State v. Hon. hancock/jennifer Ferrell

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
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.

No. CV-14-0084-PR
Filed April 7, 2015

Appeal from the Superior Court in Yavapai County
The Honorable Celé Hancock, Judge
No. CR201300261
AFFIRMED IN PART, REVERSED IN PART

Opinion of the Court of Appeals, Division One
236 Ariz. 301, 340 P.3d 380 (App. 2014)
VACATED

COUNSEL:

Sheila Sullivan Polk, Yavapai County Attorney, Dennis M. McGrane
(argued), Chief Deputy County Attorney, Prescott, Attorneys for Sheila
Sullivan Polk

Yavapai County Public Defender, Jared G. Keenan (argued), Deputy Public
Defender, Prescott, Attorneys for Jennifer Lee Ferrell

David J. Euchner (argued) and Sarah L. Mayhew, Tucson, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice

Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National
Organization for the Reform of Marijuana Laws
 STATE V. HANCOCK (FERRELL)
Opinion of the Court

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER and JUSTICES
BERCH and BRUTINEL concurred.

JUSTICE TIMMER, opinion of the Court:

¶1 Under the Arizona Medical Marijuana Act (“AMMA”), A.R.S.

§§ 36-2801 to -2819, a registered qualifying patient cannot be “arrest[ed],

prosecut[ed] or penal[ized] in any manner” or denied “any right or

privilege” for authorized medical marijuana possession and use. A.R.S.

§ 36-2811(B). We must decide whether this provision prohibits a trial court

from forbidding AMMA-compliant marijuana use as a condition of

probation. If the condition is prohibited, we must also decide whether the

state can withdraw from a plea agreement after the trial court rejects a term

that prohibits medical marijuana use.

I. BACKGROUND

¶2 In 2012, a police officer arrested Jennifer Ferrell after finding

her unconscious in the front seat of a car parked off a road. The State

charged Ferrell with multiple offenses, including driving under the

influence (“DUI”). At the time of her arrest, Ferrell had a registry

identification card, which allowed her to use medical marijuana in

compliance with AMMA.

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

¶3 In exchange for dismissal of the remaining charges, Ferrell

agreed to plead guilty to three charges, including DUI. She signed a plea

agreement containing the following condition (“Marijuana Condition”),

which the Yavapai County Attorney places in all plea agreements:

As a condition of any grant of probation in this matter, the
Court shall include the following term of probation:
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. (or its equivalent under
another state’s law).

¶4 The trial court accepted the negotiated guilty pleas and

scheduled a sentencing date. Before sentencing, Ferrell moved to strike the

Marijuana Condition as prohibited by AMMA. The court did not address

AMMA but nevertheless struck the Marijuana Condition, reasoning that

although the State was free to recommend probation conditions, it could

not require the court to impose them. The State moved to withdraw from

the plea agreement, but the court denied the request.

¶5 On special action review, the court of appeals did not address

whether the Marijuana Condition violates AMMA. Instead, it disapproved

the Yavapai County Attorney’s use of a blanket policy to include the

Marijuana Condition in all plea agreements. Polk v. Hancock, 236 Ariz. 301,

307 ¶ 25, 340 P.3d 380, 386 (App. 2014). The court held, however, that the

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

trial court erred by failing to consider the appropriateness of the Marijuana

Condition on a case-by-case basis. Id. at 302 ¶ 2, 340 P.3d at 382. Because

the court concluded that the condition was justified in a DUI case, it

reversed the trial court’s ruling and reinstated the provision. Id. The trial

court has stayed sentencing until our disposition of the case.

¶6 We granted Ferrell’s petition and the State’s cross-petition for

review because the impact of AMMA on plea agreements presents

recurring issues of statewide importance. We have jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution.

