State v. Kearney

• Decision Date: 23 December 2003
• Docket Number: No. 2 CA-SA 2003-0101.,2 CA-SA 2003-0101.
• Parties: The STATE of Arizona, Petitioner, v. Hon. Jan KEARNEY, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Amy Lou Henderson, Real Party in Interest.
• Court: Arizona Court of Appeals

81 P.3d 338

206 Ariz. 547

The STATE of Arizona, Petitioner, v. Hon. Jan KEARNEY, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Amy Lou Henderson, Real Party in Interest.

No. -0101.

Court of Appeals of Arizona. Division Two, Department B.

December 23, 2003.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Petitioner.

Jeffrey D. Bartolino, Tucson, for Real Party in Interest.

OPINION

PELANDER, Presiding Judge.

¶ 1 In this special action, petitioner State of Arizona contends the respondent judge erred in ordering real party in interest Amy Lou Henderson to remain released on bond pending sentencing following her conviction for aggravated driving under the influence of an intoxicant (DUI) in violation of A.R.S. § 28-1383(A)(1). The state argues that, because Henderson must be imprisoned for four months pursuant to § 28-1383(D) even if she is granted probation, the respondent judge was required to order her "immediately placed into custody after conviction" pursuant to Rule 7.2(b)(1), Ariz. R.Crim. P., 16A A.R.S. That rule generally requires such action for persons convicted in superior court who "will in all reasonable probability suffer a sentence of imprisonment." Because the state has no equally plain, speedy, and adequate remedy by appeal, see A.R.S. § 13-4032 and Rule 1(a), Ariz. R.P. Special Actions, 17B A.R.S., and because this is a pure question of law, a matter of first impression, and an issue of statewide importance, we accept jurisdiction. Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 51, 938 P.2d 98, 100 (App.1997). We conclude the respondent judge had discretion to continue Henderson's release on bond, and we therefore deny relief. See Ariz. R.P. Special Actions 3.

¶ 2 The relevant facts are not disputed. A jury found Henderson guilty of aggravated DUI, a class four felony, on September 12, 2003. Henderson had been released from custody since the time of her arrest. After the jury returned its verdict, the state moved that she be taken immediately into custody pending sentencing pursuant to Rule 7.2(b), Ariz. R.Crim. P. Henderson objected, arguing that she is a strong candidate for probation and noting she had rejected a plea offer in which the state had proposed recommending that she be placed on probation. Recognizing that § 28-1383(D) and Rule 7.2(b) arguably called for Henderson's immediate incarceration, the respondent judge nonetheless found that Rule 7.2(b) did not apply and permitted Henderson to remain released on bond under the supervision of pretrial services pending sentencing. The state petitioned for special action relief on October 1.

¶ 3 Although sentencing was set for October 10, this court ordered the parties to continue litigating this special action regardless of the outcome of that proceeding. According to Henderson's response to the special action petition and the state's avowal at oral argument, Henderson was placed on probation on October 10. Although the issue before us is therefore moot, we may nonetheless decide such an issue when, as here, it is a recurring issue of public importance that will otherwise evade review. See State ex rel. McDougall v. Municipal Court, 155 Ariz. 186, 188, 745 P.2d 634, 636 (App.1987).

¶ 4 We thus address whether a probation-eligible defendant found guilty of aggravated DUI and, therefore, subject to a mandatory four-month term of imprisonment pursuant to § 28-1383(D) must be immediately taken into custody pursuant to Rule 7.2(b). Rule 7.2(b)(1) provides:

After a person has been convicted of any offense for which the person will in all reasonable probability suffer a sentence of imprisonment, the person shall not be released on bail or on his or her own recognizance unless it is established that there are reasonable grounds to believe that the conviction may be set aside on a motion for new trial, reversed on appeal, or vacated in any post-conviction proceeding. The release of a person pending appeal shall be revoked if the person fails to prosecute the appeal diligently.¹

Section 28-1383(D) provides in pertinent part:

A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under [various aggravated DUI statutes, including § 28-1383(A)(1)].

