Ineffective assistance of counsel; Failure to accurately advise of the consequences of rejecting a plea offer; Jury instructions on self-defense; Denial of request for an instruction on the no-duty-to-retreat rule; Lesser-included offense instruction

The court held that given the trial court’s prejudicial instructional errors, defendant-Martinez was entitled to a new trial. However, she may also be entitled to reinstatement of the plea offer. Thus, it vacated her convictions and sentences and remanded for further development of the record at a continued Ginther hearing. She was convicted of felonious assault and felony-firearm. Her appellate arguments centered on the circumstances surrounding a rejected plea offer. She claimed that her trial attorney, A, “failed to adequately explain to her a plea offer made by the prosecution early in the proceedings.” At the 2/27/18 final conference, the parties agreed that A “would ‘write a letter to the Gun Board’ before finalizing plea negotiations.” The proceedings reconvened on 3/13, but the Gun Board had not yet met. Thus, the matter was adjourned until 3/15. A subsequently requested production of the transcript from the 3/15 hearing. “The court reporter advised that she had no notes from the hearing. Represented by different counsel, Martinez filed her claim of appeal, initial appellate brief and motion to remand without the benefit of this transcript.” After remand, the court reporter found her notes and produced a transcript. It meaningfully contradicted A’s Ginther hearing testimony that “he asked the court to place Martinez under oath to ensure that she understood the terms and benefits of the plea offer.” The court noted that without the benefit of the transcript, the trial court on remand denied her motion to reinstate the plea offer on ineffective assistance of counsel grounds. Given the belated production of the transcript, “the parties were unable to adequately prepare for the Ginther hearing and address the questions presented.” Continuation of that hearing was “required to further develop the record with the benefit of this vital information. Only with the benefit of further testimony can the trial court make an initial determination of whether [A’s] performance fell below constitutional standards.” The court further held that the “trial court erred in denying Martinez’s request for an instruction regarding the no-duty-to-retreat rule in relation to the self-defense instruction.” If the jury had been informed she “had a right to stand her ground in addition to a right to use force,” there was a reasonable likelihood of a different verdict. The “failure to give the requested instruction denied Martinez a fair trial.”