Opinion
No. 2 CA-CR 2017-0200
04-06-2018
THE STATE OF ARIZONA, Appellee, v. LORNE WILLIAM KLOKEID, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alice Jones, Assistant Attorney General, Phoenix Counsel for Appellee Peter A. Kelly, Palominas Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Cochise County
No. CR201600204
The Honorable Wallace R. Hoggatt, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alice Jones, Assistant Attorney General, Phoenix
Counsel for Appellee
Peter A. Kelly, Palominas
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Lorne Klokeid appeals from his convictions and sentences for possession of drug paraphernalia and possession of marijuana having a weight of less than two pounds. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In March 2013, an officer with the Sierra Vista Police Department responded to a report of disorderly conduct at a motel. The officer made contact with Klokeid and entered his motel room with Klokeid's permission. While inside the room, the officer observed a piece of aluminum foil with a burnt residue. The officer asked Klokeid if the residue was heroin, and Klokeid replied that it was. The officer got a warrant, searched the room for other drugs, and found marijuana. After a bench trial, Klokeid was convicted as described above and sentenced to concurrent, minimum, three-year prison terms. Klokeid appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
¶3 Under A.R.S. § 13-901.01(A), when a person is convicted of possessing drugs or drug paraphernalia, the trial court "shall suspend the imposition or execution of sentence and place the person on probation." This provision, however, does not apply to a person who has been convicted of a "violent crime," as defined by A.R.S. § 13-901.03. Section 13-901.03 defines a "violent crime," in relevant part, as "any criminal act that results in death or physical injury." Klokeid has previously been convicted of negligent homicide. Klokeid does not contest that negligent homicide is within the definition of "violent crime" provided in § 13-901.03, but claims instead that the legislature exceeded its authority by "chang[ing] the settled judicial definition of a violent crime." We treat this as a challenge to the constitutionality of a statute, which is a matter of law that we review de novo. State v. McMahon, 201 Ariz. 548, ¶ 5 (App. 2002).
¶4 Klokeid claims the legislature could not provide a definition of "violent crime" in § 13-901.03 because our courts have already defined
that term. But Arizona courts have never purported to put forth a definition of "violent crime" that applies to all situations. In the cases cited by Klokeid, the court provided a definition of "violent crime" for purposes of a statutory aggravating factor that allows a court to impose the death penalty. See State v. Ysea, 191 Ariz. 372, ¶¶ 5, 11 (1998), superseded by statute as recognized by State v. Martinez, 196 Ariz. 451, ¶ 44 (2000); State v. McKinney, 185 Ariz. 567, 581-82 (1996), superseded by statute as recognized by Martinez, 196 Ariz. 451, ¶ 43; State v. Arnett, 119 Ariz. 38, 50-51 (1978). These cases are limited to defining violent crimes for that purpose and therefore do not conflict with § 13-901.03.
¶5 Moreover, "[i]t is squarely within the legislature's authority to define crimes . . . ." State v. Gill, 235 Ariz. 418, ¶ 14 (App. 2014). Klokeid has not explained why the legislature's authority to define crimes would not extend to the authority to determine what is a "violent crime," nor can we conceive of any reason such would be the case.
¶6 Klokeid also contends the definition of "violent crime" in § 13-901.03 is inconsistent with the intent of the voters. He urges us to look to certain voter information materials to demonstrate this supposed intent. However, when the language of a statute adopted by initiative is unambiguous, "we apply it as written without resorting to other methods of statutory interpretation." State v. Matlock, 237 Ariz. 331, ¶ 10 (App. 2015). The definition provided by § 13-901.03 is not ambiguous, and we therefore do not consider the statute's "purpose and spirit." Id.
Disposition
¶7 Because the trial court did not err in finding § 13-901.03 valid and applicable, it did not err in concluding Klokeid was not eligible for probation pursuant to § 13-901.01. We affirm Klokeid's convictions and sentences.