State Ex Rel. Thomas v. Rayes

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA ex rel. ANDREW ) Arizona Supreme Court
P. THOMAS, Maricopa County ) No. CV-06-0303-PR
Attorney, )
) Court of Appeals
Petitioner, ) Division One
) No. 1 CA-SA 06-0006
v. )
) Maricopa County
THE HONORABLE DOUGLAS L. RAYES, ) Superior Court
JUDGE OF THE SUPERIOR COURT OF ) Nos. CR 2004-012417-001DT
THE STATE OF ARIZONA, in and for ) CR 2005-119508-001DT
the County of Maricopa, )
)
Respondent Judge, )
) O P I N I O N
ANTHONY JAMES REYNAGA, )
)
Real Party in Interest. )
)
__________________________________)

Order of the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge

VACATED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
213 Ariz. 326, 141 P.3d 806 (App. 2006)

VACATED
________________________________________________________________

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By David E. Wood, Deputy County Attorney
Attorneys for State of Arizona

SUSAN SHERWIN, OFFICE OF THE LEGAL ADVOCATE Phoenix
By James Logan, Deputy Legal Advocate
Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Anthony James Reynaga
LEWIS AND ROCA LLP Phoenix
By James J. Belanger
Elias P. Batchelder
Attorneys for Amicus Curiae
Arizona Attorneys for Criminal Justice
________________________________________________________________

H U R W I T Z, Justice

¶1 This case requires us to determine whether, in a

pretrial proceeding, the superior court can order reinstatement

of an expired plea offer upon finding that defense counsel

engaged in excusable neglect by failing to convey the offer to

her client.

I.

¶2 In April 2004, Anthony James Reynaga was charged with

theft of means of transportation. On July 6, 2005, a Maricopa

County grand jury indicted Reynaga for armed robbery. The

prosecutor sent two written plea offers to defense counsel, one

in each pending case. Each offer was contingent on acceptance

of the other. The offers were transmitted on August 23, 2005,

and each stated that it would expire on September 15. No

response to either offer was received by September 15.

¶3 At a trial management conference six weeks after the

offers expired, defense counsel asked the prosecutor why no plea

offers had been extended. The prosecutor replied that the State

had made offers, but that they had “long expired.” Defense

counsel later told the superior court that she was unaware of

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the offers before the trial management conference. She claimed

that she had hired a new secretary who placed both plea offers

in the file for the theft case without bringing them to the

attorney’s attention. Despite a defense request, the State

refused to reinstate the plea offers.

¶4 Finding that the defense attorney’s conduct

constituted “excusable neglect,” the superior court ordered the

prosecutor to reinstate the plea offers. Several days later,

the State asked the superior court to reconsider that order.

The prosecutor argued that reinstatement of a plea offer could

not be ordered under State v. Donald, 198 Ariz. 406, 10 P.3d

1193 (App. 2000), in the absence of a finding of ineffective

assistance of counsel. The superior court, however, refused to

find that counsel had been ineffective and reaffirmed its

reinstatement order on the basis of counsel’s excusable neglect.

Shortly thereafter, new counsel was appointed to represent

Reynaga.

¶5 The State then filed a special action in the court of

appeals seeking to overturn the order reinstating the plea

offers. The court of appeals accepted jurisdiction and granted

relief. The court first unanimously held that Donald permits

reinstatement of a lapsed plea offer only if a defendant has

received ineffective assistance of counsel during the plea

bargaining process. State ex rel. Thomas v. Rayes (Reynaga),

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213 Ariz. 326, 329-30 ¶ 9, 141 P.3d 806, 809-10 (App. 2006).

Notwithstanding the superior court’s refusal to find ineffective

assistance, a majority of the panel concluded that it was “clear

that trial counsel’s failure to communicate the County

Attorney’s plea offer to Reynaga constituted ineffective

assistance, thereby implicating Donald.” Id. at 330 ¶ 10, 141

P.3d at 810.

¶6 The court of appeals nonetheless vacated the superior

court’s order reinstating the plea offers. The majority held

that Donald had been incorrectly decided and that reinstatement

of the plea offers was not a permissible remedy for ineffective

assistance of counsel. Id. at 334-36 ¶¶ 21-26, 141 P.3d at 814-

16. The panel explained that because charging decisions and

plea negotiations are within the discretion of the executive

branch, the doctrine of separation of powers prevents the

judiciary from reinstating a plea offer. Id. at 336 ¶ 26, 141

P.3d at 816. The court of appeals instead “direct[ed] the

parties to return to the plea negotiation stage” and prohibited

the State from “rely[ing] on the expired plea-offer deadline as

a reason to avoid plea offer negotiations.” Id. ¶ 27.

¶7 Judge Norris concurred in part and dissented in part.

