State Ex Rel. Romley v. Hauser

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA ) Arizona Supreme Court
ex rel. RICHARD M. ROMLEY, ) No. CV-04-0321-SA
Maricopa County Attorney, )
)
Petitioner, ) Court of Appeals
) Division One
v. ) No. 1 CA-SA 04-0199
)
HON. BRIAN R. HAUSER, JUDGE OF ) Maricopa County
THE SUPERIOR COURT OF THE STATE ) Superior Court
OF ARIZONA, in and for the ) No. CR2004-012682-001DT
County of Maricopa, )
)
Respondent, ) O P I N I O N
and )
)
MARK D. DANCY, aka SHAWN WOODS, )
)
Real Party in Interest. )
________________________________ )

Special Action from the Superior Court of Maricopa County
The Honorable Brian R. Hauser, Judge
No. CR2004-012682-001DT

JURISDICTION ACCEPTED, RELIEF GRANTED

RICHARD M. ROMLEY, FORMER MARICOPA COUNTY ATTORNEY Phoenix
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY
By: Gerald R. Grant, Deputy County Attorney
Attorneys for Petitioner

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By: Edith M. Lucero, Deputy Public Defender
Attorneys for Real Party in Interest

Gregory T. Parzych Mesa
Attorney for Amicus Curiae
Arizona Attorneys for Criminal Justice
H U R W I T Z, Justice

¶1 Real party in interest Mark Dancy was indicted for

theft of a means of transportation, a class three felony, in

violation of Arizona Revised Statutes (“A.R.S.”) § 13-1814

(2001). The State amended the indictment to allege prior

offenses for purposes of sentencing enhancement under A.R.S. §

13-702.02 (2001). The amendment alleged that Dancy had

committed theft, a class six felony, on February 24, 1991, for

which he was convicted on July 22, 1999, and possession of

marijuana, also a class six felony, on April 28, 1994, for which

he was convicted on January 21, 1997.

¶2 Dancy moved to strike these allegations because the

prior convictions involved offenses committed more than five

years before the current alleged offense and thus could not be

used for sentence enhancement under A.R.S. § 13-604(V)(2)(c)

(Supp. 2004). The State argued in response that the time limits

in § 13-604(V)(2)(c) do not apply to sentence enhancement under

§ 13-702.02. The superior court granted Dancy’s motion and

stayed the trial pending the resolution of the State’s special

action petition. The court of appeals declined special action

jurisdiction and the State filed a special action petition in

this court.

¶3 We accepted jurisdiction of the State’s petition

because the issue is one of statewide importance, is likely to

2
recur, and the State has no adequate remedy by appeal. See

Ariz. R.P. Spec. Act. 8(a).1 We have jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §

12-120.24 (2003).

I.

¶4 The sole issue before us is whether a prior felony

conviction that falls outside the definition of a “historical

prior felony conviction” in A.R.S. § 13-604(V) may nonetheless

be used for sentence enhancement under § 13-702.02. We review

decisions involving statutory construction de novo. State v.

Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). In

such cases “we begin with the text of the statute. This is so

because the best and most reliable index of a statute’s meaning

is the plain text of the statute.” Id.

II.

¶5 Section 13-702.02(A) provides:

A person who is convicted of two or more felony
offenses that were not committed on the same occasion

1
Although we exercised our discretion to accept jurisdiction
of the State’s special action petition, we stress that, in the
absence of “exceptional circumstances,” the refusal of the court
of appeals to take jurisdiction of a special action “shall be
reviewed by the Supreme Court only upon petition for review.”
Ariz. R.P. Spec. Act. 8(b). The fact that time is of the
essence is in itself normally not an exceptional circumstance
justifying the filing of a new special action petition in this
court after denial of jurisdiction by the court of appeals.
Id., Court Cmt. [2000 Amendment]. In such cases, the proper
procedure is to file a petition for review with a motion seeking
expedited consideration. Id.

3
 but that either are consolidated for trial purposes or
are not historical prior felony convictions as defined
in section 13-604 shall be sentenced, for the second
or subsequent offense, pursuant to this section.

¶6 Under this subsection, two distinct types of felony

convictions trigger the sentencing enhancement provisions of §

13-702.02: (1) those that “were not committed on the same

occasion” but “are consolidated for trial purposes” and (2)

those that “were not committed on the same occasion” and “are

not historical prior felony convictions as defined in section

13-604.” See State v. Thompson, 200 Ariz. 439, 441 ¶ 9, 27 P.3d

796, 798 (2001).

