                             IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                           Petitioner,

                                v.

     HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF THE
       STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                          Respondent,

                               and

                              L.N.,
                      Real Party in Interest.

                     No. 2 CA-SA 2014-0057
                     Filed December 18, 2014


                   Special Action Proceeding
             Pima County Cause No. CR20142391001

        JURISDICTION ACCEPTED; RELIEF GRANTED


                           COUNSEL

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Petitioner

Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Elena M. Kay, Assistant Public Defenders,
Tucson
Counsel for Real Party in Interest
                           STATE v. LEE
                         Opinion of the Court


                              OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller and Judge Espinosa concurred.


E C K E R S T R O M, Chief Judge:

¶1            In this special action, the State of Arizona challenges the
respondent judge’s order remanding real party in interest L.N. to the
juvenile division of the Pima County Superior Court after the state
sought to prosecute him as an adult on felony charges. The
respondent judge found the state did not sustain its burden of
establishing the class six felony delinquency adjudications were
historical prior felony convictions for purposes of A.R.S. § 13-501(A)
and (H)(2), and A.R.S. § 13-105(22)(c). The state maintains the
respondent abused his discretion by so finding. We agree and grant
relief for the reasons stated below.

                 Factual and Procedural Background

¶2           The following facts and procedural history were either
undisputed below, are undisputed in this special-action proceeding,
or are supported by three minute entries from delinquency
proceedings in the juvenile court that were before the respondent
judge when he issued the ruling that is the subject of this special
action. L.N. was born in July 1998 and is currently sixteen years old.
On May 16, 2013, L.N. was adjudicated delinquent based on criminal
acts alleged in three separately dated delinquency petitions. With
respect to a December 19, 2012 petition, the juvenile court found he
had possessed drug paraphernalia, a class six felony, in violation of
A.R.S. § 13-3415.      Based on two other petitions, one dated
October 10, 2012, and the other April 3, 2013, L.N. was adjudicated
delinquent based on three class one misdemeanors: shoplifting,
possession/use of marijuana, and possession of drug paraphernalia.
The juvenile court placed L.N. on probation and issued a “First




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                           STATE v. LEE
                         Opinion of the Court

Felony Adjudication Notice,” the notice required by A.R.S. § 8-
341(C).1

¶3          In August 2013, L.N. was adjudicated delinquent in
connection with a July 18, 2013 petition for possessing or using less
than two pounds of marijuana, a class six felony, in violation of
A.R.S. § 13-3405(A)(1).2 At the August 30 disposition hearing, the
court placed him on Juvenile Intensive Probation Supervision (JIPS)
and signed a Repeat Felony Adjudication Notice as required by § 8-
341(E).3

¶4           On June 9, 2014, the state charged L.N. with possession
of a deadly weapon by a prohibited possessor, a class four felony, in
violation of A.R.S. § 13-3102(A)(4),4 and theft of a firearm, a class six


      1The  statute provides that a juvenile who has been adjudicated
of a felony for the first time must be provided written notice that as
a first-time felony offender, if he were to be adjudicated of another
“offense that would be a felony offense if committed by an adult”
there could be various consequences, including prosecution as an
adult. § 8-341(C).
      2 The juvenile court failed to include the marijuana
adjudication in its August 30, 2013 disposition order, an apparent
oversight, subsequently correcting the order nunc pro tunc in its
July 2014 order, to include the adjudication for that offense. When it
did so, it again erred by referring to the shoplifting statute, A.R.S.
§ 13-1805(A)(1); clearly, it had intended to refer to A.R.S. § 13-
3405(A)(1), as it had in the August 15, 2013 adjudication order.
      3The   statute provides that when a juvenile who is fourteen
years of age or older has been adjudicated as a repeat felony
offender, he or she must be provided with the following notice: “[I]f
you are arrested for another offense that would be a felony offense if
committed by an adult and if you commit the other offense when
you are fifteen years of age or older, you will be tried as an adult in
the criminal division of the superior court.” § 8-341(E).
      4L.N.
          was charged with violating the statute for possessing a
handgun “having been adjudicated delinquent as a juvenile,” in

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                          STATE v. LEE
                        Opinion of the Court

felony, in violation of A.R.S. § 13-1802(A)(1). In accordance with
§ 13-501(D), the state filed a notice stating L.N. was a chronic felony
offender, “a juvenile who has had two prior and separate
adjudications and dispositions for conduct that would constitute a
historical prior felony conviction if the juvenile had been tried as an
adult,” § 13-501(H)(2), and he was subject to mandatory prosecution
as an adult pursuant to § 13-501(A).

