State v. Gomez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0062-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 03-1050
MELISSA JEAN GOMEZ, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2003-012719-001 DT
)
__________________________________) O P I N I O N

Appeal from the Superior Court in Maricopa County
The Honorable Eileen S. Willett, Judge

VACATED; REMANDED

Opinion of the Court of Appeals, Division One
209 Ariz. 373, 102 P.3d 992

VACATED

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
David Wood, Assistant Attorney General
Criminal Appeals Section
Attorneys for the State of Arizona

ROBERT S. BRINEY, MARICOPA COUNTY LEGAL DEFENDER Phoenix
By Michele Lawson, Deputy Legal Defender (formerly
with the Maricopa County Public Defender’s Office)
Attorneys for Melissa Jean Gomez

B A L E S, Justice

¶1 A 1996 initiative measure known as Proposition 200

requires courts to place certain first- and second-time drug
offenders on probation including appropriate drug treatment or

education. Ariz. Rev. Stat. (“A.R.S.”) § 13-901.01 (2002).

Mandatory probation, however, does not apply to any defendant

“who has been convicted of or indicted for a violent crime,” and

such persons may be imprisoned for their drug offenses. A.R.S.

§ 13-901.01(B).

¶2 The issue here is whether a ten-year-old, dismissed

indictment disqualifies a defendant from mandatory probation

under Proposition 200. We hold that a dismissed indictment,

like a reversed conviction, does not disqualify a defendant from

mandatory probation. Our interpretation of the statute makes it

unnecessary to reach the constitutional issue decided by the

court of appeals, which held that A.R.S. § 13-901.01(B) violates

due process and the rule of Apprendi v. New Jersey, 530 U.S. 466

(2000), insofar as the statute disqualifies an otherwise

eligible defendant from mandatory probation based on the mere

existence of a prior indictment. State v. Gomez, 209 Ariz. 373,

378-79, ¶¶ 17-20, 102 P.3d 992, 997-98 (App. 2004).

Accordingly, we vacate the opinion of the court of appeals, but

agree that Gomez’s sentence must be vacated and this matter

remanded for resentencing.

I.

¶3 We granted the State’s petition for review because it

presents an issue of statewide importance regarding the proper

2
interpretation of Proposition 200. See Calik v. Kongable, 195

Ariz. 496, 498, ¶ 9, 990 P.2d 1055, 1057 (1999) (granting review

to examine the scope of Proposition 200). We have jurisdiction

pursuant to Article VI, Sections 5(3)–(4), of the Arizona

Constitution. The issue is one of statutory construction and is

reviewed de novo. State v. Estrada, 201 Ariz. 247, 250, ¶ 15,

34 P.3d 356, 359 (2001).

II.

¶4 Arizona’s voters adopted Proposition 200 to require

that certain non-violent drug offenders be placed on probation,

with court-supervised drug treatment or education, instead of

being imprisoned. Id. at 249, ¶ 2, 34 P.3d at 358. Officially

designated the “Drug Medicalization, Prevention, and Control Act

of 1996,” the statutory initiative, as amended by a 2002

referendum measure, is codified in part at A.R.S. § 13-901.01.

¶5 Melissa Jean Gomez was convicted at a bench trial in

2003 for possession of marijuana and methamphetamine. Such a

conviction typically would result in probation under Proposition

200. For first-time offenders, Proposition 200 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.

A.R.S. § 13-901.01(A).

3
¶6 Excluded from the mandatory probation provisions,

however, are violent offenders:

Any person who has been convicted of or
indicted for a violent crime as defined in
§ 13-604.04 is not eligible for probation as
provided for in this section but instead
shall be sentenced pursuant to the other
provisions of chapter 34 of this title
[containing the general sentencing statute
for drug offenses].

A.R.S. § 13-901.01(B).

¶7 Gomez stipulated before trial that she had been

indicted for manslaughter in 1994. Manslaughter qualifies as a

violent crime under Proposition 200. See A.R.S. § 13-604.04(B)

(stating “‘violent crime’ includes any criminal act that results

in death or physical injury or any criminal use of a deadly

weapon or dangerous instrument”). This indictment was dismissed

in 1995 because the prosecutor concluded there was no reasonable

likelihood of conviction.

