Judge, concurring in part and dissenting in part.
¶ 30 Here, the Maricopa County Attorney tendered plea offers to Anthony James Rey-naga through his attorney. From the limited record presented to the court below and now to this court, it appears defense counsel’s staff received the offers but, without showing them to defense counsel, filed them in the “secondary file,” defense counsel’s file in the theft case. Because defense counsel never saw the offers, she never said anything about them to Reynaga and they expired.
¶ 31 At a trial management conference, defense counsel discovered the now-lapsed offers in her secondary file. Subsequently, the superior court found that what had happened was not the fault of Reynaga, was due to “excusable neglect” not “ineffective assistance of counsel” and ordered the County Attorney to re-extend the offers to Reynaga for his consideration. In making these findings and ordering the County Attorney to resubmit the offers, the superior court rejected the County Attorney’s sole argument that the court’s order to “give back the plea[s]” violated the separation of powers doctrine because the court had failed to find — indeed had affirmatively not found9— defense counsel’s representation of Reynaga had been “ineffective” as required by State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App.2000), review denied (Mar. 20, 2001), cert. denied, 534 U.S. 825, 122 S.Ct. 63, 151 L.Ed.2d 30 (Oct. 1, 2001). In other words, the County Attorney simply argued the court could not, consistent with separation of powers principles, order it to re-extend the plea offers absent a finding of ineffective assistance of counsel. The County Attorney argued as follows:
Your Honor, based upon that the State feels that [defense counsel] has been ineffective in representing the defendant. However, the Court did not find her to be ineffective, and the Court instead found that she had engaged in excusable neglect.
However, that finding does not comport with any law that the State knows of with regard to criminal matters. It does not comport with the State versus Donald case which in that case there was an ineffective assistance of counsel finding, and based upon that the Court then ordered the State give back the plea.
In this case you ordered us to give back the plea, and the State’s position is that [sic] has been a violation of the Separation of Powers Doctrine because the Court did not make that finding pursuant to Donald or any case law that the State is aware of. Your Honor made that order based upon an excusable neglect finding, but the State knows of no law to support that finding.
¶ 32 After the court ordered the County Attorney to re-tender the plea offers, Reyna-ga attempted to accept the expired plea offers, signing them on November 29, 2005. The County Attorney then filed this special action and, in part, argued the superior court abused its discretion in ordering reinstatement of the plea offers based on nothing more than a finding of excusable neglect. The majority concludes that a finding of ex*338cusable neglect does not allow a court to order a prosecutor to reinstate a lapsed plea offer. See supra ¶ 9. I concur in the majority’s decision on this issue.
¶ 33 Resolving this issue should have ended this matter. The order of reinstatement made by the superior court was without legal basis and the superior court abused its discretion in making it. As the County Attorney explained, quite correctly, to the superior court, Donald does not authorize a court to order reinstatement of plea offers based on nothing more than a finding of excusable neglect. Instead, Donald holds that if a defendant has been deprived of the Sixth Amendment right to effective counsel10 during plea negotiations, the court has the power, “without violating separation of powers, [to] order the prosecution to reinstate a plea offer if, after conducting a hearing and permitting the State to present all relevant considerations, the court finds reinstatement necessary to remedy a deprivation of effective counsel.” 198 Ariz. at 418, ¶ 44, 10 P.3d at 1205.