She agreed with the majority’s conclusion that under Donald a

court may order reinstatement of a plea offer only if the

defendant has received ineffective assistance of counsel in the

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plea negotiation process. Id. at 337-38 ¶¶ 32-33, 141 P.3d at

817-18. She parted company with the majority, however, with

respect to its conclusion that Reynaga had in fact received

ineffective assistance of counsel, stating that such a

determination should be made, in the first instance, by the

trial court. Id. at 338-39 ¶¶ 34-35, 141 P.3d at 818-19. Even

assuming that defense counsel’s performance was constitutionally

deficient, Judge Norris indicated that it was not yet clear

whether Reynaga had been prejudiced, as the superior court had

not found that he would have accepted the offers when tendered.

Id. at 339 ¶ 37, 141 P.3d at 819. Nor did the record establish

that Reynaga and the State would eventually fail to reach an

acceptable plea agreement. Id. ¶ 38.1

¶8 Reynaga petitioned for review and the State joined in

that request. We granted review because of the direct conflict

between Donald and the opinion below. See ARCAP 23(c)(3)

(listing the fact that “conflicting decisions have been rendered

by the Court of Appeals” as a reason for granting review). We

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Although characterizing the majority’s criticism of Donald
as “dicta,” Reynaga, 213 Ariz. at 338 ¶ 34, 141 P.3d at 818,
Judge Norris nonetheless addressed the issue. Her view was that
the Sixth Amendment provides the superior court, in an
appropriate case, with the power to remedy ineffective
assistance of counsel in the plea bargaining stage by ordering
reinstatement of a plea offer. Id. at 339-40 ¶¶ 39-43, 141 P.3d
at 819-20.

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have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

A.

¶9 We agree with the unanimous holding of the court of

appeals that the superior court cannot order reinstatement of a

lapsed plea offer simply because defense counsel has engaged in

excusable neglect.

¶10 The Sixth Amendment guarantee of right to counsel

entitles a defendant to “effective assistance of counsel.”

Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A Sixth

Amendment ineffective assistance claim has two components:

“First, the defendant must show that counsel’s performance was

deficient. . . . Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. at 687.

¶11 The issue that divided the court of appeals in Donald

was whether reinstatement of a lapsed plea offer can be an

appropriate remedy for violation of the defendant’s Sixth

Amendment rights. See 198 Ariz. at 416 ¶ 32, 10 P.3d at 1203

(describing reinstatement as “a remedy for violation of a

defendant’s Sixth Amendment rights”); id. at 418 ¶ 48, 10 P.3d

at 1205 (Berch, J., concurring in part and dissenting in part)

(describing the issue as whether “the trial court may order the

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prosecution to reinstate a plea agreement to remedy a violation

of a defendant’s right to counsel at the plea bargaining stage

of the proceedings”). Indeed, as the opinion below noted, it

appears that “no court in the United States has ordered a

Donald-type remedy unless it first found that defense counsel

failed to provide effective assistance under the Sixth

Amendment.” Reynaga, 213 Ariz. at 329 ¶ 9, 141 P.3d at 809.

Under Strickland and its progeny, a violation of the Sixth

Amendment is not established simply by proof of counsel’s

excusable neglect; it follows that the superior court erred in

premising a Donald remedy on such a showing.

B.

¶12 Although we agree with the court of appeals that the

superior court’s finding of excusable neglect cannot justify

reinstatement of the lapsed plea offers, we part company with

its holding that the record in this case establishes ineffective

assistance of counsel. Even assuming that the failure to

communicate a plea offer to a defendant before it expires is

deficient performance under the first prong of Strickland, the

limited record in this case cannot support a conclusion that

Reynaga has suffered the prejudice required by the second

Strickland prong.

¶13 The essence of Reynaga’s claim – and the crux of any

claim of ineffective assistance of counsel during plea

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negotiations – is that but for the deficient performance of

counsel the defendant would have obtained a result more

favorable than the actual disposition of his case. Even

assuming that Reynaga would have accepted the original offers

before they expired,2 the superior court simply could not have

concluded at this stage of the case that Reynaga was in fact

prejudiced by counsel’s performance. We do not yet know the

eventual outcome of the charges against Reynaga. If he is

acquitted or receives a disposition no less favorable than that

offered by the State in the original plea offers, he will have

suffered no constitutional prejudice because the result of the

case would not have been affected by counsel’s deficiencies.

See United States v. Gray, 382 F. Supp. 2d 898, 910 (E.D. Mich.

2005) (stating that ineffective representation claims relating

to plea negotiations, which require the court to assume a

verdict of guilt on specific charges, are “grossly premature”

before “conviction and sentencing”).

2
Although the trial court made no such factual finding here,
the court of appeals concluded that Reynaga “would have accepted
the County Attorney’s original plea offer had he been aware of
it.” Reynaga, 213 Ariz. at 331 ¶ 12, 141 P.3d at 811. To be
sure, Reynaga’s prompt acceptance of the reinstated offers is
evidence that he probably would have done the same if he had
been informed of the original offers. As Judge Norris noted,
however, appellate courts should not normally make such factual
findings in the first instance, particularly in the absence of a
trial court evidentiary hearing on the subject. Id. at 338-39
¶¶ 35-36, 141 P.3d at 818-19.

