Khristina Lyn Shifflette v. Hon. Marner ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
KHRISTINA LYN SHIFFLETTE,
Petitioner,
v.
HON. JAMES E. MARNER, JUDGE OF THE SUPERIOR COURT
OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
THE STATE OF ARIZONA,
Real Party in Interest.
No. 2 CA-SA 2023-0009
Filed June 27, 2023
Special Action Proceeding
Pima County Cause No. CR20212109001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Megan Page, Pima County Public Defender
By Audrey Baumgartner, Assistant Public Defender, Tucson
Counsel for Petitioner
Laura Conover, Pima County Attorney
By Maile Belongie, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
SHIFFLETTE v. HON. MARNER
Opinion of the Court
OPINION
Judge Gard authored the opinion of the Court, in which Presiding Judge
Eppich and Chief Judge Vásquez concurred.
G A R D, Judge:
¶1 In this special action, petitioner Khristina Shifflette challenges
the respondent judge’s ruling denying her request to receive credit under
A.R.S. § 13-712(B) for time she spent in custody before sentencing. Because
we conclude the respondent erred, we accept jurisdiction, grant relief, and
remand the matter for resentencing.
Factual and Procedural Background
¶2 Tucson Police arrested Shifflette in February 2021, after she
collided with a parked vehicle while driving and officers noticed signs of
impairment. She was in custody for ten days before being released. Several
months later, a grand jury indicted Shifflette for two counts of aggravated
driving under the influence (DUI), class four felonies, and one count of
criminal damage, a class five felony. The state also alleged that Shifflette
had two prior misdemeanor DUI convictions. Shifflette remained out of
custody pending trial. Ultimately, Shifflette pled guilty to endangerment,
a class six undesignated offense, and DUI, a class one misdemeanor. She
also admitted having one prior misdemeanor DUI conviction within the
previous eighty-four months.
¶3 Before sentencing, Shifflette filed a memorandum asking the
respondent judge to credit her sentences with the ten days she had spent in
custody after her arrest. At sentencing, the respondent expressly found
Shifflette eligible for probation, suspended the imposition of sentence on
both counts, and placed Shifflette on probation. As to the DUI count, the
respondent stated:
THE COURT FURTHER FINDS that the
term of probation should include incarceration
in the Pima County Jail.
IT IS ORDERED suspending imposition
of sentence and placing the Defendant on
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
probation for a period of FIVE (5) YEARS,
commencing on [the date of sentencing] . . . .
IT IS ORDERED as a condition of
probation the Defendant be incarcerated in the
Pima County Jail for a period of NINETY (90)
DAYS . . . . The Defendant shall be given credit
for ZERO (0) DAYS time served. The Court
suspends SIXTY (60) DAYS of the term
imposed.
The respondent, however, took under advisement “the appropriate amount
of time credit, if any.”
¶4 In a subsequent order, the respondent judge addressed
Shifflette’s request for presentence incarceration credit on the DUI count.
The respondent acknowledged that § 13-712(B), which provides that “[a]ll
time actually spent in custody pursuant to an offense until the prisoner is
sentenced to imprisonment for such offense shall be credited against the
term of imprisonment,” applies to criminal offenses, including DUI,
defined outside Title 13, unless the context requires otherwise. See A.R.S.
§ 13-102(D). However, the respondent concluded that A.R.S. § 28-1381(K)(1),
the DUI statute under which Shifflette had been sentenced, “expressly
provides an exception to the application of time credit” and that the
statutory “language unequivocally provides that the jail term days must be
served consecutively” to one another. The respondent accordingly denied
Shifflette’s request for presentence incarceration credit, as well as her
subsequent motion to reconsider. This special action followed.
Jurisdiction
¶5 “‘Special action jurisdiction is appropriate when there is no
plain, speedy and adequate remedy by way of appeal’ or ‘in cases involving
a matter of first impression, statewide significance, or pure questions of
law.’” Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, ¶ 9 (App. 2007)
(quoting Roman Cath. Diocese v. Superior Court, 204 Ariz. 225, ¶ 2 (App.
