Stoudamire v. State of Arizona , 213 Ariz. 296 ( 2006 )

FILED BY CLERK
AUG -1 2006
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
DAMON STOUDAMIRE, ) 2 CA-CV 2006-0018
) DEPARTMENT A
Plaintiff/Appellant, )
) OPINION
v. )
)
HON. PAUL SCOTT SIMON, Judge of )
the Pima County Justice Court, )
)
Defendant/Appellee, )
)
and )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20055342
Honorable Christopher C. Browning, Judge
AFFIRMED
Stephen A. Houze Portland, Oregon
and
Piccarreta & Davis, P.C.
By Michael L. Piccarreta and Jefferson Keenan Tucson
Attorneys for Plaintiff/Appellant
Barbara LaWall, Pima County Attorney
By Taren M. Ellis Tucson
Attorneys for Real Party in Interest
H O W A R D, Presiding Judge.
¶1 Appellant Damon Stoudamire appeals from the Pima County Superior Court’s
denial of relief in his special action challenging the Pima County Justice Court’s denial of
his request for a jury trial on marijuana and drug paraphernalia possession charges.
Stoudamire argues the superior court erred in denying relief because he is entitled to a jury
trial under the Organic Act, 48 U.S.C. § 1464, and the Arizona Constitution; he is entitled
to a jury trial because he is charged with offenses the legislature considers serious; and the
justice court’s denial of his request for a jury trial is contrary to the holding in State ex rel.
Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989). Because we conclude Stoudamire
is not entitled to a jury trial, we affirm the superior court’s ruling.
¶2 The facts relevant to this appeal are not in dispute. On July 3, 2003,
Stoudamire was charged with possessing marijuana and drug paraphernalia, class six
felonies. The state, pursuant to A.R.S. § 13-702(G)(2), designated the offenses as class one
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misdemeanors and filed a complaint in justice court. The justice court granted the state’s
motion to deny Stoudamire a jury trial. Stoudamire filed a complaint for special action in
superior court, and the superior court accepted jurisdiction but denied relief.
¶3 We review a superior court’s denial of relief in a special action for an abuse
of discretion. Merlina v. Jejna, 208 Ariz. 1, ¶ 6, 90 P.3d 202, 204 (App. 2004). Whether
a defendant is entitled to a jury trial, however, is a question of law and is reviewed de novo.
Urs v. Maricopa County Attorney’s Office, 201 Ariz. 71, ¶ 2, 31 P.3d 845, 846 (App.
2001). An error of law may constitute an abuse of discretion. State v. Wall, 212 Ariz. 1,
¶ 12, 126 P.3d 148, 150 (2006).
¶4 Stoudamire argues that the Organic Act and the Arizona Constitution
guarantee the right to a jury trial to any defendant who would have been entitled to a jury
trial prior to statehood. Citing Territorial Bill of Rights, Ch. 11, Pt. 1, §§ 3-5, Stoudamire
contends that, because, under territorial law, “[n]o person [could] be convicted of a public
offense, unless by a verdict of a jury,” and both felonies and misdemeanors were public
offenses, he would have been entitled to a jury trial prior to statehood. The essence of
Stoudamire’s claim is that, if possession of marijuana had been unlawful when the Arizona
Constitution was adopted, he would have been entitled to a jury trial.
¶5 Article II, § 23 of the Arizona Constitution provides: “The right of trial by jury
shall remain inviolate.” In Derendal v. Griffith, 209 Ariz. 416, ¶ 36, 104 P.3d 147, 156
(2005), the Arizona Supreme Court held this provision preserves the right to a jury trial for
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any offense that has a “common law antecedent that guaranteed a right to trial by jury at the
time of Arizona statehood.” Consequently, a court must examine “whether substantially
similar elements comprise the common law offense and the offense charged.” Id.
¶6 Neither possession of marijuana nor possession of drug paraphernalia was a
crime at the time of statehood. The Arizona legislature made possession of marijuana illegal
in 1931 when it passed the Arizona Narcotic Control Act. 1931 Ariz. Sess. Laws, ch. 36,
§ 3. The legislature made possession of drug paraphernalia illegal in 1982. 1982 Ariz. Sess.