¶ 34 But, the majority does not stop there. At the County Attorney’s urging, the majority goes on to find defense counsel’s failure to tell Reynaga about the plea offers constituted ineffective assistance of counsel, “thereby implicating Donald.”11 See supra ¶ 10. The majority reaches this decision so it can declare, again at the County Attorney’s urging, that Donald was wrongfully decided. In taking on the validity of Donald, the majority addresses an argument not raised by the County Attorney below and one actually inconsistent with the County Attorney’s reliance on and acceptance of Donald in the superior court, as explained above. See Crowe v. Hickman’s Egg Ranch, Inc., 202 Ariz. 113, 116, ¶ 16, 41 P.3d 651, 654 (App.2002) (“Issues not properly raised below are waived.”). Given the majority’s holding that the superior court abused its discretion in ordering the County Attorney to resubmit the plea offers to Reynaga based only on a finding of excusable neglect — a holding I agree with — the majority’s disagreement with Donald is dicta, and has no precedential force. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (dictum is court’s statement on question not necessarily involved in case, is without force of adjudication, and is not controlling as precedent); Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996) (same), review granted, decision approved by Creach v. Angulo, 189 Ariz. 212, 941 P.2d 224 (1997).12
¶ 35 To prevail on an ineffective assistance of counsel claim, the defendant must show, first, trial counsel performed deficiently under prevailing professional norms and, second, counsel’s deficiency prejudiced him or her. State v. Ysea, 191 Ariz. 372, 377, ¶ 15, 956 P.2d 499, 504 (1998). To show prejudice, a defendant “must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 17, 956 P.2d 499 (quoting State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985)) (adopting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “A reasonable probability is sufficient to undermine confidence in the outcome.” Id. (quoting Nash, 143 Ariz. at 398, 694 P.2d at 228). As an appellate court, we are not in a position to decide these issues because they normally require factual findings and thus an *339evidentiary hearing. See State v. Spreitz, 202 Ariz. 1, 2, ¶ 5, 39 P.3d 525, 526 (2002) (trial court is “most appropriate forum” for such an evidentiary hearing).13
¶ 36 Despite this, the majority makes a finding that defense counsel’s performance was deficient. See supra ¶ 10. Although, based on the limited record presented to us, it is impossible to reconcile defense counsel’s conduct with prevailing professional norms, this simply is not a finding we should be making. That the majority makes this finding further underscores that its disagreement with Donald is dicta.
¶ 37 Further, whether defense counsel’s conduct prejudiced Reynaga remains to be seen, contrary to the majority’s finding. See supra ¶ 12 and note 5. Reynaga’s post-expiration signing of the plea offers does not, in and of itself, show a “reasonable probability” that pre-expiration he would have accepted the offers but for defense counsel’s conduct.14 Other evidence may well exist showing Reynaga never intended to plead guilty and would have rejected the plea offers had he known about them, but then had a post-expiration change of heart. See Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 3 (1988) (attorney’s failure to communicate plea offer was not prejudicial; defendant would not have accepted or even considered offer); State v. Stillings, 882 S.W.2d 696, 703-04 (Mo.Ct.App.1994) (ineffective assistance of counsel claim rejected when evidence showed defendant would have refused plea even if told about it). Reynaga’s post-expiration signing of the plea offers raises a colorable claim of prejudice, nothing more. The majority’s treatment of the prejudice issue again underscores that its rejection of Donald is merely dicta.
¶38 Accordingly, because the only issue properly before us concerns the legitimacy of the superior court’s reinstatement order based on a finding of excusable neglect, we should simply vacate that order and remand to the superior court for further proceedings. On remand, the parties may reach acceptable plea agreements. If they do and the agreements are accepted by the court, any arguable prejudice caused by defense counsel’s performance will become moot.15
¶ 39 This brings me to the majority’s discussion of Donald. Whether Donald was correctly decided is not properly before us. Consequently, I hesitate to discuss the majority’s criticisms of Donald and, by doing so, lend any support to the view that the viability of Donald is a question necessarily involved in this case, as it most assuredly is not. Nevertheless, the majority’s criticism of Donald warrants some response.
¶ 40 Before there can even be a Donald-type remedy (the majority’s shorthand reference to a reinstatement order), a court must first decide the defendant was denied what the constitution guarantees — the effective as*340sistance of counsel. It must then decide whether reinstatement of the plea is necessary to remedy the deprivation of effective counsel. A finding of ineffectiveness does not, as the majority seems to think, automatically trigger a reinstatement order. As Donald recognized: “We hold that a trial court confronted with a denial of the right to effective assistance of counsel has the power to fashion a suitable remedy which, if necessary and appropriate, may include an order to reinstate the plea offer.” 198 Ariz. at 415, ¶ 30, 10 P.3d at 1202 (emphasis added). The court must conduct a hearing to determine the remedy appropriate to the case, and, at the hearing, the prosecution is entitled to present facts and considerations that lead it to oppose reinstatement. Id. at 417, ¶ 43, 10 P.3d at 1204.
¶ 41 Although a defendant has no constitutional right to a plea bargain and when,' what, and whether to offer a plea is within the sound discretion of the prosecution, when a plea is offered the defendant has a constitutional right to the effective assistance of counsel during the plea negotiation process. And, that right becomes an integral part of the process, as the County Attorney, citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), has recognized in this special action: “The Sixth Amendment right to effective assistance of counsel applies to counsel’s performance in the plea process.” In other words, when it comes to plea negotiations, there are not just three interests at the table — the prosecution, the defendant, and the court. Instead, there are four interests at the table — the prosecution, the defendant, the court, and the Sixth Amendment to the United States Constitution.
