                                                                  FILED BY CLERK
                            IN THE COURT OF APPEALS                 NOV 30 2011
                                STATE OF ARIZONA
                                  DIVISION TWO                        COURT OF APPEALS
                                                                        DIVISION TWO



THE STATE OF ARIZONA,                        )    2 CA-CR 2011-0064
                                             )    DEPARTMENT A
                                Appellee,    )
                                             )    OPINION
            v.                               )
                                             )
LINDA ANN SIPLIVY,                           )
                                             )
                                Appellant.   )
                                             )


         APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR201000705

                        Honorable James L. Conlogue, Judge

                                    AFFIRMED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani, Joseph L. Parkhurst,
 and Kathryn A. Damstra                                                     Tucson
                                                             Attorneys for Appellee

Joel Larson, Cochise County Legal Defender
 By Richard M. Swartz                                                        Bisbee
                                                             Attorneys for Appellant


H O W A R D, Chief Judge.
¶1           Following a three-day jury trial, appellant Linda Siplivy was convicted of

transportation of methamphetamine for sale,1 two counts of possession of a narcotic drug,

possession of marijuana, and five counts of possession of drug paraphernalia, two of

which involved methamphetamine. The trial court sentenced Siplivy to presumptive,

consecutive and concurrent terms of imprisonment totaling 12.5 years. Counsel has filed

a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark,

196 Ariz. 530, 2 P.3d 89 (App. 1999), stating he has reviewed the record and has not

found any arguable issues to raise on appeal.2 Counsel has asked us to search the record

for “reversible error.” In searching the record for fundamental error, we found potential

error regarding the sentences for the offenses not involving methamphetamine and thus

directed the parties to file supplemental briefs on this issue, which they have. For the

reasons set forth below, we affirm.

¶2           Viewed in the light most favorable to sustaining the verdicts, the evidence

was sufficient to support each of the jury‟s findings of guilt. See State v. Tamplin, 195

Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). During an August 2010 traffic stop of the

vehicle Siplivy was driving, Cochise County Sheriff‟s deputies noticed Siplivy had “what

      1
         Although the jury found Siplivy guilty of two counts of possession of
methamphetamine for sale, and one count each of possession of methamphetamine and
transportation of methamphetamine for sale, the trial court entered judgment only on the
last offense.
      2
        Although defense counsel did not “raise” any arguable issues, in a footnote in the
opening brief he asserted, “[i]t appears that the sentence did not regard the provision of
A.R.S. § 13-901.01 [Proposition 200], in that there has been no allegation to indicate that
the non-methamphetamine related charges would not otherwise be probation mandatory.”
Counsel then concluded this issue “is usually taken up by a petition for Post[-]Conviction
Relief.”
                                            2
appeared to be an unnatural bulge or protrusion . . . [that] looked like male genitalia” in

the crotch area of her shorts. Searches of Siplivy and the vehicle yielded two plastic bags

that contained marijuana, “a glass smoking pipe with burn marks [and] white residue”

inside a small “zipper type pouch,” at least twenty “smaller postage stamp size Ziploc

bags and other various sized Ziploc bags” that contained crystal methamphetamine, and

“some pills,” later identified as morphine and oxycodone. The jury was presented with

evidence that methamphetamine in excess of nine grams, present here, along with

“smaller baggies,” usually indicates the owner intends to sell the drug, and that “most

people . . . smoke methamphetamine in a glass smoking device.”

¶3            In reviewing the record pursuant to Anders, we observed that, although

Siplivy ostensibly should have been placed on mandatory probation pursuant to A.R.S.

§ 13-901.01 for the six non-methamphetamine offenses, the trial court nonetheless

imposed prison terms for those offenses.        We thus directed the parties to submit

supplemental briefs on that issue.

¶4            “In 1996, Arizona voters enacted the Drug Medicalization, Prevention, and

Control Act, commonly referred to as Proposition 200, which is codified primarily in

[§] 13-901.01.” State v. Reinhardt, 208 Ariz. 271, ¶ 1, 92 P.3d 901, 902 (App. 2004).

