State v. Hon. hancock/jennifer Ferrell , 237 Ariz. 125 ( 2015 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA EX REL. SHEILA SULLIVAN POLK, YAVAPAI COUNTY
ATTORNEY,
Petitioner,
v.
THE HONORABLE CELÉ HANCOCK, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF YAVAPAI,
Respondent Judge,
JENNIFER LEE FERRELL,
Real Party in Interest.
No. CV-14-0084-PR
Filed April 7, 2015
Appeal from the Superior Court in Yavapai County
The Honorable Celé Hancock, Judge
No. CR201300261
AFFIRMED IN PART, REVERSED IN PART
Opinion of the Court of Appeals, Division One
236 Ariz. 301, 340 P.3d 380 (App. 2014)
VACATED
COUNSEL:
Sheila Sullivan Polk, Yavapai County Attorney, Dennis M. McGrane
(argued), Chief Deputy County Attorney, Prescott, Attorneys for Sheila
Sullivan Polk
Yavapai County Public Defender, Jared G. Keenan (argued), Deputy Public
Defender, Prescott, Attorneys for Jennifer Lee Ferrell
David J. Euchner (argued) and Sarah L. Mayhew, Tucson, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice
Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National
Organization for the Reform of Marijuana Laws
STATE V. HANCOCK (FERRELL)
Opinion of the Court
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER and JUSTICES
BERCH and BRUTINEL concurred.
JUSTICE TIMMER, opinion of the Court:
¶1 Under the Arizona Medical Marijuana Act (“AMMA”), A.R.S.
§§ 36-2801 to -2819, a registered qualifying patient cannot be “arrest[ed],
prosecut[ed] or penal[ized] in any manner” or denied “any right or
privilege” for authorized medical marijuana possession and use. A.R.S.
§ 36-2811(B). We must decide whether this provision prohibits a trial court
from forbidding AMMA-compliant marijuana use as a condition of
probation. If the condition is prohibited, we must also decide whether the
state can withdraw from a plea agreement after the trial court rejects a term
that prohibits medical marijuana use.
I. BACKGROUND
¶2 In 2012, a police officer arrested Jennifer Ferrell after finding
her unconscious in the front seat of a car parked off a road. The State
charged Ferrell with multiple offenses, including driving under the
influence (“DUI”). At the time of her arrest, Ferrell had a registry
identification card, which allowed her to use medical marijuana in
compliance with AMMA.
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
¶3 In exchange for dismissal of the remaining charges, Ferrell
agreed to plead guilty to three charges, including DUI. She signed a plea
agreement containing the following condition (“Marijuana Condition”),
which the Yavapai County Attorney places in all plea agreements:
As a condition of any grant of probation in this matter, the
Court shall include the following term of probation:
Defendant shall not buy, grow, possess, consume, or
use marijuana in any form, whether or not Defendant has a
medical marijuana card issued by the State of Arizona
pursuant to A.R.S. § 36-2801, et seq. (or its equivalent under
another state’s law).
¶4 The trial court accepted the negotiated guilty pleas and
scheduled a sentencing date. Before sentencing, Ferrell moved to strike the
Marijuana Condition as prohibited by AMMA. The court did not address
AMMA but nevertheless struck the Marijuana Condition, reasoning that
although the State was free to recommend probation conditions, it could
not require the court to impose them. The State moved to withdraw from
the plea agreement, but the court denied the request.
¶5 On special action review, the court of appeals did not address
whether the Marijuana Condition violates AMMA. Instead, it disapproved
the Yavapai County Attorney’s use of a blanket policy to include the
Marijuana Condition in all plea agreements. Polk v. Hancock, 236 Ariz. 301,
307 ¶ 25, 340 P.3d 380, 386 (App. 2014). The court held, however, that the
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
trial court erred by failing to consider the appropriateness of the Marijuana
Condition on a case-by-case basis. Id. at 302 ¶ 2, 340 P.3d at 382. Because
the court concluded that the condition was justified in a DUI case, it
reversed the trial court’s ruling and reinstated the provision. Id. The trial
court has stayed sentencing until our disposition of the case.