Laws, ch. 216, § 1. Stoudamire notes that, although possession of marijuana was not illegal
at the time of statehood, possession of opium was. But possession of opium involves an
entirely different drug and, therefore, does not have “substantially similar elements” to
possession of marijuana.1 Because we conclude that neither charged offense has a common
law antecedent offense,2 article II, § 23 does not protect Stoudamire’s right to a jury trial on
these charges.
¶7 Nevertheless, Stoudamire argues that the supreme court has “abandoned its
constitutional duty to interpret [the] constitutional guarantee of the right to [a] jury trial with
reference to Arizona common law, Arizona’s territorial heritage and the prior well-
established customs of the territory.” But we are bound by our supreme court’s decisions.
1
The 1901 Revised Statutes of Arizona contain no references to marijuana.
2
We note that, although the supreme court in State ex rel. Dean v. Dolny, 161 Ariz.
297, 301, 778 P.2d 1193, 1197 (1989), vacated this court’s opinion, the court
acknowledged and did not disapprove this court’s determination that “no common law
counterpart to possession of marijuana existed” in Arizona. Id. at 299, 778 P.2d at 1195.
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See State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370, 374 n.4 (2004). As a result, we must
reject this argument and apply the rule established in Derendal.
¶8 Stoudamire next argues that he is entitled to a jury trial because he is charged
with offenses “the legislature clearly considers serious both in terms of the maximum
authorized sentence and the serious statutory consequences that result from a conviction.”
Under Derendal, a criminal defendant charged with an offense that does not have a common
law antecedent may still have the right to a jury trial under article II, § 24, which states: “In
criminal prosecutions, the accused shall have the right to . . . a speedy public trial by an
impartial jury of the county in which the offense is alleged to have been committed.” This
protection applies to offenses that are “serious” for jury trial purposes as opposed to “petty.”
Derendal, 209 Ariz. 416, ¶ 37, 104 P.3d at 156. A rebuttable presumption that an offense
is petty arises when an offense is classified “as a misdemeanor punishable by no more than
six months incarceration.” Id. The presumption is rebutted only when the defendant
“demonstrat[es] that the offense carries additional severe, direct, uniformly applied, statutory
consequences that reflect the legislature’s judgment that the offense is serious.” Id. When
analyzing whether a charge is serious for the purposes of jury eligibility, courts consider the
potential punishment for the crime as it has been charged. Amancio v. Forster, 196 Ariz.
95, ¶ 16, 993 P.2d 1059, 1062 (App. 1999) (potential penalty as charged determined right
to jury trial on unlawful imprisonment charge that could have been charged as class six
felony but that had been charged as misdemeanor); see State ex rel. Dean v. Dolny, 161
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Ariz. 297, 299, 778 P.2d 1193, 1195 (1989) (supreme court analyzed issue based on
possible six-month jail term when prosecutor had charged possession of marijuana as
misdemeanor); see also State v. Quintana, 195 Ariz. 325, ¶¶ 9-10, 987 P.2d 811, 813 (App.
1999).
¶9 The legislature has authorized a prosecutor to charge a class six felony as a
class one misdemeanor under A.R.S. § 13-702(G), which the prosecutor elected to do in this
case. A class one misdemeanor carries a fine of up to $2,500 and a maximum term of
incarceration of six months. See A.R.S. §§ 13-802(A), 13-707(A)(1). And the penalties for
possession of controlled substances and drug paraphernalia are further restricted by A.R.S.
§ 13-901.01. Section 13-901.01(A) states that, if a defendant is convicted for the first time
of “personal possession . . . of a controlled substance . . . [t]he court shall suspend the
imposition or execution of sentence and place such person on probation.” Based on these
statutes, we conclude that the legislature has expressed its view that the seriousness of these
crimes when they are first offenses does not justify any term of imprisonment. See State v.
Estrada, 201 Ariz. 247, ¶ 20, 34 P.3d 356, 360-61 (2001). But, even if this would not be
Stoudamire’s first conviction for possession of controlled substances, the maximum term of
imprisonment for the offenses with which he is charged is six months. Therefore, the
presumption under Derendal is that Stoudamire’s alleged crimes are not “serious.”
