                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                      BO DANIEL WYATT, Petitioner.

                         No. 1 CA-CR 16-0025 PRPC
                              FILED 8-24-2017


    Petition for Review from the Superior Court in Maricopa County
                        Nos. CR2011-123468-001
                             CR2011-124546-001
                   The Honorable Jose S. Padilla, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Petitioner
                             STATE v. WYATT
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


C R U Z, Judge:

¶1           Petitioner Bo Daniel Wyatt petitions this court for review
from the denial of his petition for post-conviction relief of-right. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

               FACTUAL AND PROCEDURAL HISTORY

¶2             This matter involves two different cases and the Arizona
Medical Marijuana Act (“AMMA”). Arizona voters enacted the AMMA
through ballot initiative “Proposition 203.” State v. Gear, 239 Ariz. 343, 344,
¶ 2, 372 P.3d 287, 288 (2016). The AMMA became effective December 14,
2010, and is codified in Arizona Revised Statutes (“A.R.S.”) sections 36-2801
through 2819. A.R.S. § 36-2801 (2010).

¶3            In the first case, Wyatt pled guilty to attempt to commit
production of marijuana as an undesignated offense. The superior court
placed Wyatt on three years’ probation.1 In the second case, Wyatt pled
guilty to endangerment, a Class 6 felony, and possession or use of
marijuana, a Class 1 misdemeanor. The same court sentenced Wyatt to one
year imprisonment for endangerment and placed him on three years’
probation for possession. The court further ordered the terms of probation
in the two cases to run concurrently. Wyatt was represented by the same
attorney in both cases.

¶4              Wyatt filed a timely, consolidated petition for post-conviction
relief of-right in both cases. He argued his counsel was ineffective when he
failed to investigate defenses available for the two marijuana counts


1       The superior court will have the option to designate the offense as a
misdemeanor if Wyatt successfully completes his probation. Ariz. Rev.
Stat. § 13-604(A).




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                            STATE v. WYATT
                           Decision of the Court

pursuant to the AMMA, and that this ineffectiveness rendered Wyatt’s
pleas involuntary.2 The superior court found Wyatt presented colorable
claims for relief and held a two-day evidentiary hearing, after which the
court denied relief. Wyatt now seeks review.

                               DISCUSSION

¶5            To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash,
143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). To show prejudice, a defendant
must show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.

¶6             “[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (citation and internal quotation marks omitted). To do
this, a defendant must show that counsel’s performance fell outside the
acceptable “range of competence” and failed to meet “an objective standard
of reasonableness.” Id. at 687-88. “In short, reviewing courts must be very
cautious in deeming trial counsel’s assistance ineffective when counsel’s
challenged acts or omissions might have a reasonable explanation.” State
v. Pandeli, 242 Ariz. 175, 181, ¶ 7, 394 P.3d 2, 8 (2017).

¶7            Finally, we will affirm a superior court’s ruling after an
evidentiary hearing if the ruling is based on substantial evidence. State v.
Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). We may also affirm
a decision of a superior court for any basis supported by the record. State
v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).



2      Wyatt’s petition below also presented claims that he was actually
innocent of the marijuana counts and that there was an insufficient factual
basis for his plea to endangerment. Because Wyatt does not present these
issues for review, we do not address them. Wyatt’s petition also presented
a claim that the superior court erred when it ordered Wyatt to pay for DNA
testing. The State conceded error and the superior court vacated the order.
Wyatt’s claim that the court failed to address this issue is, therefore,
incorrect.


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                             STATE v. WYATT
                            Decision of the Court

I.     The First Case

¶8          Wyatt argues his counsel was ineffective in the first case
because counsel failed to recognize that Wyatt had a defense pursuant to
the now repealed “affirmative defense” provision of the AMMA. This
provision was formerly codified in A.R.S. § 36-2812 (2010).

¶9               The affirmative defense in A.R.S. § 36-2812 was a temporary
“interim provision” that created a defense to offenses based on the use or
possession of marijuana. State v. Liwski, 238 Ariz. 184, 188 n.2, ¶ 17, 358 P.3d
605, 609 n.2 (App. 2015). This section allowed a qualifying patient to “assert
the medical purpose for using marijuana as a defense to any prosecution of
an offense involving marijuana intended for a qualifying patient’s medical
use . . . .” Initiative Measure, Prop. 203, § 3 (2010) (adding A.R.S. § 36-2812).
The defense was presumed valid in relevant part if (1) a physician had
determined the patient would benefit from the medical use of marijuana;
(2) the patient possessed no more marijuana than was reasonably necessary
to treat the medical condition; (3) all marijuana plants were contained “in
an enclosed locked facility”; and (4) the patient possessed, cultivated,
manufactured, used or transported the marijuana solely to treat or alleviate
the patient’s debilitating medical condition. Id. Section 36-2812 was in
effect for only four months, however, because it was automatically repealed
in April 2011 when the Arizona Department of Health Services began
issuing the patient identification cards referenced in the “immunity
provision” of the AMMA at A.R.S. § 36-2811. Id. at § 5. As discussed more
fully below, A.R.S. § 36-2811 also provides a defense to the prosecution for
the use or possession of marijuana.

