Tucson Appeals & Post-Conviction Relief — A Former Judge Fighting for a Second Chance

Arizona’s primary post-conviction relief mechanism is the petition for post-conviction relief, governed by Rule 32 of the Arizona Rules of Criminal Procedure (for cases prior to January 1, 2020) and Rule 33 (for cases filed on or after that date). These rules provide several grounds for relief:

• Constitutional violations — Violations of the defendant’s constitutional rights, including ineffective assistance of counsel, prosecutorial misconduct, jury misconduct, and violations of the right to due process.
• Newly discovered evidence — Material facts that were not known to the defendant at the time of trial and could not have been discovered through reasonable diligence, and which would likely have changed the outcome.
• Exculpatory evidence withheld — Evidence favorable to the defendant that the prosecution failed to disclose in violation of Brady v. Maryland.
• Significant change in the law — A change in the law that, if applied retroactively, would render the defendant’s conviction or sentence unconstitutional or illegal.
• Actual innocence — Clear and convincing evidence that the defendant is factually innocent of the offense.

Ineffective Assistance of Counsel is the most commonly raised ground for post-conviction relief. Under Strickland v. Washington, the defendant must demonstrate both that trial counsel’s performance was deficient—falling below an objective standard of reasonableness—and that the deficiency prejudiced the defense, meaning there is a reasonable probability that the outcome would have been different with competent representation.

Rule 32/33 petitions are subject to strict time limits and procedural requirements. Of-right petitions for defendants who did not have a direct appeal must generally be filed within a specific timeframe after sentencing. Successive petitions face additional restrictions. Consulting an attorney promptly is essential to preserve your rights.

Arizona does not offer traditional expungement for most offenses, but A.R.S. § 13-905 allows a person who has completed the terms of their sentence to petition the court to set aside the judgment of guilt. A set aside does not erase the conviction but offers meaningful benefits:

What a Set Aside Does. When a conviction is set aside, the court dismisses the accusation and releases the defendant from all penalties and disabilities resulting from the conviction, except for certain firearm and sex offense restrictions. The record is annotated to show that the conviction has been set aside.

What a Set Aside Does Not Do. A set aside does not seal or destroy the record. The conviction will still appear on background checks, but it will be noted as “set aside.” It does not automatically restore gun rights. It does not prevent the conviction from being used as a prior offense in future sentencing.

Eligibility. Persons who have completed all terms of their sentence, including probation, fines, and restitution, may petition for a set aside. Certain offenses are excluded, including offenses involving the infliction of serious physical injury, use of a deadly weapon, offenses requiring sex offender registration, offenses against children under 15, and DUI offenses committed while the person’s license was suspended.

Factors the Court Considers. The court evaluates the nature of the offense, the defendant’s compliance with conditions of probation or sentence, the time elapsed since completion of the sentence, the defendant’s age at the time of the offense, and any other relevant factors demonstrating rehabilitation.

In 2023, Arizona enacted a record sealing statute that provides stronger protection than a set aside. Under A.R.S. § 13-911, eligible individuals can petition to have their criminal records sealed, making them inaccessible to the general public, employers, and landlords:

Eligible Offenses. Most completed criminal cases are eligible for sealing, including dismissed cases, acquittals, and convictions for which all terms have been served. The waiting period after completion of the sentence depends on the offense classification:

• Class 2 or 3 felony: 10 years after completion of sentence
• Class 4, 5, or 6 felony: 5 years after completion of sentence
• Class 1 misdemeanor: 3 years after completion of sentence
• Class 2 or 3 misdemeanor: 2 years after completion of sentence
• Dismissed charges and acquittals: immediately eligible

Excluded Offenses. Certain offenses are not eligible for sealing, including offenses requiring sex offender registration, dangerous crimes against children, offenses involving a deadly weapon or dangerous instrument that caused serious physical injury, and certain DUI offenses. Class 1 felonies (first-degree murder) are also excluded.

Effect of Sealing. Once sealed, the record is not accessible through standard background checks. The person may legally state that they have no criminal record with limited exceptions. Law enforcement and certain agencies retain access. A sealed record can still be used for sentencing enhancement if the person commits a new offense.

Record sealing is a powerful tool for individuals seeking to move beyond a criminal past. The petition process requires careful preparation and presentation, and a successful petition can dramatically improve employment, housing, and educational opportunities.

A felony conviction in Arizona results in the loss of several civil rights, including the right to vote, hold public office, serve on a jury, and possess firearms. Arizona provides mechanisms to restore these rights:

Automatic Restoration (A.R.S. § 13-912). For a first felony conviction, civil rights (other than gun rights for certain offenses) are automatically restored upon completion of the sentence, including probation, and the passage of two years. For second and subsequent felonies, rights are not automatically restored and require a court petition.

Petition for Rights Restoration (A.R.S. § 13-912). Individuals with two or more felony convictions may petition the sentencing court for restoration of civil rights. The court considers the nature of the offense, the time elapsed, the petitioner’s behavior since conviction, and other factors.

Gun Rights Restoration (A.R.S. § 13-910). Firearm rights are not automatically restored for all offenses. For non-dangerous offenses, gun rights are typically restored along with other civil rights. For dangerous offenses (those involving the use of a deadly weapon or dangerous instrument), a separate petition to restore firearms rights must be filed, and the court must make a specific finding that the applicant is not likely to endanger public safety. This is a higher standard that requires careful preparation and presentation.

Federal Considerations. Even when Arizona gun rights are restored, federal prohibitions under 18 U.S.C. § 922(g) may still apply. The interplay between state restoration and federal law is complex and requires careful legal analysis.

Early Termination of Probation. Under A.R.S. § 13-901(E), the court may terminate probation early when the probationer has served a significant portion of the probation term and has demonstrated good conduct and compliance. Early termination of probation accelerates the timeline for rights restoration, record sealing, and set aside eligibility. A persuasive petition demonstrating rehabilitation and compliance significantly improves the chances of early termination.

A direct appeal challenges errors that occurred during the trial or sentencing process. Appeals are distinct from post-conviction petitions and address different types of issues:

Grounds for Appeal. Common grounds include errors in jury instructions, improper admission or exclusion of evidence, prosecutorial misconduct during trial, insufficient evidence to support the conviction, sentencing errors, and constitutional violations that were preserved through objections at trial.

Timeline. A notice of appeal must be filed within 20 days of sentencing for felonies and within 14 days for misdemeanors. Missing these deadlines can forfeit the right to appeal, though post-conviction relief may still be available.

Process. The appeal is heard by the Arizona Court of Appeals (or the Arizona Supreme Court for death penalty cases). The appellate court reviews the trial record, written briefs from both sides, and may hear oral argument. The appellate court does not hear new evidence or witness testimony.

Standard of Review. The standard of review varies depending on the issue raised. Legal errors are reviewed de novo (fresh), factual findings are reviewed for clear error, and discretionary decisions are reviewed for abuse of discretion. Issues not raised at trial are reviewed only for fundamental error, which is a much harder standard to meet.

Possible Outcomes. The appellate court may affirm the conviction, reverse the conviction, modify the sentence, or remand the case to the trial court for further proceedings. A reversal does not necessarily mean the case is over—the State may retry the case unless the reversal was based on insufficient evidence.