¶8 Based on the dismissed indictment, the trial court

ruled that Gomez was ineligible for probation under Proposition

200. This ruling effectively meant that Gomez faced a mandatory

prison sentence. Gomez could not receive probation under the

general sentencing statute because she had committed her 2003

drug offenses while on parole. See A.R.S. §§ 13-604.02(B),

-3407(C). Her parole status, however, would not have

disqualified her under Proposition 200, which mandates probation

4
for certain non-violent offenders “[n]otwithstanding any law to

the contrary.” A.R.S. § 13-901.01(A). Having ruled that

Proposition 200 did not apply, the trial court sentenced Gomez

to presumptive, concurrent sentences of two and one-half years

imprisonment for possession of methamphetamine, a dangerous

drug, and one year imprisonment for possession of marijuana.

¶9 Gomez appealed her sentence arguing that: 1) a

previously dismissed indictment does not disqualify her from

probation under Proposition 200, and 2) the use of a prior

indictment alone to render her ineligible for probation violates

her rights to due process and equal protection.1 Rejecting the

first argument, the court of appeals concluded that the plain

language of A.R.S. § 13-901.01(B) “indicates a clear intent to

include all prior convictions or indictments for a violent crime

as disqualifying” a defendant for probation under Proposition

200. Gomez, 209 Ariz. at 376, ¶¶ 9-11, 102 P.3d at 995. The

court of appeals, however, vacated the sentence on different

grounds after it sua sponte ordered briefing on whether the

United States Supreme Court’s decision in Apprendi applied. The

court held that using the mere fact of a prior indictment to

exclude an otherwise eligible defendant from mandatory probation

1
Although Gomez initially characterized her constitutional
arguments only in terms of due process, the State responded by
asserting that certain arguments were in fact based on equal
protection claims, and Gomez identified these arguments as based

5
violates Apprendi’s requirement that any fact necessary to

increase the potential maximum sentence must be proven beyond a

reasonable doubt. Id. at 378-79, ¶¶ 17-21, 102 P.3d at 997-98.

¶10 In seeking review by this Court, the State agrees with

the court of appeals that Proposition 200 by its terms renders

defendants ineligible for mandatory probation if they have ever

been indicted for a violent crime, regardless of the ultimate

disposition of the indictment. The State, however, argues that

the court of appeals erred in concluding that disqualifying

Gomez from probation based on the mere fact of her prior

indictment is unconstitutional under Apprendi.

III.

¶11 Our primary objective in construing statutes adopted

by initiative is to give effect to the intent of the electorate.

Calik, 195 Ariz. at 498, ¶ 10, 990 P.2d at 1057. When the

language is “clear and unambiguous,” and thus subject to only

one reasonable meaning, we do so by applying the language

without using other means of statutory construction. Id. If,

however, the language is ambiguous, “we consider the statute’s

context; its language, subject matter, and historical

background; its effects and consequences; and its spirit and

purpose.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872

_______________
on the equal protection clause in her reply brief.

6
P.2d 668, 672 (1994).

¶12 By its terms, A.R.S. § 13-901.01(B) declares that

“[a]ny person who has been convicted of or indicted for a

violent crime” is ineligible for mandatory probation. The

initial question is whether this language is “clear and

unambiguous.” Calik, 195 Ariz. at 498, ¶ 10, 990 P.2d at 1057.

¶13 The State, consistent with the opinion of the court of

appeals, argues that the language is plain and that the

exception applies if a person has ever been indicted, even if

the indictment was later dismissed. Although this is a

plausible reading of the statute, it is not the only reasonable

interpretation.

¶14 The reading urged by the State would logically suggest

that a defendant also would be ineligible for probation if she

had ever been convicted of a violent crime, even if the prior

conviction had been reversed by the time the defendant was later

convicted of a Proposition 200 offense. But the State itself

does not urge this interpretation. Nor would it comport with

this Court’s previous interpretation of other statutes allowing

enhanced sentences based on prior convictions.

¶15 This Court has long held that, when a defendant faces

an increased sentence based on the fact of a prior conviction,

the reversal of a conviction precludes its use to increase the

defendant’s sentence. State v. Lindsey, 149 Ariz. 472, 478, 720

7
P.2d 73, 79 (1986) (holding that reversal meant convictions were

not prior convictions for purposes of harsher sentence); State

v. Lee, 114 Ariz. 101, 106, 559 P.2d 657, 662 (1976) (same).

