State v. Bowsher

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0019-PR
Respondent, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 09-0151 PRPC
BRAD ALAN BOWSHER, )
) Pima County
Petitioner. ) Superior Court
) Nos. CR20071229 and
) CR20074297
) (Consolidated)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Gus Aragon, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals Division Two
223 Ariz. 177, 221 P.3d 368 (2009)

VACATED
________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Jacob R. Lines, Deputy County Attorney
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By David J. Euchner
Attorneys for Brad Bowsher
________________________________________________________________

P E L A N D E R, Justice

¶1 The issue for decision is whether a trial court may

impose consecutive terms of probation on a defendant convicted

of unrelated offenses. We hold that Arizona Revised Statutes
(“A.R.S.”) section 13-903(A) (2010) authorizes that disposition.

I.

¶2 Bowsher was charged in two separate indictments with

ten felonies. Pursuant to a plea agreement, he pleaded guilty

to one count of theft by control in each case; each count

involved a different victim and event. The trial court placed

Bowsher on probation for four years in both matters and ordered

the probation terms to be served consecutively. Bowsher

petitioned for post-conviction relief, arguing that the trial

court lacked authority to impose consecutive terms of probation.

The superior court denied relief.

¶3 The court of appeals granted review but also denied

relief. State v. Bowsher, 223 Ariz. 177, 177 ¶ 4, 221 P.3d 368,

368 (App. 2009). The court rejected Bowsher’s argument that

consecutive terms of probation were forbidden by State v.

Pakula, 113 Ariz. 122, 547 P.2d 476 (1976), relying on our

statement in State v. Jones, 124 Ariz. 24, 26, 601 P.2d 1060,

1062 (1979), that Pakula must “be strictly limited to cases

wherein there is one indictment involving multiple counts.”

Bowsher, 223 Ariz. at 178 ¶ 8, 221 P.3d at 369.

¶4 We granted review to address a recurring issue of

statewide importance and to resolve the possible tension between

Pakula and Jones. We have jurisdiction under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
2
 II.

¶5 We review for abuse of discretion a trial court’s

denial of a petition for post-conviction relief, State v.

Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990), but review

issues of law de novo, State v. Pandeli, 215 Ariz. 514, 522

¶ 11, 161 P.3d 557, 565 (2007).

¶6 Trial courts have no inherent authority to suspend a

prison sentence and impose probation. State v. Bigelow, 76

Ariz. 13, 18, 258 P.2d 409, 412 (1953). Rather, such power

“must be found in the statutes of the state.” Id.

¶7 Section 13-903(A) states, “A period of probation

commences on the day it is imposed or as designated by the

court, and an extended period of probation commences on the day

the original period lapses” (emphasis added). The word “or”

generally means “[a] disjunctive particle used to express an

alternative or to give a choice of one among two or more

things.” Black’s Law Dictionary 1095 (6th ed. 1990); see also

North Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz.

301, 306 ¶ 26, 93 P.3d 501, 506 (2004) (concluding that

statutory use of disjunctive “or” when “[p]lainly read” suggests

alternatives among listed items). Because § 13-903(A) is

written in the disjunctive, it allows trial courts to begin a

probation term either on the date the defendant is sentenced or

on another day designated by the judge. The statute thus does
3
not on its face prevent the judge from imposing consecutive

probation terms.

¶8 Interpreting the phrase “or as designated by the

court” in § 13-903(A) to allow consecutive terms of probation is

also consistent with the statute’s history. The Legislature

enacted § 13-903 in 1978 as part of its comprehensive revision

of Arizona’s criminal statutes. In that new section, the

Legislature adopted language recommended by the Arizona Criminal

Code Commission in its 1975 proposed draft for the new criminal

code. See Arizona Criminal Code Commission, Arizona Revised

Criminal Code, at § 802(a) (1975).

¶9 The Commission and the Legislature generally relied on

the Model Penal Code (“MPC”) in drafting Arizona’s revised

criminal statutes. See State v. Cox, 217 Ariz. 353, 356 ¶ 16,

174 P.3d 265, 268 (2007); State v. Mott, 187 Ariz. 536, 540, 931

P.2d 1046, 1050 (1997); 1 Rudolph J. Gerber, Criminal Law of

Arizona 1-2 (2d ed. 1993) (noting the Commission’s “research[]”

into the MPC). The MPC explicitly requires probation terms to

run concurrently:

When a defendant is sentenced for more than one offense or
a defendant already under sentence is sentenced for another
offense committed prior to the former sentence[,]
. . . multiple periods of suspension or probation shall run
concurrently from the date of the first such disposition[.]

Model Penal Code § 7.06(6)(b) (Official Draft 1962) (emphasis

added).
4
¶10 The Commission, however, did not recommend adoption of

that MPC section. And, although the Legislature adopted many

MPC provisions, it chose to not enact that one, instead opting

for the language in § 13-903(A).1 The Legislature’s action

“evidences its rejection” of the MPC section. See Mott, 187

Ariz. at 540, 931 P.2d at 1050 (noting the Legislature declined

to adopt the MPC’s defense of diminished capacity “when

presented with the opportunity to do so”); see also State v.

