BROWN v. STATE (2026)

OPINION

¶1 Arizona Rule of Criminal Procedure 33.6(b)(1) says that after a defendant files a notice requesting post-conviction relief “but before the filing of a petition, and upon a showing of substantial need for material or information to prepare the defendant's case, the court may enter an order allowing discovery.” Brown moved to depose the State's sexual abuse nurse examiner under that Rule. The superior court denied his motion, finding Brown had no right to discovery until after he filed a post-conviction relief petition. Brown seeks special action review of that ruling.

¶2 Because the plain language of Rule 33.6(b)(1)—as adopted effective January 1, 2020—allows for pre-petition discovery, the court accepts special action jurisdiction, grants relief, vacates the denial, and remands for the superior court to determine whether Brown has shown a substantial need for the requested discovery to prepare his post-conviction relief petition.

FACTS AND PROCEDURAL HISTORY

¶3 After his 2022 indictment, Brown pled guilty and was sentenced on three criminal counts: child abuse, sexual conduct with a minor, and aggravated assault. In March 2026, Brown filed a notice for post-conviction relief under Rule 33.4,² but he did not file a petition for post-conviction relief. Instead, he filed a “Motion for Discovery and to Depose/Examine [the State's sexual abuse nurse examiner]” under Rule 33.6(b)(1).

¶4 The State objected, arguing Brown had no right to pre-petition discovery when seeking post-conviction relief under Rule 32. But that Rule, which applies to post-conviction relief proceedings after a trial, does not apply here. The State also cited Canion v. Cole, 210 Ariz. 598, 599 ¶ 7 (2005), which interpreted a version of Rule 32 from before the Supreme Court adopted a new version of that Rule effective January 1, 2020. Even so, the superior court agreed and denied Brown's motion, saying Rule 32 did not contemplate pre-petition discovery and Brown had not filed such a petition. Neither the State nor the superior court addressed Brown's rights as a pleading defendant under Rule 33, which applies to post-conviction relief proceedings after a defendant pleads.

¶5 Brown timely filed this special action, arguing the superior court abused its discretion when it denied his motion because the superior court did not consider the current version of the Rule, which the Arizona Supreme Court adopted effective January 1, 2020. The court agrees.

JURISDICTION

¶6 Though “highly discretionary,” special action jurisdiction is appropriate when no “equally plain, speedy, and adequate remedy by appeal exists.” Prosise v. Kottke, 249 Ariz. 75, 77 ¶ 10 (App. 2020) (cleaned up). Because special action review is the only way Brown may obtain relief from the superior court's order denying his discovery request, the court exercises its discretion and accepts special action jurisdiction. Id.; Ariz. R.P. Spec. Act. 2(b)(2).

DISCUSSION

¶7 The court reviews the superior court's denial of Brown's motion for discovery for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). But it reviews de novo the interpretation of Rule 33.6(b)(1). See State v. Mendoza, 248 Ariz. 6, 14–15 ¶ 12 (App. 2019). “The [superior] court abuses its discretion when it makes an error of law in reaching a discretionary conclusion or when the record, viewed in the light most favorable to upholding the [superior] court's decision, is devoid of competent evidence to support the decision.” Michaelson v. Garr, 234 Ariz. 542, 544 ¶ 5 (App. 2014) (quotation omitted).

¶8 Historically, the Rules included no express provision for discovery in post-conviction proceedings. Canion, 210 Ariz. at 599 ¶ 7. In applying the Rules as they stood two decades ago, the Arizona Supreme Court confirmed that the Rules permitted discovery only after a defendant filed a petition for post-conviction relief. Id. That Rule-based outcome changed in 2020, when the Arizona Supreme Court adopted Rules 32.6 and 33.6, both of which expressly allow discovery in post-conviction proceedings. Order Abrogating Current Rule 32 of the Arizona Rules of Criminal Procedure and Adopting New Rule 32 and Rule 33 and Related Provisions (2020) (adopting new Rule 32 and Rule 33 in R-19-0012 effective January 1, 2020). The new Rules divide post-conviction relief proceedings into two Rules—Rule 32 (following conviction at trial) and Rule 33 (following a guilty plea). The changes allow a defendant to seek discovery both before and after filing a petition for post-conviction relief and establish different standards for obtaining discovery based on whether a petition for post-conviction relief has been filed. Ariz. R. Crim. P. 33.6(b)(1)–(2).

¶9 Under Rule 33.6(b)(1), a defendant seeking discovery following a guilty plea but before filing a petition (like Brown did here) must do two things: (1) file a notice requesting post-conviction relief under Rule 33.4 and (2) show a “substantial need for material or information.” Rule 32 includes a comparable provision addressing when a defendant may seek post-conviction relief after a trial. See Ariz. R. Crim. P. 32.4, 32.6(b)(1)–(2). A defendant must strictly comply with the applicable Rule to be eligible for post-conviction relief. State v. Evans, 252 Ariz. 590, 595 ¶ 7 (App. 2022).

¶10 “When the Arizona Supreme Court modifies the language of a rule, a presumption exists that a change in the existing rule was intended.” In re Victoria K., 198 Ariz. 527, 532 ¶ 25 (App. 2000) (citing State v. Averyt, 179 Ariz. 123, 128 (App. 1994), which applied an analogous presumption to legislative amendments to statutes). The court must apply that presumption if “the language of the amended rule compels the conclusion.” Id. The 2020 changes compel the conclusion that the Arizona Supreme Court intended to abrogate Canion with their adoption.

¶11 In the superior court, the State did not argue that Brown failed to comply with Rule 33.4's notice requirement. And the State did not argue Brown did not show substantial need under Rule 33.6(b)(1). Instead, the State argued the Rules precluded discovery until after Brown filed a post-conviction relief petition. The superior court denied Brown's motion on that ground. That ruling was error. Rule 33.6(b)’s plain language dictates a different analysis. Ariz. R. Crim. P. 33.6(b)(1)–(2). Because Brown filed a Rule 33.4 notice, the superior court must allow Brown the opportunity to show a “substantial need” for the discovery he requests and grant the motion if Brown makes that showing. Ariz. R. Crim. P. 33.6(b)(1); see Gutierrez, 229 Ariz. at 577 ¶ 19.

CONCLUSION

¶12 The court vacates the denial and remands to the superior court to determine whether Brown has shown a substantial need for the requested discovery to prepare his post-conviction relief petition.

FOOTNOTES

2.   Though Brown did not include a copy of his Rule 33.4 notice in his special action petition, the court takes judicial notice of the superior court's records indicating Brown complied with Rule 33.4. See State v. McGuire, 124 Ariz. 64, 66 (App. 1978) (“An appellate court can take judicial notice of any matter of which the [superior] court may take judicial notice, even if the [superior] court was never asked to do so.”).

GASS, Judge: