State v. Diaz

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0257-PR
)
Appellee, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CR 08-0024
)
) Cochise County
DANIEL DIAZ, ) Superior Court
) No. CR-200700013
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Cochise County
The Honorable Charles A. Irwin, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
222 Ariz. 188, 213 P.3d 337 (2009)

VACATED IN PART
________________________________________________________________

EDWARD G. RHEINHEIMER, COCHISE COUNTY ATTORNEY Bisbee
By David R. Pardee, Deputy County Attorney
José A. Ceja, Deputy County Attorney
Attorneys for State of Arizona

THE LAW OFFICES OF KELLY A. SMITH Yuma
By Kelly A. Smith
Attorney for Daniel Diaz
________________________________________________________________

B E R C H, Chief Justice

¶1 The question in this case is whether a defendant

convicted of possessing methamphetamine for sale who has two
non-methamphetamine-related historical prior felony convictions

was properly sentenced under Arizona’s general repetitive

offender statute rather than a statute applicable to certain

methamphetamine-related offenses. We hold that the

methamphetamine sentencing statute does not prohibit the trial

court from enhancing the sentence of a defendant who has non-

methamphetamine-related historical prior convictions under the

general repetitive offender statute.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2007, Daniel Diaz was convicted of possessing

methamphetamine for sale. He admitted that he was on felony

probation when the offense occurred and had two historical prior

felony convictions, neither of which involved methamphetamine.

¶3 Diaz claimed that he should be sentenced under Arizona

Revised Statutes (A.R.S.) § 13-709.03 (2010),1 a special

sentencing statute applicable to certain drug offenses including

possession of methamphetamine for sale. The trial court instead

sentenced Diaz under A.R.S. § 13-703(C) (2010), the general

statute applicable to repetitive offenders, to an aggravated

term of twenty-five years.

1
We apply the substantive law that was in effect when Diaz
committed the offense. See A.R.S. § 1-246 (2002); State v.
Newton, 200 Ariz. 1, 2 ¶ 3, 21 P.3d 387, 388 (2001). The
applicable sentencing statutes have been edited and renumbered
since Diaz committed the offense, but have not changed in
substance. We therefore cite the current statutes.
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¶4 Diaz appealed. The court of appeals affirmed his

conviction, but remanded for resentencing, finding that the

trial court applied the wrong sentencing statute. State v.

Diaz, 222 Ariz. 188, 192 ¶¶ 13-15, 213 P.3d 337, 341 (App.

2009). Although characterizing the lesser penalty imposable

under A.R.S. § 13-709.03 as “clearly at odds with the overall

sentencing scheme, which typically punishes recidivism and

singles out methamphetamine use for additional penalties,” id.

at ¶ 14 (citations omitted), the court of appeals nonetheless

found the special methamphetamine sentencing statutes

controlling, id. at ¶ 15.

¶5 We granted review because interpretation of our

criminal sentencing statutes is a recurring issue of statewide

importance. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶6 Diaz was convicted of “knowingly . . . [p]ossess[ing] a

dangerous drug for sale,” a class two felony. A.R.S. § 13-

3407(A)(2) (2010) (possession for sale); id. § (B)(2) (class two

felony). Section 13-3407(E) provides that any person convicted

of selling methamphetamine “shall be sentenced pursuant to § 13-

709.03, subsections A or B.”

¶7 Section 13-709.03(A), the provision applicable to a

first-time offender who possesses methamphetamine for sale,
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doubles the five-year term generally applicable to possession-

for-sale offenses if the drug involved is not methamphetamine.

It provides that one convicted of possessing methamphetamine for

sale “shall be sentenced” to a presumptive term of ten calendar

years, which may be mitigated or aggravated by up to five years.

Compare A.R.S. § 13-702(D) (2010) (listing five-year term as the

presumptive sentence for a first-time offender convicted of a

class two felony), with A.R.S. § 13-709.03(A) (listing ten-year

term as the presumptive sentence for possession of

methamphetamine for sale). Section 13-709.03(B) provides an

enhanced sentence for defendants convicted of possessing

methamphetamine for sale who have “previously been convicted of

[certain drug-related offenses specified in A.R.S. § 13-3407]

involving methamphetamine” – that is, it increases the sentence

for defendants convicted of possessing methamphetamine for sale

if they also have certain methamphetamine-related priors.2

¶8 Diaz contends that because the State elected to charge

him with a methamphetamine-related offense, it was required to

2
In addition to increasing the penalty for those who have
prior methamphetamine-related convictions, § 13-709.03(B) also
extends the time a prior methamphetamine-related offense may be
used to enhance a sentence. Section 13-709.03(B) permits the
use of a previous conviction for a violation of § 13-3407
regardless of how long before the current offense the previous
conviction occurred. Our repetitive offender sentencing scheme,
in contrast, generally permits use of a prior class two felony
conviction only if committed within the preceding ten years.
A.R.S. § 13-105(22)(b) (2010).
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sentence him under the sentencing scheme set forth in A.R.S.

§ 13-3407(E) and § 13-709.03, and, as a result, the maximum

sentence he could receive was an aggravated sentence of fifteen

years under § 13-709.03(A).

