                         IN THE COURT OF APPEALS                   FILED BY CLERK
                             STATE OF ARIZONA
                               DIVISION TWO                            JUL -1 2011
                                                                        COURT OF APPEALS
                                                                          DIVISION TWO

ALEX PAUL RASMUSSEN,                          )
                                              )
                                Petitioner,   )
                                              )
             v.                               )   2 CA-SA 2011-0043
                                              )   DEPARTMENT B
HON. CLARK MUNGER, Judge of                   )
the Superior Court of the State of Arizona,   )   OPINION
in and for the County of Pima,                )
                                              )
                              Respondent,     )
                                              )
             and                              )
                                              )
THE STATE OF ARIZONA,                         )
                                              )
                    Real Party in Interest.   )
                                              )


                          SPECIAL ACTION PROCEEDING

                          Pima County Cause No. CR20084770

                   JURISDICTION ACCEPTED; RELIEF GRANTED


Robert J. Hirsh, Pima County Public Defender
 By David J. Euchner                                                         Tucson
                                                             Attorneys for Petitioner

Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                            Tucson
                                                  Attorneys for Real Party in Interest


E C K E R S T R O M, Judge.
¶1            Alex Rasmussen petitions this court for special action review of the

respondent judge‟s order denying his motion seeking release from jail. For the reasons

that follow, we accept jurisdiction and grant relief.

¶2            Rasmussen pled guilty to two counts of arson of an occupied structure. The

respondent judge suspended imposition of sentence and placed Rasmussen on

consecutive, seven-year terms of probation.       The respondent also ordered that, as a

condition of probation, Rasmussen serve two consecutive, one-year jail terms. At the end

of his first jail term, Rasmussen filed a motion seeking release, asserting that the statutes

governing probation did not permit a jail term exceeding one year, or, in the alternative,

that his second jail term could not begin until he completed his first seven-year probation

term. The respondent denied Rasmussen‟s motion, determining that consecutive jail

terms were permitted by A.R.S. § 13-901(F),1 relying on State v. Richardson, 172 Ariz.

43, 833 P.2d 714 (App. 1992).

¶3            “Whether to accept special action jurisdiction is for this court to decide in

the exercise of our discretion.” Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257,

1260 (App. 2010). We accept jurisdiction because the issue presented here is a purely

legal question not addressed fully by existing case law and because Rasmussen has no

remedy by appeal. See Ariz. R. P. Spec. Actions 1(a); State ex rel. Romley v. Martin, 203

Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) (“Special action jurisdiction is appropriate

in matters of statewide importance, issues of first impression, cases involving purely legal

       1
         We have cited the current versions of the statutes applicable to this opinion, as
their relevant provisions have not changed since Rasmussen committed his offenses.

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questions, or issues that are likely to arise again.”), aff’d, 205 Ariz. 279, 69 P.3d 1000

(2003); see also A.R.S. § 13-4033 (enumerating and limiting appealable orders); State v.

Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923 (App. 1996) (denial of motion to modify

probation conditions not appealable). Relief is appropriate if the respondent judge has

abused his discretion by committing an error of law or proceeded in excess of his legal

authority. See Ariz. R. P. Spec. Actions 3; Potter, 225 Ariz. 495, ¶¶ 5-6, 240 P.3d at

1259-60.

¶4            The issue before us is a question of statutory construction, a legal issue we

review de novo. State v. Leonardo, 226 Ariz. 593, ¶ 5, 250 P.3d 1222, 1223 (App. 2011).

In interpreting a statute, our goal is to determine the intent of the legislature, and the

statute‟s language is the best indicator of that intent. Zamora v. Reinstein, 185 Ariz. 272,

275, 915 P.2d 1227, 1230 (1996). Thus, if that language is unambiguous, we apply the

language as written, without resorting to other rules of statutory construction. State v.

Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997). If the language is ambiguous, we

examine the context of the statute and its historical background, subject matter, effects,

consequences, and purposes to determine the legislature‟s intent. Leonardo, 226 Ariz.

593, ¶ 7, 250 P.3d at 1224.

¶5            Section 13-901(F), A.R.S., provides that a trial court may impose a jail

term as a condition of probation. The court has broad discretion in imposing such a term

and may require it be served “within the period of probation” at any “time or intervals,

consecutive or nonconsecutive, . . . as long as the period actually spent in confinement

does not exceed one year or the maximum period of imprisonment permitted under

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chapter 7 of this title, whichever is the shorter.” Id. Rasmussen first asserts the phrase

“period of probation” is unclear, and, in the case of consecutive probation terms, could

either mean the individual probation terms imposed or a combined, total term of

probation. Thus, he posits, if the second definition is correct, although a trial court may

impose consecutive probation terms, the total jail term imposed as a condition of those

terms cannot exceed one year.

¶6            We find no textual support in the statute for Rasmussen‟s position, and he

identifies none. Section 13-901(A) enables our courts to place a person on probation for

“an offense,” and § 13-901(B) states that the “period of probation” is determined by

A.R.S. § 13-902, which identifies maximum probation terms based on the classification

of individual offenses. The statutory scheme in no way contemplates a blending or

merging of separate “period[s] of probation” imposed for separate offenses into a single

“period of probation” for the purpose of § 13-901(F). Cf. State v. Bowsher, 225 Ariz.

586, ¶ 21, 242 P.3d 1055, 1059 (2010) (consecutive probation terms reflect “distinct

sanction for each count”). Division One of this court previously determined as much in

Richardson, affirming a trial court‟s decision to impose consecutive, one-year jail terms

when imposing two concurrent probation terms. 172 Ariz. at 44, 833 P.2d at 715. The

court noted the trial court had not “merg[ed] the two convictions together to make one

grant of probation,” but instead had sentenced Richardson separately for each offense.

Id. at 44-45, 833 P.2d at 715-16.

¶7            Rasmussen nonetheless contends Richardson was wrongly decided.

Although that decision was issued by Division One of this court, both divisions

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“constitute a single court.”    A.R.S. § 12-120(A).      Thus, we will not depart from

Richardson “„unless we are convinced [it is] based upon clearly erroneous principles, or

conditions have changed so as to render [it] inapplicable.‟” Scappaticci v. Sw. Sav. &

Loan Ass’n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983), quoting Castillo v. Indus.

Comm’n, 21 Ariz. App. 465, 471, 520 P.2d 1142, 1148 (1974). Rasmussen first asserts

Richardson was wrongly decided because it “runs counter to the language of” § 13-

901(F). He reasons that, because the statute uses the phrase “period of probation” and

“does not say „one year per offense,‟” the legislature clearly intended a maximum jail

term of one year, irrespective of the number of convictions. But, as we have explained,

the phrase “period of probation” refers to the term of probation imposed for each

individual offense, not a combined term.

¶8            Rasmussen next asserts Richardson is contrary to public policy. He posits,

without support, that the one-year maximum jail term provided in § 13-901(F) reflects a

legislative policy decision that a jail term exceeding one year undermines the

rehabilitative role that probation is meant to play. But, because the statutory language is

unambiguous, we need not consider other rules of statutory construction, including the

legislature‟s public policy goals. See Getz, 189 Ariz. at 563, 944 P.2d at 505. Further,

although Rasmussen‟s interpretation of the one-year maximum‟s purpose is plausible,

that maximum is at least equally likely to reflect the legislature‟s recognition that, as a

practical matter, the typical jail—as opposed to a Department of Corrections facility—is

not intended to accommodate long-term inmates. We find nothing in the legislative

history or materials supporting Rasmussen‟s public policy argument. And, in any event,

                                            5
Rasmussen‟s speculation about the purpose of the one-year limit is not sufficient for us to

conclude that Richardson was based on clearly erroneous principles. See Scappaticci,

