State v. Jackson

• Decision Date: 22 September 2004
• Docket Number: No. 2 CA-CR 2003-0021-PR.,2 CA-CR 2003-0021-PR.
• Citation: 97 P.3d 113,209 Ariz. 13
• Parties: The STATE of Arizona, Respondent, v. Rodney George JACKSON, Petitioner.
• Court: Arizona Court of Appeals

97 P.3d 113

209 Ariz. 13

The STATE of Arizona, Respondent, v. Rodney George JACKSON, Petitioner.

No. -0021-PR.

Court of Appeals of Arizona, Division 2, Department B.

September 22, 2004.

Vincent J. Frey, Tucson, for Petitioner.

OPINION

ESPINOSA, J.

¶ 1 In 1990, petitioner Rodney Jackson was convicted after a jury trial of two counts of sexual abuse of a person under the age of fifteen years, one count of child molestation, one count of sexual conduct with a person under the age of fifteen years, and two counts of attempted sexual conduct with a person under the age of fifteen years. He was sentenced to consecutive, mitigated and presumptive prison terms totaling forty-two years, to be followed by two, five-year probationary terms. On appeal, we affirmed his convictions and sentences, modifying one prison sentence to incorporate credit for presentence incarceration. State v. Jackson, 170 Ariz. 89, 821 P.2d 1374 (App.1991). In 2002, Jackson filed his first petition for post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., raising claims of ineffective assistance of trial and appellate counsel regarding potential plea offers and asserting he was entitled to relief based on significant changes in the law.¹ This petition for review of some of those claims follows the trial court's denial of relief without a hearing. We will not disturb a trial court's ruling on a petition for post-conviction relief absent an abuse of discretion. State v. Watton, 164 Ariz. 323, 793 P.2d 80 (1990). We find none here.

Standard of Review

¶ 2 To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985). If a defendant fails to make a sufficient showing on either prong of the Strickland test, the court need not determine whether the other prong was satisfied. State v. Salazar, 146 Ariz. 540, 707 P.2d 944 (1985). A colorable claim of post-conviction relief is "one that, if the allegations are true, might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993).

Discussion

¶ 3 Jackson argues, as he did below, that trial counsel was ineffective in failing to explore the possibility of a plea offer in the case. The trial court found this claim precluded because it had been raised and finally adjudicated on appeal. See Ariz. R.Crim. P. 32.2(a)(2); Jackson, 170 Ariz. at 91,821 P.2d at 1376 ("Appellant's first argument is that his trial counsel was ineffective because he did not seek a plea bargain."). We are reluctant to agree, for two reasons. First, in a related argument, Jackson contends that appellate counsel was ineffective for raising the claim on appeal instead of in post-conviction relief proceedings, where a better record could have been made. Jackson has a constitutional right to effective assistance of counsel on appeal, and ineffective assistance of appellate counsel is a cognizable Rule 32 claim. State v. Herrera, 183 Ariz. 642, 905 P.2d 1377 (App.1995). Second, Jackson couched another variation of this claim, addressed below, in a form that is not subject to preclusion. Accordingly, we address the claim on the merits.

¶ 4 Jackson's plea-related ineffective-assistance-of-counsel claim is based on State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App.2000), which, he asserted below, is a significant change in the law and therefore insulated from the preclusion rules. See Ariz. R.Crim. P. 32.1(g) and 32.2(b) (significant change in the law claims raised under Rule 32.1(g) excepted from preclusion). In Donald, Division One of this court determined that a defendant's rejection of a favorable plea agreement offered by the state due to trial counsel's failure to give accurate advice about the relative merits and risks of the agreement compared to going to trial could establish a constitutionally significant injury upon a defendant that merits post-conviction relief via a claim of ineffective assistance of trial counsel, notwithstanding that a fair trial subsequently occurred. The Donald court further found that the remedy for such an injury can include a court-ordered reinstatement of the original plea agreement. Assuming, without deciding, that Donald was correctly decided and is a significant change in the law under Rule 32.1(g), Jackson's claim fails because he did not raise a colorable Donald claim.

