                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                     STATE OF ARIZONA, Appellee,

                                    v.

                        DUSTIN GILL, Appellant.

                          No. 1 CA-CR 15-0509
                            FILED 6-23-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-449134-001
               The Honorable Teresa A. Sanders, Judge

                              AFFIRMED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz and Christian Lueders, Rule 38(d) certified student
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant



                               OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Maurice Portley and Judge John C. Gemmill joined.
                             STATE v. GILL
                           Opinion of the Court

T H U M M A, Judge:

¶1           Dustin Gill appeals his conviction for possession or use of
marijuana, a Class 1 misdemeanor, arguing the superior court erred by
admitting Gill’s statements to a representative of the Treatment Assessment
Screening Center (TASC) program during a deferred prosecution. Because
Gill has shown no error, his conviction is affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In 2013, a security guard found Gill in a restroom holding
several grams of marijuana. The State charged Gill with one count of
possession or use of marijuana, a Class 6 felony. After the State reduced the
charge to a misdemeanor, and Gill rejected plea offers, the parties agreed
that the prosecution would be deferred while Gill participated in a TASC
program. See Ariz. Rev. Stat. (A.R.S.) § 11-361 (2016). 2

¶3              When entering the TASC program, a TASC representative
interviewed Gill and Gill filled out a “statement of facts” form. On that
form, which Gill and his attorney signed, Gill indicated he understood his
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and avowed that
“I fully understand that what I have written here may be used against me
in a court of law should I fail to satisfactorily complete the TASC program.”
When asked about “the facts of the offense,” Gill wrote on the form: “The
marijuana was found in the bathroom on the ground in my possession.”

¶4            Although Gill participated in the TASC program for a period
of time, he failed to complete the requirements and the State resumed
prosecution. After Gill then rejected another plea offer, he moved to
suppress the “statement of facts” form and any testimony from TASC
representatives regarding his admissions, claiming (as relevant here) they
were inadmissible because they were made in the course of plea
discussions.3 After full briefing, the superior court denied Gill’s motion.


1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

3Gill also argued to the superior court the statements were involuntary, an
argument he does not press on appeal and is not addressed here.


                                     2
                              STATE v. GILL
                            Opinion of the Court

After a bench trial, the court found Gill guilty, suspended his sentence and
placed him on one year of unsupervised probation. Gill timely appealed his
conviction. This court has jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and A.R.S. §§ 12–120.21(A)(1), 13–4031,
and –4033(A).

                               DISCUSSION

¶5             Gill argues information he provided to TASC was not
admissible at trial because they constitute “a statement made during plea
discussions with an attorney for the prosecuting authority if the discussions
did not result in a guilty plea or they resulted in a later-withdrawn guilty
plea.” Ariz. R. Evid. 410(a)(4); see also Ariz. R. Crim. P. 17.4(f) (noting
admissibility “of a plea, a plea discussion, and any related statement is
governed by” Ariz. R. Evid. 410). This court reviews the superior court’s
ruling on such an issue for an abuse of discretion. Lohmeier v. Hammer, 214
Ariz. 57, 60 ¶ 6 (App. 2006).

¶6            Gill’s argument fails for three reasons.

¶7            First, Gill did not provide information to TASC “during plea
discussions.” Ariz. R. Evid. 410(a)(4). Although Ariz. R. Crim. P. 17.4
governs plea negotiations and agreements and refers to Ariz. R. Evid. 410,
see Ariz. R. Crim. P. 17.4(f), the TASC program is part of a deferred
prosecution governed by Ariz. R. Crim. P. 38, which does not reference
Ariz. R. Evid. 410. Participating in a deferred prosecution program such as
TASC, then, is not a plea negotiation or agreement subject to Ariz. R. Crim.
P. 17.4 or Ariz. R. Evid. 410. In fact, Gill agreed to participate in the TASC
program, and provided the statements challenged here, after he rejected a
plea offer. Given that Gill rejected the plea offer before agreeing to
participate in the TASC program, there were no plea discussions ongoing
when he later provided TASC the statements he challenges here.

¶8            Second, there is no suggestion that Gill’s statements were
made “during plea discussions with an attorney for the prosecuting
authority.” Ariz. R. Evid. 410(a)(4). Gill has not shown that the TASC
representative he spoke with, and provided the written “statement of facts”
form to, was an attorney, let alone an attorney for the State as required by
Ariz. R. Evid. 410(a)(4).

¶9             Third, even if Gill’s statements met the requirements of Ariz.
R. Evid. 410(a)(4), Gill waived those protections. A defendant can
voluntarily waive the protections of Ariz. R. Evid. 410(a)(4). State v. Campoy,
220 Ariz. 539, 549-50 ¶¶ 30-34 (App. 2009) (citing United States v. Mezzanatto,


                                      3
                             STATE v. GILL
                           Opinion of the Court

513 U.S. 196, 210-11 (1995), which interpreted Fed. R. Evid. 410).4 Gill did
just that when he indicated he understood Miranda warnings listed on the
TASC form and wrote “yes” and initialed next to the following: “I have
made this statement without coercion and of my own free will. I fully
understand that what I have written here may be used against me in a court
of law should I fail to satisfactorily complete the TASC program.” Only
after that waiver did Gill provide the statements he challenges on appeal.

                             CONCLUSION

¶10          Because Gill has shown no error, his conviction is affirmed.




                                 :AA




4 As applicable here, Fed. R. Evid. 410 (1995), cited in Mezzanatto, is
substantially similar to the Ariz. R. Evid. 410 (2009), cited in Campoy, and
substantially similar to the current version Ariz. R. Evid. 410.


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