                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          ABELARDO CHAPARRO
                               Plaintiff,

                                     v.

                             DAVID C. SHINN,
                               Defendant.

                           No. CV-19-0205-CQ
                           Filed March 5, 2020

                       Certified Question from the
          United States District Court for the District of Arizona
                   No. CV 19-00650-PHX-DWL (MHB)
                        QUESTION ANSWERED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Oramel H. Skinner, Solicitor
General, Drew C. Ensign (argued), Deputy Solicitor General, Rusty D.
Crandell, Deputy Solicitor General, Brunn (Beau) W. Roysden III, Division
Chief Appeals & Constitutional Litigation Division, Robert J. Makar,
Anthony R. Napolitano, Assistant Attorneys General, Phoenix, Attorneys
for Defendant David C. Shinn, Director, Arizona Department of Corrections

Lindsay Herf, Robert J. Dormady, Katherine Puzauskas, Arizona Justice
Project, Phoenix; Howard R. Cabot, Randal B. McDonald (argued), Austin
C. Yost, Perkins Coie LLP, Phoenix, Attorneys for Abelardo Chaparro
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court


JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, GOULD, LOPEZ, and PELANDER (RETIRED) * joined.

JUSTICE BEENE, Opinion of the Court:

¶1             The United States District Court for the District of Arizona
certified the following question to this Court: Whether, in light of A.R.S.
§ 41-1604.09, a person convicted of first degree murder following a jury trial
for actions that took place on or after January 1, 1994, is parole eligible after
25 years when the sentencing order states that he is sentenced to “life
without possibility of parole for 25 years.”

¶2             We hold that a sentence imposing “life without possibility of
parole for 25 years” means the convicted defendant is eligible for parole
after serving 25 years’ imprisonment despite § 41-1604.09’s prohibition of
parole for persons convicted of offenses occurring on or after January 1,
1994. Additionally, we hold that a court lacks jurisdiction to correct an
illegally lenient sentence absent timely correction or appeal. State v.
Dawson, 164 Ariz. 278, 286 (1990).

                              BACKGROUND

¶3             In 1993, the Arizona Legislature amended § 41-1604.09 to
eliminate parole for all offenses committed on or after January 1, 1994. On
July 25, 1996, a jury found Abelardo Chaparro guilty of first degree murder
committed on May 21, 1995. At the sentencing hearing and in the ensuing
minute entry, the trial court sentenced Chaparro to prison for “the rest of
[his] natural life without the possibility of parole for 25 years, followed by
a consecutive term of community supervision equal to one day for every
seven days of sentence imposed.” On December 6, 1996, however, the trial

*     Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
John Pelander, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.




                                       2
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court
court issued a nunc pro tunc order (“December Order”) clarifying that
Chaparro’s sentence was “Life without possibility of parole for 25 years.”
The December Order did not amend the term of community supervision.
The State did not appeal.

¶4           In April 2017, the Arizona Department of Corrections
(“ADOC”) informed Chaparro he would not be parole eligible and that his
only avenue for release would be to apply for commutation of his prison
sentence after serving 25 years. Subsequently, Chaparro repeatedly
requested parole eligibility with ADOC officials, who denied those
requests. In February 2018, Chaparro received a letter from ADOC
informing him that he “would not be parole certified.”

¶5           Chaparro has served 24 years of his sentence. Accordingly, if
Chaparro is parole eligible, ADOC would have been required under § 41-
1604.09(D) to initiate parole proceedings in January 2020. Asserting his
entitlement to parole eligibility after serving 25 years, Chaparro sued
ADOC in federal district court under 42 U.S.C. § 1983. The State filed a
Motion for Certification or Dismissal in the district court to determine if
Chaparro’s sentence entitles him to parole eligibility. The district court
granted the State’s certification request and issued a Certification Order.

¶6          We have jurisdiction pursuant to article 6, section 5(6) of the
Arizona Constitution and A.R.S. § 12-1861.

                               DISCUSSION

 ¶7            The trial court sentenced Chaparro to “[l]ife without
possibility of parole for 25 years.” The State contends this sentence does
not make Chaparro eligible for parole. It argues the sentence is ambiguous
because it is unclear as to what happens after Chaparro serves 25 years of
the sentence and whether “parole” could mean another form of release.
Finally, the State asserts that even if the sentence does provide for parole, a
court cannot enforce the illegally lenient sentence. Chaparro argues his
illegally lenient parole eligible sentence is unambiguous and final under
Arizona law.




                                      3
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court
                                      A.

¶8            We first address whether Chaparro’s sentence provides the
possibility of parole. We conclude that although the trial court’s use of
“parole” and “community supervision” is ambiguous, the December Order
and the sentencing transcript demonstrate that the trial court intended for
Chaparro to be eligible for parole after 25 years’ imprisonment. See State v.
Ovante, 231 Ariz. 180, 188 ¶¶ 38–39 (2013) (stating courts interpret a
criminal sentence with the goal of giving effect to the sentencing court’s
intent).

