IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA, 

Appellee, 

v.

DAVID LEE GREEN, 

Appellant. 

No. CR-18-0537-PR

Filed March 4, 2020

Appeal from the Superior Court in Pima County 

The Honorable Paul E. Tang, Judge 

No. CR 20163874-001 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

Opinion of the Court of Appeals, Division Two

245 Ariz. 529 (App. 2018)

AFFIRMED IN PART AND VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, O. H. Skinner, Solicitor General, 

Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Karen Moody 

(argued), Assistant Attorney General, Tucson, Attorneys for State of 

Arizona

Joel Feinman, Pima County Public Defender, Abigail Jensen (argued), 

Assistant Public Defender, Tucson, Attorneys for David Lee Green

Jared G. Keenan, Marty Lieberman, American Civil Liberties Union 

Foundation of Arizona, Phoenix; and Rhonda Neff, Kimerer & Derrick, 

P.C., Phoenix, Attorneys for Amicus Curiae American Civil Liberties Union 

Foundation of Arizona and Arizona Attorneys for Criminal Justice
STATE V. GREEN

Opinion of the Court 

2 

JUSTICE MONTGOMERY authored the opinion of the Court, in which 

CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and 

JUSTICES BOLICK, GOULD, LOPEZ, and BEENE joined.

JUSTICE MONTGOMERY, opinion of the Court:

¶1 We consider in this case whether the provisions of A.R.S. § 13-

901.01 apply to convictions for possession of drugs for sale and inchoate 

drug offenses, including solicitation to sell a narcotic drug. We hold that 

convictions for possession of drugs for sale, whether completed or inchoate, 

are not disqualifying convictions for purposes of determining eligibility for 

mandatory probation and drug treatment under § 13-901.01. Additionally, 

we hold that § 13-901.01 applies equally to qualifying inchoate and 

completed drug offenses.

I.

¶2 David Lee Green was convicted of possession of drug 

paraphernalia in 1994 and for solicitation to sell a narcotic drug in 2006. In 

2017, Green was convicted by a jury of several offenses, including two 

counts of possession of a narcotic drug and one count of possession of drug 

paraphernalia.

¶3 Before sentencing, Green filed a motion contending he should 

be sentenced to probation for his 2017 drug convictions under § 13-901.01. 

Green argued that sentencing him to prison without having an opportunity 

for probation with treatment would be inconsistent with the intent of § 13-

901.01 and contrary to the reasoning in previous court of appeals’ decisions. 

Green further argued that his 2006 conviction for solicitation to sell a 

narcotic drug did not qualify as a personal possession or use offense under

§ 13-901.01.1 Therefore, his 2017 drug convictions did not count as a third

personal possession or use conviction, commonly referred to as a “strike,” 

 

1 Green also challenged whether his 1994 conviction qualifies as a personal 

possession or use offense under § 13-901.01 but does not reassert that 

challenge here.
STATE V. GREEN

Opinion of the Court 

3 

leaving him eligible for probation and treatment. See State v. Gallagher, 205 

Ariz. 267, 268–69 ¶ 4 (App. 2003) (stating multiple convictions for 

possession of drugs and drug paraphernalia on the same occasion should 

be treated as one conviction for sentencing purposes under Proposition 

200). Accordingly, Green asserted that the court was required to place him 

on probation and order drug treatment. 

¶4 The trial court ruled that Green’s 2006 conviction for 

solicitation to sell a narcotic drug was a strike, relying on prior cases that 

held convictions for possession of drugs for sale, conspiracy to unlawfully 

possess drugs, and solicitation to possess a drug were strikes. As a result, 

Green was not eligible for mandatory probation and the trial court 

sentenced him to concurrent, mitigated prison terms for his 2017 drug 

convictions. 

¶5 The court of appeals reversed. It found that Green’s 2006 

conviction was not a personal possession or use conviction under the plain 

language of § 13-901.01, and that he was entitled to mandatory probation 

and drug treatment. State v. Green, 245 Ariz. 529, 534 ¶ 25 (App. 2018). 

¶6 We granted review because whether the provisions of § 13-

901.01 apply to possession of drugs for sale and inchoate drug offenses are 

recurring issues of statewide importance. We have jurisdiction under

article 6, section 5(3) of the Arizona Constitution.

