State v. Benak

• Citation: 18 P.3d 127,199 Ariz. 333
• Decision Date: 23 January 2001
• Docket Number: No. 1 CA-CR 99-0920.,1 CA-CR 99-0920.
• Parties: STATE of Arizona, Appellee, v. David Jay BENAK, Appellant.
• Court: Court of Appeals of Arizona

18 P.3d 127

199 Ariz. 333

STATE of Arizona, Appellee, v. David Jay BENAK, Appellant.

No. -0920.

Court of Appeals of Arizona, Division 1, Department A.

January 23, 2001.

Janet A. Napolitano, Arizona Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and J.D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender, Phoenix, Attorney for Appellant.

OPINION

BERCH, Judge.

¶ 1 David J. Benak ("Defendant") appeals his conviction and sentence for possession of a dangerous drug. He contends that the trial court erred by not sentencing him to probation pursuant to Arizona Revised Statutes ("A.R.S.") section 13-901.01 (Supp.2000). Because we agree with Defendant, we remand for resentencing.

BACKGROUND

¶ 2 The State charged Defendant with two counts of aggravated assault, and one count each of resisting arrest, possessing a dangerous drug, and possessing drug paraphernalia. A jury acquitted him of the aggravated assault charges, but convicted him of resisting arrest and possessing a dangerous drug and drug paraphernalia.

¶ 3 Before trial, the State alleged that Defendant had four nondangerous prior felony convictions. Following trial, the court found that Defendant had two prior historical felony convictions, one of which was for a class 3 aggravated assault. As a result, the trial court sentenced Defendant to a mitigated eight-year term for possession of dangerous drugs. The court also sentenced him to presumptive terms of 3.75 years each for resisting arrest and possession of drug paraphernalia, ordered that all sentences be served concurrently, and awarded presentence incarceration credit.

¶ 4 Defendant timely appealed his convictions, as well as the sentence on the drug charge and the award of presentence incarceration credit on all counts. Because only our resolution of the question regarding Defendant's sentence on the possession of a dangerous drug charge merits publication, we have addressed the remaining issues in a separate memorandum decision. See ARCAP 28(g); Ariz.R.Sup.Ct. 111(h).

ISSUES

¶ 5 In determining whether the trial court erred in not granting Defendant probation upon his conviction for possession of a dangerous drug, we address two questions:

1. Was the State required to allege before trial that Defendant was ineligible for probation on his drug possession conviction because he had previously been convicted of a violent crime?

2. If the State failed to make the pretrial allegation, did the State nonetheless provide Defendant with adequate notice that it was alleging that Defendant had committed a violent crime?

DISCUSSION

A. Was Notice Required?

¶ 6 Any person convicted for the first or second time of possession of certain controlled substances is eligible for probation, see A.R.S. § 13-901.01(A), (G), if the person has not previously been indicted for or convicted of a violent crime. See A.R.S. § 13-901.01(B).¹ Section 13-901.01 was passed in 1996 to implement "Proposition 200," an initiative calling for treatment rather than incarceration for those convicted of possessing dangerous drugs for personal use who do not have prior convictions for violent crimes. See A.R.S. § 13-901.01 (Historical and Statutory Notes). The possession conviction is Defendant's first conviction for a drug offense. As a result, Defendant argues, the court erred by not imposing probation for that offense because the State failed to properly allege and prove that a prior conviction for a violent crime rendered him ineligible for probation. See Proposition 200, § 3; A.R.S. § 13-901.01(A), (B).

¶ 7 The record clearly shows that, although the State alleged prior non dangereous felony convictions, as required under A.R.S. section 13-604 (Supp.2000), it did not allege that Defendant had committed a prior "violent" crime. Although "dangerous" and "violent" are separate concepts, they share a similar definition. A dangerous offense is one "involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury upon another." A.R.S. § 13-604(P). A "violent crime," in addition to being "any criminal act that results in death or physical injury," is one that involves "any criminal use of a deadly weapon or dangerous instrument." A.R.S. § 13-604.04(B). The State's allegation of non dangerous prior felonies certainly does not provide notice that the State intended to allege a violent crime. The State does not contest this fact, but argues that the sentence should nonetheless be upheld.

¶ 8 Arizona law requires that the State provide notice in advance of trial if it wishes to enhance a sentence based upon the defendant's conviction for a prior violent offense:

A. The allegation that the defendant committed a violent crime shall be charged in the indictment or information and admitted or found by the court....

