State v. Greuber

2007 UT 50
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20060009
Plaintiff and Respondent,
v.
F I L E D
Darren Neil Greuber, Jr.,
Defendant and Petitioner. 	July 3, 2007
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Third District, Salt Lake
The Honorable Robin W. Reese
No. 011016865
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Matthew D. Bates,
Asst. Att’y Gen., Vincent Meister, Salt Lake City,
for plaintiff
Jennifer K. Gowans, Provo, for defendant
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This case comes before us on a writ of certiorari.
Darren Neil Greuber, Jr., challenges the court of appeals’
decision that his attorneys were not constitutionally
ineffective. 	We affirm and conclude that Greuber was not
prejudiced by his counsel’s failure to investigate evidence that
might have militated in favor of accepting a plea bargain.
Greuber suffered no prejudice because he received a fair trial,
and furthermore, the trial court properly found that he would not
have accepted a plea to murder even if the evidence had been
fully investigated.
BACKGROUND
¶2 	On the night of October 9, 2001, Greuber, three
individuals, and a member of a white supremacist gang were

1 We note that this information was not available to
Greuber’s attorneys at the time Greuber rejected the plea offer.
No. 20060009 	2
smoking methamphetamine. 	When the drugs could not be found, the
gang member called several other members of his gang to the
house. 	When they discovered that Don Dorton, who was not a gang
member, had hidden the drugs, Greuber and members of the gang
kicked and punched him in the face and body. 	Dorton was wrapped
in a sheet with his head covered, and his wrists and ankles were
bound with duct tape. 	Greuber carried Dorton to a car and, with
the assistance of two other men, transported him to a dirt road.
Greuber then dragged Dorton out of and away from the car. 	He
returned to the car without Dorton. 	The next night, one of the
men returned to the scene and found Dorton dead, with an eighty-
three-pound rock on his head. 	Greuber was arrested and charged
with criminal homicide and aggravated kidnaping.
¶3 	During the initial stages of trial preparation, the
State offered to allow Greuber to plead guilty to murder in
exchange for dismissal of the aggravated kidnaping charge.
Greuber rejected the offer.
¶4 	Part of Greuber’s trial strategy was to impeach a
jailhouse informant testifying against him by attempting to show
that the informant fabricated Greuber’s confession after reading
discovery materials that Greuber had in his possession while he
shared a cell with the informant. 	After the plea offer had been
rejected, but prior to trial, the State served the defense with a
Response to Discovery Request referencing recordings of Greuber’s
prison phone conversations. 	Greuber’s attorneys did not listen
to the recordings prior to trial. 	Thus, they were unaware that
the recordings contained statements made by Greuber after the
informant had been transferred out of his cell. 	In one such
conversation, Greuber stated that he had not yet received his
discovery. 1 	At trial, the defense attorneys told the court, in
the presence of the jury, that they intended to call Greuber and
another witness. 	During a recess, at the State’s suggestion, the
defense attorneys listened to the recordings and determined that,
because of ethical and credibility considerations, it was not
possible to put Greuber or the other witness on the stand. 	After
the recess, the defense attorneys moved for a mistrial. 	The
court denied the motion, and the defense rested without calling
the promised witnesses. 	The jury convicted Greuber of murder and
aggravated kidnaping.
¶5 	On appeal, Greuber claimed that his trial attorneys
were constitutionally ineffective because his rejection of the
plea offer was due to their failure to listen to the recordings
before trial, and thus to realize that the defense impeachment

