State of Arizona v. Larry Dean Anderson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA
Respondent,

v.

LARRY DEAN ANDERSON
Petitioner.

No. CR-23-0008-PR
Filed May 2, 2024

Appeal from the Superior Court in Pima County
The Honorable James E. Marner, Judge
No. CR062244001
REVERSED AND REMANDED

Memorandum Decision of the Court of Appeals, Division Two
No. 2 CA-CR 2022-0121-PR
Filed December 8, 2022
VACATED

COUNSEL:

Laura Conover, Pima County Attorney, Brad Roach (argued), Deputy
County Attorney, Tucson, Attorneys for Pima County

Robert J. McWhirter (argued), Law Offices of Robert J. McWhirter, Tempe,
and Randal McDonald, Law Office of Randal B. McDonald, Phoenix,
Attorneys for Larry Dean Anderson

Rachel Mitchell, Maricopa County Attorney, Philip Daniel Garrow, Philip
Casey Grove, Johnny Jacquez, Deputy County Attorneys, Phoenix,
Attorneys for Amicus Curiae Maricopa County Attorney’s Office

Karen S. Smith, Arizona Justice Project, Phoenix, Attorneys for Amicus
Curiae Arizona Justice Project

STATE V. ANDERSON
Opinion of the Court

Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger, Assistant
Federal Public Defender, Attorneys for Amicus Curiae Federal Public
Defender for the District of Arizona

CHIEF JUSTICE BRUTINEL authored the Opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, and
KING joined. JUSTICE BEENE, joined by JUSTICE MONTGOMERY,
dissented.

CHIEF JUSTICE BRUTINEL, Opinion of the Court:

¶1 Larry Dean Anderson was convicted of conspiracy to commit
first-degree murder and sentenced to life in prison without the possibility
of release for twenty-five years. Anderson’s most recent post-conviction
relief (“PCR”) petition claims that his attorney erroneously advised him
that he was parole eligible, which caused him to reject an allegedly offered
plea agreement. We consider whether this claim for PCR based on
ineffective assistance of counsel (“IAC”) is either precluded or untimely.

¶2 Because of the pervasive confusion by both bench and bar
about parole availability after it was abolished in Arizona, we hold
Anderson’s PCR claim is neither untimely nor precluded and he is entitled
to an evidentiary hearing to determine whether he had been offered a plea
agreement before his trial.

I. BACKGROUND

¶3 In 1993, the Arizona Legislature revised the criminal code to
provide that an adult who commits a felony offense is generally ineligible
for parole. 1993 Ariz. Sess. Laws ch. 255, § 88 (1st Reg. Sess.); A.R.S.
§ 41-1604.09(I).

¶4 In 2000, a jury found Anderson guilty of conspiracy to commit
first-degree murder. At the sentencing hearing, the trial court ordered he
“be imprisoned for the term of life without possibility of release until the
service of at least 25 years.” The accompanying written order noted a
sentence of “life without the possibility of release on any basis until the
service of twenty-five years.”

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STATE V. ANDERSON
Opinion of the Court

¶5 In 2000 and 2003, Anderson filed petitions for PCR based on
unrelated claims of IAC. The trial court dismissed both petitions, and the
court of appeals denied relief on review.

¶6 In early 2022, Anderson brought this third IAC claim. He
alleged that while he was considering whether to accept a plea agreement
stipulating to a term of eighteen to twenty-two years in prison, his trial
counsel advised him that if he did not accept the plea agreement and was
found guilty at trial, parole would be available after he served twenty-five
years. Anderson claimed that he only recently learned he was not parole
eligible when he attempted to enroll in an educational program through the
Arizona Department of Corrections, Rehabilitation, and Reentry
(“ADCRR”).

¶7 Anderson offered limited evidence to the trial court to
support his latest petition. He attached an affidavit from his trial counsel,
Brick Storts, who declared that he could not remember a specific plea offer
but did not dispute a plea could have been offered for a sentence of eighteen
to twenty-two years. Storts also confirmed he advised Anderson that if he
lost at trial, he would receive a life sentence but would be eligible for parole
after serving twenty-five years. Storts, however, became Anderson’s
attorney only after the case was set for trial and previous attorneys
withdrew or were removed from the case. One of those attorneys had no
memory of the case, and the other was deceased. The Pima County
Attorney’s Office did not have a record of any plea offer.

