By: R. Davis

Rule 33 of Arizona’s Rule of Criminal Procedure establishes the guidelines for a defendant seeking post-conviction relief who pled guilty or no contest to a criminal offense, admitted a probation violation, or had an automatic probation violation based on a plea of guilty or no contest. A defendant initiates post-conviction proceedings by filing what is called a “notice.” The notice is a simple document informing the court the defendant intends to seek post-conviction relief. After the proceeding is initiated, the defendant subsequently presents his or her proposed claims for relief in a document called a “post-conviction petition” or a “post-conviction brief.”

What are grounds for post-conviction relief?

When considering whether to pursue post-conviction relief, a defendant must understand what grounds can be presented in the Rule 33 process. Rule 33.1 identifies the type grounds which may be pursued. They are:

• (a)The defendants plea or admission to a probation violation was obtained, or the sentence was imposed, in violation of the United States or Arizona constitutions For example, the defendant failed to receive effective assistance of counsel.
• (b)The court lacked subject matter jurisdiction to hear the case.. For example, the defendant was tried in Maricopa County, but the crime allegedly occurred in Pima County.
• (c)The imposed sentence is not authorized by law or by the plea agreement. For example, the defendant was sentenced to a duration of time exceeding what is permissible by statute or contained within the plea agreement.
• (d)The defendant is, or will continue to be, in custody after the sentence is expired. For example, when sentenced, the court failed to credit a defendant with time already served.
• (e)There are newly discovered facts which probably would have changed the judgment or sentence. For example, the defendant learns the prosecution withheld requested exculpatory evidence prior to entering into the plea agreement.
• (f)The failure to timely file a notice seeking post-conviction relief was not the defendants fault. For example, an attorney completely disregarded the defendant’s request to pursue post-conviction relief.
• (g)There has been a significant change in the law which would change the defendant’s conviction or sentence. For example, behavior once classified as a crime is no longer classified an offense.
• (h)The defendant demonstrates the raised claim would be sufficient to establish no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt. For example, DNA evidence establishes a defendant’s factual innocence.

If the defendant’s claim meets this listed criteria, he or she may be eligible for post-conviction relief. The defendant should now move forward to consider filing the notice of post-conviction relief.

Notice of post-conviction relief in Arizona

A defendant initiates the post-conviction proceedings by filing a notice indicating his or her intent to pursue post-conviction relief.

A defendant files the notice in the court where he or she was sentenced. The court is required to have notice forms available for defendants. If a defendant is incarcerated within a State Prison, the inmate can write the sentencing court for a notice form or request a notice form from the prison’s resource center.

When considering whether to file a notice to initiate the post-conviction proceedings, a defendant must be aware of the time constraints applicable to filing any notice.

Notice of post-conviction time requirements

Rule 33.4 mandates the time requirements a defendant must follow regarding claims (a) through (h) identified above. The timeframe requirements are as follows:

• (a) A defendant must file any notice for a claim under Rule 33.1 (a) within 90 days after the oral pronouncement of a sentence.
• (b) A defendant must file the notice for a claim under Rule 33.1 (b) through (h) within a reasonable time after discovering the basis of the claim.
• (c)A defendant may raise a claim of ineffective assistance of Rule 33 counsel in a successive Rule 33 proceeding if the defendant files a notice no later than 30 days after the trial courts final order in the first post-conviction proceeding, or, if the defendant seeks appellate review of that order, no later than 30 days after the appellate court issues its mandate in that proceeding.

If the notice isn’t filed on time in accordance with these rules, the defendant must explain why he or she is untimely. The court will excuse an untimely notice requesting post-conviction relief if the defendant adequately explains why the failure to timely file a notice was not his or her fault.

After the notice is filed, the court will determine if the defendant is entitle to the appointment of counsel for the post conviction proceeding.

Post-conviction appointment of counsel and experts

Within 15 days after the defendant has filed a timely first notice, the court must appoint counsel for the defendant if:

1. the defendant requests counsel 
2. the defendant is entitled to appointed counsel: and,
3. there has been a previous determination that the defendant is indigent, or the defendant has completed a declaration of indigency and the court finds that the defendant is indigent.

When a defendant has filed a successive or untimely notice, the court may appoint counsel for an indigent defendant. Only when the defendant’s presented claims advance to an evidentiary hearing will the defendant be supplied with counsel.

The court may also appoint investigators, expert witnesses, and mitigation specialists upon a requesting motion and if the trial court finds that such assistance is reasonably necessary for an indigent defendant.

When is the post-conviction petition filed?

After the notice is filed and the court has either appointed counsel or the defendant is acting as his or her own counsel, the court will set the date when the petition is due.

When a defendant has appointed counsel, the petition must be filed no later than 60 days after the date of appointment. A self-represented defendant must file a petition no later than 60 days after the notice is filed or the court denies the defendants request for appointed counsel, whichever is later.

If a petition cannot be filed by the established due date, requesting an extension of time is possible. A defendant can request, and be granted, a 30 day extension. The court may grant additional 30-day extensions only on a showing of extraordinary circumstances. An “extraordinary circumstance” is a heightened reasoning above good cause. For example, a self represented defendant is hospitalized for treatment. An extraordinary circumstance is an event beyond the control of the defendant. More time to conduct research likely will not qualify for an extension of time beyond the initial continuance.

What happens after a post-conviction petition is filed?

After a petition is filed by the defendant, the prosecution will have an opportunity to file a response to any claim being raised by a defendant. After the response, the defendant can file an optional reply.

After the petition is fully briefed with the court, there are two possible outcomes, First, after identifying all precluded and untimely claims, the court could determine that no remaining claim presents a material issue of fact or law that would entitle the defendant to relief. The court would then summarily dismiss the petition.

If the court does not summarily dismiss the petition, it will set the remaining claims for an evidentiary hearing within 30 days. To learn what happens at the post-conviction hearing and afterwards, please read my post, What is a post-conviction evidentiary hearing?

How to win post-conviction relief in Arizona?

The first step should be to buy a copy of The Colossal Book of Criminal Citations to assist in preparing the post conviction relief arguments.

The Colossal Book of Criminal Citations contains legal references to thousands of cases to help create, articulate and present the best post conviction petition possible. Case references and brief examples contained in my book will assist in challenging any defendant’s conviction or sentence.

This book’s content will help in presenting post conviction relief claims to a trial court and into the United States Supreme Court if necessary. This book will assist convicted defendants in state or federal jurisdictions and is designed to help the pro se defendant, the jailhouse lawyer, or the experienced litigator. Buy a copy today and begin the process of acquiring successful post conviction relief.