*1 175 P.3d 71 Arizona, Appellee,

STATE of Barry THOMAS, Appellant.

Marcel

No. 1 CA-CR 05-0770. Arizona, Appeals

Court of 1, Department A.

Division

Jan.

Review Granted June *2 Goddard, Terry Attorney By charges being brought against General him for Howe, Counsel, assault, M. Randall Chief Criminal aggravated imprisonment, unlawful Phoenix, Section, Appeals Attorneys Ap- for hindering prosecution. Thomas was pellee. July tried convicted of these crimes in year a almost before he was tried on Hlavac, County Dana P. Mohave Public drug-related charges. After Thomas was Evans, By Deputy Defender L. Public Jill of Defender, convicted these offenses to his Kingman, Attorneys Appellant. for drug-related charges, trial on the the State an OPINION submitted addendum to the indictment on drug-related the December 2002 SNOW, J. seeking to add each of the convictions result- Barry appeals 1 Marcel Thomas his con- ing January from the 2003 events as histori- possession victions and for the sentences of prior felony cal convictions. sale, narcotics, dangerous drugs drug marijuana. paraphernalia, lawyer His objected January 4 Thomas because the arguable ground found no for reversal and offenses occurred after December a filed brief accordance with Anders v. drug-related offenses and thus could California, 386 U.S. S.Ct. prior felony not constitute historical convic- requires L.Ed.2d Anders us hearing, tions. After a the court determined search the record for reversible error. felony to constitute a historical 744, 87 S.Ct. 1396. We find no fundamental conviction,” two, three, a class four or five pertaining error to Thomas’s convictions. normally be committed must supplemental briefing we ordered the commission of the offense on which pertaining on an issue to Thomas’s sentenc- State seeks to enhance the sentence. Never- ing. Because we conclude that the trial theless, that, pursu- the court also concluded fundamentally in sentencing erred definition, ant to the certain Thomas, we vacate the sentence and remand class, charges, regardless of their could con- resentencing. stitute convictions historical if even were committed after the of- AND FACTUAL PROCEDURAL charged. fense for which the defendant was HISTORY Thus, case, the court determined drug-related charges 2 The on which hindering and the unlawful from a Thomas was sentenced arose search prosecution charges could not constitute his- apartment of Thomas’s that occurred on De- pursuant torical cember 2002. Based on the evidence (“A.R.S.”) Arizona Revised section Statutes during found the search and Thomas’s state- 13-604(W)(2)(b), (Supp.2007) because the time, police grand jury ments offenses occurred the acts on which the after drug-related indicted Thomas on four drug-related charges were But it based. charges year and a half later in June 2004. also determined that the assault possession Thomas was indicted for of dan- charge, even also occurred sale, gerous drugs felony; a class two drug-related could nevertheless possession drugs, of narcotic a class four constitute felony; possession drug paraphernalia, of pursuant felony; possession marijuana, class six (“the drug-related class six it a mandato- because it carried with term of eventually charges”). Thomas was tried and ry imprisonment. pursuant charges in convicted on these June Thomas to en- the court sentenced presumptive concurrent sentences on hanced January approximately one years all four counts as follows: 9.25 police Thomas’s month after the searched drugs for possession dangerous for the para- apartment drugs and found the narcotics, sale, years possession 4.5 for the subsequently in- phernalia for which he was dicted, years possession drug para- Thomas committed acts that resulted 1.75 for the 604(V)[2] generally depends on the serious possession phernalia, and 1.75 offense.” Id. age ness and marijuana.1 ¶ 7 13-604(W)(2) four dif jurisdiction pursuant to Arti defines have Section We “histori types ferent convictions as cle Section 9 of the Arizona Constitution *3 12-120.21(A)(1) (2003), prior felony depending upon §§ 13- cal convictions” and A.R.S. 13-4033(A)(1) (2001). (2001), past offense and the We the seriousness of the lapsed between that offense hold that the trial court erred when it sen time has pursuant § and the offense for which the defendant tenced Thomas to A.R.S. 13-604 subcategory “historical aggravat charged. The first based on its determination his convictions,” “[a]ny pri- prior felony includes ed assault conviction constituted an “histori types desig prior felony felony it conviction” for six cal conviction” even much drug-related regardless crimes for nated offenses how occurred after preceded the which Thomas was convicted. Because sen the commission of the offense charged.3 tencing generally constitutes funda offense for which the defendant is error 13-604(W)(2)(a). error, § The second sub mental we vacate Thomas’s sentence A.R.S. resentencing. category and remand for defines class two or three felonies See Hollenback, prior felony if the as “historical convictions” 159, 163 (App.2005)(holding “imposi resulting prior in the conviction “was illegal tion of an sentence is fundamental years immediately ten committed within the error”) (citation omitted). preceding the date of the offense.” 13-604(W)(2)(b). § A.R.S. The third subea

