SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-08-0051-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 05-0770 

MARCEL BARRY THOMAS, ) 

 ) Mohave County 

 Appellant. ) Superior Court 

 ) No. CR2004-0704 

 )

 )

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Mohave County 

The Honorable Steven F. Conn, Criminal Presiding Judge

AFFIRMED

________________________________________________________________

Opinion of the Court of Appeals, Division One

217 Ariz. 413, 175 P.3d 71 (App. 2008) 

VACATED

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent Catanni, Chief Counsel, 

 Criminal Appeals Section

 Diane L. Hunt, Assistant Attorney General Tucson

Attorneys for State of Arizona

DANA P. HLAVAC, MOHAVE COUNTY PUBLIC DEFENDER Kingman

 By Jill L. Evans

Attorney for Marcel Barry Thomas

________________________________________________________________

M c G R E G O R, Chief Justice

¶1 We granted review to determine whether a felony 
2 

conviction resulting from an offense committed after the 

defendant committed the sentencing offense qualifies as a 

historical prior felony conviction under Arizona Revised Statutes 

(A.R.S.) section 13-604.W.2(a) (Supp. 2007). We hold that, for 

those felonies enumerated in § 13-604.W.2(a), conviction for the 

enhancing offense must occur before conviction for the sentencing 

offense, but the statute imposes no requirement as to the timing 

of the commission of the offenses.

I.

¶2 In June 2005, Marcel Barry Thomas was convicted on four 

drug-related charges arising out of acts committed in December 

2002. In June 2004, Thomas was convicted of aggravated assault, 

unlawful imprisonment, and hindering prosecution for acts 

committed in January 2003. The assault-related convictions thus 

preceded the drug-related convictions, although the assaultrelated acts occurred after the drug-related acts. 

¶3 When the trial court sentenced Thomas on the drugrelated convictions, it treated Thomas’s aggravated assault 

conviction as a “historical prior felony conviction” under § 13-

604.W.2(a)(i), making Thomas eligible for an enhanced sentence. 

Rejecting Thomas’s argument that the aggravated assault 

conviction is not a historical prior felony conviction because he 

committed the assault after he committed the drug-related 

offenses, the trial court sentenced him to enhanced presumptive 
3 

concurrent sentences on all four drug-related offenses.1

¶4 A divided court of appeals vacated Thomas’s enhanced 

sentences. State v. Thomas, 217 Ariz. 413, 415 ¶ 5, 175 P.3d 71, 

73 (App. 2008). The majority held that Thomas’s prior felony 

conviction for aggravated assault could not be used to enhance 

his sentences because he committed that offense after he 

committed the drug-related offenses. Id. In dissent, Judge 

Barker argued that, under the plain language of § 13-604.W.2(a), 

whether a conviction qualifies as a historical prior felony 

conviction depends solely upon the date of the conviction “if the 

felony conviction falls within one of the specified categories 

under [§ 13-604.W.2(a)].” Id. at 421 ¶ 34, 175 P.3d at 79 

(Barker, J., dissenting). 

¶5 We granted review to decide this recurring issue of 

statewide importance. See Ariz. R. Crim. P. 31.19(c)(3). We 

exercise jurisdiction pursuant to Article 6, Section 5.3 of the 

Arizona Constitution and A.R.S. § 13-4031 (2001). 

II.

¶6 When resolving questions of statutory interpretation, 

we first consider the language of the statute, which provides 

“the best and most reliable index of a statute’s meaning.” 

                                                           

1

 Thomas received 9.25 years for possession of dangerous 

drugs for sale, 4.5 years for possession of narcotics, 1.75 years 

for possession of drug paraphernalia, and 1.75 years for 

possession of marijuana. 
4 

Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 

(1991); see also State v. Thompson, 200 Ariz. 439, 440 ¶ 6, 27 

P.3d 796, 797 (2001). Our primary “goal is ‘to fulfill the 

intent of the legislature that wrote [the statute].’” Zamora v. 

Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) 

(quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 

(1993)). “When the plain text of a statute is clear and 

unambiguous there is no need to resort to other methods of 

statutory interpretation to determine the legislature’s intent 

because its intent is readily discernable from the face of the 

statute.” State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 

1241, 1243 (2003).

¶7 Section 13-604.W.2 defines four categories of 

“historical prior felony convictions.”2

 The first category, 

                                                           

2

 Arizona Revised Statutes § 13-604.W.2 provides: 

“Historical prior felony conviction” means: 

 

(a) Any prior felony conviction for which the offense 

of conviction: 

(i) Mandated a term of imprisonment except for a 

violation of chapter 34 of this title involving a drug 

below the threshold amount; or 

(ii) Involved the intentional or knowing infliction of 

serious physical injury; or 

(iii) Involved the use or exhibition of a deadly 

weapon or dangerous instrument; or 
5 

defined in subdivision (a), “lists six types of offenses that can 

be alleged as historical prior felony convictions no matter when 

                                                                                                                                                                                               

(iv) Involved the illegal control of a criminal 

enterprise; or 

(v) Involved aggravated driving under the influence of 

intoxicating liquor or drugs, driving while under the 

influence of intoxicating liquor or drugs with a 

suspended, canceled, revoked or refused driver license 

or driving under the influence of intoxicating liquor 

or drugs with two or more driving under the influence 

of intoxicating liquor or drug convictions within a 

period of eighty-four months; or 

(vi) Involved any dangerous crime against children as 

defined in § 13-604.01. 

(b) Any class 2 or 3 felony, except the offenses 

listed in subdivision (a) of this paragraph, that was 

committed within the ten years immediately preceding 

the date of the present offense. Any time spent on 

absconder status while on probation or incarcerated is 

excluded in calculating if the offense was committed 

within the preceding ten years. If a court determines 

a person was not on absconder status while on 

probation that time is not excluded. 

(c) Any class 4, 5 or 6 felony, except the offenses 

listed in subdivision (a) of this paragraph, that was 

committed within the five years immediately preceding 

the date of the present offense. Any time spent on 

absconder status while on probation or incarcerated is 

excluded in calculating if the offense was committed 

within the preceding five years. If a court determines 

a person was not on absconder status while on 

probation that time is not excluded. 

(d) Any felony conviction that is a third or more 

prior felony conviction. 

A.R.S. § 13-604.W.2 (Supp. 2007). Effective January 1, 2009, 

this language appears in A.R.S. § 13-105.22. 2008 Ariz. Sess. 

Laws, ch. 301, §§ 10, 15 (2nd Reg. Sess.). 
6 

they occurred.” Christian, 205 Ariz. at 66-67 ¶ 7, 66 P.3d at 

1243-44; § 13-604.W.2(a). The second category, defined in 

subdivision (b), includes “[a]ny class 2 or 3 felony” not listed 

in subdivision (a) “that was committed within the ten years 

immediately preceding the date of the present offense.” § 13-

604.W.2(b). The third category, defined in subdivision (c), 

includes “[a]ny class 4, 5, or 6 felony” not listed in 

subdivision (a) “that was committed within the five years 

immediately preceding the date of the present offense.” § 13-

604.W.2(c). The final category, defined in subdivision (d), 

includes “[a]ny felony conviction that is a third or more prior 

felony conviction.” § 13-604.W.2(d). 

¶8 One of the six types of offenses that can be alleged as 

historical prior felony convictions under subdivision (a) is 

“[a]ny prior felony conviction for which” a term of imprisonment 

is mandated. § 13-604.W.2(a)(i). Thomas concedes that his 

conviction for aggravated assault mandated a term of 

imprisonment; therefore, as the court of appeals recognized, if 

Thomas’s aggravated assault conviction is “a prior felony 

conviction,” then it is a “historical prior felony conviction” 

for purposes of the statute. See Thomas, 217 Ariz. at 416 ¶ 10, 

175 P.3d at 74. 

¶9 Thomas’s conviction for aggravated assault occurred 

nearly one year prior to his conviction for the drug-related 
7 

offenses. Therefore, when Thomas was convicted for his drug 

offenses, he had a prior conviction for an offense that mandated 

imprisonment. The statutory language requires no more to bring 

Thomas’s aggravated assault conviction within the terms of 

subdivision (a). 

