SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA ex rel. ANDREW ) Arizona Supreme Court 

P. THOMAS, Maricopa County ) No. CV-06-0303-PR 

Attorney, )

 ) Court of Appeals 

 Petitioner, ) Division One 

 ) No. 1 CA-SA 06-0006 

 v. )

 ) Maricopa County 

THE HONORABLE DOUGLAS L. RAYES, ) Superior Court 

JUDGE OF THE SUPERIOR COURT OF ) Nos. CR 2004-012417-001DT 

THE STATE OF ARIZONA, in and for ) CR 2005-119508-001DT

the County of Maricopa, ) 

 )

 Respondent Judge, )

 ) O P I N I O N

ANTHONY JAMES REYNAGA, )

 )

 Real Party in Interest. )

 )

__________________________________)

Order of the Superior Court in Maricopa County 

The Honorable Douglas L. Rayes, Judge

VACATED AND REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division One

213 Ariz. 326, 141 P.3d 806 (App. 2006)

VACATED

________________________________________________________________

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix

 By David E. Wood, Deputy County Attorney

Attorneys for State of Arizona

SUSAN SHERWIN, OFFICE OF THE LEGAL ADVOCATE Phoenix

 By James Logan, Deputy Legal Advocate

 Thomas J. Dennis, Deputy Legal Advocate

Attorneys for Anthony James Reynaga
2

LEWIS AND ROCA LLP Phoenix

 By James J. Belanger

 Elias P. Batchelder

Attorneys for Amicus Curiae 

Arizona Attorneys for Criminal Justice

________________________________________________________________

H U R W I T Z, Justice

¶1 This case requires us to determine whether, in a 

pretrial proceeding, the superior court can order reinstatement 

of an expired plea offer upon finding that defense counsel 

engaged in excusable neglect by failing to convey the offer to 

her client. 

I. 

¶2 In April 2004, Anthony James Reynaga was charged with 

theft of means of transportation. On July 6, 2005, a Maricopa 

County grand jury indicted Reynaga for armed robbery. The 

prosecutor sent two written plea offers to defense counsel, one 

in each pending case. Each offer was contingent on acceptance 

of the other. The offers were transmitted on August 23, 2005, 

and each stated that it would expire on September 15. No 

response to either offer was received by September 15. 

¶3 At a trial management conference six weeks after the 

offers expired, defense counsel asked the prosecutor why no plea 

offers had been extended. The prosecutor replied that the State 

had made offers, but that they had “long expired.” Defense 

counsel later told the superior court that she was unaware of 
3

the offers before the trial management conference. She claimed 

that she had hired a new secretary who placed both plea offers 

in the file for the theft case without bringing them to the 

attorney’s attention. Despite a defense request, the State 

refused to reinstate the plea offers. 

¶4 Finding that the defense attorney’s conduct 

constituted “excusable neglect,” the superior court ordered the 

prosecutor to reinstate the plea offers. Several days later, 

the State asked the superior court to reconsider that order. 

The prosecutor argued that reinstatement of a plea offer could 

not be ordered under State v. Donald, 198 Ariz. 406, 10 P.3d 

1193 (App. 2000), in the absence of a finding of ineffective 

assistance of counsel. The superior court, however, refused to 

find that counsel had been ineffective and reaffirmed its 

reinstatement order on the basis of counsel’s excusable neglect. 

Shortly thereafter, new counsel was appointed to represent 

Reynaga. 

¶5 The State then filed a special action in the court of 

appeals seeking to overturn the order reinstating the plea 

offers. The court of appeals accepted jurisdiction and granted 

relief. The court first unanimously held that Donald permits 

reinstatement of a lapsed plea offer only if a defendant has 

received ineffective assistance of counsel during the plea 

bargaining process. State ex rel. Thomas v. Rayes (Reynaga), 
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213 Ariz. 326, 329-30 ¶ 9, 141 P.3d 806, 809-10 (App. 2006). 

