                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                             DUSTIN GILL,
                              Appellant.

                          No. CR-16-0286-PR
                          Filed April 13, 2017

          Appeal from the Superior Court in Maricopa County
               The Honorable Teresa A. Sanders, Judge
                         No. CR2013-449134
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                240 Ariz. 229, 377 P.3d 1024 (App. 2016)
                               VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Jana
Zinman (argued), Assistant Attorney General, Phoenix, Attorneys for State
of Arizona

Marty Lieberman, Legal Defender, Maricopa County Office of the Legal
Defender, Cynthia Dawn Beck (argued), Deputy Legal Defender, Phoenix,
Attorneys for Dustin Gill

Randy McDonald, Osborn Maledon PA, Phoenix, and Mikel Steinfeld,
Maricopa County Public Defender’s Office, Phoenix, Attorneys for Amicus
Curiae Arizona Attorneys for Criminal Justice
                             STATE V. GILL
                           Opinion of the Court

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
BOLICK, GOULD, and BERCH (RETIRED) joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1             Arizona Rule of Evidence 410(a)(4) requires a court to exclude
statements made by a defendant during plea discussions with a prosecutor
if the discussions do not result in a guilty plea. This case concerns whether
statements made in furtherance of a deferred prosecution agreement are
protected by Rule 410(a)(4). We hold that this evidentiary rule does not
apply to discussions about deferred prosecution and that a knowing waiver
of its provisions does not require specifically referencing the rule.

                                     I.

¶2            In 2013, a private security guard found Dustin Gill in a
restroom stall with several grams of marijuana. The State charged Gill with
possession or use of marijuana, a class 6 felony. In June 2014, Gill rejected
a plea agreement during a comprehensive pretrial conference. In July, the
State reduced Gill’s charge to a class 1 misdemeanor. At a September 3
settlement conference, Gill agreed to participate in a drug treatment
program through the Treatment Assessment Screening Center (“TASC”) in
return for the State deferring the prosecution.

¶3             Immediately after accepting the deferred prosecution
agreement, Gill and his attorney met with a TASC representative to register
for the diversion program. During the meeting, Gill completed a form
titled, “Maricopa County Attorney / TASC Drug Diversion Program
Statement of Facts.” On the form, Gill initialed that he understood his
Miranda rights and avowed that “I fully understand that what I have
written here may be used against me in a court of law should I fail to
satisfactorily complete the TASC program.” When required to describe the
facts of the offense on the form, Gill wrote the following admission: “The
marijuana was found in the bathroom on the ground in my possession.”

Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Rebecca
White Berch, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.
                                     2
                               STATE V. GILL
                             Opinion of the Court

¶4             In December 2014, the State resumed the prosecution because
Gill had failed to attend TASC seminars and had tested positive for alcohol
and marijuana while in the TASC program. Gill subsequently moved to
suppress the statements he gave to TASC on September 3, arguing in part
that they were made during plea discussions and consequently protected
by Rule 410. The trial court denied Gill’s motion.

¶5            After a bench trial, the trial court found Gill guilty, suspended
his sentence, and placed him on one year of unsupervised probation. Gill
appealed. Rejecting Gill’s arguments that his statements to TASC were
inadmissible under Rule 410(a)(4), the court of appeals held that the
statements were not made to a prosecutor during plea discussions and Gill
had, in any event, waived the rule’s protections. State v. Gill, 240 Ariz. 229,
230–31 ¶¶ 7–9, 377 P.3d 1024, 1025–26 (App. 2016).

¶6           We granted review to address whether Rule 410(a)(4) applies
to deferred prosecution agreements, a legal issue of statewide importance.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

                                       II.

¶7             We review a trial court’s admission of evidence for an abuse
of discretion, State v. Tucker, 215 Ariz. 298, 313 ¶ 46, 160 P.3d 177, 192 (2007),
and we review de novo the interpretation of the Arizona Rules of Evidence.
State v. Romero, 239 Ariz. 6, 9 ¶ 11, 365 P.3d 358, 361 (2016).