2003)); see also Ariz. R. P. Spec. Act. 1(a). “[Q]uestions of law . . . are
reviewed de novo and are particularly appropriate for review by special
action.” Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, ¶ 7 (App. 2012). The
question presented here is a purely legal one and carries statewide
significance. We therefore accept jurisdiction.
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
Discussion
¶6 Shifflette contends the respondent judge erred in concluding
that “§ 28-1381(K)(1) expressly provides an exception to” the requirements
of § 13-712(B). We ordered supplemental briefing on the threshold question
whether the respondent had erred under § 28-1381(K)(1) and (L) by
imposing Shifflette’s required jail term as a probation condition rather than
a misdemeanor sentence. We review questions of statutory interpretation
de novo. Nowell v. Rees, 219 Ariz. 399, ¶ 11 (App. 2008).
¶7 Our task in interpreting statutes is to give effect to the
legislature’s intent, and “the statute’s language is the best indicator of that
intent.” Rasmussen v. Munger, 227 Ariz. 496, ¶ 4 (App. 2011). Thus, “[w]hen
the statutory language is clear and has only one reasonable construction,
we apply it according to its plain meaning.” State v. Francis, 243 Ariz. 434,
¶ 6 (2018). “As this case involves the intersection of multiple statutes, we
construe them together, seeking to give meaning to all provisions.” Id.(citations omitted).
¶8 Shifflette was sentenced under § 28-1381(K), which applies to
defendants convicted of their second DUI offense within eighty-four
months. The statute directs that, upon conviction, the defendant “[s]hall be
sentenced to serve not less than ninety days in jail, thirty days of which shall
be served consecutively, and is not eligible for probation or suspension of
execution of sentence unless the entire sentence has been served.”
§ 28-1381(K)(1). Notwithstanding this requirement, the statute separately
directs that a “judge may suspend all but thirty days of the sentence if the
person completes a court ordered alcohol or other drug screening,
education or treatment program.” § 28-1381(L). In addition, if the
defendant “fails to complete” that program, “and has not been placed on
probation,” the court may require the defendant to serve the remainder of
the sentence. Id.
¶9 Pursuant to A.R.S. § 13-603(A), a person convicted of an
offense “shall be sentenced in accordance with,” chapters 7, 8, 9, and 13 of
the criminal code. In chapter 9, the legislature has provided that a trial
“court may suspend the imposition or execution of sentence” as to a
defendant who “is eligible for probation.” A.R.S. § 13-901(A) (emphasis
added); see also State v. Federico, 104 Ariz. 49, 49-50 (1968) (distinguishing
former Arizona statute from federal statute on basis that federal statute
allowed court “to suspend either the imposition or the execution of a sentence”
but then-Arizona statute allowed “suspension of only the imposition of a
sentence”). Although it is commonly the imposition of sentence that is
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
suspended, because the statute includes both words, we must give each of
them meaning. See State v. Windsor, 224 Ariz. 103, ¶ 6 (App. 2010). In
contrast to imposition, the word “execution” is defined as, “The act of
carrying out or putting into effect . . . .” Execution, Black’s Law Dictionary
(11th ed. 2019). At one time, Arizona’s sentencing scheme only permitted
a court to suspend the imposition of sentence and did not permit it to
suspend the execution of sentence by allowing a term of incarceration to be
“interrupted” or “intermittent.” State v. Bigelow, 76 Ariz. 13, 17-19 (1953)
(distinguishing between court suspending the imposition of sentence and
improperly suspending the execution of sentence). But our current
statutory scheme allows a court to suspend sentence in either manner.
¶10 The time period for the probationary term is set forth in A.R.S.
§ 13-902(B)(1), which permits a term of up to five years for a violation of
§ 28-1381. As a condition of probation, a trial court is also authorized to
“require that the defendant be imprisoned in the county jail at whatever
time or intervals, consecutive or nonconsecutive, the court shall
determine,” so long as that confinement “does not exceed one year or the
maximum period of imprisonment permitted” for the offense. § 13-901(F).
