Opinion
No. 2 CA-CR 2019-0043-PR
05-07-2019
THE STATE OF ARIZONA, Respondent, v. SCOTTIE SARRETT, Petitioner.
COUNSEL Jeremy O. Ford, Greenlee County Attorney By Robert D. Gilliland, Chief Deputy County Attorney, Clifton Counsel for Respondent Flores & Clark PC, Globe By Daisy Flores Counsel for Petitioner
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NOT FOR PUBLICATION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).
Petition for Review from the Superior Court in Greenlee County
No. CR201700074
The Honorable Monica L. Stauffer, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Jeremy O. Ford, Greenlee County Attorney
By Robert D. Gilliland, Chief Deputy County Attorney, Clifton
Counsel for Respondent
Flores & Clark PC, Globe
By Daisy Flores
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
ECKERSTROM, Chief Judge:
¶1 Scottie Sarrett, convicted in October 2017 of possession or use of drug paraphernalia after entering a guilty plea, petitions this court for review of the trial court's denial of her petition for post-conviction relief pursuant to Rule 32.1(g), Ariz. R. Crim. P. Sarrett contends A.R.S. § 13-3423, which became effective in April 2018, was a significant change in the law that applies to her case. Because the trial court did not abuse its discretion, see State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015), we grant review of the petition but deny relief.
¶2 Sarrett was charged with possession or use of heroin, a narcotic drug, and two counts of possession or use of drug paraphernalia, all offenses having been committed in September 2017. Pursuant to a plea agreement, she pled guilty to possession or use of drug paraphernalia, a class six felony. At the end of October 2017, the trial court suspended the imposition of sentence and placed Sarrett on three years' probation upon her release from the Arizona Department of Corrections on another offense.
¶3 In July 2018, Sarrett filed a notice of post-conviction relief, followed by a petition, filed in September, asserting that § 13-3423 was a significant change in the law that applies to her case, entitling her to an order vacating her plea agreement and sentence and dismissing the charges with prejudice. After a hearing, the trial court issued its under-advisement ruling, concluding the statute is substantive rather than procedural, is not retroactively applicable, and does not apply to Sarrett's case. This petition for review followed.
¶4 Section 13-3423, which became effective on April 26, 2018, provides, in relevant part, as follows:
A. A person who, in good faith, seeks medical assistance for someone experiencing a drug-related overdose may not be charged or
prosecuted for the possession or use of a controlled substance or drug paraphernalia or a preparatory offense if the evidence for the violation was gained as a result of the person's seeking medical assistance.
B. A person who experiences a drug-related overdose, who is in need of medical assistance and for whom medical assistance is sought pursuant to subsection A of this section may not be charged or prosecuted for the possession or use of a controlled substance or drug paraphernalia if the evidence for the violation was gained as a result of the person's overdose and need for medical assistance.
¶5 Following the hearing on the petition, the trial court entered factual findings, which were undisputed, establishing the charges arose out of an officer's response to a call for emergency medical assistance for Sarrett, who appeared to have suffered a drug overdose. Relying in part on A.R.S. § 1-246 ("offender shall be punished under the law in force when the offense was committed") and A.R.S. § 1-244 ("[n]o statute is retroactive unless expressly declared therein"), the court found the statute did not apply to Sarrett's case. The court rejected Sarrett's arguments that (1) the statute is procedural, rather than substantive, and is therefore retroactively applicable; and (2) the prosecution of the case is ongoing, given that Sarrett is on probation and therefore the statute applies to her case.
¶6 In her petition for review, Sarrett makes essentially the same arguments she asserted below. She contends the trial court abused its discretion by rejecting these arguments, again arguing the statute is procedural and, in any event, her case is ongoing and not final because she is still serving her probationary term, which began in January 2019. But the court's well-reasoned ruling is supported by the statutory and case law it relied upon. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
¶7 The statute is not procedural; rather, it is substantive. See In re Shane B., 198 Ariz. 85 (2000); see also State v. Fell, 210 Ariz. 554, ¶ 22 (2005). And the definition of the offense and any exception or other defense must be based on the version of the statutes that existed in September 2017, when Sarrett committed the offense. See generally State v. Coconino Cty. Superior Court, 139 Ariz. 422, 427 (1984); cf. Garcia v. Browning, 214 Ariz. 250, ¶ 20
(2007) (finding legislature's amendment of self-defense statute inapplicable to offenses committed before effective date in absence of retroactivity provision), superseded by statute as stated in State v. Montes, 226 Ariz. 194, ¶¶ 9-11 (2011); State v. Poshka, 210 Ariz. 218, ¶¶ 10-12 (App. 2005) (applying version of statute for driving under influence of intoxicant that existed at time of offense, not prior version which had allowed for affirmative defense)). As the trial court also correctly concluded, Sarrett's case was not ongoing simply because she had been placed on probation and could be subject to a revocation proceeding and subsequent disposition; rather, it was completed when she was placed on probation. Should Sarrett's probation be revoked, any penalty imposed must comport with the law that existed at the time of the offense. See State v. Newton, 200 Ariz. 1, ¶ 3 (2001).
¶8 Sarrett has not sustained her burden of establishing that the trial court abused its discretion in denying her petition for post-conviction relief. We therefore grant the petition for review but deny relief.