¶10 The court of appeals, however, interpreted the statute 

as imposing the additional requirement that the enhancing offense 

be committed before the offense set for sentencing was committed. 

We reject that interpretation of the statute because the 

statutory language includes “no requirement as to the timing of 

the commission of the enhancing offense with respect to the 

commission of the [sentencing] offense.” Id. at 422 ¶ 37, 175 

P.3d at 80 (Barker, J., dissenting). The absence of such a 

timing requirement means that “[a] ‘prior felony conviction’ may 

in fact be a [conviction for a] felony offense that was committed 

subsequently.” Id.

¶11 The language chosen by the legislature for subdivisions 

(b) and (c), which differs significantly from that in subdivision 

(a), bolsters our conclusion. See § 13-604.W.2(b)-(c). 

Subdivisions (b) and (c) apply only if the enhancing felony was 

committed within the five- or ten-year period “immediately 

preceding” commission of the offense set for sentencing. Had the 

legislature intended to apply a comparable time-of-commission 

limitation to felony convictions that fall within subdivision 
8 

(a), it surely would have used the same clear language that it 

included in subdivisions (b) and (c).3

 

III. 

¶12 Because the language of § 13-604.W.2(a) is clear, we 

“‘apply it without resorting to other methods of statutory 

interpretation,’ . . . unless application of the plain meaning 

would lead to impossible or absurd results.” Bilke v. State, 206 

Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003) (quoting Hayes v. 

Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)). 

Reading subdivision (a) as imposing a timing-of-conviction 

requirement and no timing-of-commission requirement, however, 

does not “lead to impossible or absurd results.” 

¶13 In § 13-604, the legislature 

differentiate[d] the treatment of repeat offenders 

based on four factors: whether the prior convictions 

were serious in nature, whether the prior crimes for 

less serious offenses were committed relatively 

recently with respect to the present offense, whether 

the prior conviction was a third [or more] felony 

conviction, or whether the crimes committed on 

different occasions were consolidated for trial.4

                                                           

3

 Consistent with this interpretation of subdivisions (b) and 

(c), the trial court correctly held that Thomas’s convictions 

for unlawful imprisonment and hindering prosecution do not 

qualify as historical prior felony convictions because the 

offenses do not fall into one of the six categories under 

subdivision (a) and the commission of the offenses did not occur 

during the specified time period “immediately preceding” the 

date of the drug-related offenses. 

4

 The fourth factor, concerning offenses consolidated for 

trial, now appears in § 13-702.02, which replaced a previous 
9 

Christian, 205 Ariz. at 69 n.11 ¶ 15, 66 P.3d at 1246 n.11. 

Under this scheme, as the seriousness of the offense underlying 

the prior felony conviction increases, the restrictions on the 

use of that conviction to enhance the sentence for a later 

conviction decrease.5

 The legislative decision to allow a prior 

felony conviction for the more serious offenses identified in 

subdivision (a) to enhance the sentence for a later offense, 

regardless of when the defendant committed the enhancing 

offense, does not lead to an impossible or absurd result. 

IV. 

¶14 Although we have never directly addressed the precise 

issue presented today, our holding is consistent with previous 

decisions interpreting § 13-604.W.2 and its predecessor 

statutes.6

 

¶15 In State v. Thompson, we discussed the relationship 

                                                                                                                                                                                               

subdivision of § 13-604. Christian, 205 Ariz. at 69 n.11 ¶ 15, 

66 P.3d at 1246. Section 13-702.02 treats this situation less 

severely than was true under the previous version of § 13-604. 

Id. 

