                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


THE STATE OF ARIZONA,                             )
                                                  )
                                   Petitioner,    )
                                                  )
                       v.                         )     2 CA-SA 2003-0101
                                                  )     DEPARTMENT B
HON. JAN KEARNEY, Judge of the                    )
Superior Court of the State of Arizona,           )     OPINION
in and for the County of Pima,                    )
                                                  )
                                  Respondent,     )
                                                  )
                       and                        )
                                                  )
AMY LOU HENDERSON,                                )
                                                  )
                        Real Party in Interest.   )
                                                  )

                              SPECIAL ACTION PROCEEDING

                             Pima County Cause No. CR-20022577

                                        RELIEF DENIED


Barbara LaWall, Pima County Attorney
 By Elizabeth Hurley                                                              Tucson
                                                                  Attorneys for Petitioner

Jeffrey D. Bartolino                                                               Tucson
                                                        Attorney for Real Party in Interest


P E L A N D E R, Presiding Judge.
¶1             In this special action, petitioner State of Arizona contends the respondent judge

erred in ordering real party in interest Amy Lou Henderson to remain released on bond pending

sentencing following her conviction for aggravated driving under the influence of an intoxicant

(DUI) in violation of A.R.S. § 28-1383(A)(1). The state argues that, because Henderson must be

imprisoned for four months pursuant to § 28-1383(D) even if she is granted probation, the

respondent judge was required to order her “immediately placed into custody after conviction”

pursuant to Rule 7.2(b)(1), Ariz. R. Crim. P., 16A A.R.S. That rule generally requires such

action for persons convicted in superior court who “will in all reasonable probability suffer a

sentence of imprisonment.” Because the state has no equally plain, speedy, and adequate remedy

by appeal, see A.R.S. § 13-4032 and Rule 1(a), Ariz. R. P. Special Actions, 17B A.R.S., and

because this is a pure question of law, a matter of first impression, and an issue of statewide

importance, we accept jurisdiction. Ariz. Dep’t of Revenue v. Superior Court, 189 Ariz. 49, 51,

938 P.2d 98, 100 (App. 1997). We conclude the respondent judge had discretion to continue

Henderson’s release on bond, and we therefore deny relief. See Ariz. R. P. Special Actions 3.

¶2             The relevant facts are not disputed. A jury found Henderson guilty of aggravated

DUI, a class four felony, on September 12, 2003. Henderson had been released from custody

since the time of her arrest. After the jury returned its verdict, the state moved that she be taken

immediately into custody pending sentencing pursuant to Rule 7.2(b), Ariz. R. Crim. P.

Henderson objected, arguing that she is a strong candidate for probation and noting she had

rejected a plea offer in which the state had proposed recommending that she be placed on

probation. Recognizing that § 28-1383(D) and Rule 7.2(b) arguably called for Henderson’s

immediate incarceration, the respondent judge nonetheless found that Rule 7.2(b) did not apply

                                                 2
and permitted Henderson to remain released on bond under the supervision of pretrial services

pending sentencing. The state petitioned for special action relief on October 1.

¶3             Although sentencing was set for October 10, this court ordered the parties to

continue litigating this special action regardless of the outcome of that proceeding. According to

Henderson’s response to the special action petition and the state’s avowal at oral argument,

Henderson was placed on probation on October 10. Although the issue before us is therefore

moot, we may nonetheless decide such an issue when, as here, it is a recurring issue of public

importance that will otherwise evade review. See State ex rel. McDougall v. Municipal Court,

155 Ariz. 186, 188, 745 P.2d 634, 636 (App. 1987).

¶4             We thus address whether a probation-eligible defendant found guilty of aggravated

DUI and, therefore, subject to a mandatory four-month term of imprisonment pursuant to § 28-

1383(D) must be immediately taken into custody pursuant to Rule 7.2(b). Rule 7.2(b)(1) provides:

                       After a person has been convicted of any offense for which
               the person will in all reasonable probability suffer a sentence of
               imprisonment, the person shall not be released on bail or on his or
               her own recognizance unless it is established that there are
               reasonable grounds to believe that the conviction may be set aside
               on a motion for new trial, reversed on appeal, or vacated in any
               post-conviction proceeding. The release of a person pending appeal
               shall be revoked if the person fails to prosecute the appeal
               diligently.1


       1
         Henderson did not establish, and does not contend, that “reasonable grounds [exist] to
believe that [her] conviction may be set aside on a motion for new trial, reversed on appeal, or
vacated in any post-conviction proceeding.” Ariz. R. Crim. P. 7.2(b)(1). Although not at issue
in this special action, those exceptions and the last sentence of Rule 7.2(b)(1) appear to provide
for the posting of an appeal bond (or similar post-conviction bond) by a defendant sentenced to
prison if one of the specified conditions is established. But those provisions are directly at odds
with A.R.S. § 13-3961.01, which specifically prohibits any such bond after sentencing unless a
court finds incarceration would endanger the defendant’s life. This court has previously

                                                3
Section 28-1383(D) provides in pertinent part:

                       A person is not eligible for probation, pardon, commutation
               or suspension of sentence or release on any other basis until the
               person has served not less than four months in prison if the person
               is convicted under [various aggravated DUI statutes, including § 28-
               1383(A)(1)].

