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Fitzgerald v. Myers

Supreme Court of Arizona

September 26, 2017

John Vincent Fitzgerald, Petitioner,
Honorable Sam Myers, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona ex rel. Mark Brnovich, Arizona Attorney General, Real Party in Interest.

         Appeal from the Superior Court in Maricopa County The Honorable Sam Myers, Judge No. CR2005-111543

         Order 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 Vincent Fitzgerald.

          Mark 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.

          Eric John Aiken (argued), Jessica A. Gattuso, Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorneys for Frank Fitzgerald and Mary Kennedy.

          Emily Skinner (argued), Arizona Capital Representation Project, Phoenix, Attorneys for Amicus Curiae Arizona Capital Representation Project.

          VICE 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 the result.



         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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 about paranoia.

         ¶5 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 PCR proceedings.

         ¶6 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.

         ¶7 Fitzgerald then petitioned for special action relief in this Court.[1] 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.


         ¶8 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.[2] Because the issues here turn on statutory and rule interpretation, our review is de novo. Sanchez v. Ainley, 234 Ariz. 250, 252 ¶ 6 (2014).

         ¶9 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. 32.4(a), (c)(1).

         ¶10 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).

         ¶11 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 ...

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