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

2

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 
STATE v. LEE

Opinion of the Court

3

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 
STATE v. LEE

Opinion of the Court

4

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 redesignate 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).
STATE v. LEE

Opinion of the Court

5

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

 

5At 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.
STATE v. LEE

Opinion of the Court

6

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 
STATE v. LEE

Opinion of the Court

7

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.
STATE v. LEE

Opinion of the Court

8

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.
STATE v. LEE

Opinion of the Court

9

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 
STATE v. LEE

Opinion of the Court

10

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.
STATE v. LEE

Opinion of the Court

11

¶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 
STATE v. LEE

Opinion of the Court

12

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.
STATE v. LEE

Opinion of the Court

13

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 

 

9We 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.
STATE v. LEE

Opinion of the Court

14

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)).
STATE v. LEE

Opinion of the Court

15

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 
STATE v. LEE

Opinion of the Court

16

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.