by Anthony W. Accurso

The Supreme Court of Arizona held that a defendant’s third postconviction relief (“PCR”) motion was not untimely, nor had he waived the issue by failing to file it in earlier petitions, because there was “pervasive confusion” about parole eligibility for decades.

Larry Dean Anderson was convicted in a jury trial in 2000 of conspiracy to commit first-­degree murder. His sentencing document stated that he was to “be imprisoned for the term of life without possibility of release until the service of at least 25 years.” He claims that at the time, his lawyer advised him that he would be eligible for parole after serving 25 years. Notably, Arizona abolished parole for adult offenders convicted of a felony in 1993. See A.R.S. § 41-­1604-­09(l).

Anderson filed two PCR motions, one in 2000 and one in 2003. Those motions did not include his present ineffective assistance of counsel (“IAC”) claim.

In 2021, Anderson sought to participate in programming to increase his chances of parole eligibility but was told by prison officials that he was not eligible for parole. Subsequently, in early 2022, he filed his third PCR motion, claiming his lawyer’s advice with regards to his parole eligibility was constitutionally inadequate and that, but for his lawyer’s erroneous advice, he would have agreed to a plea deal “stipulating to a term of eighteen to twenty-­two years in prison” instead of taking his chances at trial.

Though the State initially supported his motion, it later opposed it saying there was no record of such an offer. Anderson produced an affidavit from his former attorney stating that such an offer could have existed but that he didn’t remember. Anderson also produced circumstantial evidence of such a deal—letters he wrote or received around that time that mentioned the 18 to 22-­year deal.

The trial court denied his petition. It said that although there was widespread confusion about parole eligibility at the time, his lawyer’s advice wasn’t below professional norms “because criminal defense attorneys during that time were consistently advising clients that parole was available.” It stated he also failed to allege sufficient 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.” The Court of Appeals also denied relief, but its denial was based on the fact the IAC claim was not present in his prior PCR petitions.

The Arizona Supreme Court agreed to hear his appeal to determine whether his PCR motion based on IAC was either untimely or precluded. The Court stated that 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.” The Court noted that it must address these issues “in view of the then-­pervasive confusion about parole availability in Arizona.”

The Court first began with the issue of timeliness. It observed that, “trial courts since 1994 have interchangeably used the words ‘parole’ and ‘release’ when imposing non-­natural-­life sentences.” It wasn’t until the Arizona Supreme Court declared in Chaparro v. Shinn, 459 P.3d 50 (Ariz. 2020), that “the meaning of ‘parole’ is not ambiguous or synonymous with other forms of release.” Additionally, Arizona appellate courts, including the Supreme Court, published decisions indicating that convicted felons were eligible for parole as late as 2013. See, e.g., State v. Benson, 307 P.3d 19 (Ariz. 2013) (“Arizona law does not make [the defendant] ineligible for parole.”). Finally, “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,” according to the Court.

Generally, a defendant must file notice of a PCR claim under Rule 32.1(a) within 90 days after the oral pronouncement of his sentence. Ariz. R. Crim. P.32.4(b)(3)(A). And “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.” However, 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 State v. Diaz, 340 P.3d 1069 (Ariz. 2014).

Based on the foregoing governing legal principles and the then-­pervasive confusion surrounding parole, the Court held that Anderson sufficiently explained his failure to timely file. The Court explained that it was only after being told he was not eligible for parole in 2021 that he had any reason to suspect that his trial attorney rendered deficient performance.

Turning to Anderson’s claim of ineffective assistance, the Court noted that “effective assistance of counsel is just as necessary at the plea-­bargaining stage as at trial.” State v. Anderson, 710 P.2d 456 (Ariz. 1985). Deficient performance and prejudice form the twin prongs of the standard for judging ineffective assistance claims established in Strickland v. Washington, 466 U.S. 668 (1984). The “two-­part [IAC] standard [is] applicable to ineffective-­assistance claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52 (1985).

As to the first 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.’” Quoting State v. Miller, 485 P.3d 554 (Ariz. 2021). The Miller Court concluded “a lawyer’s representation can be unreasonable under prevailing professional norms even when the legal community has uniformly made the same error.” 

“Here,” the Court wrote, “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,” and this “was a serious error affecting Anderson’s ability to intelligently consider the alleged plea offer.”

As for the prejudice prong, Anderson provided circumstantial evidence about the existence of a plea deal, and this was not contradicted by its absence in the court record or any other evidence, the Court concluded. As such, he should be allowed the opportunity to prove that an offer was made and that he would have accepted it but for his attorney’s deficient performance, according to the Court.

“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.’” State v. Watton, 164 793 P.2d 80 (Ariz. 1990). Thus, the Court held that Anderson’s IAC claim was neither untimely nor precluded and that he alleged sufficient facts to support a finding of deficient performance, thereby entitling him to a hearing on whether he can meet the prejudice prong.

Accordingly, the Court vacated the decision of the Court of Appeals and remanded to the trial court for an evidentiary hearing. See: State v. Anderson, 547 P.3d 345 (Ariz. 2024).  

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