dissenting.
I cannot agree with the majority’s conclusion that trial counsel provided effective assistance despite failing to object to the improper argument.
During final argument, defense counsel conceded that defendant might be guilty of the lesser included offense but argued that he was innocent of the more serious charge, aggravated assault. Although a proper argument, this naturally invited response during rebuttal argument. While the prosecution was certainly free to caution the jury about compromises, we held in the first opinion that, even under such circumstances, “we do not endorse any mention of plea bargains in final arguments.” State v. Valdez (Valdez I), 160 Ariz. 9, 13 n. 2, 770 P.2d 313, 317 n. 2 (1989). The prosecutor here went much further than describing the defendant’s argument as an attempt to bargain; he also charged that defense counsel “wants you to give [defendant] the plea bargain the State wouldn’t....” Id.
In Valdez I, we held that the comment permitted the jury to infer that defendant previously sought to exchange a plea for reduction of the charge, thus acknowledging guilt at worst or a weak case at best. Id. We did not describe the comment then, as the court does now, as a simple “single mistake,” slip op. at 10; we believed it a “grossly improper” comment that “meets [the] test” for prejudicial error. Valdez I, 160 Ariz. at 13, 770 P.2d at 317.
We did not reverse Valdez I because we believed the error had been waived by failure to object and because we are always reluctant to assume ineffective assistance of counsel. Ordinarily courts “can determine ineffective assistance of counsel issues only after [they have] learned ... the reasons for counsel’s actions or inactions.” Id. at 15, 770 P.2d at 319. We therefore left the question of ineffective assistance to post-conviction proceedings. Id.; see also State v. Guerrero, 159 Ariz. 568, 769 P.2d 1014 (1989).
The majority apparently takes some consolation in the trial judge’s findings after the post-conviction relief hearing. I find no consolation in those findings. The trial judge still debates the propriety of the prosecutor’s argument, stating, “[I]f [the argument] warranted an objection ... [it] *333certainly didn’t raise any question in this Court’s mind as to ... requiring any type of admonition to the jury.” Op. at 331, 806 P.2d at 1379. The trial judge must not agree with our first opinion in this case, which described the argument as “grossly improper” and prejudicial, and explicitly stated that “[a]n objection would have required the trial court to either declare a mistrial or to instruct the jury that it not only should disregard the comment but that comment was unjustified by the facts or the evidence____” Valdez I, 160 Ariz. at 13, 770 P.2d at 317 (emphasis added).
Evidently the trial judge mistakenly believed that the case had been remanded for him to make a determination as to whether fundamental error had occurred. That was not the purpose of remand. We had already held the comment to be improper but had refused to describe it as fundamental error because we did not know why defense counsel had failed to object. The purpose of remand was to make that determination. Id. at 15, 770 P.2d at 319.
The majority concludes the trial judge did not abuse his discretion in holding that Valdez’s lawyer provided effective representation. I cannot agree. The post-conviction proceedings have indeed explained counsel’s failure to object to the prosecutor’s grossly improper and prejudicial comment. No strategic purpose, no evaluation of the jury, not even the expectation of a favorable verdict prompted counsel’s silence.
No motion for mistrial was made because, although he felt the “argument had some problem with it” and “wasn’t exactly right or appropriate,” and although he knew “that those things are not supposed to be discussed,” counsel was unfamiliar with the procedural rule that prohibited such comments and was unfamiliar with the “specific objection” to make. Op. at 330, 806 P.2d at 1378. Acknowledging the benefits of hindsight, it is nevertheless difficult to understand how a graduate of a law school that presumably taught courses in evidence would fail to object on grounds the comment was both irrelevant and unsupported by evidence, even if for some reason he was unfamiliar with the procedural rule that specifically prohibited the argument.
With all due respect, I am unable to agree with the court that failing to object to such an argument is effective assistance of counsel. The test, as the majority acknowledges, is whether trial counsel’s performance complied with “prevailing professional norms.” Op. at 330, 806 P.2d at 1378. By finding that such poor practice comports with professional norms,3 the majority lowers professional standards at a time when the bar and this court are working to raise such standards. The court, in effect, sends the bar and the public a message about our standards that undermines the public’s already shaken confidence in the competence of attorneys. I cannot join in such a message and dissent from the opinion.
. By analogy, I suppose it would now comply with prevailing professional norms for a lawyer who has asked the jury for a $100,000 verdict to sit with an uneasy feeling, making no objection or motion for mistrial, while defense counsel argues in rebuttal that the jury should not make so large an award because the plaintiff would have settled for only $50,000 before trial.