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Bourn v. McClennen

Court of Appeals of Arizona, First Division

July 31, 2014

MAX WILLIAM BOURNE; KARISSA M. ROWLAND; JOSE L. SIMENTAL-FUENTES; JORGE GARCIA-FRAIJO, Petitioners,
v.
THE HONORABLE CRANE McCLENNEN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA, by and through the Phoenix City Prosecutor, Real Party in Interest.

Appeal from the Superior Court in Maricopa County Nos. LC2014-000105-001 DT, LC2014-000106-001 DT, LC2014-000107- 001 DT, LC2014-000108-001 DT (consolidated) The Honorable Crane McClennen, Judge

Michael J. Dew, Attorney at Law, Phoenix By Michael J. Dew Counsel for Petitioners

Phoenix City Prosecutor's Office, Phoenix By Gary L. Shupe Counsel for Real Party in Interest

Judge Patricia K. Norris delivered the opinion of the Court, in which Acting Presiding Judge Maurice Portley and Judge Andrew W. Gould joined.

OPINION

NORRIS, JUDGE

¶1 By statute, a court must sentence a person convicted of a first violation of extreme driving under the influence ("DUI") to jail for, depending on the alcohol concentration, not less than 30 or 45 days. Ariz. Rev. Stat. ("A.R.S.") § 28-1382 (2012). A court may, however, suspend a portion of the jail sentence if the person installs an ignition interlock device on any motor vehicle he or she drives. A.R.S. § 28-1382(I). And, by statute, a court may permit a person sentenced for extreme DUI to participate in a home detention program established by a city or town if the person first serves a minimum of 20% of the "initial term of incarceration in jail" before being placed in home detention. A.R.S. § 9-499.07(N)(3) (Supp. 2013).

¶2 The issue in this special action is whether the "initial term of incarceration in jail" for home detention refers to the actual jail time imposed by the court at the time of sentencing if its suspends a portion of the jail sentence or to the entire jail sentence ordered by the court before any suspension. Based on the plain language of the applicable statutes, we hold the "initial term of incarceration in jail" refers to the actual jail time imposed by the court at the time of sentencing if it suspends a portion of the jail sentence.

FACTS AND PROCEDURAL BACKGROUND

¶3 The Phoenix Municipal Court convicted Petitioners Max William Bourne, Karissa M. Rowland, and Jose L. Simental-Fuentes ("(A)(1) Petitioners") of extreme DUI under A.R.S. § 28-1382(A)(1) (alcohol concentration of 0.15 or more but less than 0.20 under specified conditions). The municipal court also convicted Jorge Garcia-Fraijo ("(A)(2) Petitioner") of what we refer to in this opinion as "super-extreme" DUI under A.R.S. § 28-1382(A)(2) (alcohol concentration of 0.20 or more under specified conditions).

¶4 Under A.R.S. § 28-1382(D)(1), a person convicted of a first violation of extreme DUI must be sentenced to serve not less than 30 consecutive days in jail and a person convicted of a first violation of super-extreme DUI must be sentenced to serve not less than 45 consecutive days in jail. The municipal court sentenced the (A)(1) Petitioners and the (A)(2) Petitioner to serve the statutory minimum sentences, 30 or 45 days in jail, respectively, and ordered each Petitioner to install an ignition interlock device in his or her motor vehicle. But, as authorized by A.R.S. § 28-1382(I), the court suspended all but nine days of the 30-day jail sentence for the (A)(1) Petitioners and all but 14 days of the 45-day jail sentence for the (A)(2) Petitioner. Then, pursuant to A.R.S. § 9-499.07(N)(3), the municipal court authorized each Petitioner to participate in the home detention program established by the City of Phoenix. Section 9-499.07(A) (Supp. 2013) authorizes a city or town to establish a home detention program, "which shall be treated the same as confinement in jail." A person convicted of extreme or super-extreme DUI and sentenced to jail under A.R.S. § 28-1382 may participate in such a program if he or she meets certain eligibility requirements, including having first served "a minimum of twenty per cent of the initial term of incarceration in jail." A.R.S. § 9-499.07(N)(3) ("home detention provision").

¶5 Construing "initial term of incarceration in jail" in the home detention provision to be the actual time it had sentenced each Petitioner to serve in jail (that is, nine days for the (A)(1) Petitioners and 14 days for the (A)(2) Petitioner), the municipal court ordered the (A)(1) Petitioners to serve two days in jail (20% of nine days, rounded) and seven days of home detention and the (A)(2) Petitioner to serve three days in jail (20% of 14 days, rounded) and 11 days of home detention.

¶6 The State appealed[1] to the superior court, arguing "initial term of incarceration in jail" as used in the home detention provision referred to the entire jail sentence of 30 or 45 days before any suspension of sentence. Thus, according to the State, the municipal court should have ordered the (A)(1) Petitioners and (A)(2) Petitioner to serve six and nine days in jail, respectively. The superior court agreed with the State. Petitioners then filed this special action.

JURISDICTION

¶7 In the exercise of our discretion, we accept special action jurisdiction. Petitioners have no remedy by appeal, see A.R.S. § 22-375(B) (2013); Ariz. R.P. Spec. Act. 1(a), and this special action presents an issue of statutory construction -- a pure question of law -- that, based on the record before us, has arisen often, has been the subject of conflicting rulings, see Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4, 43 P.3d 601, 602 (App. 2002), and is subject to ...


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