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State ex rel. Polk v. Hancock

Court of Appeals of Arizona, First Division

February 18, 2014

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

As Amended February 18, 2014.

Petition for Special Action from the Superior Court in Yavapai County. No. P1300CR201300261. The Honorable Celé Hancock, Judge.

Yavapai County Attorney's Office, Prescott, By Dennis M. McGrane, Counsel for Petitioner.

Yavapai County Public Defender's Office, Prescott, By Jared G. Keenan, Counsel for Real Party in Interest.

Arizona Attorneys for Criminal Justice, Tucson, By David J. Euchner, Sarah L. Mayhew, Joel M. Chorny, Amicus Curiae.

THOMPSON, Judge. Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop joined. Judge Margaret H. Downie specially concurred. THOMPSON, Judge.

OPINION

Page 381

[236 Ariz. 302] THOMPSON, Judge:

[¶1] This case comes before us as a stand-off between the Yavapai County Attorney's Office (the County Attorney) and the Yavapai County Superior Court. The County Attorney recently adopted a policy that all plea agreements would include the following provision (" marijuana provision" ): " 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." [1] After accepting a plea

Page 382

[236 Ariz. 303] in the above matter, the trial judge struck the marijuana provision as an illegal condition of probation and as a violation of its judicial authority under the separation of powers doctrine and the Rules of Criminal Procedure. Sheila Polk, the Yavapai County Attorney, then notified the trial judge that she would, from then on, divert all change of plea cases in order to find another judge more agreeable to the probation term. This special action followed.

[¶2] We accept special action jurisdiction and hold that the trial judge must view the marijuana provision on an individualized, case-by-case, basis rather than making a blanket determination that such a term is never appropriate for any defendant. While such a term will not be appropriate in all cases, in this driving under the influence (DUI) case there is a rational relationship between the marijuana provision and the charges brought against real-party-in-interest Jennifer Ferrell (defendant). Therefore, the trial judge's striking of the stipulated term of probation is reversed.

JURISDICTION

[¶3] Special action jurisdiction is available when there is no other equally plain, speedy or adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). Special action jurisdiction is appropriately invoked when there is an issue of first impression and state wide importance. See State v. Bernini, 230 Ariz. 223, 225, ¶ 5, 282 P.3d 424, 426 (App. 2012) (taking special action jurisdiction in consideration of a reoccurring sentencing issue). Relief is appropriate if the trial court abused its discretion by committing an error of law or proceeded in excess of legal authority.[2] See Ariz. R.P. Spec. Act. 3.

[¶4] Both parties and the Amicus urge us to exercise our discretion to accept special action jurisdiction as this is a recurring issue under the County Attorney's policy to include the marijuana provision as a probation condition in every plea agreement. We agree that special action jurisdiction is appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

[¶5] On October 26, 2012, in Yavapai County, law enforcement arrived on scene to find a vehicle in a ditch alongside the road. The driver, defendant, was asleep or passed out across the front seat. The officer smelled the odor of an intoxicating beverage and burnt marijuana. Both alcohol and marijuana were present in the vehicle, as were two marijuana pipes. The officer conducted a horizontal gaze nystagmus test and defendant showed signs of being impaired. Defendant was arrested after putting up a small struggle. Upon testing, her blood alcohol content registered at .237.

[¶6] Defendant was indicted on charges of aggravated assault, resisting arrest, possession of marijuana, possession of drug paraphernalia, DUI, and consumption or possession of liquor while in a motor vehicle. The County Attorney filed notice of a historical felony for a robbery in Alaska and notice of two prior misdemeanors, including a DUI conviction in 2000.

[¶7] In May 2013, the parties entered into a plea agreement which included the County Attorney's marijuana provision. In exchange for the plea to DUI, attempted aggravated assault on a peace officer and resisting arrest, the County Attorney agreed to dismiss the remaining counts and the allegations of the prior felony and misdemeanors. The trial judge found a factual basis and accepted the plea. Prior to sentencing, defendant moved to have the marijuana condition removed; briefing and argument followed.[3] By that time, the trial ...


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