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