If you’ve received ineffective legal representation you might be able to file a Rule 32 Petition.
Filing a Rule 32 for Post Conviction Relief
If a defendant entered a plea agreement (or admitted to violating a condition of probation), a Rule 32 is the only legal means that can be used to appeal a conviction. If the defendant had a trial (either a bench or jury trial), he can file a Direct Appeal to the conviction, and — if the appeal is denied — the defendant still has the option of filing a Rule 32. Direct Appeals and Rule 32’s are different forms of action and a Defendant is allowed to raise different issues in each, although there is some overlap.
Difference between a Rule 32 and a PCR Petition
Nothing. Rule 32 of the Arizona Rules of Criminal Procedure governs Post Conviction Relief Petitions. That’s why a PCR (Post Conviction Relief) Petition is often called a “Rule 32.”
Is the purpose of a Rule 32 to reduce a sentence?
Not always, although under provisions of the case Blakely v. Washington, which deals with aggravated sentences that may have been imposed improperly, a sentence reduction would be the expected outcome.
A Rule 32 is sometimes designed to correct errors made by the trial court or, in the case of a person convicted via a plea agreement, to correct errors made at the time of the Change of Plea hearing or at the time of Sentencing. For example, if an error is found in the Change of Plea proceedings, it is possible that the entire plea agreement can be set aside. In that case, the state (prosecutor) would bring all the original charges against the Defendant and a new plea bargain would have to be negotiated. If the reversible error occurred during sentencing, only the sentencing hearing would be re-done. More than likely, the Defendant would be given the same sentence already imposed. As noted earlier, it is possible that a lesser sentence could be given based on a Blakely claim or if there are new mitigating circumstances available at the time of the re-sentencing hearing (such as an excellent record of programming, work and disciplinary history while in prison, especially if the programming directly addresses the specific criminal conduct a Defendant is convicted of).
Often, our firm hears from prisoners or their families who have compared their sentence to someone else’s’ and feel that for the same crime, they received more time in prison. There is no way to know what circumstances led one judge to sentence a person to six years, for example, and another judge to sentence another Defendant for the SAME EXACT felony offense to four years, but as long as both judges followed the sentencing rules and the criminal code matrix, no relief is available to the person who received the longer sentence. Sentences for the exact felony offense can vary widely depending upon whether the Defendant was sentenced as a first-time offender or a repeat offender, whether mitigating circumstances were sufficient to factor into the sentence or whether aggravating circumstances led the judge to give a harsher sentence. Each case is different and it is important to keep this in mind.
What is the most common allegation made in a Rule 32 petition?
Without question, the most common issue raised in Rule 32 petitions is “ineffective assistance of counsel.” If all the counties in Arizona are counted, it would be safe to say that thousands of PCR’s are filed each year alleging ineffective assistance of counsel. A very small percentage of them are successful because it is very, very difficult to meet the court’s standard of proof that a trial attorney was legally ineffective.
In order to legally meet the standard of proof for ineffective assistance of counsel, the Defendant must show that not only was the attorney ineffective, but that the outcome of the proceedings would have been different had the attorney acted (or not acted) differently. For example, there have been capital punishment cases in Texas where attorneys slept during portions of the trial, and the courts there have found that the attorneys conduct, while highly inappropriate, would not have changed the outcome of the trial. Generally speaking, it isn’t sufficient to complain that an attorney didn’t accept telephone calls from the jail or didn’t visit you often enough. The Defendant must PROVE that the outcome of the case would have been better if the attorney had done so. It isn’t sufficient to complain that the trial-level attorney didn’t interview enough witnesses. The Defendant must demonstrate to the Judge exactly what those witnesses would have testified to under oath and that the result of their testimony would have made the Defendant’s case turn out much better. It isn’t sufficient for a successful Rule 32 for a Defendant to state that his lawyer threatened him to accept a plea bargain. Attorneys are permitted, under the ethical rules of conduct which govern their behavior, to strongly advise a client to accept a plea agreement based upon the likelihood of conviction if the person were to go to trial. For example, an attorney is permitted to say, You are going to hang youself if you don’t accept this plea; if you don’t sign it, you will be convicted at trial and will serve a lot more time than what is being offered in the plea bargain. An attorney is NOT permitted to say, Go ahead, Mr. Client, and sign this plea bargain, but don’t worry that it says in writing that the maximum amount of time you can get is 20 years — I PROMISE you that if you sign the plea, you’ll only get ten years. Under those conditions, if the Defendant signs the plea and subsequently is sentenced to 20 years, that would constitute ineffective assistance of counsel because the Defendant was INDUCED to sign the plea by a PROMISE (not an opinion) that the attorney could not keep. Will a Rule 32 result in a personal appearance in the court, or is it all done on paper? A successful Rule 32 will result in an evidentiary hearing in most cases. This means a court hearing will be conducted where the Defendant will be entitled to be present, along with his attorney (or by himself if he is representing himself). At this hearing, the Defendant will have to demonstrate with witnesses, exhibits, testimony, etc. that the claims made in the paperwork (the PCR Petition) are true. A Defendant will only be granted a hearing if the Judge feels that the claims made in the PCR have merit in the first place. The vast majority of PCR’s are denied without a hearing being granted. This is due, in part, to a lack of credible or “colorable” legal claims being developed or presented in the Petition itself. For persons sentenced on or after September 29, 1992, only ONE PCR Petition is allowed. It is extremely important that all potential claims be researched and advanced in the initial PCR because, for the vast majority of current Defendants, it is the only chance they will have.
Typical time frame for a Rule 32 process
It is very difficult to give precise time frames, especially because a Defendant could conceivably keep appealing denials of a Rule 32 all the way up into the federal courts. In such a case, it would take years. But the typical scenario for Arizona is: The Notice of PCR is filed within 90 days of sentencing. It is important not to miss this deadline for the Notice. A Defendant may DIRECT his trial-level attorney — including a public defender — to file the Notice of PCR on behalf of the Defendant. For those sentenced after September 29, 1992, the 90-day deadline is a MUST. If the notice if not timely filed, the person faces the strong possibility of being forever precluded from filing a Petition for Post Conviction Relief.
Usually with three weeks of filing the Notice of PCR, and if the Defendant has requested an attorney, an attorney will be appointed by the court to represent him. Private Counsel can be retained at this point. If an attorney is appointed, the Defendant will be notified of his/her name and address.
Once a PCR attorney is appointed or retained by the Defendant or his family, the attorney has 60 days to file the Petition itself. In some cases, a 30-day extension of time can be granted. During this time period, the attorney should contact the Defendant (either in person or by letter), obtain transcripts of the trial, change of plea hearing and sentencing hearing, etc. If the Defendant is deemed entitled to receive transcripts, there may be additional delays while the court reporter transcribes them; a continuance will be granted to accommodate this delay. The Defendant/Client should write down all he can remember about the mistakes/errors he believes were made in his case and send these comments to the attorney. The attorney is not obligated to raise all or any of the issues the Defendant raises, but a good attorney will explain to his client why those issues are not “colorable” legal claims under the particular circumstances of the case.
CONCLUSION: It is extremely important to have a thorough analysis performed on your case for potential post conviction relief claims. Only a qualified attorney has the experience and resources to perform such work. Only one PCR is permitted (for those sentenced after September 29, 1992), and — for all persons filing PCR Petitions — once an issued is briefed in a Petition, it is precluded from being raised in any subsequent petition. Getting it right the first time is important!
What Does a Criminal Defense Lawyer Do?
Criminal law covers a wide variety of topics, including homicide defense, DUI defense, petty theft, drug crimes, grand theft, and sex crimes just to name a few. If you have been accused of any form of crime, it is always advised that you work with a criminal law attorney like the ones at Ferragut Law Firm.
The Role of a Criminal Defense Lawyer
Because the average person does not have an understanding of the criminal justice process, which comprises a number of complex state and federal laws, it’s always advised that you work with a criminal defense lawyer.
Criminal defense lawyers assist clients as their case moves through the criminal justice process, from pre-trial and through the conclusion of the trial proceedings. In some cases, when a client suspects that they might be charged with a crime a client will make the decision to retain a lawyer before they have even been charged. If you have been involved in a criminal incident and have suspicions that you might need a lawyer, it’s best to hire one as quickly as possible as they will be able to provide you with guidance on how to proceed. The earlier an attorney is involved in a case, the more protection they can offer, and even in times ensure that a suspect does not divulge any potentially incriminating information.
A criminal defense lawyer will also be able to advise a client on if a case can even be brought against their client. In cases where there is insufficient evidence, a lawyer’s main objective will be to have the court drop the charges against a client. There are many avenues of defense that a lawyer can apply, including challenging probable cause, persuading a court to reduce or waive bail, and negotiating a plea bargain to reduce charges to a lesser crime or reduce sentencing.
The role of a criminal defense lawyer will be entirely based on the case that is presented and the type of defense that a client needs. Obtaining the help of a criminal defense lawyer early on in your case can mean the difference between guilty and not guilty.
Ferragut Law Firm Will Defend You
Ferragut Law Firm is a top rated criminal defense law firm based in Phoenix Arizona. We are dedicated exclusively to the practice of criminal law in all state, federal, and city courts throughout the State of Arizona.
Our mission is to achieve the best possible results for our clients through hard work, attention to detail, and aggressive advocacy, while maintaining the highest level of professionalism, integrity, and ethical standards.
We are committed to providing the most aggressive, professional, and effective representation for our clients accused of crimes to ensure that their legal rights are protected and that the best possible results are achieved. Contact us to discuss the details of your case.
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