State of Arizona v. David Lee Green

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
DAVID LEE GREEN,
Appellant.
No. CR-18-0537-PR
Filed March 4, 2020
Appeal from the Superior Court in Pima County
The Honorable Paul E. Tang, Judge
No. CR 20163874-001
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Opinion of the Court of Appeals, Division Two
245 Ariz. 529 (App. 2018)
AFFIRMED IN PART AND VACATED IN PART
COUNSEL:
Mark Brnovich, Arizona Attorney General, O. H. Skinner, Solicitor General,
Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Karen Moody
(argued), Assistant Attorney General, Tucson, Attorneys for State of
Arizona
Joel Feinman, Pima County Public Defender, Abigail Jensen (argued),
Assistant Public Defender, Tucson, Attorneys for David Lee Green
Jared G. Keenan, Marty Lieberman, American Civil Liberties Union
Foundation of Arizona, Phoenix; and Rhonda Neff, Kimerer & Derrick,
P.C., Phoenix, Attorneys for Amicus Curiae American Civil Liberties Union
Foundation of Arizona and Arizona Attorneys for Criminal Justice
STATE V. GREEN
Opinion of the Court
JUSTICE MONTGOMERY authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, GOULD, LOPEZ, and BEENE joined.
JUSTICE MONTGOMERY, opinion of the Court:
¶1 We consider in this case whether the provisions of A.R.S. § 13-
901.01 apply to convictions for possession of drugs for sale and inchoate
drug offenses, including solicitation to sell a narcotic drug. We hold that
convictions for possession of drugs for sale, whether completed or inchoate,
are not disqualifying convictions for purposes of determining eligibility for
mandatory probation and drug treatment under § 13-901.01. Additionally,
we hold that § 13-901.01 applies equally to qualifying inchoate and
completed drug offenses.
I.
¶2 David Lee Green was convicted of possession of drug
paraphernalia in 1994 and for solicitation to sell a narcotic drug in 2006. In
2017, Green was convicted by a jury of several offenses, including two
counts of possession of a narcotic drug and one count of possession of drug
paraphernalia.
¶3 Before sentencing, Green filed a motion contending he should
be sentenced to probation for his 2017 drug convictions under § 13-901.01.
Green argued that sentencing him to prison without having an opportunity
for probation with treatment would be inconsistent with the intent of § 13-
901.01 and contrary to the reasoning in previous court of appeals’ decisions.
Green further argued that his 2006 conviction for solicitation to sell a
narcotic drug did not qualify as a personal possession or use offense under
§ 13-901.01. 1 Therefore, his 2017 drug convictions did not count as a third
personal possession or use conviction, commonly referred to as a “strike,”
1 Green also challenged whether his 1994 conviction qualifies as a personal
possession or use offense under § 13-901.01 but does not reassert that
challenge here.
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STATE V. GREEN
Opinion of the Court
leaving him eligible for probation and treatment. See State v. Gallagher, 205
Ariz. 267, 268–69 ¶ 4 (App. 2003) (stating multiple convictions for
possession of drugs and drug paraphernalia on the same occasion should
be treated as one conviction for sentencing purposes under Proposition
200). Accordingly, Green asserted that the court was required to place him
on probation and order drug treatment.
¶4 The trial court ruled that Green’s 2006 conviction for
solicitation to sell a narcotic drug was a strike, relying on prior cases that
held convictions for possession of drugs for sale, conspiracy to unlawfully
possess drugs, and solicitation to possess a drug were strikes. As a result,
Green was not eligible for mandatory probation and the trial court
sentenced him to concurrent, mitigated prison terms for his 2017 drug
convictions.
¶5 The court of appeals reversed. It found that Green’s 2006
conviction was not a personal possession or use conviction under the plain
language of § 13-901.01, and that he was entitled to mandatory probation
and drug treatment. State v. Green, 245 Ariz. 529, 534 ¶ 25 (App. 2018).
¶6 We granted review because whether the provisions of § 13-
901.01 apply to possession of drugs for sale and inchoate drug offenses are
recurring issues of statewide importance. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution.