2 The record does not explain why Greuber himself would not
have known that the witness had no access to his discovery
materials in jail.
3 	No. 20060009
strategy was contrary to the evidence. 	During an evidentiary
hearing on the ineffective assistance of counsel claim, Greuber
testified that he would have accepted the plea bargain offer had
his attorneys listened to the recordings. 2 	The defense
attorneys, however, testified that Greuber would not have
accepted the plea offer because he did not want to plead guilty
to murder. 	The district court concluded that Greuber would not
have accepted the plea offer because he was unwilling to accept
any plea that included the charge of murder. 	Accordingly, the
court found that Greuber suffered no prejudice as a result of his
attorneys’ actions. 	The court of appeals affirmed, noting that
there is no constitutional right to a plea bargain. 	State v.
Grueber, 2005 UT App 480U. 	We granted certiorari to determine
(1) whether counsel’s failure to investigate evidence that would
militate in favor of accepting a plea bargain may meet the
requirement of demonstrating prejudice for an allegation of
ineffective assistance of counsel, and (2) whether the record
adequately supports the district court’s finding that Greuber
would not have accepted the State’s plea offer even if counsel
had fully investigated the State’s evidence. 	Our jurisdiction is
appropriate pursuant to Utah Code section 78-2-2(3)(a), (5)
(2002).
STANDARD OF REVIEW
¶6 	“On certiorari review, this court reviews the decision
of the court of appeals, not the decision of the district court.”
Colosimo v. Roman Catholic Bishop, 2007 UT 25, ¶ 11, 156 P.3d
806. 	Whether the Sixth Amendment applies is a question of law
that we review for correctness. 	In assessing a claim of
ineffective assistance of counsel, “we review for correctness the
trial court’s application of the law to the facts, but we will
overturn the [trial] court’s findings of fact only if they are
clearly erroneous.” 	Menzies v. Galetka, 2006 UT 81, ¶ 58, 150
P.3d 480. 	“For a reviewing court to find clear error, it must
decide that the factual findings made by the trial court are not
adequately supported by the record, resolving all disputes in the
evidence in a light most favorable to the trial court’s
determination.” 	State v. Pena, 869 P.2d 932, 935-36 (Utah 1994).
ANALYSIS
¶7 	Two issues were presented in this case: 	first, whether
the failure of Greuber’s attorneys to investigate the contents of
the recordings and Greuber’s rejection of the plea bargain offer

3 We note that prejudice is presumed when a defendant is
denied altogether the assistance of counsel at a critical stage
of the proceedings, including plea bargaining. 	See Strickland,
466 U.S. at 692; United States v. Cronic, 466 U.S. 648, 659 n.25
(1984). 	Actual or constructive denial of the assistance of
counsel during the plea process is not claimed in this case.
No. 20060009 	4
meet the requirement of demonstrating prejudice for an allegation
of ineffective assistance of counsel; and second, whether the
record adequately supports the district court’s finding that
Greuber would not have accepted the plea. 	We conclude that while
the Sixth Amendment right to the effective assistance of counsel
generally applies during the plea process, Greuber’s rejection of
the plea offer in this case did not result in prejudice because
he received a fair trial; and in any event, the district court’s
conclusion that Greuber would not have accepted any plea
involving murder was not clearly erroneous.
I. 	PLEA BARGAINS AND THE SIXTH AMENDMENT
¶8 	The Sixth Amendment of the United States Constitution
guarantees a criminal defendant’s right to counsel “in order to
protect the fundamental right to a fair trial.” 	Strickland v.
Washington, 466 U.S. 668, 684 (1984). 	The United States Supreme
Court has recognized that “the right to counsel is the right to
the effective assistance of counsel,” id. at 686 (internal
quotation marks omitted), and effective assistance is required
during the “plea process,” Hill v. Lockhart, 474 U.S. 52, 57
(1985).
¶9 	In order to show ineffectiveness during plea
negotiations, a defendant must show that “counsel’s performance
was deficient” and that “the deficient performance prejudiced the
defense.” 	Strickland, 466 U.S. at 687; Hill, 474 U.S. at 57. 	If
counsel’s representation fell below an objective standard of
reasonableness, her performance was deficient. 	Strickland, 466
U.S. at 688. 	Further, the defendant is prejudiced by counsel’s
actions only if the result of the proceedings would have been
different absent the claimed deficiency. 3 	Id. at 691. 	“[A]
court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.” 	Id. at 697.
¶10 	When the Supreme Court has applied the Sixth Amendment
right to the plea process, it has considered whether an accepted
guilty plea has prejudiced the defendant, Hill, 474 U.S. at 58,
and not how the right applies when a defendant rejects a plea and
proceeds with a fair trial. 	We too have considered the right in
the context of guilty pleas. 	See State v. Rojas-Martinez, 2005

