from the Superior Court in Maricopa County The Honorable
Teresa A. Sanders, Judge No. CR2013-449134
of the Court of Appeals, Division One 240 Ariz. 229, 377 P.3d
1024 (App. 2016)
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Jana Zinman (argued), Assistant Attorney General,
Phoenix, Attorneys for State of Arizona.
Lieberman, Legal Defender, Maricopa County Office of the
Legal Defender, Cynthia Dawn Beck (argued), Deputy Legal
Defender, Phoenix, Attorneys for Dustin Gill.
McDonald, Osborn Maledon PA, Phoenix, and Mikel Steinfeld,
Maricopa County Public Defender's Office, Phoenix,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
BOLICK, GOULD, and BERCH (Retired) [*] joined.
Arizona Rule of Evidence 410(a)(4) requires a court to
exclude statements made by a defendant during plea
discussions with a prosecutor if the discussions do not
result in a guilty plea. This case concerns whether
statements made in furtherance of a deferred prosecution
agreement are protected by Rule 410(a)(4). We hold that this
evidentiary rule does not apply to discussions about deferred
prosecution and that a knowing waiver of its provisions does
not require specifically referencing the rule.
In 2013, a private security guard found Dustin Gill in a
restroom stall with several grams of marijuana. The State
charged Gill with possession or use of marijuana, a class 6
felony. In June 2014, Gill rejected a plea agreement during a
comprehensive pretrial conference. In July, the State reduced
Gill's charge to a class 1 misdemeanor. At a September 3
settlement conference, Gill agreed to participate in a drug
treatment program through the Treatment Assessment Screening
Center ("TASC") in return for the State deferring
Immediately after accepting the deferred prosecution
agreement, Gill and his attorney met with a TASC
representative to register for the diversion program. During
the meeting, Gill completed a form titled, "Maricopa
County Attorney / TASC Drug Diversion Program Statement of
Facts." On the form, Gill initialed that he understood
his Miranda rights and avowed that "I fully
understand that what I have written here may be used against
me in a court of law should I fail to satisfactorily complete
the TASC program." When required to describe the facts
of the offense on the form, Gill wrote the following
admission: "The marijuana was found in the bathroom on
the ground in my possession."
In December 2014, the State resumed the prosecution because
Gill had failed to attend TASC seminars and had tested
positive for alcohol and marijuana while in the TASC program.
Gill subsequently moved to suppress the statements he gave to
TASC on September 3, arguing in part that they were made
during plea discussions and consequently protected by Rule
410. The trial court denied Gill's motion.
After a bench trial, the trial court found Gill guilty,
suspended his sentence, and placed him on one year of
unsupervised probation. Gill appealed. Rejecting Gill's
arguments that his statements to TASC were inadmissible under
Rule 410(a)(4), the court of appeals held that the statements
were not made to a prosecutor during plea discussions and
Gill had, in any event, waived the rule's protections.
State v. Gill, 240 Ariz. 229, 230-31 ¶¶
7-9, 377 P.3d 1024, 1025-26 (App. 2016).
We granted review to address whether Rule 410(a)(4) applies
to deferred prosecution agreements, a legal issue of
statewide importance. We have jurisdiction under article 6,