¶7 This case does not involve offenses consolidated for

trial purposes. Therefore, the only question is whether the

alleged prior felony offenses “are not historical prior felony

convictions as defined in section 13-604.”

¶8 Section 13-604 provides enhanced sentences for

defendants who are convicted of a felony and have a “historical

prior felony conviction.” As we have previously explained,

whether a prior felony conviction falls within the definition of

“historical prior felony conviction” in § 13-604(V) generally

depends on the seriousness and age of the prior offense. See

Christian, 205 Ariz. at 66-67 ¶¶ 7-8, 66 P.3d at 1243-44. At

issue in this case is § 13-604(V)(2)(c), which defines

“historical prior felony conviction” in relevant part as “[a]ny

4
class 4, 5 or 6 felony . . . that was committed within the five

years immediately preceding the date of the present offense.”

¶9 The amended indictment alleges two prior convictions

for class six felonies; each prior offense was committed more

than five years preceding the date of the offense alleged in

this case. Thus, Dancy’s two prior felony convictions “are not

historical prior felony convictions as defined in section 13-

604.” See Thompson, 200 Ariz. at 441 ¶ 9, 27 P.3d at 798

(“[W]hen felonies are tried together, any enhancement must be

pursuant to A.R.S. § 13-702.02. Additionally, any prior offense

that predates the present offense by more than the period

prescribed by A.R.S. § 13-604(V)(1)(b) or (c) [now (V)(2)(b) or

(c)] is covered by A.R.S. § 13-702.02.”). The plain language of

§ 13-702.02 thus provides that Dancy can be sentenced, if

convicted of the current theft charge, pursuant to that statute.

III.

¶10 “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.” Christian, 205 Ariz. at 66 ¶ 6, 66 P.3d at 1243.

Dancy nonetheless argues that application of the enhancement

provisions of § 13-702.02 to his case would be contrary to the

legislature’s intent and would lead to an absurd result.

5
 A.

¶11 Dancy contends that the history of the statutory

scheme demonstrates that the legislature did not intend § 13-

702.02 to allow sentence enhancement on the basis of offenses

falling outside the time limitations of § 13-604(V). To the

contrary, the statutory history is quite consistent with the

statute’s plain language.

¶12 Under the version of A.R.S. § 13-604 in effect prior

to 1993, a defendant convicted of multiple offenses not

committed on the same occasion but consolidated for trial could

be sentenced as a repeat offender. See A.R.S. § 13-604(H)

(1989) (“Convictions for two or more offenses not committed on

the same occasion but consolidated for trial purposes, may, at

the discretion of the state, be counted as prior convictions for

purposes of this section.”).

¶13 In 1993, the legislature eliminated the “consolidated

for trial” provision of § 13-604(H) (and redesignated this

subsection as § 13-604(M)), and thus put an end to sentence

enhancement under § 13-604 for “prior” convictions occurring at

the same trial. 1993 Ariz. Sess. Laws, ch. 255, § 7; see

Thompson, 200 Ariz. at 441 ¶ 8, 27 P.3d at 798 (discussing

legislative history).2 But, instead of allowing a defendant to

2
The 1993 amendments made a number of other significant
changes to the statutory framework. Among other changes, the

6
avoid all sentence enhancement from a “prior” conviction

obtained at the same trial as the principal offense, the

legislature created a new statute, A.R.S. § 13-702.02, providing

for a less punitive range of enhancement when a defendant “is

convicted of two or more felony offenses not committed on the

same occasion but consolidated for trial purposes.” 1993 Ariz.

Sess. Laws, ch. 255, § 12 (codified at A.R.S. § 13-702.02(A)

(Supp. 1993)); see Thompson, 200 Ariz. at 441 ¶ 9, 7 P.3d at 798

(discussing legislative history).