4 Numerous courts either have not addressed the issue of the
defendant’s receipt of a fair trial or have concluded, as the
Mahar court did, that a fair trial does not ameliorate the
ineffectiveness issue. 	The fact scenarios in these cases have
varied widely and differ significantly from the case before us.
(continued...)
5 	No. 20060009
UT 86, ¶ 10, 125 P.3d 930; see also State v. Martinez, 2001 UT
12, 26 P.3d 203. 	But unlike the Supreme Court, we have had the
opportunity to consider the Sixth Amendment right when a plea
offer is rejected and the defendant proceeds with a fair trial.
State v. Knight, 734 P.2d 913, 919 n.7 (Utah 1987) (recognizing
that the key difference between an accepted plea offer and a
rejected plea offer is that in the latter case, the defendant
does “not waive his right to a fair trial”); State v. Geary, 707
P.2d 645, 646 (Utah 1985) (“[O]ur state and federal constitutions
guarantee fair trials, not plea bargains.”). 	Although we
rejected the defendant’s claim in Knight, we did so with little
analysis, and therefore, we take this opportunity to elaborate on
the Sixth Amendment’s application to rejected plea bargains.
¶11 	It is clear that defendants possess the right to the
effective assistance of counsel in plea negotiations. 	The
Supreme Court has recently reiterated, however, that the right to
the effective assistance of counsel is grounded in the
constitutional right to receive a fair trial. 	United States v.
Gonzalez-Lopez, 126 S. Ct. 2557, 2563 (2006) (recognizing that
the right to effective assistance of counsel is derived from the
right to a fair trial unlike the right to counsel of choice).
The right is “recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair
trial. 	Absent some effect of the challenged conduct on the
reliability of the trial process, the Sixth Amendment guarantee
is generally not implicated.” 	United States v. Cronic, 466 U.S.
648, 658 (1984). 	Thus, while Greuber did possess the right to
effective assistance of counsel during the plea process, he could
not ultimately have been prejudiced in this case because he
received a trial that was fair--the fundamental right that the
Sixth Amendment is designed to protect. 	Nothing in counsels’
pretrial conduct suggests “that the trial cannot be relied on as
having produced a just result.” 	Strickland, 466 U.S. at 686.
¶12 	Some courts applying the Sixth Amendment right in the
context of a rejected plea offer have concluded that “if the
offer is rejected because of the ineffective assistance of
counsel, the fact that the defendant subsequently receives a fair
trial does not ameliorate the constitutional harm that occurred
in the plea process.” 	Commonwealth v. Mahar, 809 N.E.2d 989, 993
(Mass. 2004). 4 	Other courts have concluded, as we do, that a

4 (...continued)
Some examples include (1) ineffectiveness claims where counsel
failed entirely to advise the defendant in her decision to reject
a plea, see, e.g., Boria v. Keane, 99 F.3d 492, 495 (2d Cir.
1996); (2) ineffective assistance claims where counsel failed to
communicate a plea offer to the defendant, see, e.g., Pham v.
United States, 317 F.3d 178, 182 (2d Cir. 2003); United States v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); Diaz v. United
States, 930 F.2d 832, 834 (11th Cir. 1991); Johnson v. Duckworth,
793 F.2d 898, 902 (7th Cir. 1986); United States ex rel. Caruso
v. Zelinsky, 689 F.2d 435, 436 (3d Cir. 1982); Cottle v. State,
733 So. 2d. 963, 965-66 (Fla. 1999); Lloyd v. State, 373 S.E.2d
1, 3 (Ga. 1988); Commonwealth v. Copeland, 554 A.2d 54, 55 (Pa.
Super. Ct. 1988); Ex parte Wilson, 724 S.W.2d 72, 74 (Tex. Crim.
App. 1987); State v. James, 739 P.2d 1161, 1165 (Wash. Ct. App.
1987); and (3) ineffectiveness claims where counsel misadvised
the defendant as to sentencing exposure due to incorrect
calculations under the sentencing guidelines, misreading of the
maximum sentence for a charge, or unawareness that the charges in
question carried a minimum mandatory sentence, see, e.g., United
States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (erroneous
advice about minimum total sentence exposure); Coulter v.
Herring, 60 F.3d 1499, 1502 (11th Cir. 1995) (erroneous advice
about sentencing options); United States v. Day, 969 F.2d 39, 40
(3d Cir. 1992) (incorrect advice about maximum sentencing
exposure); Lewandowski v. Makel, 949 F.2d 884, 886 (6th Cir.
1991) (erroneous advice about impact of rejecting already-
accepted plea); People v. Curry, 687 N.E.2d 877, 881 (Ill. 1997)
(maximum sentence miscalculated); State v. Taccetta, 797 A.2d
884, 886 (N.J. Super. Ct. App. Div. 2002) (erroneous advice about
minimum total sentencing exposure). 	We note that in these types
of cases, the egregious conduct of counsel in misleading a
defendant about the legal consequences of a decision to decline a
plea offer or in failing to inform a defendant about the
existence of such an offer might effectively constitute the
absence of counsel at a critical stage. 	We do not offer an
opinion on that question, however, as it is not before us in this
case.
5 Bryan v. Missouri, 134 S.W.3d 795, 802 (Mo. Ct. App. 2004)
(concluding there was no Sixth Amendment violation when defendant
was not deprived of a fair trial); cf. Louisiana v. Monroe, 757
So. 2d 895, 898 (La. Ct. App. 2000) (“[B]y failing to accept the
plea bargain [defendant] preserved all of his constitutional
rights including his only chance of being found not guilty.”)
No. 20060009 	6
fair trial for the defendant generally negates the possibility of
prejudice. 5 	If an attorney’s deficiency during the plea process
somehow renders the trial unfair, then prejudice could result
from a rejected plea offer. 	But in this case, the result was a

