State v. Sanchez

• Decision Date: 09 February 1993
• Docket Number: CA-CR,No. 1,1
• Citation: 174 Ariz. 44,846 P.2d 857
• Parties: STATE of Arizona, Appellee, v. David SANCHEZ, Appellant. 91-0798.
• Court: Arizona Court of Appeals

Page 857

846 P.2d 857

174 Ariz. 44

STATE of Arizona, Appellee, v. David SANCHEZ, Appellant.

No. 1 CA-CR 91-0798.

Court of Appeals of Arizona,

Division 1, Department C.

Feb. 9, 1993.

[174 Ariz. 45] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Helene F. Abrams, Deputy Public Defender, Phoenix, for appellant.

OPINION

GERBER, Presiding Judge.

In this case, we must determine whether "attempted conspiracy" is a cognizable offense under Arizona law. We find that it is not and vacate defendant's judgment of convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant David Sanchez (defendant) was indicted on two counts: possession of narcotic drugs for sale and conspiracy to sell narcotic drugs, both class 2 felonies. He pled guilty to attempted possession of narcotic drugs for sale and attempted conspiracy to sell narcotic drugs, both class 3 felonies enhanced by an allegation of a prior felony conviction. At the change of plea proceeding, he admitted that he acted as a middleman in the sale of heroin to an undercover police officer. He stated that, at the officer's request, he telephoned a source who agreed to supply him with heroin. Accompanied by the officer, he met his source at a parking lot where he obtained the heroin and transferred it to the officer for $20. He admitted that he had a prior conviction for possession of a narcotic drug. The court sentenced him to aggravated, concurrent terms of 9.5 years imprisonment on each count and imposed fines and surcharges of $2,800 on each count.

Sanchez filed a timely notice of appeal. His appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asking this court to search the record for fundamental error. Sanchez filed a supplemental brief in propria persona. He claimed he could not be convicted of multiple counts arising from the same incident and asked this court to overturn the conviction on count 2, attempted conspiracy to sell narcotic drugs. Subsequently, this court ordered the state and appellant's counsel to file briefs addressing the issue whether attempted conspiracy to sell narcotic drugs is a cognizable crime under Arizona's criminal code.

ANALYSIS

Both the state and defendant agree that attempted conspiracy is not a cognizable offense under Arizona law. However, we are not required to accept the state's confession of error. State v. Stewart, 3 Ariz.App. 178, 180, 412 P.2d 860, 862 (1966).

At the change of plea proceeding, defendant admitted facts sufficient to establish his guilt of possession of narcotic drugs for sale and conspiracy to sell narcotic drugs. Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-110 (1989) provides in part: "A person may be convicted of an attempt to commit a crime, although it appears upon the trial that the crime intended or attempted was perpetrated by the person in pursuance of such attempt...." This statute authorizes the reduction, via plea bargain, of a completed offense to an attempted offense. The attempted offense, however must be cognizable under Arizona law. In State v. McClarity, 27 Ariz.App. 571, 575, 557 P.2d 170, 174 (1976), we vacated a plea to an offense that, at the time of the plea, did not exist under our criminal statutes. We noted: "It is within the sole power of the Legislature to determine what acts constitute crime and to prescribe punishment for those acts.... We do not think that the judiciary can circumvent the legislative intent by permitting an appellant to plead guilty to a variety of acts and then later choose the act for which it will punish defendant." Id.; see also State v. Stevens, 452 So.2d 289, 290 (La.1984) (trial court cannot accept guilty plea to nonexistent offense). Furthermore, there are no common law crimes to which a defendant can plead; no common law crimes exist in this state. A.R.S. § 13-103.

A.R.S. § 13-1001 defines attempt. ¹ No language in that statute explicitly prohibits the confluence of attempt and conspiracy in a single crime. Under the general definitional provision of Title 13, A.R.S., "offense" includes

conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state....

A.R.S. § 13-105(20). Since conspiracy is an "offense" under this definition, see A.R.S. § 13-1003, it may be argued that it can be the subject of an attempt.

We believe that such an analysis fails to consider the fundamental difference between preparatory and substantive offenses. As we have noted:

Attempt, solicitation, conspiracy and facilitation are preparatory offenses. See A.R.S. §§ 13-1001, -1002, -1003, and 1004. Preparatory offenses are separate and distinct from substantive offenses. See LaFave & Scott, Substantive Criminal Law, § 6.1 (1986). Arizona created separate sentencing formats for these offenses. Furthermore, Arizona courts have recognized that conspiracy is a separate and distinct crime from the underlying substantive offense.

