Personal Waiver Required for Plea-Stage Ineffective Assistance Claims; Stewart’s Automatic Preclusion Disavowed

Introduction

In State of Arizona v. Michael Eugene Traverso, the Arizona Supreme Court clarified two recurring and consequential facets of post-conviction relief under Rule 32: (1) whether and when a successive ineffective assistance of counsel (IAC) claim is precluded under Rule 32.2(a)(3); and (2) whether an untimely Rule 32 notice must be excused under Rule 32.4(b)(3)(D). The Court resolved a split created by earlier readings of Stewart v. Smith (2002) and State v. Diaz (2014), recalibrating the preclusion analysis in light of the 2020 amendments to Rule 32. The Court held that, where counsel’s plea-stage performance amounts to a near-total failure to communicate the State’s offer and its consequences, the defendant’s right to be sufficiently informed to decide whether to plead guilty and thereby waive a jury trial is of “sufficient constitutional magnitude.” As a result, such an IAC claim in a successive petition is not precluded unless the defendant personally, knowingly, and voluntarily waived it in an earlier post-conviction proceeding. The Court also upheld the superior court’s excusal of untimeliness because the defendant adequately explained why the late filing was not his fault.

The decision vacates in part the court of appeals’ contrary ruling and remands for consideration of unresolved issues. It expressly disavows the oft-cited “automatic preclusion” language in Stewart, anchoring preclusion analysis to the text of Rule 32.2(a)(3) as amended in 2020 and further integrating U.S. Supreme Court plea-bargaining jurisprudence (Lafler and Frye).

Background and Key Issues

In 2006, Traverso faced six counts of sexual conduct with a minor and one count of public sexual indecency to a minor. The State offered a plea capping incarceration at 27 years. Trial counsel failed for months to disclose or explain the offer and did not advise Traverso that, if convicted at trial, sentences were mandatory and consecutive, exposing him to up to 163.5 years. At a pretrial release hearing a day before the offer expired, the prosecutor recited the offer and conducted a Donald advisement on the record. Traverso—unaware of the full sentencing landscape from his counsel—rejected the offer, proclaiming innocence. On the first day of trial, after learning of the potential consecutive sentences, Traverso sought to accept the offer, but was told no plea remained. He was convicted on all counts and received an aggregate 79.5-year sentence.

Traverso’s first PCR petition (2009) raised certain IAC theories but did not present his plea-stage IAC claim as a discrete ground; counsel chose to pursue other issues. Years later, he filed a successive PCR asserting plea-stage IAC. The superior court found the claim neither precluded nor untimely, ordered the conviction set aside, and directed the State to re-offer the plea. The court of appeals reversed on preclusion grounds. The Supreme Court granted review on preclusion and, in its discretion, on timeliness.

The core issues:

• Does Rule 32.2(a)(3) automatically preclude a successive IAC claim simply because IAC was previously raised, as some have read Stewart to suggest?
• Is an IAC claim premised on counsel’s failure to adequately communicate a plea offer one that implicates a constitutional right requiring the defendant’s knowing, voluntary, and personal waiver for preclusion?
• Did the superior court abuse its discretion in excusing Traverso’s untimely notice under Rule 32.4(b)(3)(D)?

Summary of the Opinion

The Court:

• Disavowed the “automatic preclusion” passage in Stewart v. Smith, concluding it is inconsistent with Stewart’s core holding, unnecessary to its resolution, and incompatible with the post-2020 text of Rule 32.2(a)(3). Successive IAC claims are not per se precluded; the rule’s plain-text exception controls.
• Held that, on the facts here, a plea-stage IAC claim—where counsel offered “paltry” advice and effectively failed to communicate the plea and its consequences—implicates the defendant’s fundamental personal right to decide whether to plead guilty and waive a jury trial. Such a right is of sufficient constitutional magnitude to require a knowing, voluntary, and personal waiver under Rule 32.2(a)(3). Traverso did not personally waive this claim in his initial PCR, so it is not precluded.
• Affirmed the superior court’s excusal of untimeliness under Rule 32.4(b)(3)(D) because Traverso adequately explained why his late filing was not his fault, given prior PCR counsel’s strategic omissions and the intervening state and federal litigation timeline.
• Vacated paragraphs 9–23 of the court of appeals’ opinion and remanded for consideration of issues raised by the State but not addressed below. The Supreme Court expressed no view on the ultimate merits of the IAC claim.

Analysis

Precedents Cited and Their Influence

• Stewart v. Smith, 202 Ariz. 446 (2002).

  Stewart answered a certified question focusing on a then-comment to Rule 32.2: whether the need for personal waiver turns on the merits of the claim or the right alleged. It held the analysis turns on the right alleged. A widely quoted paragraph suggested successive IAC claims are “required” to be precluded without examining facts. In Traverso, the Court holds that this automatic-preclusion language is inconsistent with Stewart’s holding, unnecessary to the certified question, and, after the 2020 Rule 32 amendments, incompatible with the rule’s plain text. The Court expressly disavows that language.