¶6 We granted Ferrell’s petition and the State’s cross-petition for
review because the impact of AMMA on plea agreements presents
recurring issues of statewide importance. We have jurisdiction pursuant to
Article 6, Section 5(3) of the Arizona Constitution.
II. DISCUSSION
A. Validity of the Marijuana Condition Under AMMA
¶7 In 2010, Arizona voters adopted AMMA by passing
Proposition 203, codified at A.R.S. §§ 36-2801 to -2819. The Act authorizes
a person with a debilitating medical condition to obtain a registry
identification card, which allows that person to possess and use limited
amounts of marijuana for medical reasons without fear of “arrest,
prosecution or penalty in any manner.” A.R.S. §§ 36-2804.02, -2811(B). A
registered qualifying patient also cannot be denied “any right or
privilege . . . by a court” for the patient’s medical use of marijuana. Id. § 36-
2811(B)(1).
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
¶8 Ferrell argues that the Marijuana Condition conflicts with
AMMA by penalizing her for lawful possession and use of medical
marijuana. For the reasons explained in Reed-Kaliher v. Hoggatt, ___ Ariz.
___, ___ P.3d ___ (2015), filed contemporaneously with this opinion, we
hold that § 36-2811(B)(1) prohibits a trial court from conditioning probation
on refraining from possessing or using medical marijuana in compliance
with AMMA.
¶9 The State nevertheless argues that Ferrell waived her AMMA
rights by agreeing to the Marijuana Condition. A defendant generally can
waive statutory and constitutional rights as part of a plea agreement. Cf.
State v. Allen, 223 Ariz. 125, 127 ¶ 13, 220 P.3d 245, 247 (2009)
(acknowledging that a defendant waives several constitutional rights when
pleading guilty). But a defendant cannot do so in contravention of an
identifiable public policy. Cf. State v. Ethington, 121 Ariz. 572, 573–74, 592
P.2d 768, 769–70 (1979) (holding that, as a matter of public policy, a
defendant cannot bargain away the right to appeal); see also CSA 13-101
Loop, LLC v. Loop 101, LLC, 236 Ariz. 410, 412 ¶ 6, 341 P.3d 452, 454 (2014)
(“Contract provisions are enforceable unless prohibited by law or otherwise
contrary to identifiable public policy.”). By adopting AMMA, voters
established as public policy that qualified patients cannot be penalized or
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
denied any privilege as a consequence of their AMMA-compliant
marijuana possession or use. This policy would be severely compromised
if the state and a defendant could bargain away the defendant’s ability to
lawfully use medical marijuana.
¶10 Also, parties cannot confer authority on the court that the law
proscribes. Special Fund Div., Indus. Comm’n v. Tabor, 201 Ariz. 89, 93 ¶ 24,
32 P.3d 14, 18 (App. 2001). The trial court’s authority to grant probation is
constrained by statutes. State v. Jordan, 120 Ariz. 97, 98, 584 P.2d 561, 562
(1978). Because § 36-2811(B) prohibits the court from conditioning
probation on a defendant refraining from AMMA-compliant marijuana
use, see Reed-Kaliher, ___ Ariz. at ___ ¶ 10, ___ P.3d at ___, the parties to a
plea agreement cannot confer this authority on the court.
¶11 The Marijuana Condition, as applied to AMMA-compliant
use, is an illegal term, and the trial court correctly rejected it. In light of our
holding, we need not address whether the court of appeals correctly
disapproved the Yavapai County Attorney’s use of a blanket policy to
include the Marijuana Condition in Ferrell’s plea agreement.
B. Withdrawal by State from Plea Agreement
¶12 The State argues that it was entitled to withdraw from the
plea agreement after the trial court granted Ferrell’s motion to strike the
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
Marijuana Condition. Because the court’s ruling did not depend on the
resolution of any factual issues, we review the ruling de novo as a matter of
law. See State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778
(1996).
1.
¶13 The state and a defendant “may negotiate concerning, and
reach an agreement on, any aspect of the case,” Ariz. R. Crim. P. 17.4(a),
except as limited by public policy or the law, cf. State v. Rutherford, 154 Ariz.
