NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ECKERSTROM, Judge.

¶1 Petitioner Jose McCormick seeks review of the trial court's summary dismissal of his of-right post-conviction relief proceeding, filed pursuant to Rule 32, Ariz. R. Crim. P., for failure to file a pro se petition within the deadline imposed, as well as the court's denials of his "motion to reinstate rule 32 and reversal of dis[]missal of rule 32"; and his "motion to reconsider time extension for filing for pro se notice." For the following reasons, we grant review and grant relief.

¶2 Pursuant to separate but contingent plea agreements, McCormick was convicted in February 2012 of possession of a dangerous drug for sale in Pima County Cause Number CR20100274001 ("2010 case") and attempted possession of a dangerous drug for sale in Pima County Cause Number CR20111277011 ("2011 case"). He was sentenced in separate divisions of the Pima County Superior Court to prison terms of ten years in the 2010 case and 3.5 years in the 2011 case.

¶3 In January 2013, counsel filed a notice of post-conviction relief in the 2010 case on McCormick's behalf requesting, in addition to other relief, leave to file a delayed notice, explaining that, despite the consolidation of cases for the change-of-plea hearing, he had been appointed only in the 2011 case. The court appointed counsel in the 2010 case and directed that a petition be filed by May 31, 2013.

¶4 After some confusion regarding the court division assigned to consider the post-conviction relief proceedings, the judge assigned to Division SR stated that filings had been sent improperly to that division for review and emphasized that McCormick's "Rule 32 proceedings are assigned to Division 1." The judge assigned to Division One of the court subsequently granted counsel's motion to consolidate the proceedings and extended the deadline for filing a petition.1 On July 2, 2013, the court acknowledged counsel's notice "pursuant to Lammie v. Barker, [185 Ariz. 263, 915 P.2d 662 (1996),] informing the court that he will not be filing a petition for post-conviction relief" and granted McCormick leave to file a pro se petition by August 26, 2013. The order, however, was not signed by the judge assigned to Division One, but by the judge assigned to Division SR.

¶5 On July 31, 2013, the judge in Division SR filed a notice stating his division had received, on or about July 16, 2013, a pro se notice of Rule 32 post-conviction relief from McCormick and had forwarded it to the clerk of the court for filing.2 The court's notice explained the proceedings had been consolidated in Division One and stated it had transferred "all copies of [McCormick]'s pleadings" to Division One for review. The court directed McCormick to "file his pleadings for Rule 32 proceedings stemming from [the two cases] with Division 1, not Division SR."

¶6 On September 10, 2013, a new judge assigned to Division One of the court dismissed McCormick's proceeding on the ground he had not filed a pro se petition for post-conviction relief by the August 26 deadline "nor requested more time to do so."3 On September 20, McCormick filed a motion to reverse the dismissal and reinstate the proceeding on the ground he had timely filed what he referred to, alternately, as his "pro se notice" and his "Rule 32." McCormick appeared to assume that, based on the dismissal, the judge had "never received [his] Rule 32 in Division 1." He asserted "[t]he Clerk of the Court and or Division 1 needs to make this right," and asked the court to "honor the petition Rule 32 [sic]" that he had submitted in a timely manner.

¶7 The trial court construed McCormick's motion as a request to extend a deadline that had already passed, apparently believing McCormick was asserting, as an excuse for failing to timely file a pro se petition, that he had been confused about where to file the petition. The court denied the motion, stating McCormick had been ordered on July 31 "to direct his Rule 32 pleadings to Division 1, not Division SR" and noting, "That was 26 days before [McCormick]'s petition-filing deadline" of August 26, 2013.

¶8 On October 24, McCormick filed a second motion to reconsider the dismissal, in which he argued he had been "well aware of the deadline" and had "filed a Petition of Rule 32 on a pro se basis within the timeframe to (Div SR) where [he] was sentenced." He complained that Rule 32 counsel had told him "to file a pro se notice, but [had] failed to explain to him what a pro se notice is" and he "was unaware what a pro se petition was." The court denied the motion, characterizing McCormick's argument as an assertion that "he failed to timely file a pro se petition because he didn't know what a pro se petition was." The court noted McCormick had received a copy of the order "setting the pro se petition deadline and ordering Rule 32 counsel to remain on the case as advisory counsel . . . during any preparation of a pro se petition" and also could have requested legal assistance through the prison, concluding, "Given these resources, the Court denies [McCormick]'s motion." This petition for review followed.

¶9 On review, McCormick contends his Rule 32 counsel was ineffective for failing to inform him "what a pro se notice was." He also argues he had met the court's deadline because his "pro se notice" was filed on July 24, adding, "However[,] the Court failed to inform [him] that this was not the right form and let the due date expire." We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006).

¶10 We do not address McCormick's claim of ineffective assistance of Rule 32 counsel, which was not an issue before the trial court and may only be addressed in a separate, subsequent Rule 32 proceeding. See State v. Petty, 225 Ariz. 369, ¶ 9, 238 P.3d 637, 640 (App. 2010). And, were we to review the trial court's dismissal order alone, we would not be inclined to grant relief; the only thing McCormick filed, after he was granted leave to file a pro se petition, had been captioned a "notice of post-conviction relief," which the court reasonably would have construed as a successive notice filed pursuant to Rule 32.4.

¶11 Similarly, dismissal of the proceeding clearly would have been warranted had McCormick filed nothing at all before the August 26 deadline. But McCormick asserted that he had complied with the court's order in a timely manner because the "notice" he sent to Division SR had been filed by the clerk in July 2013—well before the August 26 deadline.

¶12 It is apparent from McCormick's motions for reconsideration in the trial court, as well as from his petition for review here, that he intended the "pro se notice" he filed on July 24 to constitute the "pro se petition" the court had granted him leave to file, and he does not appear to appreciate the important distinctions between those terms. We recognize the court's concern that McCormick failed to use the resources available to him to file a compliant petition for post-conviction relief pursuant to Rule 32.5. But it appears McCormick was unaware of those resources when he attempted to comply with the court's order permitting him to file a pro se petition.4

¶13 Mindful that an of-right Rule 32 proceeding "is the only means available" to McCormick "for exercising the constitutional right to appellate review," Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995), we conclude the proper course in these unusual circumstances would have been to vacate the dismissal order and construe McCormick's July 24 filing as a non-compliant petition pursuant to Rule 32.5, which provides the following:

Id.

¶14 Because McCormick repeatedly has stated he does not understand what a pro se petition is, we believe the trial court could have accomplished the objective of "specifying how" McCormick's "notice" failed to comply with Rule 32.5 by referring McCormick to Rule 32.5 and warning him that any revised filing would be subject to dismissal if it failed to comply with those requirements. We conclude McCormick is entitled to this limited opportunity to cure his July 24 "notice," properly construed as a non-compliant petition for post-conviction relief.

¶15 For the foregoing reasons, we grant review and grant relief. We vacate the trial court's dismissal of McCormick's Rule 32 proceeding and remand the case for further proceedings consistent with this decision, with advisory counsel receiving notice of the court's actions on remand.