Canion v. Cole

SUPREME COURT OF ARIZONA
En Banc

DENNIS WAYNE CANION, ) Arizona Supreme Court
) No. CV-04-0243-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 04-0036
THE HONORABLE DAVID R. COLE, )
Judge of the SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the COUNTY OF MARICOPA, ) No. CR 97-002781
)
Respondent Judge, )
)
STATE OF ARIZONA ex rel. ANDREW ) O P I N I O N
P. THOMAS, Maricopa County )
Attorney, )
)
Real Party in Interest. )
__________________________________)

Special Action from the Superior Court in Maricopa County
The Honorable David R. Cole, Judge

AFFIRMED; REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
208 Ariz. 133, 91 P.3d 355 (App. 2004)

AFFIRMED IN PART; REVERSED IN PART; OPINION VACATED
________________________________________________________________

MARTIN LIEBERMAN, P.C. Phoenix
By Martin Lieberman
Attorney for Dennis Wayne Canion

RICHARD M. ROMLEY, FORMER MARICOPA COUNTY ATTORNEY Phoenix
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY
By Paul J. McMurdie, Deputy County Attorney
Faith C. Klepper, Deputy County Attorney
Attorneys for the State of Arizona

ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Tucson
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS Tucson
By Natman Schaye
Ellen Rubin
Attorneys for Amici Curiae
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 This case raises the question whether a convicted

defendant who has filed a notice of post-conviction relief

(“PCR”), but has not filed a petition seeking relief, has a

right to compel discovery for his PCR proceedings. We hold that

he does not.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 Dennis Canion was convicted of first degree murder,

aggravated assault, escape, misconduct involving weapons, and

solicitation to commit second degree murder. See State v.

Canion, 199 Ariz. 227, 229-30, ¶¶ 2-8, 16 P.3d 788, 790-91,

(App. 2000). The convictions were affirmed on appeal. Id. at

237, ¶ 45, 16 P.3d at 798. On August 10, 2001, Canion filed a

notice of post-conviction relief, pursuant to Rule 32.4 of the

Arizona Rules of Criminal Procedure. Almost a year later, on

July 19, 2002, without having filed a PCR petition, Canion sent

a request for discovery, seeking the crime scene diagram used at

his trial, copies of photographs, and the shooting review board

report and notes. Canion v. Cole ex rel. County of Maricopa,

208 Ariz. 133, 135, ¶ 3, 91 P.3d 355, 357 (App. 2004). When the

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Maricopa County Attorney’s Office failed to disclose the

requested items, Canion filed a motion to compel discovery,

which the trial court denied. See id. at 135-36, ¶¶ 3, 5, 9, 91

P.3d at 357-58.

¶3 Canion sought review by filing a petition for special

action in the court of appeals, which accepted jurisdiction and

granted relief. Id. at 135, ¶ 1, 91 P.3d at 357. That court

reasoned that a defendant does not lose his right to disclosure

of potentially exculpatory evidence once the jury has rendered

its verdict. Id. at 138, ¶ 18, 91 P.3d at 360. Finding that

Canion had a due-process-based right to discovery, id. at 139,

¶ 23, 91 P.3d at 361, the court ordered that clearly exculpatory

materials should be immediately disclosed to Canion; materials

of “arguable exculpatory value” were to be reviewed by the trial

judge in camera, “if appropriate.” Id. at 140, ¶ 26, 91 P.3d at

362.

¶4 We granted review to decide whether the court of

appeals abused its discretion in concluding that Canion had

shown good cause to compel discovery and in ordering discovery

at the pre-petition stage of the PCR proceedings. See Twin City

Fire Ins. Co. v. Burke, 204 Ariz. 251, 253-54, ¶ 10, 63 P.3d

282, 284-85 (2003) (reviewing discovery ruling for abuse of

discretion, but noting that an “error of law . . . in the

process of reaching [a] discretionary conclusion” may constitute

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an abuse of discretion) (quoting Grant v. Ariz. Pub. Serv. Co.,

133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)); Cervantes v.

Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003)

(applying foregoing standards in criminal discovery context).

We have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution and Arizona Revised Statutes section 12-

120.24 (2003).

II. DISCUSSION

A. PCR Procedures

¶5 The Arizona Rules of Criminal Procedure outline the

process by which a convicted defendant may obtain post-

conviction relief. Ariz. R. Crim. P. 32. The PCR process

begins when the defendant files a notice in the trial court in

which he or she was convicted. Id. R. 32.4(a). The notice is

followed by a petition setting forth any of eight enumerated

grounds for relief. See id. R. 32.1; State v. Carriger, 143

Ariz. 142, 145-46, 692 P.2d 991, 994-95 (1984). The petition

puts flesh and muscle on the skeleton provided by the notice.

