SUPREME COURT OF ARIZONA

En Banc

GILBERT NAVARRO GALAZ, ) Arizona Supreme Court

) No. CV-03-0180-PR

Petitioner-Appellant, )

) Court of Appeals

) Division One

v. ) No. 1 CA-CV 02-0674

)

) Maricopa County

TERRY L. STEWART, ) Superior Court

) No. CV 2002-009536

Respondent-Appellee. )

__________________________________) OPINION

Appeal from the Superior Court in Maricopa County

The Honorable Edward O. Burke, Judge

AFFIRMED

Court of Appeals, Division One

Memorandum Decision (filed April 24, 2003)

VACATED

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

by Susanna C. Pineda, Assistant Attorney General

Attorneys for Respondent-Appellee

SUSAN M. SHERWIN, MARICOPA COUNTY OFFICE

OF THE LEGAL ADVOCATE Phoenix

by Thomas J. Dennis, Deputy Legal Advocate

Attorneys for Petitioner-Appellant

Robert Bartels Tempe

Attorney for Amici Curiae

Arizona Justice Project and Fred McNair

BERCH, Justice

¶1 The Arizona Department of Corrections asks this court

to determine whether the commutation of Petitioner Galaz’s two
2

concurrent sentences from “twenty-five years to life” in prison

to 19.75 years also converted the manner in which the sentences

were to be served from “flat time” to “soft time.” We hold that

it did not. We have jurisdiction pursuant to Arizona Revised

Statutes (“A.R.S.”) section 12-120.24 (2003) and Article 6,

Section 5(3) of the Arizona Constitution.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1987, Gilbert Navarro Galaz was sentenced to serve

two concurrent life sentences for two aggravated assaults he

committed while on probation for prior felony convictions. The

statute under which he was sentenced required that Galaz serve

at least twenty-five years before he would be eligible for

parole or release on any other basis. See A.R.S. § 13-

604.02(A), (B) (Supp. 1985); see also A.R.S. § 41-1604.09(C)

(2004). The statute therefore required that at least twentyfive years of the sentence be served as “flat time.” 1

¶3 In 1993, the legislature amended the sentencing

statute. 1993 Ariz. Sess. Laws, ch. 255, § 9 (amending A.R.S. §

13-604.02 (Supp. 1994) (effective Jan. 1, 1994)). The amended

statute required that any sentence imposed be served as flat

1 A “flat time” sentence requires that a defendant serve each

day of the sentence imposed and renders the defendant ineligible

for early release credits. See Fox v. Ariz. Bd. of Pardons &

Paroles, 149 Ariz. 172, 175-76, 717 P.2d 476, 479-80 (App. 1986)

(discussing a similar sentencing provision in A.R.S. § 13-

604.01).
3

time, but reduced the mandatory sentence for a felony committed

while the perpetrator was on probation or release from

confinement from life to the presumptive sentence authorized for

the felony. As a result of the amendment, those who committed

crimes while on release status after January 1, 1994, generally

received lesser sentences than those whose crimes occurred

before 1994.

¶4 To mitigate the disparity in sentences between those

who committed crimes before and after 1994, the legislature

enacted the Disproportionality Review Act (the “DRA”), which

authorized the Arizona Board of Executive Clemency to recommend

to the governor commutations of sentences for certain pre-1994

offenses. 1994 Ariz. Sess. Laws, ch. 365, § 1(F)(1) (adding the

DRA and providing for its automatic repeal). The Board’s

recommendations became effective upon the governor’s approval

or, if the governor failed to act, ninety days after the

governor received the recommendation. See id. § 1(G). In this

case, the Board recommended that each of Galaz’s sentences be

commuted from life, with the possibility of release after

twenty-five years, to 19.75 years. But the governor, through an

aide, denied the recommendation.

¶5 Galaz’s commutation nevertheless became effective by

default, under this court’s opinion in McDonald v. Thomas, 202

Ariz. 35, 44-46, ¶¶ 29-35, 40 P.3d 819, 828-30 (2002), which
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held that a rejection not bearing the authorized signature of

the governor was ineffective to deny commutation.2 Because the

denial of Galaz’s commutation had been signed by the governor’s

aide, it was invalid. See id. at 46, ¶ 35, 40 P.3d at 830

(construing 1994 Ariz. Sess. Laws, ch. 365, § 1(G)).

¶6 Galaz now argues that, in addition to reducing his

sentence by a minimum of 5.25 years on each count, the

commutation should be interpreted as having changed his sentence

from flat time to soft time, rendering him eligible for parole

before the end of the 19.75-year commuted term. The trial court

held that the commutation did not change the nature of the

sentences. The court of appeals reversed, concluding that it

lacked the authority to make such a determination, and

instructed Galaz to file a petition with the Board of Executive

Clemency. We granted the State’s petition for review to

determine whether the commutation changed the sentences from

flat time to soft time.