¶5           L.N. filed a motion for determination of chronic felony
offender status and requested a hearing pursuant to § 13-501(E).
Although he conceded in his motion that he had two delinquency
adjudications and dispositions for felony offenses, he argued that,
based on a policy of the Pima County Attorney’s Office (PCAO)
regarding the prosecution of adults for these kinds of offenses, he
would have been charged with misdemeanors had he committed the
offenses as an adult. He argued this disparate treatment of adults
and juveniles violated his right to “equal protection under the law,”
and asked the respondent to find he is not a chronic felony offender
and remand him to the juvenile court on the charges.

¶6           At the July 1, 2014 hearing on his motion, L.N. once
again conceded he had two felony adjudications but informed the
respondent judge that he had filed a motion in juvenile court “to see
if these can be made to misdemeanors.” He argued that for this
reason and because his equal protection rights were being violated,
the respondent should find he was not a chronic felony offender and
transfer the case to the juvenile court. The respondent did not rule
on the equal protection argument, but commented he was “not
going to find a violation.” He denied the motion, permitting L.N. to
re-file the motion after the juvenile court ruled on the request to re-
designate the felonies as misdemeanors.

¶7           After the juvenile court denied that request, L.N. filed a
“motion for reconsideration o[r] redetermination of chronic felony
offender status.” At the August 4 hearing on L.N.’s second motion,


violation of § 13-3101(A)(4), based on the definition of a prohibited
possessor as a person “[w]ho has been adjudicated delinquent for a
felony.” A.R.S. § 13-3101(7)(b).


                                  4
                           STATE v. LEE
                         Opinion of the Court

the state introduced certified copies of minute entries from L.N.’s
juvenile court record dated May 16, 2013, August 30, 2013, and
July 18, 2014.     The respondent found that “[t]he documents
presented to the Court reflect one cause number where the
defendant has been adjudged delinquent and disposition was
entered,” which suggested to him there had not been separate
adjudications. He also noted the state had acknowledged that the
PCAO policy permitted prosecutors to charge adults who commit
possession of marijuana and possession of drug paraphernalia with
misdemeanors rather than class six felonies. The respondent found
the state had not sustained its burden of proving by a
preponderance of the evidence that L.N. is a chronic offender, see
§ 13-501(E), and transferred L.N. to the juvenile court, see A.R.S. § 8-
302.

¶8          The state filed a motion for reconsideration, asking the
respondent to consider additional juvenile court records to establish
L.N.’s chronic felony offender status. The respondent denied that
request and denied the motion. This petition for special-action relief
followed.5




      5 At the hearing on L.N.’s motion for reconsideration of his
status as a chronic felony offender, the state asked the respondent to
“take judicial notice of” L.N.’s entire juvenile file if “additional
record is needed.” The respondent denied that request, apparently
believing the records were confidential, and refused to take judicial
notice of the records, noting they were not, in any event, accessible
to him. He also refused the state’s request to supplement the record.
The state challenges the respondent’s rulings and has included these
additional portions of L.N.’s juvenile court record in its appendix to
the special-action petition. L.N. argues we may not consider those
documents because they were not before the respondent when he
ruled. We need not address the state’s record-related challenges
because, as discussed below, the minute entries that were before the
respondent established L.N.’s chronic felony offender status.


                                   5
                            STATE v. LEE
                          Opinion of the Court

                      Special-Action Jurisdiction

¶9              We accept jurisdiction of this special action for several
reasons. First, as L.N. concedes, the state has no remedy by appeal.
See Ariz. R. P. Spec. Actions 1(a); A.R.S. § 13-4032 (specifying orders
in criminal action state may appeal). Moreover, the challenged
order is interlocutory in nature. See Andrews v. Willrich, 200 Ariz.
533, ¶ 3, 29 P.3d 880, 882 (App. 2001); cf. State ex rel. Romley v.
Superior Court, 170 Ariz. 339, 341, 823 P.2d 1347, 1349 (App. 1991)
(order denying state’s discretionary motion to transfer juvenile for
prosecution as adult under former statutes not final, appealable
order). Additionally, the issues raised involve the interpretation and
application of § 13-105(22) and § 13-501, pure questions of law, see In
re Aaron M., 204 Ariz. 152, ¶ 2, 61 P.3d 34, 35 (App. 2003), which are
particularly suited for special-action review, see State ex rel. Romley v.
Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002). Finally, the
issues involve matters of first impression and statewide importance.
Id.; see also State v. Fields, 232 Ariz. 265, ¶ 6, 304 P.3d 1088, 1090 (App.
2013).

