Shifflette v. Marner

• Docket Number: 2 CA-SA 2023-0009
• Decision Date: 27 June 2023
• Citation: Shifflette v. Marner, 255 Ariz. 538, 534 P.3d 101 (Ariz. App. 2023)
• Parties: Khristina Lyn SHIFFLETTE, Petitioner, v. Hon. James E. MARNER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

255 Ariz. 538

534 P.3d 101

Khristina Lyn SHIFFLETTE, Petitioner,

v. Hon. James E. MARNER, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona, Real Party in Interest.

No. 2 CA-SA 2023-0009

Court of Appeals of Arizona, Division 2.

Filed June 27, 2023

Megan Page, Pima County Public Defender, By Audrey Baumgartner, Assistant Public Defender, Tucson, Counsel for Petitioner

Laura Conover, Pima County Attorney, By Maile Belongie, Deputy County Attorney, Tucson, Counsel for Real Party in Interest

Judge Gard authored the opinion of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.

GARD, Judge:

¶1 In this special action, petitioner Khristina Shifflette challenges the respondent judge's ruling denying her request to receive credit under A.R.S. § 13-712(B) for time she spent in custody before sentencing. Because we conclude the respondent erred, we accept jurisdiction, grant relief, and remand the matter for resentencing.

Factual and Procedural Background

¶2 Tucson Police arrested Shifflette in February 2021, after she collided with a parked vehicle while driving and officers noticed signs of impairment. She was in custody for ten days before being released. Several months later, a grand jury indicted Shifflette for two counts of aggravated driving under the influence (DUI), class four felonies, and one count of criminal damage, a class five felony. The state also alleged that Shifflette had two prior misdemeanor DUI convictions. Shifflette remained out of custody pending trial. Ultimately, Shifflette pled guilty to endangerment, a class six undesignated offense, and DUI, a class one misdemeanor. She also admitted having one prior misdemeanor DUI conviction within the previous eighty-four months.

¶3 Before sentencing, Shifflette filed a memorandum asking the respondent judge to credit her sentences with the ten days she had spent in custody after her arrest. At sentencing, the respondent expressly found Shifflette eligible for probation, suspended the imposition of sentence on both counts, and placed Shifflette on probation. As to the DUI count, the respondent stated:

THE COURT FURTHER FINDS that the term of probation should include incarceration in the Pima County Jail.

IT IS ORDERED suspending imposition of sentence and placing the Defendant on probation for a period of FIVE (5) YEARS, commencing on [the date of sentencing] ....

IT IS ORDERED as a condition of probation the Defendant be incarcerated in the Pima County Jail for a period of NINETY (90) DAYS .... The Defendant shall be given credit for ZERO (0) DAYS time served. The Court suspends SIXTY (60) DAYS of the term imposed.

The respondent, however, took under advisement "the appropriate amount of time credit, if any."

¶4 In a subsequent order, the respondent judge addressed Shifflette's request for presentence incarceration credit on the DUI count. The respondent acknowledged that § 13-712(B), which provides that "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment," applies to criminal offenses, including DUI, defined outside Title 13, unless the context requires otherwise. See A.R.S. § 13-102(D). However, the respondent concluded that A.R.S. § 28-1381(K)(1), the DUI statute under which Shifflette had been sentenced, "expressly provides an exception to the application of time credit" and that the statutory "language unequivocally provides that the jail term days must be served consecutively" to one another. The respondent accordingly denied Shifflette's request for presentence incarceration credit, as well as her subsequent motion to reconsider. This special action followed.

Jurisdiction

¶5 " ‘Special action jurisdiction is appropriate when there is no plain, speedy and adequate remedy by way of appeal’ or ‘in cases involving a matter of first impression, statewide significance, or pure questions of law.’ " Phoenix Newspapers, Inc. v. Ellis , 215 Ariz. 268, ¶ 9, 159 P.3d 578 (App. 2007) (quoting Roman Cath. Diocese v. Superior Court , 204 Ariz. 225, ¶ 2, 62 P.3d 970 (App. 2003) ); see also Ariz. R. P. Spec. Act. 1(a). "[Q]uestions of law ... are reviewed de novo and are particularly appropriate for review by special action." Sierra Tucson, Inc. v. Lee , 230 Ariz. 255, ¶ 7, 282 P.3d 1275 (App. 2012). The question presented here is a purely legal one and carries statewide significance. We therefore accept jurisdiction.

