¶1concurring in part and dissenting in part
¶2¶48 I concur in the opinion, but write separately because I disagree with the majority’s suggestion that the trial court may order the prosecution to reinstate a plea agreement to remedy a violation of a defendant’s right to counsel at the plea bargaining stage of the proceedings. When or whether to offer a plea agreement is, as the majority acknowledges, a “core prosecutorial power,” see supra ¶39, a matter committed to the sound discretion of the prosecution, an executive branch agency. See State v. Larson, 159 Ariz. 14, 17, 764 P.2d 749, 752 (1988) (quoting State v. Jones, 142 Ariz. 302, 305, 689 P.2d 561, 564 (App.1984) (“the power to divert the prosecution of a case is and always has been an executive function”)). I therefore believe that ordering the prosecution to offer a particular plea agreement transgresses too deeply into the prosecutorial realm and *419usurps too great a portion of the function of the executive to comport with separation of powers principles. See Larson, 159 Ariz. at 17, 764 P.2d at 752 (citing J.W. Hancock Enters, v. Registrar of Contractors, 142 Ariz. 400, 405-06, 690 P.2d 119, 124-25 (App.1984)).
¶3¶49 As the majority notes, the efficient functioning of government may at times best be served by blending the functions of the branches of government. See supra ¶ 36. Nonetheless, while allowing blending, Arizona’s Constitution prohibits usurpation, or too deep an intrusion by any one branch into the functions of another branch. See State ex rel. Woods v. Block, 189 Ariz. 269, 276, 942 P.2d 428, 435 (1997). Our supreme court has framed the relevant test for determining when the incursion exceeds permissible limits as whether “one branch of government ‘is exercising “the powers properly belonging to either of the others.” ’ ” Id.(quoting Hancock, 142 Ariz. at 405-06, 690 P.2d at 124-25, and Ariz. Const. art. 3). If the court, a judicial branch entity, were to impose a particular plea agreement, an executive function, it would be exercising powers “properly belonging to [the executive, one] of the other[ branches of government].” I therefore believe that the proposed remedy of ordering reinstatement of a plea agreement is an improper usurpation rather than a permissible blending of governmental powers.
¶4¶ 50 The majority relies on federal cases suggesting that the court may recommend reinstatement of a plea. See, e.g., Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (allowing reinstatement of a plea agreement to remedy prosecutorial misconduct). Although perhaps permissible under the federal constitution, which contains no explicit separation of powers provision, ordering reinstatement cuts too deeply into the prosecution’s domain to comport with Arizona’s Constitution, which contains an explicit separation of powers clause. See Ariz. Const. art. 3; see also Mecham v. Gordon, 156 Ariz. 297, 300, 751 P.2d 957, 960 (1988) (“Nowhere in the United States is this system of structured liberty [i.e., separation of powers] more explicitly and firmly expressed than in Arizona.”). The majority does not suggest, nor could it in light of federalism concerns, that to fashion a remedy for a violation of a defendant’s federal Sixth Amendment rights Arizona need sacrifice its own constitution, if other remedies are available.
¶5¶ 51 The trial court is not remediless. The trial court may order a new trial, providing the parties the opportunity to renew plea negotiations. Moreover, courts have powers, specified and inherent, with which to encourage the prosecution’s cooperation and assistance in remedying a violation of a defendant’s constitutional rights, even when the violation is not the fault of the prosecution. Such encouragement includes the ultimate power to dismiss the case if an appropriate resolution, such as reinstatement of a plea agreement, is not voluntarily forthcoming. Cf. Ariz. R.Crim. P. 24.2 (court’s power on motion to vacate a conviction obtained in violation of Arizona and United States Constitutions), 24.1 (court’s power to order new trial); New York v. United States, 505 U.S. 144, 149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (holding that “while Congress has substantial power under the Constitution to encourage the States to [act in a particular way], the Constitution does not confer upon Congress the ability simply to compel the States to do so”) (emphasis added). See generally Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary, 4-5 (1994) (citing cases). Similarly, while the court may encourage executive officers who have not committed any misconduct to act in a particular way, it may not compel them to do so without violating separation of powers principles.
¶6¶ 52 I therefore agree with my colleagues in all respects set forth in the majority opinion, except that I believe that for the judicial branch to order executive branch officers to offer any particular plea agreement in any particular case intrudes too deeply on the function of the executive branch.