ANALYSIS tegory, pertaining generally less serious felonies, four, defines class five or six felonies provides 6 “Section 13-604 en prior felony if as “historical convictions” hanced sentences for defendants who are resulting in the conviction “was com felony convicted of a and have a ‘historical years immediately pre mitted within the five prior felony conviction.’ State ex rel. Rom ceding offense.” ley 541, ¶ 8, the date 13-604(W)(2)(c). desig § A.R.S. The fourth all Not defen convictions, however, previous felony nates conviction “that is a third or more dant’s prior felony prior necessarily qualify will conviction” as an historical as “historical felony felony regardless convictions” of whether because “whether felony conviction falls within the criteria. 13- definition meets 604(W)(2)(d).4 §in ‘historical conviction’ enhancement, presump- statutory provision 1. Without the Thomas’s 4. The states as follows: years tive sentences would have been five felony conviction” 2. "Historical one, two, count and one two half for count means: year and one for each of count three and count (a) Any prior conviction for which the four. offense of conviction: 13-604(W)(2)(a)-(d) previously (i) 2. A.R.S. was Mandated a term of ... 13-604(V)(l)(a)-(d). numbered A.R.S. renumbered, statutory provisions current were (b) Any felony, except class 2 or 3 the of- substantively but remain the same. 2005 Ariz. (a) para- fenses listed in subdivision of this Laws, (1st Reg.Sess.). Sess. ch. graph, that was committed within the ten years immediately preceding the date of the subsection, describing this same offense____ (a) supreme our court indicated that "subdivision (c) felony, except Any class 5 or 6 types alleged lists six of offenses that can be para- offenses listed in subdivision of this matter as historical convictions no graph, five that was committed within the Christian, they when occurred.” State v. years immediately preceding the date of the 64, 66-67, present offense.... course, (2003). Of in the context of the court’s (d) Any felony conviction that is a third or general description phrase of this subsection more conviction. accurately meaning understood no matter as 13-604(W)(2). when the felonies occurred to the commis- alleged be sion of the to which are prior. an historical merely existing an mean acknowledged that sub- viction” The trial court conviction, however, deprived trial court explicitly of the statute sections any meaning. If an “prior” word require that any of the felonies existing conviction for But, in of such the absence designated by constitutes (a), it explicit requirement in subsection an prior felony” then there is no an “historical preced- offenses need not have held that such 13-604(W)(2)(a) does, require, need which the defendant is ed the offense with “historical conviction” that an charged to be considered A felony conviction.” for a felony conviction. render that would avoids questions of statuto review We in “any ‘surplusage’ of its mere Phelps Dodge de novo. ry interpretation word, stead, meaning to ‘each “give we *4 Res., 211 Ariz. Corp. Dep’t Ariz. Water v. of clause, ... that no and sentence so phrase, ¶ 9, 1110, 146, 148, (App.2006). 1112 118 P.3d void, inert, redun part of the statute will be statute, is “to fulfill construing goal In a our dant, City Phoenix Prosecutor’s or trivial.’ it.” of that wrote the intent Ybarra, 374, 160 v. 215 Office Reinstein, 185 Ariz. Zamora v. 695, v. (App.2007) (quoting Walker P.3d (internal (1996) 1227, quotations P.2d Scottsdale, 206, 210, 786 City 163 Ariz. of omitted). the statute’s lan We first consider (internal 1057, (App.1989) citations expect it to be the best guage “because we omitted)). given “prior” is mean The word index of a statute’s mean and most reliable interpreted require to that ing if it is omitted). (internal ing.” quotations Id. the of “prior felony” committed before single provision of the statute is not aWhen be sen the defendant will fense for which isolation, legislative determine clear in we 513, Garcia, tenced. See whole, by reading as a by intent the statute (concluding “prior” that the word P.2d at 873 pro all of its meaningful operation to giving felony convic statutory phrase prior in the visions, considering such as and factors implicit retrogressive mean tion “has an context, matter, subject histori the statute’s any deprived it ing....”). is Otherwise consequences, background, cal effects significance. also inter spirit purpose. Id. We previously inter supreme court 11 Our way “in such a as to achieve pret statutes in the con “prior felony conviction” preted legislative goals that can be adduced general require that text of this same statute Id. body legislation question.” from the felony precede the prior commission of omitted). Further, (internal “[i]n quotations with which commission of the offense also interpreting criminal we are Thompson, charged. v. is State defendant lenity. This rule dic guided by the rule of 796, 439, 441, ¶ 6, 27 susceptible is if a criminal statute tates that held that Thompson, In the court more than one of crimes had been convicted the defendant in favor of the should be resolved doubt pled though even he guilty to which he had Garcia, defendant.” State crimes. for those yet had not been sentenced (internal (App.1997) case, committed two In the defendant that omitted). quotations and citations ¶ 2, drug Id. at offenses. felonies, offense, Among types of subsec drug days after the second Eleven (a) 13-604(W)(2) designates as his pled guilty theft. Id. He he committed “[a]ny prior offenses, he ab prior convictions but because drug torical the two drug imprisonment on the felony conviction” for which he was not sentenced sconded accepted had mandatory. undisputed though in this case the court It is even Thereafter, he was tried mandatory plea. for a conviction Id. guilty his charge. separate theft aggravat if the on the aggravated assault. and convicted classify sought felo the State assault conviction constitutes When ed prior as historical conviction,” drug an “historical convictions it constitutes ny enhancing his purposes of prior conviction” theft, Thomp- later-occurring on the felony con sentence interpreting “prior § 13-604. argued drug prior son offenses could not offense must occur to the be historical felonies because he had conviction on the offense. yet been sentenced for the arriving 14 In interpretation, pled guilty even he had to them Thompson the court in also examined the to his conviction on the theft offenses. Id. at whole, statutory definition using ¶¶ 3-4, supreme 27 P.3d 796. The court presuppositions of a sub ¶¶ rejected argument. (d) explicit sections to inform the 9, 27 P.3d at 797-98. (c) requirement in subsections however, doing, despite In so the ab- precede commission of the explicit sence of an require- By commission of the offense. ment that the defendant be convicted of an interpreting phrase “prior felony convic convict- both, require tion” gave phrase ed of the supreme logical meaning throughout consistent requirement also held that such a existed: the statute. “We strive to construe a statute The statute does not refer timing to the and its subsections as a consistent and har just the conviction for the offense. It monious whole.” Wagstaff requires offense to (1990) (citation defendant], [The howev- omitted). *5 er, argues that the term prior “historical ¶ 15 supreme When our conviction,” court re-examined means the conviction statutory the definition of prior “historical precede present must the offense. But the again conviction” in noted provides statute prior that the offense that “the relevant measurement deter [in precede present must the We do offense. mining whether a conviction an agree that the language “prior felony con- prior felony conviction from is] the date of viction” means something: the conviction prior the offense to the present date of the prior on the precede must the con- offense 2, offense.” 209 Ariz. at 542 n. 105 P.3d at present viction on the In the 1161 n. 2. court supreme This followed the same subsection of the two of the court in respect, interpreting that phrase the prior felony definitions “historical prior felony “historical § conviction” in presuppose convictions” a conviction on the 604(W) to “mean that prior ‘the conviction on 13-604(V)(l)(a) the § offense. A.R.S. (d). prior precede must the conviction on It [and] would be absurd for the offense present Ofstedahl, the require statute to a conviction for more offense.’ felonies, (App. serious but not for less serious 2004) (quoting Thompson, 200 at felonies such as [the defendant’s] of- ¶ 6, added)). (emphases fenses. (emphases P.3d at 798 ¶ 16 interpretation The trial court’s added). in this case is inconsistent interpreting 13 In phrase “prior felo- interpretations with these authoritative ny require conviction” to that the conviction the harmony statute. It also frustrates the prior on the precede the conviction interpretation provided of the by the su- offense offense, on the supreme preme court supreme interpre- court. The court’s 13-604(W)(2) required clarified that it both a offense merely tation of imposes dif- and that the conviction on the requirements by ferent time which the precede the conviction on precede of- must offense de- fense. “[T]he conviction on the pending upon the seriousness of the court, must however, conviction on the offense. The trial interpret- added). Thus, (emphasis 13-604(W)(2) offense.” Id. ed the various subsections of prior felony constitute an historical adopt determining different standards for tion, must be committed in the nature of a offense(s) time with apply differently which the defen- respect with to the same presently dant charged, and the conviction facts. Hannah, the defendant com- example, committed the statutes.” 17 For Thomas assault, forgeries early im- four November aggravated unlawful mitted