¶8 After initially joining Anderson’s request for an evidentiary
hearing, the State filed a notice of withdrawal and a response to Anderson’s
petition, arguing it was precluded, untimely, and not colorable because a
plea offer never existed. It cited both the lack of reference to a plea
agreement in the record along with several notations in the pre-trial record
that the parties had been preparing for trial. The State also argued that a
plea agreement with an eighteen- to twenty-two-year sentence under the
terms Anderson alleged would have been incongruent with sentencing
statutes at the time.

¶9 In reply, Anderson cited several documents he alleged he
recovered recently from his original case file to support his assertions that
he had been misadvised as to his parole eligibility and that the State had
offered a plea. He attached personal letters to his attorneys and the mother

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STATE V. ANDERSON
Opinion of the Court

of his child, allegedly from the late 1990s and early 2010s, which referenced
a plea offer for a sentence between eighteen and twenty-two years and his
expectation that he would be eligible for parole after serving the
twenty-five-year sentence. Anderson also attached 2021 correspondence
with a correctional officer showing it took multiple inquiries for ADCRR to
advise him he was not in fact eligible for parole.

¶10 The trial court denied Anderson’s renewed request for an
evidentiary hearing and denied relief. It determined Anderson’s IAC claim
was not precluded or untimely, reasoning the ambiguity surrounding
parole availability excused his delay. But the trial court also determined
Anderson’s IAC claim was not colorable. In its view, Anderson’s counsel
did not fall below professional norms because criminal defense attorneys
during that time were consistently advising clients that parole was
available. It also found Anderson could not show prejudice because of the
unlikelihood the State would have offered a plea in view of the charges and
the lack of evidence of any offer in the court record.

¶11 The court of appeals denied relief. It determined Anderson’s
IAC claim was untimely and his delay unexcused. State v. Anderson, No. 2
CA-CR 2022-0121-PR, 2022 WL 17494588, at *1 ¶ 6 (Ariz. App. Dec. 8, 2022)
(mem. decision). It further held his claim was precluded because he failed
to raise it in his previous petitions for PCR. Id.

¶12 We granted review to consider whether Anderson’s IAC
claim is untimely and precluded and whether he presents a colorable claim.
We address these issues in view of the then-pervasive confusion about
parole availability in Arizona. We have jurisdiction under article 6, section
5(3) of the Arizona Constitution.

II. DISCUSSION

¶13 We review the interpretation of statutes and court rules as
well as constitutional issues de novo. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4
(2017); State v. Gutierrez, 229 Ariz. 573, 576 ¶ 19 (2012). We review a court’s
ruling on a petition for PCR, including a denial based on lack of a colorable
claim, for an abuse of discretion. Pandeli, 242 Ariz. at 180 ¶ 4; State v.
Amaral, 239 Ariz. 217, 219 ¶ 9 (2016); see also State v. Schrock, 149 Ariz. 433,
441 (1986).

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STATE V. ANDERSON
Opinion of the Court

¶14 Criminal defendants may file a timely notice requesting PCR
from their convictions and sentences. Ariz. R. Crim. P. 32.1. Grounds for
relief include that a conviction was obtained or a sentence imposed in
violation of the U.S. or Arizona Constitutions. Id. at 32.1(a). Defendants
have a constitutional right “to effective assistance of counsel.” State v.
Miller, 251 Ariz. 99, 102 ¶ 9 (2021) (quoting Strickland v. Washington, 466 U.S.
668, 686 (1984)). The dispositive issue here is whether Anderson’s
attorney’s erroneous advice excuses both Anderson’s delay and his failure
to raise that erroneous advice as an issue in prior PCR filings.

