from the Superior Court in Maricopa County The Honorable Sam
Myers, Judge No. CR2005-111543
of the Court of Appeals, Division One No. 1 CA-SA 16-0154
Filed Jul. 25, 2016.
Randall J. Craig (argued), The Law Offices Attorneys for John
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation
Section, Julie A. Done (argued), Assistant Attorney General,
Phoenix, Attorneys for State of Arizona.
John Aiken (argued), Jessica A. Gattuso, Colleen Clase,
Arizona Voice for Crime Victims, Phoenix, Attorneys for Frank
Fitzgerald and Mary Kennedy.
Skinner (argued), Arizona Capital Representation Project,
Phoenix, Attorneys for Amicus Curiae Arizona Capital
CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, JUSTICES BRUTINEL, TIMMER, BOLICK,
and GOULD joined. JUDGE VÁSQUEZ [*] concurred in
PELANDER, VICE CHIEF JUSTICE
After affirming a defendant's conviction and death
sentence in a capital case, this Court is statutorily
required to appoint counsel to represent the defendant in
state post-conviction relief ("PCR") proceedings.
A.R.S. § 13-4041(B). Such proceedings are governed by
Arizona Rule of Criminal Procedure 32. Rule 32.5 sets forth
the required contents of a PCR petition and states that
"[t]he petition shall be accompanied by a declaration by
the defendant stating under penalty of perjury that the
information contained is true to the best of the
defendant's knowledge and belief." Ariz. R. Crim. P.
32.5. We hold that neither § 13-4041 nor Rule 32.5
requires a trial court to determine whether a Rule 32
petitioner is competent before proceeding with and ruling on
the PCR petition. But a court, in its discretion, may order a
competency evaluation if it is helpful or necessary for a
defendant's presentation of, or the court's ruling
on, certain Rule 32 claims and, if so, the court should order
the evaluation as soon as practicable even if the PCR
proceeding is not stayed.
In April 2005, John Vincent Fitzgerald traveled from his home
in Hawaii to Arizona, where his mother Margaret (Peggy)
Larkin lived in Sun City West. He brought numerous weapons,
ammunition, and tactical gear. Fitzgerald asked Peggy's
fiancé, J.T., to pick him up at his motel and to keep
the visit a surprise. They went to Peggy's house and when
she answered the door, Fitzgerald pushed J.T. aside and
attacked Peggy with a samurai sword. After she fell to the
floor, Fitzgerald shot her twice in the head, yelling that
she was a pedophile. Fitzgerald was arrested a few blocks
away, later confessed during a police interview, and was
charged with first degree murder and burglary. The State
sought a death sentence.
In pretrial competency proceedings pursuant to Arizona Rule
of Criminal Procedure 11, the trial court found Fitzgerald
incompetent and referred him for restoration treatment. In
March 2008, based on the physicians' reports, the court
found Fitzgerald had been restored to competency. At trial,
the jury rejected Fitzgerald's guilty-except-insane
defense, found him guilty of both charges, and found three
aggravating circumstances. In the penalty phase, after
Fitzgerald had an emotional outburst during victim impact
statements, the trial court ordered another Rule 11
competency evaluation and declared a mistrial. Fitzgerald was
found incompetent and again underwent restoration treatment.
The parties later stipulated that he was restored to
competency. A new penalty-phase jury determined that
Fitzgerald should be sentenced to death for the murder. The
trial court imposed that sentence and also sentenced
Fitzgerald to a prison term for the burglary conviction.
This Court affirmed the convictions and sentences. State
v. Fitzgerald, 232 Ariz. 208, 217 ¶ 51 (2013). In
late 2013, attorney Randall Craig was appointed to represent
Fitzgerald in this Rule 32 PCR proceeding. Craig initially
reported that he "always noticed delusional
behavior" exhibited by Fitzgerald, but that they
"could hold meaningful meetings and discussions"
about preparing the PCR petition. Over time, however, Craig
noticed "a slow decline in [Fitzgerald's] ability to
hold a meaningful conversation." In November 2015,
Fitzgerald refused to meet with the mitigation specialist,
who opined that Fitzgerald's competency was deteriorating
quickly. Craig "did not notice this decline in telephone
conversations or visits at that time although [Fitzgerald]
did appear to suffer from paranoid episodes." At that
time, Fitzgerald's prison mental health records did not
reveal a change in mental health status except for notations
Prison records indicate that Fitzgerald refused his
medication in December 2015 because he believed he was being
poisoned, he was experiencing audio and visual
hallucinations, and he refused to be treated or evaluated.
