State v. Estrada

• Decision Date: 07 March 2000
• Docket Number: No. 1 CA-CR 98-0797.,1 CA-CR 98-0797.
• Parties: STATE of Arizona, Appellee, v. Angelita ESTRADA, Appellant.
• Court: Arizona Court of Appeals

4 P.3d 438

197 Ariz. 383

STATE of Arizona, Appellee, v. Angelita ESTRADA, Appellant.

No. -0797.

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

March 7, 2000.

Review Granted September 26, 2000.

Janet Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel Criminal Appeals Section and Diane M. Ramsey, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Deputy Public Defender, Phoenix, for Appellant.

Review Granted as to Issue No. 2 September 26, 2000.

OPINION

FIDEL, Judge.

¶ 1 With certain exceptions relating to prior convictions, Proposition 200, an initiative measure codified as A.R.S. § 13-901.01, requires probation for defendants convicted of personal possession of a controlled substance. This appeal presents two questions: (1) Does Proposition 200 require probation for a defendant convicted of personal possession of a controlled substance if the defendant has one prior conviction for conspiracy to possess narcotic drugs for sale? (2) Does Proposition 200 require probation for a defendant convicted of possession of drug paraphernalia? We answer both questions in the affirmative under the circumstances presented in this case. In answering the second question, we decline to follow State v. Holm, 195 Ariz. 42, 985 P.2d 527 (App.1998), a contrary opinion by Division Two of this court.

BACKGROUND

¶ 2 Defendant Angelita Estrada was a passenger in a vehicle stopped and searched by the police. In a change purse that contained her driver's license and Social Security card, the police found two plastic bags of white powder and a glass tube used for smoking methamphetamine. Later testing showed the powder to be methamphetamine.

¶ 3 A jury found Defendant guilty of possession or use of a dangerous drug and possession with intent to use drug paraphernalia. The former is a class 4 felony pursuant to A.R.S. § 13-3407 (Supp.1999); the latter is a class 6 felony pursuant to A.R.S. § 13-3415(A) (Supp.1999). The trial court found that Defendant had a prior felony conviction; she had been convicted in 1988 for conspiracy to possess narcotic drugs for sale.

¶ 4 At sentencing, the trial court was obliged to determine (1) whether the probationary requirements of § 13-901.01 applied to Defendant's conviction for personal drug possession despite her prior conviction for sale, and (2) whether the statute applied at all to Defendant's conviction on the paraphernalia charge. The statute states:

A. Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance as defined in § 36-2501 is eligible for probation. The court shall suspend the imposition or execution of sentence and place such person on probation.

B. Any person who has been convicted of or indicted for a violent crime ... is not eligible for probation as provided for in this section....

C. Personal possession or use of a controlled substance pursuant to this section shall not include possession for sale, production, manufacturing or transportation for sale of any controlled substance.

....

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 is not eligible for probation under the provisions of this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title.

¶ 5 On the drug possession charge, the court initially placed Defendant on probation for three years, believing that § 13-901.01 mandated probation. Later concluding, however, that Defendant's prior conviction made probation inapplicable and incarceration mandatory, the court resentenced Defendant to the supermitigated term of 2.25 years for a class 4 felony with one prior conviction. On the paraphernalia charge, the court found § 13-901.01 inapplicable and sentenced Defendant to the supermitigated term of .75 years for a class 6 felony with one prior conviction.

¶ 6 Defendant does not contest the propriety of the vehicular search that led to her arrest, the fairness of her trial, or the validity of her convictions. Her appeal concerns the sentences alone, raising questions of statutory construction that we review de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996)

.

EFFECT OF PRIOR CONVICTION

¶ 7 One of the stated purposes of Proposition 200 is

To require that non-violent persons convicted of personal possession or use of drugs successfully undergo court-supervised mandatory drug treatment programs and probation.

Proposition 200, § 3(C), Purpose and Intent. But Proposition 200 does not require probation for every person convicted of personal possession or use of drugs. Instead, subsections (B) and (G) of A.R.S. § 13-901.01 list certain prior convictions that make a defendant ineligible for the probation that the statute otherwise requires. Subsection B makes mandatory probation unavailable to a defendant with a prior conviction for a violent crime; subsection G makes it unavailable to a defendant with two or more prior convictions for personal possession or use of a controlled substance.