Thus, these cases indicate that a defendant “has been convicted”

of a prior offense for purposes of a sentencing enhancement only

if, at the time of the later sentence, there is an existing

conviction – not a prior conviction that has been reversed or

vacated.

¶16 Similarly, the Supreme Court of the United States has

recognized that a federal statute prohibiting the possession of

firearms by a person who “has been convicted” of a felony does

not apply if the predicate conviction has been reversed on

appeal and is no longer outstanding. Lewis v. United States,

445 U.S. 55, 60-61 & n.5 (1980). The “plain meaning” of the

sweeping statutory language, the Court noted, is that a felony

conviction imposes a firearm disability until the conviction is

vacated or the felon is relieved of the disability by some

affirmative action, such as a qualifying pardon. Id. at 60-61.

The Court rejected as “extreme” the argument that the phrase

“has been convicted” encompasses persons whose convictions have

been reversed. Id. at 61 n.5; see also Dickerson v. New Banner

Inst., Inc., 460 U.S. 103, 115 (1983) (noting that Lewis

“recognized an obvious exception to the literal language of the

8
statute for one whose predicate conviction had been vacated or

reversed on direct appeal”).

¶17 Consistent with these cases, the State concedes that

if a defendant were charged by information and convicted of a

violent crime, and the conviction were reversed, it could not be

used later to disqualify the defendant from probation under

Proposition 200. In other words, the State acknowledges that

“has been convicted of or indicted for” does not mean has ever

been convicted, but rather that there is an existing conviction.

Cf. State v. Kiser, 111 Ariz. 316, 317, 529 P.2d 215, 216 (1974)

(noting that when fact of prior conviction is offered for

impeachment, a reversal means “[i]t is as if the prior felony

conviction had never occurred”).

¶18 Because the phrase “has been convicted of or indicted

for” in A.R.S. § 13-901.01(B) excludes those convictions that

have been reversed or otherwise vacated, it is not “plain” that

the statute nonetheless encompasses those indictments which have

been dismissed. The statute could instead reasonably be read to

refer to defendants who, at the time of their Proposition 200

sentencing, either stand convicted or are under indictment for a

violent crime. Because A.R.S. § 13-901.01(B) is subject to more

than one reasonable interpretation, we must look beyond its

language to determine its meaning. See Hayes, 178 Ariz. at 268,

872 P.2d at 672 (finding statute ambiguous because its text

9
“allows for more than one rational interpretation”).2

IV.

¶19 In construing Proposition 200, we must identify the

reasonable interpretation that is most consistent with the

intent of the voters in adopting the measure. Estrada, 201

Ariz. at 250-51, ¶¶ 15-16, 34 P.3d at 359-60; Calik, 195 Ariz.

at 498, ¶ 10, 990 P.2d at 1057. Given this objective, we reject

the State’s interpretation of A.R.S. § 13-901.01(B) for three

reasons: 1) it would be contrary to the declared purposes of

Proposition 200, 2) it could lead to absurd results, and 3) it

would unnecessarily raise constitutional concerns.

¶20 Proposition 200 is intended both to require less

costly, but more effective, treatment programs for non-violent

drug offenders and to promote the imprisonment of violent

offenders. The ballot measure noted that using mandatory

treatment for non-violent offenders instead of prison could save

2
Noting that A.R.S. § 13-901.01 uses the word “indicted” in the
simple past tense, the dissent reads the statute to exclude from
mandatory probation anyone who has ever been indicted for a
violent crime, citing State v. Benak, 199 Ariz. 333, 334-35,
¶ 6, 18 P.3d 127, 128-29 (App. 2001). See infra ¶ 35. The word
“indicted,” however, must be interpreted in light of the actual
statutory language, i.e., “has been convicted of or indicted
for.” The fact that “convicted” does not mean has ever been
convicted illustrates that one cannot identify the “plain
meaning” of a statute by reading particular words in isolation.
Benak is not to the contrary; that decision did not concern the
meaning of “has been convicted of or indicted for” and the court
of appeals expressly noted that it was not addressing “any issues

10
the State hundreds of millions of dollars. Ariz. Sec’y of State

1996 Publicity Pamphlet, Proposition 200, § 2(4), available at
http://www.azsos.gov/election/1996/General/1996BallotPropsText.htm.

