State v. Bowsher

• Decision Date: 08 December 2010
• Docket Number: No. CR-10-0019-PR.,CR-10-0019-PR.
• Citation: 242 P.3d 1055,225 Ariz. 586
• Parties: STATE of Arizona, Respondent, v. Brad Alan BOWSHER, Petitioner.
• Court: Arizona Supreme Court

242 P.3d 1055

225 Ariz. 586

STATE of Arizona, Respondent,

v.Brad Alan BOWSHER, Petitioner.

No. CR-10-0019-PR.

Supreme Court of Arizona, En Banc.

Dec. 8, 2010.

Barbara Lawall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson, Attorneys for State of Arizona.

Robert J. Hirsh, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Brad Bowsher.

OPINION

PELANDER, Justice.

¶ 1 The issue for decision is whether a trial court may impose consecutive terms of probation on a defendant convicted of unrelated offenses. We hold that Arizona Revised Statutes ("A.R.S.") section 13-903(A) (2010) authorizes that disposition.

I.

¶ 2 Bowsher was charged in two separate indictments with ten felonies. Pursuant to a plea agreement, he pleaded guilty to one count of theft by control in each case; each count involved a different victim and event. The trial court placed Bowsher on probation for four years in both matters and ordered the probation terms to be served consecutively. Bowsher petitioned for post-conviction relief, arguing that the trial court lacked authority to impose consecutive terms of probation. The superior court denied relief.

¶ 3 The court of appeals granted review but also denied relief. State v. Bowsher, 223 Ariz. 177, 177 ¶ 4, 221 P.3d 368, 368 (App.2009). The court rejected Bowsher's argument that consecutive terms of probation were forbidden by State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976), relying on our statement in State v. Jones, 124 Ariz. 24, 26, 601 P.2d 1060, 1062 (1979), that Pakula must "be strictly limited to cases wherein there is one indictment involving multiple counts." Bowsher, 223 Ariz. at 178 ¶ 8, 221 P.3d at 369.

¶ 4 We granted review to address a recurring issue of statewide importance and to resolve the possible tension between Pakula and Jones. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

¶ 5 We review for abuse of discretion a trial court's denial of a petition for post-conviction relief, State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990), but review issues of law de novo, State v. Pandeli, 215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007).

¶ 6 Trial courts have no inherent authority to suspend a prison sentence and impose probation. State v. Bigelow, 76 Ariz. 13, 18, 258 P.2d 409, 412 (1953). Rather, such power "must be found in the statutes of the state." Id.

¶ 7 Section 13-903(A) states, "A period of probation commences on the day it is imposed or as designated by the court, and an extended period of probation commences on the day the original period lapses" (emphasis added). The word "or" generally means "[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things." Black's Law Dictionary 1095 (6th ed.1990); see also North Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 306 ¶ 26, 93 P.3d 501, 506 (2004) (concluding that statutory use of disjunctive "or" when "[p]lainly read" suggests alternatives among listed items). Because § 13-903(A) is written in the disjunctive, it allows trial courts to begin a probation term either on the date the defendant is sentenced or on another day designated by the judge. The statute thus does not on its face prevent the judge from imposing consecutive probation terms.

¶ 8 Interpreting the phrase "or as designated by the court" in § 13-903(A) to allow consecutive terms of probation is also consistent with the statute's history. The Legislature enacted § 13-903 in 1978 as part of its comprehensive revision of Arizona's criminal statutes. In that new section, the Legislature adopted language recommended by the Arizona Criminal Code Commission in its 1975 proposed draft for the new criminal code. See Arizona Criminal Code Commission, Arizona Revised Criminal Code, at § 802(a) (1975).

¶ 9 The Commission and the Legislature generally relied on the Model Penal Code ("MPC") in drafting Arizona's revised criminal

[225 Ariz. 588, 242 P.3d 1057]

statutes. See State v. Cox, 217 Ariz. 353, 356 ¶ 16, 174 P.3d 265, 268 (2007); State v. Mott, 187 Ariz. 536, 540, 931 P.2d 1046, 1050 (1997); 1 Rudolph J. Gerber, Criminal Law of Arizona 1-2 (2d ed.1993) (noting the Commission's "research [ ]" into the MPC). The MPC explicitly requires probation terms to run concurrently:

When a defendant is sentenced for more than one offense or a defendant already under sentence is sentenced for another offense committed prior to the former sentence[,] ... multiple periods of suspension or probation shall run concurrently from the date of the first such disposition[.]

Model Penal Code § 7.06(6)(b) (Official Draft 1962) (emphasis added).