¶ 8 Because Defendant's prior conviction does not fit either of these explicit statutory exceptions, Defendant argues that the trial court erred in sentencing her to prison on the personal possession charge. The trial court, however, believed itself bound to impose a prison sentence by our decision in Goddard v. Superior Court, 191 Ariz. 402, 956 P.2d 529 (App.1998).

¶ 9 In Goddard, we rejected the contention that subsection G of § 13-901.01 sets forth the only combination of nonviolent prior convictions that disqualifies a defendant from mandatory probation for a current conviction for personal possession or use of dangerous drugs. To determine how a different combination, not specified within the statute, affected a defendant's probation eligibility, we did not take statutory silence as conclusive; instead, we found it necessary to "interpret the statute by reference to its stated purpose and by reference to the system of related statutes of which it forms a part." Id. at 404, ¶ 8, 956 P.2d at 531.

¶ 10 Goddard, convicted of personal possession for use, had two prior convictions for possession for sale. He argued that, because his type of prior conviction was not listed as disqualifying within subsection G, he was entitled to mandatory probation under § 13-901.01. The court, however, finding it incongruous that a defendant would be rendered ineligible for mandatory probation by two prior convictions for personal possession for use but not by the more severe criminal record of two prior convictions for possession for sale, "decline[d] to interpret the statute in a manner so contrary to common sense." Id. Instead, we concluded that two prior convictions for possession for sale must also disqualify a current use offender from mandatory probation under § 13-901.01. Id. at 405, ¶ 14, 956 P.2d at 532.

¶ 11 In an unfortunately loose passage, we also stated in Goddard that the impact of any prior conviction not expressly listed in § 13-901.01 must be determined by "the sentencing judge pursuant to the discretion accorded elsewhere in the criminal code." Id. at 405, ¶ 13, 956 P.2d at 532. In a later case, however, this court appropriately recognized that passage as overstated and misleading. Gray v. Irwin, 195 Ariz. 273, 277, ¶ 14, 987 P.2d 759, 763 (App.1999). In clarification of Goddard, the court stated in Gray that a trial court may look to the general sentencing statutes to determine the aggravating effect of a prior non-violent felony conviction not specified in § 13-901.01, but the court may not impose a penalty that exceeds the maximum penalty set forth in § 13-901.01. Id.

¶ 12 In Gray, the defendant, convicted of personal possession, had two prior convictions, one for possession of dangerous drugs, the other for forgery. Two prior convictions for personal possession would have disqualified the defendant for mandatory probation under the explicit terms of § 13-901.01(G). But could the forgery conviction be treated as equivalent to a second prior conviction for personal possession? The court found that it could not. Id. Rather, the trial court was obliged to place the defendant on probation under subsection (F) as a second-time personal possession offender, but entitled to consider the prior forgery conviction as an aggravating factor when choosing among the more stringent terms of probation that may be applied to a second-time possessory offender under subsection F. Id. at 277, ¶¶ 14, 15, 987 P.2d at 763.

¶ 13 Gray established that a non-violent, non-drug-related prior felony conviction cannot be treated as a prior personal possession conviction for the purposes of sentencing under § 13-901.01. Id. The wrinkle presented in this case is that Estrada has a non-violent but drug-related prior conviction. Further, the prior conviction was for conspiracy to possess narcotic drugs for sale; and, as we observed in Goddard, a prior conviction that entails commercial trafficking in drugs is more serious than one for possession for personal use. 191 Ariz. at 405, ¶ 12, 956 P.2d at 532. Here, as in Goddard and Gray, we lack explicit statutory guidance in determining the sentencing effect of this prior conviction. Thus here as there, we must interpret statutory silence in a way that accomplishes the statutory purpose and intent.

¶ 14 We start with the fact that Defendant has a single prior conviction for a non-violent crime. A single prior conviction disqualifies a defendant from...