By requiring treatment of non-violent offenders, the measure also

expressly seeks to free up space in prisons for violent

offenders. Id. §§ 2(5), 3(4), 3(5); Estrada, 201 Ariz. at 251-

52, ¶¶ 20-21, 34 P.3d at 360-61. Consistent with these goals,

A.R.S. § 13-901.01(B) excludes violent offenders from the

mandatory probation otherwise afforded by Proposition 200.

¶21 These purposes, however, are not promoted by construing

A.R.S. § 13-901.01(B) to apply to previously dismissed

indictments. Indictments can be dismissed for various reasons,

including a prosecutor’s determination that the person charged

did not in fact commit the crime or – as this case illustrates –

that there is no reasonable likelihood of conviction. Dismissal

may also result if a court remands a case to the grand jury

pursuant to Rule 12.9 of the Arizona Rules of Criminal Procedure

for a redetermination of probable cause because a defendant was

denied a substantial procedural right. See Maretick v. Jarrett,

204 Ariz. 194, 199, ¶ 20, 62 P.3d 120, 125 (2003). The

prosecutor may elect not to re-indict or, in cases involving

particularly egregious prosecutorial misconduct, the court may

order the dismissal of charges with prejudice. Id. at 199 n.5, ¶

20, 62 P.3d at 125 n.5.

_______________
with respect to indictments.” 199 Ariz. at 335 n.1, ¶ 6, 18 P.3d
at 129 n.1.

11
¶22 Under the State’s interpretation, it does not matter

when or why a prior indictment was dismissed: the mere fact of

the indictment forever disqualifies the defendant from mandatory

probation under Proposition 200, without any opportunity for the

defendant to explain or the court to consider the circumstances

of the dismissed charges. Applying A.R.S. § 13-901.01(B) as the

State urges would sweep within the exclusion persons who are not

in fact violent offenders and, thus, would be contrary to the

statute’s intended purposes.3

¶23 We also interpret Proposition 200 to avoid absurd

results. Estrada, 201 Ariz. at 251, ¶¶ 17-18, 34 P.3d at 360.

An interpretation is “absurd if it is so irrational, unnatural,

or inconvenient that it cannot be supposed to have been within

the intention of persons with ordinary intelligence and

discretion.” Id. ¶ 17 (internal quotation and citation

omitted).

3
The dissent argues that if a dismissed indictment disqualified
a defendant from mandatory probation under Proposition 200, the
defendant could still seek discretionary probation under the
general drug sentencing statute and then contest the factual
basis for the prior indictment. Infra ¶ 39. But, as this case
illustrates, persons may be eligible for mandatory probation
under Proposition 200 for drug offenses even if they would not
be eligible for probation for the same offenses under the
general drug sentencing statute. For example, a person
convicted of using dangerous drugs while on probation for a
prior non-violent felony offense would not be eligible for
discretionary probation, see A.R.S. §§ 13-604.02(B), -3407(C),
but could be eligible for mandatory probation under Proposition
200.

12
¶24 Interpreting A.R.S. § 13-901.01(B) to exclude persons

from mandatory probation based on a previously dismissed

indictment could lead to absurd results. It would disqualify

persons who were indicted even if the prosecutor later dismissed

the charges because DNA evidence conclusively established the

person was actually innocent. This interpretation also would

draw arbitrary distinctions based merely on whether a prior

charge was by information or indictment.

¶25 Arizona law allows a prosecuting attorney to proceed

with felony charges by way of an indictment, which reflects a

grand jury’s determination that probable cause exists to believe

the defendant has committed the charged offense, or by

information. See Ariz. Const. art. II, § 30; State v.

Bojorquez, 111 Ariz. 549, 553, 535 P.2d 6, 10 (1975). An

information cannot be filed unless either a court determines at

a preliminary hearing that probable cause exists or the

defendant waives such a hearing. Ariz. R. Crim. P. 13.1(c). At

a preliminary hearing, defendants have various rights that are

not attendant to grand jury proceedings, including rights to

counsel, to challenge the State’s evidence, and to present

evidence on their own behalf. See Bojorquez, 111 Ariz. at 553,

535 P.2d at 10 (holding that differences in procedures did not

deny equal protection to defendants charged by indictment).