II. DISCUSSION

A. Validity of the Marijuana Condition Under AMMA

¶7 In 2010, Arizona voters adopted AMMA by passing

Proposition 203, codified at A.R.S. §§ 36-2801 to -2819. The Act authorizes

a person with a debilitating medical condition to obtain a registry

identification card, which allows that person to possess and use limited

amounts of marijuana for medical reasons without fear of “arrest,

prosecution or penalty in any manner.” A.R.S. §§ 36-2804.02, -2811(B). A

registered qualifying patient also cannot be denied “any right or

privilege . . . by a court” for the patient’s medical use of marijuana. Id. § 36-

2811(B)(1).

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

¶8 Ferrell argues that the Marijuana Condition conflicts with

AMMA by penalizing her for lawful possession and use of medical

marijuana. For the reasons explained in Reed-Kaliher v. Hoggatt, ___ Ariz.

___, ___ P.3d ___ (2015), filed contemporaneously with this opinion, we

hold that § 36-2811(B)(1) prohibits a trial court from conditioning probation

on refraining from possessing or using medical marijuana in compliance

with AMMA.

¶9 The State nevertheless argues that Ferrell waived her AMMA

rights by agreeing to the Marijuana Condition. A defendant generally can

waive statutory and constitutional rights as part of a plea agreement. Cf.

State v. Allen, 223 Ariz. 125, 127 ¶ 13, 220 P.3d 245, 247 (2009)

(acknowledging that a defendant waives several constitutional rights when

pleading guilty). But a defendant cannot do so in contravention of an

identifiable public policy. Cf. State v. Ethington, 121 Ariz. 572, 573–74, 592

P.2d 768, 769–70 (1979) (holding that, as a matter of public policy, a

defendant cannot bargain away the right to appeal); see also CSA 13-101

Loop, LLC v. Loop 101, LLC, 236 Ariz. 410, 412 ¶ 6, 341 P.3d 452, 454 (2014)

(“Contract provisions are enforceable unless prohibited by law or otherwise

contrary to identifiable public policy.”). By adopting AMMA, voters

established as public policy that qualified patients cannot be penalized or

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

denied any privilege as a consequence of their AMMA-compliant

marijuana possession or use. This policy would be severely compromised

if the state and a defendant could bargain away the defendant’s ability to

lawfully use medical marijuana.

¶10 Also, parties cannot confer authority on the court that the law

proscribes. Special Fund Div., Indus. Comm’n v. Tabor, 201 Ariz. 89, 93 ¶ 24,

32 P.3d 14, 18 (App. 2001). The trial court’s authority to grant probation is

constrained by statutes. State v. Jordan, 120 Ariz. 97, 98, 584 P.2d 561, 562

(1978). Because § 36-2811(B) prohibits the court from conditioning

probation on a defendant refraining from AMMA-compliant marijuana

use, see Reed-Kaliher, ___ Ariz. at ___ ¶ 10, ___ P.3d at ___, the parties to a

plea agreement cannot confer this authority on the court.

¶11 The Marijuana Condition, as applied to AMMA-compliant

use, is an illegal term, and the trial court correctly rejected it. In light of our

holding, we need not address whether the court of appeals correctly

disapproved the Yavapai County Attorney’s use of a blanket policy to

include the Marijuana Condition in Ferrell’s plea agreement.

B. Withdrawal by State from Plea Agreement

¶12 The State argues that it was entitled to withdraw from the

plea agreement after the trial court granted Ferrell’s motion to strike the

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

Marijuana Condition. Because the court’s ruling did not depend on the

resolution of any factual issues, we review the ruling de novo as a matter of

law. See State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778

(1996).

1.

¶13 The state and a defendant “may negotiate concerning, and

reach an agreement on, any aspect of the case,” Ariz. R. Crim. P. 17.4(a),

except as limited by public policy or the law, cf. State v. Rutherford, 154 Ariz.

