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 IAC 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."
¶ 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 IAC 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 Panzarella had told him his sentence would commence in 2010 but he had learned it commences in 2016.
¶ 7 The trial court appointed Paul Banales to represent Goldin. In a petition Banales filed in October 2014, Goldin asserted that, based on erroneous assurances from Hippert and Panzarella, he had believed his sentence "would start to run as of May of 2010." Goldin relied, in part, on Hippert's statements during the change-of-plea hearing and correspondence with Hippert, who confirmed he had understood the sentence would "start" in May or June of 2010. Goldin argued he recently had learned of a discrepancy between his understanding of when his sentence commenced and what the Arizona Department of Corrections (DOC) had told him, which was, according to Goldin, that the sentence "would not start to run until September of 2013."
¶ 8 The state argued in its response to the petition that the IAC claim was precluded because Goldin had not raised it in the first post-conviction proceeding and, alternatively, the claim was untimely. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(a). The state also argued that no claim had been or could be raised pursuant to Rule 32.1(e) or (f), refuting the merits of such claims had they been raised; the state argued, too, that Goldin had asserted no meritorious reason for failing to raise such claims in the initial proceeding or in a timely manner. See Ariz. R. Crim. P. 32.2(b) (requiring defendant attempting to raise claim under Rule 32.1(d), (e), (f), (g) and (h) in successive or untimely proceeding to establish
¶ 9 In his reply, Goldin again asserted he had misunderstood his sentence because of the ineffectiveness of his attorneys, and explained he had failed to raise the IAC claim in a timely or previous proceeding because he only recently had learned he had such a claim. He then argued he was entitled to relief based on newly discovered evidence pursuant to Rule 32.1(e) both as an independent claim and interrelated with the IAC claim.
¶ 10 Over the state's objection, the trial court set the matter for an evidentiary hearing. A DOC employee in the Time Computation Unit testified at that hearing that Goldin's Maricopa County sentence would be completed in June 2016, and the consecutive sentence in this case then would commence. He explained that to apply 988 days' credit to the eleven-year sentence, the sentence-commencement date essentially is back-dated so that it would, for time-calculation purposes, begin January 31, 2013, and would be completed on September 17, 2024.
¶ 11 Hippert and Panzarella testified that although the plea agreement provided and the trial court had imposed a consecutive prison term, they had believed Goldin essentially would begin serving his sentence from the time of his arraignment in 2010 because of the nearly three years' presentence incarceration credit. Both attorneys believed this was the import and intent of the addendum to the plea agreement. And, they testified, this is what they had told Goldin.
¶ 12 Goldin testified consistently with Hippert and Panzarella about what they had told him. He conceded he had stipulated to a consecutive prison term and neither the plea agreement nor the addendum stated he would begin serving his sentence in May or June of 2010, although he believed the sentence, in effect, would be partially concurrent because of the presentence incarceration credit. He testified further that, had he known he would not begin serving the eleven-year term until June 2016, and would have to serve eight more years, not five, after receiving the three years' credit, he would not have accepted the plea agreement.
¶ 13 Goldin also testified he did not recognize an issue with his sentence until he sought transfer to minimum security, which required a calculation of the amount of time remaining on both prison terms. When he wrote to Hippert telling him what DOC had told him, Hippert said he should "write a Rule 32" about DOC's miscalculation of his sentence.
¶ 14 In his petition for review, Goldin argues the trial court erred by finding precluded
¶ 15 Neither the plain language of the rule nor case law interpreting it prior to Diaz supports Goldin's suggestion that because of his attorneys' ineffectiveness, his newly discovered IAC claim should be excepted from the preclusive effect of Rule 32.2 and 32.4. Based solely on the rule, the trial court did not abuse its discretion in finding the IAC claim precluded. See Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d at 948 (appellate court will not disturb ruling in post-conviction proceeding absent clear abuse of discretion).
¶ 16 Nevertheless, in its draft decision provided to the parties before oral argument, this court suggested the supreme court's recent decision in Diaz could be applicable to Goldin's case.
¶ 17 Our supreme court accepted Diaz's petition for review "to decide an important issue of law concerning waiver in Rule 32 proceedings." Id. ¶ 6. The court noted that Diaz's first Rule 32 notice was filed timely. Id. ¶ 11. It also acknowledged that a defendant is precluded from raising a claim waived by his failure to raise it in a previous post-conviction proceeding. Id. ¶ 1. But, the court concluded, "Under the unusual facts of this case, Daniel Diaz did not waive his ineffective assistance of trial counsel claim when, through no fault of Diaz's, his counsel failed to file petitions in two prior post-conviction relief proceedings." Id.
