State v. Thomas

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0051-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 05-0770
MARCEL BARRY THOMAS, )
) Mohave County
Appellant. ) Superior Court
) No. CR2004-0704
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Mohave County
The Honorable Steven F. Conn, Criminal Presiding Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
217 Ariz. 413, 175 P.3d 71 (App. 2008)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent Catanni, Chief Counsel,
Criminal Appeals Section
Diane L. Hunt, Assistant Attorney General Tucson
Attorneys for State of Arizona

DANA P. HLAVAC, MOHAVE COUNTY PUBLIC DEFENDER Kingman
By Jill L. Evans
Attorney for Marcel Barry Thomas
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 We granted review to determine whether a felony
conviction resulting from an offense committed after the

defendant committed the sentencing offense qualifies as a

historical prior felony conviction under Arizona Revised Statutes

(A.R.S.) section 13-604.W.2(a) (Supp. 2007). We hold that, for

those felonies enumerated in § 13-604.W.2(a), conviction for the

enhancing offense must occur before conviction for the sentencing

offense, but the statute imposes no requirement as to the timing

of the commission of the offenses.

I.

¶2 In June 2005, Marcel Barry Thomas was convicted on four

drug-related charges arising out of acts committed in December

2002. In June 2004, Thomas was convicted of aggravated assault,

unlawful imprisonment, and hindering prosecution for acts

committed in January 2003. The assault-related convictions thus

preceded the drug-related convictions, although the assault-

related acts occurred after the drug-related acts.

¶3 When the trial court sentenced Thomas on the drug-

related convictions, it treated Thomas’s aggravated assault

conviction as a “historical prior felony conviction” under § 13-

604.W.2(a)(i), making Thomas eligible for an enhanced sentence.

Rejecting Thomas’s argument that the aggravated assault

conviction is not a historical prior felony conviction because he

committed the assault after he committed the drug-related

offenses, the trial court sentenced him to enhanced presumptive
2
concurrent sentences on all four drug-related offenses.1

¶4 A divided court of appeals vacated Thomas’s enhanced

sentences. State v. Thomas, 217 Ariz. 413, 415 ¶ 5, 175 P.3d 71,

73 (App. 2008). The majority held that Thomas’s prior felony

conviction for aggravated assault could not be used to enhance

his sentences because he committed that offense after he

committed the drug-related offenses. Id. In dissent, Judge

Barker argued that, under the plain language of § 13-604.W.2(a),

whether a conviction qualifies as a historical prior felony

conviction depends solely upon the date of the conviction “if the

felony conviction falls within one of the specified categories

under [§ 13-604.W.2(a)].” Id. at 421 ¶ 34, 175 P.3d at 79

(Barker, J., dissenting).

¶5 We granted review to decide this recurring issue of

statewide importance. See Ariz. R. Crim. P. 31.19(c)(3). We

exercise jurisdiction pursuant to Article 6, Section 5.3 of the

Arizona Constitution and A.R.S. § 13-4031 (2001).

II.

¶6 When resolving questions of statutory interpretation,

we first consider the language of the statute, which provides

“the best and most reliable index of a statute’s meaning.”

1
Thomas received 9.25 years for possession of dangerous
drugs for sale, 4.5 years for possession of narcotics, 1.75 years
for possession of drug paraphernalia, and 1.75 years for
possession of marijuana.
3
Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223

(1991); see also State v. Thompson, 200 Ariz. 439, 440 ¶ 6, 27

P.3d 796, 797 (2001). Our primary “goal is ‘to fulfill the

intent of the legislature that wrote [the statute].’” Zamora v.

Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996)

(quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133

(1993)). “When the plain text of a statute is clear and

unambiguous there is no need to resort to other methods of

statutory interpretation to determine the legislature’s intent

because its intent is readily discernable from the face of the

statute.” State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d

1241, 1243 (2003).

¶7 Section 13-604.W.2 defines four categories of

“historical prior felony convictions.”2 The first category,

2
Arizona Revised Statutes § 13-604.W.2 provides:

“Historical prior felony conviction” means:

(a) Any prior felony conviction for which the offense
of conviction:

(i) Mandated a term of imprisonment except for a
violation of chapter 34 of this title involving a drug
below the threshold amount; or

(ii) Involved the intentional or knowing infliction of
serious physical injury; or

(iii) Involved the use or exhibition of a deadly
weapon or dangerous instrument; or

4
defined in subdivision (a), “lists six types of offenses that can

be alleged as historical prior felony convictions no matter when

(iv) Involved the illegal control of a criminal
enterprise; or

(v) Involved aggravated driving under the influence of
intoxicating liquor or drugs, driving while under the
influence of intoxicating liquor or drugs with a
suspended, canceled, revoked or refused driver license
or driving under the influence of intoxicating liquor
or drugs with two or more driving under the influence
of intoxicating liquor or drug convictions within a
period of eighty-four months; or

(vi) Involved any dangerous crime against children as
defined in § 13-604.01.

