State of Arizona v. Michael Eugene Traverso

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Respondent,

v.

MICHAEL EUGENE TRAVERSO,
Petitioner.

No. CR-23-0264-PR
Filed September 23, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Katherine Cooper, Judge
No. CR2006-160536-001
AFFIRMED

Opinion of the Court of Appeals, Division One
256 Ariz. 278 (App. 2023)
VACATED IN PART AND REMANDED

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Philip D. Garrow (argued),
Deputy County Attorney, Appeals Bureau Chief, Phoenix, Attorneys for
State of Arizona

Lori L. Voepel, Beus O’Connor McGroder, PLLC, Phoenix; and Randal
McDonald (argued), Law Office of Randal B. McDonald, Phoenix,
Attorneys for Michael Eugene Traverso

Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger, Assistant
Federal Public Defender, Phoenix, Attorneys for Amici Curiae Arizona
Attorneys for Criminal Justice and the Federal Public Defender for the
District of Arizona
 STATE V. TRAVERSO
Opinion of the Court

JUSTICE MONTGOMERY authored the Opinion of the Court, in which
CHIEF JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES
BOLICK, BEENE, KING, and PELANDER (Retired) joined. *

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 Criminal defendants convicted and sentenced after a trial
may file a notice requesting post-conviction relief (“PCR”) under Arizona
Rule of Criminal Procedure 32.1. A defendant who requests relief based on
an ineffective assistance of counsel (“IAC”) claim must specifically proceed
under Rule 32.1(a), which permits relief if “the defendant’s conviction was
obtained, or the sentence was imposed, in violation of the United States or
Arizona constitutions.” See Ariz. R. Crim. P. 32.1(a) cmt. to 2020
amendment (“This provision encompasses most traditional post-conviction
claims, such as the denial of counsel, incompetent or ineffective counsel, or
violations of other rights based on the United States or Arizona
constitutions.”); 1 State v. Goldin, 239 Ariz. 12, 16 ¶ 14 (App. 2015) (“IAC
claims fall under Rule 32.1(a).”).

¶2 Nonetheless, “[a] defendant is precluded from relief under
Rule 32.1(a) based on any ground . . . waived . . . 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). Additionally, a
defendant who fails to file a notice for relief under Rule 32.1(a) within the
time required must provide an adequate explanation for why the failure
was not the defendant’s fault. Ariz. R. Crim. P. 32.4(b)(3)(D).

¶3 In this case, we must determine whether a defendant who
alleged an IAC claim in a previous PCR proceeding is precluded,
automatically or otherwise, from raising a different IAC claim in a
successive PCR petition. To make this determination, we must further

* With the retirement of Justice Robert M. Brutinel, pursuant to article 6,
section 3 of the Arizona Constitution, Justice John Pelander (Retired) of the
Arizona Supreme Court was designated to sit in this matter.
1 Relatedly, we note that “[a]lthough a comment may clarify a rule’s

ambiguous language, a comment cannot otherwise alter the clear text of a
rule.” State v. Aguilar, 209 Ariz. 40, 48 ¶ 26 (2004).
2
 STATE V. TRAVERSO
Opinion of the Court

decide whether an IAC claim based on trial counsel’s near total failure to
communicate a plea offer implicates “a constitutional right that can only be
waived [in a notice of PCR] knowingly, voluntarily, and personally by the
defendant.” Ariz. R. Crim. P. 32.2(a)(3). Finally, we consider whether the
facts of this case excuse an untimely notice of PCR.

¶4 For the reasons set forth below, we hold that a successive IAC
claim based on a defense counsel’s woefully inadequate communication of
a plea offer under the circumstances present here implicates a constitutional
right of great magnitude—the right to plead guilty and waive a jury trial.
Thus, a defendant must knowingly, voluntarily, and personally waive such
an IAC claim in a prior notice of PCR for preclusion under Rule 32.2(a)(3).
We further hold that the defendant here adequately explained why the
untimely PCR notice was not his fault as required by Rule 32.4(b)(3)(D).

FACTUAL AND PROCEDURAL BACKGROUND

¶5 In 2006, Michael Traverso was indicted on six counts of sexual
conduct with a minor and one count of “public sexual indecency to a
minor.” On three separate occasions before trial, the State communicated a
plea offer to Traverso’s trial counsel that provided for a maximum sentence
of 27 years. But Traverso’s counsel did not tell him about the offer until
immediately before a pre-trial release hearing, the day before the offer was
set to expire. Before the hearing, Traverso’s counsel told him that the plea
offer was for 13 to 27 years. He did not advise Traverso that, if convicted,
his sentences would be consecutive, meaning Traverso faced up to 163.5
years in prison. 2 Instead, Traverso’s trial counsel merely told him that the
offer was “outrageous.”