A. Timeliness

¶15 Generally, a defendant must file notice of a PCR claim under
Rule 32.1(a) within ninety days after the oral pronouncement of his
sentence. Ariz. R. Crim. P. 32.4(b)(3)(A). Rule 32.4(b)(3)(D) excuses
untimely notice “if the defendant adequately explains why the failure to
timely file a notice was not the defendant’s fault.” See also State v. Diaz, 236
Ariz. 361, 363 ¶ 13 (2014) (determining defendant did not waive an IAC
claim because failure to timely file his PCR petition was not his fault).

¶16 Anderson adequately explained the failure to file here. Before
trial, his attorney did not inform him the legislature had eliminated parole
and instead incorrectly advised him that, if found guilty, he would be
eligible for parole after twenty-five years. Anderson was not at fault for the
pervasive confusion about parole eligibility at the time of his sentencing.

¶17 His delay was not, as the court of appeals reasoned, the result
of a “mere failure to recognize a valid claim might exist.” Anderson, 2022
WL 17494588, at *1 ¶ 6. Appellate courts, including this Court, published
decisions as late as 2013 indicating parole was still available for those
convicted of felonies with the possibility of release after twenty-five years.
See, e.g., State v. Benson, 232 Ariz. 452, 465 ¶ 56 (2013) (“Arizona law does
not make [the defendant] ineligible for parole.”); State v. Cruz, 218 Ariz. 149,
160 ¶ 42 (2008) (“No state law would have prohibited [the defendant’s]
release on parole after serving twenty-five years, had he been given a life
sentence.”). As amicus Arizona Justice Project noted, trial courts since 1994
have interchangeably used the words “parole” and “release” when
imposing non-natural-life sentences. And ADCRR policies as recently as
2021 were unclear about whether inmates like Anderson who were
sentenced to other than natural life sentences were eligible for parole.

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STATE V. ANDERSON
Opinion of the Court

¶18 This Court determined in Chaparro v. Shinn, 248 Ariz. 138, 142
¶ 17 (2020), that “the meaning of ‘parole’ is not ambiguous or synonymous
with other forms of release.” Therefore, because Anderson’s sentence
provided for the possibility of release after twenty-five years, Arizona law
made him eligible for executive clemency or other forms of release after
twenty-five years but not eligible for parole.

¶19 The State and amicus Maricopa County Attorney’s Office
(“MCAO”) misplace their reliance on A.R.S. § 13-718 in addressing the
timeliness issue. Enacted in 2018, § 13-718 provided that, notwithstanding
the legislature’s previous elimination of parole, a defendant was parole-
eligible if his post-1993 plea agreement stipulated to parole eligibility. The
State and MCAO argue § 13-718’s enactment should have alerted Anderson
that parole was unavailable to him and, at the latest, he should have
pursued this claim in 2018. But § 13-718 provides relief to defendants who
were erroneously sentenced pursuant to a plea agreement amid the
pervasive confusion about parole eligibility. It does not apply to
Anderson’s sentence following his conviction at trial. Even if we presume
that Anderson was aware of § 13-718, it would not reasonably have placed
him on notice of his ineligibility for parole.

B. Preclusion

¶20 A defendant is precluded from PCR under Rule 32.1(a) based
on any ground “waived at trial or on appeal, or in any previous
post-conviction proceeding, except when the claim raises a violation of a
constitutional right that can only be waived knowingly, voluntarily, and
personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).

¶21 Our preclusion rules require a defendant to raise all known
claims for relief in a single petition to prevent endless trial-court reviews of
the same case. Diaz, 236 Ariz. at 363 ¶ 12. “The ground of ineffective
assistance of counsel cannot be raised repeatedly.” Stewart v. Smith, 202
Ariz. 446, 450 ¶ 12 (2002). Generally, “where ineffective assistance of
counsel claims are raised, or could have been raised, in a Rule 32
post-conviction relief proceeding, subsequent claims of ineffective
assistance will be deemed waived and precluded.” State v. Spreitz, 202 Ariz.
1, 2 ¶ 4 (2002) (emphasis omitted). This Court has rejected an approach to
Rule 32 proceedings that would create “a never-ending tunnel” in which
“defendants could endlessly litigate effectiveness of counsel by claiming

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STATE V. ANDERSON
Opinion of the Court

that their latest version . . . was not presented on earlier petitions due to
counsel’s inadequate representation.” State v. Mata, 185 Ariz. 319, 334
(1996).

