State v. Padilla, 1

• Court: Court of Appeals of Arizona
• Writing for the Court: EHRLICH; JACOBSON, P.J., and EUBANK
• Citation: 817 P.2d 15,169 Ariz. 70
• Parties: STATE of Arizona, Appellee, v. Manuel Ignacio PADILLA, Appellant. 89-759.
• Docket Number: No. 1,CA-CR,1
• Decision Date: 02 May 1991

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817 P.2d 15 169 Ariz. 70 STATE of Arizona, Appellee,
v.
Manuel Ignacio PADILLA, Appellant. No. 1 CA-CR 89-759. Court of Appeals of Arizona,
Division 1, Department B. May 2, 1991.
Review Denied Oct. 8, 1991.

Robert K. Corbin, Atty. Gen. by Ronald L. Crismon, Acting Chief Counsel, Crim. Div., and Eric A. Bryant, Asst. Atty. Gen., Phoenix, for appellee.

John C. Williams, Prescott, for appellant.

OPINION

EHRLICH, Judge.

Manuel Ignacio Padilla appeals from his conviction for knowingly offering to sell cocaine, and from the sentence imposed. Padilla contends that his conviction cannot stand because his conduct, which consisted

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[169 Ariz. 71] solely of speech, is protected by the First Amendment to the United States Constitution and Article 2, Section 6 of the Arizona Constitution. He also claims that the sentence imposed is unconstitutional, arguing that because an offer to sell cocaine is punished to the same extent as an actual sale of cocaine, the sentence is disproportionate to the crime in violation of the prohibition of cruel and unusual punishment of the Eighth Amendment to the United States Constitution and Article 2, Section 15 of the Arizona Constitution. We reject these arguments and affirm the judgment. FACTS

Matthew Drake, a felon and former drug addict, found himself in trouble with the police and consented to act as a "cooperating witness." He agreed to make twelve purchases of narcotics in exchange for the dismissal of criminal charges against him. Padilla's conviction arose out of one of Drake's transactions.

On March 23, 1988, Drake went to Padilla's place of employment to buy narcotics. Drake testified that Padilla agreed to get Drake some cocaine after Padilla had finished work. The two men met at a convenience store and Padilla made some telephone calls. Drake and Padilla then drove to a bar where Drake waited while Padilla went to get the cocaine. Padilla returned empty-handed.

Padilla subsequently was convicted of one count of offering to sell a narcotic in violation of A.R.S. § 13-3408. He was sentenced to the presumptive term of seven years in prison.

DISCUSSION

Padilla argues that A.R.S. § 13-3408 is overbroad, and thus unconstitutional, because it makes criminal protected speech. In analyzing such a claim, this court has a duty to construe a statute in such a way that, if fairly possible, it will be constitutional. E.g., Schecter v. Killingsworth, 93 Ariz. 273, 282, 380 P.2d 136, 142 (1963). There is a strong presumption supporting the constitutionality of statutes, and the party challenging the validity of a statute has the burden to establish its invalidity beyond a reasonable doubt. Rochlin v. State, 112 Ariz. 171, 174, 540 P.2d 643, 646 (1975). Padilla has failed to meet this burden.

As noted in State v. Lycett, 133 Ariz. 185, 190, 650 P.2d 487, 492 (App.1982), the legislature has broad discretion to define criminal offenses. As long as the classification of an act is not arbitrary or capricious, the act will withstand constitutional challenge. Id. A statute is overbroad only when its language, given a normal meaning, "is so broad that the sanctions may apply to conduct which the state is not entitled to regulate." State ex rel. Purcell v. Superior Court, 111 Ariz. 582, 584, 535 P.2d 1299, 1301 (1975).

In this case, A.R.S. § 13-3408 is not overbroad because it does not punish protected speech. The court in United States v. Barnett, 667 F.2d 835, 842 (9th Cir.1982), in addressing the extent of First Amendment protection, stated: "The first amendment does not...