¶5             We review de novo the interpretation of a statute. State v. Fell, 203 Ariz. 186, ¶6,

52 P.3d 218, ¶6 (App. 2002). Our primary goal is to discern and give effect to legislative intent.

Id. To that end, we construe the statute’s language, and if it is unclear, then consider its historical

background, subject matter, context, effects, consequences, spirit, and purpose. Id. These

principles of statutory construction apply equally to rules promulgated by our supreme court.

Ariz. Dep’t of Revenue, 189 Ariz. at 52, 938 P.2d at 101 (“The interpretation of the rules of

procedure parallels the interpretation of statutes.”). Moreover, “[r]ules of procedure and statutes

are read in conjunction with each other and harmonized whenever possible.” Groat v. Equity Am.

Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (App. 1994).

¶6             In this context, we are unable to discern a plain meaning of the rule and statute read

in conjunction because it is not clear whether the four-month prison term mandated by § 28-

1383(D) is a “sentence of imprisonment” for purposes of Rule 7.2(b)(1).2 As noted above, the

statute requires a prison term even when a person is granted probation. That provision, however,

is at odds with the general felony sentencing scheme, which provides for either the imposition of



determined that the statute governs over the rule. State v. Hawkins, 140 Ariz. 88, 90, 680 P.2d
522, 524 (App. 1984).
       2
       Much of the case law in this area is based on similar provisions that were contained in
previous versions of the DUI laws. See, e.g., former A.R.S. § 28-692.02(C), 1988 Ariz. Sess.
Laws, ch. 246, § 8; former A.R.S. § 28-697(E), (F), 1993 Ariz. Sess. Laws, ch. 223, § 8.

                                                  4
a prison sentence or the suspension of the imposition of sentence if probation is granted. See

A.R.S. § 13-603(B), (E) (sentencing court may suspend imposition of sentence and grant probation

or, if probation not granted, impose sentence of imprisonment); Ariz. R. Crim. P. 26.10(b)(3),

17 A.R.S. (sentencing court must pronounce terms of sentence or probation). As Division One

of this court has stated:

                       Probation and imprisonment in a Department of Corrections
               facility for a single offense are not compatible under the usual
               statutory scheme. That being the case, A.R.S. section 28-697(E)
               [the predecessor aggravated DUI statute] does not mesh well with
               the other statutory provisions that apply to sentencing and
               probation.

State v. Arzola, 183 Ariz. 112, 112, 901 P.2d 460, 460 (App. 1995).

¶7             Indeed, at oral argument, the state characterized the unique aggravated DUI

sentencing provision currently codified in § 28-1383(D) as a “strange animal.”          The state

contends, however, that the mandatory prison term is a sentence, arguing that, because Rule 26.1,

Ariz. R. Crim. P., 17 A.R.S., defines “sentence” as “the pronouncement by the court of the

penalty imposed upon the defendant after a judgment of guilt,” that definition should be used to

define the phrase “sentence of imprisonment” in Rule 7.2(b).3 We agree that the mandatory prison

term is a penalty. The legislature’s intent in prescribing mandatory prison time for aggravated

DUI offenders was to deter “‘persons from driving while affected by alcohol by providing for

penalties that are commensurate with the seriousness of this offense.’” State v. Gandara, 174



       3
         In support of its contention that the mandatory, four-month imprisonment under § 28-
1383(D) constitutes a “sentence,” the state also pointed out at oral argument that § 28-1383(H)(1)
refers to “a person sentenced pursuant to” § 28-1383(D). (Emphasis added.) For the reasons
noted below, however, we do not find that word choice controlling.

                                                5
Ariz. 105, 107, 847 P.2d 606, 608 (App. 1992), quoting State v. Benally, 137 Ariz. 253, 255,

669 P.2d 1030, 1032 (App. 1983); see 1982 Ariz. Sess. Laws, ch. 234, §§ 1, 9.

¶8             We are less persuaded by the state’s assertion that the intent of the mandatory

imprisonment provision was to “stop the carnage” by “remov[ing] . . . drunk[en] drivers from the

road as soon as possible.” If that were true, the legislature could have made probation absolutely

unavailable for this crime, as it has, for example, for sexual assault. See A.R.S. § 13-1406(B).

If the legislature had done so, of course, there would be no question that a person convicted of

aggravated DUI must be taken into custody immediately upon return of a guilty verdict unless one

of the other exceptions in Rule 7.2(b)(1) were established. The legislature also could have

expressly required that a defendant be taken immediately into custody when a jury returns a guilty

verdict for aggravated DUI. But the legislature did not do so.

¶9             In addition, we note that the legislature has made probation available for first-time

felons convicted of other crimes that, like aggravated DUI, involve behavior that creates a risk of

serious harm to other people.4 Rule 7.2(b) permits the possibility of presentence release in those

cases. We also note that the state’s position here is inconsistent with the actions it has taken in

this aggravated DUI case, in which it agreed to recommend probation for Henderson if she


       4
        See, e.g., A.R.S. §§ 13-1201 (endangerment); 13-1204(A)(11) (aggravated assault causing
temporary but substantial disfigurement or bodily impairment); 13-1507 (residential burglary
without a weapon); 13-3408(C) (first-time sale or importation of narcotic drugs); 28-622.01
(felony flight from pursuing law enforcement vehicle); see also A.R.S. §§ 13-604(F); 13-901;
State v. George, 413 Ariz. Adv. Rep. 3, ¶8 (Ct. App. Nov. 26, 2003) (in absence of other
sentencing enhancements, defendant whose aggravated assault under § 13-1204(A)(11) resulted
in temporary but substantial disfigurement, temporary but substantial loss or impairment of any
body organ or part, or fracture of any body part may be placed on probation); State v. Womack,
174 Ariz. 108, 847 P.2d 609 (App. 1992) (describing hazardous circumstances encompassed and
prohibited by § 28-622.01, flight from a pursuing law enforcement vehicle).

                                                 6
accepted the proffered plea agreement. And, at oral argument, we learned that Henderson was

released on bond for over one year pending a trial that was delayed at least in part to continuances

requested by and granted to the state.

¶10            Henderson, in contrast, points to A.R.S. § 13-701(A), which provides in part that

“[a] sentence of imprisonment for a felony shall be a definite term of years.” She contends the

mandatory four months’ imprisonment under § 28-1383(D) is not a “sentence of imprisonment”

as defined in § 13-701 because the range of imprisonment for a class four felony under that statute

is one to 3.75 years. See A.R.S. §§ 13-702(A), 13-702.01(A), (B). She argues that, because a

trial court can only grant probation by suspending the imposition of sentence, see § 13-603(B),

a defendant who receives probation is therefore never “sentenced,” and the mandatory prison term

is only a condition of probation. Henderson accurately cites several cases that describe the

mandatory term of incarceration following a conviction for aggravated DUI as a condition of

probation. See State v. Fragozo, 197 Ariz. 220, ¶4, 3 P.3d 1140, ¶4 (App. 2000); State v.

Sanchez, 191 Ariz. 418, 420, 956 P.2d 1240, 1242 (App. 1997); Arzola, 183 Ariz. at 112, 901

P.2d at 460; Benally, 137 Ariz. at 256, 669 P.2d at 1033.

¶11            Our review of these cases reveals that the Benally court described the mandatory

prison term as a condition of probation because the predecessor statute to § 28-1383(D) at issue

in that case, former A.R.S. § 28-692.02(A), provided that the “judge shall not grant probation . . .

except on the condition that the person serve not less than six months in prison.” Benally, 137

Ariz. at 254, 669 P.2d at 1031 (emphasis added). However, that language was deleted from the

subsequent version of the statute, former A.R.S. § 28-697, and replaced in 1990 with “a person

. . . is not eligible for probation . . . until the person has served not less than six months in

                                                 7
prison.” 1990 Ariz. Sess. Laws, ch. 375, § 10, effective June 28, 1990. Since then, the

mandatory prison provision has contained essentially identical “not eligible . . . until” language

throughout the numerous revisions and renumberings of the DUI statutes.

¶12            Noting this statutory change, the state makes the facially persuasive argument that

the mandatory prison term cannot be a condition of probation because the plain language of § 28-

1383(D) provides that the prison term must be served before the defendant is even eligible for

probation. Nonetheless, almost without exception, our appellate courts have expressly or

implicitly approved trial courts’ ordering the mandatory term of incarceration in an aggravated

DUI case to be served as a condition or term of probation, despite the post-June 28, 1990,

language that appears to make that impossible. See Fragozo; State v. Nihiser, 191 Ariz. 199, 204,

953 P.2d 1252, 1257 (App. 1997); Sanchez ; Arzola; Gandara, 174 Ariz. at 107, 847 P.2d at 608;

but see Gibbons v. Superior Court, 178 Ariz. 362, 364, 873 P.2d 700, 702 (App. 1994)

(describing the mandatory, four-month prison term under a predecessor statute as a “sentence”).

¶13            We need not decide the propriety of treating the mandatory prison term as a

condition of probation, which, we suspect, has been a legal fiction employed to fit the mandatory

prison term into an existing felony sentencing structure that is otherwise ill-suited to accommodate

such a “strange animal.”5 See § 13-603(B), (E); Ariz. R. Crim. P. 26.10(b)(3). Rather, we

address the narrower question of whether the mandatory prison term, regardless of how it is




       5
        At oral argument, the state conceded that, at Henderson’s sentencing hearing, it had not
objected when the respondent judge granted probation to Henderson before she had served the
mandatory prison term.

                                                 8
semantically labeled, triggers mandatory, immediate incarceration after conviction pursuant to

Rule 7.2(b)(1). On that issue, we find the history of the rule instructive.

¶14            Formerly, Rule 7.2 made presentence release unavailable to any defendant

“convicted of any offense for which he has or may suffer a sentence of imprisonment.” (Emphasis

added.) See 163 Ariz. XLIV (1990). In State v. Superior Court, 138 Ariz. 4, 6-7, 672 P.2d 956,

958-59 (App. 1983), this court noted that it was anomalous to mandate custody in jail pending

sentencing for those likely to be granted probation and suggested that “the rule should be changed

to give the trial court discretion to continue the defendant on bond if there is a reasonable

probability that the defendant will be placed on probation.”6 In 1989, a Maricopa County Superior

Court judge petitioned our supreme court to change the rule, expressing the same sentiment.

Petition to Amend Ariz. R. Crim. P. 7.2(b) (Ariz. Sup. Ct. filed Oct. 11, 1989). In March 1990,

the supreme court amended Rule 7.2(b), effective June 1, 1990, changing the phrase that precedes

“suffer a sentence of imprisonment” by deleting “has or may” and adding “will in all reasonable

probability.” 163 Ariz. XLIV.

¶15            We conclude that the supreme court’s intent in changing the rule was to differentiate

between those found guilty who will probably be granted probation from those who probably will

not and to give a trial court discretion to release the former class of convicted persons pending



       6
        As the state points out, in State v. Superior Court, 138 Ariz. 4, 6, 672 P.2d 956, 958
(App. 1983), this court stated that “[t]he purpose of [former] Rule 7.2(b) is to prevent a defendant
who is waiting to be sentenced[,] and who is surely going to prison, from committing further
crimes during the interval.” Current Rule 7.2(b)(1) has that same underlying purpose for
convicted felons who probably will be sentenced to prison under Arizona’s felony sentencing
scheme. But that case neither involved a DUI offense nor the “strange animal” currently codified
in § 28-1383(D).

                                                 9
sentencing in appropriate cases. The rule’s reference to imprisonment, not probation, can be

explained by the history outlined above.       It was formerly written exclusively in terms of

imprisonment, and the rule was changed economically by deleting and adding a minimum of

words.

¶16            We also find it significant that, at the time of the rule change, the mandatory prison

time for those convicted of aggravated DUI was expressly denoted a condition of probation. See

Benally, 137 Ariz. at 254, 669 P.2d at 1031, discussing former § 28-692.02(A). At the time the

current language of Rule 7.2(b)(1) became effective, persons convicted of aggravated DUI who

probably would be granted probation would have been eligible for presentence release, the

mandatory term of imprisonment to be served as a condition of probation notwithstanding. We

have no reason to believe that, in rewording the mandatory prison term from a condition of

probation to the “strange animal” it is today, the 1990 legislature was reacting to the change in

Rule 7.2(b). That change to the aggravated DUI statute was part of a comprehensive revamping

and renumbering of the DUI and DUI-related laws of which the recharacterization of the prison

term was relatively insignificant. 1990 Ariz. Sess. Laws, ch. 375, §§ 1-21.

¶17            We do not suggest that presentence release should necessarily be granted to persons

found guilty of aggravated DUI for whom probation is likely. Rather, we merely hold that any

such decision is properly left to the trial court, to whom the legislature has given the discretion

to decide, based on the facts of the case and the individual defendant, whether to suspend the

imposition of sentence and grant probation. Accordingly, we find that the respondent judge did

not exceed her legal authority but, rather, acted within her discretion in permitting Henderson to



                                                10
remain released on bond pending sentencing following the jury’s verdict that she was guilty of

aggravated DUI.

¶18           Although we accept jurisdiction, we deny relief.



                                              _______________________________________
                                              JOHN PELANDER, Presiding Judge

CONCURRING:



_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
PETER J. ECKERSTROM, Judge




                                             11