crimes Id. He subsequently after committed three prisonment hindering prosecution Id. August he was two felonies on at committed the crimes with which class he commit- 617 P.2d at 527. The defendant was charged. Because these acts were drug-related forgery of the after he had committed the convicted November ted correctly charges in several months af- the trial court concluded October Id. August unlawful and hinder- ter he committed the felonies. at prosecution charges not be 528. Prior to defen- ing could felonies, August county drug-related dant’s trial on convictions” to the 13-604(W)(2). But, attorney alleged it ar- November 1978 charges under forgery charges that even on he had been con- at the anomalous conclusion which rived commit- in October were historical assault was victed time, 1979 felonies. August it could nevertheless felonies to ted at the same and held supreme agreed an historical convic- The constitute pre- drug-related Such circumstances which tion to the offenses. imposes principal mean- an inconsistent ceded “prior felony prior offense need not occur ing phrase on the conviction” principal offense was committed enhance the same within Id. sentence under 13-604. respect to the same facts. at 529. Further, it is with the inconsistent Hannah did not involve Legislature. Although initial refer- of- In an intent shortly separate its occasions that fenses committed ence to trial, did supreme consolidated for the court note passage, our court made clear were cases, statutes that its conclusion was bolstered subsec- in most like *6 (H) applied to such felony, require historical tion 13-604 that defining prior an circumstances. As it then existed subsection place that a crime take both (H) prior to convicted of that crime stated: defendant be being offense for which the defendant is for two or more not [c]onvictions charged for the first to constitute but on occasion con- committed the same the sec- prior for historical conviction may, at purposes for trial solidated requirement for is “to ond. The reason state, prior counted as discretion be warning as a to first offenders serve of this section. purposes convictions for It observed: encourage their reformation.” com- for more offenses Convictions two or statutes, shall be count- mitted on same occasion Recidivist or enhancement Code, only purposes for gener- ed as one conviction § 13-604 in the new Criminal be ally require prior conviction this section. an offense committed based sepa- in the case of The court observed that for which the defendant trial, criminal offenses consolidated rate conviction and Both the sentenced. H of makes clear “subsection occurred be- offense must have need that conviction the other committed. fore the second offense was principal prior to the commission of occur purpose harmony This view is Id. 528. 617 P.2d at offense.” of the recidivist enhancement rel. in State ex Col 21 Four later warning to first to serve which is Court, Superior lins v. reformation. encourage their offenders (1984), suggested supreme court P.2d 539 Steelman, 19, 25,

