O'BRIEN v. Escher, No. 2 CA-SA 2003-0008

• Citation: 65 P.3d 107,204 Ariz. 459
• Decision Date: 24 March 2003
• Docket Number: No. 2 CA-SA 2003-0015., No. 2 CA-SA 2003-0008
• Parties: Jeremy Sean O'BRIEN and April Luette Stockton, Petitioners, v. The Honorable Patricia G. ESCHER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest.
• Court: Court of Appeals of Arizona

65 P.3d 107
204 Ariz. 459

Jeremy Sean O'BRIEN and April Luette Stockton, Petitioners,
v.
The Honorable Patricia G. ESCHER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and
The STATE of Arizona, Real Party in Interest

Nos. -0008, -0015.

Court of Appeals of Arizona, Division 2, Department B.

March 24, 2003.

65 P.3d 108

Isabel G. Garcia, Pima County Legal Defender, By Stephan J. McCaffery, Tucson, for Petitioner O'Brien

Susan A. Kettlewell, Pima County Public Defender, By Ken Bowman, Tucson, for Petitioner Stockton.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Real Party in Interest.

OPINION

PELANDER, Presiding Judge.

¶ 1 In these consolidated special actions, petitioners Jeremy Sean O'Brien and April Luette Stockton ask us to decide whether the November 2002 amendment by referendum of A.R.S. § 13-901.01(E), which allows a criminal defendant convicted of a "Proposition 200" offense to be incarcerated under certain circumstances, may be applied retroactively to a defendant whose offense was committed before November 25, 2002, the effective date of the amendment, see article IV, pt. 1, § 1(5), Ariz. Const., but who violated the conditions of probation after that date. The other issue O'Brien raises is whether our supreme court's decision in State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001), applies to his conviction and sentence for a drug paraphernalia offense he committed before Estrada was decided, thereby precluding the respondent judge from ordering him to serve a jail term on that conviction after finding O'Brien had violated his probation conditions.

SPECIAL ACTION JURISDICTION

¶ 2 In their underlying criminal cases, petitioners were convicted of first-time drug offenses subject to Proposition 200 and were placed on probation pursuant to § 13-901.01(A). After subsequently finding that both petitioners had violated the conditions of their probation, the respondent judge imposed a new condition of probation by ordering them to serve ninety-day jail terms. This court stayed the respondent judge's orders pending our consideration of these special actions.

¶ 3 In light of the pending jail terms, which would be served by the time any appeal could be heard, petitioners do not have an equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. Special Actions 1(a), 17B A.R.S.; see also Green v. Superior Court, 132 Ariz. 468, 470, 647 P.2d 166, 168 (1982) (remedy by appeal inadequate because "[n]o matter how much the appeal might be expedited, petitioner would have served at least a substantial part of ... [his] jail time before disposition"); Washington v. Superior Court, 180 Ariz. 91, 93, 881 P.2d 1196, 1198 (App.1994) (remedy of post-conviction proceeding inadequate because probationer would have served probationary incarceration while such proceeding was pending). In addition, our acceptance of jurisdiction of these special actions is appropriate because the cases raise questions of law that are of statewide importance, apparently of first impression, and likely to recur. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, ¶ 4 (App.2002); Baker v. Superior Court, 190 Ariz. 336, 338, 947 P.2d 910, 912 (App.1997). We therefore accept jurisdiction of these special actions.

BACKGROUND

¶ 4 In October 2001, Stockton pled guilty to solicitation to possess a narcotic drug, a class six, open-ended offense that she committed in January 2001. She was placed on probation for three years in November 2001 pursuant to § 13-901.01(A). On December

65 P.3d 109

11, 2002, Stockton admitted she had violated her conditions of probation by failing to inform a probation officer that she had changed her residence, leaving the drug treatment facility where she had been residing, and not completing court-ordered community service. At a disposition hearing on December 31, the respondent judge continued Stockton's probation and ordered her to serve a ninety-day jail term as an additional condition of probation

¶ 5 O'Brien was convicted pursuant to a plea agreement of solicitation to possess a narcotic drug and possession of drug paraphernalia based on offenses he committed in June 2001. He was placed on probation in July. On January 15, 2003, after finding O'Brien had violated his probation conditions by committing new drug-related offenses, the respondent judge extended O'Brien's probationary period and ordered him to serve a ninety-day jail term.

