State of Arizona v. Alejandro Chaparro Romero

FILED BY CLERK
IN THE COURT OF APPEALS JULY 30 2007
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2007-0075-PR
Respondent, ) DEPARTMENT B
)
v. ) OPINION
)
ALEJANDRO CHAPARRO ROMERO, )
)
Petitioner. )
)

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-20042719

Honorable Virginia C. Kelly, Judge

REVIEW GRANTED; RELIEF DENIED

Robert J. Hooker, Pima County Public Defender
By Scott A. Martin Tucson
Attorneys for Petitioner

E S P I N O S A, Judge.

¶1 After pleading guilty, petitioner Alejandro Romero was convicted of promoting

prison contraband, a class two felony, and sentenced to a presumptive term of five years in

prison. Romero filed a notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim.

P., 17 A.R.S., and in his petition for post-conviction relief argued his sentence was illegal.

Romero, who is an inmate at the Arizona Department of Corrections, maintained he was

eligible for mandatory probation, pursuant to A.R.S. § 13-901.01, because the contraband
discovered in his possession was methamphetamine.1 The trial court denied relief, and this

petition for review followed.

¶2 In his petition, Romero acknowledges that Division One of this court rejected

this same argument in State v. Roman, 200 Ariz. 594, ¶ 8, 30 P.3d 661, 662 (App. 2001).

He contends, however, that Roman was wrongly decided and cannot be reconciled with

another Division One opinion, State v. Pereyra, 199 Ariz. 352, ¶ 12, 18 P.3d 146, 149

(App. 2001) (defendant convicted of personal-use possession of a narcotic drug in a drug-

free school zone, A.R.S. § 13-3411(A)(2), subject to mandatory probation under

§ 13-901.01). According to Romero, “Roman and Pereyra conflict, . . . [a]nd, both cases

were released before our supreme court issued [State v.] Estrada, [201 Ariz. 247, 34 P.3d

356 (2001)], which established that Proposition 200 should be construed broadly and

liberally in terms of what crimes it encompasses.” Romero therefore asks this court to

“disavow Roman and hold that the superior reasoning of Pereyra should apply” to his case.2

1
Section 13-901.01 codified the voter initiative commonly known as Proposition 200.
1997 Ariz. Sess. Laws, ch. 246, § 1. (“Drug Medicalization, Prevention, and Control Act of
1996.”) Section 13-901.01(A) now provides: “Notwithstanding any law to the contrary, any
person who is convicted of the personal possession or use of a controlled substance or drug
paraphernalia is eligible for probation. The court shall suspend the imposition or execution
of sentence and place the person on probation.”
2
Romero concedes the trial court was bound by Roman. See, e.g., Francis v. Ariz.
Dep’t of Transp., 192 Ariz. 269, ¶ 10, 963 P.2d 1092, 1094 (App. 1998). He also correctly
notes that although we generally consider “decisions of coordinate courts as highly
persuasive and binding,” we may reach a different conclusion if “we are convinced that
[Roman is] based upon clearly erroneous principles.” Castillo v. Indus. Comm’n, 21 Ariz.
App. 465, 471, 520 P.2d 1142, 1148 (1974).

2
¶3 We review a trial court’s order summarily dismissing a petition for post-

conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d

63, 67 (2006). Although Romero’s claim involves the interpretation of statutes and so raises

a question of law, State v. Box, 205 Ariz. 492, ¶ 9, 73 P.3d 623, 626 (App. 2003), “[a]n

error of law committed in reaching a discretionary conclusion may . . . constitute an abuse

of discretion,” State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006). “We review

issues of statutory interpretation de novo.” Moreno v. Jones, 213 Ariz. 94, ¶ 23, 139 P.3d

612, 616 (2006). We conclude the trial court has not abused its discretion and has correctly

stated the law; therefore, we decline Romero’s suggestion that we diverge from the holding

in Roman.

¶4 As the trial court explained in its order,

Petitioner characterizes his offense as the possession of drugs
for personal use by an incarcerated inmate. However, Petitioner
was convicted of a violation of A.R.S. § 13-2505(A)(3),
promoting prison contraband by “knowingly . . . possessing
contraband while being confined in a correctional facility. . . .”
Proposition 200, as codified at A.R.S. § 13-901.01, applies to
persons “convicted of the personal possession or use of a
controlled substance . . . .” Petitioner was not convicted of
personal possession or use of a controlled substance. By its
plain language, §13-901.01 does not apply to an offense for
promoting prison contraband.

