State v. Gomez

• Decision Date: 21 December 2004
• Docket Number: No. 1 CA-CR 03-1050.,1 CA-CR 03-1050.
• Citation: 102 P.3d 992,209 Ariz. 373
• Parties: STATE of Arizona, Appellee, v. Melissa Jean GOMEZ, Appellant.
• Court: Arizona Court of Appeals

102 P.3d 992

209 Ariz. 373

STATE of Arizona, Appellee, v. Melissa Jean GOMEZ, Appellant.

No. -1050.

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

December 21, 2004.

Terry Goddard, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section and David Wood, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Maricopa County Public Defender, by C. Michele Lawson, Deputy Public Defender, Phoenix, Attorney for Appellant.

OPINION

WINTHROP, Judge.

¶ 1 Melissa Jean Gomez appeals the sentences imposed following her convictions on charges of possession of methamphetamine and possession of marijuana. Gomez argues that the trial court erred in ruling that her previously-dismissed indictment on a charge of manslaughter rendered her ineligible for mandatory probation under Arizona Revised Statutes ("A.R.S.") section 13-901.01 (Supp.2003). For reasons that follow, we hold the portion of A.R.S. § 13-901.01(B) that disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been "indicted for a violent crime" to be unconstitutional. Accordingly, we vacate Gomez's prison sentences and remand for a new disposition consistent with this opinion.

I.

¶ 2 Gomez was charged by information with possession or use of dangerous drugs, a class four felony; and possession or use of marijuana, a class six felony. The State further alleged that Gomez had three prior felony convictions and that, based on a 1994 indictment for manslaughter, she was not eligible for probation if convicted on the possession charges. In addition, the State alleged that Gomez committed the offenses while on release from confinement.

¶ 3 Prior to trial, Gomez moved to strike the State's allegation of prior indictment. In her motion, Gomez challenged the constitutionality of the "indicted for" language in A.R.S. § 13-901.01(B) on the grounds it violates due process, the Arizona Constitution, and double jeopardy. After considering the State's response, the trial court denied the motion.

¶ 4 Gomez agreed to waive a jury trial in return for dismissal of the allegation of prior felony convictions. Gomez was found guilty on both charges at trial. At sentencing, the trial court found that Gomez committed the offenses while on parole and that she was previously indicted for a violent crime.¹ The court sentenced Gomez to concurrent presumptive prison terms of 2.5 years for possession or use of dangerous drugs and 1 year for possession or use of marijuana, with credit for 160 days of pre-sentence incarceration.

¶ 5 Gomez filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001).

II.

¶ 6 Section 13-901.01 is a codification of Proposition 200, a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996. Calik v. Kongable, 195 Ariz. 496, 497, ¶ 2, 990 P.2d 1055, 1056 (1999). The goal of Proposition 200 was to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem. Id. at 501, ¶ 19, 990 P.2d at 1060. Towards this end, the act establishes a "graduated sequence of punishment" that precludes imprisonment for first- and second-time offenders. Id. at 499, ¶ 14, 990 P.2d at 1058. Under this sentencing scheme, before a person convicted of personal possession of drugs may be subjected to imprisonment, the State must both allege and prove the existence of any statutory factor that renders the person ineligible for disposition pursuant to A.R.S. § 13-901.01. See State v. Rodriguez, 200 Ariz. 105, 106, ¶ 5, 23 P.3d 100, 101 (App.2001) (holding insufficient proof of prior drug convictions requires prison sentence be vacated); State v. Benak, 199 Ariz. 333, 337-38, ¶ 18, 18 P.3d 127, 131-32 (App.2001) (holding State's failure to allege that prior conviction was a "violent crime" precluded prison sentence).

¶ 7 The trial court ruled Gomez was ineligible for probation under A.R.S. § 13-901.01 because Gomez had been previously indicted for manslaughter.² The trial court's ruling was based on A.R.S. § 13-901.01(B), which states, "[a]ny 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 chapter 34 of this title."

