IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Petitioner,

v. HON. JAN KEARNEY, Judge o f the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,

and AMY LOU HENDERSON,

Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-SA 2003-0101

DEPARTMENT B O P I N I O N

SPECIAL ACTION PRO CEEDING Pima County Cause No. C R-20022577 RELIEF DENIED Barbara LaWall, Pima County Attorney By Elizabeth Hurley Jeffrey D. Bartolino Tucson Attorneys for Petitioner

Tucson Attorney for Real Party

in Interest P E L A N D E R, Presiding Judge.2

¶1 In

this s pecial action, petitioner State of Arizona conte

nds the respondent judge erred in ordering real party in inte rest Amy Lou Henderson to

remain released on bon

d pending sentencing

following her conviction for aggravated driving under t he i nfluence of an intoxica nt (DUI) in violation of

A.R.S. § 28-1383(A)(1). The state argues that, be cause Henderson must be imprisoned for four months purs uant to § 28-1383(D) even if she is granted probation, the respondent

judge was required to order her “immediately placed into custody af ter c onviction” pursuant to Rule 7.2(b)(1), Ar

iz. R. Crim. P., 16

A A.R.S. That rule

gener ally requires such action for persons convicted in s uperior court who “will in all re asonable probability suffe r a sentence of imprisonment.” Beca use the state has no equally plai n, speedy, and adequate r emedy b y appeal, see A.R.S. § 13-4032 and Rule 1(a), Ariz. R. P. Special Actions, 17B A.R.S., a n d becaus e this is a pure question of law, a matter of first impression, and an issue of statewid e importance, we accept jurisdiction. Ariz. Dep’t of Revenue v. Super

ior Court , 189 Ariz. 49, 51, 938 P.2d 98, 100 (App. 1997) . We conclude the respo ndent judge had discretion t o continu e Henderson’s release on bond, and we therefore deny relief. See Ariz. R. P. Specia l Actions 3. ¶2 The relevant facts are not disputed. A jury found Henderson guilty of aggravated DUI, a class four felony, on Septemb er 12, 20 03. Henderson had been r eleased from custody since the time of her arrest. After the jury returned its v erdict, the state moved

that she be

taken immediately

into custody pending sentenci ng pursuant

to Rule 7.2(b), Ariz. R. Crim. P. Henderson

objected, arguing that she is a strong candidate for pr obation and noting she had rejected a plea offer in which the state had pro

posed recommending that she b e placed on probation. Recognizing that § 28-1383(D) an d Rule 7. 2(b) arguably called for Henderson’s immediate

incarceration, the responden t judge n onetheless found that Rule 7.2(b) did not apply1 Henderson did not establish, and d oe s not contend, that “reasona ble grounds [exist] to believe that [her] conviction ma y be set aside on a motion fo r new trial, reversed on appeal, or vacated in any post-conviction proceeding.” Ariz. R. Crim. P. 7.2(b)(1). Although not at issue in this special action, those e xceptions and

the last sentence of Rule 7.2(b)(1) appear to p

rovide forthe pos ting of an a

ppeal bond (or similar post- conviction bond) by a defe ndant sentenced to prison if one of the

specified conditions is established. But th ose provisions are directly a t odds with A.R.S. § 13-3961.01, whichspecifically prohibits any su ch bond after sentencing unless a court finds incarceration would endan ger the defendant’s life. This c ourt has previously 3 a nd permitted Henderson to re main released on bond und er the supervision of pretri al se rvice s pending sentencing. The sta te petitioned for special a ction relief on October 1. ¶3 Altho ughsente ncing was set for October 1 0, this court ordered the pa rties to continue litigating this special action regardless of the outcome of that pro ceeding. According to Henderson’s response to the special ac tion petit ion and thestate’s avowal at oral ar gument, Henderson

was placed on probation on O c tober 10. Although the issue before us i s therefore moot, we m ay nonethel ess decide such an issue wh en, as here, it is a rec