13
¶26 The State, as noted, acknowledges that if a person is

charged by information of a violent crime and convicted, but the

conviction is reversed or vacated, then this conviction would

not disqualify the person from later receiving probation under

Proposition 200 for a drug offense. But if the same person is

instead charged by indictment, and the conviction is later

reversed, the State argues that the mere fact of indictment

would still disqualify the person from probation under

Proposition 200.

¶27 If a defendant’s prior conviction has been reversed or

vacated, it would not be rational for probation eligibility

under Proposition 200 to depend merely on how the prior offense

was originally charged. Cf. Estrada, 201 Ariz. at 251, ¶ 18, 34

P.3d at 360 (concluding that a proposed interpretation of

Proposition 200 was not rational when it created unexplained

inconsistencies). Yet the interpretation of Proposition 200

offered by the State produces precisely such a result.

¶28 We also construe statutes, when possible, to avoid

constitutional difficulties. Hayes, 178 Ariz. at 272-73, 872

P.2d at 676-77. Accepting the State’s interpretation of A.R.S.

§ 13-901.01(B) would raise serious constitutional questions.

Disqualifying a defendant from probation under Proposition 200

based merely on a ten-year-old previously dismissed indictment,

without any further proof by the State of the underlying facts

14
or any opportunity for the defendant to contest the factual

basis for the indictment, would raise serious due process

issues, as the opinion below demonstrates. Moreover, drawing

distinctions, for purposes of probation eligibility, among

defendants based merely on whether previously dismissed charges

were brought by information or indictment could raise equal

protection concerns.4

¶29 For these reasons, we construe A.R.S. § 13-901.01(B)

as disqualifying a defendant from mandatory probation if, at the

time of sentencing for the Proposition 200 drug offense, the

defendant stands convicted of, or is under indictment for, a

violent crime. Defendants are not excluded from mandatory

probation under Proposition 200 based on a previously dismissed

indictment, an indictment that ended in an acquittal, or an

indictment that resulted in a conviction that has been reversed

or vacated and for which a trial is no longer pending. This

interpretation fits easily within the intent of the voters who

4
The dissent discounts the due process and equal protection
concerns by stating that defendants who are disqualified from
mandatory probation based on a dismissed indictment can still
argue that they should receive discretionary probation because
they are not in fact violent persons. See infra ¶ 39. This
alternative does not exist for defendants, like Gomez, who -
apart from a dismissed indictment - would be eligible for
mandatory probation under Proposition 200 but not eligible for
discretionary probation. Having found Gomez ineligible for
probation under Proposition 200, the trial court here was
required to sentence her to at least two and one-half years in
prison under the general drug sentencing statute.

15
passed Proposition 200 while avoiding the pitfalls endemic to

the State’s interpretation.

¶30 Under our interpretation, drug offenders who face an

unresolved indictment for a violent crime, like those convicted

of such crimes, cannot claim the benefit of mandatory probation

under A.R.S. § 13-901.01(A). Such defendants will not be

eligible for mandatory probation unless, prior to sentencing for

their drug offenses, the violent crime charges have been

resolved by dismissal or acquittal. For that reason, a

defendant otherwise eligible for mandatory probation under

Proposition 200 may seek to postpone sentencing for the drug

offenses until any pending violent crime charges are resolved.

Of course, if those charges end in a conviction, that fact

itself will disqualify the defendant from mandatory probation.

¶31 Our holding regarding the scope of A.R.S. § 13-

901.01(B) makes it unnecessary to reach the constitutional issue

addressed by the court of appeals with regard to Apprendi or the

other constitutional claims raised by Gomez.5

_______________
5
We do not understand how the dissent can avoid deciding the
constitutional issues while interpreting A.R.S. § 13-901.01(B) to
disqualify Gomez from mandatory probation based on the dismissed
indictment. See infra ¶ 43 note 10. If the statute is so
interpreted, the trial court’s sentence can be affirmed only by
rejecting both the ruling by the court of appeals that A.R.S. §
13-901.01(B) is facially unconstitutional and Gomez’s due process
and equal protection arguments.