5

 The types of offenses the legislature considered to be most 

serious include those listed in subdivision (a). See supra note 

2. 

 

6

 In 2001, when we first considered language substantially 

similar to the present form, the relevant language appeared in § 

13-604.V.1. See A.R.S. § 13-604.V.1 (2001). In 2003, the 

legislature redesignated subdivision V.1 as V.2 and, in 2005, 

the legislature redesignated subsection V as subsection W. See 

2003 Ariz. Sess. Laws, ch. 11, § 1 (1st Reg. Sess.); 2005 Ariz. 

Sess. Laws, ch. 188, § 1 (1st Reg. Sess.). 
10 

between time of offense and time of conviction for offenses that 

fall under subdivision (c). 200 Ariz. at 440-41 ¶ 6, 27 P.3d at 

797-98. There, we specifically considered whether conviction for 

an enhancing offense must precede commission of the sentencing 

offense if the enhancing offense is to be considered a prior 

felony conviction.7 Id. at 440-41 ¶¶ 5-6, 27 P.3d at 797-98. We 

held that subdivision (c), which includes timing-of-commission 

language, requires that commission of “the prior offense must 

precede the present offense.” Id. at 441 ¶ 6, 27 P.3d at 798. 

Although we did not directly address subdivision (a), we observed 

in dicta that the term “prior felony conviction” means that “the 

conviction on the prior offense must precede the conviction on 

the present offense” and that the definitions of “historical 

prior felony conviction” in subdivisions (a) and (d) “presuppose 

a conviction on the prior offense.” Id. 

¶16 In State v. Phillips, we more directly addressed the 

issue of whether subdivision (a) requires that a conviction for 

the enhancing offense must precede commission of the sentencing 

                                                           

7 Thompson committed his second felony offense after he 

committed the first two related felonies, but before he was 

convicted of those offenses. Thompson, 200 Ariz. at 440 ¶ 2, 27 

P.3d at 797. He pled guilty to the first felonies, but because 

he absconded, he was not sentenced for them. Id. Eventually he 

was taken into custody, found guilty of the second felony 

offense, and sentenced in a consolidated hearing on all three 

offenses. Id. The trial court enhanced Thompson’s sentence 

pursuant to § 13-604.V.1(c), the predecessor to § 13-604.W.2(c). 

Id. at 440 ¶ 3, 27 P.3d at 797.
11 

offense. 202 Ariz. 427, 441 ¶¶ 77-78, 46 P.3d 1048, 1062 

(2002).8

 Phillips and an accomplice committed a series of 

robberies on April 12, 24, and 28. Id. at 441 ¶ 77, 46 P.3d at 

1062. Acting alone, Phillips committed an additional robbery on 

April 26. Id. The trial court used Phillips’ conviction of the 

April 26 robbery, which was entered first, as a historical prior 

felony conviction to enhance the April 12, 24, and 28 robbery 

sentences. Id. Phillips argued that the April 26 robbery could 

not be considered a prior felony conviction because he had not 

been convicted of that robbery when he committed the other 

robberies. Id. We agreed with the trial court that the timingof-conviction requirement in § 13-604.W.2(a) allowed use of the 

April 26 conviction as a historical prior felony “for purposes of 

enhancing the . . . sentences stemming from the April 12, 24, and 

28 robberies.” Id. at 441 ¶ 78, 46 P.3d at 1062. Today’s 

holding comports with these previous decisions.

V. 

¶17 Because Thomas was convicted of aggravated assault 

before he was convicted of the drug-related offenses, the 

aggravated assault conviction qualifies as a historical prior 

felony conviction. Accordingly, we vacate the opinion of the 

                                                           

8 Although we did not specifically cite § 13-604.W.2(a) as 

the relevant sentencing statute, the discussion of the nature of 

the offenses and the timing of their commission makes clear that 

this statute applied.
12 

court of appeals and affirm the sentences imposed by the trial 

court.

 _______________________________________

 Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice