(Cite as: 183 Ariz. 288, 903 P.2d 596)
STATE of Arizona, Respondent,
Jack R. KRUM, Petitioner.
Supreme Court of Arizona, In Banc.
Sept. 21, 1995.
FELDMAN, Chief Justice.
The state petitioned for review of a court of appeals' opinion holding that
Defendant Jack Krum is entitled to an evidentiary hearing in this
post-conviction relief ("PCR") proceeding. We granted review of the
1. Did the Court of Appeals err as a matter of law by finding a statutory
right to counsel in a post-conviction proceeding is enforceable by the
doctrine of effective assistance?
2. Did the Court of Appeals err by recognizing third party affidavits in
this instance to establish a colorable claim of newly discovered evidence?
We have jurisdiction under Ariz. Const. art. 6, § 5(3), and we now vacate
the court of appeals' opinion and affirm the trial court's order dismissing
Krum's Rule 32 petition.
FACTS AND PROCEDURAL HISTORY
In 1988 Krum pleaded no contest to the attempted sexual abuse of his
thirteen- year-old step granddaughter. [FN1] After the court of appeals
affirmed his conviction on direct appeal, [FN2] Krum filed a petition for
post-conviction relief claiming that the victim recanted her allegations.
Ariz.R.Crim.P. 32.1(e). The trial court appointed counsel to supplement the
petition [FN3] but later summarily dismissed it because nothing corroborated
the alleged recantation. Krum petitioned for review, claiming that his
appointed post- conviction counsel was ineffective because he did not obtain
and submit an affidavit from Krum's wife corroborating the recantation. The
**599 *291 court of appeals accepted review but denied relief in a
memorandum decision, noting that the ineffective assistance argument would
have to be raised in another PCR petition. State v. Krum, No. 1 CA-CR
92-560-PR (Ariz.App. Dec. 8, 1992).
FN1. As part of the plea agreement, the state dropped several other charges
involving sexual abuse of the victim. The record also shows that Krum had
pleaded guilty and received probation in Iowa for a similar offense against
this same victim some two years earlier. He admitted the underlying conduct
in that case.
FN2. State v. Krum, 1 CA-CR 90-0276 (Ariz.App. July 26, 1990) (Mem.). Krum
entered his plea before 1992, when we amended the Rules of Criminal
Procedure to provide that defendants who plead guilty or no contest waive
direct appeal and may seek appellate review only by post-conviction
proceedings. Ariz.R.Crim.P. 17.1(e). Because Krum had a direct appeal with
the assistance of counsel, the Rule 32 proceedings in the present case are
not appeals in any sense of the word. Cf. Montgomery v. Sheldon, 181 Ariz.
256, 889 P.2d 614, supplemental opinion, 182 Ariz. 118, 893 P.2d 1281
FN3. At the time of Krum's first Rule 32 petition, A.R.S. § 13-4235(B) and
Ariz.R.Crim.P. 32.5(b) governed appointment of counsel in Rule 32
proceedings. Under these provisions, the defendant filed a pro se petition
and could then request that counsel be appointed to revise it and file an
amended petition. In 1992 both the statute and the rule were revised to
provide for appointment of counsel upon the filing of a first notice of
post-conviction relief. See A.R.S. § 13-4234(C) (Supp.1994) and
Ariz.R.Crim.P. 32.4(c). The legislature, however, recently amended §
13-4234 once again. See infra Part A.
Krum then filed a second Rule 32 petition that included third-party
affidavits from his wife and natural grandson claiming that the victim
recanted. Apparently as a defense to an anticipated argument that the
recantation claim had previously been adjudicated and was therefore
precluded under former Rule 32.2(a)(2), Krum also renewed his claim that his
appointed counsel had ineffectively presented the issue in the first Rule 32
petition. The state argued both that the claim was precluded and that the
affidavits did not warrant an evidentiary hearing. Reasoning that there is
no constitutional right to counsel in PCR proceedings, the trial court
rejected the ineffective assistance claim. The judge added, however, that
even if cognizable "[i]n any event, on these facts, the Court does not
conclude that former counsel was ineffective." Addressing the underlying
new evidence claim, the trial court concluded that Krum's affidavits did not
establish a colorable claim that the victim recanted and summarily dismissed
The court of appeals granted Krum's petition for review, holding that the
statutory right to counsel in a first Rule 32 proceeding under former A.R.S.
§ 13-4235(B) and § 13-4234(C) includes the right to effective assistance.
