State v. Donald

Citation198 Ariz. 406,10 P.3d 1193
Decision Date26 September 2000
Docket NumberNo. 1 CA-CR 97-0551-PR.,1 CA-CR 97-0551-PR.
PartiesSTATE of Arizona, Respondent, v. Victor Gene DONALD, Petitioner.
CourtArizona Court of Appeals

Richard M. Romley, Maricopa County Attorney by Gerald R. Grant, Deputy County Attorney, Phoenix, Attorneys for Respondent.

Victor Gene Donald, In Propria Persona, Yuma, for Petitioner.

OPINION

FIDEL, Judge.

¶ 1 Victor Gene Donald petitions for review of the trial court's summary dismissal of his petition for post-conviction relief. He contends that he rejected a plea agreement because his attorney provided ineffective assistance by failing to properly explain the relative merits of the plea offer in comparison with the potential sentence that he faced if convicted of the charges.1 The trial court summarily dismissed Donald's petition, reasoning that his claim of ineffective assistance of counsel was not colorable because,

Even if his counsel misinformed him of the consequences of the offer, it is too late. Having rejected the offer, Mr. Donald proceeded to trial and lost. Whether to offer a plea agreement is a prosecutorial function. This court is not empowered to order the state to make the same plea offer again when the offer was not withdrawn for impermissible reasons, such as prosecutorial vindictiveness.

We grant review and remand for an evidentiary hearing regarding Donald's ineffective assistance of counsel claim. In the course of our opinion, we consider whether the loss of a favorable plea bargain because of ineffective assistance of counsel inflicts a constitutionally significant injury upon a defendant who has received a fair trial. Answering that question in the affirmative, we also discuss and reject the trial court's assumption that it lacks the power to fashion a remedy in the event that Donald's ineffective assistance claim proves true.

I. BACKGROUND

¶ 2 After indicting Donald for robbery, a class 4 felony, the State offered to allow him to plead guilty to robbery, a class 4 felony, with the allegation of one prior felony conviction. The plea offer stated that the maximum sentence would be eight years; the presumptive sentence, six years; and the minimum sentence, four years. The offer included that Donald would be eligible for "soft time"—parole after serving one-half of the sentence imposed. The State agreed not to allege an additional prior felony conviction or that Donald committed the charged offense while on parole. Donald's attorney presented the offer but failed, according to Donald, to adequately explain its benefits and risks versus those of proceeding to trial. As a result, Donald claims, he rejected an advantageous offer that he would have accepted had he been adequately informed.

¶ 3 Before trial, claiming irreconcilable differences with counsel, Donald moved to represent himself. The court granted the motion and appointed the same lawyer as advisory counsel. A second lawyer soon replaced the first as advisory counsel and eventually was appointed to represent Donald at trial.

¶ 4 At a jury trial in October 1993, Donald was convicted of robbery. The jury also found that he had two prior convictions for armed robbery. At the sentencing hearing, the trial court made the further finding that Donald had committed the present offense while on parole. Pursuant to A.R.S. §§ 13-604 and 13-604.02, the court sentenced Donald to a "flat term" of ten years (day-for-day time).

¶ 5 After this court affirmed his conviction and sentence by unpublished decision and the supreme court denied review, Donald filed notice of post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. And after his appointed counsel filed notice that she had reviewed the record and found no claims to raise, Donald filed a pro per petition for post-conviction relief.

¶ 6 In his petition, Donald raised two issues. We have summarily disposed of one of them. See supra note 1. The question that remains is whether Donald's first appointed attorney was ineffective because he failed to properly explain and compare the terms of the plea agreement offered by the State and the sentencing consequences if Donald were found guilty after trial. In support of his ineffective assistance claim, Donald attached an affidavit to his petition, stating under oath (1) that not until he received and examined his pre-trial file in drafting his petition for post-conviction relief did he realize the plea offered "soft time" (one-half time); (2) that until he examined the file, he thought the plea offered "hard time" (two-thirds time); and (3) that if counsel had properly explained that he faced a flat day-for-day sentence if convicted following trial, he would have accepted the plea offer. In a supplement to the petition, he attached a copy of the proffered plea and a letter from the prosecutor to his attorney confirming that the State offered not to allege one of the two prior offenses or that Donald committed the current offense while on parole. Donald also submitted portions of the sentencing hearing transcript that reveal the prosecutor's confusion regarding the appropriate sentence for Donald: the prosecutor informed the court that Donald faced hard time; defense counsel, however, acknowledged that Donald faced a flat time sentence because he committed the offense while on parole.