(b) Any class 2 or 3 felony, except the offenses
listed in subdivision (a) of this paragraph, that was
committed within the ten years immediately preceding
the date of the present offense. Any time spent on
absconder status while on probation or incarcerated is
excluded in calculating if the offense was committed
within the preceding ten years. If a court determines
a person was not on absconder status while on
probation that time is not excluded.

(c) Any class 4, 5 or 6 felony, except the offenses
listed in subdivision (a) of this paragraph, that was
committed within the five years immediately preceding
the date of the present offense. Any time spent on
absconder status while on probation or incarcerated is
excluded in calculating if the offense was committed
within the preceding five years. If a court determines
a person was not on absconder status while on
probation that time is not excluded.

(d) Any felony conviction that is a third or more
prior felony conviction.

A.R.S. § 13-604.W.2 (Supp. 2007). Effective January 1, 2009,
this language appears in A.R.S. § 13-105.22. 2008 Ariz. Sess.
Laws, ch. 301, §§ 10, 15 (2nd Reg. Sess.).

5
they occurred.” Christian, 205 Ariz. at 66-67 ¶ 7, 66 P.3d at

1243-44; § 13-604.W.2(a). The second category, defined in

subdivision (b), includes “[a]ny class 2 or 3 felony” not listed

in subdivision (a) “that was committed within the ten years

immediately preceding the date of the present offense.” § 13-

604.W.2(b). The third category, defined in subdivision (c),

includes “[a]ny class 4, 5, or 6 felony” not listed in

subdivision (a) “that was committed within the five years

immediately preceding the date of the present offense.” § 13-

604.W.2(c). The final category, defined in subdivision (d),

includes “[a]ny felony conviction that is a third or more prior

felony conviction.” § 13-604.W.2(d).

¶8 One of the six types of offenses that can be alleged as

historical prior felony convictions under subdivision (a) is

“[a]ny prior felony conviction for which” a term of imprisonment

is mandated. § 13-604.W.2(a)(i). Thomas concedes that his

conviction for aggravated assault mandated a term of

imprisonment; therefore, as the court of appeals recognized, if

Thomas’s aggravated assault conviction is “a prior felony

conviction,” then it is a “historical prior felony conviction”

for purposes of the statute. See Thomas, 217 Ariz. at 416 ¶ 10,

175 P.3d at 74.

¶9 Thomas’s conviction for aggravated assault occurred

nearly one year prior to his conviction for the drug-related
6
offenses. Therefore, when Thomas was convicted for his drug

offenses, he had a prior conviction for an offense that mandated

imprisonment. The statutory language requires no more to bring

Thomas’s aggravated assault conviction within the terms of

subdivision (a).

¶10 The court of appeals, however, interpreted the statute

as imposing the additional requirement that the enhancing offense

be committed before the offense set for sentencing was committed.

We reject that interpretation of the statute because the

statutory language includes “no requirement as to the timing of

the commission of the enhancing offense with respect to the

commission of the [sentencing] offense.” Id. at 422 ¶ 37, 175

P.3d at 80 (Barker, J., dissenting). The absence of such a

timing requirement means that “[a] ‘prior felony conviction’ may

in fact be a [conviction for a] felony offense that was committed

subsequently.” Id.

¶11 The language chosen by the legislature for subdivisions

(b) and (c), which differs significantly from that in subdivision

(a), bolsters our conclusion. See § 13-604.W.2(b)-(c).

Subdivisions (b) and (c) apply only if the enhancing felony was

committed within the five- or ten-year period “immediately

preceding” commission of the offense set for sentencing. Had the

legislature intended to apply a comparable time-of-commission

limitation to felony convictions that fall within subdivision
7
(a), it surely would have used the same clear language that it

included in subdivisions (b) and (c).3

III.

¶12 Because the language of § 13-604.W.2(a) is clear, we

“‘apply it without resorting to other methods of statutory

interpretation,’ . . . unless application of the plain meaning

would lead to impossible or absurd results.” Bilke v. State, 206

Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003) (quoting Hayes v.

Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)).

Reading subdivision (a) as imposing a timing-of-conviction

requirement and no timing-of-commission requirement, however,

does not “lead to impossible or absurd results.”

¶13 In § 13-604, the legislature

differentiate[d] the treatment of repeat offenders
based on four factors: whether the prior convictions
were serious in nature, whether the prior crimes for
less serious offenses were committed relatively
recently with respect to the present offense, whether
the prior conviction was a third [or more] felony
conviction, or whether the crimes committed on
different occasions were consolidated for trial.4

3
Consistent with this interpretation of subdivisions (b) and
(c), the trial court correctly held that Thomas’s convictions
for unlawful imprisonment and hindering prosecution do not
qualify as historical prior felony convictions because the
offenses do not fall into one of the six categories under
subdivision (a) and the commission of the offenses did not occur
during the specified time period “immediately preceding” the
date of the drug-related offenses.
4
The fourth factor, concerning offenses consolidated for
trial, now appears in § 13-702.02, which replaced a previous
8
Christian, 205 Ariz. at 69 n.11 ¶ 15, 66 P.3d at 1246 n.11.