Notwithstanding the superior court’s refusal to find ineffective 

assistance, a majority of the panel concluded that it was “clear 

that trial counsel’s failure to communicate the County 

Attorney’s plea offer to Reynaga constituted ineffective 

assistance, thereby implicating Donald.” Id. at 330 ¶ 10, 141 

P.3d at 810. 

¶6 The court of appeals nonetheless vacated the superior 

court’s order reinstating the plea offers. The majority held 

that Donald had been incorrectly decided and that reinstatement 

of the plea offers was not a permissible remedy for ineffective 

assistance of counsel. Id. at 334-36 ¶¶ 21-26, 141 P.3d at 814-

16. The panel explained that because charging decisions and 

plea negotiations are within the discretion of the executive 

branch, the doctrine of separation of powers prevents the 

judiciary from reinstating a plea offer. Id. at 336 ¶ 26, 141 

P.3d at 816. The court of appeals instead “direct[ed] the 

parties to return to the plea negotiation stage” and prohibited 

the State from “rely[ing] on the expired plea-offer deadline as 

a reason to avoid plea offer negotiations.” Id. ¶ 27. 

¶7 Judge Norris concurred in part and dissented in part. 

She agreed with the majority’s conclusion that under Donald a 

court may order reinstatement of a plea offer only if the 

defendant has received ineffective assistance of counsel in the 
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plea negotiation process. Id. at 337-38 ¶¶ 32-33, 141 P.3d at 

817-18. She parted company with the majority, however, with 

respect to its conclusion that Reynaga had in fact received 

ineffective assistance of counsel, stating that such a 

determination should be made, in the first instance, by the 

trial court. Id. at 338-39 ¶¶ 34-35, 141 P.3d at 818-19. Even 

assuming that defense counsel’s performance was constitutionally 

deficient, Judge Norris indicated that it was not yet clear 

whether Reynaga had been prejudiced, as the superior court had 

not found that he would have accepted the offers when tendered. 

Id. at 339 ¶ 37, 141 P.3d at 819. Nor did the record establish 

that Reynaga and the State would eventually fail to reach an 

acceptable plea agreement. Id. ¶ 38.1

¶8 Reynaga petitioned for review and the State joined in 

that request. We granted review because of the direct conflict 

between Donald and the opinion below. See ARCAP 23(c)(3) 

(listing the fact that “conflicting decisions have been rendered 

by the Court of Appeals” as a reason for granting review). We 

 

1

 Although characterizing the majority’s criticism of Donald

as “dicta,” Reynaga, 213 Ariz. at 338 ¶ 34, 141 P.3d at 818, 

Judge Norris nonetheless addressed the issue. Her view was that 

the Sixth Amendment provides the superior court, in an 

appropriate case, with the power to remedy ineffective 

assistance of counsel in the plea bargaining stage by ordering 

reinstatement of a plea offer. Id. at 339-40 ¶¶ 39-43, 141 P.3d 

at 819-20.
6

have jurisdiction pursuant to Article 6, Section 5(3) of the 

Arizona Constitution and A.R.S. § 12-120.24 (2003). 

II. 

A. 

¶9 We agree with the unanimous holding of the court of 

appeals that the superior court cannot order reinstatement of a 

lapsed plea offer simply because defense counsel has engaged in 

excusable neglect. 

¶10 The Sixth Amendment guarantee of right to counsel 

entitles a defendant to “effective assistance of counsel.” 

Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting 

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A Sixth 

Amendment ineffective assistance claim has two components: 

“First, the defendant must show that counsel’s performance was 

deficient. . . . Second, the defendant must show that the 

deficient performance prejudiced the defense.” Id. at 687. 

¶11 The issue that divided the court of appeals in Donald 

was whether reinstatement of a lapsed plea offer can be an 

appropriate remedy for violation of the defendant’s Sixth 

Amendment rights. See 198 Ariz. at 416 ¶ 32, 10 P.3d at 1203 

(describing reinstatement as “a remedy for violation of a 

defendant’s Sixth Amendment rights”); id. at 418 ¶ 48, 10 P.3d 

at 1205 (Berch, J., concurring in part and dissenting in part) 

(describing the issue as whether “the trial court may order the 
7

prosecution to reinstate a plea agreement to remedy a violation 

of a defendant’s right to counsel at the plea bargaining stage 

of the proceedings”). Indeed, as the opinion below noted, it 

appears that “no court in the United States has ordered a 

Donald-type remedy unless it first found that defense counsel 

failed to provide effective assistance under the Sixth 

Amendment.” Reynaga, 213 Ariz. at 329 ¶ 9, 141 P.3d at 809. 

Under Strickland and its progeny, a violation of the Sixth 

Amendment is not established simply by proof of counsel’s 

excusable neglect; it follows that the superior court erred in 

premising a Donald remedy on such a showing. 

B. 

¶12 Although we agree with the court of appeals that the 

superior court’s finding of excusable neglect cannot justify 

reinstatement of the lapsed plea offers, we part company with 

its holding that the record in this case establishes ineffective 

assistance of counsel. Even assuming that the failure to 

communicate a plea offer to a defendant before it expires is 

deficient performance under the first prong of Strickland, the 

limited record in this case cannot support a conclusion that 

Reynaga has suffered the prejudice required by the second 

Strickland prong. 

¶13 The essence of Reynaga’s claim – and the crux of any 

claim of ineffective assistance of counsel during plea 
8

negotiations – is that but for the deficient performance of 

counsel the defendant would have obtained a result more 

favorable than the actual disposition of his case. Even 

assuming that Reynaga would have accepted the original offers 

before they expired,2

 the superior court simply could not have 

concluded at this stage of the case that Reynaga was in fact 

prejudiced by counsel’s performance. We do not yet know the 

eventual outcome of the charges against Reynaga. If he is 

acquitted or receives a disposition no less favorable than that 

offered by the State in the original plea offers, he will have 

suffered no constitutional prejudice because the result of the 

case would not have been affected by counsel’s deficiencies. 

See United States v. Gray, 382 F. Supp. 2d 898, 910 (E.D. Mich. 

2005) (stating that ineffective representation claims relating 

to plea negotiations, which require the court to assume a 

verdict of guilt on specific charges, are “grossly premature” 

before “conviction and sentencing”). 

 

2

 Although the trial court made no such factual finding here, 

the court of appeals concluded that Reynaga “would have accepted 

the County Attorney’s original plea offer had he been aware of 

it.” Reynaga, 213 Ariz. at 331 ¶ 12, 141 P.3d at 811. To be 

sure, Reynaga’s prompt acceptance of the reinstated offers is 

evidence that he probably would have done the same if he had 

been informed of the original offers. As Judge Norris noted, 

however, appellate courts should not normally make such factual 

findings in the first instance, particularly in the absence of a 

trial court evidentiary hearing on the subject. Id. at 338-39 

¶¶ 35-36, 141 P.3d at 818-19.
9

¶14 Indeed, at oral argument, the State suggested that it 

may well opt, even if the superior court’s order is vacated, to 

reinstate the original plea offers. If it does so, Reynaga will 

have suffered no prejudice from original counsel’s deficient 

performance. 

¶15 We therefore hold that the court of appeals erred in 

concluding that Reynaga established a violation of his Sixth 

Amendment right to effective assistance of counsel. Given that 

error, it was unnecessary for the court of appeals to consider 

whether such a violation could entitle Reynaga to the remedy 

provided in Donald – reinstatement of the expired plea offer. 

Nor was it necessary for the court of appeals to consider the 

continued vitality of Donald. There will be time enough to 

consider those issues in a case in which the record establishes 

that the defendant was prejudiced by counsel’s deficient 

performance. 

C. 

¶16 Although the trial court and the court of appeals did 

not address the issue, their consideration of a Donald remedy 

was premature for another reason. As noted above, a request for 

reinstatement of a plea offer under Donald must be premised on a 

showing of ineffective assistance of counsel. And, in State v. 

Spreitz, we held unequivocally that “ineffective assistance of 
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counsel claims are to be brought in Rule 32 proceedings.” 202 

Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). 

