SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0233-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 00-0654
JAMES EARL CHRISTIAN, )
) Maricopa County
Appellee. ) Superior Court
) No. CR 99-016695
)
) O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Roger W. Kaufman, Judge
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One,
202 Ariz. 462, 47 P.3d 666
AFFIRMED
RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
Attorneys for Plaintiff-Appellant
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By M. Daniel Evans, Deputy Public Defender
Attorneys for Defendant-Appellee
R Y A N, Justice
¶1 The narrow issue we must decide in this matter is whether
a defendant’s prior felony conviction for possession of narcotic
drugs below the statutory threshold amount can be used as a
historical prior felony conviction to enhance the sentence of a
subsequent felony offense. The trial court ruled that it could
not. The court of appeals, in a split decision, reversed the trial
court. Agreeing with the majority of the court of appeals, we hold
that a prior conviction for possession of narcotic drugs in an
amount below the statutory threshold can be used to enhance the
sentence for a subsequent conviction.
Background
¶2 In June 2000, James Earl Christian was convicted of theft
of a means of transportation, a class three felony. Christian
admitted at trial that he had two prior felony convictions. He had
been convicted of felony theft committed in June 1995, and of
possession of a narcotic drug, a class four felony, committed in
March 1999.1 At Christian’s sentencing, the State argued that
Christian should be sentenced as a defendant with two historical
prior felony convictions under Arizona Revised Statutes (“A.R.S.”)
section 13-604(D) (Supp. 1999). Christian argued the drug
possession conviction could not be used as a historical prior
felony conviction for two reasons. First, the sentence for that
offense had been imposed under A.R.S. section 13-901.01 (Supp.
1998), which requires probation for possession of narcotic drugs
1
The narcotics possession conviction involved less than the
statutory threshold amount of drugs. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-3401(36) (2001).
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for personal use. He contended that the intent of A.R.S. section
13-901.01 - the codification of Proposition 200 - was to prohibit
the use of the first two convictions for possession of narcotic
drugs to enhance the sentence of a subsequent offense.2 Second, he
argued that his drug conviction was a Chapter 343 offense involving
less than the statutory threshold amount of drugs and as such could
not be alleged as a historical prior under A.R.S. section 13-
604(V)(1)(a)(i). The trial court, finding that “it would be
contrary to the intent of the law to treat the prior Proposition
200 felony as a felony for purposes of enhancing this sentence,”
sentenced Christian as an offender with one historical prior felony
conviction.
¶3 On appeal, the State argued that the trial court erred as
a matter of law in determining that a Proposition 200 prior
conviction was not a historical prior felony conviction for
sentence enhancement purposes. State v. Christian, 202 Ariz. 462,
463, ¶ 1, 47 P.3d 666, 667 (App. 2002). The State also contended
that such a prior conviction was a historical prior felony
conviction as defined in A.R.S. section 13-604(V)(1).
2
Calik v. Kongable, 195 Ariz. 496, 498-99, ¶¶ 11-14, 990
P.2d 1055, 1057-58 (1999), discusses the history of Proposition 200
and the enactment of A.R.S. section 13-901.01. Foster v. Irwin,
196 Ariz. 230, 231, ¶ 3, 995 P.2d 272, 273 (2000), discusses the
purpose of Proposition 200, which is to deal with drug abuse by
treatment and education rather than incarceration.
3
Chapter 34 refers to the drug offenses set forth in Title
13. See A.R.S. §§ 13-3401 to -3422 (2001 & Supp. 2002).
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¶4 The court of appeals unanimously agreed that “nothing in
the language of A.R.S. § 13-901.01 precludes a conviction under
that section from being used as a historical prior felony
conviction to enhance punishment of a subsequent offense under
A.R.S. § 13-604(V)(1).” Id. at 464, ¶ 6, 466, ¶¶ 17-18, 47 P.3d at
668, 670. The majority of the court went on to hold that A.R.S.
section 13-604(V)(1) permits a prior felony conviction for
possession of drugs below the threshold amount to be used as a
historical prior for purposes of sentence enhancement. Id. at 465-
66, ¶ 13, 47 P.3d at 669-70. Judge Fidel dissented from this part
of the decision, contending that the plain language of A.R.S.
section 13-604(V)(1)(a)(i) excluded prior felony convictions for
drug offenses below the threshold amount from being used to enhance
the sentence for a subsequent conviction. Id. at 467, ¶ 26, 47
P.3d at 671.
¶5 We granted review to decide whether the court of appeals
correctly interpreted A.R.S. section 13-604(V)(1). We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution, and A.R.S. sections 13-4031 and -4032(5) (2001).