State (H) sequence to the applied that subsection 475, 481 offenses combined for of the commission of of convictions. However, months, supreme sequence trial as well as within Hannah, case, sepa two the State consolidated In that clarified charges the defendant (1980), against the differ- rate criminal pursuant trial of indictment and purposes recidivist 13-604 and “true ence between (H). to subsection Id. at 689 P.2d at enhancement for a defendant who is tried for charges multiple the two different Of that were crimes the same trial.5 Never- theless, tried, cases, concurrently Legislature sought speci- the State such charge sentencing only have the fied that the that was committed first enhancement is designated subsequent available for the “second or of- as a conviction for the crime 13-702.02(A). fense.” “Conviction was committed second. Id. The Col- (H) for the later offense therefore cannot be used provided lins court noted that subsection trials; 13-702.02 to enhance the sentence recognized for consolidated it also for the earlier no matter when the previous dicta in Hannah which stated that conviction for the later offense occurs.” cases, in such either conviction could consti- tute an historical conviction for the Therefore, with the deletion of the necessary other. Id. itWhile was not to the (H), portion Legis- relevant of subsection Collins, decision in suggested the court then only lature statutory authority deleted the that, charges when were tri- consolidated for interpreted that has ever been to allow a al, (H) subsection also authorized subse- subsequently-committed crime to count as a quently committed crime to constitute a enhancing conviction for conviction long first crime so as the punishment on an offense committed ear- charges concurrently were tried and there lier. The “decision to delete ... subsequent was a conviction for that crime. strong Legislature evidence that [the] did not 689 P.2d at 541. “We believe intend [the] omitted matter should be effec- (H) provides subsection [a] USA, Inc., tive.” Stein v. Sonus be used to enhance a subsequent 200, 203, 11, (App.2007) even (internal omitted). quotations Even if such was for an offense which occurred after the existed, authority appli- still it would not be occurrence of the offense which formed the here, cable concurrently as Thomas was not subsequent basis of the conviction.” Id. separate tried on charges. criminal ¶ 22 Collins was the Arizona case to ¶ 24 The dissent Phillips, cites State v. suggest subsequently that a committed felo 1048, 1062(2002), ny could nevertheless constitute a con proposition pursuant viction.” explicitly Collins relied 604(W)(2)(a), subsequent offense can serve (H) authority as exclusive as an if conviction the *7 that time, anomalous result. Since that subsequent conviction for the offense occurs supreme our recently explained in dis before the conviction on the cussing history the legisla “the However, that was not the issue the court ture eliminated the ‘consolidated for trial’ analyzing Phillips. was in 13-604(H) provision §of put and thus ¶ end to sentence enhancement under Phillips, 25 In the defendant committed ‘prior’ 604 for occurring convictions at the April robberies with another defendant on ¶ 541, 13, same trial.” ¶ 12, 24, 431, 1, and 28 of 1998. Id. at 46 1160; 105 Ofstedahl, P.3d at see also 208 A separate P.3d at 1052. number of crimes ¶ 408, 5, Ariz. at 1124 (holding that during robberies, including occurred these by “the priors eliminated Hannah that during homicide occurred the course of deleting provision that in its 1993 revision of robbery April the last on 28. Id. sentencing the Consequently, code.... ¶ days robbery, 26 Two April before the 28 interpreting applying [cases former 26, 1998, April Phillips on committed a rob- 13-604Q3) applicable....”). ] are not ¶ 441, 77, bery by himself. Id. ¶ Legislature Phillips When deleted subsec- April was convicted of the (H) it also robbery charges revised A.R.S. 13-702.02 and related before he was (2001) provide sentencing string a less-severe tried for the of robberies he commit- amendment, through prior felony a further ed and who have Legislature also extended this less-severe en- “are not convictions as 13-702.02(A). hancement to defendants who have been convict- defined in 13-604.” A.R.S. accomplice

ted with the included CONCLUSION April 28 id. homicide. See ¶30 foregoing, Based we vacate on ¶27 Thompson, Like the defendant Thomas’s and remand for resen- sentence Phillips only argued that he had not because tencing opinion. this consistent with April robbery at the been convicted of the time he committed the other three rob- KESSLER, CONCURRING: DONN beries, robbery April his on the conviction Judge. could not for be used enhance the sentence BARKER, dissenting. Judge, charges arising the non-homicide from the court, three robberies. The May subsequent offense citing Thompson, pre- noted that have “[w]e conviction viously rejected argument.” this Id. at 78. 604(W)(2)(a)? particular statu- Because It then that because conviction for held tory expressly provides this subdivision for April robbery was entered before the result, I would affirm. robberies, Phillips’ convictions for the other conviction preceded for the I. Phillips conviction for which necessary The the reso- facts for charged thus disqualified was and was not of this deal with the of the lution issue dates from an historical convic- commission of the offenses and the convic- tion. Id. tions for offenses at issue. raise, Phillips did not and the Arizona operative The facts are as follows: address, Supreme un- did not whether Court drug at issue were committed Thompson superior der it was error for 18, 2002. The as- aggravated on December subsequent court to conviction use a for a sault, that was to be determined an historical crime enhance the defendant’s sentences sen- April April Al- 12 and 24 robberies. tencing drug on the committed was error, suggests was Thompson that it 14, 2003, January drug on offenses. argument was not the defen- raised aggravated The date of conviction on the dant, actually im- because sentences July was assault April on posed Phillips for the 12 and non- drug tion of June offenses. homicide offenses were not discussed Phil- Thus, facts, subsequently committed it is lips, clear whether the enhancement assault) (the was a Phillips’ practical had effect on non- (to offenses). Phillips homicide sentences. is not point.6 II. considering plain After law, whole, read as a case statute A. *8 statutory history, the that in and we conclude qualify “prior felony question to as a conviction” 34 The at issue has the

order here 13-604(W)(2)(a), possibility arising setting the in which pursuant to A.R.S. felony first must offense for the defendant commits a the by felony charged, subsequent is and the offenses. The which defendant followed may precede the on the convicted of the subse- conviction must conviction defendant be of an charged. quent crime It offenses he is convicted was thus error assault the trial court treat the aggravated trial court to treat earlier Can felony subsequent as convictions for the offenses conviction as an historical felony under sentencing prior historical convictions Thomas. 24, 12, April sentencing and Phillips, at is- homicide convictions from 6. In enhancement 77, 441, pertained Phillips, 202 only robberies.” Ariz. at sue non-homicide Thus, any by Phillips Phillips’ prior failure 46 P.3d at 1062. tions. “The trial court relied on appeal felony robbeiy arguments on did not oc- he commit- raise available convictions from 1998, 26, penalty death review. April his non- cur in the context of a ted alone on to enhance 13-604(W)(2)(a) matter, context, subject “the statute’s histori A.R.S. of en- background, consequences, cal hancing the conviction of effects the sentence for Zamora, words, spirit purpose.” may In other earlier offense? 275, 1230; Williams, see also subsequent felony a (“[O]ther 102, 13-604(W)(2)(a)? at 135 under It legislative .... sources of intent include the may, if the conviction falls within one context, matter, subject statute’s historical specified categories the six under subsec- background, spirit, purpose, (W)(2)(a). consequences, policy.”). “[w]here [statu tory] language plain unambiguous, B. is generally courts must follow the text as writ statutory provision 35 The relevant reads ten.” Dist. No. 50 v. Canon Sch. W.E.S. as follows: Co., Inc., Constr. 869 P.2d 2. “Historical conviction” 500, stated, the Canon court As means: legislative “absent a clear indication intent (a) Any prior felony conviction for contrary,” the court will not “construe which the offense of conviction: something the words of a to mean statute (i) Mandated a term of other than plainly what state.” Id. fact, It is where is no doubt as to there (b) Any felony, class 2 except or intention of frame ... [a] those who stat- (a) offenses listed in subsection modify, sup- ute that a court alter or