¶ 42 Ignoring the Sixth Amendment’s place at the table in the plea bargaining process, the majority concludes separation of powers principles bar a court from ordering the prosecution to reinstate a plea offer the prosecution had earlier considered and approved when the defendant has been deprived of the effective assistance of counsel. It reasons “a defendant has no constitutional right to specific enforcement of a plea offer.” See supra ¶22. The core of the majority’s disagreement with Donald rests on its belief that the judicial remedy of reinstatement “transgresses too deeply into the prosecutorial realm and usurps too great a portion of the function of the executive to comport with separation of powers principles.” See supra ¶ 26 (quoting Donald, 198 Ariz. at 418-19, ¶ 49, 10 P.3d at 1205-06 (Berch, J., dissenting)).
¶ 43 I respectfully disagree. In the abstract, I agree with the majority that a defendant has no constitutional right to the specific enforcement of a plea offer before its acceptance by the court. And in the abstract, I agree with the majority that a prosecutor has “plenary discretion to revoke a plea agreement prior to its acceptance” by the court.16 See supra ¶ 23. But these abstract principles give way when the defendant has been deprived of the effective assistance of counsel in the course of the plea bargaining process. The prosecution’s right to extend the plea offer and to withdraw it before court acceptance is a right created by state law. Cf. State v. Lee, 191 Ariz. 542, 544, ¶ 6, 959 P.2d 799, 801 (1998) (“Plea bargaining is nothing more than a pragmatic tool for enhancing judicial economy, conserving state resources, and promoting justice.”). That right is not unlimited. When there is a conflict between a right created by state law and a right guaranteed by the United States Constitution, state law must give way. This is what the United States Constitution requires:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in *341the Constitution or Laws of any State to the Contrary not withstanding.
U.S. Const, art. VI, cl. 2; see also McCul-loch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579 (1819).
¶ 44 Because of the supremacy of the Sixth Amendment, I agree with the Donald majority. When a trial court is “confronted with a denial of the right to effective assistance of counsel [it] has the power to fashion a suitable remedy which, if necessary and appropriate, may include an order to reinstate the plea offer.” Donald, 198 Ariz. at 415, ¶ 30, 10 P.3d at 1202 (emphasis added). In my view, the critical words in the foregoing quote from Donald are “necessary and appropriate.” As I have explained, not every finding of ineffectiveness of counsel will require a reinstatement order. See supra ¶ 40. Other remedies may be appropriate depending on the circumstances. But, in those situations when only a reinstatement order will remedy the Sixth Amendment violation, to deprive the court of the power to order this remedy, as the majority would do, removes the Sixth Amendment from its place at the table once the prosecution decides to sit at the table and offer a plea.
¶ 45 As the United States Supreme Court has recognized, the Sixth Amendment right to effective assistance of counsel “constrains our ability to allocate as we see fit the costs of ineffective assistance.” Kimmelman v. Morrison, 477 U.S. 365, 379, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). “The Sixth Amendment mandates that the State bear the risk of constitutionally deficient assistance of counsel.” Id. A reinstatement order, I acknowledge, will limit any further prosecutorial discretion in the plea bargaining process. But, depriving a court of the power to order reinstatement, when there is no other remedy for the deprivation of effective counsel, shifts the risk of ineffective assistance of counsel from the prosecution to the accused, contrary to the command of the Sixth Amendment.17 See United States v. Blaylock, 20 F.3d 1458, 1469 (9th Cir.1994); Ex parte Lemke, 13 S.W.3d 791, 798 (Tex.Crim.App.2000).
¶ 46 In conclusion, I agree with the majority that the superior court exceeded its authority and violated separation of powers principles when it compelled reinstatement of the expired plea offers based solely on a finding of excusable neglect. I respectfully dissent from the remainder of the majority’s opinion disagreeing with Donald18
. By minute entry, the superior court stated it was "not able to find ineffective assistance of counsel.”
. The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."
. In this regard, the majority correctly rejects the County Attorney’s argument that because a defendant has no right to a plea offer, defense counsel's failure to communicate the plea offer to his or her client results merely in a lost opportunity, not a lost right. See supra note 6.
