Court of Appeals of Arizona, First Division, Department A
Appeal from the Superior Court in Maricopa County Cause No. CR2004-036702-001SE The Honorable Joseph C. Welty, Judge
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Division Jeffrey L. Sparks, Assistant Attorney General Alice Jones, Assistant Attorney General Attorneys for Appellee.
Theresa M. Armendarez Manteo, NC Attorney for Appellant.
JOHN C. GEMMILL, Presiding Judge.
¶1 Defendant Shawnte Shuree Jones appeals her convictions and resulting sentences for two counts of child abuse and one count of felony murder arising from the death of her ten-month-old child. In a separate memorandum decision issued contemporaneously with this published opinion, we explain why we are affirming Jones' convictions. In this opinion, we explain our resolution of the sentencing issue presented by an apparent conflict between Arizona Revised Statutes ("A.R.S") sections 13-116 (2010) and 13-705(M) (2010). Only our resolution of this sentencing issue warrants publication. See Ariz. R. Sup. Ct. 111(h). The trial court sentenced Jones to consecutive terms of imprisonment for the felony murder conviction and the Count 2 child abuse conviction, in accordance with A.R.S. § 13-705(M), because the child abuse conviction constituted a dangerous crime against children. But these two convictions arose from the same act or conduct, and we conclude that A.R.S § 13-116 requires that these sentences be served concurrently. Accordingly, we affirm Jones' sentences but order the sentence on the Count 2 child abuse conviction to be modified so that it shall be served concurrently with the sentence for felony murder.
¶2 A grand jury indicted Jones in Count 1 for child abuse, a class two felony and dangerous crime against children, for failing to provide nourishment and/or medical attention to her infant; in Count 2 for child abuse, a class two felony and dangerous crime against children, for causing head injuries to the infant; and in Count 3 for first-degree murder, a class one felony, for causing the death of the child in the course and in furtherance of the child abuse alleged in Count 2.
¶3 Jones waived her right to a trial by jury. After a 20-day bench trial, the court found Jones guilty for Count 1 of the lesser-included offense of reckless child abuse, a class three felony, and guilty of the charged offenses in Counts 2 and 3. The court designated the convictions on Counts 2 and 3 as dangerous crimes against children; the conviction for reckless child abuse under Count 1 is not a dangerous crime against children. See A.R.S. §§ 13-705(P) and 13-3623(A)(1). The court sentenced Jones to 3.5 years on Count 1, 17 years on Count 2, and life with the possibility of release after 35 years on Count 3, with the sentences on Counts 1 and 3 to be served concurrently, and the sentence on Count 2 to be served consecutively to the other sentences.
¶4 Jones timely appeals, and we have jurisdiction in this matter pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
¶5 We ordered the parties to file supplemental briefs addressing whether the consecutive sentences for Counts 2 and 3 violated the statutory prohibition against double punishment in A.R.S. § 13-116. See State v. Curry, 187 Ariz. 623, 627, 931 P.2d 1133, 1137 (App. 1996) (holding that "when an appellate court notes the possibility of fundamental error in a criminal proceeding, it may raise the issue on its own motion and order the parties to submit supplemental briefs addressing the issue"). After further consideration, including review of the parties' supplemental briefs, we conclude that § 13-116 is applicable and mandates concurrent sentences because Counts 2 and 3 are based on the same conduct.
¶6 Section 13-116 bars the imposition of consecutive sentences for a single "act or omission which is made punishable in different ways by different sections of the laws." Both Jones and the State agree Appellant's convictions for Counts 2 and 3 were based on a "single act" for purposes of § 13-116. The parties also agree that A.R.S. § 13-705(M) conflicts with the concurrency directive in § 13-116. Section 13-705(M) requires sentences imposed for dangerous crimes against children, not including offenses involving child molestation or sexual abuse with only one victim, to be "consecutive to any other sentence imposed on the person at any time."
¶7 When interpreting statutes, our primary goal is to determine and give effect to the intent of the legislature. DeVries v. State, 221 Ariz. 201, 204, ¶ 6, 211 P.3d 1185, 1188 (App. 2009). We first examine the statutory language to determine its meaning. New Sun Bus. Park, LLC v. Yuma County, 221 Ariz. 43, 46, ¶ 12, 209 P.3d 179, 182 (App. 2009). We "give full effect to the legislative intent, and each word or phrase must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant." Weitekamp v. Fireman's Fund Ins. Co., 147 Ariz. 274, 275, 709 P.2d 908, 909 (App. 1985). When two sentencing statutes appear to conflict, we will attempt to harmonize them to the extent possible. State v. Diaz, 224 Ariz. 322, 324, ¶ 10, 230 P.3d 705, 707 (2010).
¶8 The State asserts that § 13-705(M) is an exception to the concurrency directive of § 13-116. Section 13-116 is an older statute with a general application, according to the State, and therefore § 13- 705(M) ought to control because it is the more recent, more specific, statute. Although § 13-116 is the older statute, we do not find the relative youth of § 13-705(M) supportive of the State's proffered interpretation. We also disagree with the State's characterization of § 13-116 as a general statute; the statute applies to the specific situation in which a single act is punishable under multiple sections of the law.
¶9 This court has previously resolved the apparent conflict between § 13-116 and § 13-705(M) in State v. Arnoldi, 176 Ariz. 236, 860 P.2d 503 (App. 1993). In Arnoldi we concluded "that § 13-116 is paramount in the statutory scheme of sentencing" and that the dangerous crimes against children sentencing statutes "require a trial court to impose consecutive sentences, but only in the event that those sentences do not violate § 13-116." 176 Ariz. at 242, 860 P.2d at 509. See also State v. McDonagh, 660
Ariz.Adv.Rep. 6, 2, ¶ 8 (App. May 7, 2013) ("'Section 13-116 traces its roots to 1901' and 'is paramount in the statutory scheme of sentencing.'") (quoting Arnoldi, 176 Ariz. at 241, 242, 860 P.2d at 508, 509).
¶10 The State urges us to depart from the holding of Arnoldi. We decline to do so. We agree that § 13-116 is "paramount" in Arizona's sentencing statutes, and we also recognize that the legislature has amended the sentencing statutes for dangerous crimes against children multiple times since Arnoldi and has made only minor changes. We therefore presume that the legislature approves of the holding in Arnoldi. See Galloway v. Vanderpool, 205 Ariz. 252, 256-67, ¶¶ 17, 18, 69 P.3d 23, 27-28 (2003) ("If the legislature amends a statute after it has been judicially construed, but does not modify the statute in a manner that changes the court's interpretation, we presume the legislature approved of the court's construction and intended that it ...