State v. Patterson

• Citation: 222 Ariz. 574,218 P.3d 1031
• Decision Date: 20 October 2009
• Docket Number: No. 1 CA-CR 08-0610.,1 CA-CR 08-0610.
• Parties: STATE of Arizona, Appellee, v. Maurice PATTERSON, Appellant.
• Court: Court of Appeals of Arizona

218 P.3d 1031

222 Ariz. 574

STATE of Arizona, Appellee, v. Maurice PATTERSON, Appellant.

No. 1 CA-CR 08-0610.

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

October 20, 2009.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Bruce F. Peterson, Legal Advocate by Consuelo M. Ohanesian, Deputy Legal Advocate, Phoenix, Attorneys for Appellant.

OPINION

BARKER, Judge.

¶ 1 This appeal asserts constitutional error based on an alleged geographical rule requiring a trial court confronted with conflicting decisions to follow the decision of the division of the court of appeals within which it is located. Finding that no such rule exists, we affirm Appellant's conviction and sentence.

I.

¶ 2 On June 9, 2008, a jury found Appellant Maurice Patterson guilty of possession of narcotic drugs. Subsequently, the State proved that Patterson had two prior drug convictions: one for attempted possession or use of narcotic drugs and one for possession of narcotic drugs. Proposition 200, an initiative passed by the Arizona electorate, requires trial courts to sentence defendants convicted of certain drug crimes to probation or incarceration based on the defendant's number of drug convictions. Ariz.Rev.Stat. ("A.R.S.") § 13-901.01 (Supp. 2008). Under A.R.S. § 13-901.01(H)(1), a defendant who has "been convicted three times of personal possession of a controlled substance or drug paraphernalia" is ineligible for probation.

¶ 3 At issue during sentencing was whether Patterson's prior preparatory drug offense counted as a conviction under § 13-901.01(H)(1). Patterson argued that pursuant to State v. Ossana, 199 Ariz. 459, 18 P.3d 1258 (App.2001), a decision from a panel¹ in Division 2 of this court, he was eligible for probation because his conviction for attempted possession or use of a narcotic drug did not constitute a conviction under § 13-901.01(H)(1). The State argued that Patterson's preparatory drug conviction qualified as a conviction under § 13-901.01(H)(1) based on Raney v. Lindberg, 206 Ariz. 193, 76 P.3d 867 (App.2003). Raney is a subsequent decision from a panel in Division 1 that reached a conclusion contrary to Ossana. Id. at 199-200, 76 P.3d at 873-74. The trial court followed Raney and determined that Patterson's two convictions for possession of narcotic drugs and one conviction for attempted possession or use of narcotic drugs qualified as convictions under § 13-901.01(H)(1). Consequently, Patterson was not eligible for probation, and the trial judge sentenced him to 4.5 years imprisonment.

¶ 4 Patterson timely filed a notice of appeal. He alleges that the trial court violated his right to equal protection under the Arizona and United States Constitutions because of a purported geographical rule requiring a trial court presented with conflicting decisions from panels in Division 1 and Division 2 to apply the case law from the division within which the trial court is located.

¶ 5 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001). We review Patterson's constitutional challenge de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). We also consider matters of statutory construction de novo. Mejak v. Granville, 212 Ariz. 555, 556, ¶ 7, 136 P.3d 874, 875 (2006).

II.

¶ 6 In addressing Patterson's argument, it is helpful to review a brief history of the structure of our court and the statutory scheme that establishes it.² When the court of appeals was first created in 1965 it was composed of only six judges. Each judge sat in one of two separate divisions. There were no "departments" or "panels" as we know them today. One division of three judges, Division 1, sat in Phoenix and one division of three judges, Division 2, sat in Tucson. The two divisions were designated "a single court." 1964 Ariz. Sess. Laws, ch. 102, § 1 (2nd Reg. Sess.). The complete text of the original statute was as follows:

A. There is created a court of appeals which shall constitute a single court and such court shall be a court of record.

B. The court of appeals shall be divided into the two divisions which shall be designated as division 1 and division 2. Each division shall have three judges.

C. Division 1 shall consist of the counties of Maricopa, Yuma, Mohave, Coconino, Yavapai, Navajo and Apache.

D. Division 2 shall consist of the counties of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila.

E. The sessions of division 1 and 2 shall be held in Phoenix and Tucson respectively. Sessions may be held at places other than Phoenix or Tucson when in the opinion of a majority of the judges of a division the public interest so requires. The judges of the respective divisions may hold sessions in either division and shall do so when directed by the chief justice of the supreme court.

Id.