Discussion
¶6 The parties do not dispute that Christian had two prior
felony convictions.4 Thus, the issue is whether a prior conviction
4
Christian does not challenge the court of appeals’
conclusion that the literal wording of A.R.S. section 13-901.01
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for possession of narcotic drugs in an amount below the statutory
threshold is a historical prior felony conviction. To decide that
issue we must interpret A.R.S. section 13-604(V)(1). Issues of
statutory interpretation are reviewed by this court de novo. State
v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997). In any case
involving statutory interpretation we begin with the text of the
statute. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227,
1230 (1996). This is so because the best and most reliable index
of a statute’s meaning is the plain text of the statute. Id. 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. Hayes v. Cont’l Ins.
Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994). We conclude
that the text of section 13-604(V)(1) is unambiguous and plain on
its face, and that it permits a prior conviction for possession of
drugs below the threshold amount to be alleged as a historical
prior felony conviction in limited circumstances.
A.
¶7 Section 13-604(V)(1) separates historical prior felony
does not preclude a conviction for personal drug possession from
being used as a prior conviction to enhance the sentence for a
subsequent conviction.
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convictions into four categories.5 First, under subdivision (a),
the statute lists six types of offenses that can be alleged as
5
The complete text of A.R.S. section 13-604(V)(1) is as
follows:
V. As used in this section:
1. "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
(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 sixty 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 incarcerated is excluded in calculating if
the offense was committed within the preceding ten
years.
(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 incarcerated is excluded in calculating if
the offense was committed within the preceding five
years.
(d) Any felony conviction that is a third or more
prior felony conviction.
Id. (footnote omitted).
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historical prior felony convictions no matter when they occurred.
A.R.S. § 13-604(V)(1)(a). These include convictions for which a
prison sentence was mandated, except for drug offenses that
involved an amount of drugs below the statutory threshold;6
convictions involving the intentional or knowing infliction of
serious physical injury; convictions involving the use of a deadly
weapon; convictions for illegal control of an enterprise;
convictions for aggravated driving under the influence of
intoxicating liquor or drugs; and convictions for any dangerous
crime against children.7 Id.
¶8 The second category, set forth in subdivision (b), allows
the state to allege as historical prior felonies prior convictions
for class two or three felonies not “listed in subdivision (a)” if
the prior offense “was committed within the ten years immediately
preceding the date of the present offense.” Id. § 13-604(V)(1)(b).
The third category, described in subdivision (c), includes class
four, five and six felonies not “listed in subdivision (a)” if the
prior offense was “committed within the five years immediately
preceding the date of the present offense.” Id. § 13-
604(V)(1)(c). Finally, under subdivision (d), “a third or more
prior felony conviction” is also a historical prior felony
6
A.R.S. § 13-3401(36).
7
A.R.S. § 13-604.01 (2001 & Supp. 2002).
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conviction.8 Id. § 13-604(V)(1)(d).
¶9 Hence, under the plain language of A.R.S. section 13-
604(V)(1)(c), a conviction for possession of narcotic drugs, a
class four felony, committed within five years of the present
offense, can be used to enhance the sentence for that offense.
Because Christian indisputably committed the crime of possession of
narcotic drugs within five years of the commission of the theft in
this case, it is a historical prior felony conviction.
¶10 Christian, however, argues that under A.R.S. section 13-
604(V)(1)(a)(i), a conviction for a first or second drug offense
involving less than the statutory threshold amount of drugs can
never be used as a historical prior felony conviction to enhance a
subsequent sentence. He contends that by excepting from section
13-604(V)(1)(c) those offenses “listed” in subdivision (a), the
legislature meant to exclude drug offenses involving less than the
threshold amount from being included under subdivision (c).
¶11 Christian focuses on the following emphasized language
from A.R.S. section 13-604(V)(1):
1. “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
8
For an offense to qualify as a “third or more prior felony
conviction” it must be the third conviction chronologically. State
v. Decenzo, 199 Ariz. 355, 358, ¶ 9, 18 P.3d 149, 152 (App. 2001).
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involving a drug below the threshold amount.
. . . .
(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.
Id. (footnote omitted and emphasis added). His argument
presupposes that prior drug convictions involving an amount of
drugs below the statutory threshold are “listed” in subdivision
(a)(i) because they are mentioned there. And because subdivision
(c) excepts offenses listed in subdivision (a) from being
historical prior felony convictions, his conviction for possession
of narcotic drugs is not a historical prior felony conviction.
¶12 Such an interpretation flies in the face of the normal
use of the word “listed.” See State v. Korzep, 165 Ariz. 490, 493,
799 P.2d 831, 834 (1990) (“We give words their usual and commonly
understood meaning unless the legislature clearly intended a
different meaning.”). While prior felony drug convictions
involving less than the threshold amount may be referenced in
subdivision (a)(i), they are not listed. An item is not “listed”
simply because it is referenced, and an item certainly is not
“listed” when it is expressly excluded. Something cannot be at
once included and excluded from a list. Following Christian’s
logic, a drug offense involving an amount of drugs below the
statutory threshold would be excepted from subdivision (a) for
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purposes of applying that subdivision, but would be included in
subdivision (a) for purposes of applying subdivisions (b) and (c).