¶8            Rule 410(a)(4) provides that “a statement made during plea
discussions with an attorney for the prosecuting authority” is not
admissible against the defendant who participated in the plea discussions
“if the discussions did not result in a guilty plea or they resulted in a later-
withdrawn guilty plea.” See also Ariz. R. Crim. P. 17.4(f) (“The admissibility
or inadmissibility of a plea, a plea discussion, and any related statement is
governed by Arizona Rule of Evidence 410.”). Gill argues that his
statements to TASC are inadmissible because they were made in
furtherance of plea discussions, the TASC representative acted as the
prosecutor’s agent, and Gill did not waive Rule 410’s protections.




                                        3
                              STATE V. GILL
                            Opinion of the Court

                                        A.

¶9             Gill first contends that his statements to TASC are protected
by Rule 410(a)(4) because they were made in furtherance of a plea
discussion. In rejecting this argument, the court of appeals held that Rule
410(a)(4) did not apply because discussions about deferred prosecution are
not plea discussions and Gill made his statements to TASC “after he rejected
a plea offer.” Gill, 240 Ariz. at 230 ¶ 7, 377 P.3d at 1025. Whether statements
are protected by Rule 410 first depends on whether plea discussions, in fact,
occurred. We look to the record to answer this question.

¶10           On September 3, Gill attended a settlement conference with
his father, his attorney, a Maricopa County prosecutor, and a court
commissioner. The commissioner noted that the settlement conference
concerned whether Gill would proceed to trial or “participate in [TASC]
diversion.” No other option was mentioned. As the commissioner
described the benefits of TASC and the risks of trial, Gill’s father interjected
that his son would have to “plead guilty” in order to participate in TASC.
Immediately, the commissioner and prosecutor both corrected Gill’s father,
emphasizing that Gill would not be pleading guilty but agreeing to
“deferred prosecution.” After the commissioner clarified the TASC
program as “diversion in lieu of prosecution,” Gill’s father asked again
whether his son would have to plead guilty. This time, both the
commissioner and Gill’s counsel emphasized that Gill would not have to
do so in order to enter TASC. The commissioner then concluded the
conference by giving Gill time to speak with his father about either
proceeding to trial or participating in TASC. Later that day, Gill completed
his TASC registration paperwork, including the Statement of Facts form in
which he admitted to possessing marijuana. The State then suspended
Gill’s prosecution while he participated in TASC.

¶11           The record reflects that the September 3 settlement conference
concerned only the alternatives of a trial or a deferred prosecution
agreement, and did not involve a plea offer or agreement. Neither the
September 3 transcript nor the minute entry states that Gill was offered or
rejected a plea agreement. Indeed, the fact that the court, prosecutor, and
Gill’s own counsel twice explained that Gill would not have to plead guilty
in order to participate in TASC underscored that the September 3 settlement
conference did not involve a plea agreement.


                                       4
                              STATE V. GILL
                            Opinion of the Court


¶12            Moreover, as the court of appeals correctly noted, discussions
about deferred prosecution are categorically different from plea
discussions. A plea discussion entails the prosecutor and defendant
negotiating whether the defendant will plead guilty or no contest to a
criminal offense in exchange for some concession by the prosecutor on any
aspect of the disposition of the case. See Ariz. R. Evid. 410(a)(1)–(2) (noting
discussions about “a guilty plea” or “no contest plea”); Espinoza v. Martin,
182 Ariz. 145, 147, 894 P.2d 688, 690 (1995) (defining plea negotiations on
“any aspect of the disposition of the case” pursuant to Arizona Rule of
Evidence 17.4(a) to mean that “‘the State and the defendant may bargain
both as to the plea of guilty and as to the sentence to be imposed.’’’) (quoting
State v. Superior Court, 125 Ariz. 575, 577, 611 P.2d 928, 930 (1980)); see also
United States v. Levy, 578 F.2d 896, 901 (2d Cir. 1978) (“Plea bargaining
implies an offer to plead guilty upon condition. The offer by the defendant
must, in some way, express the hope that a concession to reduce the
punishment will come to pass.”).