¶ 5 The primary suggestion that the state ever had offered Jackson a plea agreement came through Jackson's affidavit, attached to the Rule 32 petition, in which he claimed that the first time he had spoken with trial counsel at the jail, counsel had informed him the state was offering a plea agreement that would require him to serve fifteen to thirty years in prison. According to the petition for post-conviction relief and Jackson's affidavit, Jackson elected to go to trial because the alleged victim had recanted her accusations. But the victim then recanted her recantation the day before trial and indicated that she would testify against Jackson. Jackson argues, as he did below, that trial counsel was ineffective by failing to reinitiate plea negotiations at that point, when his trial prospects had turned for the worse. Indeed, at the sentencing hearing, counsel lamented that he had been "preoccupied with getting ready for trial" at that juncture and regretted not "discuss[ing] a possible plea offer being reopened." In the same discourse, counsel also mentioned that the prosecutor had been willing to discuss plea negotiations but that counsel had not responded, and that he had "lost some sleep about that."

¶ 6 "`[C]riminal defendants have no constitutional right to a plea agreement and the state is not required to offer one.'" State v. Secord, 207 Ariz. 517, ¶ 6, 88 P.3d 587, 590 (App.2004), quoting State v. McKinney, 185 Ariz. 567, 575, 917 P.2d 1214, 1222 (1996). But, according to Donald,"once the State engages in plea bargaining, the defendant has a Sixth Amendment right to be adequately informed of the consequences before deciding whether to accept or reject the offer." 198 Ariz. 406, ¶ 14, 10 P.3d at 1200. Jackson's Donald claim is based on his assertion, supported by his affidavit, that the state had engaged in plea bargaining prior to trial. The trial court dismissed this assertion, describing Jackson's affidavit as "self-serving" and finding that "there is nothing to indicate that a plea offer ever existed." But there was something to indicate an offer had existed: Jackson's sworn statement in his affidavit and defense counsel's statements at sentencing. We agree with Jackson that the trial court should not have summarily rejected this claim on this basis.² In determining whether Jackson's claim was colorable, the trial court was obligated to treat his factual allegations as true. Runningeagle. That Jackson's factual allegations were self-serving is neither surprising nor relevant.

¶ 7 However, even accepting as true Jackson's assertion that the state had offered him a plea agreement early on in the proceedings, we do not agree the Donald claim he ultimately made was colorable. Jackson did not argue, as did the defendant in Donald, that his attorney had failed to accurately convey the positive and negative aspects of entering into a plea agreement the state had offered rather than proceeding with a trial and that he is therefore entitled to reinstatement of that plea offer. In fact, Jackson concedes, at least implicitly, that he knowingly and intelligently rejected any such plea offer and instead proceeded to trial because the victim had recanted. Jackson claims he is entitled to post-conviction relief under Donald because of his attorney's alleged ineffectiveness in failing to resume plea negotiations on the eve of trial, after it became apparent that the victim would in fact testify against him. The relief he sought below was an evidentiary hearing to determine whether "any plea offers ... may have been available if defense counsel had followed-up on the ... plea bargaining." We do not believe the Donald rationale, assuming it is sound, can be extended beyond plea agreements actually offered by the state.

¶ 8 The more difficult problem faced by the Donald court was not whether the defendant there had raised a colorable claim that his attorney had rendered ineffective assistance under the Strickland standards, but whether there was an available remedy. "[T]he remedy for a violation of the Sixth Amendment right to counsel `should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.'" Donald, 198 Ariz. 406, ¶ 31, 10 P.3d at 1202, quoting United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564, 568 (1981). The majority in Donald implicitly found that the most narrowly tailored remedy for a successful Donald claim is a reinstatement of the plea offer. See Donald, 198 Ariz. 406, ¶ 42, 10 P.3d at 1204 ("A court's essential function is to provide a remedy in the context of an individual case, and a restoration of the parties to their original position is a remedy well established in other contexts."). The Donald majority acknowledged the separation of powers issues inherent in a court-ordered reinstatement of a previously offered and rejected plea agreement but nonetheless concluded that such a remedy was constitutionally permissible. The dissenting judge in Donald found the separation of powers provision in article III of the Arizona Constitution prevents the judicial branch from usurping the executive branch's power to offer plea agreements, but noted that other, alternative remedies might be available.

¶ 9 We reject Jackson's attempt to extend the Donald rationale to potential...