¶ 7 After the trial court summarily dismissed Donald's petition and denied his motion for rehearing, Donald filed a timely petition to this court for review. We review a summary dismissal for abuse of discretion. State v. Ketchum, 191 Ariz. 415, 416, 956 P.2d 1237, 1238 (App.1997). ¶ 8 More specifically, we review whether Donald has presented a colorable ineffective assistance of counsel claim.2 "A trial court may summarily dismiss a petition for post-conviction relief only if it determines that no `material issue of fact or law ... would entitle [the petitioner] to relief.'" Id. (quoting Ariz. R.Crim. P. 32.6(c)). A defendant is entitled to an evidentiary hearing on a colorable claim—one that, "if defendant's allegations are true, might have changed the outcome." State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) (citing State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986)).

II. MAY A COLORABLE CLAIM ARISE FROM THE REJECTION OF A PLEA AGREEMENT?

¶ 9 The American Bar Association Standards for Criminal Justice require defense attorneys to "promptly communicate and explain to the accused all significant plea proposals made by the prosecutor." ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION, Standard 4-6.2(b) (3d ed.1993).3 The explanation must suffice to permit the defendant to make a reasonably informed decision whether to accept or reject a plea offer. See Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)

(voluntariness of guilty plea depends on adequacy of counsel's advice). "[W]hether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case ... [and] counsel ... must give the client the benefit of counsel's professional advice on this crucial decision." United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998) (quoting Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir.1996)). To ensure that a defendant is adequately advised, "[d]efense counsel has a duty to communicate ... not only the terms of a plea bargain offer, but also the relative merits of the offer compared to the defendant's chances at trial." Commonwealth v. Napper, 254 Pa.Super. 54, 385 A.2d 521, 524 (1978) (citing A.B.A. PROJECT ON STANDARDS FOR CRIMINAL JUSTICE: STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, (Approved Draft, 1971)).

¶ 10 Arizona courts recognize that a defendant may seek relief from a conviction on the basis that counsel's ineffective assistance induced a guilty plea. See, e.g., State v. Ysea, 191 Ariz. 372, 379, ¶¶ 23-24, 956 P.2d 499, 506 (1998)

; State v. Anderson, 147 Ariz. 346, 351-52, 710 P.2d 456, 461-62 (1985). But neither party cites, and we have not found, any published Arizona case addressing whether a defendant may seek relief from a conviction on the basis that counsel's ineffective assistance led the defendant to reject a plea agreement that the defendant otherwise would have accepted.

¶ 11 In a persuasive body of case law, all other jurisdictions that have considered the question have recognized that the right to effective assistance of counsel extends to the decision to reject a plea offer, even if the defendant subsequently received a fair trial.4 We agree with these courts in concluding that counsel's failure to provide competent advice to a criminal defendant concerning a plea offer constitutes deficient performance. See, e.g., Day, 969 F.2d 39.

¶ 12 In Alvernaz, the California Supreme Court analyzed in detail the reasoning underlying most of the earlier decisions on this subject. Citing statistics showing that most criminal cases are disposed of by guilty plea, the court observed that "plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." 8 Cal. Rptr.2d 713, 830 P.2d at 752. Moreover, "it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain." Id., 8 Cal.Rptr.2d 713, 830 P.2d at 753. The court explained:

The pleading—and plea bargaining— stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.
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We conclude, as have all federal and state courts presented with
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