Rivera-Longoria v. Slayton: The Prosecutor’s Plea for Plea Bargaining is Answered

Arizona Rule of Criminal Procedure 15.8 provides for sanctions if a prosecutor “imposes a plea deadline” and fails to disclose material information to the defense at least 30 days before the plea offer expires. On November 23, 2011, the Arizona Supreme Court defined the boundaries of Rule 15.8 in Rivera-Longoria v. Slayton.

The court of appeals held that, as a matter of statutory construction, whenever a prosecutor withdraws a plea offer—with an express deadline or not—the prosecutor “imposes a plea deadline” and thus, Rule 15.8 is invoked. As a result of this “imposed” deadline, the state must make the material disclosures listed in Rule 15.1(b) no less than 30 days prior to that deadline. If the disclosure is not made until after a plea offer is withdrawn, the state has two choices. The state may reoffer the plea or risk preclusion of all evidence disclosed after the deadline.

Fearing that the judiciary was impinging upon the executive’s exclusive province to offer, extend, or terminate plea agreements, the state petitioned for certiorari. The Court acknowledged that open-ended plea offers are a frequent occurrence in Arizona and accepted review.

The Court vacated the Arizona Court of Appeals decision and held that Rule 15.8 does not apply when a prosecutor withdraws an open-ended plea offer. The Court seized on the appellate court’s statutory interpretation. Although the court of appeals reasoned that a “deadline” could occur when the prosecution withdraws an “open-ended” offer because to “impose” a deadline means to “establish or apply by authority,” the supreme court disagreed. Instead, the Court decided that withdrawing an offer without an express deadline is not the same as “imposing a deadline” within the meaning of Rule 15.8.

Recognizing that “deadlines … prospectively identify the period in which a person or entity must take some action,” imposing a plea deadline can only occur when the state expressly and explicitly identifies a date by which the defendant must accept the offer. The Court’s reading gave credence to the common understanding that deadlines “loom.” As a result, Rule 15.8 only applies to plea offers with express deadlines.

In addition to the statutory construction issue, and perhaps of greater practical importance, the Court dismissed any potential separation of powers issue. In its petition for certiorari, the state argued that the court of appeals’ interpretation of Rule 15.8’s sanctions required prosecutors to keep an offer open indefinitely or face preclusion of evidence at trial. In a sense, the appellate court’s decision regarding sanctions forced prosecutors to take the carrot by reoffering the plea or face the stick of inadmissibility at trial. The supreme court clarified the practical application and effect of Rule 15.8: Not only does the rule only extend to plea offers with express deadlines, but the rule only applies to “materials and information within the prosecutor’s possession or control.” As such, even if a prosecutor expressly delineates a plea deadline, Rule 15.8’s disclosure obligations only apply to evidence that is within the prosecutor’s possession or control when the deadline lapses. If the prosecutor does not have the evidence within his possession or control at the time of the deadline, but later receives the information, Rule 15.8’s sanctions do not apply. The Court’s decision allows prosecutors to effectively assert their executive discretion when offering pleas without worry that evidence not yet available—like lab reports—may be inadmissible at trial.

Adjunct Professor and Pima County prosecutor, Rick Unklesbay, noted:

The Arizona Supreme Court handed down a common sense interpretation of Criminal Rule 15.8 that had previously been lacking. The Court gave Arizona prosecutors a clear win with respect to how and when they can efficiently make plea offers to criminal defendants. Beyond the holding that Rule 15.8 sanctions do not apply when a prosecutor withdraws an open-ended plea offer that did not have a fixed deadline for acceptance, the Court found that the disclosure referred to in the Rule applies to that evidence within the prosecutor’s possession and control when the offer lapses. It is clear now (unless as the Court suggests an amendment may be made) the Rule does not require a prosecutor to reinstate a lapsed offer after obtaining new evidence previously not within the prosecutor’s possession or control. Thus, previous court rulings that required even the most diligent prosecutor to reinstate an expired plea offer upon the receipt of material new evidence or face possible preclusion (much to the frustration of many prosecutors) are now voided. Prosecutors should easily meet the Court’s requirements of disclosure of Rule 15.1(b) evidence in their possession or control before a plea deadline. Now, however, discovery of new evidence after that deadline won’t force a reinstatement of a plea that is not in the State’s interest.

Although the Court’s interpretation of Rule 15.8 applies only to plea offers with an explicit deadline, there is the potential for change. As Professor Unklesbay notes, the Court hints at a possible future amendment: “[W]e think the better approach is to consider amending the rule rather than construing the ‘imposi[tion] [of] a plea deadline’ to mean the withdrawal of an offer without a deadline.” But for now, Rule 15.8 is confined to pleas with express deadlines and disclosure that is within the prosecutor’s possession and control.