State Ex Rel. Romley v. Martin

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ex rel., ) Arizona Supreme Court
RICHARD M. ROMLEY, Maricopa ) No. CV-02-0267-PR
County Attorney, )
) Court of Appeals
Petitioner, ) Division One
) Nos. 1 CA-SA 02-0125
v. ) 1 CA-SA 02-0126
) (Consolidated)
THE HONORABLE GREGORY MARTIN and )
THE HONORABLE JONATHAN H. ) Maricopa County
SCHWARTZ, JUDGES of the SUPERIOR ) Superior Court
COURT of the STATE OF ARIZONA, in ) Nos. CR 01-018779
and for the County of MARICOPA, ) CR 02-003676
)
Respondent Judges, )
) O P I N I O N
CRUZ OLIVAS LANDEROS and STEVEN )
P. STEADMAN, )
)
Real Parties in Interest. )
)
__________________________________)

Opinion of the Court of Appeals, Division One
203 Ariz. 46, 49 P.2d 1142

AFFIRMED
_____

RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County
Attorney
Attorneys for Petitioner

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher Johns, Deputy Public
Defender
Attorneys for Real Party in Interest
Cruz Olivas Landeros

JAMES T. MYRES Phoenix
Attorney for Real Party in Interest
Steven P. Steadman
_____

H U R W I T Z, Justice

¶1 Under the “Drug Medicalization, Prevention, and

Control Act of 1996,” an initiative proposal adopted by the

voters as Proposition 200 and subsequently codified at Arizona

Revised Statutes (“A.R.S.”) section 13-901.01 (Supp. 2002), a

person convicted for the first or second time of “personal

possession or use of a controlled substance or drug

paraphernalia” may not be sentenced to a term of imprisonment.1

We granted review in this case to decide whether such

“Proposition 200 convictions” can be used for impeachment

purposes under Rule 609(a)(1) of the Arizona Rules of Evidence,

which allows evidence of a prior conviction to be used for the

purpose of attacking the credibility of a witness only if the

“crime . . . was punishable by death or imprisonment in excess

of one year under the law under which the witness was

convicted.”

I.

¶2 Insofar as it pertains to the question before us, the

factual background in these two consolidated cases is

straightforward and undisputed. The two real parties in

interest, Steven P. Steadman and Cruz Olivas Landeros

1
Calik v. Kongable, 195 Ariz. 496, 498-99 ¶¶ 11-14, 990
P.2d 1055, 1057-58 (1999), details the history of Proposition
200 and § 13-901.01.

2

(collectively “defendants”), were each charged separately by the

State with the commission of a felony, Steadman with theft of a

means of transportation, a class 3 felony, and Landeros with

knowingly possessing narcotic drugs for sale, a class 2 felony.

Each defendant had previously been convicted of one or more

offenses involving the personal possession or use of a

controlled substance or drug paraphernalia. These previous

convictions involved first- or second-time offenses, and each

defendant was accordingly sentenced pursuant to Proposition 200

to a term of probation. See A.R.S. § 13-901.01(A) (providing

that a court “shall . . . place the person[s] on probation”).

¶3 Each defendant moved to preclude the State from using

these prior Proposition 200 convictions2 for impeachment purposes

at trial, and, in each case, the superior court granted the

motion. The State filed a special action in the court of

appeals in each case. The court of appeals consolidated the two

cases, accepted jurisdiction but denied relief, holding that

2
Certain convictions for possession or use of drugs or
drug paraphernalia are excluded from the mandatory probation
provisions of § 13-901.01(A). For example, § 13-901.01(B)
provides that a person convicted of a violent crime is “not
eligible for probation”; § 13-901.01(H) provides likewise with
respect to persons “convicted three times of personal possession
or use of a controlled substance or drug paraphernalia.” See
also § 13-901.01(C) (excluding from subsection (A) “possession
for sale, production, manufacturing or transportation for sale
of any controlled substance”). None of these factors is present
in these cases, and we therefore use the term “Proposition 200
convictions” to refer to convictions subject to the mandatory
probation requirements of § 13-901.01(A).