The argument makes little sense.
¶13 Rather, it is clear to us, based on the plain language of
the statute, that A.R.S. section 13-604(V)(1)(a)(i) does not create
two mutually exclusive categories as Christian appears to argue.
Instead, A.R.S. section 13-604(V)(1)(a)(i) establishes a broad
category of prior convictions that qualify as historical priors –
those for which a prison term was mandated. Then subdivision
(a)(i) excepts from that broad category a small group of offenses,
namely, prior drug convictions involving an amount of drugs below
the statutory threshold for which a prison sentence was mandated.
Because such offenses are specifically excepted from treatment as
historical prior felony convictions under subdivision (a)(i), they
are accordingly not “listed” in subdivision (a). As a result, drug
offenses involving an amount of drugs below the statutory threshold
for which a prison sentence was mandated are allegeable as
historical prior felony convictions if they fall within the time
limits of subdivisions (b) or (c) or are a third prior felony
conviction under subdivision (d). A.R.S. § 13-604(V)(1). Because
Christian’s prior conviction for possession of narcotic drugs did
not carry a mandatory prison sentence, it did not meet the
threshold requirement of subdivision (a)(i). Consequently, whether
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his prior conviction involved an amount of drugs below the
statutory threshold is irrelevant. Instead, as discussed above,
his prior conviction is clearly allegeable under subdivision (c).
See supra ¶ 9.
B.
¶14 The language Christian focuses on - “except for a
violation of chapter 34 of this title involving a drug below the
threshold amount” - was added in 1996. 1996 Ariz. Sess. Laws, ch.
123, § 1. At the same time, the legislature also amended another
related statutory section. Id. § 3. When taken together we
believe these changes help explain the result we reach today.
¶15 In 1996, the legislature amended A.R.S. sections 13-
604(U)(1),9 and -3419(A). 1996 Ariz. Sess. Laws, ch. 123, §§ 1,
3.10 The latter statutory section was first passed in 1993 and
governed sentencing for defendants convicted of multiple drug
offenses not committed on the same occasion but consolidated for
trial. A.R.S. § 13-3419.11 Before the 1996 amendment, A.R.S.
9
Now codified at A.R.S. section 13-604(V)(1). For ease of
reference, we will refer to the current designation of the statute.
10
This same enactment also amended A.R.S. section 13-702.02.
See 1996 Ariz. Sess. Laws, ch. 123, § 2. But for our purposes, the
relevant amendments are to A.R.S. sections 13-604(V)(1)(a)(i) and
-3419.
11
This statute and its companion, A.R.S. section 13-702.02,
supplanted the practice of alleging “Hannah” priors. See State v.
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section 13-3419(A) provided in part as follows:
Except for a person convicted of possession
offenses . . . , a person who is convicted of two or more
offenses under this chapter that were not committed on
the same occasion but that were consolidated for trial
purposes, shall be sentenced for the second or subsequent
offense pursuant to this section.
A.R.S. § 13-3419(A) (Supp. 1994). The 1996 legislation amended the
statute in the following manner:
Except for a person convicted of possession
offenses . . . , a person who is convicted of two or more
Hannah, 126 Ariz. 575, 617 P.2d 527 (1980). Language in A.R.S.
section 13-604(H)(redesignated as section 13-604(M)) had allowed
the state to allege as prior felony convictions multiple
convictions that were entered on the same occasion. However, in
1993, the legislature removed that language. 1993 Ariz. Sess.
Laws, ch. 255, § 7; State v. Thompson, 200 Ariz. 439, 441, ¶ 9, 27
P.3d 769, 798 (2001) (finding sentencing enhancement for multiple
felony convictions entered at the same time now controlled by
A.R.S. section 13-702.02). For instance, previously, under Hannah,
when a defendant was convicted of three felony counts that were
tried together, the state could allege two of the convictions as
priors for the other conviction, thus subjecting a defendant who
came to court without a prior conviction to a lengthy prison term.
The sentencing provisions promulgated in A.R.S. section 13-702.02
and -3419 are much less severe.
The 1993 amendments also made extensive changes to A.R.S.
section 13-604. 1993 Ariz. Sess. Laws, ch. 255, § 7. Before those
amendments, prior felony convictions could be alleged under most
subsections of section 13-604 no matter how old they were. See
A.R.S. § 13-604 (1989). The 1993 amendments imposed time limits on
alleging historical priors in many instances. 1993 Ariz. Sess.
