State v. Montgomery

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

ROBERT KENNETH MONTGOMERY, II, Petitioner.

and

ROBERT KENNETH MONTGOMERY, II, Petitioner,

v.

THE HONORABLE DEREK CARLISLE, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of Mohave,
Respondent Judge,
and

STATE OF ARIZONA,
Real Party in Interest

No. 1 CA-SA 20-0055
No. 1 CA-CR 20-0064 PRPC
(Consolidated)
FILED 4-21-2020

Review from the Superior Court in Mohave County
No. CR2015-00731
The Honorable Derek Carlisle, Judge
The Honorable Richard Weiss, Judge (retired)

REVIEW GRANTED; RELIEF DENIED
SPECIAL ACTION JURISDICTION ACCEPTED; RELIEF GRANTED
 COUNSEL

Arizona Attorney’s Office, Phoenix
By Blaine Gadow
Counsel for Respondent/Real Party in Interest

Robert K. Montgomery, II, Phoenix
Pro Se

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Petitioner Robert K. Montgomery, II, seeks review of the
superior court’s order denying his petition for post-conviction relief
(“PCR”), filed under Arizona Rule of Criminal Procedure (“Rule”) 33.1.1 He
also seeks special action relief from the superior court’s failure to appoint
new counsel to raise a claim of ineffective assistance of counsel regarding
his first PCR counsel. For the reasons discussed below, we grant review of
the court’s order denying post-conviction relief but deny relief. We accept
special action jurisdiction over Montgomery’s petition asserting a right to
the appointment of counsel to pursue a claim of ineffective assistance of
PCR counsel, and grant relief.

1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. See State v. Botello-Rangel,
1 CA-CR 19-0332 PRPC, 2020 WL 896477, at *1, ¶ 1, n.1 (Ariz. App. Feb. 25,
2020). The amended rules apply to all cases pending on the effective date
unless a court determines that “applying the rule or amendment would be
infeasible or work an injustice.” Id. Because there were no substantive
changes to the respective rules related to this decision, we apply and cite to
the current rules.

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 STATE v. MONTGOMERY
Decision of the Court

FACTS AND PROCEDURAL BACKGROUND

¶2 The grand jurors indicted Montgomery on three counts of
sexual exploitation of a minor for allegedly possessing “visual or print
medium in which a minor is engaged in exploitative exhibition or other
sexual conduct,” and the minor is under 15. Ariz. Rev. Stat. (“A.R.S.”)
§ 13-3553. Eventually, Montgomery and the State entered into a plea
agreement. According to the terms of that agreement, Montgomery would
plead guilty to an amended count of sexual exploitation with a child over
15; and guilty to another count as charged. The plea agreement further
provided Montgomery would receive a prison sentence between ten and
fifteen years for the greater charge, and consecutive lifetime probation for
the lesser. In return, the State agreed to dismiss the remaining count and
not file additional charges arising from other evidence discovered during
the investigation.

¶3 The superior court conducted the requisite change-of-plea
colloquy with Montgomery. See Ariz. R. Crim. P. 17. The court confirmed
with Montgomery that he was aware that he was giving up certain rights
by pleading guilty. Included in this dialogue was the following exchange:

[The Court]: In addition to the rights that I just explained to
you, by pleading guilty, you will be giving up the right to file
an appeal and have an appellate court review these
proceedings for any possible error.

The only such review you would be entitled to would
be to file a petition for post-conviction relief in this case,
which would enable the Court to determine whether any
error had been committed in this case.

Do you understand that?

[Montgomery]: Yes, Your Honor.

The court found that Montgomery “knowingly, intelligently and
voluntarily pled guilty,” and accepted and entered the plea.

¶4 At sentencing, the court sentenced Montgomery to ten years’
imprisonment on the greater charge, the minimum provided for under the
terms of the agreement. Rather than following the stipulation in the plea
agreement regarding the length of the probation term for the lesser charge,
the court imposed a ten-year consecutive term of probation instead of the
lifetime term. The State did not object or ask to withdraw from the plea.

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 STATE v. MONTGOMERY
Decision of the Court

¶5 In April 2018, Montgomery filed a timely notice of
post-conviction relief. The court appointed counsel to represent
Montgomery. In June 2019, Montgomery’s counsel filed a notice of
completion, explaining that she was “unable to find any colorable claims
for submission” to the court. Counsel requested that the court allow
Montgomery to file a supplemental petition, which it granted.

