State v. Pirello , 365 Mont. 399 ( 2012 )

July 20 2012
DA 11-0480
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 155STATE OF MONTANA,
Plaintiff and Appellee,
v.
BUDDY WADE PIRELLO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Mineral, Cause No. DC 2010-18
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nancy G. Schwartz; NG Schwartz Law, PLLC, Billings, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Marcia Boris, Mineral County Attorney, Superior, Montana
Submitted on Briefs: May 9, 2012
Decided: July 20, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Appellant Buddy Wade Pirello (Pirello) appeals from an order of the Fourth
Judicial District Court, Mineral County, denying his motion to dismiss one felony charge
of criminal possession of dangerous drugs. Pirello had argued that the pending charges
should be dismissed on the grounds that the hashish oil that led to his charges was legally
possessed pursuant to the Montana Marijuana Act (MMA). See §§ 50-46-101 to -210,
MCA (2009). We affirm.
¶2 We restate the issues in the case as follows:
¶3 Issue one: Did the District Court err in denying Pirello’s motion to dismiss
because it determined that he could not legally possess hashish oil under the Montana
Marijuana Act, §§ 50-46-101 to -210, MCA (2009)?
¶4 Issue two: Does the rule of lenity require that the Montana Marijuana Act be
interpreted in Pirello’s favor?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On June 30, 2010, Pirello was observed by law enforcement pulling into the center
median between the lanes of Interstate 90. The officer stopped to check on Pirello, who
explained that he had a flat tire. The deputy observed that Pirello had red, watery eyes,
and that the smell of burnt marijuana emanated from the truck. A green, leafy substance
was also plainly observed within the truck.
¶6 Pirello indicated to the deputy that he had a medical marijuana card from
Washington State and consented to a search of the vehicle. The deputy found various
2
items of paraphernalia, three marijuana cigarettes, 20 small baggies containing a total of
52 grams of marijuana, and two one-gram bottles of liquid that were labeled “hash.”
¶7 Pirello was charged with felony possession of dangerous drugs for the hashish
(Count I) and misdemeanor criminal possession of dangerous drugs for the marijuana
pursuant to § 45-9-102, MCA. He was also charged with misdemeanor possession of
drug paraphernalia pursuant to § 45-10-103, MCA, and driving under the influence of
drugs in violation of § 61-8-401, MCA.
¶8 He moved to dismiss Count I on the basis that his medical marijuana card entitled
him to possess the hashish. His motion was denied by the District Court. He then
entered a conditional guilty plea, which reserved his right to appeal the denial of his
motion to dismiss. Pursuant to the terms of the agreement the additional misdemeanor
charges were dismissed. The District Court sentenced him to a three-year deferred
sentence, from which he timely appeals.
STANDARD OF REVIEW
¶9 The denial of a motion to dismiss in a criminal case presents a question of law
which we review de novo. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d
1278. The District Court’s denial of Pirello’s motion to dismiss based on its
interpretation of the MMA was a conclusion of law, which we review for correctness.
State v. Roundstone, 2011 MT 227, ¶ 11, 362 Mont. 74, 261 P.3d 1009.
¶10 Statutes enjoy a presumption of constitutionality. Wing v. State ex rel. Dept. of
Transp., 2007 MT 72, ¶ 12, 336 Mont. 423, 155 P.3d 1224. A defendant challenging a
3
statute’s constitutionality bears the burden of proving it unconstitutional beyond a
reasonable doubt. Wing, ¶ 12.
ANALYSIS
¶11 Pirello claims that the MMA’s exception for “usable marijuana” necessarily
includes the hashish for which he was charged because the term is defined as “any
mixture or preparation of marijuana.” Otherwise, he claims that the term is
unconstitutionally vague, and that the rule of lenity requires the MMA to be interpreted in
his favor. The State argues that the MMA provides a limited exception to the prohibition
of possession of marijuana, and that hashish is unambiguously excluded from this
exception.
¶12 Issue one: Did the District Court err in denying Pirello’s motion to dismiss
because it determined that he could not legally possess hashish oil under the Montana
Marijuana Act, §§ 50-46-101 to -210, MCA (2009)?
¶13 At the time of Pirello’s arrest, the MMA provided patients limited exceptions to
the provisions of Montana law that make possession of marijuana illegal:
(1) A person who possesses a registry identification card issued
pursuant to 50-46-103 may not be arrested, prosecuted, or penalized in any
manner or be denied any right or privilege, including but not limited to civil
penalty or disciplinary action by a professional licensing board or the
department of labor and industry, if:
(a) the qualifying patient or caregiver acquires, possesses,
cultivates, manufactures, delivers, transfers, or transports marijuana not in
excess of the amounts allowed in subsection (2); or
(b) the qualifying patient uses marijuana for medical use.
(2) A qualifying patient and that qualifying patient’s caregiver
may not possess more than six marijuana plants and 1 ounce of usable
marijuana each.