paragraph, that was committed within ply any repugnan- words that will “obviate years immediately preceding the ten cy intention,” inconsistency to or with such offense____ date of the doing permit “particular provi- so 4, Any felony, except class 5 or 6 sions” to be read construed or otherwise listed subsection of this than “according meaning.” to their literal paragraph, that was committed within Pratt, (quoting Supervisors v. Bd. years immediately preceding the five (1936)) 536, 542-43, 57 P.2d offense____ date of the (citations omitted). (d) Any felony third ease, 37 In this of the stat- or more conviction. plain ute is to the issue which we are added).7 § 13-604(W)(emphasis A.R.S. (W)(2)(a)(i) confronted. applies Subsection construing When “[w]e first “mandate[] which term of 13-604(W)(2)(a)(i). language.” imprisonment.” consider the statute’s Zamora v. Reinstein, convictions, As those (1996); (W)(2)(a)(i) Williams, see permits also State an offense to abe (1993) (“[I]n solely conviction based interpreting meaning of “[a]ny prior felony a statute ... the date of conviction: look first lan- [w]e statute’s conviction for which the offense of conviction needed, guage----”). imprisonment.” As we also consider a term Mandated (iv) subcategories illegal The full text of the six Involved the control of a criminal enterprise; as follows: (v) driving Involved under the in- "Historical conviction” *9 liquor intoxicating drugs, driving fluence of or means: intoxicating liquor while under the influence of (a) Any prior felony conviction for which the canceled, drugs suspended, or awith revoked offense of conviction: driving or refused driver or under the (i) license except Mandated a term of intoxicating liquor drugs influence of or chapter for a violation of 34 of this title involv- amount; driving two or more under the influence of ing drug a below the threshold or (ii) drug intoxicating liquor or convictions within knowing Involved the intentional or inflic- months; period injury; sixty a or physical of tion of serious or (iii) (vi) dangerous any against deadly Involved the exhibition a Involved crime use or of instrument; weapon dangerous or or children as 13-604.01. defined in added). (W)(2)(a) the enhancing precede of the offense to com- (emphasis Subsection Id. present at issue requirement timing no as to the of the mission of the offense for makes (a) felonies, enhancing may say so.9 of the offense with subsection See commission 439, 441, 10, Thompson, the of the 200 Ariz. respect commission But, “prior felony may in “[w]hen A conviction” P.3d the offense. clear, felony language a that was committed of a statute is it is determina- fact be offense tive of construction.” Id. at subsequently. the statute’s ¶ 6, 27 P.3d at 797. (c) (W)(2)(b) and in 38 Subsections differ 13-604(W)(2)(b),(c). regard. this A.R.S. C. govern Those subsections the use of class not convictions that do of This construction subsection (W)(2)(a) term imprisonment. mandate a Id. Sub- the is consistent with construction (b) (c) the require that Supreme previ- sections enhanc- that has the Arizona Court 13-604(W)(2) ing offense must have been commit- ously given to related and ted, respectively, five-year in the ten- settings. similar period “immediately preceding” the commis- Thompson, commit the defendant sentencing. of the offense set for Id. sion prior drug ted at two offenses. “prior felony a conviction” not 440, 27 at 797. committed a theft P.3d He subsequent felony include a offense under days drug offense the second eleven (b) subsections. Both subsections these pled guilty drug to the two offense. Id. He exception have an for felonies that fall by first. Id. He was then convicted offenses (a). Id. under subsection jury a the theft Id. The State offense. put, sought classify drug convictions as Simply plain of sub- (a) pur for require does of historical section commission enhancing poses enhancing the theft offense to commission sentence ¶ 3, at 796. sentencing.8 the offense set All that is conviction. The for drug argued for con required is the conviction the en- defendant because hancing prior to the did not occur before the commission offense occur conviction victions a of the theft the sentence for theft for the offense which defendant is appropriate imply Nor could not be enhanced sentenced. is it (a) they “prior” felony requirement convictions as were not such subsection when rejected The this ar legislature explicitly created time of convictions. Id. gument requirement and concluded that A.R.S. offense subsections 604(W)(2)(c)10 (c). legislature required that the conviction If the wants the commission Christian, perverse leads result. In State (2003), Supreme interpreted He this of the statute Court claims that Arizona charges strategically prosecutor file to a different issue allows the as it relates as considering. summary offenses so In its obtain convictions on later than we are (a) offenses. “lists enhance the sentences for earlier For the court said that subsection alleged types example, the order of offenses irrele- that can be as histor because six (a) they purposes, the State can vant ical convictions no matter when 66-67, ¶ 7, Christian, charges and a conviction decide to file obtain occurred..” first, added). then that conviction to (emphasis court's later offense use P.3d at 1243-44 supports reading offense. the sentence for the earlier the statute. enhance statement this, prosecutors agreeing that do possibility intend Without There is the by prosecuting advantage falling is limited because that felonies under subsection ed first, they ability to use the later lose the as convictions no treated many to enhance the sentence of earlier offense matter how committed, they later were but that must fense be committed before the still (c). (W)(2)(b) case, If in subsections that was Thompson At the statuto- the time of however, intent, legislature’s the statute does not ry provision was numbered convey 604(V)(l)(c). it. Thompson, statutory provisions The current at 797. substantively sentencing argued hearing have renumbered but are been 9. Thomas at the *10 analysis. purposes of this requiring enhancing precede same for offense to