¶22 But Rule 32 is also “designed to accommodate the unusual
situation where justice ran its course and yet went awry.” State v. Carriger, 143 Ariz. 142, 146 (1984) (citation omitted) (internal quotation marks
omitted). As this Court explained in Diaz, “PCR counsel can waive most
claims of trial error on the defendant’s behalf by failing to assert them in a
PCR petition. If the claim is of ‘sufficient constitutional magnitude,’
however, the state must prove that the defendant knowingly, voluntarily,
and intelligently waived the claim.” 236 Ariz. at 362 ¶ 8 (internal citation
omitted) (quoting Stewart, 202 Ariz. at 449–50 ¶¶ 9–10).

¶23 A waiver that would warrant preclusion under Rule 32 then
turns on “the particular right implicated by the allegedly ineffective
representation.” Id. ¶ 9. Although a defendant has the right to effective
assistance of counsel in deciding whether to take his chances at trial or to
accept a plea offer, State v. Nunez-Diaz, 247 Ariz. 1, 6 ¶ 21 (2019),
“defendants do not have a constitutional right to a plea bargain,” Diaz, 236
Ariz. at 362 ¶ 9. See also Lafler v. Cooper, 566 U.S. 156, 168 (2012).

¶24 In Diaz, this Court determined “unusual circumstances”
compelled the conclusion that a petitioner had not waived his IAC claim,
despite previous PCR petitions raising IAC claims. 236 Ariz. at 363 ¶ 10.
Diaz had filed two notices of PCR, but in each instance, the attorney failed
to file the petition, leading the trial court to dismiss the matter with
prejudice. Id. at 362 ¶¶ 3–4. When, at last, Diaz’s third attorney timely filed
the petition, the trial court denied it, reasoning the claim was precluded
because it had been waived and adjudicated on the merits in a prior PCR
proceeding. Id. ¶ 5. This Court held Diaz’s IAC claim was not waived
under Rule 32.2(a)(3) because “Diaz timely filed a notice of PCR seeking to
assert an IAC claim, and he was blameless regarding his former attorneys’
failures to file an initial PCR petition.” Id. at 363 ¶ 11. Noting that
preclusion requires defendants to “raise all known claims for relief in a
single petition” (emphasis added) (citation omitted), this Court reasoned
that “[p]ermitting Diaz to file his first petition to assert an IAC claim under
the circumstances here [would] not result in repeated review of the IAC
claim; it would result in its first review.” Id. ¶ 12; see also State v. Petty, 225
Ariz. 369, 373 ¶ 11 (App. 2010) (“The ‘purpose of the preclusion rule’ is to

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STATE V. ANDERSON
Opinion of the Court

‘require[] a defendant to raise all known claims for relief in a single petition
to the trial court, thereby avoiding piecemeal litigation and fostering
judicial efficiency.’” (alteration in original) (quoting State v. Rosales, 205
Ariz. 86, 90 ¶ 12 (App. 2003))).

¶25 This case also presents unusual, albeit different,
circumstances. Anderson filed previous petitions for PCR in 2000 and 2003.
At that time, defendants, attorneys, and courts did not know of or recognize
the error due to the confusion regarding the abolition of parole. Counsel’s
error here was less an issue of individual IAC as it was a systemic failure to
recognize the effect of the change in the law regarding parole. As a result
of those unusual circumstances, Anderson’s 2022 notice of IAC claim was
the first time he could have reasonably raised the issue of erroneous advice
about the availability of parole. Indeed, as amicus MCAO concedes, “it
would be inequitable to apply Rule 32.2(a)(3)’s preclusion bar to
Anderson’s parole-misadvice IAC claim where the late discovery of the
claim’s basis would have been excused.” For the same reasons Anderson’s
claim is not untimely, it was not cognizable as a “known” claim.