________________________________________
legislature enacted revised time limits on the use of prior
convictions for sentence enhancement under § 13-604. 1993 Ariz.
Sess. Laws, ch. 255, § 7 (codified at § 13-604(V)); see
Christian, 205 Ariz. at 68 ¶ 15 n.11, 66 P.3d at 1245. The
legislature also changed the relevant inquiry with respect to
the time limits. Before 1993, the relevant measurement was from
the date of the prior conviction to the date of the present
offense. See A.R.S. § 13-604(A) (1989) (“[A] person who . . .
stands convicted of a class 3, 4, or 5 felony . . . and who has
previously been convicted of any felony within ten years next
preceding the date of the present offense.”). Since 1993, the
relevant measurement has been from the date of the prior offense
to the date of the present offense. See A.R.S. § 13-
604(V)(2)(b) (“Any class 2 or 3 felony . . . that was committed
within the ten years immediately preceding the date of the
present offense.”); A.R.S. § 13-604(V)(2)(c) (“Any class 4, 5 or
6 felony . . . that was committed within the five years
immediately preceding the date of the present offense.”). These
changes to the measurement calculus were designed to eliminate
so-called “Hannah priors.” See State v. Hannah, 126 Ariz. 575,
617 P.2d 527 (1980) (holding that under prior version of statute
sequence of convictions, rather than offenses, determined
eligibility for enhancement); State ex rel. Collins v. Superior
Court, 142 Ariz. 280, 282, 689 P.2d 539, 541 (1984) (relying on
Hannah for the proposition that “it [was] not necessary that the
‘prior conviction’ be also a prior offense”).

7
¶14 Dancy argues that the 1993 amendments were intended to

do away with sentence enhancement based on prior felony

convictions not meeting the definition of “historical prior

felony conviction” under what is now § 13-604(V)(2), with the

sole exception of felony offenses not committed on the same

occasion but consolidated for trial. That argument accurately

describes the state of the law in 1993. But the argument does

not satisfactorily explain the 1996 amendment of § 13-702.02.

¶15 In 1996, the legislature amended § 13-702.02(A) to

provide:

A person who is convicted of two or more felony
offenses THAT WERE not committed on the same occasion
but THAT EITHER ARE consolidated for trial purposes OR
ARE NOT HISTORICAL PRIOR FELONY CONVICTIONS AS DEFINED
IN SECTION 13-604 . . . shall be sentenced, for the
second or subsequent offense, pursuant to this
section.

1996 Ariz. Sess. Laws, ch. 123, § 2 (additions noted in capital

letters) (codified at A.R.S. § 13-702.02(A) (Supp. 1996)).3

Thus, in 1996, § 13-702.02 enhancement was made available not

only in cases of felony offenses not committed on the same

occasion but consolidated for trial, but also in cases in which

a prior felony conviction fell outside the § 13-604 definition

of “historical prior felony conviction.”

3
The only subsequent amendment to A.R.S. § 13-702.02(A)
occurred in 1999, and simply removed a reference to the specific
subsection of § 13-604 containing the definition of “historical
prior felony conviction.” 1999 Ariz. Sess. Laws, ch. 261, § 10.

8
¶16 Dancy nonetheless contends that because § 13-702.02 is

entitled “Multiple offenses not committed on the same occasion,”

the statute is still meant to apply only when a defendant is

charged with multiple offenses consolidated for trial. This

argument is unavailing. “[H]eadings to sections . . . do not

constitute part of the law.” A.R.S. § 1-212 (2002). Although

“where an ambiguity exists the title may be used to aid in the

interpretation of the statute,” State v. Eagle, 196 Ariz. 188,

190 ¶ 7, 994 P.2d 395, 397 (2000), section 13-702.02 is not

ambiguous. Moreover, any alleged inconsistency between the

title and text of A.R.S. § 13-702.02 is easily explained. The

title completely and accurately described the scope of this

statute when it was first enacted. The legislature simply

failed to change the title of this statute when it amended the

text in 1996. This oversight does not negate the effectiveness

of the 1996 amendment. Cf. City of Scottsdale v. Mun. Court, 90

Ariz. 393, 396, 368 P.2d 637, 638 (1962) (refusing to read title

of statute as creating limitation that text of the statute would

not support).

¶17 Second, Dancy argues that the use of a present tense

verb in § 13-702.02 (“a person who is convicted of two or more

felony offenses that were not committed on the same occasion”)

(emphasis added) demonstrates the legislature’s intent to

restrict the scope of the statute to simultaneous convictions.

9
But this argument renders the clause added in 1996 superfluous,

because § 13-702.02 already applied to simultaneous convictions

for offenses not committed on the same occasion. See Bilke v.

State, 206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003) (“The

court must give effect to each word of the statute.”).

¶18 Dancy also relies on the language from the legislative

fact sheet for Senate Bill 1165, which became the 1996 amendment

to § 13-702.02. The fact sheet suggests the following “example”

of the proposed amendment’s scope:

[I]f a person commits two offenses not on the same
occasion and is convicted of the second offense before
being convicted of the first offense, the multiple
sentencing enhancement could be used by the judge in
sentencing the defendant for the first offense, for
which he was convicted later.

