                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA
                                    DIVISION TWO


THE STATE OF ARIZONA,                           )
                                                )           2 CA-CR 2003-0021-PR
                               Respon dent,     )           DEPARTMENT B
                                                )
                     v.                         )           O P I N IO N
                                                )
RODNEY GEORGE JACKSON,                          )
                                                )
                                  Petitioner.   )
                                                )


     PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                                    Cause No. CR-29617

                            Honorable Nanette M. Warner, Judge

                          REVIEW GRANTED; RELIEF DENIED


Vincent J. Frey                                                                        Tucson
                                                                        Attorney for Petitioner


E S P I N O S A, Judge.


¶1            In 1990, petitioner Rodney Jackson was convicted after a jury trial of two cou nts

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 a ge of fifteen years. He w as sentence d 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 cred it for presentence incarceration. State v.

Jackson, 170 Ariz. 89, 821 P.2d 1374 (Ap p. 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 coun sel 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 coun sel, a defendant must

show that counsel’s performance fell below objectively reasonable standards and th at the

deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 67 4 (1984); State v. Nash, 143 Ariz. 392, 694 P.2 d 222 (1985).

If a defenda nt fails to make a sufficient showing on either prong of the Strickland test, the

court need not determine whether the other prong was sa tisfied. 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 cha nged the outcom e.” State v. Running eagle, 176 Ariz. 59,

63, 859 P.2d 169, 173 (199 3).




       1
         The petition is not time barred. Supreme C ourt Order, 17 1 Ariz. X LIV (19 92) (Rule
32 filing deadlines inapplicable to a defendant sentenced before September 30, 1992, who
files his or her first pe tition for post-c onviction re lief); see Moreno v. Gonzalez, 192 Ariz.
131, 962 P.2 d 205 (1998).

                                                2
                                            Discussion

¶3             Jackson a rgues, as h e did below, that trial counsel was ineffective in fa iling to

explore the possibility of a plea offer in the case. The trial court found this claim precluded

because it had been raised and fina lly adjudicated on appeal. See Ariz. R. Crim. P. 32.2(a)(2);

Jackson, 170 Ariz. at 91, 821 P.2d at 1376 (“App ellant’s first argum ent 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 proceed ings, 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, 9 05 P.2d 137 7 (App. 199 5). Second, Jackson

couched another variation of this claim, addressed below, in a form that is no t 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 o f this court determined that a defend ant’s

rejection of a favorable plea agreement offered by the state du e to trial couns el’s failure to

give accurate advice about the relative merits and risks of the agreement compared to going

to trial could establish a co nstitutionally significant injury up on a defen dant that me rits post-

conviction relief via a claim of ineffective assistance of trial counsel, n otwithstand ing that a

                                                 3
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, th at Donald was correctly decided and is a significant change in the law

under R ule 32.1(g ), Jackson ’s claim fails bec ause he did not raise a c olorable Donald claim.

¶5             The primary suggestion that the state ever had offered Jackson a plea agreement

came through Ja ckson’s affidavit, attache d to the Ru le 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 beca use the alleg ed victim had recanted her accusations. But the victim then

recanted her recanta tion the day be fore trial and in dicated that sh e would testify against

Jackson. Jackson argue s, as he did b elow, that trial counsel w as 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 defendan ts 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, 1 222 (1996).

But, according to Donald , “once the State engages in plea bargaining, the defendant has a Sixth

                                                4
Amendment right to be ad equately inform ed of the co nsequen ces before deciding w hether to

accept or reject the offer.” 198 Ariz. 406, ¶ 14, 10 P.3d at 1200. Jackson’s Donald claim is

based on his assertion, su pported 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 n othing to ind icate that a plea offer ever existed.” But there

was something to indicate an o ffer had existed: Jackson’s sworn statement in his affidavit and

defense counsel’s statements at sentencing. We agree with Jackson that the trial court shou ld

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.