¶ 8 Gomez makes two arguments in challenging the trial court's use of A.R.S. § 13-901.01(B) in finding her ineligible for mandatory probation on her drug possession convictions. The first involves an issue of statutory construction. Gomez argues that the "indicted for" language in A.R.S. § 13-901.01(B) should be construed as excluding only persons under indictment for a violent offense at the time of the drug offense. The second consists of a challenge to the constitutionality of A.R.S. § 13-901.01(B). Specifically, Gomez asserts that the portion of this statute permitting an indictment for a violent offense to disqualify a person from sentencing under A.R.S. § 13-901.01 violates the due process requirement that all facts in a criminal proceeding be proven beyond a reasonable doubt.

A.

¶ 9 Issues of statutory construction are questions of law, which this court reviews de novo. State v. Gallagher, 205 Ariz. 267, 269, ¶ 5, 69 P.3d 38, 40 (App.2003). "In construing a statute, our primary purpose is to effectuate the intent of those who framed its provisions and, in the case of an initiative, the intent of the electorate who adopted it." Id. Where the language of a statute is clear, "we apply it without using other means of statutory construction." Calik, 195 Ariz. at 498, ¶ 10, 990 P.2d at 1057.

¶ 10 We perceive no ambiguity in A.R.S. § 13-901.01(B) that would permit the "indicted for" language to be applied solely to existing indictments as suggested by Gomez. The use of the past tense "has been" as a modifier for the phrase "convicted of or indicted for" indicates a clear intent to include all prior convictions or indictments for a violent crime as disqualifying a person from the scope of A.R.S. § 13-901.01.

¶ 11 State v. Givens, 206 Ariz. 186, 76 P.3d 457 (App.2003) addresses the reverse of this issue. In Givens, the defendant argued that the phrase "has been convicted of or indicted for" was limited only to prior convictions or indictments in unrelated cases, not to those that may result from the pending case. Id. at 188, ¶ 5, 76 P.3d at 459. The court deemed the language of A.R.S. § 13-901.01(B) ambiguous as to whether it applied to convictions or indictments in the pending case, but ultimately concluded that it encompassed both current as well as past convictions and indictments. Id. In the present case, the issue is whether the language of A.R.S. § 13-901.01(B) encompasses past convictions or indictments. The unambiguous language of this statute clearly indicates that it does. See Benak, 199 Ariz. at 334,

¶ 6, 18 P.3d at 128 (noting a person is eligible for mandatory probation under A.R.S. § 13-901.01 "if the person has not been previously indicted for or convicted of a violent crime") (emphasis added).

B.

¶ 12 Having determined that A.R.S. § 13-901.01(B) applies by its terms to Gomez's situation, we turn to the issue of whether this statute may constitutionally permit the fact of an indictment to serve as a disqualifying or enhancement factor for purposes of sentencing.³

¶ 13 The Due Process Clause requires that every element of a criminal charge be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This standard of proof is also required with respect to any additional finding of fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum permitted by the verdict. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The relevant "statutory maximum" under the holding in Apprendi "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely v. Washington, ___ U.S. ___, ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004).

¶ 14 Pursuant to the sentencing scheme established by Proposition 200, the maximum penalty that may be imposed based on an adjudication of guilt for a first time offender on a charge of drug possession, absent additional findings by the court, is probation.⁴ See A.R.S. § 13-901.01(A) ("The court shall suspend the imposition or execution of sentence and place the person on probation."). The court remains free to include various terms and conditions as a part of the probation, but incarceration is not authorized. Calik, 195 Ariz. at 501-02, ¶ 22, 990 P.2d at 1060-61. Thus, we construe the "probation without incarceration" penalty mandated by A.R.S. § 13-901.01(A) for convictions on charges of personal drug possession as the "statutory maximum" for purposes of analyzing the constitutionality of any sentence enhancement provision applicable to this statute.

¶ 15 The purpose of section 13-901.01(B) is to exclude violent offenders from the mandatory probation penalty generally applicable to at least the first two convictions for personal possession of drugs. See Proposition 200, Purpose and Intent at § 3(C), (E), 1997 Ariz. Sess. Laws 2897. Under this provision, the determination of whether a person is rendered ineligible for mandatory probation is based on whether the person has been convicted or indicted for a violent offense. By its express terms, a finding that a person has been either convicted or indicted for a violent crime excludes that person from disposition under A.R.S. § 13-901.01 and permits the trial court to impose a sentence of imprisonment for the offense in accordance with the general sentencing statutes. See ...