Arizona

Criminal Procedure

Criminal Procedure

Rule 32.6 – Duty of Counsel; Self-Represented Defendant’s Petition; Waiver of Attorney-Client Privilege

(a) Generally. In a Rule 32 proceeding, counsel must investigate the defendant’s case for any colorable claims.
(b) Discovery.

(1)After Filing a Notice. After the filing of a notice but before the filing of a petition, and upon a showing of substantial need for material or information to prepare the defendant’s case, the court may enter an order allowing discovery. To show substantial need, the defendant must demonstrate that the defendant cannot obtain the substantial equivalent by other means without undue hardship.
(2)After Filing a Petition. After the filing of a petition, the court may allow discovery for good cause. To show good cause, the moving party must identify the claim to which the discovery relates and reasonable grounds to believe that the request, if granted, would lead to the discovery of evidence material to the claim.
(c)Counsel’s Notice of No Colorable Claims. If counsel determines there are no colorable claims, counsel must file a notice advising the court of this determination, and promptly provide a copy of the notice to the defendant. The notice must include or list, with citations to the record:

(1) a summary of the facts and procedural history of the case;
(2) the specific materials that counsel reviewed;
(3) the date counsel provided the record to the defendant, and the contents of that record;
(4) the dates counsel discussed the case with the defendant;
(5) the charges and allegations presented in the complaint, information, or indictment.

In the notice, counsel should also identify the following:

(6) any adverse pretrial rulings affecting the course of trial (e.g., motions to suppress, motions in limine, motions to quash, speedy trial motions);
(7) any adverse rulings during trial on objections or motions (e.g., objections regarding the admission or exclusion of evidence, objections premised on prosecutorial or judicial misconduct, mistrial motions, motions for directed verdict);
(8) any adverse rulings on post-trial motions (e.g., motion for a new trial, motion to vacate judgment);
(9) issues regarding jury selection, if the trial was to a jury;
(10) issues regarding jury instructions, if the trial was to a jury;
(11) any potential errors for which there were no objections, but which may rise to the level of fundamental error;
(12) any determination of the defendant’s competency that was raised prior to sentencing;
(13) any objections raised at the time of sentencing;
(14) the court’s determination of the classification and category of offenses for which the defendant was sentenced;
(15) the court’s determination of pre-sentence incarceration credit;
(16) the sentence imposed by the court;
(17) issues raised by appellate counsel; and
(18) any potential claims of ineffective assistance of trial or appellate counsel.
(d)Self-Represented Defendants Petition. Upon receipt of counsel’s notice under section (c), the defendant may file a petition on his or her own behalf. The court may extend the time for the defendant to file that petition by 45 days from the date counsel filed the notice. The court may grant additional extensions only on a showing of extraordinary circumstances.
(e)Counsel’s Duties after Filing a Notice Under Section (c). After counsel files a notice under section (c) and unless the court orders otherwise, counsel’s role is limited to acting as advisory counsel until the trial court’s final determination in the post-conviction proceeding.
(f)Attorney-Client Privilege. By raising any claim of ineffective assistance of counsel, the defendant waives the attorney-client privilege as to any information necessary to allow the State to rebut the claim, as provided by Ariz. R. Sup. Ct. 42, ER 1.6(d)(4).

Ariz. R. Crim. P. 32.6

Added by August 31, 2017, effective January 1, 2018; amended August 29, 2019, effective January 1, 2020.

COMMENT TO RULE 32.6(b)

The standard in this rule for pre-petition discovery is derived from Rule 15.1(g).

COMMENT TO RULE 32.6(c)

Rule 32.6(c) is intended to assist counsel in reviewing the record to ensure that substantial justice is done. Counsel must take care that the Notice of No Colorable Claims does not reveal client confidences to the court without the client’s informed consent. See Ariz. Rules Sup. Ct. 42, ER 1.6.