¶5 Romero argues the trial court erred because “the phrase ‘promoting prison

contraband’ is merely the title of the statute and descriptor of the crime [and] ‘headings to

sections . . . do not constitute part of the law,’” quoting A.R.S. § 1-212. We find no

ambiguity in the language of § 13-2505 or in the incorporated definition of contraband, set

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forth in A.R.S. § 13-2501(1). But “we may nonetheless limit the scope of an otherwise

unambiguous statute to conform to the statutory scheme in which the statute is found. And,

although title and section headings of statutes are not law, we may look to them for

guidance.” Pleak v. Entrada Property Owners’ Ass’n, 205 Ariz. 471, ¶ 7, 73 P.3d 602, 605

(App. 2003) (citations omitted), aff’d, 207 Ariz. 418, 87 P.3d 831 (2004); cf. Moreno, 213

Ariz. 94, ¶¶ 27-28, 139 P.3d at 617 (declining to apply definition of forgery in criminal

code, A.R.S. § 13-2002, to “petition forgery” in election code, A.R.S. § 16-351(F); statutes

that “‘relate to the same subject or have the same general purpose . . . should be construed

together with other related statutes,’” quoting State ex rel. Larson v. Farley, 106 Ariz. 119,

122, 471 P.2d 731, 734 (1970)); State v. Story, 206 Ariz. 47, ¶ 13, 75 P.3d 137, 141 (App.

2003) (§ 13-901.01 interpreted in conjunction with sentencing provisions found in chapter

34 because statutes in pari materia).

¶6 Here, Romero’s offense, in violation of § 13-2505(A)(3), is not among the drug

offenses in chapter 34 of title 13, but is among the “Escape and Related Offenses” in chapter

25. Although prison contraband certainly includes a dangerous drug such as

methamphetamine, it also includes any “other article whose use or possession would

endanger the safety, security or preservation of order in a correctional facility . . . or of any

person therein.” § 13-2501(1); see also A.R.S. § 13-3401(6)(b)(xiii). That Romero violated

this statute by possessing methamphetamine, rather than some other kind of contraband,

does not mean he was convicted of the offense of “personal possession or use of a controlled

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substance.” § 13-901.01(A); see also Roman, 200 Ariz. 594, ¶¶ 6-9, 30 P.3d at 662-63

(conviction under § 13-2505(A)(3) not subject to § 13-901.01(A)).

¶7 Romero relies on Pereyra for the proposition that § 13-901.01 “speaks

comprehensively of crimes of personal possession or use” and “explicitly and

comprehensively supersedes laws that deny probation for crimes of personal possession or

use.” Pereyra, 199 Ariz. 352, ¶ 7, 18 P.3d at 148. But Pereyra considered whether

§ 13-901.01(A) supplanted A.R.S. § 13-3411, which provided for enhanced penalties and

proscribed probation when other chapter 34 drug offenses were committed on or near school

property. Pereyra, 199 Ariz. 352, ¶¶ 4-5, 18 P.3d at 147-48; see also § 13-3411(B)

(incorporating felony classifications for offenses “that the person would otherwise be guilty

of had the violation not occurred within a drug free school zone”). This case, in contrast,

does not involve a chapter 34 offense.

¶8 Whether Pereyra was correctly decided is not before us. But, in any event,

we find its reasoning inapposite here. Pereyra is distinguished by its consideration of those

“convicted of the possession or use of a controlled substance,” § 13-901.01, as those crimes

are set forth in chapter 34. The plain language of the statute, along with the existing

statutory scheme at the time of its enactment, suggests the “crimes of personal possession or

use” identified by § 13-901.01 are those crimes that may be found in chapter 34, the chapter

of the criminal code governing “drug offenses.”3

This analysis contravenes Romero’s argument that a conviction pursuant to
3

§ 13-2505(A)(3) must be subject to mandatory probation because it is not among the crimes
expressly excluded in § 13-901.01(C), which provides “[p]ersonal possession or use of a

5
¶9 Thus, in this case, we find Roman and Wozniak v. Galati, 200 Ariz. 550,

¶¶ 17-18, 30 P.3d 131, 136 (App. 2001), another Division One decision, more applicable

than Pereyra. In Wozniak, the defendant had argued he was eligible for probation under

§ 13-901.01 after he was convicted of “driving while there [was an illegal drug] or its

metabolite in the . . . body.” A.R.S. § 28-1381(A)(3); Wozniak, 200 Ariz. 550, ¶ 16, 30

P.3d at 135-36. The defendant in Wozniak had maintained that because “a violation of

A.R.S. § 28-1381(A)(3) requires only that a person use a proscribed drug at some point

before driving,” and does not require evidence of impairment, his conviction was actually

for the “personal . . . use of a controlled substance” and was therefore subject to § 13-