The next month, Fitzgerald met with defense team members but
accused them of conspiring to harm him. After receiving a
letter from Fitzgerald that caused greater concern about his
mental status, Craig retained Dr. Alan Abrams and Dr. Bhushan
Agharkar to evaluate competency, but Fitzgerald refused to be
evaluated, claiming they were part of the
"illuminati." Finally, in March 2016, Fitzgerald
was evaluated by Dr. Agharkar, who concluded that Fitzgerald
could not rationally assist counsel in preparing the PCR
petition and was "incompetent to proceed" with the
In May, Fitzgerald moved the superior court to conduct a
hearing to determine competency and to stay all PCR
proceedings until the court found him competent. Fitzgerald
argued that § 13-4041(B) and Rule 32.5 establish a
defendant's right to competency during PCR proceedings.
After the State and the victims responded, the superior court
denied the motion, finding that "at this stage of the
current proceedings [Fitzgerald's] competence is not
necessary to assist PCR counsel or the Court" and that
Fitzgerald "does not have a right to a competency
determination at this point in a post-conviction
proceeding." The court of appeals declined jurisdiction
of Fitzgerald's petition for special action.
Fitzgerald then petitioned for special action relief in this
Court. Treating that filing as a petition for
review, we granted review because whether a convicted capital
defendant is entitled under Arizona's statutes or rules
to a competency determination in PCR proceedings is a
recurring issue of statewide importance, and the issue has
resulted in inconsistent rulings in the superior court. We
have jurisdiction under article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.
The issues raised in Fitzgerald's petition for review are
whether the superior court's order denying his motion to
determine competency in his PCR proceeding violated his
rights under § 13-4041(B) "to effectively and
completely communicate with his appointed counsel" in
Rule 32 PCR proceedings, and under Rule 32.5 "to
effectively and competently determine if the information in
the [PCR petition] is true and accurate." We address
only those issues, not any belatedly raised constitutional
issues, and limit our analysis to this post-conviction,
capital case context. Because the issues here turn on statutory
and rule interpretation, our review is de novo. Sanchez
v. Ainley, 234 Ariz. 250, 252 ¶ 6 (2014).
Arizona statutorily authorizes PCR proceedings. See
A.R.S. §§ 13-4231 through -4240. Rule 32 of our
criminal procedure rules "outline[s] the process by
which a convicted defendant may obtain post-conviction
relief." Canion v. Cole, 210 Ariz. 598, 599
¶ 5 (2005). A PCR proceeding "is a part of the
original criminal action and not a separate action."
A.R.S. § 13-4233; see also Ariz. R. Crim. P.
32.3 (same). In capital cases, once a mandate affirming the
defendant's conviction and death sentence has issued,
this Court automatically files a PCR notice with the trial
court and appoints defense counsel for the PCR proceedings.
A.R.S. § 13-4234(D); see also Ariz. R. Crim. P.
Section 13-4041 addresses the appointment of counsel.
Subsection (B) provides: "After the supreme court has
affirmed a defendant's conviction and sentence in a
capital case, the supreme court or, if authorized by the
supreme court, the presiding judge of the county from which
the case originated shall appoint counsel to represent the
capital defendant in the state postconviction relief
proceeding." A.R.S. § 13-4041(B); see also
Ariz. R. Crim. P. 32.4(c)(1). To be eligible for appointment,
an attorney must meet the qualifications prescribed in
Arizona Rule of Criminal Procedure 6.8(a) and (c) and
"shall be familiar with and guided by the performance
standards in the 2003 American Bar Association Guidelines for
the Appointment and Performance of Defense Counsel in Death
Penalty Cases ("ABA Guidelines")." Ariz. R.
Crim. P. 6.8(c)(4).
Under the ABA Guidelines, Fitzgerald argues, capital PCR
counsel "are required to investigate and consider any
and all claims potentially available to a petitioner."
See ABA Guidelines 10.5 ("Relationship with the
Client"); 10.7 ("Investigation"); 10.8
("The Duty to Assert Legal Claims"); 10.15.1
("Duties of Post-Conviction Counsel").
Specifically, Fitzgerald points to the ABA Guidelines'
statements that capital case PCR counsel "should fully
discharge the ongoing obligations imposed by the
Guidelines, including the obligations to: maintain close
contact with the client regarding litigation
developments"; "continually monitor the
client's mental, physical and emotional condition for
effects on the client's ...