DISCUSSION

I. Retroactive Application of Amended § 13-901.01(E)

¶ 6 Both petitioners' convictions were subject to Arizona's "Drug Medicalization, Prevention, and Control Act of 1996," commonly known as Proposition 200, a ballot initiative passed by the electorate in 1996 and codified as A.R.S. § 13-901.01.1997 Ariz. Sess. Laws, pp. 2895-2904. See generally Estrada; State v. Tousignant, 202 Ariz. 270, 43 P.3d 218 (App.2002). One of the stated purposes of Proposition 200 was "to require that non-violent persons convicted of personal possession or use of drugs successfully undergo court-supervised ... treatment." 1997 Ariz. Sess. Laws, p. 2897. Consistent with that purpose, § 13-901.01(E) provided at the time both petitioners committed their offenses:

A person who has been placed on probation under the provisions of this section and who is determined by the court to be in violation of probation shall have new conditions of probation established by the court. The court shall select the additional conditions it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other such sanctions short of incarceration.

1999 Ariz. Sess. Laws, ch. 261, § 11. As Division One of this court has noted, that subsection "require[d] that Proposition 200 probation violators be reinstated on probation with additional conditions," and "incarceration [wa]s not an available option." Tousignant, 202 Ariz. 270, ¶¶ 6, 8, 43 P.3d 218, ¶¶ 6, 8.

¶ 7 By a referendum election held on November 5, 2002, the voters approved H.C.R. 2013 (2002), commonly known as Proposition 302, which amended § 13-901.01(E). That subsection now provides:

A person who has been placed on probation pursuant to this section and who is determined by the court to be in violation of probation shall have new conditions of probation established by the court. The court shall select the additional conditions it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest or any other sanctions except that the court shall not impose a term of incarceration unless the court determines that the person violated probation by committing an offense listed in chapter 34 or 34.1 of this title or an act in violation of an order of the court relating to drug treatment.

Thus, the amended statute currently permits sentencing judges to incarcerate a person convicted of a first-time, Proposition 200 offense who later commits certain violations of the terms of his or her probation.

¶ 8 Both O'Brien and Stockton objected to the imposition of jail terms as probationary conditions, arguing that the amended version of § 13-901.01(E) did not apply because it was not in effect at the time they committed their offenses. O'Brien further argued that applying the amended statute to him as authorizing the imposition of a jail term violated the constitutional prohibition against the enactment of ex post facto laws.¹ See U.S. Const. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25. Petitioners reassert these arguments

65 P.3d 110

in their special actions, contending the respondent judge exceeded her authority by ordering them to serve a jail term. In its response, real party in interest State of Arizona reviewed the applicable law but opted to "not present an argument supporting the trial court's orders at issue." At oral argument in this court, however, the state conceded error. "Although we are not required to accept the state's confession of error," State v. Dominguez, 192 Ariz. 461, ¶ 7, 967 P.2d 136, ¶ 7 (App.1998), we agree with the parties that the respondent judge erred in imposing jail terms as conditions of probation

¶ 9 Section § 1-244, A.R.S., states that "[n]o statute is retroactive unless expressly declared therein." Neither Proposition 302 nor its resulting amendment to § 13-901.01(E) includes any such express declaration. Additionally, A.R.S. § 1-246 provides:

When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed.

That statute "is a clear and unequivocal expression of legislative intent that an offender's punishment is to be determined when he commits his offense." Baker, 190...