¶9 The State, on the other hand, maintains that the trial

court properly sentenced Diaz under A.R.S. § 13-703(C) and (J),

which govern sentencing for repetitive offenders who have two or

more prior historical felony convictions. See A.R.S. § 13-

105(22) (defining historical prior felony conviction). Under

§ 13-703(J), the presumptive class two felony sentence for a

repetitive offender who has two or more prior felony convictions

is 15.75 years, which may be aggravated up to 35 years. Section

13-703(N) requires that “[t]he penalties prescribed by this

section shall be substituted for the penalties otherwise

authorized by law if an allegation of prior conviction is

charged in the indictment or information and admitted or found

by the court.” Diaz does not contest that the State properly

alleged that he had prior historical felony convictions and, at

sentencing, he admitted having two such convictions.

¶10 Thus, we are faced with allegedly conflicting statutory

sentencing provisions, both of which contain the directory

language “shall.” We review this statutory interpretation issue

de novo. State v. Gomez, 212 Ariz. 55, 56 ¶ 3, 127 P.3d 873,

874 (2006). We look first at the language of the statutes to
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determine their meaning, State v. Williams, 175 Ariz. 98, 100,

854 P.2d 131, 133 (1993), and examine related statutes in the

statutory scheme, which may shed light on the proper

interpretation of the statutes in question; we also attempt to

harmonize competing sentencing statutes if it is possible to do

so. See, e.g., State v. Tarango, 185 Ariz. 208, 210, 914 P.2d

1300, 1302 (1996) (citing cases); State v. Deddens, 112 Ariz.

425, 429, 542 P.2d 1124, 1128 (1975).

¶11 Diaz does not dispute that he could be sentenced to an

aggravated term of fifteen years under § 13-709.03(A) for the

possession-for-sale conviction. He contends, however, that

because the State charged him under § 13-3407, the court was

required to sentence him only under § 13-709.03. See § 13-

3407(E) (providing that a person convicted of particular

methamphetamine offenses “shall be sentenced pursuant to § 13-

709.03”). This statutory language, Diaz claims, precludes

application of the repetitive offender provisions of § 13-703 to

him regardless of his prior criminal history. He correctly

observes that the repetitive offender provision in § 13-

709.03(B) does not apply to him because he has not been

convicted of a previous drug offense “involving

methamphetamine.”

¶12 The State, on the other hand, maintains that the court

may use Diaz’s prior non-methamphetamine-related convictions to
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enhance his sentence under § 13-703 because no language in § 13-

709.03 expressly precludes such a result. Doing so, the State

argues, furthers the legislative policy of punishing repeat

offenders more severely than those who have committed no prior

offenses.

¶13 We agree with the State. Section 13-709.03(B) does not

address prior convictions for non-methamphetamine-related

offenses, and no other language in that statute precludes the

application of the general repetitive offender sentencing

provision. See State v. Laughter, 128 Ariz. 264, 269, 625 P.2d

327, 332 (App. 1980) (finding that because Arizona’s dangerous

offenses penalty statute was silent on whether its provisions

superseded those in the repetitive offender sentencing statute,

the trial court did not err in sentencing the defendant as a

repetitive offender).

¶14 We find instructive the analysis in Tarango, 185 Ariz.

at 210-11, 914 P.2d at 1302-03. In addressing differing parole

eligibility provisions provided by a narcotics sentencing

statute and the general repetitive offender sentencing statute,

we found that the general sentencing provisions applied

notwithstanding the existence of a specific statute seeming to

require the imposition of flat-time sentences for certain

offenses. Id. We recognized the limited application of the

specific statute and found that the broader language in the
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general sentencing provision controlled. Id. at 212, 914 P.2d

at 1304.

¶15 The statute we construed in Tarango, the predecessor of

§ 13-703(N), similarly provided that the “penalties prescribed

by this section shall be substituted for the penalties otherwise

authorized by law” if the defendant’s prior convictions are

properly charged and admitted by the defendant or found by the

trier of fact. Id. at 209, 914 P.2d at 1301 (quoting former

A.R.S. § 13-604(K), now § 13-703(N)). We found this language

“plain and unambiguous,” id. at 209, 914 P.2d at 1301, and held

that, “[w]hen the state seeks the enhanced penalties for repeat

offenders, former A.R.S. § 13-604 [now 13-703] provides an

exclusive sentencing scheme,” id. at 209-10, 914 P.2d at 1301-

02.

¶16 The same remains true today. We therefore hold that,

absent an express exclusion in a separate provision of our

statutory sentencing scheme, the State may pursue enhanced

penalties against a repetitive offender under A.R.S. § 13-703.

¶17 This result harmonizes provisions in our statutory

scheme, comports with our case law, and supports the

legislature’s determination that repeat offenders should suffer

harsher penalties than first-time offenders. See State v.

Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985) (finding

that “[t]he aim of the legislature in enacting provisions for
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enhanced or mandatory sentences for repeat offenders . . . is to

treat more severely those who have prior felony convictions”).

It leaves in place and applicable in a proper case § 13-

709.03(B), which will apply to those defendants who have

methamphetamine-related prior convictions.

III. CONCLUSION

¶18 For the reasons above, we vacate ¶¶ 7–14 of the court

of appeals’ opinion and affirm the sentence imposed on Diaz by

the trial court.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
Margaret H. Downie, Judge*

*Justice A. John Pelander has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
The Honorable Margaret H. Downie, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.

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