Raney v. Lindberg

• Decision Date: 23 September 2003
• Docket Number: No. 1 CA-SA 02-0270.,1 CA-SA 02-0270.
• Citation: 76 P.3d 867,206 Ariz. 193
• Parties: Phillip Kyle RANEY, Petitioner, v. The Honorable Thomas B. LINDBERG, Judge of the Superior Court of The State of Arizona, in and for the County of Yavapai, Respondent Judge, State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

76 P.3d 867

206 Ariz. 193

Phillip Kyle RANEY, Petitioner, v. The Honorable Thomas B. LINDBERG, Judge of the Superior Court of The State of Arizona, in and for the County of Yavapai, Respondent Judge, State of Arizona, Real Party in Interest.

No. -0270.

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

September 23, 2003.

Sheila Sullivan Polk, Yavapai County Attorney By Mark K. Ainley, Deputy County Attorney, and Dennis M. McGrane, Deputy County Attorney, Prescott, Attorneys for Real Party in Interest.

C. Kenneth Ray II, P.C. By C. Kenneth Ray II, Prescott, Attorney for Petitioner.

OPINION

HALL, Judge.

¶ 1 This special action presents two issues for our consideration:

1. Does Arizona Revised Statutes ("A.R.S.") section 13-901.01(F) (2001) apply when the state has not formally alleged a conviction and when the plea agreement includes no reference to it?

2. Does the offense of solicitation of possession of a dangerous drug constitute a previous conviction pursuant to § 13-901.01(F)?

We answer both questions in the affirmative.¹ In answering the first question, we follow Bolton v. Superior Court, 190 Ariz. 201, 945 P.2d 1332 (App.1997) and distinguish State v. Hensley, 201 Ariz. 74, 31 P.3d 848 (App.2001) and State v. Benak, 199 Ariz. 333, 18 P.3d 127 (App.2001). In answering the second question, we decline to follow State v. Ossana, 199 Ariz. 459, 18 P.3d 1258 (App.2001).

BACKGROUND

¶ 2 On May 29, 2002, Petitioner Phillip Raney was indicted for the following offenses: possession of a dangerous drug, a class four felony, in violation of A.R.S. §§ 13-3407 (Supp.2002), -3401 (Supp.2002), -701 (2001), -702 (Supp.2002) and -801 (2001) (count one); possession of drug paraphernalia, a class six felony, in violation of A.R.S. §§ 13-3415 (2001), -3401, -701, -702 and -801 (count two); and interference with judicial proceedings, a class one misdemeanor, in violation of A.R.S. §§ 13-2810 (2001), -2801 (2001), -707 (2001) and -802 (2001) (count three). Thereafter, the state alleged that Raney had a historical prior felony conviction for the offense of solicitation to possess dangerous drugs in Yavapai County Superior Court Cause No. CR98-0258 and that he committed the current offenses while on probation in CR98-0258 pursuant to A.R.S. §§ 13-604 (2001) and 13-604.02(B) (2001), respectively. Raney eventually entered a plea agreement in which he agreed to plead guilty to count two on the condition that the state dismiss counts one and three and the enhancement allegations. The plea agreement also provided that probation "is available" and set forth the range of imprisonment for a class six felony offense as set forth in A.R.S. §§ 13-701, -702 and -702.01 (2001). No mention was made in either the indictment or plea agreement of § 13-901.01, the statute that mandates probation for first- and second-time convictions for possessory drug offenses.

¶ 3 During a combined admission hearing/change of plea in case nos. CR98-0258 and CR2002-0486 (the current case), Raney's attorney stated, in response to the trial court's inquiry regarding the applicability of § 13-901.01, that possession of drug paraphernalia was a § 13-901.01 offense and that it would be a "second strike ... assuming [that] solicitation was a first strike and I guess that would be subject to some interpretation." Accordingly, the trial court advised Raney that probation was mandatory but that "[t]his would be a second Prop 200 offense² which means [I could] send you to jail up to a flat year...." Nonetheless, Raney filed a sentencing memorandum citing Hensley and Benak in which he asserted, contrary to his comments at the change of plea hearing, that he could not be required to serve any jail time as a condition of probation for the paraphernalia case because the state had neither alleged nor proved petitioner's solicitation conviction so as to "enhance" his punishment pursuant to § 13-901.01(F).

¶ 4 At the joint sentencing/disposition hearing, the court rejected Raney's assertion, imposed concurrent probationary terms for a period of two years, and ordered petitioner to serve 280 days in Yavapai County Jail in case no. CR2002-0486. Raney then filed a motion to modify sentence in which he asserted that the plea agreement was "unambiguous" and that petitioner was therefore entitled to be sentenced as a "first-time" drug offender. After the trial court denied Raney's motion, he filed this special action.