Rule 32.5 specifically requires that the petition contain “every

ground known” to the defendant for challenging the judgment and

further requires that all facts upon which the petition is based

be shown by “[a]ffidavits, records, or other evidence currently

available to the defendant.”

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¶6 Rule 32 requires appointed defense counsel to file a

PCR petition setting forth the defendant’s claims for relief

within sixty days of appointment, Ariz. R. Crim. P. 32.4(c)(2),

although extensions of time for filing the petition may be

granted. Id. (requiring “extraordinary circumstances” for the

second or subsequent continuance). In this case, defense

counsel filed the PCR notice on August 10, 2001. Soon

thereafter, Canion’s attorney filed a motion seeking discovery,

and counsel have since been attempting to resolve the discovery

dispute. Thus at this juncture, nearly four years after the

filing of the PCR notice, no PCR petition has been filed.

B. Discovery in PCR Proceedings

¶7 Rule 32 itself does not provide a process for

obtaining discovery in PCR proceedings. Canion has requested

discovery on two bases: that the information he seeks is

exculpatory evidence required to be disclosed by Brady v.

Maryland, 373 U.S. 83 (1963), and that disclosure is required by

Arizona Rule of Criminal Procedure 15.1.

¶8 The Court of Appeals found, and the State

acknowledges, an ethical and constitutional obligation to

disclose clearly exculpatory material that comes to its

attention after the sentencing has occurred, see Brady, 373 U.S.

at 87 (setting forth requirement to disclose clearly exculpatory

material), and we affirm that the State does bear such a duty.

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¶9 The issue is not whether the State was required to

disclose certain materials before trial, but whether Canion may,

at this pre-petition stage of a PCR proceeding, compel discovery

to support his argument that the State failed to make adequate

disclosure. Canion asserts that Rule 15.1 of the Arizona Rules

of Criminal Procedure, which governs discovery and disclosure in

criminal cases, imposes an obligation on the State to disclose

such information. As the State correctly observes, however,

Rule 15 applies only to the trial stage, not to PCR proceedings.

Even the portion of Rule 15 imposing a continuing requirement of

disclosure anticipates that disclosure will occur before trial.

See Ariz. R. Crim. P. 15.6(b)–(d). Rule 15 therefore does not

impose an obligation to disclose materials in these

circumstances.

¶10 Despite the absence of explicit authority, both

parties acknowledge that trial judges have inherent authority to

grant discovery requests in PCR proceedings upon a showing of

good cause. Cf. State v. Van Den Berg, 164 Ariz. 192, 196, 791

P.2d 1075, 1079 (App. 1990); accord Carriger v. Stewart, 132

F.3d 463, 466 (9th Cir. 1997) (interpreting Arizona law,

referencing “court-ordered discovery” during post-conviction

proceedings). Before Canion may be permitted to show good cause

to compel disclosure of the material he seeks, however, he must

file a PCR petition to provide context for his request.

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¶11 The insistence on compliance with Rule 32 is not a

mere formality. We have consistently required that parties

“strictly comply” with the rule to be entitled to relief.

Carriger, 143 Ariz. at 146, 692 P.2d at 995. Rule 32 not only

provides a procedure through which a defendant may be heard, but

also ensures a record from which reviewing courts can determine

whether the facts “support petitioner’s claim for relief.”

State v. Rogers, 113 Ariz. 6, 10, 545 P.2d 930, 934 (1976)

(Cameron, J., dissenting). It also protects the State from

random discovery requests not made within the confines of any

filed case. In short, Rule 32 sets forth an orderly procedure,

beginning with the filing of a notice and petition, that

facilitates consideration not only of a defendant’s claims for

post-conviction relief, but of discovery requests as well. See

supra ¶¶ 5-6. Indeed, the State observes, because no PCR

petition has been filed in this case, we do not yet know what

claims Canion will raise in his bid for post-conviction relief.

¶12 To that point, Canion asserts in his supplemental

discovery memorandum that the State violated its duty under Rule

15 to disclose evidence at trial. We have no petition before

us, however, to explain whether, if true, such an allegation

would state a colorable claim – that is, one that would entitle

Canion to relief under Rule 32. See Carriger, 143 Ariz. at 146,

692 P.2d at 995; see also State v. Runningeagle, 176 Ariz. 59,

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63, 859 P.2d 169, 173 (1993) (defining a colorable claim as one

that, if taken as true, might have changed the verdict); State

v. Adamson, 136 Ariz. 250, 265, 665 P.2d 972, 987 (1983) (same).