¶ 5 We review de novo the interpretation of a statute. State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, ¶ 6 (App.2002). Our primary goal is to discern and give effect to legislative intent. Id. To that end, we construe the statute's language, and if it is unclear, then consider its historical background, subject matter, context, effects, consequences, spirit, and purpose. Id. These principles of statutory construction apply equally to rules promulgated by our supreme court. Ariz. Dep't of Revenue, 189 Ariz. at 52, 938 P.2d at 101 ("The interpretation of the rules of procedure parallels the interpretation of statutes."). Moreover, "[r]ules of procedure and statutes are read in conjunction with each other and harmonized whenever possible." Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (App.1994). ¶ 6 In this context, we are unable to discern a plain meaning of the rule and statute read in conjunction because it is not clear whether the four-month prison term mandated by § 28-1383(D) is a "sentence of imprisonment" for purposes of Rule 7.2(b)(1).² As noted above, the statute requires a prison term even when a person is granted probation. That provision, however, is at odds with the general felony sentencing scheme, which provides for either the imposition of a prison sentence or the suspension of the imposition of sentence if probation is granted. See A.R.S. § 13-603(B), (E) (sentencing court may suspend imposition of sentence and grant probation or, if probation not granted, impose sentence of imprisonment); Ariz. R.Crim. P. 26.10(b)(3), 17 A.R.S. (sentencing court must pronounce terms of sentence or probation). As Division One of this court has stated:

Probation and imprisonment in a Department of Corrections facility for a single offense are not compatible under the usual statutory scheme. That being the case, A.R.S. section 28-697(E) [the predecessor aggravated DUI statute] does not mesh well with the other statutory provisions that apply to sentencing and probation.

State v. Arzola, 183 Ariz. 112, 112, 901 P.2d 460, 460 (App.1995).

¶ 7 Indeed, at oral argument, the state characterized the unique aggravated DUI sentencing provision currently codified in § 28-1383(D) as a "strange animal." The state contends, however, that the mandatory prison term is a sentence, arguing that, because Rule 26.1, Ariz. R.Crim. P., 17 A.R.S., defines "sentence" as "the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilt," that definition should be used to define the phrase "sentence of imprisonment" in Rule 7.2(b).³ We agree that the mandatory prison term is a penalty. The legislature's intent in prescribing mandatory prison time for aggravated DUI offenders was to deter "`persons from driving while affected by alcohol by providing for penalties that are commensurate with the seriousness of this offense.'" State v. Gandara, 174 Ariz. 105, 107, 847 P.2d 606, 608 (App.1992), quoting State v. Benally, 137 Ariz. 253, 255, 669 P.2d 1030, 1032 (App.1983)

; see 1982 Ariz. Sess. Laws, ch. 234, §§ 1, 9.

¶ 8 We are less persuaded by the state's assertion that the intent of the mandatory imprisonment provision was to "stop the carnage" by "remov[ing] ... drunk[en] drivers from the road as soon as possible." If that were true, the legislature could have made probation absolutely unavailable for this crime, as it has, for example, for sexual assault. See A.R.S. § 13-1406(B). If the legislature had done so, of course, there would be no question that a person convicted of aggravated DUI must be taken into custody immediately upon return of a guilty verdict unless one of the other exceptions in Rule 7.2(b)(1) were established. The legislature also could have expressly required that a defendant be taken immediately into custody when a jury returns a guilty verdict for aggravated DUI. But the legislature did not do so.

¶ 9 In addition, we note that the legislature has made probation available for first-time felons convicted of other crimes that, like aggravated DUI, involve behavior that creates a risk of serious harm to other people.⁴ Rule 7.2(b) permits the possibility of presentence release in those cases. We also note that the state's position here is inconsistent with the actions it has taken in this aggravated DUI case, in which it agreed to recommend probation for Henderson if she accepted the proffered plea agreement. And, at oral argument, we learned that Henderson was released on bond for over one year pending a trial that was delayed at least in part to continuances requested by and granted to the state.

¶ 10 Henderson, in contrast, points to A.R.S. § 13-701(A), which provides in part that "[a] sentence of imprisonment for a felony shall be a definite term of years." She contends the mandatory four months' imprisonment under § 28-1383(D) is not a "sentence of imprisonment" as defined in § 13-701 because the range of imprisonment for a class four felony under that statute is one to 3.75 years. See A.R.S. §§ 13-702(A), 13-702.01(A), (B). She argues that, because a trial court can only grant probation by suspending the imposition of sentence, see § 13-603(B), a defendant who receives probation is therefore never "sentenced," and the mandatory prison term is only a condition of probation. Henderson accurately cites several cases that describe the mandatory term of incarceration following a conviction for aggravated DUI as a condition of probation. See State v. Fragozo, 197 Ariz. 220,

¶ 4, 3 P.3d 1140, ¶ 4 (App.2000); ...