¶ 18 The supreme court reasoned that its "holding in this peculiar scenario does not frustrate Rule 32's preclusion provisions[, which] ... `require a defendant to raise all known claims for relief in a single petition.'" Id. ¶ 12, quoting Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at 641. The purpose of preclusion, the court observed, is to "`prevent endless or nearly endless reviews of the same case in the same trial court.'" Id., quoting Stewart v. Smith, 202 Ariz. 446, ¶ 11, 46 P.3d 1067, 1071 (2002). The court concluded, "Permitting Diaz to file his first petition to assert an IAC claim under the circumstances here will not result in repeated review of the IAC claim; it would result in its first review." Id.
¶ 19 The state contended during oral argument that the reasoning and holding in Diaz could completely undermine the rules of preclusion if not strictly confined to very unusual cases. However, the rule of law requires that "similarly situated litigants should be treated the same." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); see also Am. Trucking Assns., Inc. v. Smith, 496 U.S. 167, 214, 110 S.Ct. 2323, 110
¶ 20 The record establishes that both of Goldin's attorneys misinformed him concerning the functional length of his sentence, rendering ineffective assistance. The prosecuting attorney also contributed to the confusion. And, because of the improper advice, the trial court's colloquy at the change-of-plea hearing, which followed the standard outline, was inadequate to properly inform Goldin of the true effect of the sentencing provisions. See Ariz. R. Crim. P. 17.2(b). Accordingly, based on this record, he pled guilty without understanding the sentence being imposed. Ariz. R. Crim. P. 17.1(b) (plea must be made intelligently and voluntarily); see also State v. Cordova, 105 Ariz. 597, 598, 469 P.2d 82, 83 (1970) ("due process requires a plea of guilty to be made voluntarily and with understanding"); cf. State v. Lamas, 143 Ariz. 564, 567, 694 P.2d 1178, 1181 (1985) (plea could not be made voluntarily or intelligently where trial court failed to fully inform defendant of all conditions surrounding sentence).
¶ 21 Later, when Goldin told one of his attorneys that DOC was miscalculating his sentence, that attorney told him to file a Rule 32 notice. But a miscalculation by DOC, without more, would not be grounds for relief under Rule 32. See Ariz. R. Crim. P. 32.1(d) & cmt. (post-conviction relief for miscalculated sentence only available when petitioner would have been released already but for alleged error); see also State v. Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App.1985) (challenges to DOC time computation not cognizable under Rule 32 "unless they result in the defendant remaining in custody when he should otherwise be free"). And the attorney did not inform Goldin that he would have to justify his untimely filing under Rule 32.1(d)-(h).
¶ 22 When Goldin discovered that the problem was not a DOC error, he filed his second notice and petition, arguing he had received ineffective assistance. The trial court held an evidentiary hearing during which the true facts concerning Goldin's attorneys' inadequate advice were revealed for the first time.
¶ 23 Based on Diaz, we cannot conclude that any of Goldin's actions or inaction could be construed as a waiver of his Rule 32 rights. Rather, just as in Diaz, Goldin was "blameless" and allowing his claim to move forward would result in a "first review," not repeated review. 236 Ariz. 361, ¶¶ 11-12, 340 P.3d at 1071.
¶ 24 However, in Diaz, our supreme court noted the petitioner had filed his first notice in a timely manner, and the ensuing problems stemmed from his attorneys' failures to file an initial petition. Id. ¶ 11. Here, Goldin had ninety days to file his first Rule 32 notice but did not file it until a year after he had been sentenced. See Ariz. R. Crim. P. 32.4(a). The state argues Goldin failed to file his notice in a timely fashion and that the time limits are jurisdictional under A.R.S. § 13-4234(G), which states that an untimely notice "shall be dismissed with prejudice."
¶ 26 As we observed in State v. Rosales, 205 Ariz. 86, ¶ 12, 66 P.3d 1263, 1267 (App.2003), "The preclusion rules exist to prevent multiple post-conviction reviews, not to prevent review entirely." And, "Rule 32 `is designed to accommodate the unusual situation where justice ran its course and yet went awry.'" State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), quoting State v. McFord, 132 Ariz. 132, 133, 644 P.2d 286, 287 (App.1982). Such a situation exists here. Based on the unusual circumstances of this case and given our supreme court's decision in Diaz, we are compelled to grant Goldin's petition for review and grant relief, in part. We remand this matter to the trial court so that it may determine whether Goldin's initial post-conviction proceeding may be regarded as timely filed pursuant to Rule 32.1(f) and, if so, to permit him to present the IAC claim as though it had been raised in a timely commenced, of-right proceeding. The issues on the merits having been briefed and an evidentiary hearing having been conducted, the court may determine on the existing record whether the apparently deficient performance by Goldin's attorneys was prejudicial, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or it may conduct any further proceedings necessary.