¶6 During the pre-trial release hearing, the judge asked about
plea negotiations. The prosecutor explained that the State had made an
offer but believed Traverso had rejected it because the prosecutor had not
heard back from Traverso’s counsel. At the prosecutor’s request, the judge
provided a Donald advisement to inform Traverso of his potential

2 The parties refer to various numbers for Traverso’s maximum possible
sentence. Based on the information provided by the prosecutor, Traverso’s
maximum sentence was 163.5 years.
3
 STATE V. TRAVERSO
Opinion of the Court

sentencing range and the terms of the plea offer. 3 The prosecutor explained
that the six counts of sexual conduct with a minor each carried a sentencing
range of 13 to 27 years and that Traverso’s sentences for each count would
run consecutively, meaning his sentence, if convicted of all six counts,
would be “basically 13 times six, up to 27 times six.” The prosecutor further
explained that the single count of public sexual indecency to a minor carried
a presumptive sentence of 1.5 years, which would also be served
consecutively. The prosecutor then stated that the plea offer involved
stipulating to a sentence between 13 and 27 years, serving lifetime
probation following release, and paying any restitution owed to the victim.

¶7 After the prosecutor explained the potential sentencing
consequences after a trial and reviewed the plea offer terms, the judge asked
Traverso whether he: (1) heard what the plea agreement provided;
(2) understood the penalties he would face if convicted at trial; and
(3) understood the penalties he would face under the plea agreement.
Traverso answered each question in the affirmative. The judge then said
his understanding was that Traverso “d[id] not want to accept the plea,” to
which Traverso responded “[a]bsolutely not.” Traverso then said: “I’m
innocent.” The court found Traverso had “knowingly, intelligently and
voluntarily rejected the State’s plea offer.”

¶8 On the first day of trial, approximately three months later,
Traverso asked defense counsel how much prison time he would receive if
convicted. Traverso related being “completely shocked” to learn the total
possible sentence, because his counsel had never discussed the applicable
sentences with him and had not explained anything about mandatory or
consecutive sentencing. Traverso had “learn[ed] about mandatory
sentencing . . . a few days before trial from another jail inmate.”

3 In State v. Donald, 198 Ariz. 406, 413 ¶ 14 (App. 2000), the court of appeals

acknowledged that “once the State engages in plea bargaining, the
defendant has a Sixth Amendment right to be adequately informed of the
consequences before deciding whether to accept or reject the offer.”
Following Donald, prosecutors commonly recite the terms of a plea offer on
the record before its expiration. Trial courts also ask if a defendant
understands the consequences of pleading guilty and the potential sentence
if convicted at trial.
4
 STATE V. TRAVERSO
Opinion of the Court

¶9 Upon hearing about the potential sentences he faced if
convicted, Traverso “started thumbing through [his defense counsel’s]
three-ring binder,” in which he found a copy of the plea offer he had
rejected at the earlier release hearing. Traverso asked his counsel if he could
still accept the plea offer and “immediately signed it.” Defense counsel and
the prosecutor then approached the bench to speak with the judge and the
three went back into the judge’s chambers. Traverso “assumed” this was
“for the purpose of discussing [his] desire to accept the plea offer.” An
in-chambers discussion took place off the record. 4 When defense counsel
returned, he informed Traverso that “there was no longer a plea on the
table.”

¶10 Following trial, the jury found Traverso guilty on all counts.
The trial court sentenced him to 79.5 years—the minimum 13-year term on
all six counts of sexual conduct with a minor and the presumptive 1.5-year
term on the indecency count, with all seven sentences to run consecutively.
The court of appeals affirmed the convictions and sentences on direct
appeal. State v. Traverso, No. 1 CA-CR 07-0533, 2008 WL 4990566, at *1 ¶ 1
(Ariz. App. Nov. 20, 2008) (mem. decision).

¶11 Traverso then timely filed his first PCR notice based on IAC,
among other claims, in 2009. However, despite Traverso discussing the
plea offer issues with PCR counsel, she did not consider them as
meritorious as the bases for his other claims and did not present them as a
separate IAC claim for relief. Accordingly, the notice and the filed petition
only mentioned the plea offer in passing. Traverso later said that “at the
time, [he] believed everything she said.” The superior court summarily
denied Traverso’s first PCR petition, and both the court of appeals and this
Court denied review. Traverso then unsuccessfully sought habeas corpus
relief in federal court.