¶26 We do not, however, hold Rule 32.1(a)’s exception to the
preclusion rule applies broadly to IAC claims based on erroneous advice
surrounding plea agreements. Instead, Anderson’s claim represents an
extremely rare set of circumstances in the context of the pervasive confusion
about parole and the extraordinary remedies this Court and the legislature
fashioned to deal with it. See, e.g., Chaparro, 248 Ariz. at 142 ¶ 17 (holding a
defendant was eligible for parole despite its abolition because his final and
enforceable sentence provided for it); A.R.S. § 13-718. Moreover, we
determine Anderson’s claim is not precluded in view of our duty to
“construe [rules of criminal procedure] to secure . . . fairness in
administration . . . and to protect the fundamental rights of the individual
while preserving the public welfare.” Ariz. R. Crim. P. 1.2.

C. Colorability

¶27 “Effective assistance of counsel is just as necessary at the plea
bargaining stage as at trial.” State v. Anderson, 147 Ariz. 346, 350 (1985). “To
prove ineffective assistance of trial counsel, a petitioner must show both
deficient performance and prejudice.” State v. Donald, 198 Ariz. 406, 413
¶ 15 (App. 2000) (citing Strickland, 466 U.S. at 687). This Court has adopted
the two-pronged test in Strickland, 466 U.S. at 687, which determines

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STATE V. ANDERSON
Opinion of the Court

ineffective assistance based on (1) counsel’s deficient performance under all
the circumstances and (2) the reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. State v. Nash, 143 Ariz. 392, 397 (1985); see also Anderson, 147 Ariz.
at 351 (deciding whether counsel was ineffective and whether such
ineffectiveness warranted withdrawal of a plea); State v. Salazar, 146 Ariz.
540, 541–42 (1985) (deciding whether trial counsel was ineffective and
whether such ineffectiveness warranted a new trial).

¶28 The “two-part [IAC] standard [is] applicable to
ineffective-assistance claims arising out of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 57 (1985). Erroneous legal advice during plea
negotiations can constitute deficient performance. See Donald, 198 Ariz. at
412 ¶ 11 (“We agree with these courts in concluding that counsel’s failure
to provide competent advice to a criminal defendant concerning a plea offer
constitutes deficient performance.”); id. at 413 ¶ 16 (“To establish deficient
performance during plea negotiations, a petitioner must prove that the
lawyer either (1) gave erroneous advice or (2) failed to give information
necessary to allow the petitioner to make an informed decision whether to
accept the plea.”); see also Lafler, 566 U.S. at 162–63 (observing that “all
parties agree[d] the performance of respondent’s counsel was deficient”
where he incorrectly advised the defendant on a legal rule during plea
negotiations).

¶29 On the first Strickland prong, deficient performance is
determined based on whether counsel’s representation falls “below an
objective standard of reasonableness” based on the “practice and
expectations of the legal community.” Miller, 251 Ariz. at 102 ¶ 10 (internal
quotation mark omitted) (quoting Hinton v. Alabama, 571 U.S. 263, 272–73
(2014)). The point is not whether counsel erred but whether counsel’s errors
were so deficient as to provide ineffective assistance. See id.

¶30 In Miller, this Court concluded “a lawyer’s representation can
be unreasonable under prevailing professional norms even when the legal
community has uniformly made the same error.” Id. at 103 ¶ 14. Legal
community standards “may be valuable measures of the prevailing
professional norms of effective representation,” but they are not
“inexorable commands.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 367
(2010)).

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STATE V. ANDERSON
Opinion of the Court

¶31 Here, Anderson’s attorney’s performance was deficient under
Strickland because his error constituted incorrect advice on a significant
issue relating to Anderson’s potential sentence if convicted—even if other
attorneys were giving similarly incorrect advice at the time. Under the
circumstances of this case, Anderson’s attorney’s advice based on his failure
to realize parole had been abolished for the charged offense was a serious
error affecting Anderson’s ability to intelligently consider the alleged plea
offer.