              Separate and Distinct Felony Adjudications

¶10           The state contends the respondent judge erred in
finding it failed to sustain its burden of establishing L.N. had “two
prior and separate adjudications and dispositions,” § 13-501(H)(2),
because the adjudications appear under one cause number. The
state maintains that if the respondent properly had permitted it to
expand the record, he would not have reached this conclusion. L.N.
concedes the notices of first and repeat felony adjudications L.N.
received and signed after each felony adjudication “provide
overwhelming and irrefutable evidence that there were in fact two
separate adjudications,” but insists we may not consider them
because they were not before the respondent when he ruled. 6 We

      6L.N. admitted in his motion to determine his chronic felony
offender status that he had two felony adjudications. Additionally,
although we consider only the admitted minute entries, L.N. does
not dispute that the additional documents the state has provided us,
including the first and repeat felony offender notices, are accurate
copies of L.N.’s juvenile court records. Cf. State v. Rodriguez, 205

                                     6
                          STATE v. LEE
                        Opinion of the Court

agree the respondent judge’s finding is clearly erroneous based on
the minute entries introduced at the hearing on L.N.’s second
motion. See State v. Rodriguez, 205 Ariz. 392, ¶ 18, 71 P.3d 919, 924
(App. 2003) (whether a defendant is chronic felony offender is for
trial court to determine in exercise of its discretion and appellate
court will “defer to the trial court’s factual findings that are
supported by the record and not clearly erroneous”), quoting State v.
Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000).

¶11           The three minute entries establish, either directly or by
inference, L.N. had been charged in delinquency petitions filed on
different dates with possession of drug paraphernalia and
possession or use of marijuana, and that both were charged as class
six felonies. They show L.N. was adjudicated delinquent on
different dates based on these petitions. Although these and other
delinquency petitions were filed under one cause number ascribed
to L.N., the juvenile court distinguished and identified the petitions
and the charges in each by the dates on which the petitions were
filed. The admitted minute entries also reflect that L.N. was
provided with and signed the first and repeat felony offender
notices, evidence L.N. concedes establishes distinct adjudications.
We conclude the respondent abused his discretion in finding L.N.
had one felony adjudication, rather than two separate and distinct
adjudications and dispositions.




Ariz. 392, ¶¶ 19-21, 71 P.3d 919, 925 (App. 2003) (noting defendant
failed to object in trial court to “nature or sufficiency” of state’s
evidence, which included uncertified copies of delinquency
adjudication minute entries and notice of repeat felony offender
status, and conceded at hearing he could not say minute entries
were inaccurate copies of juvenile court record); see also In re Sabino
R., 198 Ariz. 424, ¶¶ 4-5, 10 P.3d 1211, 1212 (App. 2000) (superior
courts authorized to take judicial notice of their own records,
including juvenile court records, to establish facts necessary to
matters before them, and appellate courts may similarly take judicial
notice of such records); Ariz. R. Evid. 201.


                                  7
                           STATE v. LEE
                         Opinion of the Court

      Chronic Felony Offender Status and Class Six Felonies

¶12         During the two hearings, the respondent judge and
counsel for the parties discussed the PCAO’s policy of charging
adult defendants who possess small amounts of marijuana or drug
paraphernalia with either class six, undesignated felonies, or
misdemeanors, depending on the circumstances. No evidence was
admitted regarding this policy, but at the first hearing, the
prosecutor agreed that “[t]he State sometimes waives Class Six
Felonies to misdemeanors.” She added, “[I]t’s not as though we
waive every single Class Six Felony to a misdemeanor up here
either. We do charge them.” At the second hearing, a different
prosecutor stated he was not familiar with the particular facts
surrounding L.N.’s two felony adjudications but “in similar cases,
we usually offer, it’s a felony designation, or we usually offer a Class
Six Open,” that is, an undesignated offense that the trial court may
designate as a misdemeanor. See A.R.S. § 13-604(A). The prosecutor
conceded he did not know whether L.N.’s offenses would have been
prosecuted as class one misdemeanors or open-ended offenses.7