423 for the offense occur convic fences for the two robberies committed offense, subsequent tion for the not before April on 12 and 24 well subsequent as the ¶ subsequent the commission of the robbery April 28. Id. at 27 P.3d 796. 441, 6, 27 Id. at P.3d at 798. The court also Phillips 43 The decision does not refer- specific noted that the subsection of the stat applicable ence the subsection of applicable in Thompson “requires ute 604(W)(2), apparent but it is is was precede offense to offense.” (W)(2)(a). April robbery subsection The 26 Id.; 13-604(W)(2)(c). Although see A.R.S. was committed after two of the other robber- Thompson the issue was different in —wheth robbery. ies and before the third As the precede subsequent er the conviction must April robbery “prior” 26 was used as a qualify offense robberies, April 12 24 April it is clear (W)(2)(e) court declined to read into the —the Supreme apply- the Arizona Court was requirement statute a that convic (W)(2)(a), ing subsection as subsections for which the offense do not allow enhancement based on a sentencing sought. enhancement was subsequent April robbery offense. The 26 ¶¶ 440-41, Thompson, 6-7, 10, 27 prior felony used as a convictionwas obvious- P.3d at Although dealing 797-98. with a ly a subsequent felony April 12 offense issue, different our construction of subsection robberies, and 24 which were committed (W)(2)(a) is consistent with the Arizona Su days earlier, days respec- fourteen and two preme Court’s construction of subsection tively. Supreme holding The Court’s (W)(2)(c). Phillips may trial court “[a] use a ¶ Additionally, 42 Phillips, State 202 felony conviction for purposes enhancement 1048, 1062(2002), 46 P.3d whenever ‘the conviction on the the defendant committed robberies with an ... preeede[s] the conviction on the 12, 24, April individual on and 28 of ’” to, applies with, and is consistent 26, 1998, April 1998. On he committed language in robbery alone. Id. He was convicted of the interpreted 441, 78, and as herein. Id. at April robbery first. Id. at 46 P.3d (quoting Thompson, 46 P.3d at 1062 argued 1048. He that because he had not ¶¶ 6-7, 798). been April robbery convicted of the until robberies, he committed the other three 44 Thomas’s of subsection April his conviction of robbery (W)(2)(a), holding could “prior felony that a not be used to enhance the sentence for the tion” cannot a subsequently include commit- ¶ 77, other three robberies. ted would mean that the Arizona applied The court Thompson Supreme and held fundamentally Court erred in Phil- April because the conviction lips, by sentence, imposing illegal as the robbery was entered before the convictions court used impose such a an en- robberies, for the other April robbery sentencing April hanced scheme on the conviction could be used to enhance the sen and 24 in that case.11 See State v. 11. The full text 6-7, ¶¶ Supreme Thompson, 796, of the Arizona Court's ¶¶ (2001). Phillips' discussion is as follows: April robbery from the were entered before Phillips’ prior felony The trial court relied on 12, 24, April his convictions and 28 robbery convictions from the he committed correctly robberies. the trial court con- 26, 1998, April alone on to enhance his non- Phillips' April cluded that 26 convictions con- 12, 24, April homicide convictions from the purposes stituted historical felonies for Phillips argues and 28 robberies. that because enhancing the non-homicide sentences stem- April robbery he was not convicted ming April from the and 28 robberies. April until after he had committed the ¶¶ Phillips, 202 Ariz. at robberies, and 28 the trial court could not use Supreme 1062. It is clear that the Arizona Court April 26 convictions. utilizing subsequent felony was aware it was previously rejected argument. We have A offense as conviction for the rob- trial court use a April beries on 12 and 24. for enhancement whenever "the con- April robbery conviction for the precedefs] 13-703(F)(2) viction on the satisfy was also used to the A.R.S. aggravator imposed offense.” State v. for the death sentence due to