B. For the purpose of this section, "violent crime" includes any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument.

A.R.S. § 13-604.04 (emphasis added).

¶ 9 The State contends that, even though the statute clearly appears to require that it "shall" allege violent prior convictions before to trial, section 13-901.01 does not, by its terms, require that notice be given pursuant to A.R.S. section 13-604.04(A). Indeed, according to the State, section 13-901.01 requires no notice at all. Supra note 1 (text of statute). Whether subsections 13-901.01(A) and (B) require that notice be given pursuant to section 13-604.04 is a question of statutory interpretation, which we review de novo. See, e.g., State v. Burkett, 179 Ariz. 109, 111, 876 P.2d 1144, 1146 (App.1993)

.

¶ 10 Section 13-604.04 provides the statutory procedures for notifying a defendant that the State seeks to impose an enhanced penalty. Like other statutes describing substantive offenses to which special sentencing provisions apply, and that are additionally subject to enhancement pursuant to section 13-604(P) or 13-604.04 because of their dangerous or violent nature, section 13-901.01(B) does not expressly require that notice pursuant to section 13-604.04(A) be given.² It does, however, expressly incorporate the definition of violent crime from section 13-604.04, the very statute requiring that the State "shall" allege the violent nature of an enhancement offense in the indictment or information or by a timely pre-trial notice or motion. This incorporation supports the conclusion that the State must provide notice pursuant to section 13-604.04 if it intends to preclude a sentence of probation on the grounds that a defendant has been convicted of a violent crime.

¶ 11 The history of the relevant statutes provides yet another indication that the State must give notice if it wishes to enhance a defendant's sentence with a prior conviction for a violent crime. Like section 13-901.01, the notice requirement of section 13-604.04 was adopted as part of the statutory scheme enacted to implement Proposition 200. The initiative language that became section 13-901.01(B) referred to "violent crime as defined [in] § 41-1604.14, subsection B," another section that originated in the initiative measure. Proposition 200, §§ 5, 10(B). Section 41-1604.14 was subsequently renumbered as 41-1604.15, and the definition of "violent crime" was moved to section 13-604.04, which included, as subsection A, the requirement that allegations of violent crimes be filed before trial, and, as subsection B, a definition of "violent crime." 1997 Ariz.Sess. Laws, ch. 6, §§ 1, 3. Finally, the reference in section 13-901.01(B) to the definition of violent crime was changed from section "41-1604.15, subsection B" to section 13-604.04, with no specification of a particular subsection. 1999 Ariz. Sess. Laws, ch. 261, § 12. It thus appears that the reference in section 13-901.01 to 13-604.04 was intended to incorporate all of section 13-604.04, including the notice requirement.

¶ 12 This history demonstrates that sentence enhancement based on the commission of a violent crime is an integral part of the statutory scheme enacted to codify Proposition 200. Nothing in the language of section 13-604.04 provides that it does not apply to section 13-901.01 cases. The notice requirement of section 13-604.04 therefore applies to the statutes enacted to codify Proposition 200.³

¶ 13 We find further support for this conclusion in the language of the notice statute, which closely resembles that in A.R.S. section 13-604(P), the statute generally governing allegations of prior convictions, dangerousness, and commission of offenses while on pretrial release. Like a finding of those factors, a finding that a defendant has committed a violent crime increases the range of the potential punishment and renders the defendant ineligible for probation and subject to incarceration. Compare A.R.S. § 13-604 with A.R.S. § 13-901.01(B). We therefore find the interpretation of the notice provisions of section 13-604(P) instructive in construing section 13-604.04 and in determining procedures necessary to address the constitutional concerns that lack of notice of intent to proceed under section 13-901.01(B) might raise.

¶ 14 As does section 13-604.04, section 13-604(P) requires the State to file allegations that a defendant committed a violent crime before trial begins. Cf. State v. Rodgers, 134 Ariz. 296, 306, 655 P.2d 1348, 1358 (App.1982)

(holding that all allegations of prior convictions must be made before trial). Pretrial notice enables a defendant to know the full range of potential punishment he faces upon conviction; fundamental fairness and due process require that allegations that would enhance a sentence be made before trial so that the defendant can evaluate his options. State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 ...