Tag Archives: criminal law

Criminal Plea Agreement Restricts Medical Marijuana

Apparently, Yavapai County Attorney Shelia Polk, does not think that those who plead guilty to crimes should be allowed to consume marijuana.

The Yavapai County Attorney’s Office recently started using a blanket marijuana prohibition for all plea agreements.

Defendant shall not buy, grow, possess, consume, or use marijuana in any form, whether or not Defendant has a medical marijuana card issued by the State of Arizona pursuant to A.R.S. § 36-2801, et seq.

Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).

Once the County Attorney adopted the new anti-marijuana clause for all plea agreements Arizona Superior Court Judge Cele Hancock struck down plea bargain. Judge Hancock found among other things it is a violation of judicial authority under the separations of powers and the rules of criminal procedure.  Sheila Polk did not agree.  The County Attorney then notified Judge Hancock that she would find another judge, who would be more agreeable to the blanket anti-marijuana provision, for all change of plea agreements.

The County Attorney filed a special action and the Arizona Court of Appeals intervened in the matter.

Arizona’s Medical Marijuana Act

Part of the reason the blanket prohibition of marijuana in plea agreements is surprising is because marijuana is legal in Arizona for medicinal purposes.

In 2010, the voters of Arizona approved Proposition 203 by just more than 50% of the vote.  The law is codified as the Arizona Medical Marijuana Act (AMMA), § 36-2801 et seq.  (Et seq. is a legal term that means and following.  It basically means this is the first in a series of laws on the subject, so continue reading the following laws in that chapter.)

The law removes state level criminal penalties for the use and possession by patients who have “written certification” from their doctor for the state-approved conditions — a doctor in Arizona does not have complete discretion to prescribe marijuana for any condition.

Even though medical marijuana is legal in Arizona and nineteen other states, it is still illegal on the federal level.  The contradictory stances taken by the states and federal government provides unclear what is permissible legally.  States argue that it is within their right as a state to decide whether to legalize marijuana or not.  The federal government argues that it is not a state decision, but a federal decision.  There is no judicial consensus on how to treat this states’ rights argument.  However, the Department of Justice has said despite federal law, people who use medical marijuana in accordance with their state’s laws will not face federal prosecution.  Marijuana is still illegal in any way, shape or form federally, the federal government said for now it will respect the state’s decisions.

Plea Agreements

Plea agreements are just signed, written contracts between prosecutors and defendants.  Prosecutors are able to save resources and avoid trials with guilty pleas.  While defendants are likely to receive a lesser sentence than if they went to trial.  Each side gets something out of the bargained for agreement.

According to the United States Bureau of Justice Assistance plea bargains occur in about 95% of federal criminal cases.  It is unclear what the rate is for Arizona, but it is generally accepted that plea bargaining rates in all states are very high.

In Arizona, plea agreements are covered by Rule 17.4 of the Arizona Rules for Criminal Procedure.

The parties may negotiate concerning, and reach an agreement on, any aspect of the case.

— Ariz. R. Crim. P. 17.4(a).

The rule is explained in the comments that the parties may make any agreement they wish, but the court still has to accept the agreement.  Nothing in the plea agreement making process is intended to restrict the court’s duty and power to determine a just and proper sentence.

This is why Judge Hancock said the blanket anti-marijuana provision was a violation of the separation of powers.  Any blanket provision in plea agreements restricts a judge’s ability to determine what is a fair and proper sentence.

Court of Appeals Decision

While the issue of a medical marijuana provision in plea agreements may be a new issue to Arizona courts, the use of blanket provisions or treating all defendants the same has been decided in the past.

The prosecutor has a duty to make an individualized determination of what is reasonably beneficial to the public good given the nature of the specific defendant and crimes and trial judges are required to give ‘individualized consideration’ to plea agreements presented to them.

Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).

The Court relied heavily upon Espinoza v. Martin, 894 P.2d 688, 689 (Ariz. 1995).  In Espinoza, a group of criminal judges on the Superior Court decided they would no longer accept “stipulated agreements,” (a stipulated agreement in this case is where the prosecutor and defendant agree to a specific punishment). The policy stated that quadrant B judges would no longer accept any plea agreements containing stipulated sentences because sentencing “is a judicial function which should not be subjected to limitations which are imposed by the parties, but not required by law.”  Id.  The Arizona Supreme Court held it is within the judge’s purview to reject individual pleas, but “groups of judges may not  implement policies to automatically reject all such plea agreements.” Id.

The state of Arizona has recognized for years that each plea agreement must be analyzed individually.

The Arizona Court of Appeals applied this logic to prosecutors.  Prosecutors need to look at each situation individually and cannot have blanket clauses.  “A blanket policy that includes a marijuana provision in all plea agreements will not satisfy the prosecutor’s duty to make an individualized determination of what is reasonably beneficial to the public good given the nature of the specific defendant and crimes.” Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).


Should a defendant’s conviction should be ended if he dies during a post-conviction proceeding?

The Arizona Supreme Court decided an interesting issue: whether a defendant’s conviction should be ended if he dies during a post-conviction proceeding.

The background is the defendant was tried and convicted in a jury trial of first-degree murder and attempted murder.  Upon appeal, the Arizona Supreme Court affirmed the conviction and the United States Supreme Court denied certioria.  Then defendant timely filed an Arizona Criminal Procedure Rule 32 petition.  However, before the Superior Court could decide whether to accept the petition or not, the defendant died.  Because of the defendant’s death, the Superior Court Judge dismissed the Rule 32 petition, the indictment, and the conviction.

The problem is  the defendant claimed ineffective assistance of counsel in the Rule 32 proceeding.  This argument may or may not have been persuasive — it is a very high standard to prove ineffective assistance of counsel.  However, procedurally, the defendant could not make the claim of ineffective assistance of counsel during the direct appeal.  Direct appeals are based entirely on record created at the trial court level. Since whether the counsel effectively did her job or not is not a matter that was argued in the trial court, it is an argument that cannot be made on direct appeal (claims that not made based entirely on the trial court record are referred to as collateral attacks).  The Arizona Supreme Court noted that:

“A Rule 32 petition exists ‘separate and apart from the right to appeal’ and is ‘a collateral attack upon the judgment.’ Thus, following a conviction, a defendant has the right to challenge the sufficiency of evidence and to assert any trial errors through direct appeal.” State v. Glassel, Cr-13-0060-AP ¶9 (2013) (quoting State v. Carriger, 692 P.2d 991, 994, 997(1984)).

The Arizona Supreme Court held the defendant received all of his constitutional rights and protections due to him because of the completion of the direct appeal, which is constitutionally guaranteed. Post-conviction relief is not constitutionally guaranteed, thus the conviction and the indictment would stand.

The problem I have with the court’s holding is the right to effective assistance of counsel is guaranteed by Sixth Amendment to the United States Constitution via Strickland v. Washington, 466 U.S. 668 (1984).  Reasonable effective assistance of counsel is guaranteed, even if post-conviction relief is not. The United States Supreme “Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984).  However, nowhere in the Glassel opinion did the Arizona Supreme Court address the right to reasonably effective counsel is found under the Sixth Amendment and denying the defendant of the chance to make that claim, the Arizona Supreme Court effectively waived the defendant’s Sixth Amendment rights for him.

State v. Glassel, No. Cr-13-0060-AP (2013).

The Capital Criminal Process – Trial Through Federal Habeas