urring issue of public importance that will otherwise evade re view. See State

ex rel. McDougall v. Mu nicipal Court , 155 Ariz. 186, 188, 745 P.2d 634, 636 (App. 1987). ¶4 We thus address whether a prob ation-eligible defendan

t found guilty of

aggravated DUI and, therefore, subje ct to a mandatory four-m onth term of imprisonment pur suant to § 28- 1383(D) must beimmediately taken into c ustody pursuant

to Rule 7.2(b). Rule 7 .2(b)(1) provides: After aperson has been convicte d of any offense for which the person wil l in all reasonable probabilit y suffer a sentence of imprisonment, the person shall not be released on

bail or on his or her own recognizance unless it is esta bl ished that there are reasonable

grounds to believe that the conviction may be set aside on a motion for new trial, reve rsed on appeal, or vaca

ted in any post-conviction

proceeding. The release of a person pending appeal shall be revoked if the person f ails t o prose cute the appeal diligently. 1determined that the statute governs over the rule. State v. Hawkins , 140 Ariz. 88, 90, 680 P.2d

522, 524 (App. 1984).

2 Much of the case law in this are a is based on similar provisions that were contained in previous versions of the DUI laws. See, e.g., former A.R.S. § 28-692.02(C), 1988 Ari z. Sess. Laws, ch. 246, § 8; form er A.R.S. § 28-697(

E), (F), 1993 Ariz. S

ess. Laws, ch. 223, § 8. 4 Section 28-1383(D) pro

vides in pertinent part: A person is not eligible for probation, pardon, com

mutation or suspension of sentence or r elease on any other basis u ntil the person has served not less than four months in prison if the person is convicted under [various aggravated DUI statutes, including § 28- 1383(A)(1)]. ¶5 We review de novo the interpretation of a statute. State v. Fell , 203 Ariz. 186, ¶6, 52 P.3d 218, ¶6 (App. 2002). Our primary goal is to discern

and give effect to legisla tive intent. Id

. To that end, we construe the statute’s language, and if it is unclear, then consider i ts historical background, subject matter, context, effects, consequences, spirit, and purpose. Id . These principles of statutory construction app ly equally to rul es promulgated by our supre me court. Ariz. Dep’t of Revenue , 1 89 Ariz. at 52, 938 P.2d a t 101 (“The interpretation of the rules of procedure

parallels the interpretati

on of statutes.”). More

over, “[r]ules of proce

dure and statutes

are read in conjunction with each other and harmonized whenever possible.” Groat v. Equity Am. Ins. Co. , 180 Ariz. 342, 347, 884 P.2d 228, 233 (App. 1994). ¶6 In

this context, we are unable to discern a plain meaning of the rule and statute read in conjunction be cause it is not clear whethe r the four-month prison ter m mandated by § 28- 1383(D) is a “sentence of imprison ment” for purposes of Ru le 7.2(b) (1). 2 As noted above, the statuterequires a prison term even when a person is granted probation. That provision, however, is at odds with the general fe lony sentencing scheme, which provides for either the imposition of3 In support of its contention that the mandato ry, four-m onth imprisonment under § 28

- 1383(D) constitutes a “sentence,” the state also pointed out at oral argument that § 28-1383(H)(1) refers to “a person sentenced pursuant to ” § 28-1383(D). (Empha sis added.) For the reas

ons noted below, however, w e do not find that word choice controlling. 5 aprison sentence or the suspension of the imposition of sentence if probation is gr anted. See A.R.S. § 13-603(B), (E) (sentencing court may suspend imposition of sentenc e and grant probation

or , if probation not granted, impose sentence of imprisonment); Ariz. R. Crim. P. 26.10(b)(3), 17 A.R.S. (sentencing court must pronounce terms of sentence or probation). As Division One of this court has stated:

