State v. Nichols

• Decision Date: 30 October 2001
• Docket Number: No. 2 CA-SA 01-0062.,2 CA-SA 01-0062.
• Citation: 201 Ariz. 234,33 P.3d 1172
• Parties: The STATE of Arizona, Petitioner, v. Hon. Richard NICHOLS, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Jack Carpenter Motley, Real Party in Interest.
• Court: Arizona Court of Appeals

33 P.3d 1172

201 Ariz. 234

The STATE of Arizona, Petitioner, v. Hon. Richard NICHOLS, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Jack Carpenter Motley, Real Party in Interest.

No. -0062.

Court of Appeals of Arizona, Division 2, Department A.

October 30, 2001.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Petitioner.

Lingeman and Bock, By Richard C. Bock, Tucson, for Real Party in Interest.

OPINION

FLOREZ, J.

¶ 1 Real party in interest Jack Motley was charged by indictment with possessing a dangerous drug for sale and possessing marijuana for sale.¹ Petitioner State of Arizona filed an allegation of serious drug offense (significant source of income) pursuant to A.R.S. § 13-3410(A), which provides, in relevant part, that a person convicted of one or both of these substantive offenses who receives more than $25,000 income in a calendar year through a pattern of illegal drug sales shall be sentenced to life imprisonment with no possibility of parole for twenty-five years. The respondent judge found § 13-3410(A) unconstitutional and dismissed the allegation of serious drug offense, a ruling the state challenges in this special action. Because the state has no equally plain, speedy, or adequate remedy by appeal, see A.R.S. § 13-4032; because the constitutional question presented is one of law and of statewide importance, see Moss v. Superior Court, 175 Ariz. 348, 857 P.2d 400 (App.1993)

; and because we find the respondent judge exceeded his legal authority in ruling the statute unconstitutional, we accept jurisdiction and grant relief. Ariz. R.P. Special Actions 1, 3, 17B A.R.S.

¶ 2 Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Motley filed a pretrial motion requesting a jury trial on the serious drug offense allegation. Motley further requested that the trial be bifurcated so that the jury deciding his guilt on the substantive drug counts set forth in the indictment would not be influenced by unfairly prejudicial other acts evidence involving uncharged drug sales and income therefrom. See Ariz. R. Evid. 404(b), 17A A.R.S.

¶ 3 At issue in Apprendi was a New Jersey "hate crime" statute that required the judge to increase the defendant's maximum prison sentence if the judge found by a preponderance of evidence that, in committing the underlying firearms offense, the defendant had acted with a purpose to intimidate because of race. Apprendi, 530 U.S. at 469, 120 S.Ct. at 2351, 147 L.Ed.2d at 442. The Supreme Court concluded that the statute violated the defendant's constitutional rights to a jury trial and due process, holding: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

¶ 4 Motley subsequently filed another pretrial motion, this time seeking dismissal of the allegation on the ground it was not a simple sentence enhancement, but rather, constituted a substantive offense. He argued that § 13-3410(A) mirrors the crime of "continuing criminal enterprise" (CCE), a substantive federal offense. See 21 U.S.C. § 848. Motley contended that the state could pursue the serious drug offense allegation only by way of a grand jury indictment and not merely by filing an allegation, as the state had done.

¶ 5 The respondent judge entertained both motions at the same hearing. The parties began by arguing how the Apprendi issue should be addressed at trial, but the discussion then shifted to the grand jury issue. The respondent judge ultimately granted Motley's motion to dismiss the allegation, merely stating, "Court finds it's unconstitutional." The respondent judge neither elaborated on his reasoning nor identified the specific constitutional provision or provisions he found offended by § 13-3410(A).

¶ 6 We first address the possibility that the respondent judge found § 13-3410(A) unconstitutional for the same reason the Supreme Court found the New Jersey statute unconstitutional in Apprendi. As alleged here, § 13-3410(A) presents a classic Apprendi scenario; it mandates a sentence— life imprisonment—far beyond the maximum sentencing range for possessing dangerous drugs or marijuana for sale upon the finding of specific facts: annual income through illegal drug sales exceeding $25,000. Under Apprendi, these facts must be proven to a jury beyond a reasonable doubt. The New Jersey statute expressly provided that the factual question there—racial motivation—be found by the judge by a preponderance of the evidence.

