                                                                      FILED BY CLERK
                                                                         MAY 31 2007
                           IN THE COURT OF APPEALS                        COURT OF APPEALS
                               STATE OF ARIZONA                             DIVISION TWO
                                 DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )       2 CA-CR 2006-0336-PR
                            Respondent,       )       DEPARTMENT A
                                              )
                   v.                         )       OPINION
                                              )
RACHEL MARIE VALLEJO,                         )
                                              )
                                Petitioner.   )
                                              )


   PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20034144

                          Honorable Virginia C. Kelly, Judge

                        REVIEW GRANTED; RELIEF DENIED


Barbara LaWall, Pima County Attorney
 By Taren M. Ellis                                                               Tucson
                                                               Attorneys for Respondent

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. McCaffery                                                        Tucson
                                                                 Attorneys for Petitioner


P E L A N D E R, Chief Judge.
¶1            After a jury trial, petitioner Rachel Marie Vallejo was convicted of aggravated

assault with a dangerous instrument, a barbell. The trial court sentenced her to a mitigated,

five-year prison term. After counsel filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S. Ct. 1396 (1967); State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969); and State

v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), this court affirmed the conviction and the

sentence imposed. State v. Vallejo, No. 2 CA-CR 2004-0291 (memorandum decision filed

Aug. 31, 2005).1 In this petition for review, Vallejo challenges the trial court’s order

dismissing without an evidentiary hearing Vallejo’s petition for post-conviction relief

pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S. In the petition below, she claimed trial

counsel had been ineffective because she had not asked Vallejo why she twice had refused

a plea offer that required her to admit she had used a barbell to assault the victim and in

failing to ask the prosecutor whether a plea offer to a different offense—aggravated assault

causing temporary but substantial disfigurement—was available.

¶2            We review a trial court’s order dismissing a petition for post-conviction relief

without an evidentiary hearing for an abuse of discretion. State v. Bennett, 213 Ariz. 562,

¶ 17, 146 P.3d 63, 67 (2006). “An error of law committed in reaching a discretionary




       1
        As arguable issues, counsel suggested the trial court abused its discretion by denying
Vallejo’s motion to strike a prospective juror for cause and her motion for judgment of
acquittal made on the ground that there had been no substantial evidence Vallejo had
assaulted the victim with a barbell.

                                              2
conclusion may, however, constitute an abuse of discretion.” State v. Wall, 212 Ariz. 1, ¶

12, 126 P.3d 148, 150 (2006).

¶3            Vallejo’s request for relief was based, to a large degree, on State v. Donald,

198 Ariz. 406, 10 P.3d 1193 (App. 2000), and State v. Jackson, 209 Ariz. 13, 97 P.3d 113

(App. 2004). In Donald, Division One of this court held a trial court may compel the state

to reinstate a plea agreement it previously offered if the defendant had rejected it because

counsel had failed to adequately inform the defendant of the terms of the plea offer and the

relative merits of that offer when compared to proceeding to trial. 198 Ariz. 406, ¶¶ 14, 44,

10 P.3d at 1200, 1205.

¶4            In Jackson, the defendant contended “that trial counsel was ineffective in

failing to explore the possibility of a plea offer.” 209 Ariz. 13, ¶ 3, 97 P.3d at 114. This

court concluded that, even if Jackson’s factual assertions were assumed to be true and the

state had offered a plea agreement early in the case, his claim based on Donald was not

colorable; it was based on the assertion that counsel had been ineffective for not resuming

“plea negotiations on the eve of trial,” not on counsel’s having given Jackson bad advice.

209 Ariz. 13, ¶ 7, 97 P.3d at 116. Although this court examined Donald, we did so with

the express caveat that “nothing in this decision should be read to mean this court adopts

or approves of Donald.” Id. n.6. This court concluded:

              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 authority, to
              extend Donald’s reach to include a defense counsel’s failure to

                                             3
              investigate the speculative possibilities of a potential plea offer,
              the very existence of which is contested.

Id. ¶ 11. Finally, we noted the paucity of support for the notion that counsel may be found

to have been ineffective for “failing to seek a plea agreement.” Id. n.5. We added, however,

that “[w]e . . . 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.” Id.

