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When it comes to post-conviction relief and to appeal a criminal conviction, there are many elements involved. This article explains in detail what each of these terms mean and how your defense attorney at Colburn Hintze Maletta can help you appeal a courts decision and overturn a conviction.  

There are four ways to undo a guilty plea in the Arizona state court system. The first way is to simply withdraw the plea. This can be done prior to the court accepting the plea. The second method is to file a Motion to Withdraw the Plea to Avoid a Manifest Injustice. The third is to file an appeal. And fourth is through Rule 33, Post-Conviction Relief (PCR).

Keep reading below to understand your rights and how our goal is to get your criminal charges dismissed.

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How to Overturn a Criminal Conviction in the Arizona Court System

Motion to Withdraw a Plea for Manifest Injustice

            A motion to withdraw a plea may be filed to avoid a manifest injustice.  The court then has discretion to let the defendant out of the plea to avoid that manifest injustice.  A manifest injustice would be an outcome that is obviously unjust.

An involuntary plea, such as a coerced plea, would be an example of a manifest injustice. 

The odds of undoing the plea are better prior to sentencing.  However, it is still possible to undue the plea after sentencing.  This motion is filed with the same judge and court that accepted the plea.         


Overturning a Plea by Filing an Appeal

After a person has been convicted pursuant to a trial, an appeal is the next course of action to overturn the conviction.  An appeal cannot be filed after a plea of guilty because a plea of guilty waives appellate rights.

The avenue for overturning a conviction after a guilty or no contest plea is a Petition for Post-Conviction Relief (PCR).

An appeal, on the other hand, allows the defense to challenge any mistakes made on the record.  The record consists of transcripts, motions, and legal rulings.  Any matters outside of the record cannot be appealed and must be challenged via PCR.


Step 1:

The first step in an appeal is to order the complete record.  The transcript will be voluminous and will likely consist of several hundred to several thousand pages, depending on the length of the trial.


Step 2:

The second step is to talk to trial counsel and ask what issues he or she thought there were in the trial that would be appropriate for an appeal.  It is a prudent idea to have another lawyer, rather than the trial attorney, do the appeal so that a fresh set of eyes are on the case.  A different attorney may discover an issue that was overlooked by the original trial counsel.


Step 3:

The third step is to go through the record in detail, which is a difficult and time-consuming process.  It must be read with great attention to detail to spot any legal issues for appeal.  We are looking for errors such as:  mistakes in jury selection, mistakes in ruling on legal pre-trial legal motions, or mistakes in trial rulings.

An unskilled trial attorney can do a great deal of damage to an appellate case.  A trial lawyer’s failure to object or raise legal issues during trial will waive them for appellate purposes, unless they are fundamental errors. Colburn Hintze Maletta has an impeccable record of knowing when to spot issues with the prosecution.

If the trial lawyer failed to object or raise legal issues, a rule 33 PCR for ineffective assistance of counsel will need to be filed after the appeal is completed.  It is imperative that the appellate attorney is experienced in appeals.  An inexperienced appellate attorney may fail to identify legal issues in a case because he or she may not know those issues can be overturned on appeal.


Step 4:

The fourth step in an appeal of a criminal conviction is to research the applicable case law for every legal issue that was spotted in the transcript.  This applicable case law is what is known as “precedent.”  If there is no relevant precedent in Arizona, we will have to look to other states’ cases or Federal cases.  Out-of-state and Federal cases are not binding precedent for Arizona state court cases; they are only considered persuasive.


Step 5:

The fifth step of an appeal is to write the appellate opening brief and ask for an oral argument.  The prosecutor will draft an answering brief and then the defense will file a reply brief.


An appeal from a City or Justice Court should be filed in the Superior Court Lower Court of Appeals.  The Lower Court of Appeals will consist of a single judge, who will review the appeal.  An appeal from Superior Court should be filed in the Court of Appeals Division I or II, depending on the jurisdiction of the Superior Court.  The Court of Appeals will consist of a three-judge panel.