Running eagle. That Jack son’s factua l allegations w ere self-servin g 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 w as colorable . Jackson did not argu e, as did the defendant in Donald , that his


       2
         The trial court’s ruling was not groundless; there is nothing in the record suggesting
any such plea offer except Jackson’s affidavit, made over twelve years after the purported
offer, and defense counsel’s oblique reference at sentencing to the possibility of an offer being
“reopened.” When we addressed the ineffective assistance of trial counsel issue on appeal, we
stated, “[t]he [ap pellate] record does not in dicate that the state ever offered a plea agreement.”
Jackson, 170 Ariz. at 91, 821 P.2d at 1376. And Jackson’s claim on appeal was that trial
counsel “did not seek a plea bargain,” id., an argument that would only make sense in the
absence of a plea offer. Rule 32 counsel attached an affidavit stating he had interviewed
Jackson’s trial counsel as well as the former prosecutor, neither of whom recalled any plea
offers in the case. That affidavit also relayed a c omment from the forme r prosecutor
suggesting the possibility that the Pima County Attorney’s case file might contain notes
regarding plea offers authorized or ex tended. When th e deputy county attorney respond ed to
the petition, she flatly stated, “Th e State nev er offered D efendant a plea agreement.” In h is
reply, Jackson responded that this was “a fact which is not disputed.”

                                                 5
attorney had failed to accurately co nvey the po sitive and ne gative aspe cts 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 o f 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 ava ilable if defense counsel ha d 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. 36 1, 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 establish ed in

                                                6
other contexts.”). The Donald majority acknow ledged 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 con stitutionally 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 plea

agreemen ts that were never actua lly offered and the terms of which are unknown. Such an

extension of Donald would advance the courts even further into the province of the executive

branch, well past the already tenuous line drawn in Donald , and would d o so before a

constitutional violation is ev en proven. The relie f Jackson s ought— an eviden tiary hearing

prior to which the prosecutor’s trial file would be ordered to help determine what, if any, plea

offers the prosecutor would have been willing to extend at the outset of trial—wa s essentially

a discovery procedure thro ugh which Jackson sought to establish a colorable claim of

ineffective assistance o f counsel. 3 Absent a colorable a llegation that a specific plea agreement

would have bee n extende d to Jackso n had his a ttorney inquired into the matter just before trial

and that Jackson would have entered into such an agreement, Jackson could not have

established he had be en prejud iced. Wh en, as here , the state doe s not concede that it would

have offered a specific plea agreement upon defense counsel’s re quest, the trial c ourt wou ld



       3
        Jackson did not dem onstrate that he had exhausted all other means of discovering
whether any such information existed in the state’s file, such as contacting the prosec utor’s
office directly.

                                                7
be required to speculate, in a factual vacuum, about the terms of any such agreem ent. See Ariz.

R. Crim. P. 3 2.8; Herrera (trial court is finde r of fact in a Rule 32 eviden tiary hearing). It is

one thing for a trial court, as a remedy for a constitutional violation, to order the reinstatement

of a plea that w as once offered by the sta te; it is quite a different thing for a tria l court to

hypothesize on wha t, if any, plea offe r the state might have been w illing to make at a particular

point in a criminal case in order to determine whether a constitutional violation has even

occurred and then to order the state to offer that plea agreement for the first time. As the

court in Donald stated:

               We do not hold that a court, when it pleases, ma y order the Sta te
               to offer a plea agreement entirely of the court’s concoction.
               Such a holding wou ld surely violate s eparation o f powers. It is
               altogether different, however, to hold that a court has remedial
               power, in order to redress a denial of effective assistance in plea
               bargaining, to return the parties to the status quo ante by ordering
               the State to reinstate an offer that the S tate had earlier considered
               and approved .

198 Ariz. 406, ¶ 40, 10 P.3d at 1204.

¶10            Simply put, it is neither possible nor appropriate for a trial court to divine the

terms of a previously unoffered p lea agreement in order to de termine the merits of a

speculative claim of ineffective assistance of counsel in the plea bargaining process.

Particularly in a case this old, any such exercise w ould be frau ght with sp eculation an d would

unreason ably and unrealistically tax people’s memories. More importantly, any such action

would put the court in the prosecutor’s shoes and be an impermissible encroachment upon the

executive branch of government. The power to offer a plea agreemen t rests exclusiv ely with

the prosecuting body. See State v. Larson, 159 Ariz. 14, 764 P.2d 749 (1988); see also



                                                 8
Russell v. Collins, 998 F.2 d 1287 (5 th Cir. 199 3) (prosecu tor has discre tion to plea bargain

with some defe ndants and not with others); State v. Morse, 127 Ariz. 25, 617 P.2d 1141

(1980) (decision to te rminate plea negotiations lies with prosec utor’s office, not trial judge);

cf. Secord. Moreover, the possibility of any such court intrusion into the prosecuto r’s realm

might chill the state from entering into plea negotiations in the first place, which would be

contrary to public policy. See Watton.

