State v. Perkins, 5990-2

• Decision Date: 02 May 1985
• Docket Number: No. 5990-2,5990-2
• Parties: STATE of Arizona, Appellee, v. Lee Roy PERKINS, Appellant.
• Court: Arizona Supreme Court

Page 364

699 P.2d 364

144 Ariz. 591

STATE of Arizona, Appellee, v. Lee Roy PERKINS, Appellant.

No. 5990-2.

Supreme Court of Arizona, In Banc.

May 2, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Richard I. Mesh, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Appellant, Lee Roy Perkins, was convicted of nine counts of armed robbery, A.R.S. § 13-1904, class 2 felonies, and one count of aggravated assault, A.R.S. § 13-1204, a class 3 felony. At the time he committed these offenses, appellant was on parole from two counts of armed robbery (CR-104531). The jury found that each of appellant's ten offenses was of a dangerous nature. Appellant was sentenced. On appeal, we affirmed the conviction but remanded the case for resentencing due to trial counsel's ineffective representation during sentencing. See State v. Perkins, 141 Ariz. 278, 686 P.2d 1248 (1984) (Perkins I). By the time of resentencing, appellant's sentences for his previous crimes (CR-104531) had expired. The trial court imposed a life sentence without possibility of parole for 25 years on each count. A.R.S. § 13-604.01(A). The sentences were designated to run as follows:

Counts 1-4 concurrent sentences;

Counts 5-6 concurrent sentences, to be served consecutively to the sentences imposed in counts 1-4;

Counts 7-9 concurrent sentences, to be served consecutively to the sentences imposed in counts 5-6;

Count 10 concurrent to the sentences imposed in counts 7-9, but to be served consecutively to the sentences imposed in counts 5-6.

The resulting sentence was for three consecutive terms of life imprisonment without possibility of parole or other release for 75 years. Appellant now appeals from this sentence. (Perkins II). This court has jurisdiction. Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031, 13-4035. We affirm, with the sentences modified as specified. We address the following issues:

1. May a trial court impose consecutive terms of imprisonment, other than for sentences not previously served, if the accused is sentenced pursuant to A.R.S. § 13-604.01(A)?

2. Did appellant's crimes constitute "spree" offenses for which consecutive terms of imprisonment were improper?

3. Did the imposition of three life sentences without possibility of parole or other release for 75 years constitute cruel and unusual punishment in violation of the eighth amendment?

FACTS

The crimes at bar arose from a series of three armed robberies occurring during the late evening hours of September 25, 1982 and the early morning hours of September 26, 1982. The victims of these crimes were ten young people who had been partying on the river bottom of the Salt River. Nine of the victims were robbed and one [Barbara Pell] was assaulted.

In the first incident, four young people were riding in a car on the river bottom going toward the party area. Suddenly, a car came from behind and cut them off, forcing them to stop. Appellant and codefendants Donald Meeker and James Reed jumped out of the overtaking car. Appellant was armed with a sawed-off shotgun while Meeker was armed with a handgun. They robbed the victims at gunpoint and left.

In another such incident, two young persons, Timothy Thompson and Scott Gronek, were leaving the party area. As in the first armed robbery, a car swerved in front of them and forced them to stop. Appellant and Meeker sprang from the car. Meeker went to the driver's side and put a handgun to Thompson's head. Appellant went to the passenger side of the car and pointed the shotgun at Gronek's throat. They robbed the car's occupants of their wallets. Appellant then struck Gronek in the face with the shotgun.

In the last incident, four young people were leaving the party area in a car. They were overtaken by the robbers' car. Appellant and Meeker robbed three of the car's occupants at gunpoint. The fourth occupant of the car, Barbara Pell, was not carrying any valuables and was not robbed. Appellant did, however, assault her by striking her hand with the butt of the shotgun.

Appellant was tried and convicted of nine counts of armed robbery and one count of aggravated assault. In sentencing appellant to three consecutive life terms, the trial court stated that appellant was a danger to the community and must be incarcerated for a long time for the protection of the community.

1. MAY THE TRIAL COURT IMPOSE CONSECUTIVE TERMS OF IMPRISONMENT OTHER THAN FOR SENTENCES NOT PREVIOUSLY SERVED IF THE ACCUSED IS SENTENCED PURSUANT TO A.R.S. § 13-604.01(A)?