¶13           The respondent judge ruled that, because the class six
felonies might have been charged as misdemeanors had L.N.
committed them as an adult and because the state had not presented
evidence that L.N. would have been charged with felonies had he
been an adult, the state failed to sustain its burden of establishing
L.N. was therefore a chronic felony offender. The state contends in
its special-action petition that nothing in § 13-501 “ask[s] ‘what if[]’
about office policies for handling certain offenses,” nor does it

      7At  the second hearing and in its special-action petition, the
state repeatedly has asserted the class six felonies were open-ended;
that is, they remained undesignated while L.N. was on probation.
But it appears the offenses were charged as class six felonies, L.N.
admitted to the offenses as charged, he was adjudicated on the
charges as class six felonies, and, accordingly, he was provided the
first and repeat felony offender notices after each adjudication.
Although L.N. asked the juvenile court to re-designate the offenses
as misdemeanors after he was charged as an adult, the juvenile court
refused that request; the charges remained class six felonies.


                                   8
                           STATE v. LEE
                         Opinion of the Court

require consideration of how adults generally are charged in a given
prosecuting attorney’s office. We agree.

¶14          Whether a juvenile is a chronic felony offender is “a
finding of fact for the trial court to make, and ‘[w]e defer to the trial
court’s factual findings that are supported by the record and not
clearly erroneous.’” Rodriguez, 205 Ariz. 392, ¶ 18, 71 P.3d at 924,
quoting Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d at 307 (alteration in
Rodriguez). Based on errors of law in interpreting and applying § 13-
501, however, the respondent abused his discretion in finding the
evidence insufficient, given the record before him. See State v.
George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App. 2003) (matters of
statutory interpretation present questions of law, which appellate
court reviews de novo).

¶15          Section 13-501 was enacted in 1997 in order to effectuate
and implement article 4, pt. 2, § 22 of the Arizona Constitution, a
constitutional amendment that took effect after Arizona voters
passed the Juvenile Justice Initiative, or Proposition 102. 1997 Ariz.
Sess. Laws, ch. 220, § 72; see State v. Davolt, 207 Ariz. 191, ¶ 100, 84
P.3d 456, 479 (2004); see also Rodriguez, 205 Ariz. 392, ¶ 12, 71 P.3d at
923. The amendment’s “stated intent . . . was to make possible more
effective and more severe responses to juvenile crime”; accordingly,
it required the state to prosecute juveniles as adults in specified
circumstances. Davolt, 207 Ariz. 191, ¶ 100, 84 P.3d at 479; see also In
re Cameron T., 190 Ariz. 456, 459, 949 P.2d 545, 548 (App. 1997). The
amendment mandated, inter alia, that “[j]uveniles 15 years of age or
older who are chronic felony offenders as defined by statute shall be
prosecuted as adults.” Ariz. Const. art. IV, pt. 2, § 22(1). Section 13-
501 specifies the circumstances in which juveniles must be charged
as adults, and defines which are chronic felony offenders. See In re
Timothy M., 197 Ariz. 394, ¶ 23, 4 P.3d 449, 454 (App. 2000).

¶16           “Our primary task in interpreting statutes is to give
effect to the intent of the legislature.” In re Estate of Winn, 214 Ariz.
149, ¶ 8, 150 P.3d 236, 238 (2007). The best indicator of that intent is
that statute’s plain language. State v. Streck, 221 Ariz. 306, ¶ 7, 211
P.3d 1290, 1291 (App. 2009). We interpret a statute according to the
ordinary meaning of its terms “‘unless a specific definition is given
or the context clearly indicates that a special meaning was

                                   9
                          STATE v. LEE
                        Opinion of the Court

intended.’” State v. Jones, 222 Ariz. 555, ¶ 14, 218 P.3d 1012, 1016
(App. 2009), quoting Trustmark Ins. Co. v. Bank One, Ariz., NA, 202
Ariz. 535, ¶ 27, 48 P.3d 485, 491 (App. 2002). When the language of a
statute is clear and unambiguous, we need not look further to
determine the statute’s meaning and apply its terms as written. City
of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d
219, 225 (App. 2008). Only if the language is unclear or ambiguous
do we employ principles of statutory construction to determine the
legislature’s intent. Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 3, 150
P.3d 773, 774 (App. 2007) (employing principles of construction and
considering statute’s context, language, spirit, any stated or implicit
purpose, and historical background).

