Arizona

Criminal Procedure

Criminal Procedure

Rule 33.6 – Duty of Counsel; Self-Represented Defendant’s Petition; Waiver of Attorney-Client Privilege

(a)Generally. In a Rule 33 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:

(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) that the plea agreement contains the correct classification of offenses and the correct sentencing range of each offense;
(7) any potential errors related to the entry of the plea for which there were no objections, but which might rise to the level of fundamental error;
(8) any determination of the defendant’s competency that was raised prior to sentencing;
(9) any objections raised at the time of sentencing;
(10) the court’s determination of the classification and category of offenses for which the defendant was sentenced under the plea agreement;
(11) any aggravating factors are supported by the record;
(12) the court considered any mitigation evidence that was offered;
(13) the court’s determination of pre-sentence incarceration credit;
(14) the sentence imposed by the court;
(15) if a sentence above the presumptive term was imposed, the court relied on at least one proven statutory aggravating factor; and
(16) any potential claims of ineffective assistance of counsel.

A notice of no colorable claims must also include or incorporate Form 25(b), with citations to the pertinent portions of the record.

(d)Self-Represented Defendant’s 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 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. 33.6

Adopted August 29, 2019, effective January 1, 2020.

COMMENT TO RULE 33.6(b)

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

COMMENT TO RULE 33.6(c)

Rule 33.6(c) is intended to assist counsel in reviewing the record to ensure that substantial justice is done. Failure to complete Form 25(b), or identify any issues listed in Rules 33.6(c) does not constitute a per se deviation from prevailing professional norms to the extent a pleading defendant possesses a right to effective post-conviction counsel under Arizona law. 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.