STATE v. HON. HARRIS/MAXWELL

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, ) ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE MYRA HARRIS, ) Commissioner of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of ) MARICOPA, ) ) Respondent Commissioner, ) ) LINTON AVERY MAXWELL, ) ) Real Party in Interest. ) __________________________________) No. 1 CA-SA 12-0290 DIVISION ONE FILED: 1/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT C Maricopa County Superior Court No. LC 2011-102557-001 West Mesa Justice Court No. TR2011-102557 D E C I S I O N O R D E R This special action came on regularly for conference on January 16, 2013 before Presiding Judge Samuel A. Thumma, Judge Michael J. Brown and Judge Diane M. Johnsen. In March 2012, Linton Avery Maxwell was convicted of extreme driving under the influence ( DUI ) in the West Mesa Justice Court for an Pursuant to Arizona offense Revised that occurred Statutes in ( A.R.S. ) January 2011. section 28- 1382(D) (2012), 1 he was therefore subject to a thirty-day jail sentence. effective Citing on memorandum subpart December requesting 31, (I) of 2011, suspension the statute, Maxwell of filed twenty-one which a became sentencing days of the required jail time because he had installed an interlock device in his car. Relying on Ariz. Rev. Stat. ( A.R.S. ) § 28-1382(I) (2012). A.R.S. § 1-246 (2012) and the absence of any retroactivity clause in § 28-1382(I), the justice court denied Maxwell s request that he be sentenced under the new statute and sentenced him pursuant to A.R.S. § 28-1382(D). Maxwell appealed to the superior court, challenging the justice court s refusal to apply § 28-1382(I) to his sentence. The superior court reversed, reasoning that the legislature, by specifically referencing the date of sentencing and not the date of the commission of the crime, intended for retroactive application of subpart (I). The State then requested special action relief in this court, seeking reversal of the superior court s order. Because the State lacks an adequate remedy by way of appeal and its petition presents a pure question of law, we accept jurisdiction. Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 270, ¶ 9, 159 P.3d 578, 580 (App. 2007). 1 We review de novo Absent material revision after the relevant date, we cite the current version of statutes. 2 issues involving interpretation, application, and retroactivity of statutes. State v. Williams, 220 Ariz. 331, 335, ¶ 11, 206 P.3d 780, 784 (App. 2008). As (2011) of the stated date that of a the person offense, A.R.S. convicted of § 28-1382(D)(1) DUI under § 28- 1382(A)(1) [s]hall be sentenced to serve not less than thirty consecutive days in jail[.] Subsequently, the legislature adopted subsection (I), which at the time of sentencing provided as follows: Notwithstanding subsection D, paragraph 1 of this section, at the time of sentencing if the person is convicted of a violation of subsection A, paragraph 1 of this section, the judge may suspend all but nine days of the sentence if the person equips any motor vehicle the person operates with a certified ignition interlock device for a period of If the person fails to twelve months[.] comply with [installing the interlock device], the court shall issue an order to show cause as to why the remaining jail sentence should not be served. A.R.S. § 28-1382(I) (emphasis added). As the superior court properly noted, Arizona recognizes the longstanding unless expressly However, statute even may be principle declared absent an applied that therein. express ¶ 8, 7 P.3d 94, 96 A.R.S. § if it is is retroactive 1-244 (2012). declaration, a procedural in In re Shane B., 198 Ariz. 85, (2000). 3 statute retroactivity retroactively nature, rather than substantive. 87, [n]o Additionally, overall legislative intent can be used to determine retroactivity. Carlos Apache Tribe v. Superior Court ex rel. San County of Maricopa, 193 Ariz. 195, 205, ¶ 14, 972 P.2d 179, 189 (1999). Neither of these exceptions applies in this case, however. First, although Maxwell asserted in the superior court that § 28-1382(I) is procedural, he has made no such contention here. Moreover, the statute is a substantive affects the length of sentence. amendment because it See In re Shane B., 198 Ariz. at 88, ¶ 9, 7 P.3d at 97 ( In the criminal context, substantive law either defines a crime or involves the length or type of punishment. (internal quotations and citations omitted)). Second, we disagree with the superior court s determination that the phrase at the time of sentencing supports clear legislative intent that § 28-1382(I) should apply retroactively. In our view, at the time of sentencing merely permits the sentencing judge, twenty-one days interlock device legislature explicitly. 2-5, 245 during of wants the jail sentencing time and uses make a the for it to if hearing, twelve measure defendant to installs months. retroactive, suspend When it does an the so See, e.g., State v. Montes, 226 Ariz. 194, 195, ¶¶ P.3d 879, 880 (2011) (discussing the legislature s attempt to make a statute retroactive by including the phrase applies retroactively. ). 4 Nor does any other retroactive application. specific date on which December 31, 2011. language in § 28-1382(I) support Instead, the legislature selected a the statute was to become effective, See S.B. 1200, Ariz. Sess. Laws, ch. 341, § 23 (1st Reg. Sess. 2011). We must presume the legislature, in doing so, determined that § 28-1382(I) would apply only to DUI offenses occurring after that date. See Sanderson Lincoln Mercury, Inc. v. Ford Motor Co., 205 Ariz. 202, 205, ¶ 11, 68 P.3d 428, 431 (App. 2003) ( [W]e presume that the legislature has said what it means. ). legislation to apply Had the legislature intended for the retroactively, it expressly as it has in other contexts. could have done so See Garcia v. Browning, 214 Ariz. 250, 252, ¶ 8, 151 P.3d 533, 535 (2007) (describing several bills wherein the legislature expressly stated the statutes apply retroactively), superseded by statute, S.B. 1449, 2009 Ariz. Sess. Laws, ch. 190, §§ 1-2 (1st Reg. Sess.), as recognized in Montes, 226 Ariz. at 196, ¶ 11, 245 P.3d at 881; State v. Rios, 225 Ariz. 292, 296, ¶¶ 9-11, 237 P.3d 1052, 1056 (App. 2010) (noting that in responding to Garcia, the legislature changed the statute by incorporating the following express language: retroactively[.] ). erred in finding Laws We the 2006, therefore conclude legislature application. 5 chapter the provided 199 applies superior for court retroactive Finally, A.R.S. § 1-246 (2012) expressly provides that when a penalty is changed, the new penalty shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed. This statute is a clear and unequivocal expression of legislative intent that an offender s punishment is to be determined when he commits his offense[.] Baker v. Superior Court, 190 Ariz. 336, 339, 947 P.2d 910, 913 (App. 1997). As such, an individual convicted of a crime in Arizona generally cannot benefit from a subsequent change to sentencing provisions. See State v. Stine, 184 Ariz. 1, 3, 906 P.2d 58, 60 (App. 1995) (explaining that a person convicted of a crime in Arizona must be punished under the law in force when the offense was committed and is not exempted from punishment by a subsequent amendment to the applicable statutory provision. (internal citation and quotation omitted)); see also State v. Newton, 200 Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001) ( A basic principle of criminal law requires that an offender be sentenced under the laws in effect at the time he committed the offense for which he is being sentenced. ). We therefore conclude the superior erred when it reversed the justice court s order denying retroactive application of § 28-1382(I). 6 Maxwell s request Accordingly, for IT IS ORDERED accepting jurisdiction of the State s special action petition. IT IS FURTHER ORDERED reversing the superior court s order and remanding for further proceedings consistent with this decision. /s/ _________________________________ MICHAEL J. BROWN, Judge 7

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