King, 225 Ariz. 87, ___ ¶ 11, 235 P.3d 240, 243 (2010)

(concluding that Arizona adopted an objective standard for self-

defense rather than the MPC’s subjective standard).

¶11 Although § 13-903(A) does not explicitly provide for

consecutive terms of probation, our interpretation of its

language is the most plausible.2 Because multiple probation

1
The 1970 Study Draft of a New Federal Criminal Code mirrored
the MPC, providing that multiple probation periods, “whether
imposed at the same time or at different times, shall run
concurrently.” The National Commission on Reform of Federal
Criminal Laws, Study Draft of a New Federal Criminal Code, at
§ 3104(1) (1970). Unlike Arizona, other states chose to adopt
that requirement. E.g., Ark. Code Ann. § 5-4-307(b)(1) (West
2010); Conn. Gen. Stat. Ann. § 53a-31(a) (2010); Mo. Ann. Stat.
§ 559.036(1) (2010); N.C. Gen. Stat. § 15A-1346(a) (West 2010).
Current federal law also requires multiple probation terms to
run concurrently. 18 U.S.C. § 3564(b) (2006).
2
In other statutes, the Legislature has expressly precluded or
prescribed consecutive sentences. See A.R.S. § 13-116 (2010)
(“An act or omission which is made punishable in different ways
by different sections of the laws may be punished under both,
but in no event may sentences be other than concurrent.”);
A.R.S. § 13-711(A) (2010) (providing that “if multiple sentences
5
terms can run only concurrently or consecutively, forbidding

consecutive terms of probation would be tantamount to mandating

that multiple probation terms run concurrently. Thus,

interpreting Arizona’s probation statutes as not authorizing

consecutive terms of probation effectively reads into the

statutes the same concurrent-term mandate the Legislature

declined to adopt from the MPC. We cannot usurp the

Legislature’s prerogative in that fashion on matters within its

exclusive domain. See State v. Casey, 205 Ariz. 359, 362 ¶ 10,

71 P.3d 351, 354 (2003).

¶12 Bowsher argues the phrase “as designated by the court”

in § 13-903(A) must be read in conjunction with A.R.S. § 13-

901(A) (2010), which states a probation period shall begin

“without delay.” According to Bowsher, § 13-901(A) requires a

probation term to commence the day it is imposed unless some

other rule or statute prevents the term from beginning then.

For example, A.R.S. § 13-903(E) provides that when a term of

probation is imposed on one already serving a prison sentence,

probation does not commence until the prison sentence is served.

of imprisonment are imposed on a person at the same time, the
sentence or sentences imposed by the court shall run
consecutively unless the court expressly directs otherwise”).
That the Legislature has specifically directed or barred
consecutive sentences in other circumstances, however, does not
undermine the statutory authorization for consecutive probation
terms created by the disjunctive, discretionary language the
Legislature deliberately chose to use in § 13-903(A).
6
Only in such instances, Bowsher contends, does the option of “as

designated by the court” apply, allowing the judge to set an

alternate start date.

¶13 We disagree with this reading for two reasons. First,

no legislative history supports limiting the words “as

designated by the court” in the way Bowsher argues; indeed, the

history cited above expressly suggests that the Legislature

meant to authorize consecutive terms of probation. Second,

Bowsher’s proposed literal interpretation of the phrase “without

delay” in § 13-901(A) unduly limits the phrase “as designated by

the court” in § 13-903(A).3 Because delay occurs any time a

judge designates a start date different from the date the

probation is imposed, Bowsher’s interpretation would deprive

trial judges of the choice explicitly granted by § 13-903(A).

¶14 When construing two statutes, this Court will read

them in such a way as to harmonize and give effect to all of the

provisions involved. Pima County ex rel. City of Tucson v. Maya

Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).

The Legislature presumably would not have framed § 13-903(A) in

the disjunctive had it meant the phrase “without delay” in § 13-

3
In upholding a probation term that ran consecutively to a
prison sentence, the court of appeals refused to interpret
“without delay” literally.  See State v. Ball, 157 Ariz. 382, 384-
85, 758 P.2d 653, 655-56 (App. 1988) (stating the phrase
“without delay” in § 13-901(A) “cannot be literally read to mean
that all probations which are imposed must begin immediately”).
7
901(A) to invariably require a probation term to begin on the

day it is imposed except as otherwise expressly provided by law.4

We hold that § 13-903(A) authorizes trial courts to impose

consecutive terms of probation.

III.

¶15 In urging a contrary conclusion, Bowsher relies

largely on Pakula, in which this Court found “no specific

authority for consecutive terms of probation,” 113 Ariz. at 125,

547 P.2d at 479, and Jones, which stated that the Court “[did]

not retreat from” Pakula’s holding “that consecutive sentences

of probation are unlawful.” 124 Ariz. at 27, 601 P.2d at 1063.

We find Pakula obsolete and the dictum in Jones neither

controlling nor persuasive.