State v. Krum, 182 Ariz. 108, 111-12, 893 P.2d 759, 762-63 (App.1995). The
court reasoned that the right would otherwise be illusory and that the
legislature could not have intended such a "meaningless gesture." Id.
Disagreeing with the trial court, the court of appeals concluded that the
third-party affidavits Krum presented with his second Rule 32 petition would
have entitled him to an evidentiary hearing on his new evidence claim under
State v. Wagstaff, 161 Ariz. 66, 775 P.2d 1130 (App.1988), modified on other
grounds, 164 Ariz. 485, 794 P.2d 118 (1990). Reasoning that counsel's
failure to obtain and submit those affidavits with the first Rule 32
petition was thus ineffective unless done to further some undisclosed
strategic motive, the court held that Krum was entitled to an evidentiary
hearing to show the alleged ineffectiveness. Krum, 182 Ariz. at 113, 893
P.2d at 764. The court concluded that if Krum made that showing, he would
then be entitled to another evidentiary hearing on the merits of the new
evidence claim. Id.
A. Effective Assistance in Post-Conviction Proceedings
 Although there is intuitive appeal to the court of appeals' conclusion
that the statutory right to counsel in post-conviction proceedings
necessarily includes a right to reasonably competent representation, we do
not decide it here for several reasons. First, the legislature has
significantly altered the statutory landscape since the court of appeals
issued its opinion, eliminating the statutory right to appointed counsel in
post-conviction proceedings under A.R.S. § 13-4234(C). 1995 Ariz.Sess.Laws
ch. 198, § 5. We note, however, that A.R.S. § 13-4234(C) was not the sole
source of appointed counsel for Rule 32 petitioners. Well before the
legislature codified a right to counsel in first post-conviction
proceedings, the Rules of Criminal Procedure provided for appointed
counsel. See Ariz.R.Crim.P. 32.5(b) (1973). [FN4] The court of appeals
recognized this, partly supporting its conclusion that Krum was entitled to
an evidentiary hearing by referring to the comment to current Rule
32.2(a)(3). See Krum, 182 Ariz. at 111, 893 P.2d at 762. Nevertheless,
because the court of appeals relied primarily on the now-repealed statutory
provision, reviewing its analysis here would serve little useful purpose.
FN4. The rules originally provided for appointed counsel "to permit a full
decision on the petition as quickly as possible and to equalize the position
of indigent and non-indigent petitioners." See Ariz.R.Crim.P. 32.5(b) cmt.
(1973). Because those purposes remain valid today, we retained a modified
version of the rule providing for appointment of counsel for first-time
petitioners when we amended the PCR rules in 1992. See Ariz.R.Crim.P.
32.4(c) and 32.5 cmt. (Supp.1994).
**600 *292  Additionally, post-conviction proceedings generally
provide a remedy only for constitutional errors involving the defendant's
trial or direct appeal of right. Krum does not claim, however, that his
trial or appellate counsel was ineffective. His only substantive Rule 32
claim is newly discovered evidence--the alleged recantation. Indeed,
ineffective assistance on a prior PCR petition is not a valid, substantive
claim under Rule 32 because, for petitioners like Krum, there is no federal
constitutional right to effective counsel in a PCR proceeding. [FN5] Thus,
even if a statutory right to effective assistance existed, Rule 32 would not
provide a remedy for its violation. See Ariz.R.Crim.P. 32.1 (listing
limited claims cognizable under Rule 32).
FN5. The United States Supreme Court has made clear that, at least when a
defendant is entitled to a direct appeal with the assistance of counsel,
there is no constitutional right to counsel or effective assistance in
post-conviction proceedings. Coleman v. Thompson, 501 U.S. 722, 755, 111
S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991); Wainwright v. Torna, 455 U.S.
586, 587, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982); accord State v.
Armstrong, 176 Ariz. 470, 474-75, 862 P.2d 230, 234-35 (App.1993).
 Krum nevertheless argues that the comment to the revised Rule 32
supports recognizing a claim for ineffective assistance at a post-conviction
proceeding. The comment says that if "defense counsel's failure to raise an
issue at trial, on appeal or in a previous collateral proceedings [sic] is
so egregious as to result in prejudice as that term has been
constitutionally defined, such failure may be raised by means of a claim of
ineffective assistance of counsel." Ariz.R.Crim.P. 32.2(a)(3) cmt.