486, 488, 489 n.1, 744 P.2d 13, 15, 16 n.1 (1987) (observing that while Rule

17.4(a) permits plea agreements on “any aspect” of a case, that

authorization is constrained by public policy). Once the parties enter into

a written plea agreement, the trial court can either accept the plea or reserve

acceptance until a later date. Dominguez v. Meehan, 140 Ariz. 329, 331, 681

P.2d 912, 914 (App. 1983), adopted and approved, 140 Ariz. 328, 681 P.2d 911

(1984). Once the court accepts a plea, it is bound by all provisions of the

plea agreement except those concerning the sentence or the term and

conditions of probation. Ariz. R. Crim. P. 17.4(d); Williams v. Superior Court,

130 Ariz. 209, 210, 635 P.2d 497, 498 (1981).

¶14 A party’s ability to withdraw from a plea agreement depends

on whether the court has accepted the plea, which then constitutes a

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

conviction. See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (“A plea of guilty

is more than a confession which admits that the accused did various acts; it

is itself a conviction; nothing remains but to give judgment and determine

punishment.”). Either party may revoke the agreement before acceptance

by the court. Ariz. R. Crim. P. 17.4(b). The defendant may withdraw a plea

after the court’s acceptance only if the court has rejected a provision in the

plea agreement regarding the sentence or the term and conditions of

probation. Ariz. R. Crim. P. 17.4(e), 17.5. If the defendant withdraws the

plea, the plea agreement is voided, returning the parties to their original

positions. Dominguez, 140 Ariz. at 331, 681 P.2d at 914.

¶15 Unlike the defendant, the state generally cannot withdraw

from an agreement if the court rejects a provision regarding the sentence or

the term and conditions of probation because jeopardy has attached, and

proceeding to trial would place the defendant in double jeopardy in

violation of the state and federal constitutions. U.S. Const. amend. V; Ariz.

Const. art. 2, § 10; see also Williams, 130 Ariz. at 210, 635 P.2d at 498

(“Rejecting the plea after acceptance and setting the case for trial constitutes

double jeopardy.”); Dominguez, 140 Ariz. at 331, 681 P.2d at 914. If the

defendant waives double jeopardy protection, however, then the state can

withdraw from the plea agreement. See Ricketts v. Adamson, 483 U.S. 1, 9–

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

10 (1987); see also Dominguez, 140 Ariz. at 332, 681 P.2d at 915 (“Just as the

[defendant] may waive other constitutional rights he may waive double

jeopardy.”).

¶16 In State v. Superior Court, this Court stated, without limitation,

that Rule 17.4(e) implicitly authorizes the state to withdraw after the court

rejects a plea agreement or any of its provisions. 125 Ariz. 575, 578, 611 P.2d

928, 931 (1980), rejected on other grounds by Smith v. Superior Court, 130 Ariz.

210, 212, 635 P.2d 498, 500 (1981). The authority conferred by Rule 17.4(e),

however, does not override a defendant’s double jeopardy rights. We

disapprove of State v. Superior Court to the extent it suggests that Rule

17.4(e) authorizes the state to withdraw from a plea agreement and

continue the prosecution in violation of a defendant’s unwaived double

jeopardy rights.

2.

¶17 The State does not address the Double Jeopardy Clause

restrictions on its ability to withdraw from the plea agreement.

Nevertheless, it argues that the trial court was required to permit

withdrawal because Ferrell agreed that the State could withdraw if the trial

court rejected any provision of the agreement, including the Marijuana

Condition. Paragraph seven of the agreement provides as follows:

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

If, after accepting this Plea Agreement, the Court concludes
that any of its provisions regarding the sentence or the term
and conditions of probation are inappropriate, it can reject the
plea, giving the State and Defendant each an opportunity to
withdraw from the Plea Agreement. In the event this Plea
Agreement is withdrawn, all original charges will be
automatically reinstated.

¶18 Although this provision, which parrots paragraph seven of

court-recommended form 18(a), see Ariz. R. Crim. P. 41, is not a model of

clarity, Ferrell does not dispute that it provides that the State may withdraw

from the agreement upon the court’s rejection of an agreed-upon term. She

argues, however, that double jeopardy protection is waived only when a

defendant breaches the plea agreement or negotiates in bad faith, neither of

which occurred here.