¶11 Further, A.R.S. § 13-903(A) allows a period of probation to
begin either “on the day it is imposed or as designated by the court,”
thereby allowing a court to set a term of probation to begin after the date of
sentencing. Thus, a court may impose sentence but order the execution of
sentence to be suspended at a future point during the term of incarceration,
thereby interrupting the sentence. A term of probation may be ordered to
begin at that point pursuant to § 13-901(A).1
1In its supplemental brief, the state argued that A.R.S. § 13-116 and
the prohibition against double jeopardy prevent a defendant from serving
“a portion of statutory jail time” and then being placed on probation for the
same act. However, in order to place a defendant on a term of probation
the trial court must first suspend the imposition or execution of sentence.
§ 13-901(A); see also State v. Watson, 248 Ariz. 208, ¶ 28 (App. 2020). Thus,
just as a defendant only receives one punishment if the imposition of
sentence is suspended, only one punishment is given when the execution
of sentence is suspended. A court suspending the execution of sentence
does not create the same situation for purposes of § 13-116 as that present
when a court orders a term of imprisonment and a term of probation to be
served consecutively. See Watson, 248 Ariz. 208, ¶ 31.
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
¶12 Thus, the statutory language establishes that a defendant
convicted of a second DUI offense must be sentenced to ninety days in jail,
with thirty to be served consecutively, before he or she is “eligible for
probation.” § 28-1381(K). In this case, however, the respondent judge
found Shifflette “eligible for probation” at sentencing, and on that date
suspended the imposition of sentence and placed Shifflette on a five-year
probationary term to commence immediately. He further ordered that
Shifflette serve ninety days in jail “as a condition of probation” and
suspended sixty days of that term. But by statute, Shifflette’s term of
probation could not begin until she had served the sentence required by
§ 28-1381(K). And a court has no authority to grant probation outside of
statutory provisions. State v. Watson, 248 Ariz. 208, ¶ 25 (App. 2020).
¶13 For these reasons, the respondent judge erred by suspending
the imposition of sentence and placing Shifflette on probation, and by
ordering her to serve § 28-1381(K)’s required jail term as a probation
condition. The respondent was instead required to impose a ninety-day
misdemeanor sentence, and could only suspend that sentence’s execution
and impose probation as authorized by § 28-1381(L). Shifflette must
therefore be resentenced on the DUI count.
¶14 The question remains whether, on remand, § 13-712(B)
requires the respondent judge to award presentence incarceration credit on
Shifflette’s misdemeanor sentence, and specifically whether he must apply
any credit to the consecutive thirty-day jail term required by § 28-
1381(K)(1), even though such application would bifurcate the term. The
respondent interpreted § 28-1381(K)(1) to contain an express exception to
§ 13-712(B). Shifflette maintains this was error and that § 13-712(B)
required the respondent to credit her thirty-day jail term with the ten days
she spent incarcerated after her arrest. The state agrees that the court
misinterpreted § 28-1381(K)(1) as creating an express exception to
§ 13-712(B).
¶15 Section 13-712(B) requires a trial court to credit a defendant
with time “spent in custody pursuant to an offense,” unless “otherwise
provided for by this chapter.” As the respondent judge correctly pointed
out, although § 13-712(B) is contained in Title 13, it nonetheless generally
applies to criminal offenses, like DUI, defined in other titles. See § 13-
102(D).
¶16 Nothing in § 28-1381 expressly exempts repeat misdemeanor
DUI convictions from receiving time credit under § 13-712(B), as the
respondent judge indicated. If the legislature intended that presentence
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
incarceration credit not apply at all to convictions under § 28-1381(K), it
would have said so, as it did in relation to certain credit under the
corresponding felony DUI statute. See A.R.S. § 28-1383(H), (I). In fact, it
appears that the legislature contemplated that those convicted of DUI
would receive credit in some circumstances. See A.R.S. § 28-1446 (governing
calculation of presentence incarceration credit).
¶17 Although § 28-1381(K) does not provide an express exception
to § 13-712(B)’s requirement that a defendant receive presentence
incarceration credit for a second misdemeanor DUI offense, it nonetheless
limits the manner in which such credit may be applied. Title 13’s sentencing
provisions apply to criminal offenses defined in other titles “unless the
context otherwise requires.” § 13-102(D). And when interpreting statutes,
we must ensure not to render superfluous any of their provisions. See
Nicaise v. Sundaram, 245 Ariz. 566, ¶ 11 (2019).