6 This analysis applies, of course, only when the defendant
receives a fair trial. 	If counsel’s failure to investigate
renders the result of the trial unfair or unreliable, the remedy
of a new trial is appropriate.
7 	No. 20060009
fair trial; Greuber has not argued that his attorneys’ failure to
listen to the recordings rendered the trial’s result unreliable
or fundamentally unfair in any way.
¶13 	In reaching our conclusion, we do not ignore the
importance of the plea bargain as “an essential component of the
administration of justice.” 	Santobello v. New York, 404 U.S.
257, 260 (1971). 	We recognize the widespread use of plea
bargains and the importance of a defendant’s decision to plead or
go to trial. 	See Turner v. Tennessee, 664 F. Supp. 1113, 1119
(M.D. Tenn. 1987). 	However, if a defendant rejects a plea offer
based on his attorney’s poor advice and is later convicted after
a fair trial, he has not been deprived of a “substantive or
procedural right to which the law entitles him.” 	Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993). 	There is no right to a plea
offer or to a successful plea bargain. 	Instead, the defendant
has lost merely an opportunity, one which may present itself to
some defendants but not to others. 	Such opportunities can be
contingent, time limited, or withdrawn as the prosecution
reevaluates its case. 	An attorney’s failure to properly
investigate or assess evidence that might militate in favor of
accepting a plea does not equate to the constitutional
deprivation of a fair trial, especially when, as in this case,
the defendant himself was aware of the facts that the attorney
failed to uncover, and furthermore, at the time of the plea
rejection, the evidence was not even available to the defendant’s
counsel. 	If a defendant has been convicted at a fair trial after
rejecting, with the assistance of counsel, the plea opportunity,
there is nothing “‘unreliable’” or “‘fundamentally unfair’” about
imposing a sentence based on the conviction. 	Mahar, 809 N.E.2d
at 997-98 (Sosman, J., concurring) (quoting Fretwell, 506 U.S. at
372).
¶14 	If we were to hold that a defendant suffered prejudice
even when he was afforded a fair trial, we would face the
problematic task of fashioning an appropriate remedy for the
claimed harm. 	Where ineffective assistance causes a defendant to
plead guilty and waive his right to trial, the remedy is clear:
permit the defendant to rescind his plea and allow him to go to
trial. 	However, where the allegedly deficient performance of
counsel causes a defendant to reject an opportunity to plead and
to receive his constitutionally guaranteed fair trial, it is
impossible to resuscitate the original opportunity. 6 	Courts
“cannot recreate the balance of risks and incentives on both