16
 VI.

¶32 We hold that a defendant is not disqualified from

mandatory probation under Proposition 200 based merely on a

previously dismissed indictment for a violent crime. We vacate

the opinion of the court of appeals, but agree that Gomez’s

sentence must be vacated and this matter remanded for

resentencing.

_________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

B E R C H, Vice Chief Justice, dissenting

¶33 I respectfully dissent. I disagree with my

colleagues’ interpretation of the word “indicted” as meaning

under pending indictment and would hold instead, as the court of

appeals concluded, that A.R.S. § 13-901.01(B) means what it

says: that one convicted of drug possession who has previously

been indicted for a crime of violence is not automatically

17
eligible for the benefit of probation. See State v. Gomez, 209

Ariz. 373, 376, ¶ 10, 102 P.3d 992, 995 (App. 2004).

¶34 The legislature has the power to set the sentencing

ranges for crimes. See State v. Wagstaff, 164 Ariz. 485, 490,

794 P.2d 118, 123 (1990). Unless the sentences provided are

unconstitutional, courts should defer to the legislative

determinations. McKinley v. Reilly, 96 Ariz. 176, 179, 393 P.2d

268, 270 (1964) (stating that “[c]ourts are not concerned with

the wisdom of legislative regulation, but examine only to

determine if it runs contrary to constitutional guarantees”).

¶35 In construing statutes, we apply their plain language

unless doing so would lead to an absurd, illegal, or

unconstitutional result. Bilke v. State, 206 Ariz. 462, 464,

¶ 11, 80 P.3d 269, 271 (2003); see also Calik v. Kongable, 195

Ariz. 496, 498, ¶ 10, 990 P.2d 1055, 1057 (1999) (interpreting

Proposition 200 and applying rules of statutory construction to

interpretation of a statute resulting from an initiative).

Here, the people, acting in their legislative capacity, approved

a proposition that uses the term “indicted,” unmodified and in

the simple past tense. Its clear meaning is that anyone who has

been indicted for a violent offense, whenever in the past that

might have occurred, is excluded from mandatory probation under

A.R.S. § 13-901.01. See State v. Benak, 199 Ariz. 333, 334,

¶ 6, 18 P.3d 127, 128 (App. 2001) (noting that a person is

18
eligible for probation only “if the person has not previously

been indicted for . . . a violent crime”). Such an

interpretation comports with common usage and understanding and

furthers the goal of denying the benefit of mandatory probation

to those who might be violent persons.

¶36 This interpretation is not irrational, nor does it

lead to absurd or arbitrary results. See Heller v. Doe ex rel.

Doe, 509 U.S. 312, 319-21 (1993) (explaining rational basis

test); Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550,

556, 637 P.2d 1053, 1059 (1981) (same). An indictment issues

only after a grand jury has found probable cause to believe that

a defendant has committed the crime charged. A.R.S. § 21-413

(2002). The allegations contained in the indictment have thus

been subjected to some testing before neutral arbiters, and the

issuance of the indictment demonstrates probable cause to

believe that the defendant might be a violent offender. A

rational relationship therefore exists between the public’s

decision to deny the automatic imposition of probation to

violent offenders and the court’s initial determination that a

defendant who has been indicted for a violent crime may be such

a person. See Lewis v. United States, 445 U.S. 55, 65 (1980)

(requiring relationship between the statutory provision and the

purpose to be served).

19
¶37 Moreover, using an indictment for a violent crime as

an indicator that a defendant may be a violent person who is

ineligible for automatic imposition of probation provides a

bright-line, easy-to-apply rule for separating those immediately

eligible for probation under A.R.S. § 13-901.01(A) from those

who are not. Gomez claims that precluding her from eligibility

for mandatory probation based solely on the existence of an

indictment for a prior violent crime violates due process. But

this is not how the statute operates. Section 13-901.01(B) does

not prohibit the imposition of probation for those who have

previously been indicted for a violent crime. Rather it creates

a screening mechanism by which those who have been convicted of

or indicted for a prior violent offense, and therefore do not

automatically qualify for mandatory probation under § 13-

901.01(A), may establish their eligibility for probation through

a different statutory process. Section 13-901.01(B) requires a

previously indicted defendant to “be sentenced pursuant to the

other provisions of chapter 34 of this title.” Those provisions

allow terms of probation for defendants convicted of the drug

crimes with which Gomez was charged, if other conditions are

satisfied. See A.R.S. §§ 13-902(A)(3) & (4) (2001), -3405(C)

(2001), -3407(C) (2001) (allowing terms of probation for class 4

and 6 drug felonies). At a later hearing, the defendant may

contest the existence of the indictment or the factual basis

20
underlying it. Such a procedure, triggered by the fact of

indictment for a violent crime, does not violate due process.

