State v. Gomez

Decision Date08 February 2006
Docket NumberNo. CR-05-0062-PR.,CR-05-0062-PR.
Citation127 P.3d 873,212 Ariz. 55
PartiesSTATE of Arizona, Appellee, v. Melissa Jean GOMEZ, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General by Randall M. Howe, Chief Counsel, David Wood, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for the State of Arizona.

Robert S. Briney, Maricopa County Legal Defender by Michele Lawson, Deputy Legal

Defender (formerly with the Maricopa County Public Defender's Office), Phoenix, Attorneys for Melissa Jean Gomez.

OPINION

BALES, Justice.

¶ 1 A 1996 initiative measure known as Proposition 200 requires courts to place certain first- and second-time drug offenders on probation including appropriate drug treatment or education. Ariz.Rev.Stat. ("A.R.S.") § 13-901.01 (2002). Mandatory probation, however, does not apply to any defendant "who has been convicted of or indicted for a violent crime," and such persons may be imprisoned for their drug offenses. A.R.S. § 13-901.01(B).

¶ 2 The issue here is whether a ten-year-old, dismissed indictment disqualifies a defendant from mandatory probation under Proposition 200. We hold that a dismissed indictment, like a reversed conviction, does not disqualify a defendant from mandatory probation. Our interpretation of the statute makes it unnecessary to reach the constitutional issue decided by the court of appeals, which held that A.R.S. § 13-901.01(B) violates due process and the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), insofar as the statute disqualifies an otherwise eligible defendant from mandatory probation based on the mere existence of a prior indictment. State v. Gomez, 209 Ariz. 373, 378-79, ¶¶ 17-20, 102 P.3d 992, 997-98 (App.2004). Accordingly, we vacate the opinion of the court of appeals, but agree that Gomez's sentence must be vacated and this matter remanded for resentencing.

I.

¶ 3 We granted the State's petition for review because it presents an issue of statewide importance regarding the proper interpretation of Proposition 200. See Calik v. Kongable, 195 Ariz. 496, 498, ¶ 9, 990 P.2d 1055, 1057 (1999) (granting review to examine the scope of Proposition 200). We have jurisdiction pursuant to Article VI, Sections 5(3)-(4), of the Arizona Constitution. The issue is one of statutory construction and is reviewed de novo. State v. Estrada, 201 Ariz. 247, 250, ¶ 15, 34 P.3d 356, 359 (2001).

II.

¶ 4 Arizona's voters adopted Proposition 200 to require that certain non-violent drug offenders be placed on probation, with court-supervised drug treatment or education, instead of being imprisoned. Id. at 249, ¶ 2, 34 P.3d at 358. Officially designated the "Drug Medicalization, Prevention, and Control Act of 1996," the statutory initiative, as amended by a 2002 referendum measure, is codified in part at A.R.S. § 13-901.01.

¶ 5 Melissa Jean Gomez was convicted at a bench trial in 2003 for possession of marijuana and methamphetamine. Such a conviction typically would result in probation under Proposition 200. For first-time offenders, Proposition 200 provides:

Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation. The court shall suspend the imposition or execution of sentence and place the person on probation.

A.R.S. § 13-901.01(A).

¶ 6 Excluded from the mandatory probation provisions, however, are violent offenders:

Any person who has been convicted of or indicted for a violent crime as defined in § 13-604.04 is not eligible for probation as provided for in this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title [containing the general sentencing statute for drug offenses].

A.R.S. § 13-901.01(B).

¶ 7 Gomez stipulated before trial that she had been indicted for manslaughter in 1994. Manslaughter qualifies as a violent crime under Proposition 200. See A.R.S. § 13-604.04(B) (stating "`violent crime' includes any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument"). This indictment was dismissed in 1995 because the prosecutor concluded there was no reasonable likelihood of conviction.

¶ 8 Based on the dismissed indictment, the trial court ruled that Gomez was ineligible for probation under Proposition 200. This ruling effectively meant that Gomez faced a mandatory prison sentence. Gomez could not receive probation under the general sentencing statute because she had committed her 2003 drug offenses while on parole. See A.R.S. §§ 13-604.02(B), -3407(C). Her parole status, however, would not have disqualified her under Proposition 200, which mandates probation for certain non-violent offenders "[n]otwithstanding any law to the contrary." A.R.S. § 13-901.01(A). Having ruled that Proposition 200 did not apply, the trial court sentenced Gomez to presumptive, concurrent sentences of two and one-half years imprisonment for possession of methamphetamine, a dangerous drug, and one year imprisonment for possession of marijuana.

¶ 9 Gomez appealed her sentence arguing that: 1) a previously dismissed indictment does not disqualify her from probation under Proposition 200, and 2) the use of a prior indictment alone to render her ineligible for probation violates her rights to due process and equal protection.1 Rejecting the first argument, the court of appeals concluded that the plain language of A.R.S. § 13-901.01(B) "indicates a clear intent to include all prior convictions or indictments for a violent crime as disqualifying" a defendant for probation under Proposition 200. Gomez, 209 Ariz. at 376, ¶¶ 9-11, 102 P.3d at 995. The court of appeals, however, vacated the sentence on different grounds after it sua sponte ordered briefing on whether the United States Supreme Court's decision in Apprendi applied. The court held that using the mere fact of a prior indictment to exclude an otherwise eligible defendant from mandatory probation violates Apprendi's requirement that any fact necessary to increase the potential maximum sentence must be proven beyond a reasonable doubt. Id. at 378-79, ¶¶ 17-21, 102 P.3d at 997-98.