II.
¶7 The State argues that the court of appeals’ decision is contrary
to cases holding that possession of drugs for sale and inchoate drug offenses
count as strikes and that the application of the plain language of the statute
to exclude inchoate offenses from determining probation eligibility leads to
an absurd result.
¶8 Whether § 13-901.01 applies to drug convictions is an issue of
statutory construction subject to de novo review. State v. Francis, 243 Ariz.
434, 435 ¶ 6 (2018). In interpreting statutes, we first look to the text itself.
State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017). “[W]e must ‘strive to construe
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STATE V. GREEN
Opinion of the Court
a statute and its subsections as a consistent and harmonious whole.’”
Hoffman v. Chandler, 231 Ariz. 362, 363 ¶ 7 (2013) (quoting State v. Wagstaff,
164 Ariz. 485, 491 (1990)). “‘When the plain text of a statute is clear and
unambiguous,’ it controls unless an absurdity or constitutional violation
results.” Sell v. Gama, 231 Ariz. 323, 327 ¶ 16 (2013) (quoting State v.
Christian, 205 Ariz. 64, 66 ¶ 6 (2003)). An interpretation is “absurd if it is so
irrational, unnatural, or inconvenient that it cannot be supposed to have
been within the intention of persons with ordinary intelligence and
discretion.” State v. Estrada (Estrada II), 201 Ariz. 247, 251 ¶ 17 (2001)
(quoting Perini Land Dev. Co. v. Pima County, 170 Ariz. 380, 383 (1992)).
¶9 Because initiatives are no less an exercise of the legislative
power when carried out by the people than are statutes enacted by the
legislature, we apply the same interpretive standards to initiatives as we do
to statutes. See, e.g., Calik v. Kongable, 195 Ariz. 496, 500 ¶¶ 16–17 (1999).
The “primary purpose” in construing a voter initiative “is to effectuate the
intent of . . . the electorate that adopted it.” Id. at 498 ¶ 10 (quoting Jett v.
City of Tucson, 180 Ariz. 115, 119 (1994)).
¶10 Arizona voters enacted § 13-901.01 by approving the Drug
Medicalization, Prevention, and Control Act of 1996, an initiative
designated as Proposition 200. See Ariz. Sec’y of State, 1996 Publicity
Pamphlet 25–37 (1996), https://azsos.gov/sites/default/files/1996-ballot-
propositions.pdf. Section 13-901.01 established a graduated system of
consequences for personal possession or use of a controlled substance
offense 2 and excluded certain drug and other felony offenses from
mandatory probation and drug treatment.
¶11 A court must impose probation with drug treatment and may
not impose a term of incarceration for an offender’s first conviction for
personal possession or use of drugs. See § 13-901.01(A). A court may
impose additional terms of probation, including a maximum jail term of
one year, on a second conviction. See § 13-901.01(F); see also Calik, 195 Ariz.
2 Voters amended § 13-901.01 in 2002 to include drug paraphernalia among
personal possession or use offenses. See
https://apps.azsos.gov/election/2002/Info/pubpamphlet/english/prop
302.htm.
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STATE V. GREEN
Opinion of the Court
at 499 ¶ 13 (discussing that the authority to impose additional terms of
probation “within the jurisdiction of the court” includes the authority to
impose a term of incarceration in jail pursuant to § 13-901(F)). Drug
offenders are not eligible for mandatory probation and treatment if they
have three or more strikes or their convictions involve the personal
possession or use of methamphetamine. See § 13-901.01(H). Offenders with
a prior conviction for a violent offense as defined at § 13-901.03 are also not
eligible for mandatory probation. See § 13-901.01(B). Additionally, § 13-
901.01(C) provides that “[p]ersonal possession or use of a controlled
substance shall not include possession for sale, production, manufacturing,
or transportation for sale of any controlled substance.”
¶12 We recognize that cases construing § 13-901.01 have reached
results conflicting with the plain language of the statute and with each other
regarding whether convictions for possession of drugs for sale and inchoate
drug offenses qualify as strikes. See Goddard v. Superior Court, 191 Ariz. 402,
404-05 ¶¶ 7-8, 14 (App. 1998) (holding that convictions for possession of
drugs for sale count as strikes under § 13-901.01 despite language explicitly
excluding possession for sale in subsection (C)); compare Stubblefield v.
Trombino, 197 Ariz. 382, 383 ¶ 6 (App. 2000) (reasoning that it is illogical to
apply § 13-901.01 to possession of narcotic drugs but not to the less serious
offense of attempted possession of narcotic drugs); and State v. Guillory, 199
Ariz. 462, 464 ¶ 6 (App. 2001) (finding it absurd to not include conspiracy
to unlawfully possess drugs as a strike under § 13-901.01 because it is the
same class offense covered by § 13-901.01); with State v. Ossana, 199 Ariz.
459, 461–62 ¶ 11 (App. 2001) (rejecting Stubblefield’s application of § 13-
901.01 to attempted possession convictions and declining to count them as
strikes); but see Raney v. Lindberg, 206 Ariz. 193, 199–200 ¶ 20 (App. 2003)
(rejecting the contrary holding of Ossana and holding attempt offenses
count as prior convictions because it was inconceivable voters would intend
for attempt offenses to be eligible for probation but not count as strikes).
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STATE V. GREEN
Opinion of the Court
A.
¶13 Section 13-901.01 states:
A. Notwithstanding any law to the contrary, any person who
is convicted of the personal possession or use of a controlled
substance or drug paraphernalia is eligible for probation. The
court shall suspend the imposition or execution of sentence
and place the person on probation.
B. Any person who has been convicted of or indicted for a
violent crime as defined in § 13-901.03 is not eligible for
probation as provided for in this section but instead shall be
sentenced pursuant to chapter 34 of this title.
C. Personal possession or use of a controlled substance
pursuant to this section shall not include possession for sale,
production, manufacturing or transportation for sale of any
controlled substance.
....
F. If a person is convicted a second time of personal
possession or use of a controlled substance or drug
paraphernalia, the court may include additional conditions of
probation it deems necessary, including intensified drug
treatment, community restitution, intensive probation, home
arrest or any other action within the jurisdiction of the court.
....
H. A person is not eligible for probation under this section but
instead shall be sentenced pursuant to chapter 34 of this title
if the court finds . . .:
1. Had been convicted three times of personal possession
of a controlled substance or drug paraphernalia.
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STATE V. GREEN
Opinion of the Court
¶14 Section 13-901.01, by its terms, distinguishes possession of
drugs for personal use from drug sale or trafficking activity. Subsection (C)
states that “[p]ersonal possession or use of a controlled substance pursuant
to this section shall not include possession for sale, production,
manufacturing or transportation for sale of any controlled substance.”
(emphasis added). See also Foster v. Irwin, 196 Ariz. 230, 233 ¶ 7 (2000)
(noting that Proposition 200 differentiates non-commercial possession or
use from commercial or potential commercial trafficking in controlled
substances). Applying “personal possession” uniformly across each
subsection of § 13-901.01 necessarily excludes the drug sale or trafficking
activity listed in subsection (C) from the personal possession or use offenses
addressed by the mandatory probation terms in subsections (A) and (F) and
the probation eligibility provisions in (H). Therefore, subsection (H) does
not apply to convictions for sale offenses. Accordingly, we disapprove
Goddard’s holding that possession for sales convictions count as strikes.
¶15 Our construction of § 13-901.01 does not, as the State
contends, lead to an absurd result. Rather, our construction effectuates the
purpose of Proposition 200 to provide treatment to substance abusers while
excluding those convicted of drug sales and trafficking offenses. That an
offender may have multiple prior convictions for possession of drugs for
sale and still be eligible for mandatory probation and drug treatment for a
first personal possession or use offense is not “so irrational, unnatural, or
inconvenient” that voters could not have intended that result. Estrada II,
201 Ariz. at 251 ¶ 17. Proposition 200 did not limit drug treatment to users
who had never engaged in selling drugs. Rather than reaching an absurd
result, our interpretation promotes Proposition 200’s purpose to treat drug
use with services and treatment rather than imprisonment for a substance
abuser’s first two personal possession or use offenses.