¶12 In 2020, Traverso filed a notice of successive PCR and, in the

4 At a minimum, trial courts should summarize for the record any
off-the-record discussions concerning plea negotiations to facilitate
appellate review, which can take place years later.
5
 STATE V. TRAVERSO
Opinion of the Court

petition at issue here, asserted an IAC claim concerning the plea offer.5
Traverso argued this IAC claim was not precluded because he did not
personally waive it in the prior PCR proceeding. As asserted by Traverso,
despite his knowledge of and desire to raise the claim in his first PCR
proceeding, he “deferred to his initial PCR counsel” and “did not
understand the concept of waiver in post-conviction proceedings.” In
contrast, the State argued that, because Traverso had raised IAC claims in
his initial PCR proceeding, any successive IAC claims were waived under
Rule 32.2(a)(3). The State further argued that this Court’s decision in
Stewart v. Smith, 202 Ariz. 446 (2002), required automatic preclusion of
Traverso’s successive IAC claim.

¶13 With respect to the timeliness of his successive PCR, Traverso
acknowledged that his petition was untimely. Nonetheless, he argued that
he was not at fault for the delay because his prior PCR counsel did not raise
the IAC claim in the initial PCR petition. The State contended that
Traverso’s proffered explanation did not excuse the petition’s untimeliness.

¶14 The superior court concluded Traverso’s successive IAC
claim was not precluded, rejecting the State’s argument that both Stewart
and Rule 32.2(a)(3) required automatic preclusion. The court found that
“the right to aid of counsel in determining a plea” was “a constitutional
right that can only be waived knowingly, voluntarily, and personally by the
defendant,” and Traverso had not waived it. Thus, the court found that
Traverso’s claim fell within Rule 32.2(a)(3)’s exception.

¶15 The court also found Traverso’s claim was not untimely
because he adequately explained that the delay was due to the extensive
litigation of his initial PCR and federal habeas corpus proceedings, which
concluded roughly two years before his successive PCR petition. And the
court further noted the amount of time it took for current PCR counsel to
review and evaluate the record of state and federal proceedings, consult
with experts, and then prepare the petition.

5 Traverso also filed a notice of actual innocence under Rule 32.1(h), which
the superior court denied. He subsequently filed a cross-petition for review
of the denial with the court of appeals, which granted review but denied
relief. That claim is not before us.
6
 STATE V. TRAVERSO
Opinion of the Court

¶16 At the evidentiary hearing subsequently ordered by the
superior court, Traverso stated that he told his initial PCR counsel
“everything [he] thought was worth putting in” the petition. However, his
first “PCR counsel did not include these claims in the initial petition
because she decided to focus on other deficiencies of trial counsel.” In
Traverso’s words, she said “[w]e don’t need all that . . . [b]ecause what [the
prosecutor] did should get you right back in court.” Following the
evidentiary hearing, the court granted Traverso’s petition for relief given
his counsel’s “failure to communicate the plea offer and to advise
Traverso . . . about it.” The court further ordered his conviction set aside
and required the State to re-offer the plea agreement.

¶17 The State petitioned for review, and the court of appeals, in a
divided opinion, held the superior court had abused its discretion by
finding Traverso’s claim was not precluded. State v. Traverso, 256 Ariz. 278,
286 ¶ 41 (App. 2023), as amended (Sept. 27, 2023). The court determined that
Stewart required automatic preclusion of Traverso’s successive IAC claim.
Id. at 281–82 ¶¶ 12–13. Alternatively, the court found that the claim would
nonetheless be precluded pursuant to State v. Diaz, 236 Ariz. 361 (2014). Id.
at 282 ¶ 16. In particular, the court found that Traverso’s claim did not raise
a constitutional right that could only be waived knowingly, voluntarily,
and personally by Traverso given that “defendants do not have a
constitutional right to a plea bargain.” Id. (quoting Diaz, 236 Ariz. at 362
¶ 9). Because the court resolved the claim on preclusion grounds, it did not
address timeliness. Id. at 283 ¶ 23.

¶18 Traverso petitioned this Court to review whether his
successive IAC claim is subject to preclusion, which we granted. In our
discretion, we also undertook review of whether his successive PCR notice
was timely in the event his IAC claim is not precluded. Issues of preclusion
and timeliness under Rule 32 are recurring issues of statewide importance.
We have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.