¶32 Focused on prevailing professional norms, our dissenting
colleagues ignore what deficient advice meant under the circumstances of
this case—a failure to advise on a legal rule, which created serious error.
They assert a reluctance to “deviate beyond the framework set forth in
Strickland and its progeny,” infra ¶ 46, without addressing the key to that
framework: determining whether ineffective assistance was provided
based on what the law is. 1 See Padilla, 559 U.S. at 368–69 (concluding
counsel deficiently performed by advising a defendant to accept a plea
agreement where “the consequences of [defendant’s] plea could easily be
determined from reading the [relevant] statute...and his counsel’s advice
was incorrect.”) Moreover, they overlook the basis for this Court’s holding
in Miller. Miller notes that an attorney’s representation can be unreasonable

1 Citing Hinton, 571 U.S. at 274, our dissenting colleagues assert “there is
no indication that Anderson’s attorney failed to perform basic research”
regarding parole eligibility and thus he could not have unreasonably
performed under Strickland. Infra ¶¶ 40–41. But basic research would
ordinarily have included reading A.R.S. § 41-1604.09(I), which
unquestionably made Anderson ineligible for parole. Furthermore,
researching decisions published in the years before Anderson’s
sentence—which address parole eligibility more directly than this Court
did in State v. Wagner, 194 Ariz. 310, 313 ¶ 11 (1999)— would, at the very
least, cast doubt on eligibility. State v. Rosario, 195 Ariz. 264, 268 ¶ 26 (App.
1999) (“The Arizona [L]egislature enacted laws effective January 1, 1994,
eliminating the possibility of parole for crimes committed after that date.”);
State v. Jensen, 193 Ariz. 105, 108 ¶ 21 (App. 1998) (noting that § 41-1604.09
“provides for parole eligibility of persons incarcerated for felonies
committed before January 1, 1994”). But the prevailing confusion
surrounding parole would taint any attorney’s research at the time, see Part
II(A) ¶ 17, which is why the circumstances of this case are unique and why
this Court addresses them here.
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STATE V. ANDERSON
Opinion of the Court

under prevailing professional norms even when the legal community has
uniformly made the same error. 251 Ariz. at 104 ¶ 14. But, unlike this case,
the attorney’s performance in Miller was not serious error. See 251 Ariz.
at 103–04 ¶ 15.

¶33 To prove prejudice under the second Strickland prong, a
“defendant must ‘show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. at 104 ¶ 17 (quoting Strickland,
466 U.S. at 694). When a defendant receives erroneous advice, he can
“establish prejudice in the rejection of a plea offer” under the second part
of the Strickland test if he can show “a reasonable probability that, absent
his attorney’s deficient advice, he would have accepted the plea offer and
declined to go forward to trial.” Donald, 198 Ariz. at 414 ¶ 20 (citation
omitted) (internal quotation marks omitted); accord Lafler, 566 U.S. at 169.

¶34 In Rule 32 proceedings, a defendant states a colorable claim
entitling him to an evidentiary hearing when “he has alleged facts which, if
true, would probably have changed the verdict or sentence.” Amaral, 239
Ariz. at 220 ¶ 11; see also State v. Watton, 164 Ariz. 323, 328 (1990); Ariz. R.
Crim. P. 32.13(a) (“The defendant is entitled to a hearing to determine issues
of material fact . . . .”). “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.’” Watton, 164 Ariz. at 328 (quoting Schrock, 149
Ariz. at 441).

¶35 Here, Anderson has presented circumstantial evidence of a
plea agreement: the personal letters containing contemporaneous
references to a plea agreement. It is unclear from the record whether the
trial court had copies of these documents or had sufficient time to review
them. Whether Anderson can prove a plea offer was made and, if so, that
he would have taken it but for his attorney’s deficient advice, he has
presented enough evidence for us to conclude he should be given an
opportunity to establish the existence of an offered plea agreement at an
evidentiary hearing.

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STATE V. ANDERSON
Opinion of the Court

III. CONCLUSION

¶36 Anderson’s IAC claim is neither precluded nor untimely. We
vacate the court of appeals’ decision, vacate the trial court’s order, and
remand the case to the trial court for an evidentiary hearing.

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STATE V. ANDERSON
JUSTICE BEENE, joined by JUSTICE MONTGOMERY, Dissenting

BEENE, J., joined by MONTGOMERY, J., dissenting:

¶37 At the outset, we agree with the majority that Anderson’s
claims are neither untimely nor precluded. Supra Part II(A) & (B). We
disagree, however, with the majority’s analysis regarding the deficiency
prong in Strickland v. Washington, 466 U.S. 668, 687 (1984). Supra ¶¶ 29–32.
For that reason, we dissent.