JURISDICTION

¶ 5 Special action jurisdiction is discretionary. Demarce v. Willrich, 203 Ariz. 502, 504, ¶ 5, 56 P.3d 76, 78 (App.2002). Accepting special action jurisdiction is appropriate when the case raises an important question of law with undisputed facts, see Baker v. Superior Court, 190 Ariz. 336, 338, 947 P.2d 910, 912 (App.1997),

and we have often accepted special action jurisdiction in cases interpreting § 13-901.01, see, e.g., Stubblefield v. Trombino ex rel. County of Maricopa, 197 Ariz. 382, 383, ¶ 2, 4 P.3d 437, 438 (App.2000); Calik v. Superior Court, 194 Ariz. 188, 189, ¶ 2, 979 P.2d 1, 2 (App.1998) vacated on other grounds by Calik v. Kongable, 195 Ariz. 496, 990 P.2d 1055 (1999); Goddard v. Superior Court, 191 Ariz. 402, 403, ¶ 1, 956 P.2d 529, 530 (App.1998); Baker, 190 Ariz. at 338,

947 P.2d at 912; Bolton, 190 Ariz. at 202,

945 P.2d at 1333. This case presents important questions of law regarding the interpretation of § 13-901.01 that are likely to recur and involve undisputed facts; we therefore accept special action jurisdiction.

DISCUSSION

I. Must the State Allege a Previous Conviction for a Defendant to be Sentenced under § 13-901.01(F)?

¶ 6 As a matter of constitutional due process, a defendant is entitled to notice of the range of potential sentence he or she faces before trial or the entry of a guilty plea. State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 (1985); Benak, 199 Ariz. at 337, ¶ 14, 18 P.3d at 131 (App.2001). A charging document provides a defendant with the requisite notice by citing the applicable statutes pertaining to the charged crime(s) in compliance with Arizona Rule of Criminal Procedure 13.2(b). State v. Blazak, 131 Ariz. 598, 601, 643 P.2d 694, 697 (1982) (defendant's due process right to notice not violated by first-degree murder indictment that omitted reference to death penalty statute). Here, counts one and two of the indictment not only listed the felony statutes that Raney was accused of violating, but also cited §§ 13-701 and -702, thus clearly informing him of the potentiality of a prison sentence should he be convicted of either of those counts. See State v. Burge, 167 Ariz. 25, 28, 804 P.2d 754, 757 (1990)

(citation to § 13-604 in indictment sufficient to place defendant on notice of "dangerousness" allegation).

¶ 7 Raney claims, however, that such general notice is insufficient because Benak and Hensley require the state to allege and prove any prior drug-related convictions that disqualify him from "first-time" drug offender sentencing under Proposition 200. In Benak, the court, citing concerns of fundamental fairness and due process, held that A.R.S. § 13-604.04 (2001) applies to § 13-901.01 and requires that the state give notice to a defendant if it wishes to "enhance" a defendant's sentence with a prior conviction for a violent crime pursuant to § 13-901.01(B).³ 199 Ariz. at 337, ¶ 14, 18 P.3d at 131. Similarly, in Hensley, the court applied Benak in the context of a probation violation proceeding in which the state had not alleged defendant's violent-crime convictions before Hensley's convictions on the underlying charges. Hensley, 201 Ariz. at 77, ¶ 12, 31 P.3d at 851.

¶ 8 The state responds that this case is instead governed by Bolton. Bolton pleaded guilty to possession of marijuana in a plea agreement that provided: "Probation is mandatory." Bolton, 190 Ariz. at 202,945 P.2d at 1333. When the presentence report revealed that Bolton had two previous convictions for possession of drugs, the trial court concluded that the existence of disqualifying convictions under § 13-901.01(F) and (G) was "a matter for determination by the court at the time of sentencing." Id. We agreed, holding "that whether a defendant is entitled to be sentenced pursuant to section 13-901.01 is a matter of law to be decided by the court; it is not a matter of pleading or plea bargaining to be decided by the State." Id. at 203, 945 P.2d at 1334 (emphasis added).

¶ 9 As a matter of statutory interpretation, we believe Benak and Hensley are distinguishable from Bolton. In interpreting § 13-901.01(B), both Benak and Hensley primarily relied on § 13-604.04(A), which is worded similarly to A.R.S. § 13-604(P) (2001) in that it requires the state to "allege" prior "violent crime" convictions before trial. In other words, the applicability of § 13-901.01(B) depends upon the prosecutor's discretionary pleading practice and is, correspondingly, part and parcel of the plea bargaining process. Conversely, as observed in Bolton, §§ 13-901.01(F) and (G) do "not require that the State allege prior convictions before they are deemed to exist." 190 Ariz. at 203, 945 P.2d at 1334.

¶ 10 Despite the lack of any express pleading requirement, Raney asserts that, as a matter of constitutional due process, he is entitled to pretrial notice of any prior drug convictions before he may be incarcerated in jail as a condition of probation under § 13-901.01(F). We disagree.

¶ 11 First, as pointed out in Bolton, there is nothing in the language of § 13-901.01 that suggests that the electorate that enacted Proposition 200 intended that trial courts ignore the existence of disqualifying prior convictions that are not alleged by the prosecutor. Indeed, as to second-time offenders, our supreme court has construed the provision in § 13-901.01(F) allowing "any other action within the jurisdiction of the court" as explicit authorization for a trial court to impose up to one year in jail as a condition of mandatory probation as...