“Proposition 200 was intended to divert nonviolent drug possessors to treatment and to

free prison space for drug dealers and violent offenders.” State v. Pereyra, 199 Ariz. 352,

¶ 11, 18 P.3d 146, 149 (App. 2001). Section 13-901.01 provides in relevant part that

“any person who is convicted of the personal possession or use of a controlled substance

or drug paraphernalia is eligible for probation” and shall be placed on probation, unless

                                            3
the person “[h]as been convicted three times of personal possession of a controlled

substance or drug paraphernalia,” or “[w]as convicted of the personal possession or use

of a controlled substance or drug paraphernalia and the offense involved

methamphetamine.” § 13-901.01(A), (H)(1), (4). The statute further provides that “[a]ny

person who has been convicted of . . . a violent crime” is ineligible for probation. § 13-

901.01(B).   The language of § 13-901.01 unambiguously provides that Siplivy was

ineligible for probation on the three methamphetamine offenses. However, the question

before us is whether Siplivy, who was convicted simultaneously of multiple offenses,

some of which otherwise would qualify for mandatory probation and some of which do

not, is entitled to mandatory probation for the qualifying offenses under § 13-901.01.3

We conclude she is not.

¶5            Because Siplivy did not object to her sentences below, she has waived the

right to relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz.

561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). However, “[i]mposition of an illegal sentence

constitutes fundamental error.” State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369

(App. 2002). In its brief filed at our direction the state concedes Siplivy should have

been sentenced pursuant to § 13-901.01 and the error was fundamental. However, at oral

argument, the state acknowledged § 13-901.01 is not a model of clarity and asserted

Siplivy is not entitled to mandatory probation under the statute, despite its previous

confession of error.

       3
        It is undisputed that, other than having been convicted of the instant offenses
involving methamphetamine, Siplivy qualifies for mandatory probation under § 13-
901.01.
                                             4
¶6            We review questions of statutory interpretation de novo.               State v.

Lewandowski, 220 Ariz. 531, ¶ 6, 207 P.3d 784, 786 (App. 2009). In construing statutes

adopted by initiative, such as § 13-901.01, our primary objective is to give effect to the

intent of the electorate. State v. Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006).

Accordingly, if the statute‟s language is unambiguous, we apply that language without

using other means of statutory construction, id., unless that interpretation would lead to

an absurd result, Calik v. Kongable, 195 Ariz. 496, ¶ 12, 990 P.2d 1055, 1058 (1999).

But, if the statute‟s language is ambiguous or unclear, “„we consider [its] context; its

language, subject matter, and historical background; its effects and consequences; and its

spirit and purpose.‟” Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d at 875, quoting Hayes v.

Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

¶7            In examining the plain language of § 13-901.01 we note the use of various

verb tenses throughout the statute. Subsection (H)(4), the focus of our inquiry here,

provides that a person who “[w]as convicted of” certain offenses involving

methamphetamine does not qualify for mandatory probation. Subsection (A) provides

“any person who is convicted of” certain offenses “is eligible for probation,” while

subsection (B) states that “[a]ny person who has been convicted of . . . a violent crime . . .

is not eligible for probation.” Additionally, subsection (H)(1) provides that a person who

“[h]ad been convicted three times of personal possession” does not qualify for mandatory

probation. The lack of clarity in verb tenses makes it more difficult to determine whether

the legislature intended any particular exception to apply to past offenses, only current



                                              5
offenses, or to a particular defendant. Looking to the plain language of the statute, we

find it is subject to more than one reasonable interpretation.

¶8            As it applies to this case, it is unclear whether a person like Siplivy, who

was convicted of possession involving methamphetamine, fails to qualify for mandatory

probation only on that particular offense, or on that offense and on all others that are part

of the same case, even those which otherwise qualify for mandatory probation under

§ 13-901.01. Because we conclude the statute is ambiguous on its face, we determine its

meaning instead by considering its context, subject matter, spirit, and purpose. See

Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d at 875.

¶9            In 2006, ten years after Proposition 200 was enacted, the Arizona State

Senate passed Senate Concurrent Resolution 1033, a resolution “enacting and ordering

the submission to the people of a measure relating to probation for methamphetamine

offenses,” which ultimately was codified as § 13-901.01(H)(4). That statute, approved by

the voters, provides that a person does not qualify for a mandatory sentence of probation

if he or she “was convicted of the personal possession or use of a controlled substance or

drug paraphernalia and the offense involved methamphetamine.” See S. Con. Res. 1033,

47th Leg. ¶ 1 (Ariz. 2006) (enacted). That language unambiguously provides that a

defendant who was convicted of personal possession, use, or possession of drug

paraphernalia involving methamphetamine does not qualify for mandatory probation

under § 13-901.01(A). Cf. Calik, 195 Ariz. 496, ¶¶ 20-21, 990 P.2d at 1060 (intent of

electorate clear from approval of subsequent initiative related to initial measure).



