SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-09-0257-PR 

 ) 

 Appellee, ) Court of Appeals 

 ) Division Two 

 v. ) No. 2 CA-CR 08-0024 

 ) 

 ) Cochise County 

DANIEL DIAZ, ) Superior Court 

 ) No. CR-200700013 

 ) 

 Appellant. ) O P I N I O N 

_________________________________ ) 

Appeal from the Superior Court in Cochise County 

The Honorable Charles A. Irwin, Judge 

AFFIRMED

________________________________________________________________ 

Opinion of the Court of Appeals, Division Two 

222 Ariz. 188, 213 P.3d 337 (2009) 

VACATED IN PART

________________________________________________________________ 

EDWARD G. RHEINHEIMER, COCHISE COUNTY ATTORNEY Bisbee 

 By David R. Pardee, Deputy County Attorney 

 José A. Ceja, Deputy County Attorney 

Attorneys for State of Arizona 

THE LAW OFFICES OF KELLY A. SMITH Yuma 

 By Kelly A. Smith 

Attorney for Daniel Diaz 

________________________________________________________________ 

B E R C H, Chief Justice 

¶1 The question in this case is whether a defendant 

convicted of possessing methamphetamine for sale who has two 
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non-methamphetamine-related historical prior felony convictions 

was properly sentenced under Arizona’s general repetitive 

offender statute rather than a statute applicable to certain 

methamphetamine-related offenses. We hold that the 

methamphetamine sentencing statute does not prohibit the trial 

court from enhancing the sentence of a defendant who has nonmethamphetamine-related historical prior convictions under the 

general repetitive offender statute. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶2 In 2007, Daniel Diaz was convicted of possessing 

methamphetamine for sale. He admitted that he was on felony 

probation when the offense occurred and had two historical prior 

felony convictions, neither of which involved methamphetamine. 

¶3 Diaz claimed that he should be sentenced under Arizona 

Revised Statutes (A.R.S.) § 13-709.03 (2010),1

 a special 

sentencing statute applicable to certain drug offenses including 

possession of methamphetamine for sale. The trial court instead 

sentenced Diaz under A.R.S. § 13-703(C) (2010), the general 

statute applicable to repetitive offenders, to an aggravated 

term of twenty-five years.

 

1

 We apply the substantive law that was in effect when Diaz 

committed the offense. See A.R.S. § 1-246 (2002); State v. 

Newton, 200 Ariz. 1, 2 ¶ 3, 21 P.3d 387, 388 (2001). The 

applicable sentencing statutes have been edited and renumbered 

since Diaz committed the offense, but have not changed in 

substance. We therefore cite the current statutes. 
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¶4 Diaz appealed. The court of appeals affirmed his 

conviction, but remanded for resentencing, finding that the 

trial court applied the wrong sentencing statute. State v. 

Diaz, 222 Ariz. 188, 192 ¶¶ 13-15, 213 P.3d 337, 341 (App. 

2009). Although characterizing the lesser penalty imposable 

under A.R.S. § 13-709.03 as “clearly at odds with the overall 

sentencing scheme, which typically punishes recidivism and 

singles out methamphetamine use for additional penalties,” id. 

at ¶ 14 (citations omitted), the court of appeals nonetheless 

found the special methamphetamine sentencing statutes 

controlling, id. at ¶ 15. 

¶5 We granted review because interpretation of our 

criminal sentencing statutes is a recurring issue of statewide 

importance. We have jurisdiction pursuant to Article 6, Section 

5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003). 

II. DISCUSSION 

¶6 Diaz was convicted of “knowingly . . . [p]ossess[ing] a 

dangerous drug for sale,” a class two felony. A.R.S. § 13-

3407(A)(2) (2010) (possession for sale); id. § (B)(2) (class two 

felony). Section 13-3407(E) provides that any person convicted 

of selling methamphetamine “shall be sentenced pursuant to § 13-

709.03, subsections A or B.” 

