Ineffective Assistance of Counsel In Plea Bargain Negotiations

To establish deficient performance during plea negotiations, a petitioner must prove that the lawyer either: (1) gave erroneous advice (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea. See, e.g., Hill, 474 U.S. at 58; State v. Bowers, 192 Ariz. 419, 422, PP 12-13, 966 P.2d 1023, 1026 (App. 1998); Toro, 940 F.2d at 1067-68; Day, 969 F.2d at 42; Alvernaz, 830 P.2d at 755. This case presents a claim of the second sort. To achieve a hearing on such a claim, a defendant must present more than a conclusory assertion that counsel failed to adequately communicate the plea offer or the consequences of conviction. A petitioner need not provide detailed evidence, but must provide specific factual allegations that, if true, would entitle him to relief. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980) (citing Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969)). Further, a defendant should support such allegations by sworn statements or provide a satisfactory explanation of their absence. In questions of post-conviction relief, however, "when doubts exist, 'a hearing should be held to allow the defendant to raise the relevant issues, to resolve the matter, and to make a record for review.'" See Watton, 164 Ariz. at 328, 793 P.2d at 85 (quoting Schrock, 149 Ariz. at 441, 719 P.2d at 1057). The United States Supreme Court has indicated that specific performance of a plea agreement is a constitutionally permissible remedy. See Mabry v. X, 467 U.S. 504, 510 n.11, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984); Santobello v. New York, 404 U.S. 257, 263, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). Indeed some courts hold that the most appropriate remedy is to order the prosecution to reinstate the plea offer, effectively restoring the defendant to the position he or she would have occupied but for the deficient performance of counsel. See Lewandowski, 949 F.2d at 889; Williams, 605 A.2d at 110-11. In a series of cases beginning with Hancock, the Arizona courts have repeated and refined a group of factors to be considered in reviewing a claim that an act by one department would usurp the powers of another. These factors, our supreme court has commented, "provide the necessary flexibility yet still maintain the goal of the separation of powers doctrine." San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 211, 972 P.2d 179, 195 (1999). The four factors to be considered are: (1) the essential nature of the power exercised; (2) the . . . degree of control that one branch assumes in exercising the power of another; (3) the . . . objective of the exercise; (4) the practical consequences of the action." Id. (citing Block, 189 Ariz. at 276, 942 P.2d at 435); see also Citizens Clean Elections Comm'n v. Myers, 196 Ariz. 516, 523-24, P30, 1 P.3d 706, 713-14 (2000); Hancock, 142 Ariz. at 405-06, 690 P.2d at 124-25. We apply this four-step analysis to the question whether a court, without violating separation of powers, may order the prosecution to reinstate a plea offer if the court finds reinstatement necessary to remedy a deprivation of effective counsel. We begin by considering the essential nature of the power to be exercised. Here, however, there is not one essential power but two: the first is the power of the prosecutor to decide whether to plea bargain and on what terms; the second is the power of the courts to fashion a remedy for a constitutional deprivation. The narrow question is whether a court may impinge upon the first power if necessary to accomplish the second. Discretion over plea bargaining is a core prosecutorial power, but not one without constraints. It is well established, for example, that the courts may intervene to reinstate a plea offer that the State has withdrawn for vindictive reasons. See Turner v. Tennessee, 940 F.2d 1000 (6th Cir. 1991); see also State v. Martin, 139 Ariz. 466, 481, 679 P.2d 489, 504 (1984) (prosecutor may refuse to plea bargain for reasons of policy but not out of animus).