¶18 Applying presentence incarceration credit to reduce
§ 28-1381(K)(1)’s mandatory thirty-day jail term, as Shifflette requests,
would bifurcate that term and nullify the provision’s requirement that
defendants serve the term consecutively. The ordinary meaning of
“consecutively” is “each following the other without interruption.”
Consecutively, Merriam-Webster, https://www.merriam-webster.com (last
accessed June 12, 2023).2 Thus, by its plain meaning, § 28-1381(K)(1)
requires a defendant to serve thirty consecutive—that is, uninterrupted—
days in jail. Although subsection (L) allows a court to suspend some of
subsection (K)’s ninety-day sentence, it specifies that thirty days cannot be
suspended, and nothing in subsection (L) removes subsection (K)’s
requirement that those days be served consecutively. Accordingly, the
relevant statutory context precludes applying presentence incarceration
2The parties speculate that the legislature added § 28-1381(K)(1)’s
requirement that a defendant serve thirty consecutive days to preclude
work furlough or weekend-only jail terms, not to prevent courts from
applying presentence incarceration credit to the thirty days. Neither party,
however, cited any authority for this proposition. And where, as here, the
statutory language is clear and unambiguous, its plain meaning is the best
evidence of the legislature’s intent. See Rasmussen, 227 Ariz. 496, ¶ 4; see also
State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 220 (App. 1996)
(“Where the language of a statute is clear and unambiguous this court will
apply the statute’s plain language.”).
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
credit to reduce Shifflette’s mandatory thirty-day jail term, which would
result in her serving that time in two non-consecutive blocks. See § 13-102(D).
¶19 While the respondent judge correctly concluded that he could
not bifurcate the thirty-day period, he erred to the extent he determined
that § 13-712(B) does not apply to § 28-1381(K) and does not entitle
Shifflette to receive presentence incarceration credit on her ninety-day
sentence. If on remand the respondent suspends fewer than sixty days of
Shifflette’s sentence, or if he ultimately requires her to serve the suspended
days because, for example, she fails to comply with statutory conditions,
see § 28-1381(L), or violates the terms of any probation imposed on remand,
see § 13-903(F), she must receive ten days of credit against the remaining
portion of her sentence, as long as she still serves thirty consecutive days in
jail.3
¶20 In sum, a trial court sentencing a defendant under § 28-
1381(K) should, at sentencing, impose the mandatory sentence, requiring
the defendant to serve thirty consecutive days, if he or she has not already
done so. If the consecutive days have been served, the credit may be
applied accordingly. If, in its discretion, the court chooses to order the
suspension of the execution of all but thirty days of that sentence pursuant
to § 28-1381(L), it should do so at sentencing, setting a date for the
commencement of probation under § 13-903(A) if probation is to be
ordered. As required by Rule 26.10, Ariz. R. Crim. P., because § 28-1381(K)
directs the entry of a sentence, the court must also consider the time spent
in custody on the charge and specify “the amount of time to be credited
against the sentence.”
3Because we conclude that the respondent judge improperly ordered
Shifflette to serve thirty days as a condition of probation, we need not
address the state’s argument that the respondent judge’s ruling was correct
based on State v. Brodie, 127 Ariz. 150 (App. 1980), or Shifflette’s implicit
request for us to disagree with that decision. Likewise, because Shifflette’s
sentence does not exceed the statutory maximum, we need not address her
undeveloped equal protection argument. See State v. Mathieu, 165 Ariz. 20,
22 (App. 1990) (appellate court “bound by the supreme court’s implied
holding that the equal protection clause does not require credit unless the
statutory maximum is exceeded when the presentence incarceration time is
added to the sentence imposed” (citing State v. Gray, 122 Ariz. 445 (1979))).
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SHIFFLETTE v. HON. MARNER
Opinion of the Court
Disposition
¶21 For the foregoing reasons, we accept jurisdiction and grant
relief. We vacate the respondent judge’s order suspending the imposition
of sentence and placing Shifflette on probation and remand the matter to
the respondent for resentencing consistent with this opinion.
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