• State v. Diaz, 236 Ariz. 361 (2014).

  Diaz involved PCR counsel’s failures to file a petition after timely notices, and the Court refused to deem the defendant’s IAC claim waived. The Traverso Court notes Diaz ultimately rested on the fact that no initial petition had ever been filed; Diaz did not resolve whether a plea-stage IAC claim is of sufficient constitutional magnitude requiring personal waiver. Post-2020, Diaz cannot be read to impose preclusion here.

• State v. Donald, 198 Ariz. 406 (App. 2000).

  Donald recognized a defendant’s Sixth Amendment right to competent advice during plea negotiations. The factual practice that arose—to recite plea terms on the record and advise a defendant about trial exposure—plays centrally here. Traverso reaffirms Donald’s importance and recommends best practices for judges conducting advisements.

• Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012).

  These cases anchor the constitutional framework: defendants have no right to be offered a plea or to have a judge accept one, but once a plea is offered, the Sixth Amendment guarantees effective assistance in deciding whether to accept it. Traverso employs Lafler/Frye to distinguish the “no right to a plea” proposition from the right to effective counsel regarding an offer.

• State v. Anderson, 257 Ariz. 226 (2024).

  Anderson involved misadvice about parole and a successive IAC petition. The Court in Traverso distinguishes Anderson as addressing when an IAC claim becomes “known,” not the Rule 32.2(a)(3) “personal waiver” exception. Anderson remains limited to its facts.

• Other supporting authorities.

  The Court references McMann v. Richardson, Jones v. Barnes, Faretta v. California, McCoy v. Louisiana, State v. Lee, State v. Montoya, Padilla v. Kentucky, and State v. Nunez-Diaz to underscore that decisions such as whether to plead guilty and waive a jury are personal to the accused and demand competent advice; when consequences are clear, advice must be correct.

Legal Reasoning

1) No automatic preclusion of successive IAC claims after the 2020 Rule 32 amendments

The Court grounds its analysis in the plain text of Rule 32.2(a)(3) as amended effective 2020. The rule now explicitly provides a single exception to preclusion: where “the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” The rule does not carve out a special, categorical bar for successive IAC claims.

Applying the interpretive canon that procedural rules are construed by their plain meaning, the Court refuses to “rewrite” Rule 32.2(a)(3) to incorporate Stewart’s stray automatic-preclusion language. It notes practical inconsistency: subsequent decisions (Diaz, Anderson) assessed successive IAC claims without invoking an automatic bar—behavior that would have been unnecessary if automatic preclusion truly governed.

2) Plea-stage IAC that undermines a defendant’s ability to decide whether to plead guilty and waive a jury implicates a personal constitutional right

Rights that require personal, knowing, and voluntary waiver are a narrow category—e.g., the rights to counsel, to a jury, and, in specific cases, to a twelve-person jury. But in the particular circumstances here, counsel’s near-total failure to communicate the plea’s sentencing exposure and the trial consequences implicated the defendant’s fundamental, personal choice: whether to accept the State’s offer, plead guilty, and waive a jury trial.

The Court carefully avoids characterizing the right as a “right to a plea bargain.” Instead, it emphasizes the distinct, recognized right to effective assistance in evaluating an offer, which operationalizes the defendant’s personal autonomy to plead guilty or go to trial. Given the magnitude of that personal choice, the Court holds that, in the posture presented here, the claim falls within Rule 32.2(a)(3)’s personal-waiver exception: it could not be precluded absent a knowing, voluntary, and personal waiver by Traverso in his initial PCR.

The Court also flags the “extraordinary” quality of counsel’s failure—“paltry” information after months of silence, misunderstanding of mandatory/consecutive sentencing, and the defendant’s surprise on the first day of trial—mirroring its recognition in Diaz and Anderson that structural or systemic lapses can inform preclusion analysis.

3) Timeliness: “Must excuse” if the defendant adequately explains the delay was not his fault

Rule 32.4(b)(3)(A) imposes tight filing windows for Rule 32.1(a) claims. But Rule 32.4(b)(3)(D) mandates excusal of an untimely notice if the defendant “adequately explains” why the lateness was not his fault. Reviewing for abuse of discretion, the Court affirms the superior court’s detailed finding that:

• Traverso’s sworn statements explained he wanted to raise the plea-communication issue in his initial PCR but deferred to PCR counsel’s strategic choice; he did not knowingly or personally waive this ground.
• The State did not dispute those facts.
• Substantial intervening litigation (initial PCR and federal habeas) and current counsel’s due diligence in reviewing a voluminous record and consulting experts accounted for much of the delay.

On this record, the superior court did not abuse its discretion in excusing untimeliness.