(Supp.1994). The court of appeals believed, however, that a defendant could
at most use the ineffective assistance claim contemplated by the rule
comment to overcome an assertion of procedural bar by the state and have the
trial court reach the merits of the underlying claim for post-conviction
relief. We need not address the meaning of the comment because in this case
there was no such procedural hurdle; despite the state's preclusion
argument, the trial court considered the merits of both Krum's first and
second Rule 32 petitions. Whether Krum's first Rule 32 counsel was
deficient [FN6] for not obtaining corroborating affidavits is therefore
irrelevant. Because Krum's second Rule 32 counsel submitted affidavits and
because the trial court ruled on the merits of the new evidence argument,
Krum's claim regarding the deficiencies of his first Rule 32 counsel is not
relevant. Thus, we need not address the ineffective assistance issues or
the comment to Rule 32.2. State v. Wood, 180 Ariz. 53, 72, 881 P.2d 1158,
1177 (1994) (noting that courts generally should not decide issues
unnecessary to the disposition of an appeal), cert. denied, --- U.S. ----,
115 S.Ct. 2588, 132 L.Ed.2d 836 (1995). Nor is there any need for an
evidentiary hearing on the subject. The single dispositive issue in this
case is whether the trial judge properly decided the merits. Thus, we turn
to whether the third-party affidavits eventually filed were sufficient to
entitle Krum to an evidentiary hearing on the merits of his post-conviction
FN6. It is far from clear that he was. There is a strong presumption that
counsel act with reasonable competence. State v. Walton, 159 Ariz. 571,
592, 769 P.2d 1017, 1038 (1989), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111
L.Ed.2d 511 (1990). The record reveals that counsel on the first petition
specifically told Krum of the need to support the petition with an affidavit
from the victim. Nothing in the record, however, shows that counsel was
aware of these third-party affiants' claims.
B. Third-Party Affidavits and Recanted Testimony
1. Legal standards
 A Rule 32 petitioner is entitled to relief if he shows that "[n]ewly
discovered material facts probably exist and such facts probably would have
changed the verdict or sentence." Ariz.R.Crim.P. 32.1(e) (emphasis added).
To obtain an evidentiary hearing, a petitioner must make a colorable showing
that the allegations, if true, would have changed the verdict. State v.
D'Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988). Combining these rules,
the inquiry is whether Krum's affidavits plausibly show that the **601 *293
victim may have recanted and, if so, whether that fact probably would have
entitled Krum to relief. Because these third-party affidavits show no
personal knowledge, they are, at most, hearsay evidence rather than direct
evidence of recantation. [FN7] Standing alone such affidavits will seldom
entitle a Rule 32 petitioner to relief. See State v. Mauro, 159 Ariz. 186,
207, 766 P.2d 59, 80 (1988); Ariz.R.Crim.P. 32.1(e) cmt. Because the trial
court is most familiar with the defendant and the proceedings below, we
review its decision whether this type of post-conviction relief petition
presents a colorable claim only on a discretionary standard. State v. Watton,
164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). Finally, we give particular
weight to the trial court's judgment in cases involving recanted testimony.
State v. Hickle, 133 Ariz. 234, 238, 650 P.2d 1216, 1220 (1982) (noting that
trial judges are "in the best position to evaluate [recanted testimony's]
credibility and effect").
FN7. A recantation is a formal and public withdrawal or repudiation of a
prior statement by the speaker of that statement. BLACK'S LAW DICTIONARY
1267 (6th ed. 1990). By contrast, the third-party affidavits in this case
seem to be merely hearsay assertions that the victim retracted her
accusations. Such testimony would generally be admissible only for
impeachment. See Wagstaff, 161 Ariz. at 72, 775 P.2d at 1136.
2. Interpreting Wagstaff
After being convicted of molesting his seven-year-old son, the defendant
in Wagstaff filed a Rule 32 petition alleging that his son had recanted his
allegations. He supported his claim with affidavits from his wife and an
unrelated third-party averring that the victim admitted lying. The petition
and affidavits alleged that in an attempt to win custody, the victim's
maternal grandmother, with whom the victim had been living out of state at
the time of the allegations, coerced the victim to accuse his father. The
trial judge summarily denied the petition, but a divided court of appeals
reversed and ordered an evidentiary hearing. The majority acknowledged the
general rule that third-party affidavits constitute only impeachment
evidence and cannot support a new evidence claim. See State v. Taylor, 112
Ariz. 68, 84, 537 P.2d 938, 954 (1975), cert. denied, 424 U.S. 921, 96 S.Ct.