Probation and imprisonment in a

Department of Correc

tions facilityfor a sin

gle off ense are not compatible under the usual statutory schem e. That being the case, A.R.S. section 28-6 97(E) [the pre decessor aggravated DU I statute] does not mesh we ll with the other statutory provisions that ap p ly to sentencing and probation. State v. Arzola , 183 Ariz. 112, 112, 901 P.2d 460, 460 (App. 1995). ¶7 Indeed, at oral argument, the sta te characterized t

h e unique aggravated DUI sentencing

provision currently codified in § 28-1383(D) as a “strange animal.” Th e state contends, however, that the manda tory prison term is a sentenc e, arguing

that, because

Rule 26.1, Ariz. R. Crim. P., 17 A.R.S., defines “sentence” as “the pronounce ment b y the court of the penalty imposed upon the de fendant after a

judgment of

guilt,” that definition should be used to define the phrase “sentence of

imprisonment” in

Rule 7.2(b). 3 We agree that the mand atory prison term is a penalty. The legislat ure’s intent in prescribing mandatory prison time for aggravated DUI offender s was to deter “‘persons from dr iving while affected by a lcohol by providing for penalties that are commensurate with the ser iousness of this offense.’” State v. Gandara , 1744 See, e.g. , A.R.S. §§ 13-1201 (endangerment); 13-1204(A)(11) (aggravated assault cau sing

temporary

but substantial disfigureme nt or bodily impairment ); 13 -1507 (residential burgla ry without a weapon); 13-3408(C

) (first-time sale or im

port ation of narcotic drugs); 28-622 .01 (felony flight from purs

ui ng law enforcement vehicle); see alsoA.R.S. §§ 13-604(F ); 13-901; Statev. George , 413 Ariz. Adv. Rep. 3, ¶8 (Ct. App. Nov. 26, 2003) (in absence of other sentencing

enhancements, defe

ndant whose aggravated assault under § 13-1204(A)(11) resulted in temporary but substantial d isfigurement, tempora

ry but substantial loss

or impairment of any body organ or part, or fractu re of any body part may be pla ced on probation); State v. Womack , 174 Ariz. 108, 847 P.2d 609 ( App. 1992) (describing ha zardous circumstance

s encompassed and prohibited by § 28-622.01, flight from a pursuing law enforcement vehicle). 6 Ariz. 10 5, 107, 847 P.2d 606, 608 (App. 1992), quoting State v. Benally , 137 Ariz. 253, 255, 669 P.2d 1030, 1032 (App. 1983); see 1982 Ariz. Sess. Laws, ch. 234, §§ 1, 9. ¶8 We are less persuaded by the state’s a ssertion that the intent of the mandator y imprisonment

provision was to “stop

the carnage” by “remov[ing] . . . dru nk[en] drivers from the road as soon as possible.” If that were tru e, the legislature could ha ve made probation absolut ely unavailable

for this crime, as it has, for example, for sexual assault. See A.R.S. § 13-1406(B). If the legislature had done so, of course, there wou ld be no question that a person convicted of aggravated DUI must be taken into custod y immediately upon return of a guilty verdict unless one

o f the other exceptions in Rule 7.2(b)(1) were esta

blished. The legislature al so could hav e expressly required that a defendant be taken immediately into custody when a jury retur ns a guilty verdict for aggravated

DUI. But the legislature did n ot do so. ¶9 In

addition, we note that the legislature has made probation available for first-time felons convicted of other crim es that, like

aggravated DUI, involve behavior that creates a risk of serious harm to other people. 4 Rule 7.2(b) permits the possibil ity of presentence rele

ase in those

cases. We also note that the state’ s position here is i nconsisten t with the actions it has taken in this aggravated DUI case, in which it agreed to recommen d pr obation for Henderson if she7

acceptedthe proff

ered plea agreement. And, at oral argument, we learned that Henderson was released on bond for over one year pending a trial that was delayed at least in part to continuances requested by and granted to the state. ¶10 Henderson, in contrast, points to A.R.S. § 13-701(A), which provides in part that “[a] sentence of imprisonme nt for a felony shall be a definite term of ye ars.” She contends the mandatory