¶5            Vallejo rejected the state’s plea offers twice. Both times, the offer and

rejection were stated on the record, and the court questioned Vallejo about the plea offer

and the prison term she could be facing. The court dismissed before trial the charge of

aggravated assault causing temporary but substantial disfigurement, and the jury found

Vallejo guilty of aggravated assault with a dangerous instrument. In her post-conviction

petition, Vallejo maintained trial counsel should have questioned her about her reasons for

rejecting the state’s plea offers, arguing had she done so, counsel would have learned Vallejo

could not plead guilty to the offenses because she insisted she had not used a barbell to

assault the victim.2 Vallejo argued counsel also would have learned that Vallejo would have

pled guilty to assault causing temporary but substantial disfigurement and attached an

affidavit by William Feldhacker, the former prosecutor, in which he stated, “[h]ad defense


       We note that, in twice rejecting the state’s plea offers before trial, Vallejo had every
       2

opportunity to explain why she could not or would not accept the plea but did not do so.
She also acknowledged having spoken to her counsel about the plea offers before declining
them.

                                               4
counsel made a counter-offer to Aggravated Assault, temporary but substantial

disfigurement, a class four felony, . . . [he] would have accepted it.” And, he added, had

defense counsel asked, he would have considered offering a plea to an offense less serious

than a class four felony.

¶6            In a thorough, well-reasoned discussion of the relevant case law, the trial court

denied relief. Noting the question this court had refused to directly address in Jackson, the

trial court refused to extend Donald “to plea offers that were not actually extended to a

defendant.” The court further found that the affidavit of the former prosecutor was not

definitive evidence that such a plea offer would have been available, noting the state did not

concede that fact. Therefore, the court found, Vallejo had not established she had been

prejudiced. See Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069

(1984) (to establish claim of ineffective assistance of counsel, defendant must show not only

that counsel’s performance was deficient, but that it was prejudicial); State v. Nash, 143

Ariz. 392, 397, 694 P.2d 222, 227 (1985) (same).3

¶7            On review, Vallejo maintains we should now address the question we did not

reach in Jackson. But, based on what we did conclude in Jackson, we cannot say the trial

court erred in denying relief here. Jackson and its underpinnings support the trial court’s



       3
        The trial court also correctly distinguished State v. Darelli, 205 Ariz. 458, 72 P.3d
1277 (App. 2003), in which Division One of this court held that “a trial judge may not
effectively implement a plea cut-off date, by rejecting all potential pleas except a plea to the
charges, based solely on the procedural posture of the case at issue.” Id. ¶ 1.

                                               5
determination that Donald, even if correctly decided, should not be broadened to establish

a colorable ineffective assistance of counsel claim under the circumstances of this case. As

we stated in Jackson, “[t]he constitutional principles underlying Donald come into play

only when a concrete plea offer has been made by the state.” 209 Ariz. 13, ¶ 11, 97 P.3d

at 117. The only plea offer the state actually made in this case was twice rejected by

Vallejo. The nonexistent plea offer that Vallejo now asserts she would have accepted, had

it been made, was never extended or even considered by the state before trial. As in

Jackson, under these circumstances we again refuse “to extend Donald’s reach to include

a defense counsel’s failure to investigate the speculative possibilities of a potential plea

offer.” Id.

¶8            We note, too, that on review, Vallejo attempts to distinguish Division One’s

decision in State ex rel. Thomas v. Rayes, 213 Ariz. 326, n.7, 141 P.2d 806, 814 n.7 (App.

2006), in which a different panel of judges of that court disagreed with Donald insofar as

it stands for the proposition that a trial court may compel the state to reinstate a plea offer.

But a petition for review was filed in Rayes, and our supreme court recently vacated Division

One’s decision. State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 21, 153 P.3d 1040, 1044

(2007). Nothing in the supreme court’s decision affects the continued vitality of Jackson,

nor does it alter our decision in this case that the trial court did not abuse its discretion by

denying Vallejo post-conviction relief.




                                               6
¶9              We grant the petition for review, but we deny relief for the reasons stated

herein.



                                                JOHN PELANDER, Chief Judge

CONCURRING:



GARYE L. VÁSQUEZ, Judge



H O W A R D, Presiding Judge, specially concurring.


