State v. Thompson

27 P.3d 796, 200 Ariz. 439, 352 Ariz. Adv. Rep. 3, 2001 Ariz. LEXIS 112
Arizona Supreme Court·Decided July 12, 2001·No. CR-00-0444-PR·Published·Cited by 35 cases

Opinion

OPINION.

MARTONE, Justice.

¶ 1 This case requires us to sort out the complexities of Arizona’s sentence enhancement statutes. A.R.S. § 13-604 provides for sentence enhancement when the defendant has an “historical prior felony conviction” on his record. Section 13-702.02, which is more lenient than § 13-604, provides for sentence enhancement when a defendant “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 A.R.S. § 13-604.”

I.

¶ 2 Arthur Leon Thompson committed two drug-related felonies on July 8, 1997 and December 19,1997, respectively. On December 30, 1997, he committed theft, a class 6 felony. In May 1998, Thompson pled guilty to the two drug offenses but absconded before sentencing. He was taken into custody in September 1998, and was charged with theft. A jury found Thompson guilty of theft on December 17,1998. He was sentenced on all three convictions at a consolidated hearing on January 29,1999.

¶ 3 At the sentencing hearing, the state alleged that the drug offenses were historical prior felony convictions within the meaning of A.R.S. § 13 — 604(V)(l)(c), and that Thompson’s theft sentence should therefore be enhanced in accordance with that section. Thompson argued that because he committed the theft before he pled guilty to the drug offenses, they were not historical prior felony convictions, and that he should be sentenced in accordance with A.R.S. § 13-702.02. Without enhancement, theft is a probation-eligible offense with a presumptive sentence of one year in prison and a minimum term of six months. A.R.S. §§ 13-701 to -702. If enhanced under A.R.S. § 13-702.02(B)(4), prison is mandatory, the presumptive sentence is 1.75 years, and the minimum term is 1 year. If enhanced under A.R.S. § 13-604, the presumptive sentence is 3.75 years and the minimum term is 3 years. A.R.S. § 13-604(C). The trial court agreed with the state, applied A.R.S. § 13-604, and sentenced Thompson to three years in prison.

¶ 4 Thompson appealed, arguing that one is not convicted until one has been sentenced. Because he had not been sentenced on the drug offenses before sentencing on the theft offense, he contended that he should have been sentenced under A.R.S. § 13-702.02. The court of appeals agreed and remanded for resentencing. State v. Thompson, 198 Ariz. 142, 7 P.3d 151 (App.2000).

¶ 5 We granted review to determine which sentence enhancement statute applies when the defendant commits prior felonies before the offense for which he is being sentenced, yet is convicted of the prior felonies after commission, but before conviction, of the present offense. See Rule 31.19(c)(3), Ariz. R.Crim.P.

II.

¶ 6 When the language of a statute is clear, it is determinative of the statute’s construction. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). We thus turn to the text of the statute. A.R.S. § 13-604(V)(1)(c) defines an “histori *441 cal prior felony conviction” as “[a]ny class 4, 5 or 6 felony ... that was committed within the five years immediately preceding the date of the present offense.” The statute does not refer to the timing of the conviction for the prior offense. It just requires the prior offense to precede the present offense. Thompson, however, argues that the term “historical prior felony conviction,” means the conviction must precede the present offense. But the statute provides only that the prior offense must precede the present offense. We do agree that the language “prior felony conviction” means something: the conviction on the prior offense must precede the conviction on the present offense. In the same subsection of the statute, two of the other definitions of “historical prior felony convictions” presuppose a conviction on the prior offense. A.R.S. § 13 — 604(V)(l)(a) & (d). It would be absurd for the statute to require a conviction for more serious felonies, but not for less serious felonies such as Thompson’s drug offenses.

¶ 7 Here, the drug offenses were committed before the theft offense. So too, the convictions on the drug offenses preceded the conviction on the theft offense. One is convicted when there has been a determination of guilt by verdict, finding, or the acceptance of a plea. State v. Walden, 183 Ariz. 595, 615, 905 P.2d 974, 994 (1995). Sentencing is not required. Id., 905 P.2d at 994. Here, Thompson was convicted of the drug offenses by his plea in May 1998. He was convicted on the theft offense by verdict in December 1998. Not only were the drug offenses committed before the theft offense, but also the convictions on the drug offenses preceded the conviction on the theft offense. Thus, Thompson’s sentence was properly enhanced under A.R.S. § 13-604.

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State v. Thompson, 27 P.3d 796, 200 Ariz. 439, 352 Ariz. Adv. Rep. 3, 2001 Ariz. LEXIS 112 (Ark. 2001).

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