four months’ imprisonment under § 28-1 383(D) is not a “sentence o f imprisonment”

as defined in § 13-701 beca use the range of imprisonm ent for a class four felony under that statute is one to 3.75 years. See A.R.S. §§ 13-702(A), 13-702.01(A), (B). She argues that, because a trial court can only grant probation by suspending the impositi on of sentence, se e § 13-603(B) , adefendant who receive

s probation is therefore ne ver “sentenced,” and

the mandatory

prison term is only a condition of probation. Henderson accurately cites several cas es that describe the mandatory

term of incar ceratio n following a conviction for a ggravated DUI as a condi tion of probation. See State v. Fragozo , 19 7 Ariz. 2 20, ¶4, 3 P.3d 1140, ¶4 (App. 2000); State v. Sanchez , 191 Ariz. 418, 420, 956 P.2d 1240, 1242 (App. 1997); Arzola , 183 Ariz. at 112, 901 P.2d at 460; Benally , 137 Ariz. at 256, 669 P. 2d at 1033. ¶11 Ourreview of these cases reveals that the Benally court described the man datory prison term as a condition of probation

because the predecessor statute to § 28-1383(D) at issue in that case, former A.R .S. § 28-692.02(A), provide d that the “judge shall not grant p robation .

. . except on the condition that the person serve no t less than six months in prison.” Benally , 137 Ariz. at 254, 669 P.2d at 1031 (e mphasis added). However, that language was deleted from the subsequent

version of the s tatute, former A.R.S. § 28-697, and replaced in 1990 with “a person

. . . is not eligible for proba tion . . . until the person has served no t less than six months in5 At oral argument, the state

conceded that, at Henderson’s sentencin g hearing, it had not objected when the respondent judge g ranted proba

tion to Henderson before she h ad served the mandatory prison term. 8 prison.” 1990 Ariz. Sess. Laws, ch. 375, § 10, ef fect ive June 28, 1990. Since then, the mandatory prison provision has contained essentially id entical “not

eligible . . . until” language throughout the numerous revisions and renumberings of the DUI statut es. ¶12 Noting this statutory change, the state makes the fac ially persuasive

argument that the mandatory prison term c annot be a condition

of probation because the plain language of § 28- 1383(D) provides that the prison term must be served befo re the defendant is eveneligiblefor probation. Nonetheless, almost without exception, our appellate c ou rts have expressly or implicitlyapproved trial court s’ orderin

g the mandatory term of incarceration in an aggravated DUI case to be served as a c ondition or term of probation, despite the post-June 28, 1990, language that appears to make

that impossible. See Fragozo ; State v. Nihiser , 191 Ariz. 199, 204, 953 P.2d 1252, 1257 (App. 1997); Sanchez ; Arzola ; Gandara , 174 Ariz. at 107, 847 P.2d at 608; butsee Gibbons v. Superior Court , 178 Ariz. 362, 364, 873 P .2d 700, 702 (App. 1994 ) (describing

the mandatory, four-month prison term under a predecessor statute as a “sentence”). ¶13 We need not decide the propri ety of treating the manda tory prison term as a condition of probation, which, we suspect, has been a legal fiction em ployed to fit the

mandatory prison term into an existing felony sentencing structure that is otherwise ill-suited to acc ommodate sucha “strange animal.” 5 See § 13-603( B), (E) ; Ariz. R. Crim. P. 26.10(b)(3). Rathe r, we address the narro wer question of whether the mandatory prison term, regardless of how it is6 As the state points out, in State v. Superior Cou rt , 138 Ariz. 4, 6 , 672 P.2d 956, 958 (App. 1983), this court stated that “[t]he purpose of [form

er] Rule 7.2(b) is

to prevent

a defendant w ho is waiting to be sentenced[ ,] and who is surely going to pr ison, from commit