¶17          Section 13-501(A) and (H)(2) are clear. Together, they
require adult prosecution of a juvenile who is fifteen, sixteen, or
seventeen years of age; accused of committing a felony; and who is a
chronic felony offender. § 13-501(H). A chronic felony offender is
“a juvenile who has had two prior and separate adjudications and
dispositions for conduct that would constitute a historical prior
felony conviction if the juvenile had been tried as an adult.” § 13-
501(H)(2).    Section 13-105(22) defines historical prior felony
conviction as “[a]ny class 4, 5 or 6 felony . . . that was committed
within the five years immediately preceding the date of the present
offense.” Cf. State v. Christian, 205 Ariz. 64, ¶¶ 11-13, 66 P.3d 1241,
1244-45 (2003) (finding repetitive sentencing statute, including
definition of historical prior felony conviction, clear and
unambiguous).

¶18           The structure of the sentence defining chronic felony
offender in § 13-501(H)(2) is somewhat awkward because it is not
“conduct” that may “constitute a historical prior felony conviction,”
rather it is a conviction based on conduct. The statute is clear
nevertheless. Effectuating the constitutional provision adopted by
voters, it requires a juvenile to be prosecuted as an adult on a felony
charge if the juvenile previously was adjudicated delinquent for two
or more felonies for acts that would be felonies if the juvenile had
committed those acts as an adult and had been “tried” and
convicted accordingly.




                                  10
                          STATE v. LEE
                        Opinion of the Court

¶19           Section 8-341, which prescribes the disposition
alternatives for juveniles adjudicated delinquent, is consistent with
and complements § 13-501(H). It provides in subsections (C) and (E)
that first-time or repeat felony offenders must be given notice of the
consequences of the felony adjudications. See In re Nickolas T., 223
Ariz. 403, ¶ 6, 224 P.3d 219, 221 (App. 2010) (acknowledging plain
language best reflects legislative intent and related statutes must be
construed as harmonious and consistent). Section 8-341(V)(1)
defines a first-time felony offender as a “juvenile who is adjudicated
delinquent for an offense that would be a felony offense if
committed by an adult.” Section 8-341(V)(2) defines repeat felony
offender as a juvenile “adjudicated delinquent for an offense that
would be a felony offense if committed by an adult” and who had
already “been adjudicated a first time felony juvenile offender.”

¶20          Possession or use of a small amount of marijuana and
possession of drug paraphernalia are class six felonies. See §§ 13-
3405(A)(1), (B)(1); § 13-3415(A). That is so regardless of whether
committed by a juvenile or an adult. Based on § 13-105(22), class six
felonies may constitute historical prior felony convictions; thus, the
legislature expressly provided that class six felonies may be the basis
for determining a juvenile is a chronic felony offender under § 13-
501 or establishing that an adult defendant is a repetitive felony
offender for sentencing purposes. See A.R.S. § 13-703.

¶21           L.N. argues that “[a] crime that might have been
charged by the prosecutor or sentenced by the trial court as a
misdemeanor [is not] a historical prior felony conviction within the
purview of § 13-501(H)(2), because that statute requires the State to
prove that the prior adjudications would have been felonies.” He
maintains that, because the PCAO had a policy of charging adults
who commit similar offenses with misdemeanors in some
circumstances, the respondent judge did not abuse his discretion in
finding the state had the burden of establishing his prior felony
adjudications “would have been felonies,” not misdemeanors, and
that it had failed to sustain that burden.

¶22          Section 13-604(A) permits trial courts to designate a
class six felony as a class one misdemeanor and sentence the
defendant accordingly. Section 13-604(B) requires trial courts to

                                  11
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                        Opinion of the Court

designate such an offense a misdemeanor when the prosecuting
attorney charges a class six felony as a class one misdemeanor. That
the legislature has given judges and prosecutors this discretion does
not change the nature and class of an offense upon conviction or
adjudication. L.N. was charged and adjudicated based on his
admission that he had committed two class six felonies, and, if he
were “tried” on such charges as he had been charged by
delinquency petition, L.N. would have been convicted of class six
felonies.8

