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
1
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:
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Ruth V. McGregor, Chief Justice
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Rebecca White Berch, Vice Chief Justice
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Michael D. Ryan, Justice
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W. Scott Bales, Justice
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