¶38 The majority posits the arbitrariness of excluding

from mandatory probation those who were indicted for violent

crimes, but not those who were charged by information. At first

glance, the distinction gives pause. But three factors militate

in favor of nonetheless deferring to the statutory language:

First, the Defendant did not pursue an equal protection claim

below, although, as the majority opinion notes, she finally did

so in her reply brief. Op. ¶ 9 n.1. Second, it is well

established that a classification may be under-inclusive or not

perfectly drawn, yet still survive a rational basis challenge.6

See Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 566,

789 P.2d 1061, 1067 (1990) (noting that “[a] perfect fit is not

required; a statute that has a rational basis will not be

6
The applicable standard by which to review Gomez’s
eligibility for probation is the rational basis test. Because
probation is a matter of legislative grace, State v. Smith, 112
Ariz. 416, 419, 542 P.2d 1115, 1118 (1975), eligibility for it
is not a fundamental right. Therefore the rational basis test
applies. See Kenyon v. Hammer, 142 Ariz. 69, 78-79, 688 P.2d
961, 970-71 (1984) (discussing equal protection tests); Ariz.
Downs, 130 Ariz. at 555, 637 P.2d at 1058. That test requires
that we affirm the classification unless it is “patently
arbitrary” or “utterly lacking in rational justification.”
Flemming v. Nestor, 363 U.S. 603, 611 (1960); see State v.
Poshka, 210 Ariz. 218, 222, ¶ 13, 109 P.3d 113, 117 (App. 2005);
see also Martin v. Reinstein, 195 Ariz. 293, 313-14, ¶ 66, 987
P.2d 779, 799-800 (App. 1999) (citing Zinermon v. Burch, 494
U.S. 113, 125 (1990)) (due process “arbitrariness” standard).

21
overturned ‘merely because it is not made with ‘mathematical

nicety, or because in practice it results in some inequality’’”)

(citations omitted). Third, in attempting to find a rational

basis, we may consider any facts that might support the

statutory classification, such as, for example, any tendency by

prosecutorial agencies to proceed by indictment rather than

information in cases involving violent crimes. See Ariz. Downs,

130 Ariz. at 556, 637 P.2d at 1059 (concluding that court will

uphold constitutionality of a statute under a rational basis

test if it can “perceive any set of facts which rationally

justif[ies] it”). This perceived basis alone provides a

rational basis for the distinction between cases that proceed by

indictment versus information. The desire to screen for

potentially violent persons also supports the classification.

¶39 The majority also concludes that the use of an old or,

as in this case, dismissed indictment leads to arbitrary or

unfair results. Op. ¶ 27. That might be the case if

determining the existence of the indictment were the end of the

inquiry. But under the statutory scheme at issue, the defendant

retains the right to make her case that the indictment is too

remote to be probative of her current propensity for violence or

was dismissed because the State could not prove its case. That

is, the defendant retains the right to establish that, despite

her prior indictment for a violent offense, she nonetheless

22
poses no danger to the public and should therefore be placed on

probation. This scheme also permits the State to attempt to

show reasons other than a defendant’s innocence that may have

resulted in the dismissal of the indictment, such as loss of

evidence, absent or recalcitrant witnesses, or too much time

elapsed. In this case, although the State conceded that it

could not prove its case, we do not know why that is so. The

existing statutory provisions provide a mechanism for the court

to inquire into these matters.7

¶40 The majority also concludes that the statute

arbitrarily permits the State to rely on an indictment that has

been dismissed, but not to rely on a conviction that has been

reversed or vacated. Op. ¶¶ 16-18. In the latter case,

however, there has been a judicial determination that the

conviction resulted from a process infected with legal error.

