               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 168

                                                       OCTOBER TERM, A.D. 2014

                                                                  December 23, 2014

ROBERT OWEN MARSHALL, III,

Appellant
(Defendant),

v.                                                   S-14-0073

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                     Appeal from the District Court of Natrona County
                         The Honorable Daniel L. Forgey, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; James Kaste, Deputy Attorney General; Jenny L. Craig, Senior
      Assistant Attorney General; Caleb C. Wilkins, Student Intern.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.

[¶1] Robert Owen Marshall, III pleaded guilty to a third or subsequent offense of
possession of a controlled substance, which is a felony, and misdemeanor driving while
under the influence. On appeal, he claims the district court erred by ordering him to
receive and pay for a substance abuse assessment and by relying on the assessment at
sentencing to determine he was a qualified offender and recommend he receive substance
abuse treatment while incarcerated.

[¶2]       We affirm.

                                                       ISSUE

[¶3]       We restate Mr. Marshall’s appellate issue as:

Did the district court act in excess of its statutory authority when it ordered Mr. Marshall
to undergo and pay for a substance abuse assessment and then used the results to
determine that he was a “qualified offender” and in need of substance abuse treatment?

The State presents a similar issue.

                                                   FACTS

[¶4] Mr. Marshall pleaded guilty to a third or subsequent offense of possession of a
controlled substance, which was a felony under Wyo. Stat. Ann. § 35-7-1031(c)(i)
(LexisNexis 2013),1 and misdemeanor driving while under the influence in violation of
Wyo. Stat. Ann. § 31-5-233(b)(iii) (LexisNexis 2013).2 After accepting Mr. Marshall’s
1
    Section 35-7-1031(c)(1) states in relevant part:

           (c) It is unlawful for any person knowingly or intentionally to possess a controlled
           substance unless the substance was obtained directly from, or pursuant to a valid
           prescription or order of a practitioner while acting in the course of his professional
           practice, or except as otherwise authorized by this act. . . .

               (i)     . . . Any person convicted for a third or subsequent offense under this
                       paragraph, including convictions for violations of similar laws in other
                       jurisdictions, shall be imprisoned for a term not more than five (5) years,
                       fined not more than five thousand dollars ($5,000.00), or both.
2
    Section 31-5-233(b)(iii) states:

           (b) No person shall drive or have actual physical control of any vehicle within this state
           if the person: . . .

               (iii) To a degree which renders him incapable of safely driving:
guilty pleas, the district court ordered a presentence investigation (PSI), including a
substance abuse assessment under the Addicted Offender Accountability Act (AOAA),
Wyo. Stat. Ann. §§ 7-13-1301 through 1304 (LexisNexis 2013). The substance abuse
assessment recommended that Mr. Marshall receive clinically managed high intensity
residential treatment for substance abuse.

[¶5] The district court considered the substance abuse assessment, together with Mr.
Marshall’s long history of substance abuse violations documented in the PSI, before
imposing sentence. The district court found Mr. Marshall to be a “qualified offender”
under the AOAA and ordered him to serve a term of incarceration of two to four years
with the recommendation that he successfully complete substance abuse treatment while
in prison through the Intensive Treatment Unit (ITU) or a comparable program. He was
also ordered to pay $75.00 for the substance abuse assessment. Mr. Marshall filed a
timely notice of appeal.

                                         DISCUSSION

[¶6] The primary question in this case is whether the district court had the statutory
authority to order Mr. Marshall to receive and pay for a substance abuse assessment.
That question is a matter of statutory interpretation which is subject to de novo review.
Coleman v. State, 2005 WY 69, ¶ 11, 115 P.3d 411, 414 (Wyo. 2005).

                  In interpreting statutes, we primarily determine the
                  legislature’s intent. If the language is sufficiently clear,
                  we do not resort to rules of construction. We apply our
                  general rule that we look to the ordinary and obvious
                  meaning of a statute when the language is unambiguous.”
                  We construe together all parts of the statutes in pari
                  materia, and, in ascertaining the meaning of a given law,
                  we consider and construe in harmony all statutes relating
                  to the same subject or having the same general purpose.