II.

¶7 The State argues that the court of appeals’ decision is contrary 

to cases holding that possession of drugs for sale and inchoate drug offenses 

count as strikes and that the application of the plain language of the statute 

to exclude inchoate offenses from determining probation eligibility leads to 

an absurd result.

¶8 Whether § 13-901.01 applies to drug convictions is an issue of 

statutory construction subject to de novo review. State v. Francis, 243 Ariz. 

434, 435 ¶ 6 (2018). In interpreting statutes, we first look to the text itself. 

State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017). “[W]e must ‘strive to construe 
STATE V. GREEN

Opinion of the Court 

4 

a statute and its subsections as a consistent and harmonious whole.’” 

Hoffman v. Chandler, 231 Ariz. 362, 363 ¶ 7 (2013) (quoting State v. Wagstaff, 

164 Ariz. 485, 491 (1990)). “‘When the plain text of a statute is clear and 

unambiguous,’ it controls unless an absurdity or constitutional violation 

results.” Sell v. Gama, 231 Ariz. 323, 327 ¶ 16 (2013) (quoting State v. 

Christian, 205 Ariz. 64, 66 ¶ 6 (2003)). An interpretation is “absurd if it is so 

irrational, unnatural, or inconvenient that it cannot be supposed to have 

been within the intention of persons with ordinary intelligence and 

discretion.” State v. Estrada (Estrada II), 201 Ariz. 247, 251 ¶ 17 (2001) 

(quoting Perini Land Dev. Co. v. Pima County, 170 Ariz. 380, 383 (1992)).

¶9 Because initiatives are no less an exercise of the legislative 

power when carried out by the people than are statutes enacted by the 

legislature, we apply the same interpretive standards to initiatives as we do 

to statutes. See, e.g., Calik v. Kongable, 195 Ariz. 496, 500 ¶¶ 16–17 (1999). 

The “primary purpose” in construing a voter initiative “is to effectuate the 

intent of . . . the electorate that adopted it.” Id. at 498 ¶ 10 (quoting Jett v. 

City of Tucson, 180 Ariz. 115, 119 (1994)). 

¶10 Arizona voters enacted § 13-901.01 by approving the Drug 

Medicalization, Prevention, and Control Act of 1996, an initiative 

designated as Proposition 200. See Ariz. Sec’y of State, 1996 Publicity 

Pamphlet 25–37 (1996), https://azsos.gov/sites/default/files/1996-ballotpropositions.pdf. Section 13-901.01 established a graduated system of 

consequences for personal possession or use of a controlled substance

offense2 and excluded certain drug and other felony offenses from 

mandatory probation and drug treatment.

¶11 A court must impose probation with drug treatment and may 

not impose a term of incarceration for an offender’s first conviction for 

personal possession or use of drugs. See § 13-901.01(A). A court may 

impose additional terms of probation, including a maximum jail term of 

one year, on a second conviction. See § 13-901.01(F); see also Calik, 195 Ariz. 

 

2 Voters amended § 13-901.01 in 2002 to include drug paraphernalia among 

personal possession or use offenses. See

https://apps.azsos.gov/election/2002/Info/pubpamphlet/english/prop

302.htm. 
STATE V. GREEN

Opinion of the Court 

5 

at 499 ¶ 13 (discussing that the authority to impose additional terms of 

probation “within the jurisdiction of the court” includes the authority to 

impose a term of incarceration in jail pursuant to § 13-901(F)). Drug 

offenders are not eligible for mandatory probation and treatment if they 

have three or more strikes or their convictions involve the personal 

possession or use of methamphetamine. See § 13-901.01(H). Offenders with 

a prior conviction for a violent offense as defined at § 13-901.03 are also not 

eligible for mandatory probation. See § 13-901.01(B). Additionally, § 13-

901.01(C) provides that “[p]ersonal possession or use of a controlled 

substance shall not include possession for sale, production, manufacturing, 

or transportation for sale of any controlled substance.” 