7
The majority opinion states that the Defendant is given no
“opportunity . . . to explain or the court to consider the
circumstances of the dismissed charges,” Op. ¶ 22, and no
“opportunity . . . to contest the factual basis for the
indictment.” Op. ¶ 28. See A.R.S. § 13-901.01(B). We read the
statute differently, as providing a defendant who is otherwise
eligible for discretionary probation under the general drug
sentencing laws to contest the factual basis for the indictment
and to contend that a previously dismissed indictment should not
prevent her from being placed on probation. That Gomez is
precluded from eligibility for probation because she was on
parole for another crime when she committed the drug offenses at
issue here does not affect the way the statute works for all
offenders. It simply renders this defendant ineligible for
probation.

23
Once a conviction has been judicially reversed or vacated, it no

longer exists for purposes of sentence enhancement. State v.

Kiser, 111 Ariz. 316, 317, 529 P.2d 215, 216 (1974). The

dismissal of an indictment, however, is usually done at the

request of the prosecution, often for reasons unrelated to the

defendant’s guilt or innocence. Such a dismissal does not erase

the fact that a grand jury has found probable cause, and it does

not make the indictment cease to exist in the way that a

judicial reversal does for a conviction. The interposition of a

judicial determination provides a rational, non-arbitrary

distinction between dismissed indictments and reversed or

vacated convictions.8

¶41 Ironically, the majority’s interpretation leads to the

same result for those defendants under pending indictment for

violent crimes that it condemns for those whose indictments were

dismissed. Those defendants under pending indictments, whose

8
That courts have determined that a vacated conviction no
longer is a “conviction” for purposes of sentence enhancement
should not alter the analysis of this exclusion from entitlement
to suspension of sentence for those indicted for violent crimes.
The United States Supreme Court has called the exclusion of
vacated or reversed convictions from the common understanding of
the term “convicted” “an obvious exception to the literal
language of the statute.” Dickerson v. New Banner Inst., Inc.,
460 U.S. 103, 115 (1983). There is no compelling reason that
such an “exception to the literal language” must also apply to
indictments for violent crimes, given the public’s desire to
deny the benefits of mandatory probation to those who might be
violent offenders.

24
rights similarly have not been adjudicated, are also excluded

from automatic eligibility for mandatory probation.

¶42 In sum, A.R.S. § 13-901.01(B) simply permits

conviction or indictment for a violent crime to serve as an

alarm that signals the parties and the court that this

defendant’s record should be carefully examined to determine

whether the defendant is a violent offender who should not be

placed on probation. The alert served its purpose in this case.

Because Gomez had been indicted for a violent, gun-related crime

in her past, the court conducted an inquiry into her suitability

for probation. See A.R.S. § 13-604.04(B) (2001) (crime of

violence involving use of deadly weapon). It came to light that

she was not eligible for probation under the regular sentencing

provisions because she committed her drug offense while on

parole for another crime. See A.R.S. §§ 13-3407(C), -604.02(B).

The statutory scheme performed its function of allowing

additional inquiry.9

9
Consideration of prior indictments in the criminal
sentencing context is not unknown. Once one Blakely-compliant
aggravating factor has been proved, for example, previous
indictments may be used to aggravate a sentence. See State v.
Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005)
(holding that judge may consider additional aggravating factors
once one Blakely-compliant factor has been established); see
also State v. Johnson, 183 Ariz. 623, 635-36, 905 P.2d 1002,
1014-15 (App. 1995) (holding that trial court properly
aggravated sentence based on grand jury’s probable cause
determination resulting in an indictment), aff’d on other

25
¶43 In short, the present scheme, if interpreted according

to its plain language, is not irrational or arbitrary, nor does

it lead to absurd results. I would therefore interpret A.R.S.

§ 13-901.01(B) according to its terms and not insert terms such

as extant or pending that the people did not include when they

adopted Proposition 200.10

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________
grounds, 186 Ariz. 329, 922 P.2d 294 (1996); State v. Rebollosa,
177 Ariz. 399, 401, 868 P.2d 982, 984 (App. 1993) (to same
effect).
10
Because of the majority’s disposition, we need not reach
the constitutional issue decided by the court of appeals.

26