from the Superior Court in Maricopa County No.
CR2013-449134-001 The Honorable Teresa A. Sanders, Judge
Arizona Attorney General's Office, Phoenix By Joseph T.
Maziarz and Christian Lueders, Rule 38(d) certified student
Counsel for Appellee
Maricopa County Legal Defender's Office, Phoenix By
Cynthia Dawn Beck Counsel for Appellant
Presiding Judge Samuel A. Thumma delivered the opinion of the
Court, in which Judge Maurice Portley and Judge John C.
Dustin Gill appeals his conviction for possession or use of
marijuana, a Class 1 misdemeanor, arguing the superior court
erred by admitting Gill's statements to a representative
of the Treatment Assessment Screening Center (TASC) program
during a deferred prosecution. Because Gill has shown no
error, his conviction is affirmed.
FACTS AND PROCEDURAL
In 2013, a security guard found Gill in a restroom holding
several grams of marijuana. The State charged Gill with one
count of possession or use of marijuana, a Class 6 felony.
After the State reduced the charge to a misdemeanor, and Gill
rejected plea offers, the parties agreed that the prosecution
would be deferred while Gill participated in a TASC program.
See Ariz. Rev. Stat. (A.R.S.) § 11-361 (2016).
When entering the TASC program, a TASC representative
interviewed Gill and Gill filled out a "statement of
facts" form. On that form, which Gill and his attorney
signed, Gill indicated he understood his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), and avowed
that "I fully understand that what I have written here
may be used against me in a court of law should I fail to
satisfactorily complete the TASC program." When asked
about "the facts of the offense, " Gill wrote on
the form: "The marijuana was found in the bathroom on
the ground in my possession."
Although Gill participated in the TASC program for a period
of time, he failed to complete the requirements and the State
resumed prosecution. After Gill then rejected another plea
offer, he moved to suppress the "statement of
facts" form and any testimony from TASC representatives
regarding his admissions, claiming (as relevant here) they
were inadmissible because they were made in the course of
plea discussions. After full briefing, the superior court
denied Gill's motion. After a bench trial, the court
found Gill guilty, suspended his sentence and placed him on
one year of unsupervised probation. Gill timely appealed his
conviction. This court has jurisdiction pursuant to the
Arizona Constitution, Article 6, Section 9, and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A).
Gill argues information he provided to TASC was not
admissible at trial because they constitute "a statement
made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a
guilty plea or they resulted in a later-withdrawn guilty
plea." Ariz. R. Evid. 410(a)(4); see also Ariz.
R. Crim. P. 17.4(f) (noting admissibility "of a plea, a
plea discussion, and any related statement is governed
by" Ariz. R. Evid. 410). This court reviews the superior
court's ruling on such an issue for an abuse of
discretion. Lohmeier v. Hammer, 214 Ariz. 57, 60
¶ 6 (App. 2006).
Gill's argument fails for three reasons.
First, Gill did not provide information to TASC "during
plea discussions." Ariz. R. Evid. 410(a)(4). Although
Ariz. R. Crim. P. 17.4 governs plea negotiations and
agreements and refers to Ariz. R. Evid. 410, see
Ariz. R. Crim. P. 17.4(f), the TASC program is part of a
deferred prosecution governed by Ariz. R. Crim. P. 38, which
does not reference Ariz. R. Evid. 410. Participating in a
deferred prosecution program such as TASC, then, is not a
plea negotiation or agreement subject to Ariz. R. Crim. P.
17.4 or Ariz. R. Evid. 410. In fact, Gill agreed to
participate in the TASC program, and provided the statements
challenged here, after he rejected a plea
offer. Given that Gill ...