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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 8-24-2017
STATE v. WYATT

Decision of the Court

2

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).
STATE v. WYATT

Decision of the Court

3

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.
STATE v. WYATT

Decision of the Court

4

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 
STATE v. WYATT

Decision of the Court

5

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 
STATE v. WYATT

Decision of the Court

6

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.

 

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

defense.