                  When the language is not clear or is ambiguous, the court
                  must look to the mischief the statute was intended to
                  cure, the historical setting surrounding its enactment, the


              (A) Is under the influence of alcohol;

              (B) Is under the influence of a controlled substance; or

              (C) Is under the influence of a combination of any of the elements named in
          subparagraphs (A) and (B) of this paragraph.



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                  public policy of the state, the conclusions of law, and
                  other prior and contemporaneous facts and
                  circumstances, making use of the accepted rules of
                  construction to ascertain a legislative intent that is
                  reasonable and consistent.

              Merrill v. Jansma, 2004 WY 26, ¶ 28, 86 P.3d 270, 284–85
             (Wyo. 2004) (citations omitted).

Stanton v. State, 2006 WY 31, ¶ 12, 130 P.3d 486, 491 (Wyo. 2006). See also Daves v.
State, 2011 WY 47, ¶ 15, 249 P.3d 250, 256 (Wyo. 2011).

[¶7] The AOAA provides district courts with the means of identifying a defendant’s
drug or alcohol problems and crafting a sentence to fit the circumstances. Janpol v. State,
2008 WY 21, ¶ 20, 178 P.3d 396, 403 (Wyo. 2008); Greene v. State, 2009 WY 99, ¶ 18,
214 P.3d 222, 227 (Wyo. 2009). To that end, the act requires that any defendant
convicted of a felony receive a substance abuse assessment. Section 7-13-1302. See
also Doherty v. State, 2006 WY 39, ¶ 31, n.2, 131 P.3d 963, 972, n.2 (Wyo. 2006).
Based upon the results of the substance abuse assessment, the district court may declare
the defendant to be a “qualified offender,” which is defined as “a person convicted of a
felony whom the court finds has a need for alcohol or other drug treatment.” Section 7-
13-1301(a)(iv).

[¶8] Once a defendant is found to be a qualified offender, the district court has
authority under the AOAA and relevant criminal statutes to order treatment for substance
abuse while the defendant is incarcerated or to sentence him to probation or a suspended
sentence and require treatment as a condition of release. Section 7-13-1303. See also
Gomez v. State, 2013 WY 134, ¶ 7, 311 P.3d 621, 623 (Wyo. 2013); Duke v. State, 2009
WY 74, ¶¶ 33-35, 209 P.3d 563, 573-74 (Wyo. 2009).

[¶9] The district court ordered Mr. Marshall to receive a substance abuse assessment in
accordance with § 7-13-1302:

             All persons convicted of a third misdemeanor under W.S. 31-
             5-233(e) or a felony shall receive, as a part of a presentence
             report, a substance abuse assessment. The cost of the
             substance abuse assessment shall be assessed to and paid by
             the offender. A person who has undergone a substance abuse
             assessment pursuant to W.S. 31-5-233(e) may receive a
             second assessment under this section if the court finds that
             enough time has passed to make the first assessment
             inaccurate.



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(Emphasis added.)

[¶10] Mr. Marshall does not assert that the district court failed to advise him of the
consequences associated with the AOAA. See generally Sena v. State, 2010 WY 93, 233
P.3d 993 (Wyo. 2010) (discussing advisements required by W.R.Cr.P. 11 in light of the
AOAA). In fact, the district court advised Mr. Marshall at his arraignment that, if he
pleaded guilty, he could be ordered to be evaluated for substance abuse and required to
pay the fee associated with the assessment. Mr. Marshall agreed that the earlier
advisements were incorporated by reference into his change of plea hearing.