3

Proposition 200 convictions may not be used for impeachment

purposes under Rule 609(a)(1) because they are not “punishable

by death or imprisonment in excess of one year.” State ex rel.

Romley v. Martin, 203 Ariz. 46, 48 ¶ 8, 49 P.3d 1142, 1144 (App.

2002).

¶4 The State filed a petition for review, and we granted

review to address this issue of statewide concern. We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution, Arizona Rule of Civil Appellate Procedure 23, and

A.R.S. § 12-120.24 (2003).

II.

¶5 Arizona Rule of Evidence 609(a) allows evidence “that

the witness has been convicted of a crime” to be admitted “[f]or

the purpose of attacking the credibility of a witness” in two

general circumstances. If the crime for which the witness was

convicted “involved dishonesty or false statement,” evidence of

the prior conviction is admissible “regardless of the

punishment.” Ariz. R. Evid. 609(a)(2). In all other

circumstances, Rule 609(a)(1) governs, and the evidence of the

prior conviction is admissible only “if the crime . . . was

punishable by death or imprisonment in excess of one year under

the law under which the witness was convicted.” Because the

defendants’ prior convictions did not involve dishonesty or

4

false statement, the issue in this case is whether they are

covered by Rule 609(a)(1).

¶6 In interpreting Rule 609(a)(1), we apply the same

principles used in construing statutes. See State ex rel.

Romley v. Stewart, 168 Ariz. 167, 168-69, 812 P.2d 985, 986-87

(1991); State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App.

1996).3 Our first point of reference, of course, is the

statutory language, which we expect to be “the best and most

reliable index of a statute’s meaning.” State v. Williams, 175

Ariz. 98, 100, 851 P.2d 131, 133 (1993). We interpret that

language in such a way as to give it a fair and sensible

meaning. See Robinson v. Lintz, 101 Ariz. 448, 452, 420 P.2d

923, 927 (1966).

A.

¶7 Rule 609(a)(1) provides that a prior conviction not

involving dishonesty or false statement can be used for

impeachment purposes only “if the crime (1) was punishable by

death or imprisonment in excess of one year under the law under

which the witness was convicted.” It is common ground that

these defendants could not have been punished for their prior

crimes by imprisonment in excess of one year — or imprisonment

3
We review rulings involving the interpretation of a
court rule de novo. See State ex rel. Napolitano v. Brown &
Williamson Tobacco Corp., 196 Ariz. 382, 390 ¶ 37, 998 P.2d
1055, 1063 (2000).

5

at all — under A.R.S. § 13-901.01(A). The most logical

interpretation of Rule 609(a)(1) is that the defendants’

previous Proposition 200 convictions cannot be used for

impeachment in their pending trials, because their crimes were

not, in the words of the Rule, “punishable by death or

imprisonment in excess of one year.”

¶8 The State does not contest that these defendants could

not have been imprisoned on the basis of their previous

convictions. Rather, it urges us to focus on the phrase “under

the law under which the witness was convicted,” which the State

argues refers only to the substantive “crime” that was the

subject of the previous conviction. Landeros, for example, was

previously convicted of possession of drug paraphernalia in

violation of A.R.S. § 13-3415(A) (1989), and possession of a

narcotic drug, in violation of A.R.S. § 13-3408(A)(1) (1989).4

Possession of drug paraphernalia is punishable as a class 6

felony, see A.R.S. § 13-3415(A), while possession of a dangerous

drug is punishable as a class 4 felony, see A.R.S. § 13-

4
Landeros was sentenced under a prior version of § 13-
901.01(A), which did not include “use of drug paraphernalia” in
its listing of drug offenses for which probation was mandatory.
See A.R.S. § 13-901.01(A) (Supp. 1997). However, this Court has
interpreted that prior statute as encompassing “use of drug
paraphernalia.” See State v. Estrada, 201 Ariz. 247, 252 ¶¶ 21-
24, 34 P.3d 356, 361 (2001). Thus, Landeros was required under
Proposition 200 to be sentenced to a term of probation for his
drug paraphernalia conviction.

