State of Arizona, Respondent v. Donna Jean Bennett, Petitioner

Summary

The Arizona Supreme Court held that Rule of Criminal Procedure 32.2.a(3) did not preclude Donna Bennett's claim that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence of causation on her felony murder conviction, because her first post-conviction counsel could have raised the claim only by attacking his own performance. The court further held Bennett stated a colorable claim: the treating physician testified only that the child "may or may not have benefited" from earlier treatment, and the superior court had wrongly relied on Fernane, which does not address causation and wrongly assumes an underlying-felony conviction proves felony murder. The court vacated the court of appeals' order, reversed the dismissal of the second post-conviction petition, and remanded for a hearing, directing that the felony murder conviction be vacated if prejudice is found.