¶38 The majority concludes that “Anderson’s attorney’s
performance was deficient under Strickland because his error constituted
incorrect advice on a significant issue relating to Anderson’s potential
sentence if convicted—even if other attorneys were giving similarly
incorrect advice at the time.” Supra ¶ 31. The majority, however, does not
explain how an attorney conforming to the prevailing professional norms
acted objectively unreasonably under the circumstances. Instead, the
majority labels the error as “a serious error affecting Anderson’s ability to
intelligently consider the alleged plea offer.” Supra ¶ 31. But there is no
explanation regarding what makes the trial counsel’s error “serious”
enough to fall “‘below an objective standard of reasonableness’ based on
the ‘practice and expectations of the legal community.’” Supra ¶ 29
(quoting State v. Miller, 251 Ariz. 99, 102 ¶ 10 (2021)).

¶39 If the “seriousness” of the error is that Anderson is subject to
a life term without parole rather than with parole, then that conclusion is
one of prejudice, not deficiency. See Strickland, 466 U.S. at 694 (noting the
prejudice prong of an IAC claim asks whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). And we are bound by the
Supreme Court’s interpretation of the Sixth Amendment and must
therefore keep Strickland’s two-prong analysis intact. See U.S. Const. art. VI;
State v. Soto-Fong, 250 Ariz. 1, 9 ¶ 32 (2020) (“This Court . . . is bound to
follow applicable holdings of United States Supreme Court decisions.”).

¶40 Alternatively, if the seriousness of the error is that Anderson
could not intelligently consider an alleged plea bargain, then the error is
one of performance. But when it comes to deficient performance, the
Supreme Court has consistently looked to prevailing professional norms to
ascertain what is objectively reasonable performance under the
circumstances. See, e.g., Strickland, 466 U.S. at 688 (“The proper measure of
attorney performance remains simply reasonableness under prevailing

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STATE V. ANDERSON
JUSTICE BEENE, joined by JUSTICE MONTGOMERY, Dissenting

professional norms.”); Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (finding
deficient performance where defense counsel did not warn client of
possible adverse immigration consequences stemming from a guilty plea,
reasoning that “[t]he weight of prevailing professional norms supports the
view that counsel must advise her client regarding the risk of deportation”).
Moreover, and critically here, deficiency is analyzed from an attorney’s
perspective. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” (emphasis added)). And under the Supreme Court’s deficiency
prong, “[a]n attorney’s ignorance of a point of law that is fundamental to
his case combined with his failure to perform basic research on that point is a
quintessential example of unreasonable performance under Strickland.”
Hinton v. Alabama, 571 U.S. 263, 274 (2014) (emphasis added).

¶41 Here, there is no indication that Anderson’s attorney failed to
perform basic research. The Arizona Legislature conveyed its 1993 parole
restrictions via a negative inference, not an affirmative statement. See A.R.S.
§ 41-1604.09(I) (1993) (“This section [describing parole eligibility and
classifications] applies only to persons who commit felonies before January
1, 1994.”). And this negative inference may only be found in Title 41, rather
than Title 13—which contains Arizona’s criminal code. Though Anderson’s
attorney may have been ignorant of the fact that the legislature had
obliquely abolished parole through Title 41 rather than Title 13, there is no
suggestion he failed to “perform basic research on that point.” In fact, had
Anderson’s attorney researched the punishment for first degree murder, he
would have reasonably concluded that his client was eligible for parole. In
State v. Wagner, 194 Ariz. 310, 313 ¶ 11 (1999), published by this Court the
year before Anderson’s sentence—and five years after the legislature
abolished parole—we unequivocally concluded that

Arizona’s [first degree murder sentencing] statute . . . states
with clarity that the punishment for committing first degree
murder is either death, natural life, or life in prison with the
possibility of parole. Thus, a person of ordinary intelligence can
easily determine the range of punishment he or she faces for
committing first degree murder.

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STATE V. ANDERSON
JUSTICE BEENE, joined by JUSTICE MONTGOMERY, Dissenting

(Emphasis added.) 2

¶42 At bottom, this case does not present an “inexcusable mistake
of law” as defined in Strickland. See Hinton, 571 U.S. at 275. To be sure, in
Miller, this Court wrote that “[w]e are not averse to Miller’s argument that
a lawyer’s representation can be unreasonable under prevailing
professional norms even when the legal community has uniformly made
the same error.” 251 Ariz. at 103 ¶ 14. Similarly, the Supreme Court noted
in Padilla that prevailing professional norms—in the form of guides such as
ABA standards—are “not ‘inexorable commands.’” 559 U.S. at 367
(quoting Bobby v. Van Hook, 558 U.S. 4, 8 (2009)). But neither we nor the
Supreme Court have explained how adhering to prevailing professional
norms could be objectively unreasonable. Cf. Miller, 251 Ariz. at 103 ¶ 14;
Padilla, 559 U.S. at 367. And even if this Court wishes to expand on the
deficiency prong, it may only do so within the confines of Supreme Court
Sixth Amendment jurisprudence or within the confines of our own
constitution—and no party properly presented a state constitutional claim
here. See Ariz. Const. art. 2, § 24.

¶43 Here, this means that even if the trial court finds a plea offer
existed, it would still need to find that Anderson’s trial attorney made an
inexcusable mistake of law. Under binding federal precedent, a legal
mistake is only inexcusable if it violated prevailing professional norms and
was unreasonable under the circumstances at the time. Miller, which the
majority relies on, is instructive. In Miller, we held that a failure to object to
an incorrect jury instruction “widely used by the legal community at the
time of trial and appeal” did not constitute deficient performance. 251 Ariz.
at 101 ¶ 1, 104 ¶ 16. The jury instruction in question was from the Revised
Arizona Jury Instructions (the “RAJI”) for death penalty sentencing
statutory mitigators. Id. at 101 ¶ 3. Miller’s attorney failed to object to
language within the RAJI that may have led to the instruction being more
strictly construed against Miller. Id. at 103 ¶ 11.

2 Despite the contrary decisions the majority cites, supra ¶ 32 n.1, an
intermediate appellate court’s contradictory statement does not control
over a supreme court’s pronouncements. The above-quoted language in
Wagner engenders no uncertainty, and we see no reason why it would lead
an attorney to rely on intermediate appellate decisions.
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STATE V. ANDERSON
JUSTICE BEENE, joined by JUSTICE MONTGOMERY, Dissenting

¶44 In holding that Miller’s attorney’s performance was not
deficient in failing to object, the Court noted that “Miller’s lawyers acted
within prevailing professional norms.” Id. ¶ 13. The Court reasoned that
the RAJI “was created by the State Bar of Arizona Criminal Jury Instruction
Committee, which is comprised of judicial officers, defense lawyers, and
prosecutors.” Id. Moreover, the Court reasoned that in Miller’s case, “the
trial judge, not the parties, introduced the RAJI, thus lending it additional
credibility.” Id. Further, Miller did not present any evidence to the PCR
court “suggesting that the criminal defense attorney community had
questioned the RAJI at the time of Miller’s trial and appeal.” Id. at 104 ¶ 16.

¶45 Like in Miller, Anderson’s defense attorney was operating
within prevailing professional norms when he advised Anderson that he
was eligible for parole, and thus it was not unreasonable under the
circumstances. Although Anderson’s attorney was not following
inaccurate State Bar guidance, as was the case in Miller, he was nevertheless
following the professional norm perpetuated by “judicial officers, defense
lawyers, and prosecutors.” See id. at 103 ¶ 13. Indeed, as the PCR court
noted, the evidence that Anderson did present for his PCR—the affidavit
from his trial counsel—lends credence to the notion that the prevailing
norm was a belief that parole was still in existence.

¶46 In short, until the Supreme Court speaks on what makes an
attorney’s adherence to the prevailing professional norms objectively
unreasonable under the federal constitution—or a state constitutional claim
is properly before us—we are unable to deviate beyond the framework set
forth in Strickland and its progeny. For the foregoing reason, and with the
utmost respect for our colleagues, we dissent.

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