fifteen days after the ruling of the court, may move the court for a rehearing setting forth in detail the grounds for believing that the court erred. A response shall be filed within fifteen days after service of the motion on the adverse party. A reply, if any, shall be filed within ten days after service of the response. The filing of a motion for rehearing in the trial court is not a prerequisite to the filing of a petition for review pursuant to subsection C of this section.

B. If the motion for rehearing is granted, the court may either amend its previous ruling without a hearing or grant a new hearing and then either amend or reaffirm its previous ruling. If the court amends its previous ruling, the court shall set forth its reasons for amending the previous ruling. The state shall notify the victim on request of any action that is taken by the court.

C. Within thirty days after the final decision of the trial court on the petition for post‑conviction postconviction relief or motion for rehearing, an aggrieved party may petition the appellate court for review of the trial court's actions. A cross‑petition for review may be filed with the clerk of the trial court within fifteen days after service of a petition for review. The petition or cross‑petition shall be filed with the clerk of the trial court and shall set forth in detail the grounds for believing that the court erred. The filing of a motion for rehearing pursuant to subsection A of this section does not limit the issues that may be raised in the petition or cross‑petition for review. The failure to raise an issue that could be raised in the petition or cross‑petition for review constitutes a waiver of appellate review of that issue. A response shall be filed within fifteen days and a reply shall be filed within ten days.

D. The form, contents and service for a post‑conviction postconviction relief petition and cross‑petition shall be as prescribed by rule 32.9 of the rules of criminal procedure.

E. A motion for rehearing or a petition for review that is filed pursuant to this section shall stay an order of the trial court issued in the post‑conviction postconviction relief proceedings until final review is completed unless the trial court specifically orders otherwise. The state shall notify the victim on request of any action taken.

F. Within thirty days after the expiration of the time for filing the last reply, the record, including the trial court file, the reporter's transcript, the original and all copies of the petition and cross‑petition for review, responses and replies shall be transmitted to the appellate court. In a capital case, any petition for review by a defendant in a first postconviction proceeding shall be consolidated with the direct appeal.

G. The appellate court may grant review and may order oral argument on the petition if deemed necessary and may issue such orders and grant such relief as it deems necessary and proper. The state shall notify the victim on request of any action taken by the appellate court.

H. The provisions that govern the filing of motions for reconsideration and petitions for review in criminal appeals that are set forth in rules 31.18 and 31.19, Arizona rules of criminal procedure, apply to and govern motions for reconsideration and petitions for review pursuant to rule 32, Arizona rules of criminal procedure.

I. When the matter is determined the clerk of the appellate court shall return the record to the appropriate clerk of the court for retention according to law. END_STATUTE

Sec. 8. Heading change

The article heading of title 13, chapter 38, article 29, Arizona Revised Statutes, is changed from "POST-CONVICTION RELIEF" to "POSTCONVICTION RELIEF".