State v. Tarango

914 P.2d 1300, 185 Ariz. 208, 214 Ariz. Adv. Rep. 38, 1996 Ariz. LEXIS 45
Arizona Supreme Court·Decided April 16, 1996·No. CR-95-0118-PR·Published·Cited by 65 cases

Opinions

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

In affirming defendant’s sentence for a drug offense with two prior felonies, the court of appeals held that defendant would be parole eligible under former AR.S. § 13-604(D) after serving two-thirds of her sentence despite language in former AR.S. § 13-3408(D), which would have called for a flat time sentence if she had been sentenced as a first-time offender.

The opinion of the court of appeals in this case conflicts with an earlier opinion of that court which held that a defendant sentenced in a similar manner was not parole eligible under former AR.S. § 13-1406(B). State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App.1989). We granted the state’s petition for review to resolve the conflict, and have jurisdiction pursuant to article VI, section 5(3) of the Arizona Constitution. We agree with the court of appeals’ opinion in this case.

FACTS AND PROCEDURAL HISTORY

Sharon Lee Tarango (defendant) was convicted of one count of sale of narcotic drugs and two counts of possession of narcotic drugs for sale, each a class 2 felony. The state had charged in the indictment, and the trial court found, that she had two prior felony convictions. The trial court imposed three concurrent sentences of 15.75 years, the presumptive term for class 2 felonies with two or more prior felonies, as prescribed by former Arizona Revised Statutes Annotated (AR.S.) § 13-604(D). These presumptive sentences were 8.75 years longer than the presumptive sentence for a first-time class 2 felon. Former AR.S. § 13-701(C)(1). The trial court’s sentencing order was silent on the issue of parole eligibility.

On appeal, defendant argued that she was parole eligible under A.R.S. § 13-604(D) after serving two-thirds of her sentences, while the state argued that AR.S. § 13-3408(D) required her to serve the entire length of her sentences without parole.1

The court of appeals held that defendant was eligible for parole after serving two-thirds of her sentences. State v. Tarango, 182 Ariz. 246, 250-51, 895 P.2d 1009, 1013-14 (App.1994).

It is clear that had defendant been convicted only of the instant offense without priors, she would not be parole eligible. Former § 13-3408(D) provided, inter alia:

A person who is convicted of [possessing a narcotic drug for sale or selling a narcotic drug] is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis until the person has served the sentence imposed by the court.

The court of appeals held, however, that when the state seeks the enhanced sentencing penalties allowed by former § 13-604, the release penalties of that section, not § 13-3408(D), apply. Tarango, 182 Ariz. at 251, 895 P.2d at 1014. The court found the language of AR.S. § 13-604(K) dispositive. Id. at 250-51, 895 P.2d at 1013-14. That section provides:

The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous convictions ... [are] charged in the indictment or information and admitted or found by the trier of fact.

DISCUSSION

We agree with the court of appeals. The language of former A.R.S. § 13-604(K) is plain and unambiguous. When the state seeks the enhanced penalties for repeat offenders, former AR.S. § 13-604 provides an [210] exclusive sentencing scheme. See Canon School Dish No. 50 v. W.E.S. Const. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994) (“[W]here the language is plain and unambiguous, courts generally must follow the text as written.”); Mid Kansas Fed. Sav. & Loan Ass’n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991) (same).

Essentially the state argues that former A.R.S. § 13-3408(D) implicitly repealed the exclusive penalty language in former A.R.S. § 13-604(K). However, “the law does not favor construing a statute as repealing an earlier one by implication. Rather, whenever possible, this court interprets two apparently conflicting statutes in a way that harmonizes them and gives rational meaning to both.” Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244, 249, 866 P.2d 1330, 1335 (1994) (citations omitted); see Baker v. Gardner, 160 Ariz. 98, 101, 770 P.2d 766, 769 (1988) (“Courts construe seemingly conflicting statutes in harmony when possible.”); Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988) (“[W]hen reconciling two or more statutes, courts should construe and interpret them, whenever possible, in such a way so as to give effect to all the statutes involved.”).

Former § 13-604 itself anticipated the possibility of conflicting statutes and explicitly provided that the penalties set forth in that section would govern. See former § 13-604(K). Against the backdrop of this prior existing legislation, the only reasonable interpretation of former § 13-3408(D) is that it applies only when the situations addressed by former § 13-604 (repetitiveness and/or dangerousness) are not present. Because the legislature chose not to repeal the existing exclusive provisions for repeat and/or dangerous offenders, we must assume that the legislature intended former § 13-3408(D) to apply only to first-time, non-dangerous offenders.

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State v. Tarango, 914 P.2d 1300, 185 Ariz. 208, 214 Ariz. Adv. Rep. 38, 1996 Ariz. LEXIS 45 (Ark. 1996).

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