. The majority asserts that its discussion of the "appropriateness of the Donald reinstatement remedy” is not dicta because, first, Reynaga has asserted the record shows that defense counsel failed to provide effective assistance and, second, a constitutional issue can be raised for the first time on appeal when the issue is one of public policy or state-wide concern. See supra note 3. As to the first point, just because Reyna-ga argues the record shows this, does not make it so. See infra ¶¶ 36-37. As to the second point, I acknowledge appellate courts have addressed constitutional issues on appeal even though not previously raised. But, even so, an issue of constitutional significance should not be decided in the absence of a fully and fairly developed record.
. Indeed, the Arizona Supreme Court has specifically directed that we are not to consider ineffective assistance of counsel claims "regardless of merit” in a direct appeal. Id. at 3, ¶ 9, 39 P.3d at 527.
. In Ysea, the Arizona Supreme Court discussed the prejudice requirement in the context of a plea agreement. 191 Ariz. at 377, ¶ 17, 956 P.2d at 504. There, the defendant, who was charged with first degree murder, accepted a plea offer, pled guilty to manslaughter, and was sentenced to life imprisonment without the possibility of parole for 25 years. Id. at 374, ¶¶ 1-2, 956 P.2d at 501. The defendant had agreed to accept the plea offer based on erroneous advice from his lawyer regarding whether his prior conviction could be used as an aggravating factor thus triggering the possibility of a death sentence on a first degree murder conviction. See id. at ¶ 3, 956 P.2d 499. Relying on Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), our supreme court stated that to establish prejudice in the context of a plea agreement, a defendant "must show a reasonable probability that except for his lawyer’s error he would not have waived his right to trial and entered a plea.” Id. at 377, ¶ 17, 956 P.2d at 504. Applying the approach taken by the United States Supreme Court in Hill and by our supreme court in Ysea, when, as appears to be the case here, a defendant is not notified of a plea offer by defense counsel, to meet the prejudice requirement the defendant should be required to show a reasonable probability that he or she would have accepted the offer and given up the right to stand trial.
. Although the majority and I differ regarding the sufficiency of the record, I agree with the majority that it would be "unwise” to require a defendant who has been inadequately represented during plea negotiations to first proceed to trial to establish a constitutionally significant injury. See supra ¶ 13.
. As with so many abstractions, there are exceptions. The prosecution’s discretion whether, when, what, and how to plea bargain are not without constraint. See, e.g., State v. Martin, 139 Ariz. 466, 481, 679 P.2d 489, 504 (1984) (county attorney may not refuse to plea bargain “out of animus toward the defendant’s attorney”); State v. Ethington, 121 Ariz. 572, 573-74, 592 P.2d 768, 769-70 (1979) (refusing to enforce on public policy grounds plea provisions requiring defendant to waive right to appeal); State v. Draper, 162 Ariz. 433, 784 P.2d 259 (1989) (establishing test for determining if plea agreement provision violates due process).
. In addition to Donald, many courts have recognized that a court may order reinstatement of a plea offer when a defendant has been deprived of the effective assistance of counsel in the plea bargaining process. E.g., Nunes v. Mueller, 350 F.3d 1045 (9th Cir.2003) (habeas corpus proceeding); United States v. Carmichael, 216 F.3d 224 (2d Cir.2000); United States v. Blaylock, 20 F.3d 1458 (9th Cir.1994); Shiwlochan v. Por-tuondo, 345 F.Supp.2d 242 (E.D.N.Y.2004) (ha-beas corpus proceeding); Williams v. State, 326 Md. 367, 605 A.2d 103 (1992); Harris v. State, 875 S.W.2d 662 (Tenn.1994); Ex parte Lemke, 13 S.W.3d 791 (Tex.Crim.App.2000); Turner v. Texas, 49 S.W.3d 461 (Tex.App.2001); Becton v. Hun, 205 W.Va. 139, 516 S.E.2d 762 (1999).
. Even assuming that, as a matter of separation of powers, the courts have no power to compel the prosecution to reinstate an expired plea, the deprivation of the Sixth Amendment right to counsel that results from ineffective assistance of counsel during the plea process provides the court with the independent power to fashion an appropriate remedy for that ineffective assistance. In a post-conviction relief proceeding, a court may modify a sentence or conviction to comply with the plea the prosecutor earlier offered. See Ariz. R.Crim. P. 32.8(d) ("If the court finds in favor of the defendant, it shall enter an appropriate order with respect to the conviction, sentence or detention, any further proceedings, including a new trial and conditions of release, and other matters that may be necessary and proper.”). Thus, the court achieves essentially the same result without any infringement on the prosecution’s separate prerogatives.