424 ¶ 532, 534, 5, 1153, Kelly, 190 Ariz. 950 amendments a number of P.2d 1993 made (1997) changes other (stating improper significant 1155 that the use of to the Among changes, framework. purposes convictions “for of sentence legislature on enacted revised time limits enhancement constitutes er fundamental Derello, use of convictions for sentence ror”); v. Ariz. State 199 § Ariz. enhancement 13-604. 1993 1234, 1236 (same). (App.2001) 18 P.3d Rath (codified Laws, 255, § § 7 Sess. ch. 13- committing than fundamental er error Christian, 604(V)); Ariz. at 68 15 see 205 Phillips, prefer I to think court was 11, n. 66 P.3d at 1245. The also following plain language of the changed inquiry respect the relevant with holdings. consistent its 1993, to time limits. the rele- Before vant measurement was from the date of D. to prior the date of the 13-604(A) present § offense. See A.R.S. however, argues, 45 Thomas cur (1989) (“[A]person who ... convict- stands was rent statute intended to eliminate “Han 5 felony ed of a class or ... and who priors, meaning priors nah” for which the previously has been convicted of matter, time of commission does not and that years preceding within ten next the date of construing the plain as have we offense.”). 1993, present Since contrary done is that intent. See State v. relevant measurement has been from the Hannah, 575, (1980), 126 Ariz. 527 date of the of the to the date superseded by explained statute as in Chris § 13- See A.R.S. tian, 15, 11, n. 68-69 66 604(V)(2)(b) P.3d at (“Any felony ... class 2 or 3 points 1245-46 n. 11. Thomas first to State years committed within the ten was Hauser, Romley v. ex rel. 209 immediately preceding of the the date ¶ 13, 42 n. 2 1160-61 n. offense.”); 13- (2005), argument. a basis as for his 604(V)(2)(c) (“Any class 5 or 6 that was committed within the five Hauser, referencing In generally 46 immediately preceding the date amendments what is now 13- offense.”). changes to the These 604(W)(2), the court noted “[t]hese designed calculus measurement were changes to the measurement calculus were priors.” eliminate so-called “Hannah See designed pri- to eliminate so-called ‘Hannah Hannah, 126 P.2d 617 ors.’ Hauser addressed whether of- (1980) (holding ver- that under qualify that did fenses not under A.R.S. convictions, sequence sion of statute 13-604(W)(2)(c), because exceeded the eligibility rather than determined five-year period, time could be used for sen- enhancement); State ex rel. Collins tencing purposes enhancement under A.R.S. Court, Superior ¶¶ § 13-702.02 Id. at (1984) P.2d Hannah (relying pertains at 1159. latter That section neces- proposition that “it [was] “who of two more person is convicted or sary ‘prior also a conviction’ be felony offenses were not committed offense”). the same occasion but that either are consoli- ¶2, 13, Ariz. at 541-42 n. for trial are not dated n. 2. out of the 1160-61 When taken as defined in (c), ruling context of on subsections 13-702.02(A). holding 604.” A.R.S. In can be misunderstood. footnote could be that such used 13-702.02, earlier, only sentence enhancement under of the four As noted two following designed made statement subsections to “were priors.’” which is at issue here: ehminate so-called ‘Hannah April during April April homicide 26 offense was to those that occurred 439, ¶ 57, robbery. as to the non- 46 P.3d at 1060. offenses. The issue April presented for offenses on here is not homicide convictions issue April robbery April death as the sentence *12 sense, important distinguish this it is importantly, legislature that Most the did not (b) phrase priors” choose, (c), the “Hannah has two distinct itas did with subsections meanings. As noted in “Hannah to limit convictions under sub- (d) priors” (a) has been used to refer to the rule sections to offenses that were convictions, “sequence rather than time-period “preceding committed within a eligibility determined for enhance present the date of the offense.” A.R.S. Hannah, (c). (citing 13-604(W)(2)(b), § ment.” Id. priors, Hannah 527). Additionally, meaning priors the term “Han sequence based on “the priors” nah has also offenses,” Hauser, been used to reference convictions rather than Hannah, ¶ practice the “under 2, 13, when a defen 209 Ariz. at 541-42 n. 105 P.3d at dant was convicted of three counts 1160-61 n. were not eliminated as to con- together, (a) that were (d). tried the State could victions under subsections allege priors (d). two of the 13-604(W)(2)(a), § convictions as for the Rather, A.R.S. the Christian, other conviction.” statutory at language expressly provides for a ¶11, 15, 68-69 n. 1245-46 n. 11. timing sequence based on the date of “convic- tion.” holding Hauser has no to the con- ¶ 48 The in footnote Hauser stands for the trary. proposition that concept pri of “Hannah replaced by Thompson, general § ors” was there are A.R.S. 13-702.02 also referencing and -3419 in statements multiple prior terms of that “the of offenses that precede present occurred on fense different must in occasions that were offense” qualify tried at the same order to time. Hauser enhancement under the also stands proposition statute. 200 Ariz. at “sequence P.3d at 798. convictions, Again, language rather than this offenses” was in the context of a was no longer (W)(2)(c), proceeding sole criterion in case determining eligi subsection bility (b) which specific statutory enhancement had the requirement under subsections (c) 13-604(W)(2). Hauser, § prior precede offense must pres ¶2, 13, at 541-42 n. ent offense. 105 P.3d at When 1160-61 n. 2. Hauser characterizes above, Thompson As “recognizing § noted that for 13-604 (c) subsections expressly requires prior enhancement ‘the offense must that, offense,’ qualify as a conviction under subsections, again those conviction must must be read be based on an offense that context of a occurred that falls (W)(2)(b) being within subsection sentenced. or as contrast 604(W)(2)(b) (W)(2)(a) (d). (pertaining ed with subsection specified or “committed within the immediately ten “prior felony 51 That a conviction” under preceding offense”); date of the (W)(2)(a) may subsequently be a 13-604(W)(2)(c) (pertaining speci committed offense is also consistent with the fied offenses that were “committed within the legislative policy underlying 13-604. That years immediately five preceding the date of policy, Christian, as set forth in describes offense”). generally the four basic subsections as de- fined in that statute: 49 The same apply, considerations do not however, Thus, convictions under legislative policy subsec- was to differen- (W)(2)(a). Although it addressed the tiate the repeat treatment of offenders background generally, based on four factors: whether the directly Hauser did not deal nature, with either sub- convictions were serious in wheth- (W)(2)(a) (d). section In neither of these er the crimes for less of- serious settings, dealing with serious offenses includ- relatively recently fenses were committed (sub- ing prison those for which is mandated respect with to the wheth- (a)), section or third er the awas third (subsection (d)), conviction, did the change or whether the crimes commit- sequence based on convictions rath- ted on different occasions were consolidat- er than determining eligibility. offenses as ed for trial.