I. DISCUSSION

¶19 We will not disturb a PCR court’s ruling on a PCR petition
absent a clear abuse of discretion, State v. Anderson, 257 Ariz. 226, 230 ¶ 13
(2024), and we “examine a PCR court’s findings of fact to determine if they
are clearly erroneous,” State v. Pandeli, 242 Ariz. 175, 180 ¶ 3 (2017). An

7
 STATE V. TRAVERSO
Opinion of the Court

“erroneous ruling on a question of law, such as whether a post-conviction
claim is or is not precluded, constitutes an abuse of discretion.” State v.
Swoopes, 216 Ariz. 390, 393 ¶ 4 (App. 2007).

A. Preclusion Of Successive IAC Claims Under Rule 32.2(a)(3)

¶20 Traverso argues that his IAC claim is not precluded because
it falls within the exception provided by Rule 32.2(a)(3) in that it “raises a
violation of a constitutional right that can only be waived knowingly,
voluntarily, and personally by the defendant.” Specifically, Traverso
claims that because his counsel failed to advise him of the State’s offer, he
did not receive effective assistance of counsel in determining whether to
accept a plea offer and plead guilty. Therefore, Traverso asserts that the
right in question is of sufficient constitutional magnitude to require
personal waiver of his claim in a previous notice of PCR.

¶21 Both the State and the court of appeals relied on Stewart and
Diaz to conclude that Traverso’s successive IAC claim is subject to
automatic or per se preclusion or, in the alternative, did not implicate a
constitutional right requiring personal waiver. Because Stewart and Diaz
predated amendments to Rule 32 effective in 2020, we first consider them
in the context of the current text of Rule 32.2(a)(3), which applies to
Traverso’s claim.

1. Automatic preclusion

¶22 In Stewart, this Court considered a certified question from the
United States Supreme Court arising from a comment to the version of Rule
32.2(a)(3) then in effect:

At the time of respondent’s third Rule 32 petition in 1995, did
the question whether an asserted claim was of “sufficient
constitutional magnitude” to require a knowing, voluntary
and intelligent waiver for purposes of Rule 32.2(a)(3) depend
upon the merits of the particular claim or merely upon the
particular right alleged to have been violated?

202 Ariz. at 447 ¶ 1 (internal citations omitted).

8
 STATE V. TRAVERSO
Opinion of the Court

¶23 The comment provided that certain issues could be “deemed
waived without considering the defendant’s personal knowledge, unless
such knowledge is specifically required to waive the constitutional right
involved. If an asserted claim is of sufficient constitutional magnitude, the
state must show that the defendant ‘knowingly, voluntarily and
intelligently’ waived the claim.” Ariz. R. Crim. P. 32.2 cmt. to 1995
amendment. This Court had yet to address the comment, and different
panels of the court of appeals had issued inconsistent opinions concerning
the appropriate analysis for determining whether a personal waiver was
required. Compare State v. Espinosa, 200 Ariz. 503, 505 ¶¶ 7–8 (App. 2001)
(analyzing the rights allegedly violated), with State v. Curtis, 185 Ariz. 112,
115 (App. 1995) (analyzing the gravity of the alleged error without regard
to the particular constitutional right allegedly violated), and State v. French, 198 Ariz. 119, 121 ¶ 5 (App. 2000) (same).

¶24 This Court’s answer to the certified question stated that
“whether an asserted ground is of ‘sufficient constitutional magnitude’ to
require a knowing, voluntary and intelligent waiver for purposes of Rule
32.2(a)(3) does not depend upon the merits of the particular ground. It
depends merely upon the particular right alleged to have been violated.”
Stewart, 202 Ariz. at 450 ¶ 10 (internal citation omitted).

¶25 As cited by Traverso, 256 Ariz. at 281 ¶ 10, the final paragraph
of Stewart further states:

With some petitions, the [superior] court need not examine
the facts. For example, if a petitioner asserts ineffective assistance
of counsel at sentencing, and, in a later petition, asserts ineffective
assistance of counsel at trial, preclusion is required without
examining facts. The ground of ineffective assistance of counsel
cannot be raised repeatedly. There is a strong policy against
piecemeal litigation. See State v. Spreitz, 202 Ariz. 1 (2002).

Stewart, 202 Ariz. at 450 ¶ 12 (emphasis added). 6 Despite acknowledging
that the language in question was unnecessary for this Court’s decision, the
court of appeals nonetheless concluded “that the best reading of the

6 Spreitz’s prohibition against “piecemeal litigation,” however, was
discussed in the context of ending the practice of raising IAC claims via
direct appeal. 202 Ariz. at 2 ¶ 7, 3 ¶ 9. That practice no longer occurs.
9
 STATE V. TRAVERSO
Opinion of the Court

language is that the court intended to provide an exception to the rule it
established.” Traverso, 256 Ariz. at 281 ¶ 11. And this Court’s use of the
word “required” in Stewart further supported the conclusion that
successive IAC claims are subject to automatic or per se preclusion. Id.