Impact and Practical Implications

Traverso will reverberate across Arizona’s post-conviction landscape and plea-bargaining practice:

• Preclusion recalibrated post-2020. Successive IAC claims are not automatically barred. Courts must ask whether the particular right implicated by counsel’s performance is one requiring personal waiver. Plea-stage IAC that undermines a defendant’s ability to decide to plead guilty and waive a jury triggers the personal-waiver exception under Rule 32.2(a)(3).
• Narrowness preserved. The Court emphasizes the narrow category of rights requiring personal waiver and cautions against “endless trial-court reviews.” Defendants must still raise all known claims in a single petition. Non-precluded claims remain subject to summary dismissal and timeliness rules.
• Judicial best practices for Donald advisements. The Court urges trial judges to build a thorough record that the defendant has:
  • Discussed the offer with counsel (including sentencing ranges, enhancements, consecutive/mandatory features, and collateral consequences);
  • Understood the trial exposure if the offer is rejected;
  • Understood the rights waived by pleading guilty.
  If necessary, recess to permit counsel-client consultation. This protects defendants, victims’ rights, and the State, and reduces later factual disputes.
• Defense counsel documentation. Defense attorneys should contemporaneously memorialize plea communications, sentencing exposure discussions (especially mandatory/consecutive terms), and the client’s decision-making process. This both fulfills Sixth Amendment duties and provides evidence if a dispute arises.
• Prosecutorial practice. Prosecutors should continue to place plea offers and deadlines on the record and ensure Donald advisements are precise and complete.
• PCR counsel diligence. PCR counsel should identify and include plea-stage IAC issues in the initial petition where known; omission risks later litigation and client harm. Where a successive petition is necessary, counsel should build a sworn record showing that any delay was not the client’s fault to meet Rule 32.4(b)(3)(D)’s “must excuse” standard.
• Remedial pathway preserved but not reached. Although the superior court ordered re-offer of the plea, the Supreme Court did not reach the merits or remedy. If the IAC claim is ultimately proven, Donald and Lafler guide remedial choices (re-offer with court-supervised proceedings).

Complex Concepts Simplified

• Rule 32.1(a): Vehicles for post-conviction claims alleging violations of the U.S. or Arizona Constitutions, including IAC.
• Rule 32.2(a)(3) Preclusion: A claim is ordinarily barred if it could have been raised earlier but wasn’t—unless it alleges a violation of a constitutional right that only the defendant can personally waive (knowingly and voluntarily). Examples include decisions to plead guilty and waive a jury.
• “Sufficient Constitutional Magnitude”: A narrow class of rights so personal that counsel cannot waive them on the defendant’s behalf. The Traverso Court places certain plea-stage IAC claims into this category when counsel’s failure undermines the defendant’s personal decision to plead and waive a jury.
• Donald Advisement: A practice where the court or prosecutor recites on the record the plea’s terms and the defendant’s sentencing exposure at trial, helping ensure informed decision-making and creating an appellate record.
• No “Right to a Plea Offer” vs. Right to Effective Assistance: A defendant has no constitutional right to be offered a plea or to have a plea accepted by the court. But when an offer exists, the Sixth Amendment guarantees effective assistance in deciding whether to accept it.
• Rule 32.4(b)(3)(D): If a notice is late, the court must excuse the untimeliness if the defendant adequately explains why the delay was not his fault (e.g., prior counsel’s strategic choices, intervening litigation, diligence by current counsel).
• Standard of Review: PCR rulings are reviewed for abuse of discretion; legal errors (e.g., misapplication of preclusion) are abuses of discretion; factual findings stand unless clearly erroneous.

Conclusion

State v. Traverso resets the preclusion compass in Arizona PCR practice. Anchoring analysis in the 2020 text of Rule 32.2(a)(3), the Court disavows any automatic bar on successive IAC claims and holds that, where counsel’s plea-stage failure deprives a defendant of the information needed to decide whether to plead guilty and waive a jury, the claim implicates a right of sufficient constitutional magnitude to require the defendant’s personal waiver. Without such a waiver, preclusion does not apply. The Court also reinforces Rule 32.4(b)(3)(D)’s “must excuse” command when a defendant adequately shows the late filing was not his fault.

The ruling harmonizes Arizona’s post-conviction framework with modern plea-bargaining jurisprudence, promotes accurate records through enhanced Donald advisements, and preserves the narrowness of the personal-waiver exception. While defendants must still raise all known claims in a single petition, Traverso ensures that fundamental personal choices—especially the decision to plead guilty—are safeguarded against counsel’s serious failures. The case returns to the court of appeals for resolution of issues not addressed below; the merits and remedy, if any, remain open. The broader legal significance is clear: Arizona’s PCR preclusion now firmly turns on the specific right implicated and the defendant’s personal autonomy in criminal adjudication.