¶19 We are guided by the court of appeals’ decision in Dominguez,

which this Court adopted. 140 Ariz. at 328, 681 P.2d at 911. The trial court

in that case accepted a negotiated plea pursuant to a written plea agreement

and set the matter for sentencing. Dominguez, 140 Ariz. at 330, 681 P.2d at

913. On the sentencing date, the court rejected the agreement as against the

interests of justice, set aside the plea, and scheduled a trial. Id. On special

action review, the court of appeals vacated the trial court’s order and

directed the court to offer the defendant the opportunity to withdraw from

the plea agreement. Id. The defendant elected to keep the plea in place, but

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

the state moved to withdraw and the court granted the motion, setting the

case for trial. Id. at 330, 331, 681 P.2d at 913, 914.

¶20 After acknowledging that jeopardy attached when the trial

court accepted the negotiated guilty plea, the court of appeals determined

that the defendant had waived his double jeopardy rights by the terms of

the plea agreement:

If, after accepting the plea, the Court concludes that any of the
terms or provisions of this agreement are unacceptable, both
parties shall be given the opportunity to withdraw from this
agreement, or the Court can reject the agreement . . . . Should
the Court reject this agreement, or the State withdraw from
the agreement, the Defendant hereby waives all claims of
double jeopardy.

Id. at 331, 681 P.2d at 914. Because the state’s withdrawal was prompted by

a reason contained in the agreement—the trial court’s determination that

terms or provisions were unacceptable—the court of appeals held that the

trial court did not err by permitting the state to withdraw from the plea

agreement. Id. at 330, 331, 681 P.2d at 914, 915.

¶21 Like the plea agreement in Dominguez, the agreement here

authorized the State to withdraw from the agreement if the trial court

rejected the agreed-upon sentence or the term or conditions of probation.

Although Ferrell did not expressly waive her double jeopardy rights, she

nevertheless did so by agreeing that the State could withdraw if the trial

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

court rejected any probation condition and by acknowledging that the

original charges would then be reinstated. See Ricketts, 483 U.S. at 9–10

(holding that it is not necessary to waive double jeopardy “by name in the

plea agreement” because “an agreement specifying that charges may be

reinstated given certain circumstances is, at least under the provisions of this

plea agreement, precisely equivalent to an agreement waiving a double

jeopardy defense”).

¶22 Amici argue that permitting the State to withdraw from the

plea agreement would violate A.R.S. § 36-2811(B) by penalizing Ferrell or

denying her the privilege of probation due to her AMMA-compliant

marijuana use. We would agree with Amici if the sole basis for the State’s

request to withdraw is that Ferrell would otherwise be permitted to use

marijuana in compliance with AMMA while on probation. Just as the State

cannot extend a plea offer that requires imposition of a probation condition

that would prohibit a defendant’s AMMA-compliant marijuana use, see

Reed-Kaliher, ___ Ariz. at ___ ¶ 10, ___ P.3d at ___, it cannot withdraw from

a plea agreement solely because the trial court refuses to require that the

defendant refrain from AMMA-compliant marijuana use while on

probation.

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 STATE V. HANCOCK (FERRELL)
Opinion of the Court

¶23 But the State has a lawful basis for withdrawing from the plea

agreement. The stricken Marijuana Condition validly required Ferrell to

abstain from recreational marijuana use while on probation, even if she

visits states that allow such use. No other provision in the agreement

conditions Ferrell’s probation on her abstention from using marijuana

outside AMMA’s authorization. Pursuant to paragraph seven of the

agreement, therefore, the State must be allowed to withdraw from the plea

agreement.

III. CONCLUSION

¶24 For the foregoing reasons, we vacate the court of appeals’

opinion and affirm in part and reverse in part the trial court’s order. The

trial court properly rejected the Marijuana Condition to the extent it

prohibited Ferrell from using marijuana in compliance with AMMA during

her probation. Because the plea agreement authorizes the State’s

withdrawal, Ferrell waived double jeopardy protection in this

circumstance, and the trial court erred by refusing to permit the State to

withdraw.

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