¶26 However, the court did not consider changes to Rule 32
following Stewart. In 2018, this Court established a Rule 32 Task Force
(“Task Force”) to review the PCR process. In re Establishment of the Task
Force on Rule 32 of the Arizona Rules of Criminal Procedure and Appointment of
Members, Admin. Order No. 2018-07 (2018). The resulting changes to
Arizona’s PCR rules call into question the validity of the language in Stewart
regarding the automatic preclusion of successive IAC claims.

¶27 The Task Force, created by administrative order of this Court,
was charged with “identify[ing] possible substantive changes that improve
upon the objectives of Rule 32 and the post-conviction relief process.” Id.
Part of the rationale behind creating the Task Force, though not explicitly
referenced in the administrative order, was the need to address ongoing
confusion around Arizona’s preclusion rules. See, e.g., Spreitz, 202 Ariz. at 3
¶ 8 (“Admittedly, Rule 32 waters have become murky.”). We ultimately
approved the Task Force’s proposed amendments to Rule 32, which took
effect beginning January 1, 2020. See In re Rule 32, Rules of Criminal
Procedure, Order No. R-19-0012 (2020).

¶28 Notably, amendments to Rule 32.2(a)(3) explicitly
incorporated the language from the comment to the earlier version. The
Rule’s plain language now instructs courts that defendants are precluded
from relief for grounds waived in prior proceedings unless “the claim raises
a violation of a constitutional right that can only be waived knowingly,
voluntarily, and personally by the defendant.” Significantly, the
amendment did not include Stewart’s automatic preclusion language.

¶29 Applying Stewart’s automatic preclusion for successive IAC
claims in conjunction with Rule 32.2(a)(3) would require this Court to
ignore the plain text of the only exception provided by the Rule. See State
v. Greene, 255 Ariz. 37, 57 ¶ 76 (2023) (stating that “[w]e interpret court rules
according to the principles of statutory construction” and therefore “we
‘interpret rules of procedure by their plain meaning’” (first quoting Phillips
v. O’Neil, 243 Ariz. 299, 301 ¶ 8 (2017); and then quoting State v. Tillmon, 222
Ariz. 452, 454 ¶ 8 (App. 2009))). And nothing in the text of Rule 32.2
10
 STATE V. TRAVERSO
Opinion of the Court

supports treating successive IAC claims differently from other claims
brought under Rule 32.1(a) for preclusion purposes. To put it plainly,
applying Stewart’s preclusion requirement would require us to rewrite the
Rule. We decline to do so. See, e.g., Mussi v. Hobbs, 255 Ariz. 395, 402 ¶ 34
(2023) (declining to expand requirements of a statute).

¶30 Furthermore, the language in paragraph 12 of Stewart
requiring automatic preclusion of successive IAC claims is inconsistent
with the express holding of Stewart and was irrelevant to answering the
certified question before the Court. Moreover, there would have been no
reason for us to later examine the facts underlying a successive IAC claim
in Diaz and Anderson if we had adopted Stewart’s automatic preclusion
premise. See Diaz, 236 Ariz. at 363 ¶¶ 10–13 (resolving successive IAC claim
without reference to Stewart’s automatic preclusion language); Anderson,
257 Ariz. at 231–33 ¶¶ 20–26 (same). We therefore disavow the preclusion
language in paragraph 12 of Stewart. Accordingly, the PCR court correctly
found that Stewart did not automatically preclude Traverso’s successive
IAC claim. We thus now turn to whether his claim implicates a
constitutional right requiring a knowing, voluntary, and personal waiver
and consider the relevance of Diaz. 7

2. Preclusion and nature of rights requiring a knowing, voluntary, and
personal waiver

¶31 Traverso described the right implicated by his IAC claim as
“the right to be effectively counseled once the State offers a plea,” and
argued this right required his personal waiver in the initial PCR. The State,
in reliance on Diaz, argued that because a defendant does not have a right
to a plea offer, Traverso’s claim did not involve a right that requires a
personal waiver in a notice of PCR.

