State v. Dungan, s. 2

• Decision Date: 11 December 1985
• Docket Number: CA-CR,Nos. 2,s. 2
• Citation: 149 Ariz. 357,718 P.2d 1010
• Parties: The STATE of Arizona, Appellee, v. William Earl DUNGAN, Appellant. 2627, 2 3472-2PR.
• Court: Arizona Court of Appeals

Page 1010

718 P.2d 1010

149 Ariz. 357

The STATE of Arizona, Appellee, v. William Earl DUNGAN, Appellant.

Nos. 2 CA-CR 2627, 2 CA-CR 3472-2PR.

Court of Appeals of Arizona Division 2, Department B.

Dec. 11, 1985.

Review Denied March 18, 1986.

[149 Ariz. 358] Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee.

William Earl Dungan, in pro. per.

OPINION

HATHAWAY, Presiding Judge.

In this appeal, appellant contests his conviction for possession of dangerous drugs for sale. Appellant argues he was indicted and tried under a statute that was not in effect at the time of his indictment and that procedural improprieties occurred during both his arrest and trial. We affirm the conviction but remand for resentencing.

Appellant was arrested at "Paul's Place," a tavern in Miami, Arizona, on August 4, 1981. The Gila County Sheriff's office had obtained a search warrant for William Stolze, who was in the tavern at the same time as appellant. The officers had also been told by two confidential informants that a man fitting appellant's description was involved in supplying Stolze lysergic acid diethylamide (LSD), a controlled substance. Arriving at the bar, they found Stolze and appellant together. The police made an investigatory stop to question appellant, at which time appellant repeatedly attempted to place his hand in his pocket, allegedly to destroy evidence. While attempting to restrain appellant, the officers observed paper in appellant's pocket bearing gray spots of "blotter acid," a type of LSD. At that time, appellant was arrested.

On August 6, 1981, a grand jury indicted appellant for possession of dangerous drugs for sale pursuant to A.R.S. §§ 36-2512(3), and 36-2531 (enacted and amended 1981). Section 36-2512 contained two schedules that listed controlled substances. LSD appeared on schedule one. Section 36-2531 provided that possession for sale of a substance appearing on schedule one was a class 2 felony. Appellant waived his right to appointed counsel and proceeded in propria persona. A jury found appellant guilty.

Relying on the above statutes and finding aggravating circumstances, the trial court sentenced appellant to 28 years in prison. In addition to this appeal and a consolidated review of the denial of his petition for post-conviction relief, appellant has petitioned twice for writs of habeas corpus in state court (one before the supreme court and one in superior court), and once in federal court. Each state court petition was based on the contention that appellant was indicted under the wrong statute. On November 14, 1984, the Arizona Supreme Court denied the petition, and on July 11, 1985, this court dismissed appellant's appeal in 2 CA-CIV 5391, from habeas corpus proceedings in the nature of post-conviction relief challenging the statutory basis for appellant's conviction. The same question is raised in the present appeal and petition for review, which we consider on the merits along with other questions.

Appellant raises eight issues on appeal:

1. The indictment underlying this cause is fatally defective in that it charges a violation of statutes which were not then in effect.

2. The trial court erred in permitting appellant to proceed in propria persona without first conducting a hearing to determine if appellant was making that choice intelligently and knowingly.

3. Appellant's right to due process of law was abridged during grand jury proceedings when the prosecutor failed to stop the allegedly perjurious testimony of Byron Mills.

4. The trial court abused its discretion denying a motion to suppress evidence because appellant was arrested at the bar on less than probable cause and the evidence found was fruit of the poisonous tree.

5. The trial court committed error in failing to make specific findings on the motion to suppress, thereby allowing the jury to determine a matter of law.

6. The record does not support a finding that appellant knowingly, voluntarily and intelligently admitted his prior convictions or that he admitted them at all.

7. Appellant received ineffective assistance of advisory counsel and interference from counsel prior to the suppression hearing.

8. Appellant's constitutional rights to due process of law and compulsory process have been abridged and he was denied his Sixth and Fourteenth Amendment rights.