B.
¶16 Section 13-901.01 does not, by its terms, address inchoate
offenses. To determine whether § 13-901.01 applies to inchoate drug
offenses, we must consider the intent of Proposition 200 and whether its
application to inchoate drug offenses leads to absurd results.
7
STATE V. GREEN
Opinion of the Court
¶17 Voters sought to strengthen Arizona’s approach to drug
control by addressing drug abuse as a public health issue. Specifically,
voters wanted drug users to receive treatment through a court-supervised
program with graduated consequences for repeated personal possession or
use convictions. See Text of Proposed Amendment § 2, Proposition 200,
1996 Ballot Propositions. Those engaged in drug sales and trafficking are
excluded from mandatory drug treatment and are subject to imprisonment.
See id. Seeking to “free up space in our prisons so that there is room to
incarcerate violent offenders and drug dealers,” voters made a clear policy
choice to address drug users differently from drug dealers. Id. (emphasis
added).
¶18 Inchoate offenses are defined in A.R.S. §§ 13-1001 to -1004. A
person attempting to commit a drug offense “act[s] with the kind of
culpability otherwise required for commission of an offense.” § 13-1001(A).
Solicitation requires that “with the intent to promote or facilitate the
commission of a felony . . . such person commands, encourages, requests or
solicits another person to engage in specific conduct which would
constitute the felony.” § 13-1002(A). A person engaged in a conspiracy acts
“with the intent to promote or aid the commission of an offense” in an
agreement “with one or more persons that at least one of them or another
person will engage in conduct constituting the offense.” § 13-1003(A). To
facilitate an offense, a person must “act[] with knowledge that another
person is committing or intends to commit an offense.” § 13-1004(A).
¶19 Each inchoate offense shares a characteristic with a completed
offense. Whether attempting, soliciting, conspiring, or facilitating a drug
crime, the inchoate drug offender has the same intent, level of culpability,
or goal as the drug offender who completes his crime. Furthermore, a
completed drug offense is, at some point in the course of its commission, an
inchoate offense.
¶20 Given the clear intent of voters to distinguish personal
possession offenses from drug dealing offenses, along with the relationship
between inchoate and completed criminal offenses, there is no rational
reason for treating inchoate drug offenses differently from completed drug
offenses when applying the provisions of § 13-901.01. Excluding inchoate
personal possession offenses from subsection (A) would allow the state to
8
STATE V. GREEN
Opinion of the Court
circumvent the voters’ intent to require probation and treatment for drug
users by permitting the charging of an inchoate personal possession or use
offense when it would otherwise be charged as a completed offense. That
would be absurd. Cf. Estrada II, 201 Ariz. at 252 ¶ 22 (observing that “as a
practical matter, a person will rarely, if ever, possess or use a controlled
substance without also possessing . . . associated paraphernalia).
¶21 Likewise, applying subsections (F) and (H) equally to
convictions for inchoate and completed personal possession offenses
ensures a consistent application of graduated consequences to drug users
without the potential arbitrary distinction between an inchoate and
completed drug offense. We therefore expressly disapprove the result and
analysis in Ossana, which declined to count convictions for attempted
possession offenses as strikes.
¶22 However, excluding those who are convicted of inchoate
drug sales and trafficking activity from subsections (A), (F), and (H)
maintains the intent of voters to distinguish between personal possession
and drug sale and trafficking offenses. An inchoate drug sale or trafficking
offense is as distinct from personal possession or use of a drug as is a
completed drug sale or trafficking offense.
¶23 Accordingly, since subsection (H) does not apply to inchoate
drug sale or trafficking convictions, Green’s conviction for solicitation to
sell a narcotic drug is not a strike.
III.
¶24 We affirm Green’s convictions but vacate his sentences and
remand for resentencing pursuant to § 13-901.01. We vacate ¶¶ 17, 19, 22
and 23 of the court of appeals’ opinion and affirm the remainder.
9