State v. Christian

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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