1127, 47 L.Ed.2d 328 (1976). However, the majority was persuaded by
evidence of the grandmother's influence. Wagstaff, 161 Ariz. at 72, 775
P.2d at 1136. The majority concluded that "[u]nder these circumstances ...
petitioner has presented a colorable claim." Id. [FN8] Thus, properly
viewed, Wagstaff only recognized a limited exception to the general rule
that third-party affidavits alone do not entitle a petitioner to an
FN8. Then-Judge Corcoran dissented, noting the inherent unreliability of
recanted testimony and concluding that the trial court acted within its
discretion. Id. at 72-73, 775 P.2d at 1136-37.
The trial court here distinguished Wagstaff, stating that it could discern
no plausible motive for the victim to lie. It also noted that the victim
here was much older and presumably less subject to coercion than Wagstaff's
victim. The court concluded that Krum's affidavits did not constitute a
colorable claim that the victim had recanted or that Krum would probably be
entitled to relief. The court of appeals, by contrast, believed that
Wagstaff was "not materially different." Krum, 182 Ariz. at 112, 893 P.2d
at 763. However, the court's reasoning on this point is unclear; it
discussed the affidavits under the prejudice prong of its ineffective
assistance analysis and concluded that "prejudice is clearly shown here
because, under Wagstaff, the third- party affidavits would have entitled
petitioner to an evidentiary hearing." Id. at 113, 893 P.2d at 764. As a
result, it is difficult to discern whether the court of appeals afforded
appropriate discretion to the trial judge's conclusions.
3. Standards for Recanted Accusations
 In essence, this case is about the showing a convicted defendant
must make before being empowered to compel an unwilling victim to testify in
a post-conviction evidentiary hearing. See Ariz.R.Crim.P. 32.8(a) (granting
Rule 32 petitioners "the right to be **602 *294 present and to subpoena
witnesses" at evidentiary hearings). In addressing this issue, we are
mindful that the people of Arizona and the Arizona Legislature recently
established important new rights for crime victims. Ariz. Const. art. 2, §
2.1; A.R.S. § 13-4433 (Supp.1994). Chief among them is the right to refuse
to submit "to an interview on any matter ... that is conducted by the
defendant, the defendant's attorney or an agent of the defendant." A.R.S. §
13-4433(A). We recognize, moreover, that safeguarding the victim's
interests is especially important in cases of child sexual abuse. See
Maryland v. Craig, 497 U.S. 836, 855, 110 S.Ct. 3157, 3168-69, 111 L.Ed.2d
666 (1990) (citing authorities documenting psychological trauma suffered by
sexually abused children who must face defendants in court). Although not
controlling here, in light of these provisions and concerns, we refuse to
embrace a broad rule that third-party affidavits alleging that the victim
recanted automatically entitle a Rule 32 petitioner to an evidentiary
hearing. Indeed, as noted, Wagstaff itself limited its holding to the unique
facts of that case. 161 Ariz. at 72, 775 P.2d at 1136.
 Courts have long been skeptical of recanted testimony claims, even
when, unlike this case, professed by the accuser in court. In State v. Sims
we noted, perhaps more broadly than appropriate, that:
There is no form of proof so unreliable as recanting testimony. In the
popular mind it is often regarded as of great importance. Those experienced
in the administration of the criminal law know well its untrustworthy
99 Ariz. 302, 310, 409 P.2d 17, 22 (1965) (quoting People v. Shilitano, 218
N.Y. 161, 112 N.E. 733, 736 (1916)); accord State v. Fisher, 141 Ariz. 227,
251, 686 P.2d 750, 774 (1984); see also State v. D.T.M., 78 Wash.App. 216,
896 P.2d 108, 111 (1995) (stating that in-court recantations are more
credible than affidavits). Because of courts' historic suspicion of such
evidence, the "credibility of the recanted evidence is a controlling factor"
best determined by the trial judge. Sims, 99 Ariz. at 310, 409 P.2d at 22.
Additionally, clinical research suggests that child sexual abuse victims
often falsely recant their accusations. Roland Summit, The Child Sexual
Abuse Accommodation Syndrome, 7 CHILD ABUSE & NEGLECT 177, 188 (1983).
 That is not to say that a third-party affidavit can never constitute a
colorable claim that a victim of sexual abuse recanted. Wagstaff, 161 Ariz.
at 72, 775 P.2d at 1136. Circumstances will of course vary, but if an
affidavit appears particularly credible or reliable, or if other evidence
tends to support the affidavit or the recantation, a trial court should
order an evidentiary hearing. In all events, we will accord substantial
weight to the discretion of trial courts in these matters.