ting furthe r crimes during the interval.” Cur rent Rul e 7.2(b)(1) has that sa me underlying purpose for convicted felons who probab ly will be sentenced to prison u nder Arizona’s felony se ntencing scheme. But that case

neither involved a DUI off ense nor the

“strange animal” currently codified in § 28-1383(D). 9 semantically

labeled, triggers mandatory, immediate incarceration after co nv iction pursuant to Rule 7.2(b)(1). On that issue, we find the history of the rule instructive. ¶14 Formerly, Rule 7.2 made presentence release unav ailab le to any defendant “convicted of

any offense for which he has or may suffer a sentence of imprisonment.” (Empha sis added.) See 163 Ariz. XLIV (1990). I n State v. Superior Cou

rt , 138 Ariz. 4, 6-7, 672 P.2d 956, 958-59 (App. 1983), this court note d that it was anomalous to ma ndate custody in jail pe nding sentencing

for those likely to be granted probation and suggested that “the rule should

be changed to give th e trial court discretion to co ntinue the defendant on bon d if there is a reasonable probability

that the defendant

will be placed on probation.” 6 In 1989, a Maricopa Co unty Superior Court judge petitioned our supreme court to change the rule, expressing the same sentimen t . Petition to Amend Ariz. R. Crim. P. 7.2(b) (Ariz. Sup. C t. filed Oct. 11, 1989). In March 1990, the supreme court

amended Rule 7.2(b) , effective June 1, 19 90, changing the phrase

that precedes “suffer a sentence of imprisonm ent” by deleting

“has or may” and adding “will in all reasonable probability.” 163 Ariz. XLIV. ¶15 We conclude thatthe supreme court’s inte nt in changing the rule was to dif ferentiate between those found guilty who will probably be granted probation from those who probably will notand to give a trial court discretio n to release the former

class of convicted person s pe ndin g10

sen tencing in appropriate cases. The rule’s reference to imprisonment, not probation, can b e explained by the histor

y outline d above. It was forme rly written exclusively in term s of imprisonment, and the rule was chang e d economically by deletin g and adding a minimum of words. ¶16 We also find it significant that, at the time of the rule chan ge, the mandatory prison time for those convicted of ag gravated DUI

was expressly denoted a condition of probation. See Benally , 137 Ariz. at 254, 669 P.2d at 1031, discussing forme r § 28-692.02(A). At the t ime the current language of Rule 7.2(b)(1) became effective, persons convicted of aggravated DUI who probablywould be granted probation w ould have been eligible fo r presentence release , the mandatory

term of imprisonment to b e served as a

condition of probation notwithsta nding. We have n o reason to believe that, in rewordin g the mandatory prison term from a condition of probation to the “strange animal” it is tod ay, the 1990 legisl ature was reacting to the c hange in Rule 7.2(b). That change to the aggravated DUI statute was part of a comprehe

nsive revamping and renumbering of the DUI and DUI-related laws of which the recharacter

ization of the prison term was relatively insignif icant. 1990 Ariz. Sess. Laws, ch. 375, §§ 1-21. ¶17 We do not suggest that presentence release should necessarily be granted to persons found guilty of aggravated DUI for whom probation is likely. Rather, we merely ho ld that any suchdecision is properly left to the trial court, to whom the leg islature has given the discre tion to decide, based on the fa cts of the case and the ind ividual defendant , whether t o suspend the imposition of sentence an d grant probation. Accordingly, w e find that the respondent ju dge did not exceed her legal autho

rity but, rather, acted within her discretion in perm itting Henderson to11

remain released on bond pending se ntencing following the jury’s verdict that she wa s guilty of aggravated DUI. ¶18 Although we accept jurisdiction, we deny relief.

____________________________ ___________ JOHN PELANDER, Presiding J udge CONCURRING:

____________________________ ___________ PHILIP G. ESPINOS

A, Chief Judge

____________________________ ___________ PETER J. ECKERSTROM, Judge