¶23           We presume the legislature was aware of § 13-604 or its
precursor, A.R.S. § 13-702(H), when it enacted §§ 13-501, 13-105(22),
and 13-703. 2008 Ariz. Sess. Laws, ch. 301, §§ 16, 24; 1993 Ariz. Sess.
Laws, ch. 255, § 11 (renumbering as § 13-702(G)), see State v. Garza
Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990); State v.
Hamblin, 217 Ariz. 481, ¶ 11, 176 P.3d 49, 52 (App. 2008). Yet it
included class six felonies among the felonies that may serve as
historical prior felony convictions and as the basis for finding a
juvenile is a chronic felony offender. Had the legislature wanted to
carve out an exception for class six felonies that might have been
charged or designated as misdemeanors pursuant to § 13-604, it
could have, and, presumably would have, done so in § 13-501. See
In re Casey G., 223 Ariz. 519, ¶ 7, 224 P.3d 1016, 1018 (App. 2010)
(legislature presumed to say what it means; had legislature intended


      8The  minute entries show that at the time L.N. admitted to the
felony possession of drug paraphernalia alleged in the December 19,
2012 delinquency petition, he also admitted to possession of
marijuana and possession of drug paraphernalia in connection with
an April 3, 2013 petition; these offenses were adjudicated as class
one misdemeanors. Implicitly, then, a prosecutor exercised his or
her discretion to charge the offenses that resulted in the first and
repeat felony adjudications as felonies. The record therefore belies
L.N.’s contention that juveniles are charged with class six felonies
for these offenses and only adults are not. It also refutes his equal
protection claim, which he contends is an independent basis upon
which we may deny the state relief. We therefore do not address
that claim further.


                                  12
                           STATE v. LEE
                         Opinion of the Court

definition of “predicate felony for purposes of A.R.S. § 13–705 . . . to
include delinquency adjudications for acts that otherwise would
constitute dangerous crimes against children if committed by an
adult,” it would have so provided). The legislature made clear in
§ 13-604(A) how class six felonies are to be regarded,
notwithstanding the discretion it afforded judges and prosecutors,
stating, “[t]he offense shall be treated as a felony for all purposes
until such time as the court may actually enter an order designating
the offense a misdemeanor.” See State v. Russell, 226 Ariz. 416, ¶¶ 6-
8, 249 P.3d 1116, 1117-18 (App. 2011) (language of § 13-604 clear and
unambiguous).9

¶24          Our supreme court’s decision in In re Marquardt, 161
Ariz. 206, 778 P.2d 241 (1989), further supports our conclusion. In
that case, the court addressed whether an Arizona judge who had
been convicted of misdemeanor possession of marijuana in Texas
had been convicted of a “crime punishable as a felony under


      9 We   note, however, because of differences in the operative
language of A.R.S. § 13-703(B)(2) and § 13-501(H), a class six felony
initially regarded as a historical prior felony conviction ultimately
might not be. Section 13-703 provides that a defendant who “stands
convicted of a felony” and has one or more “historical prior felony
conviction” falls within a certain repetitive offender category and is
subject to specified sentencing parameters. Consequently, a felony
that is designated a misdemeanor before sentencing on the current
offense cannot constitute a historical prior felony conviction. See
State v. Barr, 217 Ariz. 445, ¶ 12, 175 P.3d 694, 697 (App. 2008). But
under § 13-501(H)(2), the juvenile’s status as a chronic felony
offender must exist at the time he or she commits the offense that is
the subject of the adult prosecution. We need not decide whether a
class six, open-ended felony adjudication subsequently designated a
misdemeanor would change a juvenile’s initial status as a chronic
felony offender; here, the prior adjudications were charged and
adjudicated as felonies, and the juvenile court denied L.N.’s motion
to re-designate them as misdemeanors before the respondent judge
made his final determination and decided the state had not proved
L.N. was a chronic felony offender.


                                  13
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                         Opinion of the Court

Arizona or federal law” within the meaning of article 6.1, § 2, Ariz.
Const., and therefore was subject to disqualification for that offense.
Marquardt, 161 Ariz. at 208, 778 P.2d at 243. The court concluded
that although A.R.S. § 13-702(H), the precursor to § 13-604, see 2008
Ariz. Sess. Laws, ch. 301, §§ 16, 24; 1993 Ariz. Sess. Laws, ch. 255,
§ 11, gave prosecuting attorneys the discretion to treat and charge
possession of a small amount of marijuana as a misdemeanor, that
did not mean the offense was not “punishable as a felony.”
Marquardt, 161 Ariz. at 209, 778 P.2d at 244. The court stated:

              We do not believe the definition of what is
              “punishable as a felony” may vary with the
              policies and procedures adopted or
              discarded from time to time by the
              particular     county    attorney   having
              jurisdiction over the offense and offender.
              In our view, the words “punishable as a
              felony” refer to the maximum punishment
              that might be imposed for the conduct
              involved and not to the usual routine of
              prosecutorial discretion on how or whether
              to charge at all.