¶13           A deferred prosecution discussion, on the other hand,
involves a defendant and prosecutor negotiating whether the defendant
will participate in “a special supervision program” in which the state
“divert[s] or defer[s], before a guilty plea or a trial, the prosecution of a
person who is accused of committing a crime[.]” A.R.S. § 11-361. A
defendant participates in this supervision program before “a guilty plea or
a trial,” and so it is a type of pretrial diversion. Id. If the defendant
satisfactorily completes the pretrial supervision program, the court
dismisses the charges. Ariz. R. Crim. P. 38.3(b). A deferred prosecution
agreement can result in a dismissal of all charges, whereas a guilty plea will
not because the defendant formally admits committing a criminal offense.
See DeNaples v. Office of Comptroller of Currency, 706 F.3d 481, 489 (D.C. Cir.
2013) (noting that “[a] plea bargain, for instance, would not be a pretrial
diversion, no matter its similarity to pretrial diversion for other purposes”).
Thus, discussions about deferred prosecutions differ from plea discussions
and therefore are not governed by Rule 410 or Arizona Rule of Criminal
Procedure 17.4(f).

¶14          Contrary to Gill’s contention, the September 3 settlement
conference did not begin as a plea discussion and then morph into a
discussion about deferred prosecution. Although Rule 410 conceivably
could apply if plea negotiations also involve discussions about deferred

                                       5
                              STATE V. GILL
                            Opinion of the Court

prosecution, no such circumstances existed here. Because no plea
discussion occurred on September 3, Rule 410 does not apply. We add,
however, that courts should not limit Rule 410 more narrowly than the
rule’s text. Just because a defendant makes statements after rejecting a plea
offer does not necessarily mean that those subsequent statements were not
made during plea discussions. The category of statements made “during
plea discussions” is larger than merely statements made “before rejecting a
plea offer,” because plea discussions may involve a series of offers,
rejections, and counter-offers before they are successfully concluded or
terminated. We therefore disagree with the court of appeals’ suggestion
that Rule 410 does not apply merely because Gill made his statements after
rejecting a plea offer.
                                     B.

¶15            Because the issue is recurring, we also address Gill’s
argument that, although the TASC representative was not an attorney, Rule
410 should nevertheless apply because the representative was the
prosecutor’s agent. The court of appeals rejected this argument because
Rule 410 only protects statements made to “an attorney for the prosecuting
authority” and the TASC representative was not an attorney. Gill, 240 Ariz.
at 230 ¶ 8, 377 P.3d at 1025.

¶16           Arizona courts have implicitly recognized that Rule 410
extends to a prosecutor’s agents. See State v. Campoy, 220 Ariz. 539, 543 ¶ 6,
548 ¶ 25, 207 P.3d 792, 796, 801 (App. 2009) (holding that Rule 410 protected
statements made by defendant to two police detectives pursuant to a free
talk agreement with no prosecutor present). Some federal courts and state
supreme courts have expressly reached the same conclusion. See, e.g.,
United States v. McCauley, 715 F.3d 1119, 1126 (8th Cir. 2013) (holding that
Rule 410’s protection extends to agents with express or implied authority
to negotiate on behalf of prosecutor); Clutter v. Commonwealth, 364 S.W.3d
135, 138 (Ky. 2012). We agree with those decisions and therefore reject the
State’s contention that Rule 410 only applies to attorneys for the prosecuting
authority and not to agents authorized by prosecutors to negotiate pleas.