¶ 10 In seeking review by this Court, the State agrees with the court of appeals that Proposition 200 by its terms renders defendants ineligible for mandatory probation if they have ever been indicted for a violent crime, regardless of the ultimate disposition of the indictment. The State, however, argues that the court of appeals erred in concluding that disqualifying Gomez from probation based on the mere fact of her prior indictment is unconstitutional under Apprendi.

III.

¶ 11 Our primary objective in construing statutes adopted by initiative is to give effect to the intent of the electorate. Calik, 195 Ariz. at 498, ¶ 10, 990 P.2d at 1057. When the language is "clear and unambiguous," and thus subject to only one reasonable meaning, we do so by applying the language without using other means of statutory construction. Id. If, however, the language is ambiguous, "we consider the statute's context; its language, subject matter, and historical background; its effects and consequences; and its spirit and purpose." Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

¶ 12 By its terms, A.R.S. § 13-901.01(B) declares that "[a]ny person who has been convicted of or indicted for a violent crime" is ineligible for mandatory probation. The initial question is whether this language is "clear and unambiguous." Calik, 195 Ariz. at 498, ¶ 10, 990 P.2d at 1057.

¶ 13 The State, consistent with the opinion of the court of appeals, argues that the language is plain and that the exception applies if a person has ever been indicted, even if the indictment was later dismissed. Although this is a plausible reading of the statute, it is not the only reasonable interpretation.

¶ 14 The reading urged by the State would logically suggest that a defendant also would be ineligible for probation if she had ever been convicted of a violent crime, even if the prior conviction had been reversed by the time the defendant was later convicted of a Proposition 200 offense. But the State itself does not urge this interpretation. Nor would it comport with this Court's previous interpretation of other statutes allowing enhanced sentences based on prior convictions.

¶ 15 This Court has long held that, when a defendant faces an increased sentence based on the fact of a prior conviction, the reversal of a conviction precludes its use to increase the defendant's sentence. State v. Lindsey, 149 Ariz. 472, 478, 720 P.2d 73, 79 (1986) (holding that reversal meant convictions were not prior convictions for purposes of harsher sentence); State v. Lee, 114 Ariz. 101, 106, 559 P.2d 657, 662 (1976) (same). Thus, these cases indicate that a defendant "has been convicted" of a prior offense for purposes of a sentencing enhancement only if, at the time of the later sentence, there is an existing conviction — not a prior conviction that has been reversed or vacated.

¶ 16 Similarly, the Supreme Court of the United States has recognized that a federal statute prohibiting the possession of firearms by a person who "has been convicted" of a felony does not apply if the predicate conviction has been reversed on appeal and is no longer outstanding. Lewis v. United States, 445 U.S. 55, 60-61 & n. 5, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). The "plain meaning" of the sweeping statutory language, the Court noted, is that a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of the disability by some affirmative action, such as a qualifying pardon. Id. at 60-61, 100 S.Ct. 915. The Court rejected as "extreme" the argument that the phrase "has been convicted" encompasses persons whose convictions have been reversed. Id. at 61 n. 5, ...

To continue reading

Request your trial
63 cases
  • State v. Allen
    • United States
    • Arizona Supreme Court
    • July 26, 2022
    ...its effects and consequences; and its spirit and purpose." Id. (quoting State v. (Melissa J. ) Gomez , 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006) ). ¶88 "Due process requires the State to prove every element of a charged crime beyond a reasonable doubt." State v. (James C. ) Johnson , ......
  • State v. Joyner
    • United States
    • Arizona Court of Appeals
    • May 31, 2007
    ...must find the defendant has a prior conviction or is currently under indictment for a violent crime as defined in § 13-604.04. State v. Gomez, 212 Ariz. 55, ¶ 29, 127 P.3d 873, 878 take into account all the defendant's criminal activity and history in determining sentences, even if the defe......
  • State v. McGill
    • United States
    • Arizona Supreme Court
    • August 14, 2006
    ...ruling depends upon its interpretation of a statute, we generally review that ruling de novo. State v. Gomez, 212 Ariz. 55, 56 ¶ 3, 127 P.3d 873, 874 (2006). We review a trial court's evidentiary rulings, however, for abuse of discretion. Davolt, 207 Ariz. at 208 ¶ 60, 84 P.3d at 473. For t......
  • Brush & Nib Studio, LC v. City of Phx.
    • United States
    • Arizona Supreme Court
    • September 16, 2019
    ...emphasized. See Stanwitz v. Reagan , 245 Ariz. 344, 348 ¶ 12, 429 P.3d 1138, 1142 (2018) ; State v. Gomez , 212 Ariz. 55, 61 ¶ 31, 127 P.3d 873, 879 (2006). Exercising such restraint is especially appropriate here, where the analysis of the free speech claim in no way depends on the statuto......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT