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State v. Scalph

Court of Appeals of Arizona, First Division

July 19, 2018

STATE OF ARIZONA, Appellee,
v.
JACK BUCHANAN SCALPH, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2016-005574-001 DT The Honorable Erin Otis, Judge

          Arizona Attorney General's Office, Phoenix By Elizabeth B. N. Garcia Counsel for Appellee

          Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant

          Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.

          OPINION

          WINTHROP, JUDGE

         ¶l We address in this opinion whether the trial court imposed a lawful sentence following Jack Buchanan Scalph's convictions for possession of dangerous drugs for sale, possession of marijuana for sale, possession of drug paraphernalia, and four counts of misconduct involving weapons. Because only this issue from Scalph's appeal merits publication, we have addressed Scalph's other arguments in a separate, unpublished memorandum decision issued simultaneously with this opinion. See Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f).

         ¶2 Scalph argues that the trial court imposed an illegal sentence on Count 1, possession of dangerous drugs for sale, because it "combined" Arizona Revised Statutes ("A.R.S.") sections 13-3407 (West 2018) and 13-703(J).[1] Scalph argues that he should have instead been sentenced either as a repetitive offender pursuant to A.R.S. § 13-703(J) or given a "flat-time" sentence under A.R.S. § 13-3407(E). We disagree.

         ¶3 Section 13-703 plainly states that early release provisions do not apply when another statute or provision of law specifies a later release or requires completion of the prison sentence before release. Scalph was convicted of violating § 13-3407 based on his possession of methamphetamine for sale. In this situation, § 13-3407(F) expressly requires the court to impose a calendar-year prison term. Section 13-3407 is a statute specifically requiring the completion of a prison sentence before release; as such, the general release provisions of § 13-703 do not apply. Accordingly, for the following reasons and those set forth in the accompanying unpublished memorandum decision, we affirm Scalph's convictions and sentences.

         FACTS AND PROCEDURAL HISTORY[2]

         ¶4 Police officers searched Scalph's home pursuant to a warrant and discovered four guns. In a hidden compartment behind a shower, police found illicit drugs, a digital scale, and plastic baggies. The State charged Scalph with one count each of possession of dangerous drugs for sale (methamphetamine), a class 2 felony; possession of narcotic drugs for sale (heroin), a class 2 felony; possession of marijuana for sale, a class 4 felony; possession of drug paraphernalia, a class 6 felony; and eight counts of misconduct involving weapons, class 4 felonies.

         ¶5 The State proceeded to trial on the drug charges and the four weapons charges that were based on allegations Scalph possessed the firearms during the commission of the drug offenses.[3] See A.R.S. § 13-3102(A)(8). The jury could not reach a verdict regarding the heroin offense, but found Scalph guilty of the other charges. The jury also found the State sufficiently proved aggravating factors, including that Scalph was on probation for a felony conviction at the time he committed the offenses. The court subsequently found Scalph had two historical prior felony convictions. Pursuant to A.R.S. § 13-703(C) and (J), the court sentenced Scalph to presumptive concurrent prison terms as a category 3 repetitive offender, including a 15.75-year sentence on Count 1 (the methamphetamine offense), a 3.75-year sentence on Count 4 (paraphernalia), and 10-year sentences on the remaining counts. With respect to Count 1, the court ordered Scalph's prison sentence to be served day-for-day, or "flat-time," in accordance with A.R.S. § 13-3407(A)(2), (F). Scalph timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

         ANALYSIS

         ¶6 Scalph argues that, for Count 1, the trial court erred in sentencing him as a repetitive offender and imposing a sentence without the possibility of early release (a "flat-time sentence"). According to Scalph, the court should have applied either A.R.S. § 13-703, the repeat offender sentencing statute, or A.R.S. § 13-3407, which requires a flat-time sentence for a conviction of possession of methamphetamine for sale. See A.R.S. §§ 13-703(J), -3407(F).

         ¶7 To address Scalph's argument, we must interpret the applicable statutes, an undertaking we conduct de novo. State v. Neese,239 Ariz. 84, 86, ¶ 8 (App. 2016). When interpreting a statute, our goal is to give effect to the legislature's intent. State v. Peek, 219 Ariz. 182, 184, ¶ 11 (2008). We look first to the language of the statute because it is the best indication of the legislature's intent. Id. If "the language is clear and unequivocal, it is determinative of the statute's construction." State v. ...


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