Christian, Ariz. at 68-69 n. 66 which the defendant is sentenced.” Id. noted, policy 1245-46 n. not at As 13-604 was issue Steel- allowing prior felony sub- convictions under specifically con Subsequently, man. when (d) (dealing either seri- sections struing the version of 13-604 commented convictions) third ous offenses or Steelman, Supreme Arizona Court “ statutory language which consistent with the not a held 13-604 is true recidivist *13 allows the use of a conviction based on commonly as that term is under statute conviction, regard date of without clearly stood.... Our state has in this Accordingly, the date of the offense. indicated it was concerned not with sense, priors” have elimi- “Hannah not been crime, deterring the of also commission but (d).12 Id. nated as to subsections and punishing persistent repetitive with or regardless when offender of defendant E. the other ex rel. committed State offense.” contain 52 Two other Arizona cases also Superior In Collins v. Court and For Mari general or either statements dicta for which 280, 281-82, County, P.2d copa 142 Ariz. 689 explanation may proper setting a and (1984) 539, (construing § 13- 540-41 A.R.S. Steelman, 19, helpful. In v. State 604(H)) added). The (emphasis Arizona Su 475, (1980), Ari- 612 479-81 P.2d preme Court that under that version of held Supreme zona Court construed then-A.R.S. § “[a] 13-604 conviction be used 13^154(E)(2), provided aggra- § which for an subsequent enhance even penalty in a “[t]he vator death case when an conviction was for offense which previously defendant was convicted of felo- of occurred the occurrence the offense ny involving in of the United States the use subsequent which formed the basis of person.”13 of In threat violence on another 282, at 689 P.2d at 541. conviction.” Id. Steelman, the “acts which served as the basis too, herein, This, explained as is consistent for the convictions were committed after” Supreme subse with Arizona Court’s 23, at 612 P.2d murders issue. Phillips in quent decisions and Christian at 479. court found that the use of The portions § pertaining those of subsequent was based 604(W)(2) (subsections (a) (d) con as permissible, statute makes no “[t]he because (c)) with which do not have trasted underlying the acts those reference to when legislative requirement as to the tim specific convictions must have been committed.” rather than the convic ing of the offenses 25, 612 consistent P.2d at This is tions. § with the set forth herein. Fallon, 189, 188, Ariz. 604, had (App.1986), 726 P.2d this court part analysis, as of its then-§ it the whether 13- issue of penalty aggrava- the death court contrasted 702(H) retroactively des- applied “is to be tor at issue or enhancement “[r]ecividist felony in statutes, open-end an as a ignate § A.R.S. in the [such as] Code, trigger repeat felony offender require order to generally [that] new Criminal §§ provisions 13-604.01 or 13-604.” based on A.R.S. conviction be trigger the court held that order to “[i]n offense committed before the offense This Cruikshank, matter); clarify Taylor argues is still do not 12. Thomas also that “if the court meaning purpose (App. not convinced clear,” requires lenity” 2006) (same). the "rule the statute is issue in favor of Thomas. us resolve the consider whether rule need not 13-454(E)(2) relied 13. The version of A.R.S. lenity apply in this situation as the statute should upon has been renumbered Steelman unambiguous. v. Brown is clear and See Garcia pertinent part slightly provide revised to ing, previ- has been or was "The defendant follows: (App.2006), grounds, rev’d on ously whether a serious convicted of (2007) (stating lenity that rule of completed.” preparatory or only applies unclear and if a statute's 703(F)(2) changes no (Supp.2007). The have matter, context, subject history, the "statute's analysis impact on the here. spirit, purpose” consequences, effects and felonies, sentencing provisions gerous class 5 or class 6 fall under enhanced 13-604(W)(2)(c), requires repeat 13-604.01 or 13-604 for of- A.R.S. which fenders, enhancing the defendant must have had the commission of the offense oc- felony conviction at the time of the second cur before the commission of the at 606. offense.” With- offense. The fact that Thomas committed commenting may may out on what not be hindering the unlawful 13-604.01, required under prosecution drug-related statement offenses after the directly contrary in Fallon as to 13-604 is prohibits offenses thus them from his- Supreme to the Arizona Court’s construction torical convictions. 13-604(H) Collins, of the then-version of sum, properly 57 In the trial court acted and therefore cannot stand. when treated the assault con- viction aas *14 III. 13-604(W)(2)(a), under A.R.S. but not the ¶ 55 It clear that the trial court correct imprisonment hindering prose- unlawful ly applied the statute to the facts. cution convictions. July

On well before the convictions drug Thomas was convicted IV. assault, aggravated felony; a class 3 un herein, 58 For the reasons set forth I imprisonment, felony; lawful a class 6 judgment would affirm the enAred hindering prosecution, felony. a class 5 Min trial court. Entry February ute filed State v. (Mohave Thomas, County No. CR-2005-0276 Ct.2005).14

Super. The trial court found that aggravated dangerous assault was a of 13-604(1). pursuant

fense to A.R.S. dangerous felony,

As a aggravat class 3

ed mandatory assault conviction carries imprisonment. term of See A.R.S. 13- 175 P.3d 85 604(1). imprisonment Because mandatory, Arizona, STATE of ex rel. DE the conviction falls ARIZONA under AR.S. 604(W)(2)(a)(i). PARTMENT OF ECONOMIC SECURITY upon The offense which the (Gloria Young), Petitioner/Appellee, A. conviction was based occurred after the com mission of the offenses. above, timing discussed of the commis LEE, III, Respondent/Appellant. David C. sion of the offense is irrelevant under sub (W)(2)(a) section of the statute. No. 1 CA-CV 06-0810. aggravated assault conviction is a historical Arizona, Appeals Court of conviction even the com 1, Department Division A. mission of the offense occurred after the drug-related commission offenses at Jan. issue here.

¶ 56 The trial court also found that

unlawful hindering prose- non-dangerous

cution convictions were Entry February

felonies. Minute filed

2005, Thomas, No. CR-2005-0276. As non- felonies,

dangerous carry do not manda-

tory imprisonment. terms of See A.R.S. 13-604(F). convictions, These as non-dan- judicial

14. The court take notice of min- Thomas’s conviction for assault. See Valenzuela, 109, entry superior ute issued in the separate proceedings criminal which resulted in