Rule 33 Post Conviction Relief – Formerly Referred to as Rule 32

A Rule 32 / Rule 33 post-conviction relief, or PCR for short, is a brief that can undue a conviction for ineffective assistance of counsel, an involuntary plea, unconstitutional or illegal sentence, constitutional violations, lack of jurisdiction, newly discovered evidence, and for several other reasons.  A Rule 33 PCR would be filed after all appellate rights were exhausted.  In other words, after an appeal was lost.  A PCR, unlike an appeal, can also be filed after entering a plea agreement.

A Rule 33 PCR, unlike an appeal, allows you to go outside of “the four corners of the page,” meaning an attorney can look for issues outside of what is physically in the record.

Affidavits, which are sworn, signed, and notarized statements, are allowed.  Examples of what would go into an affidavit would be statements that the previous attorney failed to maintain contact with their client, did not convey the plea offer, or failed to explain the range of sentence that the accused was facing.

In certain circumstances, overturning a guilty plea can actually harm the client.  In a case where the client received a favorable plea, overturning the plea can put them back on a trial track.  If the client was facing 100 years if convicted at trial, overturning a two-year sentence that was obtained by a plea exposes them, once again, to the 100-year sentence.

Prior to filing a PCR in a case in which there was a favorable plea, the attorney and client need to be confident in their ability to win a pretrial motion, win at trial, or have a new, better plea worked out in advance of filing the PCR, such as time served.

The first step that an Arizona Rule 33, formerly Arizona Rule 32 Post-Conviction Relief attorney will take is ordering the complete record.  This will be necessary if attempting to overturn the plea.  If a PCR is being conducted after a case was resolved by a trial, however, the attorney would already have the transcript because it would have previously been ordered to complete the appeal.

The second step an Arizona PCR lawyer should take is to talk to the client.  The client may have information that is not obtainable from reading the transcript.  The attorney can summarize relevant client-provided information in an affidavit.  The affidavit would then be filed with the PCR.

The third step of a PCR is to talk to trial counsel about potential issues (assuming that a trial was conducted in the case).  In certain cases, trial counsel may admit that they made a mistake and “fall on their sword” for their client.

The fourth step of filing for Post-Conviction Relief in Arizona is to go through the transcript or affidavits in detail.The fifth step is to research all of the applicable case law pertaining to every legal issue.  An experienced Post-Conviction Relief lawyer will be able to sift through the case law to pick out the relevant precedent for a particular case.

The sixth step of a PCR is to write the brief and ask for an evidentiary hearing.

The seventh step of filing a Petition for Post-Conviction Relief is to present evidence at the evidentiary hearing.  Not all PCRs will make it to an evidentiary hearing.

An evidentiary hearing in a PCR Rule 33 is distinguishable from an oral argument in an appeal.  In an oral argument, no evidence is presented.  It is simply an argument to persuade and inform the judges.  In an evidentiary hearing, evidence is presented, and witnesses can testify and be cross examined.

A post-conviction relief is filed in the same PCR Court where the plea or trial took place.  The judge will be the same judge that accepted the plea or conducted the trial.

Why Hire a Defense Attorney to Appeal a Conviction – Rule 32 PCR

The lawyers at Colburn Hintze Maletta, PLLC, have a great deal of experience in appeals and post-conviction relief.  Attorney David Maletta is a former Assistant Arizona Attorney General appellate prosecutor.  He has drafted and argued over 90 appeals and PCRs as both a prosecutor and a defense attorney.  It is very unusual to meet a defense attorney who has done more than five appeals in his or her career.

Mr. Maletta has been published in appeals; meaning that when he won, he convinced the court that the binding precedent case law was wrong and needed to be changed in favor of his client.  In that scenario, the appellate case then goes down in the case books as new precedent.

Very few attorneys have been published from an appellate case. Our attorneys have handled appeals in the Superior Court Lower Court of Appeals, the Arizona Court of Appeals Division I and II, and the Arizona Supreme Court.

Call our Phoenix appellate lawyers at (602) 825-2500 for a free attorney consultation to see how we can help you fight to undo your conviction.

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Real Client Reviews

Below are just a few of what our clients have to say!