                                              6
¶10          Based on the following excerpt from the minutes of the 2006 House of

Representatives Committee on Judiciary Meeting on S.C.R. 1033, Senator Ken Bennett,

the sponsor of the resolution, clarified that the intent of the resolution was that

individuals who commit certain methamphetamine offenses may be sent to prison or jail:

             Since there was no real “hammer” of jail time to ensure that
             people would fulfill probationary measures for first and
             second offenses, in too many cases people would not follow
             through. This measure would go back to the voters to ask
             them if they would exclude methamphetamine so that
             incarceration is available upon first, second or third offenses
             to ensure these individuals get in treatment and counseling
             programs. [Bennett] stated that something is needed to
             ensure there is a reasonable opportunity to address this
             problem early on in the process.

House Judiciary Comm. Minutes, 47th Leg., 2d Reg. Sess. (Ariz. Mar. 30, 2006); see

Hernandez v. Lynch, 216 Ariz. 469, ¶ 15, 167 P.3d 1264, 1269 (App. 2007) (relying on

sponsor‟s comments as evidence of legislative intent); cf. Munroe v. Galati, 189 Ariz.

113, 119, 938 P.2d 1114, 1120 (1997) (“If there is any textual ambiguity, we believe

statements of those individuals and committees that managed and heard the bill provide

clear indication of their intent.”), abrogated by Geier v. Am. Honda Motor Co., Inc., 529

U.S. 861, 866 (2000).

¶11          Given the announced public policy concerning persons who commit

methamphetamine related offenses, we cannot conclude the legislature intended to

impose such incentives on the methamphetamine-related offenses, but not the other

associated offenses. We conclude, therefore, that the legislature intended to exclude




                                           7
defendants convicted of methamphetamine-related offenses from mandatory probation

rather than just excluding those offenses.

¶12           This court previously has addressed, albeit as to different offenses, whether

a defendant is entitled to mandatory probation when other simultaneous convictions

require a prison term. In State v. Givens, 206 Ariz. 186, ¶¶ 1, 7, 76 P.3d 457, 458-59

(App. 2003), we concluded that Givens, who was charged with and convicted of a violent

offense in the same proceeding as the drug offense that qualified for mandatory

probation, was not entitled to mandatory probation under § 13-901.01(B) (“person who

has been convicted of or indicted for a violent crime . . . is not eligible for probation as

provided for in this section”).4 We reasoned that Givens was “not in the category of

defendants the rehabilitative purpose of the statute was designed to serve” and that he

was “not exempt from potential incarceration.” Givens, 206 Ariz. 186, ¶ 7, 76 P.3d at

459. And notably, we further concluded Givens was not entitled to mandatory probation

under § 13-901.01 when he was convicted of a violent offense in the same proceeding as

the drug offense. Id.

¶13           Our ruling in Givens promoted the legislative intent to provide an

alternative to imprisonment for non-violent drug offenders, which Givens was not.

Similarly, as an individual convicted of possession of drug paraphernalia related to

methamphetamine, we conclude that Siplivy “is not in the category of defendant[] the

rehabilitative purpose of the statute was designed to serve.” See id. Siplivy will serve ten

       4
      The relevant portion of the statute has not changed since we ruled in Givens. See
1999 Ariz. Sess. Laws, ch. 261, § 11.

                                             8
years in prison on the transportation for sale of methamphetamine offense before the

sentences for the non-methamphetamine offenses begin. Therefore, Proposition 200‟s

intent to afford drug rehabilitation treatment without incarceration cannot be achieved in

this case.5 Accordingly, we conclude the trial court properly imposed prison terms, even

for the non-methamphetamine offenses, rather than imposing mandatory probation under

§ 13-901.01 for those offenses.     We additionally note that our ruling is limited to

defendants like Siplivy, who have been convicted simultaneously of methamphetamine

and non-methamphetamine offenses.

¶14          Pursuant to our obligation under Anders, we have searched the record for

fundamental, reversible error and have found none.       Therefore, we affirm Siplivy‟s

convictions and sentences.




                                             /s/ Joseph W. Howard
                                             JOSEPH W. HOWARD, Chief Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge



      5
       However, the trial court retained discretion to impose a term of probation if it
otherwise is available. See § 13-901.01(I).
                                            9