¶10             I concur in the majority’s refusal to extend the reasoning in State v. Donald,

198 Ariz. 406, 10 P.3d 1193 (App. 2000), to this situation and write separately to briefly

explain why. Applying the Donald reasoning to a defendant’s rejection of a plea bargain

would extend the Sixth Amendment’s right to counsel beyond its constitutional purpose.4

                The Sixth Amendment provides that a criminal defendant shall
                have the right to “the Assistance of Counsel for his defence.”
                This right has been accorded, we have said, “not for its own
                sake, but because of the effect it has on the ability of the
                accused to receive a fair trial.” United States v. Cronic, 466
                U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). It
                follows from this that assistance which is ineffective in
                preserving fairness does not meet the constitutional mandate,
                see Strickland v. Washington, 466 U.S. 668, 685-686, 104
                S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and it also follows that


          4
          I note that this same concern applies to Donald itself.

                                               7
              defects in assistance that have no probable effect upon the
              trial’s outcome do not establish a constitutional violation.

Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 1240 (2002). Although the Sixth

Amendment only concerns trial rights, the Supreme Court has interpreted it to include

critical stages of the pretrial procedures during which the defendant’s trial rights can be lost

or impaired. In doing so, the Court explained that:

              [I]n addition to counsel’s presence at trial, the accused is
              guaranteed that he need not stand alone against the State at any
              stage of the prosecution, formal or informal, in court or out,
              where counsel’s absence might derogate from the accused’s
              right to a fair trial. . . . [W]e scrutinize any pretrial
              confrontation of the accused to determine whether the presence
              of his counsel is necessary to preserve the defendant’s basic
              right to a fair trial . . . .

United States v. Wade, 388 U.S. 218, 226-27, 87 S. Ct. 1926, 1932 (1967) (emphasis in

original) (footnote omitted).

¶11           What constitutes a “critical stage” for purposes of the Sixth Amendment right

to counsel has been broadly defined. “A critical stage is any ‘stage of a criminal proceeding

where substantial rights of a criminal accused may be affected.’” Hovey v. Ayers, 458 F.3d

892, 901 (9th Cir. 2006), quoting Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257

(1967); see also Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 1851 (2002) (defining

a critical stage as “a step of a criminal proceeding, such as arraignment, that h[o]ld[s]

significant consequences for the accused”).




                                               8
¶12           Many pretrial proceedings have been deemed “critical stages” in which the

accused has the right to counsel, including entry of a guilty plea at a preliminary hearing, see

White v. Maryland, 373 U.S. 59, 60, 83 S. Ct. 1050, 1051 (1963) (per curiam); post-

indictment police lineups, Wade, 388 U.S. at 228-29, 87 S. Ct. at 1933 (“innumerable

dangers” inherent in police lineups including possibility of improper suggestion and

likelihood that issue of identity will be conclusively determined there); arraignments,

Hamilton v. Alabama, 368 U.S. 52, 53, 82 S. Ct. 157, 158 (1961); and custodial

interrogations, Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612 (1966)

(when requested by accused, counsel required at questioning to protect Fifth Amendment

right against self-incrimination). See also Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct.

1197, 1204-05 (1977) (plurality). The Supreme Court’s decision to extend the right to

counsel to each of the critical stages listed above has been based on the effect that

proceeding could have on the accused’s trial and sentencing rights.

¶13           Because a defendant’s trial rights can be forfeited in a plea agreement, see

State v. Murdaugh, 209 Ariz. 19, ¶ 33, 97 P.3d 844, 852 (2004), the plea bargaining process

must be considered a critical stage of the proceedings, see Hovey, 458 F.3d at 901. But, the

rejection of a plea bargain does not jeopardize or insult any of a defendant’s Sixth

Amendment trial rights. See State ex rel. Bowers v. Superior Court, 173 Ariz. 34, 40, 839

P.2d 454, 460 (App. 1992) (“However, in rejecting a plea agreement, the court does not

impair any of defendant’s constitutional rights; rather, the court restores to defendant the


                                               9
rights he has relinquished in the written agreement, and that agreement becomes inadmissible

at any subsequent proceeding. See Rule 17.4(f), [Ariz. R. Crim. P., 16A A.R.S.]”),

disapproved on other grounds by Espinoza v. Martin, 182 Ariz. 145, 148, 894 P.2d 688,

691 (1995). That is because, after rejecting the plea bargain, a defendant can still receive

a fair trial with the assistance of counsel. And nothing that occurs during the plea

negotiations can be used against him.5 Ariz. R. Crim. P. 17.4(f). Therefore, under Mickens,

alleged ineffective assistance of counsel in rejecting a plea offer is a defect that cannot

possibly have an “effect upon the trial’s outcome” and consequently does not establish a

constitutional violation. Mickens, 535 U.S. at 166, 122 S. Ct. at 1240.