¶12 We recognize that cases construing § 13-901.01 have reached 

results conflicting with the plain language of the statute and with each other 

regarding whether convictions for possession of drugs for sale and inchoate 

drug offenses qualify as strikes. See Goddard v. Superior Court, 191 Ariz. 402, 

404-05 ¶¶ 7-8, 14 (App. 1998) (holding that convictions for possession of 

drugs for sale count as strikes under § 13-901.01 despite language explicitly 

excluding possession for sale in subsection (C)); compare Stubblefield v. 

Trombino, 197 Ariz. 382, 383 ¶ 6 (App. 2000) (reasoning that it is illogical to 

apply § 13-901.01 to possession of narcotic drugs but not to the less serious 

offense of attempted possession of narcotic drugs); and State v. Guillory, 199 

Ariz. 462, 464 ¶ 6 (App. 2001) (finding it absurd to not include conspiracy 

to unlawfully possess drugs as a strike under § 13-901.01 because it is the 

same class offense covered by § 13-901.01); with State v. Ossana, 199 Ariz. 

459, 461–62 ¶ 11 (App. 2001) (rejecting Stubblefield’s application of § 13-

901.01 to attempted possession convictions and declining to count them as 

strikes); but see Raney v. Lindberg, 206 Ariz. 193, 199–200 ¶ 20 (App. 2003) 

(rejecting the contrary holding of Ossana and holding attempt offenses 

count as prior convictions because it was inconceivable voters would intend 

for attempt offenses to be eligible for probation but not count as strikes). 
STATE V. GREEN

Opinion of the Court 

6 

A.

¶13 Section 13-901.01 states: 

A. Notwithstanding any law to the contrary, any person who 

is convicted of the personal possession or use of a controlled 

substance or drug paraphernalia is eligible for probation. The 

court shall suspend the imposition or execution of sentence 

and place the person on probation.

B. Any person who has been convicted of or indicted for a 

violent crime as defined in § 13-901.03 is not eligible for 

probation as provided for in this section but instead shall be 

sentenced pursuant to chapter 34 of this title.

C. Personal possession or use of a controlled substance 

pursuant to this section shall not include possession for sale, 

production, manufacturing or transportation for sale of any 

controlled substance.

. . . . 

F. If a person is convicted a second time of personal 

possession or use of a controlled substance or drug 

paraphernalia, the court may include additional conditions of 

probation it deems necessary, including intensified drug 

treatment, community restitution, intensive probation, home 

arrest or any other action within the jurisdiction of the court.

. . . . 

H. A person is not eligible for probation under this section but 

instead shall be sentenced pursuant to chapter 34 of this title 

if the court finds . . .: 

1. Had been convicted three times of personal possession 

of a controlled substance or drug paraphernalia.
STATE V. GREEN

Opinion of the Court 

7 

¶14 Section 13-901.01, by its terms, distinguishes possession of 

drugs for personal use from drug sale or trafficking activity. Subsection (C)

states that “[p]ersonal possession or use of a controlled substance pursuant 

to this section shall not include possession for sale, production, 

manufacturing or transportation for sale of any controlled substance.” 

(emphasis added). See also Foster v. Irwin, 196 Ariz. 230, 233 ¶ 7 (2000) 

(noting that Proposition 200 differentiates non-commercial possession or 

use from commercial or potential commercial trafficking in controlled 

substances). Applying “personal possession” uniformly across each 

subsection of § 13-901.01 necessarily excludes the drug sale or trafficking 

activity listed in subsection (C) from the personal possession or use offenses 

addressed by the mandatory probation terms in subsections (A) and (F) and 

the probation eligibility provisions in (H). Therefore, subsection (H) does 

not apply to convictions for sale offenses. Accordingly, we disapprove 

Goddard’s holding that possession for sales convictions count as strikes. 

¶15 Our construction of § 13-901.01 does not, as the State 

contends, lead to an absurd result. Rather, our construction effectuates the 

purpose of Proposition 200 to provide treatment to substance abusers while 

excluding those convicted of drug sales and trafficking offenses. That an 

offender may have multiple prior convictions for possession of drugs for

sale and still be eligible for mandatory probation and drug treatment for a 

first personal possession or use offense is not “so irrational, unnatural, or 

inconvenient” that voters could not have intended that result. Estrada II, 

201 Ariz. at 251 ¶ 17. Proposition 200 did not limit drug treatment to users 

who had never engaged in selling drugs. Rather than reaching an absurd 

result, our interpretation promotes Proposition 200’s purpose to treat drug 

use with services and treatment rather than imprisonment for a substance 

abuser’s first two personal possession or use offenses.