Arizona attorney Darin Colburn

“The calm in the middle of my storm…”

I, recently, consulted with Darin after my wife filed for divorce. He was referred to me by a friend whom I very much trust. Darin was the antithesis of the first two attorneys I consulted (who were matter-of-fact and had very little empathy about the fact that I was struggling emotionally with what was transpiring). From the first few minutes of speaking with Darin, it was obvious that he was very knowledgeable and skilled with divorce and family matters. While that was most important to me, the thing that made the difference was his calming, logical, and empathetic approach. He took the time to listen and empathize with me. He took the time to understand what I wanted to achieve through this process and laid out my options. After the consultation, I knew he would be my attorney if I had to pull the trigger. I, ultimately, didn’t have to engage Darin’s services due to a reconciliation with my wife. I hope I never have to go through that process again, however, if I do, I know beyond a shadow of a doubt who I will be hiring to represent me…Darin R. Colburn. Darin, thank you for caring and being more than an attorney.

Frank - AVVO Review

Divorce / Reconciliation Client
Attorney David Maletta

“There is NOBODY I would rather have defending me than David”

I hired David Maletta and it was the best decision of my life. His knowledge, genuine interest, overall attitude, and ability to connect with people is incomparable. I could talk about all of this at length. I COULD do all of that, but that wouldn’t do David justice. He first and foremost demonstrates his interest and genuine care for his client. Being in uncharted territory with a criminal charge and nowhere to turn, David’s presence and personality put all nerves at ease. I went through a jury trial with David beside me. The trial ran for 3 days and I spent a significant amount of time with David one-on-one. During this stressful time, he wanted to hear my input and thoughts on everything. David was incredible from the first day I met him. Not only is he a great attorney, but he is also a great person who cares about people and finding justice for his clients. He connects to the human side of people. I can’t put into words how much David cares about the individual in a case. When it comes to the courtroom, there is NOBODY I would rather have defending me than David.

Jacob - AVVO Review

DUI Defense Client
Arizona attorney Darin Colburn

“Because of Darin I got my daughter back”

Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!

Chris - AVVO Review

Child Custody & Support Client
Attorney David Maletta

“I was found NOT GUILTY. Dave won the trial for me.”

Dave stayed with me while he pushed back and forth with Covid-19 and the delays with court. Once cited, the state basically decides that you’re guilty through the automatic suspension of your drivers license. Dave immediately took care of that problem and I never lost the privilege of driving. Dave took notes like crazy and was upfront about our uphill battle. I was also well aware that the plea deal that was given to us, was unacceptable and through Dave’s knowledge and experience I had put my trust in him to guide me to make the right decision on how to proceed. With Dave’s guidance I had decided that we needed to fight for something better than what the prosecutor was offering and Dave was 100 percent behind me on that decision. We knew the risks, be we also knew we had very little to lose based on the prosecutions stance. We decided to go to trial… Watching the prosecution and then watching Dave was night and day!! It was clear to the jury that the prosecution didn’t have their facts straight and were not addressing the facts that they could not address…There was a lot at stake for my personal life and my work life. I was found NOT GUILTY. Dave won the trial for me.

Gregory - AVVO Review

Criminal Defense Client
Arizona Attorney Timothy Hintze

“Tim was absolutely amazing and worked diligently”

I had an incident and was Given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now I am on the path to having my case fully dismissed. A couple things that really helped me through this process was that Tim did an amazing job at was answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future and as of right now they will be my first choice if I need a lawyer in the future.

Dylan - AVVO Review

Criminal Defense Client
Arizona Attorney Timothy Hintze

“Listens to every request that you make on a case”

I honestly just want to let it be known to any and everyone looking for an attorney on a case. Whether it be DUI, possession, or your every day to day traffic violations where you need representation attorney Tim Hintze is your man. You have to respect a man that listens to every request that you make on a case and he gets in there and gets it done. Tim has my respect as an attorney and being a well-rounded representer. From him being honest on the possibility and options for your case to him being easy to work and communicate with via over the phone or face to face Mr. Hintze is working it out.

Ben - AVVO Review

Criminal Defense Client
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