Calik v. Kongable
| Citation | 990 P.2d 1055,195 Ariz. 496 |
| Decision Date | 20 December 1999 |
| Docket Number | No. CV-98-0389-PR.,CV-98-0389-PR. |
| Parties | David Peter CALIK, Petitioner, v. Hon. Kirby KONGABLE, Judge of the Superior Court of the State of Arizona, in and for the County of Yuma, Respondent Judge, State of Arizona, Real Party in Interest. |
| Court | Supreme Court of Arizona |
Ronald F. Jones, Yuma County Public Defender By: Victoria L. Thompson, Michael J. Perry, William A. Albright, Yuma, and Snell Wilmer, L.L.P. By: Patricia Lee Refo, Phoenix Attorneys for David Peter Calik, Petitioner.
Janet A. Napolitano, Arizona Attorney General By: Paul J. McMurdie, Phoenix, Attorneys for Hon. Kirby Kongable, Respondent Judge.
Patricia A. Orozco, Yuma County Attorney By: Mark Edward Hessinger, Thomas W. Jones, Yuma, Attorneys for State of Arizona, Real Party in Interest.
Brown & Bain, P.A. By: Paul F. Eckstein, John J. Tuchi, Phoenix, Attorneys for Arizonans for Drug Policy Reform and The People Have Spoken, Amici Curiae.
¶ 1 We granted review to determine whether the initiative proposal adopted as Proposition 200 prohibits a trial court from imposing jail time as a condition of probation for a person convicted of first-offense personal possession or use of a controlled substance. We hold that incarceration may not be imposed under such circumstances.
¶ 2 In 1996, voters approved an initiative proposal known as Proposition 200, the Drug Medicalization, Prevention, and Control Act of 1996, which made changes to Arizona's law as it pertained to persons convicted of personal possession or use of a controlled substance. Proposition 200, codified as A.R.S. § 13-901.01, requires courts to suspend sentencing and impose probation for first-time offenders. It also directs that offenders participate in an appropriate drug treatment or education program as a condition of probation.
¶ 3 In 1997, David Peter Calik pleaded guilty to possession of methamphetamine weighing less than nine grams, a class 4 felony. The trial judge concluded that because Calik was a first-time offender, he was to be sentenced under § 13-901.01. He also determined he could incarcerate Calik in the county jail as a condition of probation. Calik objected, arguing that Proposition 200 prohibited the judge from imposing such a condition. Prior to sentencing, Calik filed a special action in the court of appeals, and his sentencing was stayed.
¶ 4 While Calik's special action was pending, the legislature passed S.B. 1373, which amended § 13-901.01(E) to eliminate language that prohibited incarceration as a modified term of probation for first-time offenders who violated the terms of their probation. It also added a subsection to the general probation statute specifically permitting incarceration as a condition of probation for a defendant placed on probation pursuant to § 13-901.01. The legislation was to become effective in July 1997 but a citizen's group, The People Have Spoken-SB 1373, succeeded in placing two referendum measures to repeal the legislation on the November 1998 general election ballot.
¶ 5 The Secretary of State certified the referenda in August 1997, thus suspending application of S.B. 1373's provisions pending the outcome of the 1998 election. See ARIZ. CONST. art. IV, pt. 1, § 1. In spite of the certification, on October 23, 1997, the court of appeals affirmed the trial judge's incarceration order, basing its opinion in large part on the amendments in S.B. 1373.
¶ 6 Calik filed a motion for reconsideration, in which the group proposing the referenda joined as amicus curiae. He pointed out that S.B. 1373 had not taken effect and argued that Proposition 200 prohibited trial judges from imposing the jail time allowed under § 13-901(F), the general probation statute, as a condition of probation for first-time offenders convicted under § 13-901.01. Such a condition would contravene Proposition 200's emphasis on treatment and education, not incarceration, for first-time offenders. He also argued that interpreting the statute to permit jail incarceration as a condition of probation under § 13-901.01(D) would be inconsistent with § 13-901.01(E), which prohibits a court from imposing incarceration as a sanction for violating the terms of probation.
¶ 7 The court of appeals granted Calik's motion for reconsideration and withdrew its opinion. The court thereafter issued a second opinion, still disagreeing with Calik's arguments. In the November 1998 election, the voters passed the two referenda, thus rejecting S.B. 1373. The amendments to § 13-901.01 therefore never went into effect.
¶ 8 In its second opinion, the court first looked at the language in the Findings and Declarations portion of the proposition, which prohibited incarceration in prison and did not mention jail, found a distinction between the two terms, and refused to expand the scope of the legislation to include a prohibition against jail time. Then, pointing to § 13-901.01(E), the court concluded that the drafters knew how to specifically forbid imposing incarceration and reasoned they must have chosen not to do so at the initial imposition of sentence. The court also said the drafters may have thought that the controlled environment of jail would benefit some offenders going through court-supervised mandatory drug treatment, thereby harmonizing § 13-901(F), the general probation statute, with § 13-901.01.
¶ 9 Thus, the court of appeals concluded that the combined effect of § 13-901 and § 13-901.01 permits judges to impose jail time as a condition of probation and that the effect is consistent with the language and purpose of Proposition 200. See Calik v. Kongable, 194 Ariz. 188, 192, 979 P.2d 1, 5 (App.1998). We granted Calik's petition for review to determine the proper scope and interpretation of Proposition 200. We have jurisdiction pursuant to ARIZ. CONST. art. VI, § 5(3) and (4).
¶ 10 This is an issue of statutory construction. "Our primary purpose is to effectuate the intent of those who framed the provision and, in the case of an [initiative], the intent of the electorate that adopted it." Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). With only a few exceptions, if the language is clear and unambiguous, we apply it without using other means of statutory construction. See Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)
.
¶ 11 Proposition 200 was passed by the voters and enacted as follows:
F. If a person is convicted a second time of personal possession or use of a controlled substance as defined in § 36-2501, the court may include additional conditions of probation it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other action within the jurisdiction of the court.
G. A person who has been convicted three times of personal possession or use of a controlled substance as defined in § 36-2501 shall not be eligible for probation under the provisions of this section, but instead shall be sentenced pursuant to the other provisions of Title 13, Chapter 34.
A.R.S. § 13-901.01 (emphasis added).
¶ 12 Under subsection A, the initial conviction requires probation and participation in a drug treatment or education program at the defendant's expense. The dictionary definition and common understanding coincide on the meaning of "probation," defining it as a "court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison." BLACK'S LAW DICTIONARY 1220 (7th ed.1999). If probation imposed under § 13-901.01(A) is violated, additional conditions may be imposed, but the statute specifically excludes incarceration as one of these added conditions. A.R.S. § 13-901.01(E).1 It makes no sense for the supplemented terms of probation to be less severe than the original terms when the additional conditions are being added as a sanction for violating the original terms of probation. Thus, we agree with Calik that the trial judge's construction of the statute would lead to an absurd result. If a first-time offender were given jail time as a condition of probation and then violated the terms of probation, the judge would be specifically prohibited from imposing incarceration for the violation and arguably could be forced to rescind the unserved jail sentence previously imposed.
¶ 13 The statute is explicit that a second conviction for personal possession or use also results in mandatory probation but may include up to one year of jail time under...
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