¶9            Generally, language is deemed ambiguous “when it is open
to multiple reasonable interpretations.” Glazer v. State, 244 Ariz. 612, 614
¶ 12 (2018). If the language is subject to more than one reasonable
interpretation, we will resolve the ambiguity by examining other factors,
including the surrounding circumstances. See Ryan v. Napier, 245 Ariz. 54,
64 ¶ 41 (2018).

¶10           Chaparro’s sentence is ambiguous because it refers both to
“parole,” which was abrogated before the conduct that resulted in his
conviction, and to “community supervision,” which applied to all
qualifying offenses committed on or after January 1, 1994. See § 41-1604.09;
compare A.R.S. § 41-1604.07 (1993), with § 41-1604.07 (1994). Because the trial
court’s sentencing language is ambiguous, we look to the surrounding
circumstances. See Ryan, 245 Ariz. at 64 ¶ 41.

¶11            The trial court’s December Order illustrates that it intended
Chaparro to have the possibility of parole after 25 years. Chaparro’s
original sentence stated “natural life,” which would contradict the
“possibility of parole.” See A.R.S. § 13-703(A) (1993) (“An order sentencing
the defendant to natural life is not subject to commutation or parole, work
furlough or work release.”). But the December Order removed “natural,”
clarifying that Chaparro’s sentence was “[l]ife without possibility of parole
for 25 years.” If the reference to “parole” was also incorrect or unintended,
the trial court could have similarly corrected that aspect of Chaparro’s
sentence. Because it did not, the only reasonable inference is that the trial
court intended “[l]ife without possibility of parole for 25 years” to indicate
that after 25 years Chaparro would be eligible for parole. See State v. Cruz-




                                      4
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court
Mata, 138 Ariz. 370, 374, 376 (1983) (finding before 1994 that a “life sentence
without possibility of parole for 25 years” meant that the “minimum term
of imprisonment is 25 years [minus credit for pre-sentence custody] before
he is eligible for parole”).

 ¶12          Similarly, the transcript of the sentencing hearing clarifies
that the trial court believed parole was an available sentencing option
regardless of the reference to community supervision. During the
sentencing hearing the trial court explained the sentencing options:

       Do you understand one of them is death, one of them is life
       imprisonment for the rest of your natural life, and the other
       one is life imprisonment without possibility of parole for 25
       years? . . . Those are the only three things I can do.

The trial court did not mention release or commutation as an option.
Therefore, although community supervision does not apply to a parole
eligible inmate, the sentencing hearing and December Order manifest the
trial court’s intent for Chaparro to be parole eligible.

¶13           We are also unpersuaded by the State’s argument that
“parole” is shorthand for “release” in the form of commutation. At the time
of sentencing, Arizona laws differentiated the terms “parole” and
“commutation.” See § 13-703(A) (1993) (“An order sentencing the
defendant to natural life is not subject to commutation or parole . . . .”).
Section 13-703(A) also specified other types of release. Id. (listing work
furlough and work release). Nothing indicates the trial court intended its
repeated references to “parole” to mean “commutation” or any alternate
type of “release.”

¶14           Dictionary definitions, Arizona law, and federal law all
distinguish parole and other forms of release like commutation. “Absent
statutory definitions, courts apply common meanings and may look to
dictionaries.” State v. Pena, 235 Ariz. 277, 279 ¶ 6 (2014) (internal citations
omitted). “Parole” has a distinct meaning from “commutation” in the
dictionary. Compare Parole, Black’s Law Dictionary (11th ed. 2019)
(“[C]onditional release of a prisoner from imprisonment before the full
sentence has been served.”), with Commutation, Black’s Law Dictionary




                                      5
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court
(11th ed. 2019) (“[E]xecutive’s substitution in a particular case of a less
severe punishment for a more severe one that has already been judicially
imposed on the defendant.”).

¶15            Similarly, Arizona statutory law distinguishes parole and
forms of executive clemency like commutation. Pursuant to A.R.S. § 31-
412(A), an inmate certified as parole eligible must only show “a substantial
probability that the applicant will remain at liberty without violating the
law and that the release is in the best interests of the state.” But an inmate
applying for commutation must show “by clear and convincing evidence
that the sentence imposed is clearly excessive . . . and that there is a
substantial probability that when released the offender will conform the
offender’s conduct to the requirements of the law.” A.R.S. § 31-402(C)(2).
The Board of Executive Clemency may grant parole by a majority or
unanimous vote, whereas it may only recommend commutation to the
Governor for approval. §§ 31-402(A), -412(C). Individuals not granted
parole are automatically re-certified within six months to a year, but an
inmate denied commutation typically must wait five to ten years before
reapplying. A.R.S. §§ 31-403, 41-1604.09(G). These statutory differences
clarify that parole is not a form of executive clemency.