[¶11] Mr. Marshall claims, however, that the district court did not have the authority to
order the substance abuse assessment because he was not “convicted” of a felony under
the AOAA. He refers us to the definition of “convicted” in § 7-13-1301(a)(iii):

             (iii) “Convicted” means an unvacated determination of guilt
             by any court having legal jurisdiction of the offense and from
             which no appeal is pending and includes pleas of guilty and
             nolo contendere. For purposes of W.S. 7-13-1302 only,
             “convicted” shall include dispositions pursuant to W.S. 7-13-
             301, 7-13-302(a), 35-7-1037 or deferred prosecutions when
             ordered. Otherwise, for purposes of this act, “convicted” shall
             not include dispositions pursuant to W.S. 7-13-301, 7-13-
             302(a), 35-7-1037 or deferred prosecutions[.]

(Emphasis added.) He asserts that, since he appealed his judgment and sentence, he did
not meet the definition of “convicted” and, therefore, could not be subject to the
substance abuse assessment requirements.

[¶12] Mr. Marshall’s interpretation of the AOAA is overly narrow. Considering all of
the statutory sections in pari materia, it is clear that the legislature intended that the
substance abuse assessment occur prior to sentencing. Section 7-13-1302 specifically
mandates that the assessment will be part of the presentence investigation report. In fact,
a failure to order a substance abuse assessment would be in violation of the statute.
Obviously, then, the assessment must be performed before a defendant appeals his
judgment and sentence. Further, at the time Mr. Marshall pleaded guilty and the district
court ordered the assessment, there was no appeal pending. The clear legislative intent
was to require the district court to address a defendant’s substance abuse issues during
sentencing, but if a defendant’s conviction is later overturned, any treatment requirements
under the AOAA would also be vacated.

[¶13] If we were to accept Mr. Marshall’s interpretation of the AOAA, the underlying
purposes of the act, including identification and treatment of addicted offenders, would
be completely undermined. It is worth noting that often those who are most in need of


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substance abuse treatment are the most reluctant to seek or complete it. Mr. Marshall’s
argument that a qualified offender may avoid evaluation and treatment by simply
appealing his conviction would result in a complete failure to help those who should
benefit from the AOAA. We do not “construe statutes in a manner which renders any
portion meaningless or produces absurd results.” In re WJH, 2001 WY 54, ¶ 7, 24 P.3d
1147, 1150-51 (Wyo. 2001) (citations omitted). To construe the AOAA as advocated by
Mr. Marshall would render its provisions essentially meaningless if an offender did not
want to be evaluated or treated.

[¶14] Mr. Marshall challenges the AOAA evaluation and treatment requirements
because, during a previous period of incarceration, he was unsuccessful in the ITU as a
result of the Wyoming Department of Corrections’ refusal to accommodate his disability,
including his chronic pain and back problems. There is no official documentation of his
previous ITU experience in the record before us and, in any event, the district court was
still obligated under the AOAA to order a substance abuse assessment and consider its
results in crafting a sentence.

[¶15] The district court had discretion, after determining Mr. Marshall was a qualified
offender, to fashion a sentence that included substance abuse treatment, as well as other
penalties such as incarceration. See § 7-13-1303; Doherty, ¶ 35, 131 P.3d at 974.
Certainly, Mr. Marshall’s criminal record and the substance abuse assessment supported
its finding that Mr. Marshall was a qualified offender and in need of treatment. Although
he maintains in general that he should not be required to receive in-patient treatment
while in prison, he does not specifically attack the district court’s ruling that treatment
was appropriate in his case. The only argument he makes in this regard is that an earlier
substance abuse assessment used to evaluate him for another program recommended only
out-patient treatment. The district court was aware of the earlier assessment when it
issued the sentence, and Mr. Marshall does not explain how the district court erred by
relying on the later assessment to order more intensive treatment. In point of fact, the
district court did not expressly order inpatient treatment but simply recommended that he
“successfully complete ITU or [a] similar program.” The district court stated at the
sentencing hearing that it intended to give the WDOC flexibility in finding a suitable
program for Mr. Marshall. The district court’s decision was in accordance with the law.

[¶16] Affirmed.




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