¶10           Wyatt committed the offense in the first case on February 21,
2011, just over two months after the AMMA became effective. Law
enforcement officers found six marijuana plants in Wyatt’s apartment
bedroom. At that time, the Department of Health Services was not yet
issuing patient identification cards pursuant to the AMMA. A physician
had already determined on February 1, 2011, however, that Wyatt would
benefit from the medical use of marijuana. That physician provided Wyatt
a signed “recommendation” for medical treatment with marijuana. Wyatt
argues counsel should have realized that pursuant to A.R.S. § 36-2812, the
physician’s written recommendation for medical use of marijuana was a
complete defense to the charge of production of marijuana as alleged in the
first case.

¶11           We deny relief on this issue because counsel testified that he
did not believe A.R.S. § 36-2812 afforded Wyatt a viable defense to the first


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                              STATE v. WYATT
                             Decision of the Court

case. As noted above, the affirmative defense required that the marijuana
plants be contained in an enclosed, locked facility. “Enclosed, locked
facility” is defined as a “closet, room, greenhouse or other enclosed area
equipped with locks or other security devices that permit access only by a
cardholder.” A.R.S. § 36-2801(6). Counsel did not believe that an apartment
bedroom was a “facility” as defined. Counsel also noted there was
information that the bedroom was not locked, the door may not have even
been closed, and Wyatt’s mother had access to the apartment. Finally,
counsel testified the only defense Wyatt offered for why the marijuana
plants were in his apartment was that they belonged to his mother. The
reasonableness of counsel’s actions may be determined by the information
supplied to counsel by the defendant. Strickland, 466 U.S. at 691. The
superior court did not err when it found counsel’s performance regarding
the first case did not fall below objectively reasonable standards. For the
same foregoing reasons, we find the superior court did not err when it
found that Wyatt’s plea was knowingly, intelligently, and voluntarily
entered.

II.    The Second Case

¶12              Wyatt argues his counsel was ineffective in the second case
because counsel failed to recognize that Wyatt had a defense pursuant to
the “presumption of medical use” provisions of A.R.S. § 36-2811. This
section has been described as the “immunity provision” of the AMMA.
Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 7, 347 P.3d 136, 139 (2015).
A.R.S. § 36-2811 provides in relevant part that a “registered qualifying
patient . . . is not subject to arrest, prosecution or penalty in any manner . . .
[f]or the registered qualifying patient’s medical use of marijuana pursuant
to this chapter,” so long as the patient complies with the provisions of the
AMMA. A.R.S. § 36-2811(B)(1). A.R.S. § 36-2811 also provides in relevant
part that there is a presumption that a qualifying patient is engaged in the
medical use of marijuana as authorized by AMMA so long as the patient
possesses a “registry identification card” from the Arizona Department of
Health Services and does not possess more than the allowable amount of
marijuana. A.R.S. § 36-2811(A)(1). The presumption is rebuttable. A.R.S.
§ 36-2811(A)(2).

¶13           Wyatt committed the offenses in the second case on May 15,
2011, when he led public safety officers on a prolonged motor vehicle chase,
after which investigators found marijuana in Wyatt’s vehicle. By this time,
the Department of Health Services had begun issuing identification cards
and A.R.S. § 36-2812 had been automatically repealed. Wyatt had used his
physician’s recommendation to apply for a patient identification card and


                                        5
                             STATE v. WYATT
                            Decision of the Court

the Department of Health Services approved his application on May 5, 2011.
Wyatt did not receive his card from the Department of Health Services until
several weeks after his arrest in the second case.

¶14            We deny relief on this issue because counsel testified that he
did not believe A.R.S. § 36-2811 afforded Wyatt a defense to the charge of
possession or use of marijuana in the second case. Counsel knew that Wyatt
did not actually or constructively possess an identification card at the time
of his arrest. Further, Wyatt only told counsel that he had applied for an
identification card at the time of his second arrest. Counsel believed mere
application for a card not yet received was not sufficient to assert a defense
pursuant to A.R.S. § 36-2811. Finally, counsel testified Wyatt never told
counsel he received a card. Again, the reasonableness of counsel’s actions
may be determined by information the defendant provided to counsel.
Strickland, 466 U.S. at 691. The superior court did not err when it found
counsel’s performance regarding the second case did not fall below
objectively reasonable standards.3 For the same foregoing reasons, we find
the superior court did not err when it found that Wyatt’s plea regarding the
second case was knowingly, intelligently, and voluntarily entered.

                               CONCLUSION

¶15           We grant review but deny relief.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




3     We need not address counsel’s other reasons for not asserting the
defense.


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