Fact Sheet to S.B. 1165, 42nd Leg., 2nd Reg. Sess. (1996).

Dancy argues that the 1996 amendment was intended to reach only

such situations.

¶19 The basic problem with this interpretation is that,

even assuming arguendo that this was the intent of whoever

drafted the “fact sheet,” the legislature did not in the end

adopt language that was so limited. Moreover, the fact sheet

simply posits the quoted language as an “example” of what the

proposed amendment would cover, not as a complete description of

its effects.

10
¶20 In any event, as adopted, the 1996 amendment does not

cover this hypothetical. Section 13-702.02(A) only allows

enhancement of a sentence “for the second or subsequent offense”

(emphasis added).4 A “second or subsequent offense” is plainly

one which occurs after the “prior” offense that provides the

basis for sentence enhancement. Cf. Thompson, 200 Ariz. at 441

¶ 6, 27 P.3d at 798 (recognizing that for § 13-604 enhancement

“the prior offense must precede the present offense”).

Conviction for the later offense therefore cannot be used under

§ 13-702.02 to enhance the sentence for the earlier offense, no

matter when the conviction for the later offense occurs.

¶21 Thus, Dancy’s proffered interpretation once again

gives no meaning to the language added to § 13-702.02 by the

1996 amendment. If the 1996 amendment is to have any meaning,

it must provide that prior convictions for prior offenses that

are too old to be “historical prior felony convictions” under §

13-604 can be used as the basis for an enhanced sentence under §

13-702.02.

B.

¶22 Finally, Dancy claims that the State’s interpretation

of the 1996 amendment leads to an absurd result. See Bilke, 206

Ariz. at 464 ¶ 11, 80 P.3d at 271 (stating that this Court is

4
This phrase was added by 1994 Ariz. Sess. Laws, ch. 236, §
4.

11
bound to apply the plain meaning of a statute, “unless

application of the plain meaning would lead to impossible or

absurd results”). This argument also fails.

¶23 The obvious result of the 1996 amendment was to

require that those with prior felony convictions that did not

trigger § 13-604 enhancement be treated differently than those

with no prior felony convictions at all. Section 13-604

provides for a more punitive range of enhanced penalties for

those defendants whose prior offenses are most recent, most

serious, or most numerous. If the prior felony convictions do

not fit the § 13-604(V)(2) parameters of recency, numerosity or

seriousness (or, if the “prior” conviction comes at the same

trial as the principal offense and involves an offense not

committed on the same occasion), the defendant will be sentenced

under the comparatively more lenient enhanced sentence ranges

set forth in § 13-702.02.

¶24 This result is neither irrational nor absurd. Before

1993, the legislative scheme treated those in Dancy’s position

the same as those with more recent prior offenses.5 The 1993

5
See A.R.S. § 13-604(B) (1989) (providing that when present
offense is a class two or three felony there is no time limit on
the use of a prior felony conviction for enhancement). For
those charged with a class four, five, or six felony, A.R.S. §
13-604(A) (1989) provided a ten-year limit, running from the
date of the prior conviction to the date of the present offense,
on the use of a prior felony conviction for enhancement.

12
amendments to §§ 13-604 and 13-702.02 resulted in a statutory

scheme under which those in Dancy’s position were treated the

same as those who had no prior felony convictions.6 The

legislature could have reasonably determined in 1996 that a

middle ground between these two extremes was more desirable and

that the better policy was to provide for some sentence

enhancement under § 13-702.02 for those in Dancy’s position

while making that enhancement less onerous than that applicable

under § 13-604 for those with more recent or more serious prior

felony offenses. Such policy judgments are within the

legislature’s prerogative.

IV.

¶25 For the reasons above, we vacate the order of the

superior court striking the state’s allegations of prior felony

convictions for purposes of potential sentence enhancement under

§ 13-702.02 and remand this case to the superior court for

further proceedings consistent with this opinion.

Andrew D. Hurwitz, Justice

6
See A.R.S. § 13-604(U)(1)(c) (Supp. 1993) (defining as a
“historical prior felony conviction” a “class 4, 5 or 6 felony
. . . committed within the five years immediately preceding the
date of the present offense”); A.R.S. § 13-702.02 (Supp. 1993)
(providing for enhancement only for persons “convicted of two or
more felony offenses not committed on the same occasion but
consolidated for trial purposes”).

13
CONCURRING:

_
Charles E. Jones, Chief Justice

______
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

14