¶6 Initially, instead of filing a supplemental petition,
Montgomery filed a new notice of post-conviction relief, raising a claim that
his PCR counsel was ineffective. Montgomery requested that the court
appoint new counsel to present that claim. Montgomery then filed his pro
se supplemental petition. While his supplemental petition was pending,
Montgomery filed a motion stating, “Defendant . . . again requests a
court-appointed attorney to represent him for the aforementioned Rule 32
petition for ineffective assistance of Rule 32 counsel.” The court did not
appoint counsel to raise the ineffectiveness claim.

¶7 In the supplemental petition, Montgomery argued that (1) he
was compelled by the State to submit to a psychosexual risk assessment and
polygraph to obtain a better plea offer; (2) impermissible evidence was
considered by the court at the time of sentencing; (3) A.R.S. § 13-3553 is
unconstitutional because it punishes him for offenses he did not commit
and caused him to incriminate himself; and (4) the statute is likewise
unconstitutional because it creates a crime punishable as a dangerous crime
against children even though there is no victim. The superior court found
the claims were meritless and dismissed the petition.

¶8 Montgomery filed a PCR petition for review, and we have
jurisdiction under A.R.S. § 13-4239(C) and Rule 33.16. He also petitioned for
special action relief challenging the court’s failure to appoint counsel to
raise an ineffectiveness claim against his PCR attorney. We previously
accepted jurisdiction of that petition, see generally Ariz. R.P. Spec. Act. 1(a)
(special action jurisdiction is appropriate when there is no equally plain,
speedy, and adequate remedy by appeal), and consolidated the two
petitions.

DISCUSSION

A. The Superior Court Correctly Dismissed the Petition for
Post-Conviction Relief.

¶9 We review the superior court’s denial of post-conviction relief
for an abuse of discretion, State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012),
but review the interpretation of the Arizona Rules of Criminal Procedure de

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 STATE v. MONTGOMERY
Decision of the Court

novo, State v. Mendoza, 248 Ariz. 6, 14–15, ¶ 12 (App. 2019). Post-conviction
relief “is applied quite restrictively to overturn guilty pleas,” State v. Fritz, 157 Ariz. 139, 140 (App. 1988), primarily because by pleading guilty, a
defendant waives all non-jurisdictional defenses, Botello-Rangel, 2020 WL
896477, at *2, ¶ 5.

¶10 In his petition for review, Montgomery raises the same claims
he raised in his petition for post-conviction relief. However, the claims were
either non-jurisdictional and, therefore, waived when he voluntarily
entered into the plea agreement; or failed to show prejudice. The court
correctly determined that these claims cannot be the basis for relief. Ariz. R.
Crim. P. 33.2(a)(1).

B. The Superior Court Was Obligated to Appoint Counsel to Review
the Ineffectiveness Claim Against PCR Counsel.

¶11 Rule 33.4(b)(3)(C) provides that a pleading defendant may file
a successive notice for relief for claims of ineffective assistance of PCR
counsel if the notice is filed “no later than 30 days after the trial court’s final
order in the first post-conviction proceeding.” If the pleading defendant
timely files a notice under Rule 33.4(b)(3)(C), then the “judge must appoint
counsel” if “the defendant requests it” and is otherwise entitled to such an
appointment. Ariz. R. Crim. P. 33.5(a)(1)–(3).

¶12 The rules were amended effective January 1, 2020, to
encapsulate current caselaw. See State v. Petty, 225 Ariz. 369, 372, ¶ 9 (App.
2010) (“[A] pleading defendant . . . is constitutionally entitled to the
effective assistance of counsel on his first . . . petition for post-conviction
relief, the counterpart of a direct appeal.”(quoting State v. Pruett, 185 Ariz.
128, 131 (App. 1995))); see also State v. Jones, 182 Ariz. 432, 433 (App. 1995)
(a pending proceeding does not suspend the defendant’s right to file a PCR
notice). Montgomery was entitled to the appointment of new counsel to
raise a claim of ineffective assistance of PCR counsel, even if the first
petition was still pending.2

¶13 The record is unclear whether the court was aware of the
subsequent notice and Montgomery’s request for the appointment of
counsel. Nonetheless, because the record shows he made such a request, we

2 A court could, on its own motion, stay the appointment of counsel
and wait to proceed on the subsequent notice until the first petition has
been resolved.

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 STATE v. MONTGOMERY
Decision of the Court

grant the relief he requests and order that the court appoint new counsel to
represent Montgomery in his subsequent proceeding.

CONCLUSION

¶14 We grant review of the petition for review from the denial of
Montgomery’s PCR petition but deny relief. We accept jurisdiction of his
petition for special action and order that the court appoint Montgomery
counsel to represent him concerning any claim for the ineffectiveness of
PCR counsel.

AMY M. WOOD • Clerk of the Court
FILED: AA

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