¶17 Spreitz involved an ineffective assistance claim 

raised on direct appeal from a conviction and thus can be 

distinguished from the case at hand. But the reasoning of 

Spreitz applies with equal force here. If the appellate courts 

cannot consider “[a]ny such claims . . . raised in a direct 

appeal,” id., it necessarily follows that the superior court 

should not address such claims before trial. Any other result 

would mean that a pretrial order rejecting an ineffective 

assistance of counsel claim could not be considered by an 

appellate court until a post-conviction relief proceeding has 

been completed by the very court that issued the pretrial 

ruling. Judicial economy is better served by reserving 

ineffective assistance of counsel claims for Rule 32 proceedings 

in the first instance. See id. (noting that judicial economy is 

served by avoiding “piecemeal litigation” of ineffective 

representation claims); State v. Conner, 163 Ariz. 97, 100, 786 

P.2d 948, 951 (1990) (same).3

 

3

 Similarly, if ineffective assistance of counsel claims are 

considered before trial and the defendant is successful in 

obtaining reinstatement of a lapsed plea offer, the State’s only 

relief (as here) would be through an interlocutory appellate 

special action. In contrast, if the issue can be raised in the 

first instance only in a Rule 32 proceeding, the State can seek 

review of any adverse order in the court of appeals after 

completion of any final trial court decision. See Ariz. R. 
11

¶18 Indeed, as we noted above, because prejudice is an 

essential component of any Sixth Amendment ineffective 

assistance of counsel claim, a conclusion that a defendant has 

been prejudiced by deficient performance before disposition of 

the charges at the trial level is purely speculative. Spreitz

thus also serves judicial economy by deferring such claims until 

prejudice can be determined. 

¶19 Any other approach would invite unnecessary disruption 

and delay of the case. We cannot expect the very counsel whose 

performance is alleged to be deficient to present a claim of 

ineffective assistance. See State v. Bennett, 213 Ariz. 562, 

566 ¶ 14, 146 P.3d 63, 67 (2006); State v. Robles, 135 Ariz. 92, 

96, 659 P.2d 645, 649 (1983). In many cases, the defendant’s 

claim of ineffective assistance puts trial counsel in a position 

of conflict with his client, particularly when the facts are 

contested. Trials on the merits would be unnecessarily delayed 

if every colorable claim of ineffective assistance of counsel 

resulted in at least the temporary need for new counsel to 

present that claim. 

¶20 We therefore hold, consistent with Spreitz, that a 

defendant may bring ineffective assistance of counsel claims 

only in a Rule 32 post-conviction proceeding – not before trial, 

___________________________________ 

Crim. P. 32.9(c) (allowing any party aggrieved by a final 

judgment to petition for review in the court of appeals). 
12

at trial, or on direct review. In so holding, we do not suggest 

that a defendant or his counsel cannot or should not bring 

attorney errors to the attention of the court in advance of 

trial or at trial. On the contrary, although trial judges 

cannot consider Donald-type relief in pretrial proceedings, a 

court may take other remedial steps, such as replacement of 

defense counsel, when confronted with evidence of deficient 

performance. See generally State v. Cromwell, 211 Ariz. 181, 

186-88 ¶¶ 27-37, 119 P.3d 448, 453-55 (2005) (discussing 

criteria for replacement of appointed counsel). Similarly, the 

State can act in response to evidence of ineffective assistance 

in plea negotiations to avoid any eventual prejudice. Thus, the 

State in this case is free to reinstate its previous plea 

offers. Indeed, such a course of action would moot any 

potential prejudice to Reynaga from original counsel’s 

performance and avoid future litigation over the appropriate 

remedy for any ineffective assistance of counsel. 

III. 

¶21 For the reasons above, we vacate the order of the 

superior court and the opinion of the court of appeals. We 

remand the case to the superior court for further proceedings 

consistent with this opinion. 

 _______________________________________

 Andrew D. Hurwitz, Justice
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CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

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Michael D. Ryan, Justice

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W. Scott Bales, Justice