486, 488, 489 n.1, 744 P.2d 13, 15, 16 n.1 (1987) (observing that while Rule
17.4(a) permits plea agreements on “any aspect” of a case, that
authorization is constrained by public policy). Once the parties enter into
a written plea agreement, the trial court can either accept the plea or reserve
acceptance until a later date. Dominguez v. Meehan, 140 Ariz. 329, 331, 681
P.2d 912, 914 (App. 1983), adopted and approved, 140 Ariz. 328, 681 P.2d 911(1984). Once the court accepts a plea, it is bound by all provisions of the
plea agreement except those concerning the sentence or the term and
conditions of probation. Ariz. R. Crim. P. 17.4(d); Williams v. Superior Court,
130 Ariz. 209, 210, 635 P.2d 497, 498 (1981).
¶14 A party’s ability to withdraw from a plea agreement depends
on whether the court has accepted the plea, which then constitutes a
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
conviction. See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (“A plea of guilty
is more than a confession which admits that the accused did various acts; it
is itself a conviction; nothing remains but to give judgment and determine
punishment.”). Either party may revoke the agreement before acceptance
by the court. Ariz. R. Crim. P. 17.4(b). The defendant may withdraw a plea
after the court’s acceptance only if the court has rejected a provision in the
plea agreement regarding the sentence or the term and conditions of
probation. Ariz. R. Crim. P. 17.4(e), 17.5. If the defendant withdraws the
plea, the plea agreement is voided, returning the parties to their original
positions. Dominguez, 140 Ariz. at 331, 681 P.2d at 914.
¶15 Unlike the defendant, the state generally cannot withdraw
from an agreement if the court rejects a provision regarding the sentence or
the term and conditions of probation because jeopardy has attached, and
proceeding to trial would place the defendant in double jeopardy in
violation of the state and federal constitutions. U.S. Const. amend. V; Ariz.
Const. art. 2, § 10; see also Williams, 130 Ariz. at 210, 635 P.2d at 498(“Rejecting the plea after acceptance and setting the case for trial constitutes
double jeopardy.”); Dominguez, 140 Ariz. at 331, 681 P.2d at 914. If the
defendant waives double jeopardy protection, however, then the state can
withdraw from the plea agreement. See Ricketts v. Adamson, 483 U.S. 1, 9–
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
10 (1987); see also Dominguez, 140 Ariz. at 332, 681 P.2d at 915 (“Just as the
[defendant] may waive other constitutional rights he may waive double
jeopardy.”).
¶16 In State v. Superior Court, this Court stated, without limitation,
that Rule 17.4(e) implicitly authorizes the state to withdraw after the court
rejects a plea agreement or any of its provisions. 125 Ariz. 575, 578, 611 P.2d
928, 931 (1980), rejected on other grounds by Smith v. Superior Court, 130 Ariz.
210, 212, 635 P.2d 498, 500 (1981). The authority conferred by Rule 17.4(e),
however, does not override a defendant’s double jeopardy rights. We
disapprove of State v. Superior Court to the extent it suggests that Rule
17.4(e) authorizes the state to withdraw from a plea agreement and
continue the prosecution in violation of a defendant’s unwaived double
jeopardy rights.
2.
¶17 The State does not address the Double Jeopardy Clause
restrictions on its ability to withdraw from the plea agreement.
Nevertheless, it argues that the trial court was required to permit
withdrawal because Ferrell agreed that the State could withdraw if the trial
court rejected any provision of the agreement, including the Marijuana
Condition. Paragraph seven of the agreement provides as follows:
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
If, after accepting this Plea Agreement, the Court concludes
that any of its provisions regarding the sentence or the term
and conditions of probation are inappropriate, it can reject the
plea, giving the State and Defendant each an opportunity to
withdraw from the Plea Agreement. In the event this Plea
Agreement is withdrawn, all original charges will be
automatically reinstated.
¶18 Although this provision, which parrots paragraph seven of
court-recommended form 18(a), see Ariz. R. Crim. P. 41, is not a model of
clarity, Ferrell does not dispute that it provides that the State may withdraw
from the agreement upon the court’s rejection of an agreed-upon term. She
argues, however, that double jeopardy protection is waived only when a
defendant breaches the plea agreement or negotiates in bad faith, neither of
which occurred here.