B.

¶16 Section 13-901.01 does not, by its terms, address inchoate 

offenses. To determine whether § 13-901.01 applies to inchoate drug 

offenses, we must consider the intent of Proposition 200 and whether its

application to inchoate drug offenses leads to absurd results. 
STATE V. GREEN

Opinion of the Court 

8 

¶17 Voters sought to strengthen Arizona’s approach to drug 

control by addressing drug abuse as a public health issue. Specifically, 

voters wanted drug users to receive treatment through a court-supervised 

program with graduated consequences for repeated personal possession or 

use convictions. See Text of Proposed Amendment § 2, Proposition 200,

1996 Ballot Propositions. Those engaged in drug sales and trafficking are 

excluded from mandatory drug treatment and are subject to imprisonment. 

See id. Seeking to “free up space in our prisons so that there is room to 

incarcerate violent offenders and drug dealers,” voters made a clear policy 

choice to address drug users differently from drug dealers. Id. (emphasis 

added).

¶18 Inchoate offenses are defined in A.R.S. §§ 13-1001 to -1004. A 

person attempting to commit a drug offense “act[s] with the kind of 

culpability otherwise required for commission of an offense.” § 13-1001(A). 

Solicitation requires that “with the intent to promote or facilitate the 

commission of a felony . . . such person commands, encourages, requests or 

solicits another person to engage in specific conduct which would 

constitute the felony.” § 13-1002(A). A person engaged in a conspiracy acts 

“with the intent to promote or aid the commission of an offense” in an 

agreement “with one or more persons that at least one of them or another 

person will engage in conduct constituting the offense.” § 13-1003(A). To 

facilitate an offense, a person must “act[] with knowledge that another 

person is committing or intends to commit an offense.” § 13-1004(A). 

¶19 Each inchoate offense shares a characteristic with a completed 

offense. Whether attempting, soliciting, conspiring, or facilitating a drug 

crime, the inchoate drug offender has the same intent, level of culpability, 

or goal as the drug offender who completes his crime. Furthermore, a

completed drug offense is, at some point in the course of its commission, an 

inchoate offense. 

¶20 Given the clear intent of voters to distinguish personal 

possession offenses from drug dealing offenses, along with the relationship 

between inchoate and completed criminal offenses, there is no rational 

reason for treating inchoate drug offenses differently from completed drug 

offenses when applying the provisions of § 13-901.01. Excluding inchoate 

personal possession offenses from subsection (A) would allow the state to 
STATE V. GREEN

Opinion of the Court 

9 

circumvent the voters’ intent to require probation and treatment for drug 

users by permitting the charging of an inchoate personal possession or use 

offense when it would otherwise be charged as a completed offense. That 

would be absurd. Cf. Estrada II, 201 Ariz. at 252 ¶ 22 (observing that “as a 

practical matter, a person will rarely, if ever, possess or use a controlled 

substance without also possessing . . . associated paraphernalia).

 

¶21 Likewise, applying subsections (F) and (H) equally to 

convictions for inchoate and completed personal possession offenses 

ensures a consistent application of graduated consequences to drug users 

without the potential arbitrary distinction between an inchoate and 

completed drug offense. We therefore expressly disapprove the result and 

analysis in Ossana, which declined to count convictions for attempted 

possession offenses as strikes.

 

¶22 However, excluding those who are convicted of inchoate 

drug sales and trafficking activity from subsections (A), (F), and (H)

maintains the intent of voters to distinguish between personal possession 

and drug sale and trafficking offenses. An inchoate drug sale or trafficking 

offense is as distinct from personal possession or use of a drug as is a 

completed drug sale or trafficking offense. 

¶23 Accordingly, since subsection (H) does not apply to inchoate 

drug sale or trafficking convictions, Green’s conviction for solicitation to 

sell a narcotic drug is not a strike.

III.

 

¶24 We affirm Green’s convictions but vacate his sentences and 

remand for resentencing pursuant to § 13-901.01. We vacate ¶¶ 17, 19, 22 

and 23 of the court of appeals’ opinion and affirm the remainder.