The Arizona Supreme Court decided an interesting issue: whether a defendant’s conviction should be ended if he dies during a post-conviction proceeding.
The background is the defendant was tried and convicted in a jury trial of first-degree murder and attempted murder. Upon appeal, the Arizona Supreme Court affirmed the conviction and the United States Supreme Court denied certioria. Then defendant timely filed an Arizona Criminal Procedure Rule 32 petition. However, before the Superior Court could decide whether to accept the petition or not, the defendant died. Because of the defendant’s death, the Superior Court Judge dismissed the Rule 32 petition, the indictment, and the conviction.
The problem is the defendant claimed ineffective assistance of counsel in the Rule 32 proceeding. This argument may or may not have been persuasive — it is a very high standard to prove ineffective assistance of counsel. However, procedurally, the defendant could not make the claim of ineffective assistance of counsel during the direct appeal. Direct appeals are based entirely on record created at the trial court level. Since whether the counsel effectively did her job or not is not a matter that was argued in the trial court, it is an argument that cannot be made on direct appeal (claims that not made based entirely on the trial court record are referred to as collateral attacks). The Arizona Supreme Court noted that:
“A Rule 32 petition exists ‘separate and apart from the right to appeal’ and is ‘a collateral attack upon the judgment.’ Thus, following a conviction, a defendant has the right to challenge the sufficiency of evidence and to assert any trial errors through direct appeal.” State v. Glassel, Cr-13-0060-AP ¶9 (2013) (quoting State v. Carriger, 692 P.2d 991, 994, 997(1984)).
The Arizona Supreme Court held the defendant received all of his constitutional rights and protections due to him because of the completion of the direct appeal, which is constitutionally guaranteed. Post-conviction relief is not constitutionally guaranteed, thus the conviction and the indictment would stand.
The problem I have with the court’s holding is the right to effective assistance of counsel is guaranteed by Sixth Amendment to the United States Constitution via Strickland v. Washington, 466 U.S. 668 (1984). Reasonable effective assistance of counsel is guaranteed, even if post-conviction relief is not. The United States Supreme “Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). However, nowhere in the Glassel opinion did the Arizona Supreme Court address the right to reasonably effective counsel is found under the Sixth Amendment and denying the defendant of the chance to make that claim, the Arizona Supreme Court effectively waived the defendant’s Sixth Amendment rights for him.