I. Was appellant indicted under a non-existent statute?

Appellant argues that at the time of his indictment on August 6, 1981, A.R.S. § 32-1970 (repealed 1981) in conjunction with the definition of dangerous drugs in § 32-1901(9)(a) (amended 1981) and the sentencing provisions of § 32-1996(C) (amended 1981) were the correct statutes under which he should have been indicted for possession of dangerous drugs for sale. He notes that § 32-1970 was in effect until September 1, 1981, and that after that date A.R.S. §§ 13-3401, et seq., came into effect. He contends that §§ 36-2512 and 36-2531 never came into effect as drug enforcement statutes but only in a substantially amended form. He reasons, therefore, that his conviction should be overturned on the basis of State v. Bollander, 14 Ariz.App. 450, 484 P.2d 219 (1971). The state does not address the merits of appellant's claim but relies solely on collateral estoppel, premised upon the previous denial of the writ of habeas corpus. Appellant responds that collateral estoppel is inapplicable and sometimes "... it takes two or three bites of the apple to find the worm." We agree with appellant but find that the error in the indictment did not prejudice appellant and therefore affirm the conviction. We remand in order for the trial court to modify his sentence in accordance with § 32-1996(C) and Rule 26.14, Rules of Criminal Procedure, 17 A.R.S.

As both sides acknowledge, from 1970 to at least July 1, 1981, former A.R.S. § 32-1970 was the statute under which a person should have been indicted for possession for sale of LSD. In 1979, the legislature enacted H.B. 2157 (the Uniform Controlled Substances Act). Section 7 of that act repealed § 32-1970. Section 13 of that act added the provisions of the Uniform Controlled Substances Act, which contained §§ 36-2512 and 36-2531. Taken together, these statutes do form the basis of a prosecution for possession for sale of LSD. Section 17 provided for an effective date of July 1, 1980. Therefore, solely on the basis of H.B. 2157, § 32-1970 should have been repealed and replaced by §§ 36-2512 and 36-2531 on July 1, 1980, well before the arrest and indictment of appellant.

In 1980, however, the legislature enacted H.B. 2231. This act amended § 17 of H.B. 2157 and changed the effective date of the Uniform Controlled Substances Act to July 1, 1981. See State v. Superior Court In and for the County of Pima, 128 Ariz. 535, 627 P.2d 686 (1981). Section 3 of H.B. 2231 contained an emergency clause which made the bill immediately effective on April 22, 1980. Therefore, as of April 22, 1980, the effective date of the Uniform Controlled Substances Act was July 1, 1981, also a date prior to appellant's arrest and indictment.

In 1981, however, the legislature enacted two additional bills, S.B. 1113 and S.B. 1023. In § 1 of S.B. 1113, § 36-2512 was repealed. In § 2, the effective date of the Uniform Controlled Substances Act was again changed, this time to September 1, 1981. This change in the effective date was made provisional on the passage of S.B. 1023. That bill was enacted into law. S.B. 1113 also contained an emergency clause which made the act effective on April 14, 1981. Therefore, as of April 14, 1981, the effective date of the Uniform Controlled Substances Act was September 1, 1981, and, also effective that date, § 36-2512 was repealed. Additionally, S.B. 1023, also effective September 1, 1981, significantly amended §§ 36-2512 and 36-2531 and added §§ 13-3401, et seq., the current drug enforcement statutes. Accordingly, when appellant was indicted on August 6, 1981, § 32-1970 was still in effect, since it was not to be repealed until September 1, 1981. Sections 36-2512 and 36-2531 never came into effect as originally written, but only in amended form on September 1, 1981. Therefore, appellant was indicted under the wrong statute.

The state argues that we should not even consider the consequences of this erroneous citation, because the prior denial of the writs of habeas corpus should collaterally estop appellant from raising this issue. That contention is without merit. The United States Supreme Court has held that prior habeas corpus proceedings are res judicata only if (1) the issues have been adjudicated on the merits and (2) the ends of justice would not be served by redetermination of the issues. See, e.g., Sanders v. U.S., 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Songer v. Wainwright, 605 F.Supp. 686 (M.D.Fla.1985). The state's argument fails on both grounds. There is no indication that either the supreme court or this court ruled on the merits of the petitions, particularly in view of this pending appeal. Yanich v. Eyman, Ex Rel. State, 108 Ariz. 585, 503 P.2d 806 (1972). Additionally, it would not serve the interests of justice to decline to explore the consequences of appellant's indictment under a non-existent statute. Therefore, we will address the merits of appellant's claim.

As we have previously concluded, appellant was indicted under the wrong statute. In State v. Bollander, supra, this court held that when a criminal defendant is indicted under a not-yet-effective statute, the charging document is void. That decision stated "clearly, the original information was a nullity in that it charged violation of a statute which had not gone into effect." 14 Ariz.App. at 451, 484 P.2d at 220. The Bollander decision cannot be distinguished from the present case. In Bollander, the defendant was charged under a credit card forgery statute, A.R.S. § 13-1074(B). Unfortunately, that statute was not effective at the time of...