901.01(A). Wozniak, 200 Ariz. 550, ¶ 16, 30 P.3d at 135-36. The court rejected Wozniak’s

argument, stating:

The plain language of A.R.S. § 13-901.01(A) applies to “any
person who is convicted of the personal possession or use” of
drugs. But Wozniak was convicted of violating section
28-1381(A)(3), which, along with other statutes, regulates the
privilege of driving on Arizona’s public roads. The legislature
apparently concluded that the public has a strong interest in

controlled substance pursuant to this section shall not include possession for sale,
production, manufacturing or transportation for sale of any controlled substance.” All of
these excluded crimes are found in chapter 34. See A.R.S. §§ 13-3407(A)(2), 13-
3408(A)(2) (possession of a dangerous drug for sale, possession of a narcotic drug for sale),
13-3407(A)(4), 13-3408(A)(4) (manufacture of a dangerous drug, manufacture of a narcotic
drug), 13-3407(A)(7), 13-3408(A)(7) (transport of dangerous drug for sale, transport of
narcotic drug for sale). We see no reason to conclude that a conviction under § 13-
2505(A)(3) was ever intended to fall within the purview of § 13-901.01; accordingly, it was
unnecessary to expressly exclude this offense from that statute’s application.

6
 deterring those who use banned substances from driving motor
vehicles.

Wozniak, 200 Ariz. 550, ¶ 17, 30 P.3d at 136.

¶10 Similarly, § 13-2505, along with other statutes found in chapter 25, “seek[s]

to promote ‘the safety, security or preservation of order in a correctional facility,’” Roman,

200 Ariz. 594, ¶ 9, 30 P.3d at 663, quoting A.R.S. § 13-250[1](1), a goal afforded

particular importance by our legislature. The gravity of the crime of promoting prison

contraband in violation of § 13-2505, in comparison to the offense of possession or use of

a dangerous drug in violation of chapter 34, is evident from the different classifications of

these offenses. Possession or use of a dangerous drug under A.R.S. § 13-3407(A)(1) is a

class four felony, but promoting prison contraband under § 13-2505, if the contraband is a

dangerous drug, is a class two felony. Compare § 13-3407(B)(1) with § 13-2505(C). We

thus conclude § 13-2505(A)(3)—like § 28-1381(A)(3)—is not a “personal drug-use statute

subject to probation under A.R.S. § 13-901.01.” Wozniak, 200 Ariz. 550, ¶ 17, 30 P.3d at

136.

¶11 Our supreme court’s decision in Estrada does not require us to reach a

different conclusion. There, the court held: “[T]he probation eligibility provisions of

Proposition 200 apply to convictions for the possession of items of drug paraphernalia

associated solely with personal use by individuals also charged or who could have been

charged with simple use or possession of a controlled substance.” Estrada, 201 Ariz. 247,

7
¶ 24, 34 P.3d at 361.4 The court reasoned that “the electorate, acting in the role of the

legislature, did not intend to incarcerate for the lesser offense” of possession of drug

paraphernalia, a chapter 34 drug offense, see A.R.S. § 13-3415, “and yet mandate probation

for the more serious” offenses of personal possession or use of a controlled substance.

Estrada, 201 Ariz. 247, ¶ 20, 34 P.3d at 361. Thus, “[t]o interpret Proposition 200 as

mandating probation for the crime of smoking marijuana but permitting incarceration if the

State charges the user for possessing paraphernalia because the shredded marijuana was

wrapped in paper, produces a transparently absurd result.” Id. ¶ 23.

¶12 In contrast, our conclusion that § 13-901.01(A) does not apply to a conviction

for possession of prison contraband does not thwart the intent of the electorate and does not

lead to an absurd result. Romero was not convicted of “the personal possession or use of

a controlled substance,” § 13-901.01(A), as proscribed by A.R.S. title 13, chapter 34, and

his offense was more serious—not less—than the personal possession drug offenses found

in that chapter.

¶13 The trial court correctly denied Romero’s petition for post-conviction relief.

Although we grant the petition for review, we deny relief.

____________________________________
PHILIP G. ESPINOSA, Judge

4
At the time the court issued its decision in Estrada, § 13-901.01(A) had not yet been
amended to expressly include “personal possession or use of . . . drug paraphernalia” as an
offense subject to mandatory probation. See 1999 Ariz. Sess. Laws, ch. 261, § 11.

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CONCURRING:

____________________________________
PETER J. ECKERSTROM, Presiding Judge

____________________________________
JOSEPH W. HOWARD, Judge

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