State ex rel. Thomas v. Rayes

153 P.3d 1040

214 Ariz. 411

STATE of Arizona ex rel. Andrew P. THOMAS, Maricopa County Attorney, Petitioner, v. The Honorable Douglas L. RAYES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge Anthony James Reynaga, Real Party in Interest.

No. CV-06-0303-PR.

Supreme Court of Arizona, En Banc.

March 20, 2007.

Andrew P. Thomas, Maricopa County Attorney by David E. Wood, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

Susan Sherwin, Office of the Legal Advocate by James Logan, Deputy Legal Advocate, Thomas J. Dennis, Deputy Legal Advocate, Phoenix, Attorneys for Anthony James Reynaga.

Lewis and Roca LLP by James J. Belanger, Elias P. Batchelder, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

OPINION

HURWITZ, 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 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), 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 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (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, 104 S.Ct. 2052.

¶ 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 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 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").

¶ 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...