¶32 The court of appeals, also relying on Diaz, disagreed with
Traverso. The court explained that “every IAC claim necessarily alleges a
violation of the right to effective counsel and our supreme court has
repeatedly held that whether the defendant’s personal waiver is required
for an IAC claim to be precluded turns on the right affected by counsel’s

7 We note that the Task Force also discussed Diaz as part of its work. In re
Rule 32, Rules of Criminal Procedure, No. R-19-0012, App. 1, Issues considered
by the Task Force.
11
 STATE V. TRAVERSO
Opinion of the Court

performance, not the general allegation of ineffective counsel.” Traverso,
256 Ariz. at 282 ¶ 15. The court then noted that Traverso and the defendant
in Diaz alleged violations of a substantially identical right to effective
assistance of counsel in deciding whether to accept or reject a plea offer. Id.
¶ 16. Further citing to Diaz, the court concluded that the right in question
was indistinguishable from the general right to effective assistance of
counsel and noted this Court’s statement in Diaz that defendants do not
have the “right to a plea bargain.” Id.

¶33 The defendant in Diaz twice timely filed the required notice
of PCR, raising an IAC claim. Yet, in each instance, his assigned PCR
counsel failed to timely file a PCR petition, leading the court to dismiss each
matter with prejudice. Diaz, 236 Ariz. at 362 ¶¶ 3–4. Only after the
defendant filed his third notice of PCR did his assigned PCR counsel timely
file the petition, “which alleged that trial counsel’s ineffective assistance led
[the defendant] to reject the State’s plea offers and proceed to trial.” Id. ¶ 5.
The PCR court summarily dismissed the petition under Rule 32.2(a)(3)
because the defendant’s IAC “claim had been both waived and finally
adjudicated on the merits in [the] prior PCR proceeding[s].” Id. The court
of appeals affirmed. Id.

¶34 This Court granted review to consider the waiver issue. Id.
¶ 6. Citing Stewart, we explained that “PCR counsel can waive most claims
of trial error on the defendant’s behalf by failing to assert them in a PCR
petition” unless the claim is of “sufficient constitutional magnitude,” in
which case “the state must prove that the defendant knowingly,
voluntarily, and intelligently waived the [PCR] claim.” 8 Id. ¶ 8 (citing
Stewart, 202 Ariz. at 449–50 ¶¶ 9–10). Thus, “[w]hether a defendant must
personally waive an IAC claim to warrant preclusion under Rule 32.2(a)(3)
depends on the particular right implicated by the allegedly ineffective
representation.” Id. ¶ 9 (citing Stewart, 202 Ariz. at 450 ¶ 12). And a
“defendant must personally waive an IAC claim only if [PCR counsel’s]
alleged defective performance affected a right of sufficient constitutional
magnitude.” Id. Relying on our prior caselaw, we noted that “[t]he IAC
claim [there] does not implicate such a right because defendants do not
have a constitutional right to a plea bargain.” Id.

8 As this language reflects, Diaz was decided before the 2020 changes to
Rule 32.
12
 STATE V. TRAVERSO
Opinion of the Court

¶35 Regardless, we noted that “[t]he petition filed by Diaz’s [third
PCR] counsel was the first PCR petition filed on Diaz’s behalf.” We
therefore concluded that “[b]ecause Diaz timely filed a notice of PCR
seeking to assert an IAC claim, and he was blameless regarding his former
[PCR counsels’] failures to file an initial PCR petition, we will not deem his
IAC claim waived pursuant to Rule 32.2(a)(3).” Id. at 363 ¶ 11 (emphasis
added). Thus, Diaz was ultimately decided on the basis that no PCR
petition asserting an IAC claim had ever been filed until his third notice of
PCR. Therefore, as there was no need to address the exception to the waiver
requirement, there was no need for the Court to consider whether the basis
for Diaz’s IAC claim was of “sufficient constitutional magnitude.” And
Diaz was decided prior to the changes to Rule 32. Diaz, therefore, does not
resolve whether Traverso’s successive IAC claim implicates a constitutional
right that required him to knowingly, voluntarily, and personally waive the
IAC claim in the first PCR.

¶36 Only a narrow category of rights is of sufficient constitutional
magnitude to require a defendant’s knowing, voluntary, and personal
waiver for purposes of Rule 32.2(a)(3). See Stewart, 202 Ariz. at 449 ¶ 9
(describing such a right as one that is “so inherently personal that it cannot
be waived by defense counsel; only the defendant can waive it” (quoting
State v. Smith, 197 Ariz. 333, 339 ¶ 17 (App. 1999))). In Stewart, this Court
identified the rights to counsel, to a jury trial, and to a twelve-person jury 9
as some, though not all, of those rights requiring the defendant’s knowing,
voluntary, and (personal) waiver. 10 Id. ¶ 9 & n.1. The question before us,
then, is whether Traverso’s IAC claim alleges the violation of such a right.