DISCUSSION

A. Standard of Review.

¶7 Whether the commutation converted Galaz’s “flat time”

sentences to “soft time” involves a question of statutory

2 In McDonald, this court held that the grant or denial of

commutation, as an official act of the governor, must bear the

authorized signature of the governor and be attested by the

secretary of state. 202 Ariz. at 44-46, ¶¶ 29-35, 40 P.3d at

828-30.
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interpretation, which we review de novo. See State v. Sepahi,

___ Ariz. ___, ¶ 2, 78 P.3d 732 (2003).

B. Flat Time or Soft Time?

¶8 The governor has the power to grant pardons or commute

sentences, but only “upon such conditions and with such

restrictions and limitations as may be provided by law.” Ariz.

Const. art. 5, § 5; see also State v. Marquez, 127 Ariz. 98,

103, 618 P.2d 592, 597 (1980). The primary statutory limitation

on this power is that the governor may act only upon

recommendations from the Board of Executive Clemency. See

A.R.S. § 31-402(A) (2002). The recommendation in this case

reflected the Board’s vote to reduce Galaz’s sentences to 19.75

years each, nothing more. The Board’s recommendation is silent

regarding any intent to make Galaz eligible for soft time.

¶9 The statute under which Galaz was sentenced, A.R.S. §

13-604.02(A), sheds some light on the legislature’s intent with

respect to the sentences of those who commit serious crimes

while on probation. Before 1994, the statute subjected such

offenders to life sentences and made them eligible for parole

only after serving twenty-five years of flat time. When the

legislature amended the statute in 1993, it left intact the

requirement that any sentence imposed be served as flat time.

Compare A.R.S. § 13-604.02(A) (1993) with A.R.S. § 13-604.02(A)

(1994).
6

¶10 The following year, the legislature enacted the DRA to

help equalize sentences imposed under A.R.S. § 13-604.02 for

similar crimes committed before and after 1994. See 1994 Ariz.

Sess. Laws, ch. 365, § 1(F)(1); supra ¶ 4. Yet nothing in the

DRA suggests any legislative intent to allow sentence

commutations greater than necessary to mitigate the disparity

between pre- and post-1994 sentences. Indeed, any further

reductions would frustrate the goal of the DRA by re-engendering

disparity.

¶11 For that reason, we find unpersuasive Galaz’s argument

that the Board intended to modify his sentence to “soft time.”

He acknowledges that those who committed offenses after 1994

remain subject to flat time, but argues that because he

committed his crimes before 1994, he is entitled to serve his

commuted sentences as soft time, perhaps entitling him to an

earlier release than his counterparts who were sentenced under

the “softened” version of § 13-604.02(A). Such an ironic result

contravenes the purpose of the DRA by re-instilling disparities

between commuted pre-1994 sentences and non-commuted post-1994

sentences.

¶12 The DRA itself provides no evidence that the

legislature intended such a result. To the contrary, other

sentencing provisions reveal the legislature’s intent to require

sentences for certain acts to be served in full. For example,
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subsections (C) and (I) of § 41-1604.09 provide that for

sentences imposed before January 1, 1994, “a person sentenced

pursuant to a statute which requires that a person serve a

mandatory minimum term...shall not be released until the

mandatory minimum portion of the term is served.” Galaz’s

sentence is such a sentence.

¶13 Nothing in the statutes or the commutation changes the

nature of Galaz’s offenses or the fact that he committed the

aggravated assaults while on probation. Even as amended, the

sentencing statute still requires flat time for crimes committed

while on probation or release from prison. Thus, in keeping

with the legislature’s goal of ensuring relatively equivalent

sentences for relatively equivalent crimes and offenders, we

conclude that the commutation in this case was not intended to

transform Galaz’s sentence from flat time to soft time.3

¶14 Although Galaz and amici curiae urge us to do so, we

need not decide today whether the DRA authorized the Board to

recommend that Galaz’s sentence be served as soft time. The

fact of the matter is that the Board did not make any such

recommendation and Galaz can point to no statute that would

3 The court of appeals remanded the case to the Board for

clarification of its intent. Such a resolution is unworkable,

however, because the composition of the Board has long since

changed, disproportionality review no longer exists, and two

governors have assumed office since the one who rendered the

decision in this matter.
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render him eligible for soft time in the absence of such a

recommendation. The recommendation sent to the governor shows

only that the Board voted to reduce Galaz’s sentences from

twenty-five to 19.75 years each. Because A.R.S. § 31-402(A)

limits the governor’s power to commute to those cases

recommended by the Board of Executive Clemency, the governor

acts — or in cases such as this, fails to act — only upon the

recommendations before him or her. In this case, the Board’s

recommendation gave no hint that any reduction in sentence was

intended other than as to the term of years.4

CONCLUSION

¶15 For the foregoing reasons, we hold that the

commutation of Galaz’s sentences from twenty-five to 19.75 years

did not change his sentences from flat time to soft time. We

therefore vacate the decision of the court of appeals and affirm

the decision of the trial court.

_______________________________________

Rebecca White Berch, Justice

CONCURRING:

______________________________________

Charles E. Jones, Chief Justice

4 The governor, through an aide, attempted to deny even the

reduction in the term of years; Galaz’s counsel concedes that

the governor surely would not have approved a reduction in the

term of years and the conversion of the sentence to soft time.
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______________________________________

Ruth V. McGregor, Vice Chief Justice

______________________________________

Michael D. Ryan, Justice

______________________________________

Andrew D. Hurwitz, Justice