¶19 We are guided by the court of appeals’ decision in Dominguez,
which this Court adopted. 140 Ariz. at 328, 681 P.2d at 911. The trial court
in that case accepted a negotiated plea pursuant to a written plea agreement
and set the matter for sentencing. Dominguez, 140 Ariz. at 330, 681 P.2d at
913. On the sentencing date, the court rejected the agreement as against the
interests of justice, set aside the plea, and scheduled a trial. Id. On special
action review, the court of appeals vacated the trial court’s order and
directed the court to offer the defendant the opportunity to withdraw from
the plea agreement. Id. The defendant elected to keep the plea in place, but
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
the state moved to withdraw and the court granted the motion, setting the
case for trial. Id. at 330, 331, 681 P.2d at 913, 914.
¶20 After acknowledging that jeopardy attached when the trial
court accepted the negotiated guilty plea, the court of appeals determined
that the defendant had waived his double jeopardy rights by the terms of
the plea agreement:
If, after accepting the plea, the Court concludes that any of the
terms or provisions of this agreement are unacceptable, both
parties shall be given the opportunity to withdraw from this
agreement, or the Court can reject the agreement . . . . Should
the Court reject this agreement, or the State withdraw from
the agreement, the Defendant hereby waives all claims of
double jeopardy.
Id. at 331, 681 P.2d at 914. Because the state’s withdrawal was prompted by
a reason contained in the agreement—the trial court’s determination that
terms or provisions were unacceptable—the court of appeals held that the
trial court did not err by permitting the state to withdraw from the plea
agreement. Id. at 330, 331, 681 P.2d at 914, 915.
¶21 Like the plea agreement in Dominguez, the agreement here
authorized the State to withdraw from the agreement if the trial court
rejected the agreed-upon sentence or the term or conditions of probation.
Although Ferrell did not expressly waive her double jeopardy rights, she
nevertheless did so by agreeing that the State could withdraw if the trial
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
court rejected any probation condition and by acknowledging that the
original charges would then be reinstated. See Ricketts, 483 U.S. at 9–10
(holding that it is not necessary to waive double jeopardy “by name in the
plea agreement” because “an agreement specifying that charges may be
reinstated given certain circumstances is, at least under the provisions of this
plea agreement, precisely equivalent to an agreement waiving a double
jeopardy defense”).
¶22 Amici argue that permitting the State to withdraw from the
plea agreement would violate A.R.S. § 36-2811(B) by penalizing Ferrell or
denying her the privilege of probation due to her AMMA-compliant
marijuana use. We would agree with Amici if the sole basis for the State’s
request to withdraw is that Ferrell would otherwise be permitted to use
marijuana in compliance with AMMA while on probation. Just as the State
cannot extend a plea offer that requires imposition of a probation condition
that would prohibit a defendant’s AMMA-compliant marijuana use, see
Reed-Kaliher, ___ Ariz. at ___ ¶ 10, ___ P.3d at ___, it cannot withdraw from
a plea agreement solely because the trial court refuses to require that the
defendant refrain from AMMA-compliant marijuana use while on
probation.
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STATE V. HANCOCK (FERRELL)
Opinion of the Court
¶23 But the State has a lawful basis for withdrawing from the plea
agreement. The stricken Marijuana Condition validly required Ferrell to
abstain from recreational marijuana use while on probation, even if she
visits states that allow such use. No other provision in the agreement
conditions Ferrell’s probation on her abstention from using marijuana
outside AMMA’s authorization. Pursuant to paragraph seven of the
agreement, therefore, the State must be allowed to withdraw from the plea
agreement.
III. CONCLUSION
¶24 For the foregoing reasons, we vacate the court of appeals’
opinion and affirm in part and reverse in part the trial court’s order. The
trial court properly rejected the Marijuana Condition to the extent it
prohibited Ferrell from using marijuana in compliance with AMMA during
her probation. Because the plea agreement authorizes the State’s
withdrawal, Ferrell waived double jeopardy protection in this
circumstance, and the trial court erred by refusing to permit the State to
withdraw.
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