interpreting 1997 version of act, stating that defendant may withdraw from plea agreement calling for mandatory probation if court rejects that provision of the agreementSummary of this case from Gray v. Irwin
No. 1 CA-SA 97-0235
Opinion Filed October 7, 1997
Petition for Special Action from the Superior Court in Yuma County, Cause No. SC97C-00184.
The Honorable Philip L. Hall, Judge; Jurisdiction Accepted; Relief Denied.
Kathryn E. Stocking, Attorney for Petitioner, Yuma.
Roger A. Nelson, Yuma County Attorney, Attorney for Real Party in Interest, Yuma.
Grant Woods, the Attorney General by Randall M. Howe, Assistant Attorney General, Amicus Curie, Phoenix.
Defendant pleaded guilty to possession of marijuana having a weight of less than two pounds. Although this was her third conviction for possession of drugs, the plea agreement provided that "Probation is mandatory," meaning that the parties intended for her to be sentenced as if this were her first conviction. The trial court refused to ignore the prior convictions; it rejected the mandatory probation provision of the plea agreement, then stayed sentencing so Defendant could file this special action. We accepted jurisdiction because the case raises an important question of law which should be decided before Defendant is sentenced. See Arizona Rule of Procedure for Special Actions 1.
The Yuma County Attorney's Office filed no response. The Attorney General's Office filed an amicus brief eight days late, which we accepted because that office had late notice of the petition. Defendant's reply brief has been considered as well.
The case requires interpretation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-901.01 (1997), which was enacted following the passage of Proposition 200 in the 1996 general election. As relevant here, subsections A and B of section 13-901.01 mandate probation on a first conviction of possession of certain drugs, and subsection F provides that subsections A and B do not apply if defendant has "previously been convicted two or more times of any offense listed in this subsection." Defendant has two prior convictions for offenses listed in subsection F.
Because of her prior convictions, the trial court rejected "that portion of the plea agreement which stated that probation was mandatory." The court concluded that the existence of prior convictions was "a matter for determination by the court at the time of sentencing." We agree.
Defendant argues that a prior conviction exists for purposes of section 13-901.01 only if it is properly alleged by the State. In support of this argument she relies on section 13-604(P) (Supp. 1996), which provides for enhanced sentencing if prior convictions are "charged in the indictment or information and admitted or found by the court . . . ." See State v. Martinez, 172 Ariz. 437, 440, 837 P.2d 1172, 1175 (App. 1992) (noting that section 13-604 requires that prior convictions be "alleged before trial").
Defendant argues that section 13-901.01(F) is "susceptible to more than one interpretation, [and] the rule of lenity dictates that any doubt should be resolved in favor of the defendant." State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302 (1996). We conclude that section 13-901.01 is unambiguous on this point. Unlike section 13-604, section 13-901.01 does not require that the State allege prior convictions before they are deemed to exist. Therefore, we hold that whether a defendant is entitled to be sentenced pursuant to section 13-901.01 is a matter of law to be decided by the court; it is not a matter of pleading or plea bargaining to be decided by the State.
The provisions of section 13-604 apply if, among other things, the State alleges a prior conviction. Because the State did not file such an allegation here, Defendant cannot be sentenced pursuant to section 13-604. The provisions of section 13-901.01 apply if, among other things, a person has fewer than two prior convictions for possession of drugs. Because Defendant has two such prior convictions, Defendant cannot be sentenced pursuant to section 13-901.01 and the trial court did not err in rejecting the mandatory probation provision of the plea agreement.
Because part of the plea agreement was rejected, Defendant should be given the option of withdrawing from it pursuant to Rule 17.4(e), Arizona Rules of Criminal Procedure.
Jurisdiction was previously accepted and relief is now denied.
E. G. NOYES, JR., Judge
SARAH D. GRANT, Presiding Judge
THOMAS C. KLEINSCHMIDT, Judge