                                          Conclusion

¶11            Even assuming Jackson’s factual assertions to be true, he failed to raise a

colorable claim of ineffective assistance of counsel under the parameters set forth in Donald .4

The constitutional principles underlying Donald come into play only when a concrete plea

offer has been made by the state, and we decline Jackson’s request, unsupported by autho rity,

to extend Donald ’s reach to include a defense c ounsel’s failu re to investigate the speculative

possibilities of a potential plea offer, the very existence of which is contested.5 See Do nald,


       4
        Jackson suggested below that, as an alternative remedy unde r Donald , he should be
entitled to a new trial. Because Jackson did not make a colorable claim of ineffective
assistance of counsel under Donald and was therefore no t entitled to the basic Donald remedy
of reinstating a plea agreement, he c annot hav e been en titled to an alternative remedy of a new
trial.
       5
         Although not cited by Jackson, we have found one case in which a court found counsel
ineffective for failing to seek a plea agreement. In Wayrynen v. Class, 586 N.W.2d 499 (S.D.
1998), a client wh o contemplated confessing and pleading guilty to her crimes went to an
attorney for advice. The attorney disclosed the client’s name to the authorities, did not inform
the client of the prison exposure she faced if convicted, then, without seeking any concessions
from the state, facilitated the client’s confessing to the crimes and pleading guilty to most of
the resulting charges, for which she received a seventy-five-year prison sentence. The
prosecutor later conceded she would have been willing to ne gotiate charge reductions had the
attorney broached the subject. The court held that the attorney’s “failure to seek a plea
agreement prior to the confession, under these circumstances, constitutes ineffective

                                                9
198 Ariz. 406, n.4, 10 P.3d 1193, n.4 (listing numerous, similar cases from other

jurisdictions, all involving actual plea offers).

¶12            Jackson attempted to raise a Donald claim based on far more speculative

grounds than those on which Donald had been based, and we find his claim was therefore not

colorable. As the trial court found, Donald does not address “any duty to investigate the

existence of an offer.” 6 Furthermore, that a plea offer might have been made and rejected at

the initial stages of this criminal prosecution is immaterial. No evidentiary hearing was

required to establish the truth of Jackson’s claim that the state had offered any such plea

agreemen t, because that agreement was not at issue; Jackson did not claim counsel was

ineffective regarding that p urporte d offer o r seek its specific enforcement a s a remedy.

Jackson did not raise a colorable claim of ineffective assistance of counsel because even if we

assume his assertions to be true—that the state might have been willing to offer him a

favorable plea agreement at the outset of trial if trial counsel had broached the topic with the

prosecutor—those assertions would not have entitled him to post-conviction relief under




assistance of counse l.” 586 N.W .2d at 503 (empha sis added). Wayrynen is thus limited to
its unique facts, most notably a lawyer representing a client who intends to confess and plead
guilty; it contains no discussion about an approp riate remedy. Accordin gly, we do not find the
case persuasive here. We also do not reach the broader question of whether a defendant can
ever establish an ineffective-assistance-of-counsel claim predicated on counsel’s failure to
seek a plea agreement when, unlike here, the defendant can show prejudice.
       6
        Our analysis has necessarily entailed a detailed examination o f Donald , but nothin g in
this decision should be read to mean this court adopts or approves of Donald or that we
considered that case to be a significant change in the law for purpo ses of Rule 32.1(g).
Because we find th at Jackson ’s asserted cla im is not encompa ssed by Donald , we need not
answer those questions.

                                                10
Donald . And Jac kson has n o other auth ority suppo rting his claim. A ccordin gly, we conclude

that the trial court did not abuse its discretion in denying relief on this claim without a hearing.

¶13            Although w e grant the petition for review, w e deny relief.




                                                 PHILIP G. ESPINOSA, Judge

CONCURRING:




JOHN PELA NDER, Chief Judge




PETER J. ECKER STROM, Judge




                                                11
