State v. Tarango

• Decision Date: 16 April 1996
• Docket Number: No. CR-95-0118-PR,CR-95-0118-PR
• Citation: 914 P.2d 1300,185 Ariz. 208
• Parties: STATE of Arizona, Appellee, v. Sharon Lee TARANGO, Appellant.
• Court: Arizona Supreme Court

Page 1300

914 P.2d 1300

185 Ariz. 208

STATE of Arizona, Appellee, v. Sharon Lee TARANGO, Appellant.

No. CR-95-0118-PR.

Supreme Court of Arizona, In Banc.

April 16, 1996.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals

[185 Ariz. 209] Section, Monica D. Beerling, Assistant Attorney General, Phoenix, for Appellee

Dean W. Trebesch, Maricopa County Public Defender by Paul J. Prato, Deputy County Public Defender, Phoenix, for Appellant.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

In affirming defendant's sentence for a drug offense with two prior felonies, the court of appeals held that defendant would be parole eligible under former A.R.S. § 13-604(D) after serving two-thirds of her sentence despite language in former A.R.S. § 13-3408(D), which would have called for a flat time sentence if she had been sentenced as a first-time offender.

The opinion of the court of appeals in this case conflicts with an earlier opinion of that court which held that a defendant sentenced in a similar manner was not parole eligible under former A.R.S. § 13-1406(B). State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App.1989). We granted the state's petition for review to resolve the conflict, and have jurisdiction pursuant to article VI, section 5(3) of the Arizona Constitution. We agree with the court of appeals' opinion in this case.

FACTS AND PROCEDURAL HISTORY

Sharon Lee Tarango (defendant) was convicted of one count of sale of narcotic drugs and two counts of possession of narcotic drugs for sale, each a class 2 felony. The state had charged in the indictment, and the trial court found, that she had two prior felony convictions. The trial court imposed three concurrent sentences of 15.75 years, the presumptive term for class 2 felonies with two or more prior felonies, as prescribed by former Arizona Revised Statutes Annotated (A.R.S.) § 13-604(D). These presumptive sentences were 8.75 years longer than the presumptive sentence for a first-time class 2 felon. Former A.R.S. § 13-701(C)(1). The trial court's sentencing order was silent on the issue of parole eligibility.

On appeal, defendant argued that she was parole eligible under A.R.S. § 13-604(D) after serving two-thirds of her sentences, while the state argued that A.R.S. § 13-3408(D) required her to serve the entire length of her sentences without parole. ¹

The court of appeals held that defendant was eligible for parole after serving two-thirds of her sentences. State v. Tarango, 182 Ariz. 246, 250-51, 895 P.2d 1009, 1013-14 (App.1994).

It is clear that had defendant been convicted only of the instant offense without priors, she would not be parole eligible. Former § 13-3408(D) provided, inter alia:

A person who is convicted of [possessing a narcotic drug for sale or selling a narcotic drug] is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis until the person has served the sentence imposed by the court.

The court of appeals held, however, that when the state seeks the enhanced sentencing penalties allowed by former § 13-604, the release penalties of that section, not § 13-3408(D), apply. Tarango, 182 Ariz. at 251, 895 P.2d at 1014. The court found the language of A.R.S. § 13-604(K) dispositive. Id. at 250-51, 895 P.2d at 1013-14. That section provides:

The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous convictions ... [are] charged in the indictment or information and admitted or found by the trier of fact.

DISCUSSION

We agree with the court of appeals. The language of former A.R.S. § 13-604(K) is plain and unambiguous. When the state seeks the enhanced penalties for repeat offenders, former A.R.S. § 13-604 provides an exclusive sentencing scheme. See Canon School Dist. No. 50 v. W.E.S. Const. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994) ("[W]here the language is plain and unambiguous, courts generally must follow the text as written."); Mid Kansas Fed. Sav. & Loan Ass'n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991) (same).

Essentially the state argues that former A.R.S. § 13-3408(D) implicitly repealed the exclusive penalty language in former A.R.S. § 13-604(K). However, "the law does not favor construing a statute as repealing an earlier one by implication. Rather, whenever possible, this court interprets two apparently conflicting statutes in a way that harmonizes them and gives rational meaning to both." Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244, 249, 866 P.2d 1330, 1335 (1994) (citations omitted); see Baker v. Gardner, 160 Ariz. 98, 101, 770 P.2d 766, 769 (1988) ("Courts construe seemingly conflicting statutes in harmony when possible."); Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988) ("[W]hen reconciling two or more statutes, courts should construe and interpret them, whenever possible, in such a way so as to give effect to all the statutes involved.").