6

3408(B)(1). A class 4 felony is generally punishable by a

sentence ranging from 1.5 years to 3 years in prison, while a

class six felony is generally punishable by a sentence of 6

months to 1.5 years. See A.R.S. § 13-702(A) (2001). The State

thus contends that Rule 609(a)(1) applies, since the “crimes”

that were the subject of the defendants’ prior convictions were

punishable by imprisonment for more than one year, even if these

particular defendants could not have been so punished under

Proposition 200.

¶9 We have, however, previously rejected a similar

construction of Rule 609(a)(1). In State v. Malloy, 131 Ariz.

125, 639 P.2d 315 (1981), the defendant had previously been

convicted of third degree burglary, a class 6 felony. While the

punishment for this crime could have exceeded one year’s

imprisonment, the superior court exercised its discretion under

A.R.S. § 13-702(G) (1978) to enter a judgment of conviction for

a class 1 misdemeanor; the maximum sentence was therefore no

greater than six months in jail. See id. at 126-27, 639 P.2d at

316-17. Thus, in Malloy, “the law under which the witness was

convicted” did not make his crime punishable by imprisonment in

excess of one year. We accordingly held that “it is clear that

the appellant’s prior conviction does not come within Rule

609(a)(1).” Id. at 127, 639 P.2d at 317.

7

¶10 The State’s proffered interpretation of Rule 609(a)(1)

is not only contrary to Malloy, but also suffers from a serious

internal inconsistency. The State urges us to refer only to the

substantive statutes defining the crime to determine whether a

crime is “punishable by . . . imprisonment in excess of one year

under the law under which the witness was convicted”; put

differently, we are asked to focus only on the “convicting”

statute, and not the “sentencing” statute. But the “convicting”

statutes applicable to drug offenses in Arizona, like most of

our criminal statutes, do not themselves expressly prescribe the

potential length of a prison sentence. Thus, A.R.S. § 13-3408,

which governs possession of a narcotic drug, simply provides

that a person violating its provisions “is guilty of a class 4

felony.” A.R.S. § 13-3408(B)(1). The court must then refer to

the statutes governing sentences for class 4 felonies, A.R.S. §§

13-701 to -702.02 — the so-called “sentencing” statutes — in

order to determine the possible sentences. The State therefore

cannot contest that these “sentencing statutes” are part of “the

law under which the witness was convicted” for purposes of Rule

609(a)(1).

¶11 But there is, of course, another “sentencing” statute

applicable to Proposition 200 convictions. It is A.R.S. § 13-

901.01(A), which provides, “[n]otwithstanding any law to the

contrary,” that persons in the position of these defendants may

8

never be sentenced to imprisonment. Because we must look

outside the “convicting” statute to “sentencing statutes” in

order to determine the possible punishment for a crime, it

cannot logically be argued that § 13-901.01(A), which supersedes

all other sentencing statutes for Proposition 200 convictions,

is somehow wholly irrelevant to the determination under Rule

609(a)(1) of whether a crime “was punishable by death or

imprisonment in excess of one year under the law under which the

witness was convicted.”

¶12 In short, the most sensible and logical reading of

Rule 609(a)(1) is that the prior conviction must involve a crime

for which imprisonment in excess of one year is at least

possible under the applicable law. Because such a sentence

simply was not possible for these defendants with respect to

their prior Proposition 200 convictions, Rule 609(a)(1) appears

on its face to bar use of these convictions to impeach the

defendants’ credibility in their upcoming trials.5

5
State v. Skramstad, 433 N.W.2d 449 (Minn. Ct. App.
1998), upon which the State relies, is premised on the notion
that a sentence of greater than one year was “possible” at the
time of the defendant’s conviction, and that the court’s
subsequent designation of the crime as a misdemeanor after the
defendant had successfully completed probation did not affect
its use for impeachment under Minnesota’s version of Rule
609(a)(1). See id. at 453 (holding that Rule 609(a)(1)
addresses “the maximum sentence possible at the time of
conviction, not the sentence which was actually given nor any
subsequent alteration of the defendant’s record”). But even
assuming arguendo that Skramstad was correctly decided on its

9

B.