¶16 In Pakula, the defendant was charged in one

information with eleven counts. 113 Ariz. at 123, 547 P.2d at

477. The trial court sentenced him to prison on the first count

and imposed consecutive three-year terms of probation on each

remaining count. Id. This Court held that the sentence was

unlawful because, among other things, no statute permitted the

4
Harmonizing the two statutes, we conclude that the authority
granted in § 13-903(A) to impose consecutive terms of probation
is limited by the “without delay” provision in § 13-901(A), such
that the trial court does not have unfettered discretion to
postpone the onset of probation indefinitely into the future.
For example, a judge seeking to impose two consecutive probation
terms must designate that the second term begins immediately
after the first term ends.
8
superior court, “on multiple counts in the same information, to

impose consecutive periods of probation,” id. at 124, 547 P.2d

at 478, or a period of probation after a prison term. Id. at

125, 547 P.2d at 479.

¶17 Pakula, however, predated the Legislature’s 1978

overhaul of Arizona’s criminal code, including enactment of

A.R.S. § 13-903. That case therefore provides no aid in

interpreting the current statute.

¶18 In Jones, we held that a trial court, when sentencing

a defendant on different counts in separate indictments, may

simultaneously impose a prison term on one count, followed by

probation on the second. 124 Ariz. at 25-26, 601 P.2d at 1061-

62. Jones “strictly limited [Pakula’s rationale] to cases

wherein there is one indictment involving multiple counts”

because, when multiple indictments exist, “one judge may do in

each of the separate indictments what two judges could do at

different times with the same separate indictments.” Id. at 26,

601 P.2d at 1062.

¶19 Our statement in Jones that we “[did] not retreat

from” Pakula’s holding “that consecutive sentences of probation

are unlawful,” id. at 27, 601 P.2d at 1063, plainly was dictum.

The trial court in Jones sentenced the defendant to a prison

term, followed by probation. Id. at 25, 601 P.2d at 1061. More

importantly, the Court suggested in Jones that Pakula was
9
illogical, noting that “[t]here is logically no reason why a

judge should not be able to do in one two-count indictment what

he could also do in two one-count indictments.” Id. at 26, 601

P.2d at 1062.

¶20 We now recognize that the Jones dictum was incorrect -

§ 13-903(A) allows imposition of consecutive terms of probation

whether or not the charges are made in the same indictment.

Moreover, Jones did not expressly recognize that the criminal

code had been revised since Pakula. The court of appeals did

not err in relying on our prior cases here. But, in order to

avoid future confusion, we today expressly disavow the Jones

dictum and hold that trial courts have discretion to make terms

of probation consecutive, whether or not the charges on which

the convictions are based were in the same indictment or

separate indictments.

IV.

¶21 Our conclusion comports not only with the most

reasonable reading of § 13-903(A), but also with public policy

considerations. In sentencing a defendant for multiple

convictions, trial judges might seek to impose a distinct

sanction for each count. If trial courts cannot achieve that

effect by using consecutive terms of probation, they could be

forced to combine a prison sentence with subsequent probation,

as Jones allows, even though they otherwise would not have
10
sentenced the defendant to a prison term at all. This result

needlessly increases the state’s prison population and is

contrary to the rehabilitative goals of the probation statutes.

See State v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118

(1975) (recognizing probation as “a sentencing alternative which

a court may use in its sound judicial discretion when the

rehabilitation of the defendant can be accomplished with

restrictive freedom rather than imprisonment”). In addition, a

rule that consecutive probation terms may only be imposed where

multiple offenses are charged in separate indictments might

undesirably discourage the consolidation of charges, even when

otherwise warranted by concerns for judicial economy or

practicality.

¶22 Bowsher argues that allowing consecutive terms of

probation could lead to the “absurd result” of judges stacking a

large number of such terms, creating what is essentially a

lifetime probation term. But the Legislature has already

authorized lifetime probation terms for certain offenses. See

A.R.S. § 13-902(E). And if the Legislature was concerned with

this prospect, it could have adopted the MPC’s explicit

concurrent-term requirement.

V.

¶23 Finally, Bowsher argues that if the law now allows

consecutive probationary terms, contrary to Pakula, that change
11
was unforeseeable and, therefore, cannot be retroactively

applied to him without violating due process. Cf. State v.

Womble, 225 Ariz. 91, ___ ¶¶ 24-32, 235 P.3d 244, 251-53 (2010)

(holding that application of rule allowing elimination of

witness to another crime to form exclusive basis for finding of

aggravating factor under A.R.S. § 13-751(F)(6) (2010) was not

unforeseeable and retroactive change in the law). But in light

of the Legislature’s post-Pakula enactment of § 13-903(A), any

reliance on that case is unavailing. Nor can Bowsher claim

reliance on the Jones dictum, because that case limited Pakula

and clearly implied that a trial court could legally impose

consecutive terms of probation for offenses charged under two

separate indictments. That is precisely what occurred here.

VI.

¶24 For the reasons stated above, we vacate the court of

appeals’ opinion and affirm the trial court’s order denying

post-conviction relief.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

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_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
James A. Soto, Presiding Judge*

* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable James A. Soto, Presiding Judge of the Santa Cruz
County Superior Court, was designated to sit on this matter.

13