Reuscher v. State

*592 THOMAS, Judge,

dissenting.

I respectfully dissent. It is often said that where there is a wrong, there is a remedy. This may be true, but sometimes we have to help it become true. In this case, not only is Mr. Reuseher being unjustly deprived of a review under Rule 29.15 for post conviction relief, but the Court is depriving itself of the opportunity to have such review in a death penalty ease where, in my view, it is essential. Reuscher’s amended motion under Rule 29.15 raises numerous allegations of ineffective assistance of trial counsel. A Rule 29.15 motion is the only procedure by which these important issues may be raised. State v. Wheat, 775 S.W.2d 155, 157 (Mo. banc 1989).

In my view, no defendant facing a sentence of death should ever be deemed to have waived post conviction relief unless such waiver is intentional and made knowingly by the defendant, is the result of the defendant using the Rule 29.15 procedure for unnecessary delay, or some other purpose for which it is not intended. In this instance, not only did Reuseher not knowingly or intentionally waive his Rule 29.15 motion, but he made eveiy effort to file such a motion, he was not negligent or at fault, and there is no suggestion that he was using the Rule 29.15 motion for unnecessary delay.

The primary fault for the untimeliness of the motion falls upon Reuscher’s trial attorney who also functioned as his counsel for the direct appeal. His representation to Reuseher that he was obtaining an extension to July 1, 1991 within which to file the transcript on appeal was unequivocal and unconditional in form. Given this representation and the attorney’s knowledge that the date of filing of the transcript is the critical factor in establishing the due date for the Rule 29.15 motion, it was inexcusable that the attorney did not immediately notify Reuseher that he only received an extension until May 15, 1991. Moreover, the attorney was likewise at fault for failing to notify Reuseher when the transcript was in fact filed on May 15, 1991.

The majority questions whether the attorney could ethically honor a request by Reuseher to prepare his Rule 29.15 motion. This is an acknowledgment that the trial attorney has a potential conflict of interest with respect to a Rule 29.15 motion, which almost always raises issues of incompetency of trial counsel and does so in this case. Despite this well-known likely conflict of interest and the fact that the date of the filing of the transcript is critical for the timely filing of a Rule 29.15 motion, this Court’s rules do not provide for notice to the defendant of the date of filing. See Rule 30.04.. The majority is holding Reuseher to the unrealistic standard that he should have foreseen the failure to notify by his attorney and assumed that the transcript would be filed earlier than he had been told.

Reuscher’s Rule 29.15 motion should be heard on its merits not simply because he was not at fault, but primarily because of the importance of the accuracy of the verdict in a death penalty case. Death penalty cases are different. “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1975). “The finality of the death penalty requires ‘a greater degree of reliability 1 when it is imposed.” Murray v. Giarratano, 492 U.S. 1, 8-9 , 109 S.Ct. 2765, 2769-70 , 106 L.Ed.2d 1 (1988) (quoting Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964 , 57 L.Ed.2d 973 (1978)). Although the Supreme Court has declined to hold that post-trial proceedings must have different standards for death penalty cases, 1 Arizona, Florida, Idaho, Louisiana, and Oklahoma all now apply different post-conviction relief rules in death penalty cases. 2

Because of the need for unerring reliability in death penalty cases and the current system that allows defendants like Reuseher to be denied the opportunity to have their Rule 29.15 motions heard on the merits, I would *593 change this Court’s procedure for filing a motion under Rule 29.15 so that such motions would be filed automatically and promptly in death penalty cases unless the defendant expressly and intentionally waives the filing of the motion. This procedure could not be used by the defendant or counsel to delay the proceedings.

There is an additional benefit that would flow from this proposal. This procedure should actually shorten, rather than lengthen, the time period between conviction and the carrying out of the sentence in the only cases it would apply to — cases where the timeliness of the Rule 29.15 motion is in issue. In the present case, for example, Reuscher was sentenced on January 11,1991. Under this proposal, his Rule 29.15 motion would have been automatically filed in early 1991 and would surely have been ruled on before now. Under the new procedure, we would have saved the three years spent litigating the timeliness of Reuscher’s motion.

I would apply this change in procedure in the present case and direct the trial court to hear on the merits the Rule 29.15 motion filed by Reuscher on December 24, 1992. I would reverse and remand.

. Id.

. See Rule 32.4 Ariz.R.Crim.P; Fla.R.Crim.P. 3.850, 3.851; I.C. § 19-2719; LSA-C.Cr.P. Art. 930.8; 22 O.S. 1987 § 1089.