¶13 The State also argues that any interpretation of Rule

609(a)(1) as excluding the use of Proposition 200 convictions

for impeachment purposes is foreclosed by our recent decision in

State v. Christian, ___ Ariz. ___, 66 P.3d 1241 (2003).

Christian held that a Proposition 200 conviction can be used as

a “historical prior felony” conviction to enhance a defendant’s

sentence pursuant to A.R.S. § 13-604(V)(1) (2001).

¶14 The State begins from the premise that Christian and

State v. Thues, 203 Ariz. 339, 54 P.3d 368 (App. 2002),

establish that Proposition 200 did not alter the status of

convictions for various drug offenses as “felonies.” The State

then argues that the “in excess of one year” language in Rule

609(a)(1) is really a shorthand for “felony,” and that to

disallow use of Proposition 200 convictions for impeachment

purposes is thus inconsistent with Christian.

¶15 We see no tension between Christian and a construction

of Rule 609(a)(1) that excludes use of Proposition 200

convictions for impeachment. The statute at issue in Christian,

A.R.S. § 13-604(V)(1), permitted enhancement of sentences on the

basis of a “prior felony conviction” that met certain statutory
__________________________________
facts, it is of no aid to the State here, since the “maximum
sentence possible” at the time of the defendants’ prior
convictions was probation.

10

criteria. We held that Proposition 200 convictions met the

statutory criteria. See also Thues, 203 Ariz. at 341 ¶ 10, 54

P.3d at 370 (holding that Proposition 200 convictions are

felonies for sentencing enhancement purposes notwithstanding the

inability of a court to impose a term of imprisonment).

¶16 In contrast, Rule 609(a)(1) never mentions the word

“felony,” but instead speaks of crimes “punishable by death and

imprisonment in excess of one year.” While the State is correct

in noting that the traditional distinction between a felony and

a misdemeanor is the possibility of a sentence in excess of one

year,6 the history of Federal Rule of Evidence 609(a)(1) (upon

which the Arizona Rule is modeled) indicates that the

“imprisonment in excess of one year” language was expressly

designed to avoid embroiling the courts in technical disputes as

to whether a particular crime was a misdemeanor or a felony

under state law. The Advisory Committee Notes to the 1972

Proposed Rules explain that “[f]or evaluation of the crime in

terms of seriousness, reference is made to the congressional

measurement of felony (subject to imprisonment in excess of one

6
See generally Advisory Committee Note to Fed. R. Evid.
609(a) (1972) (“For purposes of impeachment, crimes are divided
into two categories by the rule: (1) those of what is generally
regarded as felony grade, without particular regard to the
nature of the offense, and (2) those involving dishonesty or
false statement, without regard to the grade of the offense.”).

11

year) rather than adopting state definitions which vary

considerably.” Id.

¶17 Thus, the court of appeals’ construction of Rule

609(a)(1) is perfectly consistent with Christian and Thues.

While Christian and Thues make plain that Proposition 200

convictions are felonies, Rule 609(a)(1) turns not on the

technical definition of a felony, but rather on the maximum

potential sentence that could be imposed for the prior crime.

Because A.R.S. § 13-901.01 makes clear that a term of

imprisonment cannot be imposed on the basis of a Proposition 200

conviction, the fact that these convictions involve felonies is

simply irrelevant under the Rule.

C.

