Saunders v. Board of Pardons & Paroles

ZLAKET, Justice,

dissenting.

Because I believe the court of appeals correctly interpreted A.R.S. § 31-412(B), I respectfully dissent.

Had the legislature intended to permit the parole board to transform consecutive into concurrent prison sentences, it could have explicitly said so. More importantly, had it intended to require a prisoner, who has been paroled to and has completed a consecutive sentence, to thereafter serve out the remainder of the original sentence from which he or she was paroled, the legislature most certainly should have said so. Yet both the statute and its legislative history are silent on these issues. While I appreciate the role of statutory construction in our legal process, I believe the majority here goes too far. We should not ascribe to the legislature an intent it never expressed, simply because the result may be more to our liking.

Everyone agrees the legislature enacted A.R.S. § 31-412(B) in response to Mileham v. Arizona Board of Pardons and Paroles, 110 Ariz. 470, 520 P.2d 840 (1974), which prohibited parole to a consecutive sentence. The statute removes this prohibition. It allows a prisoner to be “paroled” from a first sentence to begin serving a second, consecutive sentence when he or she is “certified by the director as eligible *183for parole” and the board of pardons and paroles “in its discretion” decides that “such parole appears to be in the best interests of the state.”

This statute obviously cannot mean “parole” in the strictest sense, because its application does not immediately bring about a “release from imprisonment.” See Mileham, 110 Ariz. at 472-73, 520 P.2d at 842-43. In my opinion, however, the word “parole” here still embodies the idea that the prisoner has — like the typical parolee— completed that portion of the first sentence which must be served in prison, even though he or she remains a prisoner serving a separate and distinct consecutive sentence. As this court has already recognized, one can simultaneously be “a parolee from the first sentence,” and “a prisoner serving time on the second.” Cawley v. Arizona Board of Pardons and Paroles, 145 Ariz. 387, 389, 701 P.2d 1195, 1197 (App.1984), approved and supplemented, 145 Ariz. 380, 701 P.2d 1188 (1985). Therefore, once the second sentence has been completed, the parolee should be free to go. This interpretation is far more compatible with traditional notions of parole than that espoused by the majority. Moreover, nothing in the statute, or in Mileham, compels an opposite conclusion.

I agree that parole to a consecutive sentence provides authorities with a prisoner control mechanism and helps address overcrowding by permitting early releases. These desirable goals are in no way frustrated, however, by the court of appeals’ reading of the statute. Its interpretation of subsection (B) does not lead to an “absurd result” by requiring the board to decide “many years in advance” whether a prisoner should be released to the streets. Op. at 181-182, 847 P.2d at 1128-1129. The conditions placed on a subsection (B) parolee can and should require- him or her to behave in a manner that would justify release at the end of the second term. Violation of those conditions would result in revocation of parole on the original sentence. Thus, a prisoner serving the consecutive sentence has more than ample incentive to behave during that imprisonment.

Under any interpretation, subsection (B) provides a procedure intended to be used sparingly and with caution. A person likely to break the law if released should not be granted a subsection (B) parole. It is difficult to understand how the “best interests of the state” can ever be served by paroling someone who poses a danger. Thus, it only makes sense to infer a legislative intent that an inmate not be paroled from a first sentence to a second unless he or she is otherwise eligible for release. For this reason, the “different standards” discerned by the majority in subsections (A) and (B) of the statute do not support its interpretation. The “best interests of the state” language of subsection (B), while more flexible than the “remain at liberty without violating the law” language of subsection (A), is not inconsistent with it.

Significantly omitted from the majority’s recitation of the statute and its analysis is the fact that subsection (B) also provides for parole of an Arizona prisoner to “any other jurisdiction to serve a term of imprisonment imposed by such jurisdiction.” This further undermines the majority’s position, since nowhere does the statute say or imply that upon expiration of the prison term in the “other jurisdiction,” the prisoner must be returned to Arizona until the remainder of the Arizona sentence has been served, or until a subsection (A) parole is granted.

I am also not persuaded by the majority’s assertion that “the Board has consistently applied subsection (B) as it did in this case.” At 181, 847 P.2d at 1128. There is no record before us supporting this statement. In any event, though we often give deference to administrative interpretations of statutes, those interpretations are not binding on us. City of Mesa v. Killingsworth, 96 Ariz. 290, 296, 394 P.2d 410, 414 (1964).

For all these reasons, I would hold that a prisoner serving a subsequent sentence pursuant to a subsection (B) parole is entitled to release from prison on the termination of that sentence, so long as he or she has not violated the conditions of the *184parole. I would affirm the court of appeals and reverse the trial court.

MARTONE, J., concurs.