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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