¶7 Section 13-709.03(A), the provision applicable to a 

first-time offender who possesses methamphetamine for sale, 
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doubles the five-year term generally applicable to possessionfor-sale offenses if the drug involved is not methamphetamine. 

It provides that one convicted of possessing methamphetamine for 

sale “shall be sentenced” to a presumptive term of ten calendar 

years, which may be mitigated or aggravated by up to five years. 

Compare A.R.S. § 13-702(D) (2010) (listing five-year term as the 

presumptive sentence for a first-time offender convicted of a 

class two felony), with A.R.S. § 13-709.03(A) (listing ten-year 

term as the presumptive sentence for possession of 

methamphetamine for sale). Section 13-709.03(B) provides an 

enhanced sentence for defendants convicted of possessing 

methamphetamine for sale who have “previously been convicted of 

[certain drug-related offenses specified in A.R.S. § 13-3407] 

involving methamphetamine” – that is, it increases the sentence 

for defendants convicted of possessing methamphetamine for sale 

if they also have certain methamphetamine-related priors.2

¶8 Diaz contends that because the State elected to charge 

him with a methamphetamine-related offense, it was required to 

 

2

 In addition to increasing the penalty for those who have 

prior methamphetamine-related convictions, § 13-709.03(B) also 

extends the time a prior methamphetamine-related offense may be 

used to enhance a sentence. Section 13-709.03(B) permits the 

use of a previous conviction for a violation of § 13-3407 

regardless of how long before the current offense the previous 

conviction occurred. Our repetitive offender sentencing scheme, 

in contrast, generally permits use of a prior class two felony 

conviction only if committed within the preceding ten years. 

A.R.S. § 13-105(22)(b) (2010). 
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sentence him under the sentencing scheme set forth in A.R.S. 

§ 13-3407(E) and § 13-709.03, and, as a result, the maximum 

sentence he could receive was an aggravated sentence of fifteen 

years under § 13-709.03(A). 

¶9 The State, on the other hand, maintains that the trial 

court properly sentenced Diaz under A.R.S. § 13-703(C) and (J), 

which govern sentencing for repetitive offenders who have two or 

more prior historical felony convictions. See A.R.S. § 13-

105(22) (defining historical prior felony conviction). Under 

§ 13-703(J), the presumptive class two felony sentence for a 

repetitive offender who has two or more prior felony convictions 

is 15.75 years, which may be aggravated up to 35 years. Section 

13-703(N) requires that “[t]he penalties prescribed by this 

section shall be substituted for the penalties otherwise 

authorized by law if an allegation of prior conviction is 

charged in the indictment or information and admitted or found 

by the court.” Diaz does not contest that the State properly 

alleged that he had prior historical felony convictions and, at 

sentencing, he admitted having two such convictions. 

¶10 Thus, we are faced with allegedly conflicting statutory 

sentencing provisions, both of which contain the directory 

language “shall.” We review this statutory interpretation issue 

de novo. State v. Gomez, 212 Ariz. 55, 56 ¶ 3, 127 P.3d 873, 

874 (2006). We look first at the language of the statutes to 
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determine their meaning, State v. Williams, 175 Ariz. 98, 100, 

854 P.2d 131, 133 (1993), and examine related statutes in the 

statutory scheme, which may shed light on the proper 

interpretation of the statutes in question; we also attempt to 

harmonize competing sentencing statutes if it is possible to do 

so. See, e.g., State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 

1300, 1302 (1996) (citing cases); State v. Deddens, 112 Ariz. 

425, 429, 542 P.2d 1124, 1128 (1975). 

¶11 Diaz does not dispute that he could be sentenced to an 

aggravated term of fifteen years under § 13-709.03(A) for the 

possession-for-sale conviction. He contends, however, that 

because the State charged him under § 13-3407, the court was 

required to sentence him only under § 13-709.03. See § 13-

3407(E) (providing that a person convicted of particular 

methamphetamine offenses “shall be sentenced pursuant to § 13-

709.03”). This statutory language, Diaz claims, precludes 

application of the repetitive offender provisions of § 13-703 to 

him regardless of his prior criminal history. He correctly 

observes that the repetitive offender provision in § 13-

709.03(B) does not apply to him because he has not been 

convicted of a previous drug offense “involving 

methamphetamine.” 

