State ex rel. Thomas v. Rayes

• Decision Date: 15 August 2006
• Docket Number: No. 1 CA-SA 06-0006.,1 CA-SA 06-0006.
• Citation: 213 Ariz. 326,141 P.3d 806
• Parties: 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.
• Court: Arizona Court of Appeals

Page 806

141 P.3d 806

213 Ariz. 326

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. 1 CA-SA 06-0006.

Court of Appeals of Arizona, Division 1, Department E.

August 15, 2006.

Andrew P. Thomas, Maricopa County Attorney By David E. Wood, Phoenix, Attorneys for Petitioner.

Susan Sherwin, Office of the Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate, James P. Logan, Deputy Legal Advocate, Phoenix, Attorneys for Real Party in Interest.

OPINION

HALL, Judge.

¶ 1 The Maricopa County Attorney seeks special action review of the trial court's order directing it to reinstate an expired plea offer after defense counsel failed to communicate it to her client Anthony James Reynaga. The superior court based its reinstatement order on State v. Donald, 198 Ariz. 406, 418, ¶ 44, 10 P.3d 1193, 1205 (App.2000), which permits a court to remedy a deprivation of effective assistance of counsel by compelling the state to reinstate a plea offer.

¶ 2 We originally stayed the trial court proceedings pending our consideration of the County Attorney's petition. In the exercise of our discretion, we now accept jurisdiction because the trial court's order compelling the County Attorney to reinstate its previous plea offer is an interlocutory order for which there is no adequate remedy by appeal pursuant to Arizona Revised Statutes (A.R.S.) section 13-4032 (2001). See State v. Espinosa, 200 Ariz. 503, 505, ¶ 9 n. 3, 29 P.3d 278, 280 n. 3 (App.2001) (either party is entitled to seek special action relief from the trial court's ruling on defendant's challenge to prosecution's withdrawal of plea offer); State ex rel. Romley v. Superior Court, 181 Ariz. 378, 379, 891 P.2d 246, 247 (App. 1995) (accepting special action review of trial court's order disqualifying the state from prosecuting defendants); see also Ariz. R.P. Spec. Act. 1(a).

¶ 3 The County Attorney contends that the trial court's finding of excusable neglect was not sufficient to justify an application of the Donald remedy and that, in any event, we should reconsider Donald because its remedial holding violates the separation of powers clause of the Arizona Constitution. In response, Reynaga requests that, if we accept jurisdiction to correct the trial court's erroneous reasoning, we apply Donald and affirm the trial court's grant of the Donald remedy because the record contains sufficient facts to satisfy the requirements of Donald. We conclude that Donald's reinstatement remedy unnecessarily infringes on prosecutorial plea-bargaining authority. Therefore, we vacate the trial court's order. We also vacate our order staying further proceedings in this matter.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Reynaga was charged with two offenses: armed robbery, a class 2 dangerous felony, in CR 2005-119508, and theft of means of transportation, a class 3 felony, in CR 2004-012417. On or about August 1, 2005, the County Attorney mailed Reynaga's defense attorney a letter stating "No offer at this time." Subsequently, on August 23, 2005, the County Attorney mailed defense counsel proposed plea agreements in both cases. In CR 2005-119508, the County Attorney offered to allow Reynaga to plead guilty to the armed robbery count as a class 2 nondangerous felony with a stipulation that he be sentenced to no fewer than five years in the Department of Corrections; the County Attorney also agreed to dismiss the allegation that Reynaga committed the offense while on pretrial felony release in CR 2004-012417. In CR 2005-012417, the plea offer required Reynaga to plead guilty as charged in exchange for the County Attorney's agreement that Reynaga would be placed on supervised probation consecutive to his sentence in CR 2005-119508. Each agreement was contingent on Reynaga entering into the agreement in the other case. In each plea agreement, immediately following the description of the plea offense was the following sentence (in bold capital letters): "THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN COURT BY SEPTEMBER 15, 2005." The plea offer deadline passed without Reynaga making any response to the package plea offer.

¶ 5 According to defense counsel, she did not become aware of the County Attorney's plea offers to her client until October 31, 2005, the day of the trial management conference when she then located them in her file. The prosecutor refused to reinstate the plea offers. Subsequently the trial court conducted a settlement conference. At that conference, defense counsel explained to the trial court that her secretary, who was new at the time, misfiled the correspondence containing the plea offers in Reynaga's "secondary file" before counsel had a chance to review it.¹ The trial court, after finding that defense counsel "did not have actual knowledge of the plea offers, and had no reasons to know the plea offers were in her file," decided that Reynaga should have the opportunity to consider the lapsed plea offers and, relying on Donald, ordered the prosecutor to "re-open the plea offer in each cause to [Reynaga] with time for [him] to consider/reject the offer."

¶ 6 At a subsequent hearing, the trial court amplified its reasoning, explaining that although defense counsel's failure to convey the plea offers to Reynaga was an instance of "excusable neglect" rather than ineffective assistance of counsel as occurred in Donald, "the bottom line in [Donald] was we're doing justice here . . . regardless what the reason was . . . ." When the trial court declined to reconsider its decision and scheduled a change of plea hearing at the request of Reynaga, the County Attorney filed a petition for special action in this court.

DISCUSSION

¶ 7 The County Attorney asks us to reconsider our previous decision in Donald in which we held that a defendant's Sixth Amendment right to effective assistance of counsel encompasses the right to be adequately informed by defense counsel of the terms of any plea offer made by the state and the relative merits of the offer compared to proceeding to trial. 198 Ariz. at 413, ¶ 14, 10 P.3d at 1200. To establish ineffective assistance of counsel during plea negotiations, a defendant must show both deficient performance, i.e., that counsel's performance fell below objectively reasonable standards, and resulting prejudice. Id. at 413, ¶ 15, 10 P.3d at 1200 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). According to the Donald majority, a trial court's power to fashion a remedy for the deprivation of effective assistance includes ordering reinstatement of the plea agreement. Id. at 415, ¶ 30, 10 P.3d at 1202.

¶ 8 Although she concurred in the majority's holding that the loss of a favorable plea agreement due to counsel's ineffective assistance inflicts a constitutionally significant injury upon a defendant, Judge (now Justice) Berch dissented from the majority's remedial holding that permits a trial judge to order the prosecution to reinstate a plea agreement. Id. at ¶¶ 48-52, 418-19, 10 P.3d at 1205-06. In her view, "ordering the prosecution to offer a particular plea agreement 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." Id. at 418-19, ¶ 48, 10 P.3d at 1205-06.

¶ 9 Before considering the County Attorney's argument that Donald was wrongly decided, we first address the trial court's characterization of defense counsel's failure to communicate the plea offer to Reynaga as "excusable neglect." We presume the trial court borrowed this concept from Arizona Rule of Civil Procedure 6(b), which permits a court to enlarge a time deadline when "the failure to act was the result of excusable neglect." See also Ariz. R.Crim. P. 32.1(f) (excusing the delay when "[t]he defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part"). Notwithstanding the unusual circumstances of this case and the trial court's understandable desire to correct what it perceived to be an injustice, a finding of "excusable neglect" on the part of a defendant's attorney in failing to convey a plea offer to a client does not constitute sufficient justification for a court to coerce a prosecutor to reinstate a lapsed plea offer. Indeed, neglect that is "excusable" is the apparent antithesis of a level of performance that falls below an objectively reasonable standard. See City of Phoenix v. Geyler, 144 Ariz. 323, 331, 697 P.2d 1073, 1081 (1985) ("The standard for determining whether conduct is `excusable' is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under the same circumstances."); id. at 332, 697 P.2d at 1082 (stating that "diligence is the final arbiter of whether mistake or neglect is excusable"). In Donald, we reached the issue of the appropriate remedy only after finding that the defendant presented a colorable claim that he was denied effective assistance of counsel. 198 Ariz. at 415, ¶ 29, 10 P.3d at 1202 ("Whether Donald is entitled to any remedy will remain uncertain until the trial court determines whether he was denied effective assistance of counsel."). As far as we have been able to determine, 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.² Thus, the trial court erred in applying Donald based on a finding of excusable neglect.

¶ 10 It is nonetheless clear that trial counsel's failure to communicate the County Attorney's plea offer to Reynaga constituted ineffective assistance, thereby implicating Donald.³ Trial coun...