Former § 13-604 itself anticipated the possibility of conflicting statutes and explicitly provided that the penalties set forth in that section would govern. See former § 13-604(K). Against the backdrop of this prior existing legislation, the only reasonable interpretation of former § 13-3408(D) is that it applies only when the situations addressed by former § 13-604 (repetitiveness and/or dangerousness) are not present. Because the legislature chose not to repeal the existing exclusive provisions for repeat and/or dangerous offenders, we must assume that the legislature intended former § 13-3408(D) to apply only to first-time, non-dangerous offenders.

We are also guided by the rule of lenity. When a statute is "susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant." State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (App.1983) (decision approved and adopted in State v. Pena, 140 Ariz. 544, 683 P.2d 743 (1984)); see Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326-27, 5 L.Ed.2d 312 (1961); State v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App.1992). The flat time provision of former § 13-3408 either applies to all sentences--enhanced and unenhanced--or, because of the existence of former § 13-604(K), applies only to unenhanced sentences. The rule of lenity suggests an interpretation that permits parole eligibility.

The state also argues that former A.R.S. § 13-603(A) requires us to rule in favor of flat time enhanced sentences. That statute reads:

Every person convicted of any offense defined in this title or defined outside this title shall be sentenced in accordance with this chapter and chapters 7, 8 and 9 of this title unless otherwise provided by law.

Former § 13-603(A) (footnote omitted).

We do not interpret this language to mean that courts may, in derogation of former § 13-604(K), substitute the flat time provision of former § 13-3408(D) for former § 13-604(D)'s two-thirds time release eligibility provision. Rather, we interpret former § 13-603(A) to mean that where a statute specifies a particular range of sentencing, that statute shall govern. ² Otherwise chapters 6-9 of title 13 shall provide the range of sentencing. Former § 13-3408 does not provide its own range of sentencing for the offenses it describes; therefore, trial courts must look elsewhere to determine the appropriate sentence. For first-time offenders, former §§ 13-701 and 13-702 provide the range of sentences for the classes of felonies listed in former § 13-3408. For repeat and/or dangerous offenders, former § 13-604, with its exclusive penalty provisions, provides the range of sentences.

Because we find the statutes can be harmonized by recognizing the limited application of former § 13-3408(D), we necessarily reject the analysis employed by the court of appeals in State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App.1989). The Behl court held that the flat time sentence provision in a prior version of our sexual assault statute, former A.R.S. § 13-1406(B), governed even though the state indicted the defendant as a dangerous offender under former A.R.S. § 13-604(G), which provided for enhanced penalties but did not call for flat time. Behl, 160 Ariz. at 530, 774 P.2d at 834. In Behl, the court of appeals stated that former §§ 13-604(G) and 13-604(K) could not be reconciled with former § 13-1406(B) and that the sentencing court was required to apply the flat time provision of § 13-1406(B) because it was the more recent and specific statute. Id.; see Lemons v. Superior Court of Gila County, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984); Pima County v. Heinfeld, 134 Ariz. 133, 134-36, 654 P.2d 281, 282-84 (1982); Webb v. Dixon, 104 Ariz. 473, 475-76. 455 P.2d 447, 449-50 (1969). In doing so, the Behl court quoted but did not apply the exclusive penalty language of former § 13-604(K) and affirmed a flat time enhanced sentence. 160 Ariz. at 529-30, 774 P.2d at 833-34.

The Behl court was understandably concerned about the potentially anomalous result that could occur when a sexual offender who commits an act in a dangerous manner is eligible for release sooner than a sexual offender who commits the same offense in a non-dangerous manner. Of course, parole eligibility does not compel release on parole. Because former § 13-604(G) provided that dangerous offenders who had no qualifying prior convictions could receive a sentence as low as seven years, with release eligibility at two-thirds time served, it was theoretically possible that a dangerous offender could be released in 4.67 years. On the other hand, under former § 13-1406(B), a non-dangerous sexual offender with no prior felonies and a fully mitigated sentence of 5.25 years would have to serve the full 5.25 years. See former A.R.S. §§ 13-701(C)(1) and -702(B). However, such an apparent...