¶37 Traverso’s argument is that once the State extended a plea
offer, he had a constitutional right to effective assistance of counsel in
deciding whether to accept it. Specifically, Traverso argues that he rejected
the State’s plea offer—which he confirmed in the course of the Donald
advisement—because his trial counsel was ineffective in not advising him
of it. Traverso asserts that had he been informed about the plea offer, he
would have accepted it and avoided the substantially harsher sentence he

9 Under article 2, section 23 of the Arizona Constitution, twelve-person
juries are required in “criminal cases in which a sentence of death or
imprisonment for thirty years or more is authorized by law.” See also State
v. Soliz, 223 Ariz. 116, 118 ¶ 6 (2009).
10 The 2020 amendments replaced “intelligent” with “personal.”

13
 STATE V. TRAVERSO
Opinion of the Court

received following his conviction at trial.

¶38 Understood in the context of this case, Traverso’s argument is
not that he had a “right to a plea bargain,” but rather that he had a right to
have his counsel fully inform him of the terms of the plea offer extended by
the State, especially the sentencing terms and the consequences for not
accepting it and going to trial, so that he could decide whether to plead
guilty and waive a jury trial. We agree.11

¶39 “It is, of course, true that defendants have ‘no right to be offered
a plea . . . nor a federal right that the judge accept it.’” Lafler v. Cooper, 566
U.S. 156, 168 (2012) (alteration in original) (emphasis added) (quoting
Missouri v. Frye, 566 U.S. 134, 148 (2012)). Regardless, “[e]ffective assistance
of counsel is just as necessary at the plea bargaining stage as at trial.”
Anderson, 257 Ariz. at 233 ¶ 27 (quoting State v. Anderson, 147 Ariz. 346, 350
(1985)); see also Lafler, 566 U.S. at 162 (“During plea negotiations defendants
are ‘entitled to the effective assistance of competent counsel.’” (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970))). And “[i]f a plea bargain
has been offered, a defendant has the right to effective assistance of counsel
in considering whether to accept it.” Lafler, 566 U.S. at 168.

¶40 Furthermore, we observe that the right at issue reflects the fact
that “[t]he ultimate decisions on whether to plead guilty, whether to waive
jury trial, and whether to testify are to be made by the [defendant].” State
v. Lee, 142 Ariz. 210, 215 (1984); see also State v. Montoya, 258 Ariz. 128, 161
¶ 102 (2024) (same); Jones v. Barnes, 463 U.S. 745, 751 (1983) (noting

11 To maximize the utility of Donald advisements, we urge trial courts to
further ensure that the record clearly and thoroughly reflects that a
defendant has reviewed an offer with counsel. For example, the court
should ask whether the defendant has previously discussed the plea offer
with defense counsel, including review of the plea offer’s terms regarding
the sentence that can be imposed, any applicable sentence enhancements,
and any collateral consequences. The court should also ask whether the
defendant has reviewed with counsel the consequences of rejecting the offer
and the potential sentence the defendant faces if convicted at trial, as well
as an explanation of the constitutional rights the defendant will be required
to waive to plead guilty. If not, recessing the matter to permit such a review
will protect the rights of the defendant, the crime victim, see Ariz. Const.
art. 2, § 2.1(A)(10), and the interests of the state.
14
 STATE V. TRAVERSO
Opinion of the Court

defendant’s “ultimate authority to make certain fundamental decisions”
about his case, including the decision “whether to plead guilty”). And
whether to accept a tendered plea offer and plead guilty also implicates a
defendant’s Sixth Amendment “right to make his defense,” which “‘is
personal,’ and . . . ‘must be honored out of that respect for the individual
which is the lifeblood of the law.’” McCoy, 584 U.S. at 421 (quoting Faretta
v. California, 422 U.S. 806, 819–20, 834 (1975)). We also underscore the
extraordinary nature of counsel’s abject failure to relate the terms of the
offer and attendant consequences. Cf. Diaz, 236 Ariz. at 363 ¶¶ 12–13
(acknowledging “this peculiar scenario” concerning the utter failure of two
different PCR counsel to file a petition after filing notices of PCR in
concluding no preclusion of IAC claim); Anderson, 257 Ariz. at 232–33
¶¶ 25–26 (concluding that an IAC claim was not precluded given the
“extremely rare set of circumstances” and the “systemic failure” of counsel
and courts regarding the availability of parole).