¶12 The State, on the other hand, maintains that the court 

may use Diaz’s prior non-methamphetamine-related convictions to 
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enhance his sentence under § 13-703 because no language in § 13-

709.03 expressly precludes such a result. Doing so, the State 

argues, furthers the legislative policy of punishing repeat 

offenders more severely than those who have committed no prior 

offenses. 

¶13 We agree with the State. Section 13-709.03(B) does not 

address prior convictions for non-methamphetamine-related 

offenses, and no other language in that statute precludes the 

application of the general repetitive offender sentencing 

provision. See State v. Laughter, 128 Ariz. 264, 269, 625 P.2d 

327, 332 (App. 1980) (finding that because Arizona’s dangerous 

offenses penalty statute was silent on whether its provisions 

superseded those in the repetitive offender sentencing statute, 

the trial court did not err in sentencing the defendant as a 

repetitive offender). 

¶14 We find instructive the analysis in Tarango, 185 Ariz. 

at 210-11, 914 P.2d at 1302-03. In addressing differing parole 

eligibility provisions provided by a narcotics sentencing 

statute and the general repetitive offender sentencing statute, 

we found that the general sentencing provisions applied 

notwithstanding the existence of a specific statute seeming to 

require the imposition of flat-time sentences for certain 

offenses. Id. We recognized the limited application of the 

specific statute and found that the broader language in the 
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general sentencing provision controlled. Id. at 212, 914 P.2d 

at 1304. 

¶15 The statute we construed in Tarango, the predecessor of 

§ 13-703(N), similarly provided that the “penalties prescribed 

by this section shall be substituted for the penalties otherwise 

authorized by law” if the defendant’s prior convictions are 

properly charged and admitted by the defendant or found by the 

trier of fact. Id. at 209, 914 P.2d at 1301 (quoting former 

A.R.S. § 13-604(K), now § 13-703(N)). We found this language 

“plain and unambiguous,” id. at 209, 914 P.2d at 1301, and held 

that, “[w]hen the state seeks the enhanced penalties for repeat 

offenders, former A.R.S. § 13-604 [now 13-703] provides an 

exclusive sentencing scheme,” id. at 209-10, 914 P.2d at 1301-

02. 

¶16 The same remains true today. We therefore hold that, 

absent an express exclusion in a separate provision of our 

statutory sentencing scheme, the State may pursue enhanced 

penalties against a repetitive offender under A.R.S. § 13-703. 

¶17 This result harmonizes provisions in our statutory 

scheme, comports with our case law, and supports the 

legislature’s determination that repeat offenders should suffer 

harsher penalties than first-time offenders. See State v. 

Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985) (finding 

that “[t]he aim of the legislature in enacting provisions for 
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enhanced or mandatory sentences for repeat offenders . . . is to 

treat more severely those who have prior felony convictions”). 

It leaves in place and applicable in a proper case § 13-

709.03(B), which will apply to those defendants who have 

methamphetamine-related prior convictions.

III. CONCLUSION 

¶18 For the reasons above, we vacate ¶¶ 7–14 of the court 

of appeals’ opinion and affirm the sentence imposed on Diaz by 

the trial court. 

 _____________________________________ 

 Rebecca White Berch, Chief Justice 

CONCURRING: 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

Michael D. Ryan, Justice 

_____________________________________ 

W. Scott Bales, Justice 

_____________________________________ 

Margaret H. Downie, Judge* 

*Justice A. John Pelander has recused himself from this case. 

Pursuant to Article 6, Section 3 of the Arizona Constitution, 

The Honorable Margaret H. Downie, Judge of the Arizona Court of 

Appeals, Division One, was designated to sit in this matter.