Laws, ch. 255, § 7. Thus, the legislative policy was to
differentiate 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 felony conviction, or whether the
crimes committed on different occasions were consolidated for
trial.
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offenses under this chapter 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, SUBSECTION [V],
PARAGRAPH 1 shall be sentenced for the second or
subsequent offense pursuant to this section.
1996 Ariz. Sess. Laws, ch. 123, § 3 (stricken words omitted). We
assume the statute was amended to correct a problem. State v.
Garza-Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990)
(holding that when legislature amends a statute we assume it
intended to change existing law).
¶16 Before the 1996 amendment, a person convicted of a non-
possession drug offense, and who had a prior felony conviction for
a similar offense that did not meet the definition of historical
prior felony conviction as defined in A.R.S. section 13-
604(V)(1)(a), (b), (c) or (d), could not receive an enhanced
sentence. This resulted in some repeat offenders being treated as
first time felons which, in many instances, meant those offenders
were eligible for probation.
¶17 But the 1996 amendment to A.R.S. section 13-3419(A) has
the effect of allowing limited enhancement of a sentence for a
conviction of a non-possession drug offense even though the prior
felony conviction does not satisfy the requirements of A.R.S.
section 13-604(V)(1). See State v. Thompson, 200 Ariz. 439, 441,
¶ 9, 27 P.3d 796, 798 (2001) (interpreting the same amended
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language in A.R.S. section 13-702.02). This change to section 13-
3419(A) increased the number of drug offenses for which a prison
sentence was mandatory. For example, under the amended version of
section 13-3419(A), if a defendant has a prior conviction for a
non-possession drug offense that is not a historical prior felony
conviction, and he is convicted of a second non-possession drug
offense involving an amount of drugs below the statutory threshold,
the mandatory sentence for that second offense is a prison term.
A.R.S. § 13-3419(A) (“[A] person who is convicted of two or more
offenses under this chapter . . . shall not be eligible for
suspension of sentence, probation, pardon or release from
confinement.”). Under the prior version of A.R.S. section 13-
604(V)(1)(a), such a conviction could be alleged as a historical
prior with respect to future crimes without limitation.
¶18 But with the addition of the language, “except for a
violation of chapter 34 of this title involving a drug below the
threshold amount,” to A.R.S. section 13-604(V)(1)(a)(i), the
legislature assured that minor drug offenders who managed to avoid
becoming repeat offenders for at least five or ten years
respectively would be treated more leniently under the sentencing
code. Compare, e.g., A.R.S. § 13-3419(A)(1), with A.R.S. § 13-
604(A) & (B).
¶19 This change to section 13-604(V)(1)(a) conformed to the
clear legislative policy of treating more leniently drug offenses
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involving less than the threshold amount of drugs. See Korzep, 165
Ariz. at 493, 799 P.2d at 834 (stating that when interpreting a
statute, courts “consider the policy behind the statute and the
evil it was designed to remedy”). That policy was established by
the legislature’s amendments to the drug offense statutes in 1993
that introduced the statutory drug threshold amounts, which made a
number of drug offenses that previously required prison terms
probation eligible offenses.12 See 1993 Ariz. Sess. Laws, ch. 255,
§§ 7, 38-48. The 1996 amendment to A.R.S. section 13-
604(V)(1)(a)(i) simply carries that policy through to sentencing
for subsequent offenses.
¶20 Consequently, in our view, the amendment to section 13-
604(V)(1)(a)(i) was clearly intended to preclude minor drug
offenses for which a prison sentence was mandated from being
allegeable without limitation. The legislature did not, however,
intend that such drug offenses could never be used to enhance a
sentence for a subsequent offense. Had the legislature intended
such a significant change, it would have expressly said so. State
v. Govorko, 23 Ariz. App. 380, 384, 533 P.2d 688, 692 (1975)
(stating that when legislature intends significant change in scope
12
For example, before the 1993 amendments, a number of drug
offenses mandated a prison term no matter the amount of drugs
involved. See, e.g., A.R.S. § 13-3407(C) (1989) (possession for
sale or transportation of a dangerous drug); id. § 13-3408(C)
(possession for sale or transportation of a narcotic drug).
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of a statute it is reasonable to expect a clear expression of
intent).
¶21 Accordingly, A.R.S. section 13-604(V)(1)(c) permits the
State to allege Christian’s prior conviction for possession of
narcotic drugs involving an amount of drugs below the statutory
threshold as a historical prior felony conviction. Therefore, the
trial court erred in striking that prior felony conviction.
Conclusion
¶22 For the foregoing reasons we affirm the opinion of the
court of appeals, and remand the matter to the trial court for
further proceedings consistent with this opinion.
_________________________________
Michael D. Ryan, Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Rebecca White Berch, Justice
*Pursuant to Article 6, Section 2 of the Arizona Constitution, this
case was heard by a panel of three justices of this court.
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