¶41 We therefore hold that here, where Traverso’s counsel offered
such paltry information, the right to be sufficiently informed of the
prosecution’s plea offer to decide whether to accept it, plead guilty, and
waive a jury trial is of sufficient constitutional magnitude to require the
defendant’s knowing, voluntary, and personal waiver for purposes of Rule
32.2(a)(3). See Donald, 198 Ariz. at 418 ¶ 46 (noting the significant
constitutional nature of the loss of a favorable plea offer due to the
ineffective assistance of counsel); see also State v. Nunez-Diaz, 247 Ariz. 1, 4
¶ 11 (2019) (stating that “[w]hen the consequences of a plea are clear,
however, ‘the duty to give correct advice is equally clear’” (quoting Padilla
v. Kentucky, 559 U.S. 356, 369 (2010))). Consequently, Traverso’s successive
IAC claim falls within Rule 32.2(a)(3)’s exception to preclusion. 12

12 Our holding today is distinct from our recent decision in Anderson.
Anderson concerned a successive IAC claim in which the defendant asserted
“that [the defendant’s counsel] erroneously advised him that he was parole
eligible, which caused him to reject an allegedly offered plea agreement.”
257 Ariz. at 229 ¶ 1. There, we concluded that Anderson’s successive IAC
claim was “not cognizable as a ‘known’ claim” before he raised it in his
notice of PCR, which was “the first time he could have reasonably” done
so. Id. at 232 ¶ 25. We therefore held that Anderson’s claim was not
precluded because he had not waived it. Id. ¶¶ 24–25. Thus, the case did
not concern the exception to Rule 32.2(a)(3) at issue here and we limit the
reasoning and holding of Anderson to its facts.
15
 STATE V. TRAVERSO
Opinion of the Court

¶42 We reiterate, though, our admonition that “[o]ur 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,” especially
involving IAC claims. Anderson, 257 Ariz. at 231 ¶ 21. And we note that
non-precluded Rule 32.1(a) claims are still subject to review for summary
disposition pursuant to Rule 32.11(a) and the requirements for timely filing
under Rule 32.4(b)(3)(A). Because his claim is not precluded, we turn next
to consider the timeliness of Traverso’s notice for PCR.

B. Timeliness

¶43 Rule 32.4(b)(3)(A) requires defendants to file notices of PCR
brought under Rule 32.1(a) “within 90 days after the oral pronouncement
of sentence or within 30 days after the issuance of the mandate in the direct
appeal, whichever is later.” But, under Rule 32.4(b)(3)(D), “[t]he court must
excuse an untimely notice requesting post-conviction relief filed under
subpart (3)(A) if the defendant adequately explains why the failure to
timely file a notice was not the defendant’s fault.” (Emphasis added.) As
explained above, we review the PCR court’s ruling on timeliness for abuse
of discretion. Anderson, 257 Ariz. at 230 ¶ 13.

¶44 Here, the PCR court concluded Traverso had satisfactorily
explained the delay in bringing his claim and refused to bar it as untimely.
The court correctly identified Rule 32.4(b)(3)(D)’s “adequate explanation”
standard and issued a detailed ruling explaining its reasoning. The court
noted that Traverso’s petition and affidavit explained his knowledge of the
claim, his first PCR counsel’s decision not to include the claim in the
petition, and Traverso’s lack of a knowing, voluntary, or personal waiver
of the claim. And the court specifically pointed out that the “State [did] not
dispute Traverso’s sworn statements.” Finally, the court explained that
Traverso provided “good reasons” for the timing of his successive petition
based on the timeline of his initial state PCR and federal habeas
proceedings. Those proceedings concluded roughly two years before
Traverso brought his successive IAC claim, and the court noted that
Traverso’s counsel had exercised “due diligence” in reviewing the claim
and preparing the petition, and that “a majority of the delay was due to
factors beyond Traverso’s or counsel’s control.”

¶45 Given the applicable standard of review and the superior
court’s detailed explanation of its ruling, we conclude the court did not

16
 STATE V. TRAVERSO
Opinion of the Court

abuse its discretion in finding that Traverso “adequately explained” the
delay in raising his claim. We therefore affirm the superior court’s
conclusion and likewise hold Traverso’s claim was not untimely.

II. CONCLUSION

¶46 For the foregoing reasons, we affirm the superior court’s
rulings on preclusion and the timeliness of Traverso’s notice of PCR. We
remand to the court of appeals to consider the issues raised in the State’s
petition not addressed by the court. We also vacate paragraphs 9–23 of the
court of appeals’ opinion. We express no view as to the merits of Traverso’s
IAC claim.

17