State v. Tellez, 165 Ariz. 381, 383, 799 P.2d 1, 3 (App.1989).

To determine the intention of the legislature as expressed in a statute, the court looks to the words, context, subject matter, effects and consequences, reason and spirit of the law. City of Phoenix v. Superior Court, 144 Ariz. 172, 175, 696 P.2d 724, 727 (App.1985). A close examination of A.R.S. § 13-1003, ² which defines conspiracy, shows that "offense" in the context of a preparatory crime has a meaning narrower than its general definition. Within this statute, "offense" refers to the criminal object of the conspiratorial agreement--that is, to the intended substantive crime. Since we are required to construe a statute in "the context of related provisions and in light of its place in the statutory scheme," City of Phoenix v. Superior Court, 144 Ariz. at 176, 696 P.2d at 728, we find support for our conclusion that "offense" in the attempt statute refers to a substantive rather than to a preparatory offense.

This interpretation is buttressed by language in A.R.S. § 13-1001(A)(2), defining attempt as "any step in the course of conduct planned to culminate in the commission of an offense." Construing "offense" in that sentence to include conspiracy would be absurd, since no course of criminal conduct is "planned to culminate" short of its ultimate object. See City of Phoenix v. Superior Court, 144 Ariz. at 177, 696 P.2d at 729 ("The courts will avoid statutory interpretations that lead to absurd results which could not have been contemplated by the legislature").

Our conclusion is that the preparatory offense of attempt does not apply to the preparatory offense of conspiracy. This conclusion also is supported by reference to the Model Penal Code, a source of the current Arizona statutes. ³ Appellate courts assume that the legislature that passed a statute based upon a model or uniform act intended to adopt the construction placed on the act by its drafters. Arizona State Board of Medical Examiners v. Clark, 97 Ariz. 205, 210, 398 P.2d 908, 912 (1965). Commentary to a uniform or model act is highly persuasive unless erroneous or contrary to settled policy in this state. Valley National Bank of Arizona v. Avco Development Co., 14 Ariz.App. 56, 60, 480 P.2d 671, 675 (1971). We have relied on commentary to the Model Penal Code as persuasive authority in interpreting other provisions it has inspired. See, e.g., State v. Galan, 134 Ariz. 590, 592, 658 P.2d 243, 245 (App.1982); State v. Womack, 174 Ariz. 108, 846 P.2d 609 (App.1992).

The commentary to the attempt provision of the Model Penal Code states: "The Model Code applies to attempts to commit all substantive crimes without limitation." (Emphasis added.) Model Penal Code § 5.01 commentary at 363 (1985). ⁴ The commentary proceeds to explain why an attempt to commit a preparatory offense falls outside the code's scheme:

One of the questions frequently litigated is whether there can be an attempt to attempt. As an abstract proposition of law, the construction has been condemned by a majority of cases considering the issue, and it seems as a matter of sound analysis that the construction is not necessary. An attempt to attempt can always be considered a more remote attempt to commit the same substantive crime, provided of course that the conduct is sufficient to meet the basic test of liability.

Id. (footnotes omitted). This analysis readily applies to the issue before us: an attempted conspiracy to sell narcotic drugs is properly prosecuted as an attempt to sell narcotic drugs if the defendant's conduct and mental state "meet the basic test" of attempt liability. Attempted conspiracy, however, is not a cognizable offense.

Our conclusion also finds support from other jurisdictions which have determined that attempted conspiracy is not a crime. See Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); State v. Sexton, 232 Kan. 539, 657 P.2d 43 (1983); State v. Kihnel, 488 So.2d 1238 (La.App.1986); State v. Stevens, 452 So.2d 289 (La.App.1984); cf. Brown v. State, 550 So.2d 142 (Fla.App.1989) (no crime of attempted solicitation). The parties have not cited, nor have we located, any persuasive authority to the contrary. ⁵

Pursuant to A.R.S. § 13-4035, we have reviewed the record for fundamental error and have found none other than the one discussed here. We reverse Sanchez's convictions and the sentences imposed. Pursuant to term four of...