¶17          Although Rule 410 extends to the prosecutor’s agents, the
TASC representative here was not an agent for purposes of negotiating a
plea. Whether a private party acts as a state agent depends on 1) the
government’s knowledge and acquiescence and 2) the intent of the private
party. See State v. Martinez, 221 Ariz. 383, 391–92 ¶ 31, 212 P.3d 75, 83–84

                                      6
                              STATE V. GILL
                            Opinion of the Court

(App. 2009). Gill maintains that the TASC representative was a state agent
because the name of the county attorney’s office appears on the Statement
of Facts form and TASC requires an admission of guilt on that form
pursuant to the county attorney’s mandate.

¶18           However, these facts do not make the TASC representative
the prosecutor’s agent for purposes of negotiating a plea. As previously
noted, Gill did not negotiate a plea during the September 3 settlement
conference. Although the prosecutor told Gill at the conference that he had
to make an admission to TASC in order to participate in the diversion
program, the TASC representative obtained Gill’s admission on the
Statement of Facts form because the prosecution required it as a condition
for the deferred prosecution. At most, the TASC representative acted as the
prosecutor’s agent for purposes of effecting the deferred prosecution
agreement. Because the TASC representative was not the prosecutor’s
agent for purposes of negotiating a plea, Rule 410 does not apply.

                                          C.

¶19            Even if Gill’s statements had been subject to Rule 410(a)(4), he
waived the Rule’s protections. Gill, however, argues that his waiver was
ineffective because it was not knowingly made. We address this issue
because it too is recurring and offers an alternative ground for our decision.
(He has not disputed, and we do not address, the voluntariness of his
waiver or whether it allowed the government to use his statements in its
case-in-chief.)

¶20           “In interpreting Arizona’s evidentiary rules, we look to
federal law when our rule is identical to the corresponding federal rule[.]”
Hernandez v. State, 203 Ariz. 196, 198 ¶ 10, 52 P.3d 765, 767 (2002). Arizona’s
Rule 410(a)(4) mirrors its federal counterpart. See Fed. R. Evid. 410(a)(4). In
interpreting Federal Rule 410, the United States Supreme Court has held
that a Rule 410 waiver is enforceable “absent some affirmative indication
that the agreement was entered into unknowingly or involuntarily.” United
States v. Mezzanatto, 513 U.S. 196, 210 (1995). Thus, a waiver of Rule 410
must be knowing and voluntary.

¶21         On appeal, Gill contends that his waiver was unknowing
because his waiver agreement did not specifically refer to Rule 410.
However, a knowing waiver of Rule 410 only requires a defendant to have

                                      7
                              STATE V. GILL
                            Opinion of the Court

“a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” See In re Andre M., 207 Ariz.
482, 484 ¶ 7, 88 P.3d 552, 554 (2004) (quoting Moran v. Burbine, 475 U.S. 421
(1986)). A waiver agreement need not specifically reference the evidentiary
rule being waived. See Mezzanatto, 513 U.S. at 197.

¶22            Here, Gill recognized that he was waiving any right not to
have his statements to TASC used against him at trial. During the
September 3 settlement conference, the prosecutor told Gill that “if you
were to fail TASC . . . that TASC paperwork could be used against you at
trial.” The commissioner also made clear that Gill could opt for trial instead
of making an admission to TASC. When Gill completed the Statement of
Facts form in the presence of his attorney, he initialed the notations that he
made “this statement without coercion and of [his] own free will” and that
he “fully underst[ood] that what [he] ha[d] written here may be used
against [him] in a court of law should [he] fail to satisfactorily complete the
TASC program.” Both he and his attorney signed the form. These facts
indicate that in choosing to make statements to TASC, Gill recognized that
the statements could be used against him if he failed to complete the
program. Thus, Gill knowingly gave up his right to object to their
admissibility, which would include objections based on Rule 410.

                                     III.

¶23          For the foregoing reasons, we vacate the opinion of the court
of appeals and affirm Gill’s conviction and the penalty imposed by the trial
court.




                                      8
