                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                JACK BUCHANAN SCALPH, Appellant.

                         No. 1 CA-CR 17-0525
                           FILED 7-19-2018


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

                             AFFIRMED


                              COUNSEL

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




                              OPINION

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

W I N T H R O P, Judge:

              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we have addressed Scalph’s other arguments in a separate, unpublished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).

              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.

               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 HISTORY2

             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


1     We cite the current versions of all applicable statutes as no revisions
material to this opinion have occurred.

2      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Scalph. See State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 3 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).
                                     1
                            STATE v. SCALPH
                            Opinion of the Court

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.

              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

               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).

               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


3      Four weapons charges that were based on Scalph’s status as a
prohibited possessor were severed prior to trial. After the jury convicted
Scalph, the State dismissed those other four weapons charges. See A.R.S.
§ 13-3102(A)(4).
                                      2
                             STATE v. SCALPH
                             Opinion of the Court

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. Hansen, 215 Ariz.
287, 289, ¶ 7 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser,
214 Ariz. 293, 296, ¶ 8 (2007)).

             The legislature has mandated flat-time prison sentences for
convictions of possession of methamphetamine for sale:

       A person who is convicted of [possession of dangerous drugs
       for sale] involving methamphetamine is not eligible for
       suspension of sentence, probation, pardon or release from
       confinement on any basis until the person has served the
       sentence imposed by the court, the person is eligible for
       release pursuant to § 41-1604.07 or the sentence is commuted.

A.R.S. § 13-3407(F). Generally, a person convicted of a Class 2 through a
Class 6 felony is subject to an enhanced sentence as a repetitive offender
under A.R.S. § 13-703 if the court finds the person has at least one historical
prior felony conviction.

              In 1996, our supreme court construed A.R.S. § 13-703’s
predecessor statute, A.R.S. § 13-604, as providing “an exclusive sentencing
scheme” for the repetitive-offender defendant convicted of possession of
narcotic drugs for sale and sale of narcotic drugs. State v. Tarango, 185 Ariz.
208 (1996); see 2008 Ariz. Sess. Laws, ch. 301, §§ 15, 27 (2nd Reg. Sess.)
(replacing § 13-604 with § 13-703). Although the substantive statute
required flat-time sentences—as does the one here—the Court found the
following language in the repetitive offender statute dispositive:

       The penalties prescribed by this section shall be substituted
       for the penalties otherwise authorized by law if the previous
       convictions . . . [are] charged in the indictment or information
       and admitted or found by the trier of fact.

Tarango, 185 Ariz. at 209. Accordingly, because the State sought an
enhanced sentence under the repetitive offender statute, the Tarango court
reasoned that the release provisions in the substantive statute did not apply;
therefore, it determined the defendant was eligible for early release. Id. at
209, 212.




                                        3
                            STATE v. SCALPH
                            Opinion of the Court

              The following year, the legislature amended what is currently
A.R.S. § 13-703(N) by inserting immediately after the language cited in
Tarango, the following:

       The release provisions prescribed by this section shall not be
       substituted for any penalties required by the substantive
       offense or a provision of law that specifies a later release or
       completion of the sentence imposed before release.

1997 Ariz. Sess. Laws, ch. 34, § 1 (1st Reg. Sess.). The legislature also
expressly stated its intent to overrule Tarango. 1997 Ariz. Sess. Laws, ch. 34,
§ 3 (1st Reg. Sess.); see “Summary of Legislative Action,” 43rd Legislature,
142 (describing language added to statute as “[a]n emergency measure
overruling the 1996 Arizona Supreme Court decision of State v. Tarango by
allowing for enhanced flat-time prison sentences”).

               The language added by the legislature after Tarango plainly
prohibits a court from applying the early release provisions in A.R.S. § 13-
703 when sentencing a repetitive offender for a substantive offense that
specifies a later release or flat-time sentence. Because the jury convicted
Scalph of possession of methamphetamine for sale, A.R.S. § 13-3407(F)
required the court impose a flat-time sentence. Additionally, because
Scalph is a repetitive offender, the court did not err in also imposing an
enhanced sentence under A.R.S. § 13-703.

              Scalph argues that when the court imposed the sentence for
Count 1, the judge improperly considered a memorandum decision issued
by this Court, State v. Ochoa, 2 CA-CR 15-0190, 2016 WL 1601588 (Ariz. App.
Apr. 20, 2016) (mem. decision). Scalph argues the court should not have
considered Ochoa because State v. Diaz, 224 Ariz. 322 (2010), adequately
addressed the sentencing issue. See Ariz. R. Sup. Ct. 111(c)(1)(C)
(permitting citation to memorandum decisions “for persuasive value, but
only if it was issued on or after January 1, 2015; no opinion adequately
addresses the issue before the court; and the citation is not to a depublished
opinion or a depublished portion of an opinion”).

              In Ochoa, this Court addressed the identical sentencing issue
presented in this case, and, reasoning as we have here, came to the same
result. Ochoa, 2 CA-CR 15-0190, at *5-6, ¶¶ 20-23. Diaz, on the other hand,
did not address whether a trial court may impose a flat-time condition to a
sentence enhanced under A.R.S. § 13-703. Diaz construed what is now
A.R.S. § 13-3407(E) and § 13-703 and concluded that the trial court could
properly enhance a sentence for a methamphetamine offense under A.R.S.

                                      4
                            STATE v. SCALPH
                            Opinion of the Court

§ 13-703 when the prior convictions were not methamphetamine related.
224 Ariz. at 324, ¶¶ 11-13; compare A.R.S. § 13-709.03 (2010) to § 13-3407(E).
Because Ochoa was a memorandum decision issued after January 1, 2015,
and no Arizona published opinion squarely addressed the sentencing issue
faced by the trial court, the court’s consideration of Ochoa for its persuasive
value was not improper. Ariz. R. Sup. Ct. 111(c)(1)(C).

                               CONCLUSION

             For the foregoing reasons and those addressed in the
accompanying unpublished memorandum decision, we affirm Scalph’s
convictions and sentences.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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