A.R.S. § 13-604.01(A) requires a penalty of life imprisonment without possibility of release for 25 years for armed offenses committed while a person is on parole or other release from confinement. That section further provides that:

A sentence imposed pursuant to this subsection shall be consecutive to any other sentence from which the convicted person has been temporarily released (emphasis added). ¹

Appellant asserts that multiple sentences imposed pursuant to A.R.S. § 13-604.01(A) can only be consecutive to a sentence yet unserved and must otherwise be concurrent. If additional consecutive sentences were imposable, appellant argues, then these sentences would not be "consecutive to any other sentence" in accordance with the mandatory language of the statute.

Appellee proposes a different interpretation of A.R.S. § 13-604.01(A). A.R.S. § 13-708 expressly authorizes a trial judge to impose consecutive sentences. Appellee contends that if the legislature had intended to prohibit imposition of consecutive sentences under A.R.S. § 13-604.01(A), the legislature would have provided an express exception. Additionally, appellee urges that it is the duty of this court to adopt a construction of a statutory provision which reconciles it with other statutes where such a reasonable harmonizing interpretation is available. See 73 Am.Jur. Statutes § 254 n. 70 and accompanying text; 82 C.J.S. Statutes § 291 nn. 56-60 and accompanying text; Southern Pacific Co. v. Gila County, 56 Ariz. 499, 109 P.2d 610 (1941). We agree.

We find appellant's technical and strict construction of the statute unpersuasive. The Arizona Legislature has abrogated the common law rule that penal statutes are to be construed strictly. Rather, these statutes should be interpreted according to the fair meaning of their terms and in furtherance of the policies underlying the law. A.R.S. § 13-104. Among the policies reasonably attributable to the legislature in enacting A.R.S. § 13-604.01(A), we would include:

1. Deterrence of felons from committing armed offenses while on release from confinement. State v. Noriega, 142 Ariz. 474, 487, 690 P.2d 775, 788 (1984); A.R.S. § 13-101(5) (it is the public policy of this state to "insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized ...");

2. Protection of the public from dangerous felons by prolonged confinement. State v. Noriega, supra;

3. Enhanced punishment as retribution for violation of the conditions of parole or other release from confinement by commission of an armed offense. See State v. Bly, 127 Ariz. 370, 372, 621 P.2d 279, 281 (1980) (retribution is one of the policies underlying our criminal code); Cf. A.R.S. § 13-101(6) (it is the public policy of this state to "impose just and deserved punishment on those whose conduct threatens the public peace");

4. Encouraging parole or other release from confinement. State v. Noriega, supra.

Appellant's construction of the statute would not promote these policies. As to deterrence, criminals would be encouraged to commit as many criminal acts as possible while on release from prison, secure in the knowledge that they could only receive concurrent sentences for these offenses. Such a sentencing policy would not deter criminal wrongdoing. With respect to protection of the public, appellant's construction would prevent the court from ordering longer confinement even if the defendant posed a serious danger to the community. As to retribution, appellant's interpretation would not allow the trial court to impose the enhanced punishment that fits a truly serious crime. Finally, because it would not deter criminals from committing crimes, it would not encourage parole or other prisoner release from confinement.

In sum, we do not believe that the legislature intended to fix an arbitrary limit on the maximum punishment imposable pursuant to A.R.S. § 13-604.01(A) for armed offenses committed while on release from confinement. Cf. State v. Mulalley, infra, 127 Ariz. at 92, 618 P.2d at 589 (acknowledgment in dictum that consecutive sentences would be proper, pursuant to A.R.S. § 13-1206, a recidivist statute with an identical provision). A.R.S. § 13-708 authorizes the imposition of consecutive sentences. Appellant does not allege that the trial court failed to comply with A.R.S. § 13-708 by failure to state reasons why the sentences should run consecutively. See State v. Meeker, 147 Ariz. 256, 265, 693 P.2d 911, 920 (1984) (trial judge complied with A.R.S. § 13-708 by stating on the record that Meeker required long incarceration due to the danger he poses to society). We find no error.

II. DID APPELLANT'S CRIMES CONSTITUTE "SPREE" OFFENSES FOR WHICH CONSECUTIVE SENTENCES WERE IMPROPER?

Appellant was convicted of nine counts of armed robbery and one count of aggravated assault arising from three incidents that occurred within a one and one-half hour period. These crimes were committed in a similar manner and within a few miles of one another. Appellant asserts that he is entitled to concurrent sentences for these crimes because he is a "spree" offender.

A.R.S. § 13-604(H), in relevant part, bars consecutive terms of sentence enhancement for "spree" offenses that occur on the same occasion:

Convictions for two or more offenses committed on the...