Case Information
*1 IN THE
S UPREME C OURT OF THE S TATE OF A RIZONA S TATE OF A RIZONA EX REL S HEILA S ULLIVAN P OLK , Y AVAPAI C OUNTY A TTORNEY ,
Petitioner,
v. T HE H ONORABLE C ELÉ H ANCOCK , J UDGE OF THE S UPERIOR C OURT OF THE
S TATE OF A RIZONA , IN AND FOR THE C OUNTY OF Y AVAPAI , Respondent Judge,
J ENNIFER L EE F ERRELL , Real Party in Interest.
Nо. 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
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), Deрuty 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
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: 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 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.
¶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 рursuant to A.R.S. § 36-2801, et seq. (or its equivalent under another state’s law). 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. 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
,
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 In 2010, Arizona voters adopted AMMA by passing Proposition 203, codified at A.R.S. §§ 36-2801 to -2819. The Act authоrizes 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). *5 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 opiniоn, 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. 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
,
¶10
Also, parties cannot confer authority on the court that the law
proscribes.
Special Fund Div., Indus. Comm’n v. Tabor
,
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 The State argues that it was entitled to withdraw from the
plea agreement after the trial court granted Ferrell’s motion to strike the *7 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. 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,
on whether the court has accepted the plea, which then constitutes a
*8
conviction.
See Boykin v. Alabama
,
from an agreement if the court rejects a provision regarding the sentence or
the term and conditions of probation because jeopardy has attaсhed, 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
,
that Rule 17.4(e) implicitly authorizes the state to withdraw after the court
rеjects a plea agreement or any of its provisions.
2. 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:
If, after accepting this Plea Agreement, the Court concludes that any of its provisions regarding thе 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. 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. We are guided by the court of appeals’ decision in Dominguez ,
which this Court adopted.
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 agrеement 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,
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 *12 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”). 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 privilеge 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 rеquires 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 probаtion. *13 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 prоbation 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 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.