No. 20060009 	8
sides that existed prior to trial, and the attempts to do so
raise their own serious constitutional problems.” 	Mahar, 809
N.E.2d at 1001 (Sosman, J., concurring).
¶15 	For example, some courts have required the prosecution
to give the defendant the same offer he had before trial, even
though the defendant has since been convicted at a fair trial.
See, e.g., United States v. Blaylock, 20 F.3d 1458, 1468-69 (9th
Cir. 1994). 	Under the doctrine of separation of powers, we do
not believe courts have the power, in the absence of
prosecutorial misconduct, to require the prosecution to dismiss
charges, as would often be necessary to enact the earlier
rejected plea. 	Mahar, 809 N.E.2d at 1001 (Sosman, J.,
concurring). 	Further, requiring the state to reoffer after trial
a plea bargain it may have made originally to avoid the expense
and risk of a trial violates separation of powers and basic
fairness principles. 	Id. at 1002.
¶16 	In recognition of these difficulties, other courts have
instead granted the defendant a new trial. 	See, e.g., People v.
Curry, 687 N.E.2d 877, 890 (Ill. 1997); Larson v. State, 766 P.2d
261, 263 (Nev. 1988); State v. Taccetta, 797 A.2d 884, 888 (N.J.
Super. Ct. App. Div. 2002). 	However, a new trial does not remedy
the lost opportunity to plead. 	A new trial cannot restore the
defendant’s “opportunity to plead guilty to lesser charges with
lesser sentences.” 	Mahar, 809 N.E.2d at 1002 (Sosman, J.,
concurring) (citing State v. Kraus, 397 N.W.2d 671, 674 (Iowa
1986) (“[I]t is difficult to see how a new trial restores the
lost chance of the bargain.”)). 	In addition, ordering a new
trial may sometimes constitute a thinly veiled attempt to force
the prosecution to reinstate the initial offer. 	See In re
Alvernaz, 830 P.2d 747, 760 (Cal. 1992) (allowing the prosecutor
to resubmit the original plea or to elect within thirty days to
retry the defendant and resume plea negotiations); see also
Larson, 766 P.2d at 263 & n.9; Taccetta, 797 A.2d at 888.
Further, there is no guarantee that the delicate balance of
witness availability and evidence will be the same after the
first trial as it was at the time of the initial plea offer. 	If
the witnesses are still available and the evidence in the
prosecution’s case has perhaps become stronger, a second,
unnecessary trial will inevitably 	ensue. 	Mahar, 809 N.E.2d at
1002 (Sosman, J., concurring). 	On the other hand, if witnesses
and evidence are not available, it is possible that a new trial
will result in an acquittal, “a ‘remedy’ out of all proportion to
the damage allegedly done by the ineffective assistance in
connection with the earlier plea offer.” 	Id. 	Finally, even if a
plea offer is reinstated, there is no guarantee that the
defendant will accept it, and presumably courts could not so
require. 	Id. at 1002-03.

7 Although we reject the symmetrical approach of treating
defendants who accept pleas and those who reject pleas
identically, we recognize that it has been advocated by some
courts. 	See, e.g., In re Alvernaz, 830 P.2d at 753-54 (“Both
alternate decisions--to plead guilty or instead to proceed to
trial--are products of the same attorney-client interaction and
involve the same professional obligations of counsel.”); Turner
v. Tennessee, 664 F. Supp. 1113 (M.D. Tenn. 1987).
9 	No. 20060009
¶17 	The unavailability of a rational remedy for ineffective
assistance of counsel in the rejection of plea offers illustrates
the flaws inherent in treating identically defendants who have
received fair trials and those who have forgone trials and pled
guilty. 7 	Judges have long held themselves apart from the complex
negotiations that characterize the plea bargaining process and
have instead focused on their duty to ensure that defendants
receive the fair trial to which they are constitutionally
entitled.
¶18 	Thus, we conclude that Greuber suffered no prejudice
from his attorneys’ failure to listen to the recordings because
he received a fair trial. 	Additionally, we conclude that he
suffered no prejudice based upon the factual findings of the
district court. 	Conflicting evidence was presented to the court.
Greuber maintained his innocence and testified that he would have
taken the plea offer. 	His defense attorneys, however, testified
that they did not believe Greuber would have accepted the plea,
because he had expressed to them that he did not want to plead
guilty to murder, and because dropping the aggravated kidnaping
charge would have had only a nominal impact on his sentence. 	The
district court was well within its discretion in giving more
weight to the testimony of the attorneys than to Greuber’s, and
its factual determination was not clearly erroneous. 	Therefore,
we affirm the trial court’s conclusion that Greuber suffered no
prejudice from his attorneys’ failure to investigate because he
would not have accepted the guilty plea in any event. 	Finding no
prejudice in Greuber’s rejection of the plea offer, we need not
examine whether the performance of the attorneys in this case was
actually deficient.
CONCLUSION
¶19 	We conclude that Greuber did not suffer prejudice due
to his counsels’ failure to investigate evidence that may have
militated in favor of accepting a plea. 	Greuber had a fair
trial, and he would not in any event have accepted a plea to the
charge of murder. 	Affirmed.
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No. 20060009 	10
¶20 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.