For example, we do not know whether Canion’s Rule 32 claim will

be that the State’s failure to disclose constitutes a

constitutional violation, whether he will assert that trial

counsel was ineffective for having failed to obtain the

materials, or whether he intends to advance some other claim

altogether. Moreover, because we have no petition, the record

does not show the legal basis for Canion’s belief that all

required disclosures were not made at trial. Whatever his claim

might be, Canion bears the burden of “assert[ing] grounds that

bring him within the provisions of [Rule 32].” Carriger, 143

Ariz. at 146, 692 P.2d at 995.

¶13 Even assuming, however, for argument’s sake, that the

State did not fully disclose Rule 15 materials before trial,

that claim as pled does not fall within the claims listed under

Rule 32. See Ariz. R. Crim. P. 32.1(a)-(h). While improper, a

violation of Rule 15.1, without more, is not a ground that would

entitle Canion to post-conviction relief. And to the contrary,

the State is entitled to a presumption that Canion’s convictions

were regularly obtained and are valid, a presumption that Canion

bears the burden of overcoming. See State v. McCann, 200 Ariz.

27, 31, ¶ 15, 21 P.3d 845, 849 (2001); State v. Cons, 208 Ariz.

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409, 416, ¶ 19, 94 P.3d 609, 616 (App. 2004).

¶14 Because no PCR petition has been filed in this case,

we do not know the basis for Canion’s claim for Rule 32 relief

and cannot assess whether any violation he might allege would

state a colorable claim. Moreover, because the trial court

denied discovery on the procedural ground that no petition was

pending, we lack any record on which to determine whether Canion

has made a colorable claim on which PCR relief may be granted.

Without a petition or record, we lack any context in which to

assess Canion’s request for discovery. Canion must follow the

PCR procedure outlined in Rule 32. Carriger, 143 Ariz. at 146,

692 P.2d at 995 (requiring strict compliance with Rule 32).

Only when a petition has been filed can the trial judge – and

reviewing courts – properly consider Canion’s request for

discovery in light of his asserted grounds for relief.

¶15 At oral argument, Canion’s counsel objected that

requiring him to file his petition before obtaining discovery

places him in a procedural dilemma. He maintains that because a

PCR petition must “include every ground known to [a defendant]

for vacating, reducing, correcting or otherwise changing all

judgments or sentences imposed upon him,” Ariz. R. Crim. P.

32.5, he must ascertain all potential grounds through discovery

before filing his petition.

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¶16 We see no such dilemma. Rule 32.6(d), which permits a

defendant to amend his petition “upon a showing of good cause,”

adopts a liberal policy toward amendment of PCR pleadings.

Rogers, 113 Ariz. at 8, 545 P.2d at 932. If Canion uncovers new

evidence or exculpatory evidence as a result of his discovery

requests, the trial court may allow amendment of the petition.

Thus, there is no reason for Canion to delay filing his

petition.

¶17 In sum, in this case, after filing only his PCR

notice, Canion requested various materials used at his trial or

available at that time, alleging, without elaboration, that they

were “needed to present an effective defense.” Such a claim,

unsupported by a PCR petition, is insufficient to overcome the

presumptions that the materials were made available before trial

and that Canion’s convictions were regularly obtained and are

valid. See Bracy v. Gramley, 520 U.S. 899, 909 (1997)

(recognizing presumption that public officials “properly

discharged their official duties”); see also McCann, 200 Ariz.

at 31, ¶ 15, 21 P.3d at 849.

¶18 Because no petition has been filed, Canion has neither

established good cause for discovery nor made a colorable claim

that he is entitled to post-conviction relief. Like others who

seek Rule 32 relief, Canion must file his petition, complete

with affidavits and relevant portions of the record that

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establish a ground that would provide a basis for relief under

Rule 32.

III. CONCLUSION

¶19 For the foregoing reasons, we affirm that the State

must disclose clearly exculpatory evidence that comes to its

attention after a trial has concluded, but reverse the court of

appeals’ conclusion that the State must also disclose other

material in the absence of a filed PCR petition. We therefore

vacate the opinion of the court of appeals and remand the case

to the superior court for proceedings consistent with this

opinion.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
Charles E. Jones, Justice (Retired)

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