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¶14 Indeed, at oral argument, the State suggested that it

may well opt, even if the superior court’s order is vacated, to

reinstate the original plea offers. If it does so, Reynaga will

have suffered no prejudice from original counsel’s deficient

performance.

¶15 We therefore hold that the court of appeals erred in

concluding that Reynaga established a violation of his Sixth

Amendment right to effective assistance of counsel. Given that

error, it was unnecessary for the court of appeals to consider

whether such a violation could entitle Reynaga to the remedy

provided in Donald – reinstatement of the expired plea offer.

Nor was it necessary for the court of appeals to consider the

continued vitality of Donald. There will be time enough to

consider those issues in a case in which the record establishes

that the defendant was prejudiced by counsel’s deficient

performance.

C.

¶16 Although the trial court and the court of appeals did

not address the issue, their consideration of a Donald remedy

was premature for another reason. As noted above, a request for

reinstatement of a plea offer under Donald must be premised on a

showing of ineffective assistance of counsel. And, in State v.

Spreitz, we held unequivocally that “ineffective assistance of

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counsel claims are to be brought in Rule 32 proceedings.” 202

Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002).

¶17 Spreitz involved an ineffective assistance claim

raised on direct appeal from a conviction and thus can be

distinguished from the case at hand. But the reasoning of

Spreitz applies with equal force here. If the appellate courts

cannot consider “[a]ny such claims . . . raised in a direct

appeal,” id., it necessarily follows that the superior court

should not address such claims before trial. Any other result

would mean that a pretrial order rejecting an ineffective

assistance of counsel claim could not be considered by an

appellate court until a post-conviction relief proceeding has

been completed by the very court that issued the pretrial

ruling. Judicial economy is better served by reserving

ineffective assistance of counsel claims for Rule 32 proceedings

in the first instance. See id. (noting that judicial economy is

served by avoiding “piecemeal litigation” of ineffective

representation claims); State v. Conner, 163 Ariz. 97, 100, 786

P.2d 948, 951 (1990) (same).3

3
Similarly, if ineffective assistance of counsel claims are
considered before trial and the defendant is successful in
obtaining reinstatement of a lapsed plea offer, the State’s only
relief (as here) would be through an interlocutory appellate
special action. In contrast, if the issue can be raised in the
first instance only in a Rule 32 proceeding, the State can seek
review of any adverse order in the court of appeals after
completion of any final trial court decision. See Ariz. R.

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¶18 Indeed, as we noted above, because prejudice is an

essential component of any Sixth Amendment ineffective

assistance of counsel claim, a conclusion that a defendant has

been prejudiced by deficient performance before disposition of

the charges at the trial level is purely speculative. Spreitz

thus also serves judicial economy by deferring such claims until

prejudice can be determined.

¶19 Any other approach would invite unnecessary disruption

and delay of the case. We cannot expect the very counsel whose

performance is alleged to be deficient to present a claim of

ineffective assistance. See State v. Bennett, 213 Ariz. 562,

566 ¶ 14, 146 P.3d 63, 67 (2006); State v. Robles, 135 Ariz. 92,

96, 659 P.2d 645, 649 (1983). In many cases, the defendant’s

claim of ineffective assistance puts trial counsel in a position

of conflict with his client, particularly when the facts are

contested. Trials on the merits would be unnecessarily delayed

if every colorable claim of ineffective assistance of counsel

resulted in at least the temporary need for new counsel to

present that claim.

¶20 We therefore hold, consistent with Spreitz, that a

defendant may bring ineffective assistance of counsel claims

only in a Rule 32 post-conviction proceeding – not before trial,

___________________________________
Crim. P. 32.9(c) (allowing any party aggrieved by a final
judgment to petition for review in the court of appeals).

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at trial, or on direct review. In so holding, we do not suggest

that a defendant or his counsel cannot or should not bring

attorney errors to the attention of the court in advance of

trial or at trial. On the contrary, although trial judges

cannot consider Donald-type relief in pretrial proceedings, a

court may take other remedial steps, such as replacement of

defense counsel, when confronted with evidence of deficient

performance. See generally State v. Cromwell, 211 Ariz. 181,

186-88 ¶¶ 27-37, 119 P.3d 448, 453-55 (2005) (discussing

criteria for replacement of appointed counsel). Similarly, the

State can act in response to evidence of ineffective assistance

in plea negotiations to avoid any eventual prejudice. Thus, the

State in this case is free to reinstate its previous plea

offers. Indeed, such a course of action would moot any

potential prejudice to Reynaga from original counsel’s

performance and avoid future litigation over the appropriate

remedy for any ineffective assistance of counsel.

III.

¶21 For the reasons above, we vacate the order of the

superior court and the opinion of the court of appeals. We

remand the case to the superior court for further proceedings

consistent with this opinion.

_______________________________________
Andrew D. Hurwitz, Justice

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CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

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