¶16           Finally, the United States Supreme Court has rejected the idea
that parole is the same as executive clemency. See Lynch v. Arizona, 136 S.
Ct. 1818, 1819 (2016) (stating the possibility of clemency does not diminish
a capital defendant’s right to inform a jury of his parole ineligibility); Solem
v. Helm, 463 U.S. 277, 300–01 (1983) (“As a matter of law, parole and
commutation are different concepts . . . . Parole is a regular part of the
rehabilitative process. . . . Commutation, on the other hand, is an ad hoc
exercise of executive clemency.”).

¶17           In sum, although the trial court’s use of “parole” and
“community supervision” was ambiguous, the sentencing hearing and
December Order clarify the trial court’s intent to provide the opportunity
for parole. And because the meaning of “parole” is not ambiguous or
synonymous with other forms of release, Chaparro is eligible for parole
after serving 25 years.




                                       6
             ABELARDO CHAPARRO V. DAVID C. SHINN
                      Opinion of the Court
                                     B.

¶18           The parties agree that Chaparro’s sentence, as interpreted
above to include parole eligibility after he has served 25 years, is illegally
lenient because it violates § 41-1604.09, as amended in 1993. However, the
State argues that a court cannot enforce an illegally lenient sentence. We
find the sentence is final and enforceable.

¶19             Illegally lenient sentences are final under Arizona law absent
timely appeal or post-judgment motion. See Dawson, 164 Ariz. at 283–84;
Ariz. R. Crim. P. 24.3 (providing that the trial court may correct an unlawful
sentence upon a timely motion). Here, the State did not appeal Chaparro’s
sentence pursuant to A.R.S. § 13-4032, which allows the state to appeal “[a]
sentence on the grounds that it is illegal.” And “[t]he only statutory power
we are afforded to increase an illegal sentence to conform to the judgment
of conviction is predicated ‘[u]pon an appeal by the state.’” Dawson, 164
Ariz. at 284 (quoting A.R.S. § 13-4038). Absent an appeal by the state, this
Court does not have jurisdiction to correct sentencing errors alleged by the
state. Id. at 286.

¶20           The State attempts to distinguish the illegally lenient sentence
in Dawson, which allowed for parole eligibility sooner than statutorily
permitted, from Chaparro’s illegally lenient sentence. It claims the trial
court violated separation of powers by creating parole eligibility for
Chaparro—a purely legislative function—and that the “court is utterly
without power to make a defendant parole eligible where statutory law
prohibits it.” See State v. Miranda, 200 Ariz. 67, 69 ¶ 5 (2001) (“Defining
crimes and fixing punishments are functions of the legislature.”). But the
State recognizes in its brief that “[m]ere misapplication of the governing
law” does not raise separation of powers concerns. That is precisely what
occurred both here and in Dawson.

¶21           Rather than perform a legislative function, the trial court
misapplied the law when it conferred parole eligibility. Therefore, the trial
court did not violate separation of powers by including, albeit incorrectly,
parole eligibility in its sentencing order, nor does this Court do so by
upholding that sentence, which the State failed to appeal. Rather, as in
Dawson, absent a timely appeal, the illegally lenient sentence must stand.




                                      7
              ABELARDO CHAPARRO V. DAVID C. SHINN
                       Opinion of the Court
See 164 Ariz. at 280 (“Unless an appellate court has the constitutional or
statutory power to act to correct such an error, its refusal to act cannot
violate the constitutional doctrine of separation of powers.”).

¶22            We also reject the State’s argument that the sentence is subject
to collateral challenge because it is void. See Walker v. Davies, 113 Ariz. 233,
235 (1976) (stating a judgment that is “void upon its face” may be
collaterally attacked at any time). Here, because the trial court had subject
matter jurisdiction, the “order is voidable, rather than void.” See Ariz.
Const. art. 6, § 14; see also State v. Bryant, 219 Ariz. 514, 518 ¶ 14 (App. 2008)
(citation omitted). When “the trial court has jurisdiction over the subject
matter and parties,” the judgment, “even if voidable and erroneous, [can]
only be modified on appeal or by proper and timely post-judgment
motion.” Bryant, 219 Ariz. at 517–18 ¶¶ 13, 15. Therefore, because the State
failed to timely appeal, this Court does not have subject matter jurisdiction
to correct the sentence.

                                CONCLUSION

¶23           For the foregoing reasons, we answer the district court’s
certified question as follows: Regardless of § 41-1604.09, Chaparro is eligible
for parole after serving 25 years pursuant to his sentence, and his illegally
lenient sentence is final under Arizona law.




                                        8