¶10 Even so, Stoudamire contends that both offenses are serious because they are
potentially class six felonies, which can be punished by up to two years in prison.
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Stoudamire relies on the language in Blanton v. City of North Las Vegas, 489 U.S. 538, 109
S. Ct. 1289 (1989), and Derendal, 209 Ariz. 416, ¶ 16, 104 P.3d at 152, concerning
“maximum statutory penalt[ies]” to argue that a reduction in the potential penalty pursuant
to § 13-702 is not relevant for purposes of determining a defendant’s entitlement to a jury
trial. But neither Blanton nor Derendal dealt with the issue of a reduction of the class of
the offenses as charged pursuant to § 13-702.
¶11 Furthermore, in Blanton, the supreme court recognized the importance of the
maximum statutory penalty as reflecting the “legislature’s view of the seriousness of an
offense.” 489 U.S. at 542, 109 S. Ct. at 1292. The judiciary is not to substitute its judgment
of the seriousness of an offense for that of the legislature. Id. at 541-42, 109 S. Ct. at 1292.
As stated above, allowing the prosecutor to charge an offense as a misdemeanor reflects the
legislature’s view of the seriousness of these crimes. Additionally, the supreme court in
Blanton held that “a defendant is entitled to a jury trial whenever the offense for which he
is charged carries a maximum authorized prison term of greater than six months.” Id. at
542, 109 S. Ct. at 1293 (emphasis added). Therefore, we do not violate the reasoning of
Blanton when we analyze the seriousness of the offenses here by considering the penalty for
those offenses as charged. And, neither Blanton nor Derendal overruled or undermined the
holdings in Amancio and Quintana.
¶12 Alternatively, Stoudamire argues that he can overcome the presumption that
the charges against him are petty because there are significant collateral consequences
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attached to a conviction for possession of marijuana or drug paraphernalia. To overcome
the presumption, Stoudamire must show “that the offense[s] carr[y] additional severe, direct,
uniformly applied, statutory consequences that reflect the legislature’s judgment that the
offense is serious.” Derendal, 209 Ariz. 416, ¶ 37, 104 P.3d at 156. Stoudamire
acknowledges that Derendal precludes consideration of occupational restrictions because
they are not “uniformly applied.” Id. But he only enumerates professions whose licensing
requirements would be affected by a conviction for possession of marijuana to support his
argument, he does not demonstrate that such licensing restrictions are uniform. We are
bound by the supreme court’s holding in Derendal, see Smyers, 207 Ariz. 314, n.4, 86 P.3d
at 374 n.4, and find that Stoudamire has not overcome the presumption that the charges
against him are petty. Having failed to establish either element of the Derendal test,
Stoudamire is not entitled to a jury trial.
¶13 Finally, Stoudamire argues that, because the Arizona Supreme Court’s
decision in Dolny has not been overruled, he is entitled to a jury trial. Stoudamire is correct
that the supreme court held in Dolny: “[U]nder Rothweiler [v. Superior Court, 100 Ariz.
37, 410 P.2d 479 (1966),] a misdemeanor charge of possession of marijuana is sufficiently
serious to warrant a jury trial, primarily because of the potentially grave consequences,
together with the potential direct punishment, resulting from a conviction.” 161 Ariz. at
301, 778 P.2d at 1197. But Derendal expressly overruled Dolny to the extent it cited the
“grave consequences” of a conviction in determining the right to a jury trial for a
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misdemeanor criminal offense. 209 Ariz. 416, n.8, 104 P.3d at 154 n.8; cf. Abuhl v. Howell,
___ Ariz. ___, ¶¶ 8-9, 135 P.3d 68, 69 (App. 2006). Furthermore, the penalties for
possession of marijuana and possession of drug paraphernalia have been reduced since
Dolny under § 13-901.01. Because the grave consequences factor was the primary focus
and basis of the court’s holding in Dolny, and because the penalties have changed, that case
is no longer controlling on the issue presented here. Therefore, Dolny is not helpful to
Stoudamire.
¶14 For the foregoing reasons, we affirm the superior court’s judgment denying
Stoudamire a jury trial.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
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