Appeal
from the Superior Court in Pima County No. CR05669 The
Honorable Richard D. Nichols, Judge
Mark
Brnovich, Arizona Attorney General Lacey Stover Gard, Chief
Counsel, Tucson By Ginger Jarvis, Assistant Attorney General,
Phoenix Counsel for Appellee.
Arizona Capital Representation Project, Tucson By Amy
Armstrong and Sam Kooistra Counsel for Appellant.
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Howard
[1]
concurred.
OPINION
VÁSQUEZ, PRESIDING JUDGE.
¶1
In this appeal from his resentencing after his 1982 death
sentence was vacated in a federal habeas proceeding, see
Lambright v. Schriro, 490 F.3d 1103 (9th Cir. 2007) (per
curiam), Joe Lambright contends the trial court erred in
ordering his life term of imprisonment be served
consecutively to the consecutive prison terms imposed in 1982
on his sexual assault and kidnapping convictions, and for
refusing to give him credit for all time served since his
arrest. We affirm for the reasons stated below.
Facts
and Procedural Background[2]
¶2
In 1980, Lambright, his girlfriend Kathy Foreman, and
codefendant Robert Smith were driving across the country.
Id. at 1106. They ended up in Tucson, where they
picked up the victim, who was hitchhiking. Id. at
1107. Smith sexually assaulted her twice, and after Smith
began choking her, Lambright stabbed her multiple times and
struck her in the head with a rock, killing her. Id.
Foreman testified against the two men at trial, and both were
convicted of sexual assault, kidnapping, and first-degree
murder. Id.
¶3
After an aggravation/mitigation hearing in May 1982, the
trial court sentenced Lambright to death on the first-degree
murder conviction, count one of the indictment. In a separate
minute entry, the court sentenced him to an aggravated prison
term of twenty-one years on count two, kidnapping, giving him
438 days' presentence incarceration credit and an
aggravated, twenty-one-year term on count three, sexual
assault, specifying that these terms were consecutive. In
neither order did the court state whether the death sentence
was concurrent with or consecutive to the prison terms.
¶4
In 2007, after years of appellate and post-conviction
proceedings, the Ninth Circuit Court of Appeals vacated the
death sentence based on defense counsel's ineffectiveness
during the penalty phase of the 1982 trial. Id. at
1115-28. Upon remand to the trial court, the state again
sought the death penalty, and further litigation followed.
See Lambright v. Ryan, 698 F.3d 808, 811 (9th Cir.
2012). Before the commencement of the 2015 jury trial on the
penalty, Lambright filed a motion to preclude the capital
sentence based on the delay in obtaining relief, attributing
it to the state's aggressive litigation of his claims.
Alternatively, he requested that the court preclude the state
from introducing the trial testimony of Kathy Foreman, who
was deceased. The court denied the motion, and a jury trial
was held in November 2015, first on the aggravating
circumstances, during which Foreman's trial testimony was
read to the jury, and then the penalty phase.
¶5
The jury found the state had proved the aggravating
circumstance that Lambright had committed the murder in an
especially cruel, heinous, or depraved manner, specifying
their unanimous finding in the special verdict that he had
committed the murder in an especially cruel manner. However,
the jury was unable to decide after the penalty phase of the
trial whether to sentence Lambright to death, and the trial
court declared a mistrial. The state then withdrew its notice
of intent to seek the death penalty, and the court set the
case for a resentencing hearing by the trial court for the
only term available, life with the possibility of parole
after twenty-five years. See 1979 Ariz. Sess. Laws,
ch. 144, § 1.
¶6
In its sentencing memorandum, the state urged the court to
order that the life term be consecutive to the previously
imposed and already served prison terms. Based on information
provided by a Department of Corrections (DOC) employee, the
state specified the incarceration credit Lambright would be
entitled to depending on whether the term was consecutive or
concurrent. Lambright objected to a consecutive term on
various grounds, arguing in his sentencing memorandum that it
was not supported by the applicable statutes, specifically,
former A.R.S. § 13-708 (1978), [3] because he was no longer
being sentenced on multiple offenses, nor was he subject to
an undischarged term on other charges. He also argued that
denying him credit for all time served would violate the
state and federal prohibitions against double jeopardy and
that delay in resentencing him violated his due process
rights. He made similar arguments at the January 2016
resentencing hearing.
¶7
The trial court resentenced Lambright on January 25, 2016, to
a consecutive life term of imprisonment, articulating its
reasons for doing so. The court stated it had considered in
mitigation Lambright's exemplary conduct while
incarcerated. Although it acknowledged his difficult
childhood and service in the Vietnam War, it declined to give
these factors substantial weight. The court agreed with the
jury that the murder had been committed in an especially
cruel manner. As additional "aggravating"
circumstances, it noted the fear experienced by and emotional
trauma inflicted on the victim, the fact that Lambright had
acted as an accomplice during the sexual assault, and the
overall brutality of the offenses. The court gave Lambright
1, 183 days' incarceration credit for the period between
October 30, 2012, the date he was discharged from the prison
term on count three, and the date of the resentencing. This
appeal followed.[4]
Consecutive
Life Term
¶8
On appeal, Lambright raises many of the same arguments he
raised below, contending the consecutive life term violates
the applicable statutes, as well as due process and the
prohibition against double jeopardy under the state and
federal constitutions. He also reasserts his prior argument
that because the death sentence was concurrent by default
under § 13-708, he has, therefore, "been serving
time on his conviction under [c]ount [one] since the time of
his initial arrest in advance of his 1982 trial, a period of
over 35 years, and [he] is entitled to credit for his time
served, " making him eligible for parole.
¶9
"A trial court has broad discretion in sentencing and,
if the sentence imposed is within the statutory limits, we
will not disturb the sentence unless there is a clear abuse
of discretion." State v. Ward, 200 Ariz. 387,
¶ 5, 26 P.3d 1158, 1160 (App. 2001). We review de novo,
however, the legal questions whether consecutive sentences
are permissible, State v. Siddle, 202 Ariz. 512,
¶ 16, 47 P.3d 1150, 1155 (App. 2002), and whether a
defendant is entitled to incarceration credit, see State
v. Bomar, 199 Ariz. 472, ¶ 5, 19 P.3d 613, 616
(App. 2001). We also review de novo legal questions involving
the interpretation and application of statutes. State v.
Farnsworth, 241 Ariz. 486, ¶ 13, 389 P.3d 88, 91
(App. 2017).
¶10
"[Statutory provisions are to be read in the context of
related provisions and of the overall statutory scheme. The
goal is to achieve consistency among the related
statutes." State v. Reyes, 238 Ariz. 304,
¶ 14, 360 P.3d 100, 104 (App. 2015), quoting Goulder
v. Ariz. Dep't of Transp., Motor Vehicle Div., 177
Ariz. 414, 416, 868 P.2d 997, 999 (App. 1993). Additionally,
when interpreting a statute, we must give effect to the
legislature's intent, which is best reflected in the
statute's plain language. See State v. Estrada,
201 Ariz. 247, ¶¶ 16-17, 34 P.3d 356, 359-60
(2001). We do not look beyond the plain language of the
statute unless it is unclear or the result of its application
would be absurd. See id.
¶11
At the time Lambright committed the offenses, § 13-708
provided as follows:
If multiple sentences of imprisonment are imposed on a person
at the same time, or when a person who is subject to any
undischarged term of imprisonment imposed at a previous time
is sentenced to an additional term of imprisonment, the
sentence or sentences imposed by the court shall run
concurrently unless the court expressly directs otherwise, in
...