4
(3)(a) A qualifying patient or caregiver is presumed to be engaged
in the medical use of marijuana if the qualifying patient or caregiver:
(i) is in possession of a registry identification card; and
(ii) is in possession of an amount of marijuana that does not
exceed the amount permitted under subsection (2).
(b) The presumption may be rebutted by evidence that the
possession of marijuana was not for the purpose of alleviating the
symptoms or effects of a qualifying patient’s debilitating medical condition.
Section 50-46-201(1)-(3), MCA (2009).
¶14 The MMA adopts the definition of marijuana found within the Controlled
Substances Act (CSA), stating, “‘Marijuana’ has the meaning provided in 50-32-101.”
Section 50-46-102, MCA (2009). The CSA, in turn, provides that “marijuana” is “all
plant material from the genus cannabis containing tetrahydrocannabinol (THC) or seeds
of the genus capable of germination.” Section 50-32-101(17), MCA (2009).
Significantly, the CSA also specifically differentiates hashish: “as distinguished from
marijuana, [hashish] means the mechanically processed or extracted plant material that
contains tetrahydrocannabinol (THC) and is composed of resin from the cannabis plant.”
Section 50-32-101(14), MCA (2009) (emphasis added).
¶15 The issue in this case arises from the fact that in addition to “marijuana,” the
MMA also defines “usable marijuana,” which is “the dried leaves and flowers of
marijuana and any mixture or preparation of marijuana,” excluding “the seeds, stalks, and
roots of the plant.” Section 50-46-102(10), MCA (2009). Thus, Pirello argues that
hashish is one such “mixture or preparation of marijuana” under the MMA, regardless of
differentiation provided by the CSA. He argues that “[i]t is only when looking to
5
statutes in other parts of the code that the definition of ‘useable marijuana’ is called into
question.”
¶16 To the contrary, when interpreting statutes within an act, we interpret individual
sections of the act in a manner that ensures coordination with the other sections of the act.
State v. Johnson, 2012 MT 101, ¶ 20, 365 Mont. 56, 277 P.3d 1232. “Where there are
several provisions or particulars, such a construction is, if possible, to be adopted as will
give effect to all.” Section 1-2-101, MCA. Thus, in addressing this inquiry, it is
necessary to consider the MMA and CSA in their entirety.
¶17 The State argues that to be “useable marijuana” as defined by 50-46-102(10),
MCA (2009), the substance in question must first be “marijuana” as defined in 50-32-
101(17), MCA (2009). We agree. When read together, it becomes clear that in order to
have been considered “useable marijuana,” the substance Pirello possessed needed to be a
preparation of the intact “plant material from the genus cannabis.” Once that plant
material was “mechanically processed or extracted” in a manner that reduced it to resins,
the substance ceased to fall within the definition of “marijuana,” and therefore could not
be contained within the definition of “useable marijuana.”
¶18 We conclude in this case that the MMA was clear and unambiguous on its face,
and that the District Court’s interpretation appropriately harmonized the statutes.
Hashish does not fall within the MMA’s narrow exception to the CSA. Accordingly, we
hold that the District Court did not err in denying Pirello’s motion to dismiss the charge
of criminal possession of dangerous drugs.
6
¶19 Issue two: Does the rule of lenity require that the Montana Marijuana Act be
interpreted in Pirello’s favor?
¶20 Pirello argues that the MMA’s definition of “useable marijuana” is only
ambiguous when read in conjunction with other statutes. Accordingly, he argues that the
rule of lenity requires the act to be interpreted in his favor. The State argues that the rule
of lenity is inapplicable to his situation because the definitions within the MMA are not
ambiguous.
¶21 “It is well settled that a statute must be specific enough to give fair notice of the
conduct prohibited and to provide a meaningful differentiation between culpable and
innocent conduct.” State v. Stanko, 1998 MT 323, ¶ 59, 292 Mont. 214, 974 P.2d 1139.
Here, it is important to note that the MMA as it existed at the time provided a narrow
exception to the general policy within the law that the possession of marijuana was
illegal.
¶22 In addressing Pirello’s argument that the definition of “useable marijuana” is an
unnecessarily manufactured ambiguity, this Court’s duty is to harmonize statutes relating
to the same subject in order to give effect to each statute. State v. Brendal, 2009 MT 236,
¶ 18, 351 Mont. 395, 213 P.3d 448 (citing Oster v. Valley Co., 2006 MT 180, ¶ 17, 333
Mont. 76, 140 P.3d 1079). As we noted above, the MMA specifically defines marijuana
by reference to the CSA. Under the CSA, hashish is not marijuana. The definitions of
“marijuana” and “useable marijuana” are clear and unambiguous and do not provide an
exception to the CSA for hashish. Accordingly, we decline to apply the rule of lenity to
Pirello’s case.
7
CONCLUSION
¶23 Based upon the foregoing, the judgment of the District Court is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
8