State v. Jenkins
| Decision Date | 06 August 1998 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 970 P.2d 947,193 Ariz. 115 |
| Parties | , 275 Ariz. Adv. Rep. 24 STATE of Arizona, Respondent, v. Christopher Lee JENKINS, Petitioner. 97-0486-PR. |
| Court | Arizona Court of Appeals |
¶1 Defendant Christopher Lee Jenkins petitioned for review of the summary dismissal of his petition for post-conviction relief. We grant review, and grant relief in part and deny it in part.
¶2 The State charged defendant with first-degree murder, armed residential burglary, possession of a dangerous drug and possession of drug paraphernalia. He pled guilty to an amended count of second-degree murder, a class 1 felony, and the State agreed to dismiss the remaining charges. The factual basis for the plea was that following a heated argument, defendant shot and killed his wife with a neighbor's sawed-off shotgun.
¶3 The trial court sentenced defendant to a maximum aggravated term of imprisonment of twenty years (flat-time). Pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 13-603(I), the trial court also ordered defendant to serve one day for every seven days served under the supervision of the Community Supervision Program to be served consecutively to the actual period of imprisonment imposed. 1
¶4 Appointed counsel filed a notice stating he had reviewed the record and was unable to raise a claim for post-conviction relief under Arizona Rule of Criminal Procedure 32. Defendant filed a petition for post-conviction relief in propria persona. Defendant alleged that:
1. The court illegally sentenced him to both a flat-time term of imprisonment and to community supervision.
2. His guilty plea was involuntary because he was not advised that his sentence was for flat-time and that he must serve a term of community supervision following imprisonment.
3. His due process rights were violated because the State failed to notify him of the aggravating factors it intended to argue at sentencing.
4. His right against self-incrimination was violated during the Rule 11 proceeding.
5. The trial court failed to consider the mitigating circumstances and abused its discretion in imposing an aggravated sentence.
The trial court summarily dismissed the petition for postconviction relief. Defendant filed a timely petition for review to this Court.
¶5 We review the grant or denial of post-conviction relief under an abuse of discretion standard. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). However, a defendant is entitled to an evidentiary hearing if the petition presents a colorable claim--"a claim which, if defendant's allegations are true, might have changed the outcome." State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990). In such a case, summary dismissal of the petition is impermissible.
¶6 Defendant first contends that the sentence was illegal. In addition to sentencing him to twenty years (flat-time), the trial court ordered him to serve nearly three years of community supervision. Community supervision is consecutive to the actual period of imprisonment and equals one-seventh of the time actually served. A.R.S. 13-603(I). Defendant argues that the applicable statutes require his release after serving approximately eighty-five percent of his sentence so that he can serve his term of community supervision during the remainder of his sentence. Alternatively, he contends that if he must serve his entire sentence in prison, imposition of a consecutive term of community supervision violates the prohibitions gainst double punishment and double jeopardy.
¶7 In its response, the State agreed that defendant is not subject to community supervision and said that the statute "only applies to felonies not subject to mandatory or other enhanced sentencing provisions." The trial court apparently rejected this argument when it denied post-conviction relief. We also reject this argument and hold that defendant is subject to community supervision upon completion of his flat-time sentence.
¶8 The determination of this issue is controlled by the applicable sentencing statutes. Defendant's term of imprisonment was dictated by A.R.S. section 13-710(A), which provides:
Except as provided in section 13-604, subsection S or section 13-604.01, a person who stands convicted of second degree murder as defined by section 13-1104 shall be sentenced to a presumptive term of fifteen calendar years. The presumptive term imposed pursuant to this subsection may be mitigated or aggravated by up to five years pursuant to the terms of section 13-702, subsections C and D.
Under this statute, "calendar year" means the sentence is a flattime sentence. State v. Rodriguez, 153 Ariz. 182, 186, 735 P.2d 792, 796 (1987). 2
¶9 Community supervision is mandated by A.R.S. section 13-603(I), which provides that community supervision is consecutive to imprisonment:
If a person is convicted of a felony offense and the court sentences the person to a term of imprisonment, the court at the time of sentencing shall impose on the convicted person a term of community supervision. The term of community supervision shall be served consecutively to the actual period of imprisonment if the person signs and agrees to abide by conditions of supervision established by the state department of corrections. Except pursuant to subsection J, 3 the term of community supervision imposed by the court shall be for a period equal to one day for every seven days of the sentence or sentences imposed.
¶10 Community supervision may commence prior to the expiration of a sentence based on earned release credits. A.R.S. section 41-1604.07(A) provides for such credits:
Pursuant to rules adopted by the director, each prisoner in the eligible earned release credit class shall be allowed an earned release credit of one day for every six days served except for those prisoners who are sentenced to serve the full term of imprisonment imposed by the court.
A.R.S. section 41-1604.07(D), however, indicates that community supervision may commence either upon the earned release date or the expiration of the sentence:
A prisoner who has reached the prisoner's earned release date or sentence expiration date shall be released to begin the prisoner's term of community supervision imposed by the court or term of probation if the court waived community supervision pursuant to 13-603.
Finally, A.R.S. section 41-1604.07(E) contemplates that a prisoner who refuses the conditions of community supervision forfeits early release and must serve the entire sentence in prison:
The department shall establish conditions of community supervision it deems appropriate in order to ensure that the best interests of the prisoner and the citizens of the state are served. These conditions may include participation in a rehabilitation program or counseling and performance of community service work. If a prisoner who reaches the prisoner's earned release credit date refuses to sign and agree to abide by the conditions of supervision prior to release on community supervision, the prisoner shall not be released. When the prisoner reaches the sentence expiration date, the prisoner shall be released to begin the term of community supervision. If the prisoner refuses to sign and agree to abide by the conditions of release, the prisoner shall not be released on the sentence expiration date and shall serve the term of community supervision in prison. The department is required to supervise any offender on community supervision until the period of community supervision expires.
This defendant is not eligible for early release: His sentence is flat-time and each day must be served in prison.
¶11 The plain language of A.R.S. section 13-603(I), read in conjunction with the related statutes, indicates the Legislature's intent to require a term of community supervision for all prisoners, whether or not they are eligible for early release. The primary purpose of statutory construction is "to determine and give effect to the legislative intent behind the statute." State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 (App.1990). In determining legislative intent, the court first considers the statute's language because it is the "best and most reliable index of a statute's meaning." State v. Nihiser, 191 Ariz. 199, 953 P.2d 1252 (App.1997) (quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)). " 'Statutory provisions are to be read in the context of related provisions and of the overall statutory scheme,' and '[t]he goal is to achieve consistency among the related statutes.' " Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 426, 909 P.2d 486, 493 (App.1995) (citation omitted).
¶12 The controlling provisions are A.R.S. sections 13-710(A), 13-603(I) and 41-1604.07(D). Section 13-710(A) subjects defendant to a flat-time sentence for second-degree murder and thereby disqualifies him from early release. Nowhere does that provision indicate that community supervision does not apply to persons sentenced to flat-time. Section 13-603(I) is straightforward. It requires the court to "impose on the convicted person a term of community supervision" which "shall be served consecutively to the actual period of imprisonment...."
¶13 A.R.S. 41-1604.07 is consistent with the other provisions. Although subsection A allows some prisoners to obtain earned release credits, "prisoners who are sentenced to serve the full term of imprisonment" are ineligible. Moreover, subsection D provides that a prisoner who has reached either his earned release date "or [his] sentence expiration ...
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