¶ 10 The Commission, however, did not recommend adoption of that MPC section. And, although the Legislature adopted many MPC provisions, it chose to not enact that one, instead opting for the language in § 13-903(A).¹ The Legislature's action "evidences its rejection" of the MPC section. See Mott, 187 Ariz. at 540, 931 P.2d at 1050 (noting the Legislature declined to adopt the MPC's defense of diminished capacity "when presented with the opportunity to do so"); see also State v. King, 225 Ariz. 87, 90 ¶ 11, 235 P.3d 240, 243 (2010) (concluding that Arizona adopted an objective standard for self-defense rather than the MPC's subjective standard).

¶ 11 Although § 13-903(A) does not explicitly provide for consecutive terms of probation, our interpretation of its language is the most plausible. ² Because multiple probation terms can run only concurrently or consecutively, forbidding consecutive terms of probation would be tantamount to mandating that multiple probation terms run concurrently. Thus, interpreting Arizona's probation statutes as not authorizing consecutive terms of probation effectively reads into the statutes the same concurrent-term mandate the Legislature declined to adopt from the MPC. We cannot usurp the Legislature's prerogative in that fashion on matters within its exclusive domain. See State v. Casey, 205 Ariz. 359, 362 ¶ 10, 71 P.3d 351, 354 (2003).

¶ 12 Bowsher argues the phrase "as designated by the court" in § 13-903(A) must be read in conjunction with A.R.S. § 13-901(A) (2010), which states a probation period shall begin "without delay." According to Bowsher, § 13-901(A) requires a probation term to commence the day it is imposed unless some other rule or statute prevents the term from beginning then. For example, A.R.S. § 13-903(E) provides that when a term of probation is imposed on one already serving a prison sentence, probation does not commence until the prison sentence is served. Only in such instances, Bowsher contends, does the option of "as designated by the court" apply, allowing the judge to set an alternate start date.

¶ 13 We disagree with this reading for two reasons. First, no legislative history supports limiting the words "as designated by the court" in the way Bowsher argues; indeed, the history cited above expressly suggests that the Legislature meant to authorize consecutive terms of probation. Second,

[225 Ariz. 589, 242 P.3d 1058]

Bowsher's proposed literal interpretation of the phrase "without delay" in § 13-901(A) unduly limits the phrase "as designated by the court" in § 13-903(A).³ Because delay occurs any time a judge designates a start date different from the date the probation is imposed, Bowsher's interpretation would deprive trial judges of the choice explicitly granted by § 13-903(A).

¶ 14 When construing two statutes, this Court will read them in such a way as to harmonize and give effect to all of the provisions involved. Pima County ex rel. City of Tucson v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988). The Legislature presumably would not have framed § 13-903(A) in the disjunctive had it meant the phrase "without delay" in § 13-901(A) to invariably require a probation term to begin on the day it is imposed except as otherwise expressly provided by law.⁴ We hold that § 13-903(A) authorizes trial courts to impose consecutive terms of probation.

III.

¶ 15 In urging a contrary conclusion, Bowsher relies largely on Pakula, in which this Court found "no specific authority for consecutive terms of probation," 113 Ariz. at 125, 547 P.2d at 479, and Jones, which stated that the Court "[did] not retreat from" Pakula's holding "that consecutive sentences of probation are unlawful." 124 Ariz. at 27, 601 P.2d at 1063. We find Pakula obsolete and the dictum in Jones neither controlling nor persuasive.

¶ 16 In Pakula, the defendant was charged in one information with eleven counts. 113 Ariz. at 123, 547 P.2d at 477. The trial court sentenced him to prison on the first count and imposed consecutive three-year terms of probation on each remaining count. Id. This Court held that the sentence was unlawful because, among other things, no statute permitted the superior court, "on multiple counts in the same information, to impose consecutive periods of probation," id. at 124, 547 P.2d at 478, or a period of probation after a prison term. Id. at 125, 547 P.2d at 479.

¶ 17 Pakula, however, predated the Legislature's 1978 overhaul of Arizona's criminal code, including enactment of A.R.S. § 13-903. That case therefore provides no aid in interpreting the current statute.

¶ 18 In Jones, we held that a trial court, when sentencing a defendant on different counts in separate indictments, may simultaneously impose a prison term on one count, followed by probation on the second. 124 Ariz. at 25-26, 601 P.2d at 1061-62. Jones "strictly limited [ Pakula's rationale] to cases wherein there is one indictment involving multiple counts" because, when multiple indictments exist, "one judge may do in each of the separate indictments what two judges could do at different times with the same separate indictments." Id. at 26, 601 P.2d at 1062.

¶ 19 Our statement in Jones that we "[did] not retreat from" Pakula's holding "that consecutive...