¶18 The State also argues that the purposes behind

Proposition 200, which was designed to treat a defendant’s first

two personal drug offenses as a medical matter by providing

probation instead of incarceration and requiring drug education

and treatment for such offenses, see State v. Estrada, 201 Ariz.

247, 249 ¶ 2, 34 P.3d 356, 358 (2001), would not be furthered by

excluding Proposition 200 convictions from Rule 609(a)(1). But

this argument misses the point. All parties concede that

Proposition 200 simply does not address the issue before us

today. The question at hand is whether Rule 609(a)(1) permits

Proposition 200 convictions to be used for impeachment, and that

12

question cannot be resolved by speculation about what position

the proponents of Proposition 200 would have taken on the point

had they only considered it.

¶19 What is not subject to dispute is that the voters who

approved Proposition 200 adopted legislation expressly providing

that Proposition 200 convictions can never result in

imprisonment in excess of one year. Rule 609(a)(1), in turn,

makes plain that only convictions that subject the defendant to

such a potential term of imprisonment are serious enough to be

used to impeach a witness’ credibility at trial. Thus, while

Proposition 200 may not have removed all collateral consequences

from Proposition 200 convictions, see, e.g., Christian, __ Ariz.

at __ ¶ 20, 66 P.3d at 1247, it plainly placed such convictions

outside the purview of Rule 609(a)(1).

D.

¶20 Finally, the State argues that it would be irrational

for this Court to interpret Rule 609(a)(1) as forbidding the use

of a first and second drug use conviction for impeachment

purposes, but allow a third conviction for precisely the same

conduct to be so used. But while Rule 609(a)(1) might have made

a different policy choice, we see nothing irrational in its

central premise — that only those crimes that the legislative

power deems sufficiently serious to merit punishment in excess

13

of one year in prison are to be used for impeachment purposes of

the convicted witness.

¶21 Indeed, the legislature has decided in contexts other

than drug offenses that a third conviction for an offense should

be treated more seriously than the first two. Under A.R.S. §

28-1381(C) (Supp. 2001), a first or second conviction for

driving under the influence of alcohol or drugs is a class 1

misdemeanor. However, when the defendant engages in precisely

the same conduct for a third time within a period of sixty

months after the first offense, the crime is treated as a class

4 felony. See A.R.S. § 28-1383(A)(2) (Supp. 2001) (defining the

third offense as “aggravated driving under the influence”);

A.R.S. § 28-1383(J)(1) (providing that aggravated driving under

the influence is a class 4 felony).

¶22 Thus, under Rule 609(a)(1), the first and second

convictions for driving under the influence of alcohol or drugs

could not be used to impeach the convicted witness’ credibility

because the legislature made the decision that these convictions

should be punished by jail time of less than one year. The

third offense, however, could be so used, because the

legislature has made the decision that such repeat offenses

ought to be punishable by imprisonment in excess of one year.

¶23 The legislature can constitutionally treat the third

occurrence of criminal conduct in a more serious fashion than

14

the first and second occurrences of precisely the same conduct.

See State v. Renteria, 126 Ariz. 591, 594, 617 P.2d 543, 546

(App. 1979) (upholding against an equal protection attack a

prior version of the drunk driving statutes which prescribed a

mandatory sixty-day sentence for those with two prior

convictions in the past twenty-four months, and concluding that

classifying repeat offenders more harshly than first- or second-

time offenders is rational). That is precisely what Proposition

200 does with respect to first- or second-time drug offenders.

By treating a third drug offense as a more serious crime than

the first two such offenses, Proposition 200 draws precisely the

same line as the drunk driving statutes, with precisely the same

Rule 609(a)(1) consequences.

III.

¶24 For the foregoing reasons, we conclude that

Proposition 200 convictions may not be used for impeachment

purposes under Rule 609(a)(1). Accordingly, we affirm the court

of appeals’ opinion denying the State’s request for special

action relief.

____
Andrew D. Hurwitz, Justice

CONCURRING:

_
Charles E. Jones, Chief Justice

15

_
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

16