4. Application to this Case
 After examining the record here, we conclude that the trial judge
acted well within his discretion in concluding that these third-party
affidavits do not present a colorable claim that the victim recanted, was
probably lying in the incident report, and therefore Krum would not be
entitled to relief. See D'Ambrosio, 156 Ariz. at 73, 750 P.2d at 16. The
trial court here obviously did not find the affidavits credible. We in turn
view them as quite unconvincing. Leaving aside their possible bias, neither
Krum's wife nor his grandson directly claims to have heard the victim
recant. Their affidavits are conclusory and completely lacking in detail.
[FN9] They do not say when or where or to whom the victim supposedly
recanted. In short, because they lack any reliable factual foundation, the
trial court could properly discount the affidavits. See Shepard v. United
States, 533 A.2d 1278, 1283 (D.C.1987) (holding that under a statute similar
to our Rule 32, trial courts may deny evidentiary hearings if "the **603
*295 allegations of the [post- conviction] motion itself are vague and
conclusory [or] wholly incredible").
FN9. Other than ultimate conclusions, the affidavits provide no useful
information. For example, the essence of the affidavit of Krum's wife is
that she "has personal knowledge that the accusations were contrived
and conceived in falsehood, perpetrated by [the victim] ... and that
the conviction and ultimate sentence imposed is wrongfully sanctioned."
It is also significant that other evidence in the record before the trial
judge suggests that the abuse actually occurred. See State v. Landon, 69
Wash.App. 83, 848 P.2d 724, 728 (1993) (trial courts have greater discretion
to deny evidentiary hearing if independent evidence corroborates victim's
accusations). Krum admitted a prior act in which he sexually abused this
victim in Iowa. He pleaded no contest to abusing her this time. [FN10]
Before his sentencing in this case, Krum made threatening phone calls to the
victim. At the sentencing hearing, a therapist who had been treating the
victim for over a year testified that she was a classic molestation victim.
Given the complete lack of reliable evidence that the victim recanted and
the substantial evidence that the abuse occurred, the trial judge certainly
did not abuse his discretion in dismissing the petition. See State v.
Marcum, 166 Wis.2d 908, 480 N.W.2d 545, 555 (1992) (holding that absent
other exculpatory evidence, a child sexual assault victim's recantation
generally does not merit post- conviction relief); cf. Landon, 848 P.2d at
730 (ordering evidentiary hearing only under "unusual combination of
circumstances" in which accusation appeared unreliable and recantation bore
"indicia of reliability").
FN10. Krum suggests that he only agreed to the current plea because he could
not risk trial on multiple charges given the prior conviction. Krum was 60
years old at the time, however, and knew that he likely was facing 15 years'
flat time under the plea--tantamount to a life sentence. If he truly were
innocent, he had little to lose by foregoing the plea and going to trial.
 In his second Rule 32 petition, Krum also complains that an evidentiary
hearing is his only recourse because the Victim's Bill of Rights precludes him
from contacting the victim to even request an affidavit. A.R.S. § 13-
4433(A). The Victim's Bill, however, was not in effect at the time of Krum's
first Rule 32 petition in 1991. Mrs. Krum's unsubstantiated assertion that
the victim agreed to admit to the county attorney that she lied but changed
her mind because she feared perjury charges provides the only evidence of an
attempt to contact the victim. An equally if not more plausible explanation,
of course, is that the victim has in fact never recanted. Krum's complaint is
also only partly true because he can request, but apparently has not, that the
state ask the victim to consent to an interview. A.R.S. § 13-4433(B). Trial
courts should of course consider the limitations imposed on defendants by the
Victim's Bill as one of many factors in determining whether to grant an
evidentiary hearing. On this record, however, the Victim's Bill--designed to
shield victims--does not aid Krum.
We need not decide whether a claim of ineffective assistance is a defense to
issue preclusion or whether there existed a statutory right to effective
assistance of counsel in post-conviction relief proceedings because the trial
court here ruled on the merits of both of Krum's Rule 32 petitions. Before
being allowed to force his unwilling victim to appear at an evidentiary
hearing, Krum must come forward with some substantial evidence in support of
his recantation claim. Krum failed to do so. The trial court thus properly
dismissed his second Rule 32 petition without an evidentiary hearing. We
therefore vacate the court of appeals' opinion and affirm the trial court's
order dismissing the petition.
MOELLER, V.C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.
END OF DOCUMENT