Id.

¶25          In State v. Clough, 171 Ariz. 217, 219, 829 P.2d 1263, 1265
(App. 1992), this court relied on Marquardt in determining whether a
felony conviction from a foreign jurisdiction satisfied the
requirements of Arizona’s former repetitive sentencing statute in
light of the possibility that the offense could have been charged or
designated a misdemeanor. Before it was renumbered as § 13–703
and then amended in 2012,10 § 13-604(I) permitted a conviction from
a foreign jurisdiction to serve as a historical prior felony conviction
for sentence-enhancement purposes only if the offense was such
that, “if committed within this state would be punishable as a

      10See
          2012 Ariz. Sess. Laws, ch. 190, §§ 1–2; 2008 Ariz. Sess.
Laws, ch. 301, §§ 15, 28; 1993 Ariz. Sess. Laws, ch. 255, § 7
(renumbering § 13-604(I) as 13-604(N)).


                                  14
                          STATE v. LEE
                        Opinion of the Court

felony”; the analysis required ”strict conformity between the
elements of the [foreign] felony and the elements of some Arizona
felony.” Clough, 171 Ariz. at 219, 829 P.2d at 1265. Thus, this court
observed in Clough,

            Marquardt dictates that we look to the
            defendant’s conduct in [the foreign
            jurisdiction], and if that same conduct
            could, without taking into account the
            possibility that the prosecutor might charge
            the crime as a misdemeanor, be punishable
            in Arizona as a felony, then the prior
            conviction may be used to enhance the
            sentence.

Id.

¶26          Similarly, in State v. Russell, 226 Ariz. 416, ¶¶ 2-3, 12,
249 P.3d 1116, 1117, 1118 (App. 2011), this court concluded the trial
court had not erred by revoking the probation of a defendant on
intensive probation, as required by A.R.S. § 13-917(B), based on his
having used marijuana, a class six felony, notwithstanding the
possibility that under § 13-604(A), a court might designate that
felony a misdemeanor. This court concluded that “the trial court’s
discretion to designate a felony as a misdemeanor applies only after
a defendant is convicted of a class 6 felony.” Russell, 226 Ariz. 416,
¶ 8, 249 P.3d at 1118. As we stated, “the trial court found that the
State proved by a preponderance of the evidence that [the
defendant] used marijuana,” and that offense is a class six felony
under § 13-3405(B)(1). Russell, 226 Ariz. 416, ¶ 11, 249 P.3d at 1118.

¶27           The possibility that the state could have charged these
offenses as misdemeanors does not alter the felony designation of
the offenses when L.N. was adjudicated delinquent for them.
Moreover, the record suggests the state had considered whether to
charge these offenses as misdemeanors and chose to prosecute them
as felonies. 11 And, as we have noted, the juvenile court denied

      11 We assume the prosecutor exercised such charging
discretion based on the fact that L.N. had been charged with

                                  15
                           STATE v. LEE
                         Opinion of the Court

L.N.’s request to designate the felonies as misdemeanors prior to the
respondent’s ruling. For these reasons, the respondent judge erred
when he required the state to establish that L.N. would have been
charged with felonies had he been an adult when he committed
these offenses. Having erred on a question of law, the respondent
thereby abused his discretion, warranting special-action relief. See
Potter v. Vanderpool, 225 Ariz. 495, ¶ 14, 240 P.3d 1257, 1262 (App.
2010) (when judge “err[s] as a matter of law” he abuses discretion);
see also Ariz. R. P. Spec. Actions 3(c) (special action relief appropriate
when judge abuses discretion).

                              Conclusion

¶28         Based on the foregoing, we conclude the respondent
judge abused his discretion in finding the state did not sustain its
burden of proving by a preponderance of the evidence that L.N. is a
chronic felony offender under § 13-501(H)(2). Therefore, having
accepted jurisdiction of this special action, we grant relief and
reverse the respondent’s order granting L.N.’s motion for
reconsideration or redetermination of his chronic felony offender
status.




misdemeanor possession of marijuana and possession of drug
paraphernalia on two other occasions.


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