Petition for Review from the Superior Court in Pima County. No. CR20101551001. The Honorable Paul E. Tang, Judge.
Mark Brnovich, Arizona Attorney General, Kimberly H. Ortiz, Section Chief Counsel, Tucson, By Nicholas Klingerman, Assistant Attorney General, Tucson, Counsel for Respondent.
Law Office of Paul S. Banales, Tucson, By Paul S. Banales, Counsel for Petitioner.
Presiding Judge Howard authored the opinion of the Court, in which Judge Vásquez and Judge Brammer concurred.
HOWARD, Presiding Judge
[¶1] In this petition for review, Darren Goldin challenges the trial court's order denying his petition for post conviction relief pursuant to Rule 32, Ariz. R. Crim. P., after an evidentiary hearing, and finding his claim of ineffective assistance of counsel (IAC) precluded. Based on our supreme court's decision in State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014), and the unique circumstances of this case, we grant relief in part, remanding this matter to the trial court to determine whether Goldin is entitled to relief pursuant to Rule 32.1(f) and, if so, to allow Goldin to present his I.A.C. claim in a timely post-conviction proceeding.
[¶2] Goldin was charged by indictment with first-degree murder, committed in March 2000. Pursuant to a plea agreement, he pled guilty to second-degree murder. The plea agreement stipulated Goldin would be sentenced to a prison term of eleven years, to be served consecutively to another prison term he began serving in Maricopa County Superior Court No. CR-00-092448B in September 2005. During the change-of-plea hearing, when the trial court explained to Goldin the sentence was consecutive, trial counsel Thomas Hippert interjected that the sentence " goes back to the time of his arraignment," and " it does run from I think May of 2010."  The court did not pursue the issue further.
[¶3] At the sentencing hearing on January 31, 2013, the parties submitted an addendum to the plea agreement, which stated: " Pursuant to A.R.S. § 13-712(B) and Ariz. R. Crim. P. 26.10(b)(4), the parties stipulate that the Court shall order that Defendant's pretrial incarceration dating from his Arraignment on June 15, 2010 be credited against his sentence of imprisonment . . . ." The trial court sentenced Goldin to the eleven-year prison term, and granted him 988 days of presentence incarceration credit. In imposing that term, the court confirmed the sentence was consecutive to the sentence in the Maricopa County case, but added, " which, as the parties have indicated on the record today, by stipulation, that date is to start to commence from June 15, 2010. At this point, I understand that the presentence report author has calculated 988 days."
[¶4] A year later, on February 10, 2014, Goldin filed a pro se notice of post-conviction relief. On the form notice, he checked the space to reflect he was not asserting a claim of ineffective assistance of counsel. He also requested that Hippert and Raymond Panzarella, the second attorney who had represented him, be appointed in the post-conviction proceeding. In the paragraph pertaining to an untimely notice, however, the form required Goldin to specify whether he intended to raise a claim pursuant to Rule 32.1(d), (e), (f), (g) or (h); Goldin did not check the space indicating " yes" or " no." The trial court dismissed the notice as untimely, noting Goldin had " failed to indicate in his Notice that an exception to a timely Notice applied. Ariz. R. Crim. P. 32.2(b)." See Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief must be filed within ninety days of sentencing).
[¶5] On February 27, Goldin filed a form petition for post-conviction relief, in propria persona, in which he stated he wished to assert a claim pursuant to Rule 32.1(c). He also filed a motion to clarify his sentence. The state filed its response to the petition and motion on March 13. On March 19, the trial court entered an order stating it lacked " jurisdiction to address the Petition" and the accompanying memorandum because the untimely notice with which it was associated had been dismissed and no new notice of post-conviction relief had been filed. Goldin did not seek review of that ruling.
[¶6] On April 16, 2014, Goldin filed a second pro se notice of post-conviction relief. In that notice he stated he was asserting a claim of I.A.C. and requested the appointment of counsel. He also indicated that he was raising claims of newly discovered material facts and that failure to file a timely notice of post-conviction relief was without fault on his part. Goldin asserted in the notice that Hippert and ...