¶ 7 Arizona's population has grown dramatically since 1965. Accordingly, the court's organizational structure has been modified by statute to accommodate the addition of new judges necessary to meet the increased caseload driven by the rise in population. This has resulted in significant changes, in both nomenclature and structure, in the way the court operates from its inception until today. Initially, when there were only three judges in each division, the court issued decisions by division. Id. It was then completely accurate to say Division 1 decided thus and such because a three-judge division — the entirety of Division 1 — in fact made the decision.

¶ 8 Today, there are sixteen judges in Division 1 and six in Division 2. A.R.S. § 12-120 (2003). As the court grew, the legislature established departments consisting of three judges each to issue decisions of the court. Compare id. with 1969 Ariz. Sess. Laws, ch. 48, § 1 (1st Reg. Sess.); 1973 Ariz. Sess. Laws, ch. 147, § 3 (1st Reg. Sess.); 1981 Ariz. Sess. Laws, ch. 185, § 1 (1st Reg. Sess.); 1984 Ariz. Sess. Laws, ch. 198, § 1 (2nd Reg. Sess.); 1988 Ariz. Sess. Laws, ch. 38, § 1 (2nd Reg. Sess.); 1994 Ariz. Sess. Laws, ch. 245, § 1 (2nd Reg. Sess.). Pursuant to § 12-120(B), seven departments of three judges issue decisions: five in Division 1 and two in Division 2.³ As our current statute makes clear, "divisions" no longer make decisions:

F. No more than three judges of the court of appeals, including superior court judges and retired judges sitting with the court, shall hear and determine a matter and render a decision, and a majority of two of the three judges shall be sufficient to render a decision.

A.R.S. § 12-120(F) (emphasis added). Section 12-120.07, a related statute governing the publication of court of appeals decisions, reinforces this change. Section 12-120.07 states that "[e]ach of the departments shall have the power to hear and determine causes and all questions arising therein." Id. § 12-120.07(A) (emphasis added). Thus, "divisions" no longer decide cases. It would be wrong to now say, for example, "Division 1 held" or "Division 2 ruled." Our court has no statutory authority to sit en banc (for example, 16 judges sitting together in Division 1 or six judges sitting together in Division 2) or in any other "divisional" capacity.⁴ In terms of making decisions, we only operate in three-judge panels or departments of "a single court," regardless of the division in which the department is located. Divisions do not "hold," "rule," or "decide."

¶ 9 An unfortunate carryover from the evolution of § 12-120 is that language in some of our opinions does not correspond to the operation of our court. For example, in National Indemnity Co. v. St. Paul Insurance Cos., 150 Ariz. 492, 724 P.2d 578 (App.1985), we stated that, "[w]hile it is true that one division of the Court of Appeals is not bound by a decision of the other division, only the most cogent of reasons will justify a divergence between the two." Id. at 493, 724 P.2d at 579 (emphasis added). This terminology is confusing because a division has not issued a decision since 1984. Departments alone have issued decisions in Division 1 since 1969, and in Division 2 beginning in 1985. See 1969 Ariz. Sess. Laws, ch. 48, § 1 (2nd Reg. Sess.); 1984 Ariz. Sess. Laws, ch. 198, § 1 (2nd Reg. Sess.).

¶ 10 Outdated statutory language is another reminder of how the court of appeals previously operated. Section 12-120.07 currently states:

The opinions of a division or of a department of the court of appeals shall be in writing, the grounds stated, and shall be concurred in by a majority of a department if heard by a department or of the division if heard by the division. An opinion of a division or a department of a division shall be the opinion of the court of appeals.

A.R.S. § 12-120.07(A) (emphasis added). The references to a "division" making a decision are now moot, as set forth above. Thus, while this court no longer decides cases by division, vestiges of that earlier decision-making structure still remain.

¶ 11 The departmental, and previous divisional, structure of our court inevitably can and does lead to conflicting decisions. Compare Raney, 206 Ariz, at 199-200, 76 P.3d at 873-74 (finding that a preparatory drug offense qualifies as a conviction prohibiting probation under Proposition 200), with Ossana, 199 Ariz, at 461-62, 18 P.3d at 1260-61 (finding that a preparatory drug offense does not qualify as a conviction prohibiting probation under Proposition 200); State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 247, 249, 782 P.2d 723, 725 (App.1989) (finding that the absence of an insurance provision expressly excluding punitive damages does not render insurer liable for punitive damages), with State Farm Fire & Cas. Co. v. Wise, 150 Ariz. 16, 17, 721 P.2d 674, 675 (App.1986) (finding that the absence of an insurance provision expressly...