¶14           Some courts have held that because a defendant has a right to effective

assistance of counsel when he enters a plea, he must also have the right when he rejects the

plea. See In re Alvernaz, 830 P.2d 747, 753 (Cal. 1992). But the fact that the defendant

has the right to effective assistance of counsel does not automatically mean that ineffective

assistance results in a Sixth Amendment violation necessitating the vacation of an untainted

jury verdict. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

has always required a finding of prejudice. See State ex rel. Thomas v. Rayes, 214 Ariz.

411, ¶¶ 10, 12, 18, 153 P.3d 1040, 1042, 1044 (2007). Even if counsel has provided

ineffective assistance, such a claim fails if no prejudice occurred. See, e.g., State v. Morgan,


       5
       Nor does a defendant have a constitutional right to a plea bargain, so no other rights
are implicated. See State v. McKinney, 185 Ariz. 567, 575, 917 P.2d 1214, 1222 (1996)
(no constitutional right to plea bargain).

                                              10
204 Ariz. 166, ¶ 33, 61 P.3d 460, 468 (App. 2002). Thus, when the defendant accepts a

plea agreement, the defendant gives up trial rights, and ineffective assistance prejudices him.

But the same is not true when the defendant rejects a plea offer because he does not give up

any trial rights and his Sixth Amendment trial rights are not insulted. See Mickens, 535 U.S.

at 166, 122 S. Ct. at 1240.

¶15           Tying the right to counsel to its constitutional purpose eliminates the problem

courts have grappled with when attempting to fashion a remedy where a defendant claims

ineffective assistance in plea bargaining. Requiring the state to offer a plea bargain or even

enter into negotiations for one contradicts the notion that the defendant has no

constitutional right to a plea bargain and may well invade the separate powers of the

prosecutor to decide whether to offer one. See Donald, 198 Ariz. 406, ¶ 48, 10 P.3d at

1205-06 (Berch, J., concurring in part and dissenting in part). Additionally, requiring a new

trial, after the defendant has already had a fair trial, with effective assistance of counsel, is

illogical because it does nothing to remedy the alleged constitutional violation. If a jury has

already determined the truth, the defendant’s only hope in requesting a new trial is that a

future jury may make a mistake and find him not guilty. The Sixth Amendment is not

designed to ensure the defendant multiple trials hoping that one jury will eventually make

a mistake:

              “‘Every inroad on the concept of finality undermines
              confidence in the integrity of our procedures; and, by increasing
              the volume of judicial work, inevitably delays and impairs the
              orderly administration of justice. . . . [T]he concern that unfair

                                               11
              procedures may have resulted in the conviction of an innocent
              defendant is only rarely raised by a petition to set aside a guilty
              plea.’”

Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985), quoting United States v.

Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 2087 (1979), quoting United States v.

Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting).

¶16           At least two courts from other jurisdictions have decided that no constitutional

violation occurs if a defendant receives ineffective assistance of counsel when he rejects a

plea offer. See Bryan v. State, 134 S.W.3d 795, 802-03 (Mo. Ct. App. 2004); State v.

Knight, 734 P.2d 913, 919 n.7 (Utah 1987); cf. State v. Monroe, 757 So. 2d 895, 898 (La.

Ct. App. 2000) (defendant who rejects plea bargain suffers no prejudice to his trial rights).

Although other courts have reached a different conclusion, see Donald, 198 Ariz. 406, n.4,

10 P.3d at 1198-99 n.4; Commonwealth v. Mahar, 809 N.E.2d 989, 992-93 (Mass. 2004),

they have not analyzed whether the defendant’s trial rights are impaired by the rejection of

a plea bargain. I find the more reasoned view is that ineffective assistance of counsel in

rejecting a plea agreement does not result in a Sixth Amendment violation. See Bryan;

Knight.

¶17           Accordingly, I concur that the trial court correctly denied Vallejo post-

conviction relief.



                                               ____________________________________
                                               JOSEPH W. HOWARD, Presiding Judge

                                              12
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