State v. Sweet, 6334-PR

• Decision Date: 16 January 1985
• Docket Number: No. 6334-PR,6334-PR
• Citation: 143 Ariz. 266,693 P.2d 921
• Parties: STATE of Arizona, Appellee, v. Donald Michael SWEET, Appellant.
• Court: Arizona Supreme Court

Page 921

693 P.2d 921

143 Ariz. 266

STATE of Arizona, Appellee, v.Donald Michael SWEET, Appellant.

No. 6334-PR.

Supreme Court of Arizona, In Banc.

Jan. 16, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Galen H. Wilkes, Asst. Attys.Gen., Phoenix, for appellee.

Clinton L. Liechty, Tucson, for appellant.

HOLOHAN, Chief Justice.

The defendantDonald Michael Sweet was tried and convicted of unlawful possession of marijuana for sale (a class 4 felony) and of unlawful possession of a narcotic drug (cocaine) valued at more than $250 for sale (a class 2 felony).The trial court found that the allegation of a prior conviction was true and that the defendant was on probation at the time of commission of the instant felonies.The defendant was sentenced pursuant to the mandate of A.R.S. § 13-604.01 to the presumptive term authorized for the offenses: 2.25 years for the marijuana charge and 10.5 years for the cocaine charge.The sentences were to run concurrent to each other and consecutively with a 1.5 year sentence which had been imposed after revocation of probation for the prior offense.On appeal, the defendant's conviction and sentence were affirmed by the Court of Appeals.State v. Sweet, 143 Ariz. 289, 693 P.2d 944(App.1984).Defendant sought review by this court.We accepted review to consider the single issue whether the trial court erred in applying the provisions of A.R.S. § 13-604.01 in this case.Only that portion of the Court of Appeals' opinion which deals with that issue is vacated.

The original version of A.R.S. § 13-604.01, enacted in 1982, provided for a mandatory sentence when a felony was committed "while the person is on probation ...."The statute did not specify whether it applied to felony probation, misdemeanor probation, or both.The statute was amended in 1983 to apply only to probation from a felony conviction.¹The defendant's current offenses were committed on January 18, 1983.The amendment to A.R.S. § 13-604.01 became effective July 27, 1983.The question is whether the amendment merely clarified the legislative intent that the statute only apply to felony probation or whether the original version also applied to misdemeanor probation.

The original version of A.R.S. § 13-604.01, enacted in 1982, provided for mandatory sentences and severely restricted eligibility for suspension or commutation of sentence, probation, pardon, parole, work furlough, or release from confinement for anyone who committed a felony while on probation, parole, work furlough, or any other release.The original version did not specify whether the prior offense resulting in the probation, parole, work furlough, or other release had to be a felony, or whether it could also apply to misdemeanors and petty offenses.In 1983, the legislature amended the statute to specify that only probation for conviction of a felony offense and only parole, work furlough, or any other release from confinement for conviction of a felony offense would require application of the statute.Sweet's current offenses, possession of marijuana and cocaine for sale, occurred after the enactment of the original version of the statute but before the amendment.In order to determine whether the original version applied only to prior felony convictions or to all convictions we must look to the principles of statutory construction.

It is clear that a statute will not be applied retroactively unless expressly specified by the legislature.A.R.S. § 1-244.Likewise, A.R.S. § 1-246 provides:

"When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed."

See alsoState v. Coconino County Superior Court, 139 Ariz. 422, 678 P.2d 1386(1984);State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304(1983);State v. Vineyard, 96 Ariz. 76, 392 P.2d 30(1964).It is equally clear, however, that "[a]n amendment which, in effect, construes and clarifies a prior statute will be accepted as the legislative declaration of the original act."City of Mesa v. Killingsworth, 96 Ariz. 290, 297, 394 P.2d 410, 414(1964).See alsoB & P Concrete, Inc. v. Turnbow, 114 Ariz. 408, 561 P.2d 329(App.1977);Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass'n, 20 Ariz.App. 550, 514 P.2d 503(1973);State v. Vondohlen, 24 Ariz.App. 362, 538 P.2d 1163(1975).

There is a basic and fundamental rule of statutory construction that only where a statute is ambiguous or unclear is a court at liberty to resort to the rules of statutory interpretation, City of Mesa, supra;Sterman v. Transamerica Title Ins. Co., 119 Ariz. 268, 580 P.2d 729(App.1978);Arizona State Tax Commission v. Lawrence Mfg. Co., 15 Ariz.App. 486, 489 P.2d 860(1971).The ambiguity question is especially pertinent here in that the usual presumption that an amendment changes rather than clarifies a statute, McCloe v. Utah Home Fire Ins. Co., 121 Ariz. 402, 590 P.2d 941(App.1978), is only applicable when "the statute amended admitted of no ambiguity prior to amendment."Arizona Foundation for Neurology and Psychiatry v. Sienerth, 13 Ariz.App. 472, 476, 477 P.2d 758, 762(1970).Thus, before we can reach the question whether the amendment was merely a clarification of the existing statute or a change in the existing statute, we must ascertain whether the original statute was clear and unambiguous on its face.

An ambiguity in a statute is "not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all its provisions are examined."73 Am.Jur.2d, Statutes§ 195.An ambiguity may also be found to exist where there is uncertainty as to the meaning of the terms of a statute.State v. Sylva, 61 Hawaii 385, 605 P.2d 496(1980).The problem in interpreting the statute at issue is not that certain words or groups of words have more than one meaning, but it is the failure to include necessary words which causes confusion as to the scope of the statute.Due to the omission the statute can reasonably be construed in more than one way.When there is confusion in statutory interpretation it is necessary for us to determine the legislative intent for the statute.

It is an accepted rule of statutory construction that when "determining the intent of the legislature, the court may consider both prior and subsequent statutes in pari materia."Automatic Registering Machine Co. v. Pima County, 36 Ariz. 367, 373-74, 285 P. 1034, 1036(1930).See alsoState ex rel. Larson v. Farley, 106 Ariz. 119, 471 P.2d 731(1970).A review of the repeat offender sentencing provisions of A.R.S. § 13-604 discloses that the legislature specified how the provisions of that statute were to apply to both felonies and misdemeanors.Subsections (A) through (E) of A.R.S. § 13-604 explicitly define the mandatory sentences to be imposed for various combinations of current felony or misdemeanor offenses and prior felony or misdemeanor offenses.For instance, subsection (A) specifies that when the current offense is a class 4, 5, or 6 felony and the prior offense is a felony committed within the past ten years, the sentence is not less than the total sentence authorized and not more than twice the sentence authorized.Subsection (E) states that commission of the same misdemeanor or petty offense within a two year period will result in imposition of the sentence for the next higher class of offense.Presumably, had the legislature intended A.R.S. § 13-604.01 to apply to both felony and misdemeanor prior convictions it would have followed its own example in A.R.S. § 13-604 and made explicit provisions.That it did not do so indicates that the failure to specify was an oversight by the legislature rather than an implied directive to include both felony and misdemeanor prior convictions.

It is also helpful and proper to "turn to the overall purposes and aims of the legislature in enacting the statute in order to glean the legislative intent ...."Cohen v. State, 121 Ariz. 6, 9, 588 P.2d 299, 302(1978).Again, it is helpful to examine the companion recidivist statute, A.R.S. § 13-604.Even a casual perusal of the terms of A.R.S. § 13-604 shows that the legislature clearly delineated between the sentence enhancements when the perpetrator of a current crime had prior felony convictions as opposed to prior misdemeanor or petty offense convictions.The penalties are much harsher when the prior conviction was a felony and harsher yet when there is more than one prior felony conviction.Likewise, A.R.S. § 13-604 provides for different sentence enhancements based on whether the current offense is a felony, a misdemeanor, or a petty offense.While A.R.S. § 13-604.01, as amended, specifically applies only when the current offense is a felony, the original version made no provision for whether the prior conviction need be a felony or a misdemeanor.The aim of the legislature in enacting provisions for enhanced or mandatory sentences for repeat offenders, as evidenced by A.R.S. § 13-604, is to treat more severely those who have prior felony convictions than those who have prior misdemeanor or petty offense convictions.It would frustrate this obvious legislative intent to interpret the original version as mandating the same penalty when the prior offense was a misdemeanor or petty offense as is applied when the prior conviction was a felony.As we stated in State ex rel. Larson v. Farley, supra, 106 Ariz. at 122, 471 P.2d at 734:

If reasonably practical, a statute should be explained in conjunction with other statutes to the end that they may be harmonious and consistent.If the statutes relate to the same subject or have the same general purpose--that is, statutes which are in pari materia--they should...