¶ 7 Section 13-3410(A), in contrast, is silent as to the identity of the fact-finder or the standard of proof; the statute is therefore not facially unconstitutional as was the statute in Apprendi. Moreover, no published Arizona case has interpreted § 13-3410 in a way that would necessarily render it unconstitutional under Apprendi.² A statute is presumed to be constitutionally valid and should be construed to avoid constitutional conflicts. See Miller v. French, 530 U.S. 327, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000)

; State v. Yabe, 114 Ariz. 89, 559 P.2d 209 (App.1977). Construing § 13-3410(A) with those concepts in mind, we hold that the fact of drug-sale income greater than $25,000 must be found by a jury beyond a reasonable doubt.

¶ 8 Based on the transcript of the hearing below and his ultimate dismissal of the allegation, it appears more likely that the respondent judge found § 13-3410(A) unconstitutional based on the grand jury issue raised in Motley's subsequent motion, although the relief granted exceeded what Motley had actually requested. That motion was based strictly on a purported similarity between § 13-3410(A) and the federal crime of CCE, but Motley made no claim that Arizona courts are compelled by law to interpret Arizona statutes consistently with comparable federal statutes and made no constitutional argument on this issue whatsoever. In oral argument on the motion, however, the state maintained that, because § 13-3410 does not establish a specific class of felony, presenting the allegation to the grand jury would not be possible. The state further posited that, if the respondent judge were to dismiss the allegation, it could only be because the statute was "unconstitutional because you can't apply it in light of Apprendi." Motley requested "that the statute be found unconstitutional as it sits right now in terms of the method and manner which the State can just go ahead and use it as an addendum to the indictment."

¶ 9 As we have stated, the respondent judge found the statute unconstitutional without further comment. Based on the context of this discourse at the hearing, which clearly mixed concepts from both of Motley's pending motions, we can only conclude the respondent judge found that the fact-finding called for under § 13-3410(A) falls within the Apprendi rule and that any facts required to be found by the trier of fact must first be the subject of an indictment by the grand jury. Because the state had filed the serious drug allegation pursuant to § 13-3410(A) without presenting it to the grand jury, the respondent judge apparently reasoned that the statute as applied by the state in this case is unconstitutional.

¶ 10 Apprendi is premised on the notion that any fact that subjects a defendant to additional punishment is the "functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict"; thus, any such fact must be found by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 494 n. 19,120 S.Ct. at 2365 n. 19,147 L.Ed.2d at 457 n. 19. The federal courts have found that these Apprendi-element equivalents must also be charged in the indictment. See, e.g., United States v. Promise, 255 F.3d 150 (4th Cir.2001); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.),cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). Apprendi does contain the language "`any fact (other than [a] prior conviction) that increases the maximum penalty for a crime must be charged in an indictment'" but only in reciting the holding of a precursor case that involved a federal statute. Apprendi, 530 U.S. at 476,120 S.Ct. at 2355,147 L.Ed.2d at 446,quoting Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311, 326 n. 6 (1999)

. The federal courts, however, are governed by the Fifth Amendment requirement that serious charges be presented to a grand jury; this is one of the few rights that has expressly been found not to be applicable to the states through the Fourteenth Amendment and the selective incorporation doctrine. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); 1 Wayne R. LaFave et al., Criminal Procedure § 2.6(b) n. 33 (2d ed.1999).

¶ 11 Whether Apprendi-element equivalents must be included in the charging document in state court prosecutions remains an open question.³ The Apprendi Court noted that Apprendi's claim had been based solely on his due process and jury trial rights under the Fourteenth Amendment and that he had not asserted a constitutional claim based on the omission of the racial bias "sentence enhancement" element in his indictment, stating, "We thus do not address the indictment question [in the state statute context] separately today." Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. at 2356 n. 3, 147 L.Ed.2d at 447 n. 3. Thus, if, as we surmise, the respondent judge found § 13-3410(A) unconstitutional because he concluded Apprendi requires that the facts contained in a serious drug offense allegation also be included in the charging document, he was mistaken.⁴

¶ 12 Section 13-3410(A) does not define a substantive crime in and of itself; it bears no felony designation and functions only to enhance the sentence resulting from conviction for certain...