Under this scheme, as the seriousness of the offense underlying

the prior felony conviction increases, the restrictions on the

use of that conviction to enhance the sentence for a later

conviction decrease.5 The legislative decision to allow a prior

felony conviction for the more serious offenses identified in

subdivision (a) to enhance the sentence for a later offense,

regardless of when the defendant committed the enhancing

offense, does not lead to an impossible or absurd result.

IV.

¶14 Although we have never directly addressed the precise

issue presented today, our holding is consistent with previous

decisions interpreting § 13-604.W.2 and its predecessor

statutes.6

¶15 In State v. Thompson, we discussed the relationship

subdivision of § 13-604. Christian, 205 Ariz. at 69 n.11 ¶ 15,
66 P.3d at 1246. Section 13-702.02 treats this situation less
severely than was true under the previous version of § 13-604.
Id.
5
The types of offenses the legislature considered to be most
serious include those listed in subdivision (a). See supra note
2.
6
In 2001, when we first considered language substantially
similar to the present form, the relevant language appeared in §
13-604.V.1. See A.R.S. § 13-604.V.1 (2001). In 2003, the
legislature redesignated subdivision V.1 as V.2 and, in 2005,
the legislature redesignated subsection V as subsection W. See
2003 Ariz. Sess. Laws, ch. 11, § 1 (1st Reg. Sess.); 2005 Ariz.
Sess. Laws, ch. 188, § 1 (1st Reg. Sess.).
9
between time of offense and time of conviction for offenses that

fall under subdivision (c). 200 Ariz. at 440-41 ¶ 6, 27 P.3d at

797-98. There, we specifically considered whether conviction for

an enhancing offense must precede commission of the sentencing

offense if the enhancing offense is to be considered a prior

felony conviction.7 Id. at 440-41 ¶¶ 5-6, 27 P.3d at 797-98. We

held that subdivision (c), which includes timing-of-commission

language, requires that commission of “the prior offense must

precede the present offense.” Id. at 441 ¶ 6, 27 P.3d at 798.

Although we did not directly address subdivision (a), we observed

in dicta that the term “prior felony conviction” means that “the

conviction on the prior offense must precede the conviction on

the present offense” and that the definitions of “historical

prior felony conviction” in subdivisions (a) and (d) “presuppose

a conviction on the prior offense.” Id.

¶16 In State v. Phillips, we more directly addressed the

issue of whether subdivision (a) requires that a conviction for

the enhancing offense must precede commission of the sentencing

7
Thompson committed his second felony offense after he
committed the first two related felonies, but before he was
convicted of those offenses. Thompson, 200 Ariz. at 440 ¶ 2, 27
P.3d at 797. He pled guilty to the first felonies, but because
he absconded, he was not sentenced for them. Id. Eventually he
was taken into custody, found guilty of the second felony
offense, and sentenced in a consolidated hearing on all three
offenses. Id. The trial court enhanced Thompson’s sentence
pursuant to § 13-604.V.1(c), the predecessor to § 13-604.W.2(c).
Id. at 440 ¶ 3, 27 P.3d at 797.
10
offense. 202 Ariz. 427, 441 ¶¶ 77-78, 46 P.3d 1048, 1062

(2002).8 Phillips and an accomplice committed a series of

robberies on April 12, 24, and 28. Id. at 441 ¶ 77, 46 P.3d at

1062. Acting alone, Phillips committed an additional robbery on

April 26. Id. The trial court used Phillips’ conviction of the

April 26 robbery, which was entered first, as a historical prior

felony conviction to enhance the April 12, 24, and 28 robbery

sentences. Id. Phillips argued that the April 26 robbery could

not be considered a prior felony conviction because he had not

been convicted of that robbery when he committed the other

robberies. Id. We agreed with the trial court that the timing-

of-conviction requirement in § 13-604.W.2(a) allowed use of the

April 26 conviction as a historical prior felony “for purposes of

enhancing the . . . sentences stemming from the April 12, 24, and

28 robberies.” Id. at 441 ¶ 78, 46 P.3d at 1062. Today’s

holding comports with these previous decisions.

V.

¶17 Because Thomas was convicted of aggravated assault

before he was convicted of the drug-related offenses, the

aggravated assault conviction qualifies as a historical prior

felony conviction. Accordingly, we vacate the opinion of the

8
Although we did not specifically cite § 13-604.W.2(a) as
the relevant sentencing statute, the discussion of the nature of
the offenses and the timing of their commission makes clear that
this statute applied.
11
court of appeals and affirm the sentences imposed by the trial

court.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

12