Discussion

¶6 Shifflette contends the respondent judge erred in concluding that " § 28-1381(K)(1) expressly provides an exception to" the requirements of § 13-712(B). We ordered supplemental briefing on the threshold question whether the respondent had erred under § 28-1381(K)(1) and (L) by imposing Shifflette's required jail term as a probation condition rather than a misdemeanor sentence. We review questions of statutory interpretation de novo. Nowell v. Rees , 219 Ariz. 399, ¶ 11, 199 P.3d 654 (App. 2008).

¶7 Our task in interpreting statutes is to give effect to the legislature's intent, and "the statute's language is the best indicator of that intent." Rasmussen v. Munger , 227 Ariz. 496, ¶ 4, 260 P.3d 296 (App. 2011). Thus, "[w]hen the statutory language is clear and has only one reasonable construction, we apply it according to its plain meaning." State v. Francis , 243 Ariz. 434, ¶ 6, 410 P.3d 416 (2018). "As this case involves the intersection of multiple statutes, we construe them together, seeking to give meaning to all provisions." Id. (citations omitted).

¶8 Shifflette was sentenced under § 28-1381(K), which applies to defendants convicted of their second DUI offense within eighty-four months. The statute directs that, upon conviction, the defendant "[s]hall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served." § 28-1381(K)(1). Notwithstanding this requirement, the statute separately directs that a "judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program." § 28-1381(L). In addition, if the defendant "fails to complete" that program, "and has not been placed on probation," the court may require the defendant to serve the remainder of the sentence. Id.

¶9 Pursuant to A.R.S. § 13-603(A), a person convicted of an offense "shall be sentenced in accordance with," chapters 7, 8, 9, and 13 of the criminal code. In chapter 9, the legislature has provided that a trial "court may suspend the imposition or execution of sentence" as to a defendant who "is eligible for probation." A.R.S. § 13-901(A) (emphasis added); see also State v. Federico , 104 Ariz. 49, 49-50, 448 P.2d 399, 399-400 (1968) (distinguishing former Arizona statute from federal statute on basis that federal statute allowed court "to suspend either the imposition or the execution of a sentence" but then-Arizona statute allowed "suspension of only the imposition of a sentence"). Although it is commonly the imposition of sentence that is suspended, because the statute includes both words, we must give each of them meaning. See State v. Windsor , 224 Ariz. 103, ¶ 6, 227 P.3d 864 (App. 2010). In contrast to imposition, the word "execution" is defined as, "The act of carrying out or putting into effect ...." Execution , Black's Law Dictionary (11th ed. 2019). At one time, Arizona's sentencing scheme only permitted a court to suspend the imposition of sentence and did not permit it to suspend the execution of sentence by allowing a term of incarceration to be "interrupted" or "intermittent." State v. Bigelow , 76 Ariz. 13, 17-19, 258 P.2d 409, 413-15 (1953) (distinguishing between court suspending the imposition of sentence and improperly suspending the execution of sentence). But our current statutory scheme allows a court to suspend sentence in either manner.

¶10 The time period for the probationary term is set forth in A.R.S. § 13-902(B)(1), which permits a term of up to five years for a violation of § 28-1381. As a condition of probation, a trial court is also authorized to "require that the defendant be imprisoned in the county jail at whatever time or intervals, consecutive or nonconsecutive, the court shall determine," so long as that confinement "does not exceed one year or the maximum period of imprisonment permitted" for the offense. § 13-901(F).

¶11 Further, A.R.S. § 13-903(A) allows a period of probation to begin either "on the day it is imposed or as designated by the court," thereby allowing a court to set a term of probation to begin after the date of sentencing. Thus, a court may impose sentence but order the execution of sentence to be suspended at a future point during the term of incarceration, thereby interrupting the sentence. A term of probation may be ordered to begin at that point pursuant to § 13-901(A).¹

¶12 Thus, the statutory language establishes that a defendant convicted of a second DUI offense must be sentenced to ninety days in jail, with thirty to be served consecutively, before he or she is "eligible for probation." § 28-1381(K). In this case, however, the respondent judge found Shifflette "eligible for probation" at sentencing, and on that date suspended the imposition of sentence and placed Shifflette on a five-year probationary term to commence immediately. He further ordered that Shifflette serve ninety days in jail "as a condition of probation" and suspended sixty days of that term. But by statute, Shifflette's term of probation could not begin until she had served the sentence required by § 28-1381(K). And a court has no authority to grant probation outside of statutory provisions. State v. Watson , 248 Ariz. 208, ¶ 25, 459 P.3d 120 (App. 2020).

¶13 For these reasons, the...