135 Ariz. at 461, 662 P.2d at 136. Moreover, Rasmussen‟s proposed interpretation would

create an anomaly, recognized in Richardson, when a defendant placed on probation

contemporaneously for two unrelated offenses would be exposed to a lesser jail term than

a defendant placed on probation at separate times for two unrelated offenses. 172 Ariz. at

45-46, 833 P.2d at 716-17; see also State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530

(App. 1996) (in construing statute, appellate court presumes legislature did not intend

absurd result and we attempt to avoid such consequence).

¶9            Rasmussen also suggests Richardson was wrongly decided because

consecutive terms of probation were not permitted until our supreme court‟s recent

decision in Bowsher. He is mistaken; our supreme court‟s decision in Bowsher makes it

plain that, although prior dicta suggested otherwise, consecutive probation terms have

been permitted in Arizona since at least 1978. 225 Ariz. 586, ¶¶ 17-20, 23, 242 P.3d at

1058-59. The Richardson decision cannot reasonably be faulted for disregarding dicta

addressing a different, albeit related, question, particularly when that dicta has since been

rejected as incorrect.

¶10           We agree with Rasmussen, however, that the respondent judge was not

permitted to require that his jail terms be served consecutively.        Section 13-901(F)

permits the trial court to determine the time and intervals of the jail term only “within the

period of probation.”     By ordering Rasmussen to serve consecutive jail terms, the

respondent effectively ordered Rasmussen to serve a second jail term, a condition of his

                                             6
second term of probation, during the first term of probation the court had imposed.

Based on the statute‟s plain language, the court could require service of a second one-

year jail term only during Rasmussen‟s second probation term.

¶11           We disagree with the state‟s assertion that Richardson supports a contrary

reading. The trial court in Richardson imposed concurrent probation terms. 172 Ariz. at

44, 833 P.2d at 715. The Richardson court determined that a trial court‟s authority under

§ 13-901(F) to determine the time and interval of associated jail terms permits it to order

the terms be served consecutively because both would occur within their respective

probation terms—therefore comporting with the statute‟s language requiring the jail

terms to occur “within the period of probation.” 172 Ariz. at 45-46, 833 P.2d at 716-17.

That reasoning is inapplicable to the consecutive jail terms imposed here.

¶12           For the reasons stated, we hold that when a trial court imposes consecutive

periods of probation, each of which includes a term of incarceration, each jail term must

be served within the probation period imposed for each respective offense.2            And,


       2
        Because we have determined the statute‟s plain language requires that any jail
time imposed pursuant to a term of probation must be served during that probation term,
we do not address the public policy merits of so limiting the trial court‟s discretion. We
note that, under the current statutory language, the imposition of jail terms in each of the
consecutive probationary periods could have the salutary effect of motivating
probationers to perform well during the first probation period so that they could plausibly
seek a modification of the terms of the second probation period, including vacating or
suspending the second jail term. See Ariz. R. Crim. P. 27.3 (authorizing probationers to
request court “to modify . . . any condition” of probation). On the other hand, the current
language somewhat reduces the trial court‟s range of options in tailoring a sentence to
address the unique features of the case and defendant before it. But the state has not
argued that our interpretation of the plain language would lead to an absurd result. “An
absurd result is one „so irrational, unnatural, or inconvenient that it cannot be supposed to
have been within the intention of persons with ordinary intelligence and discretion.‟”
                                             7
because Rasmussen has already served his one-year jail term for his first probation

period, he must be released from confinement as to the second.           Accordingly, the

respondent abused his discretion by denying Rasmussen‟s motion for release.            We

therefore vacate the respondent judge‟s order denying Rasmussen‟s motion and remand

the case to the respondent to modify the conditions of Rasmussen‟s probation in

conformity with this opinion.

                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Judge

CONCURRING:


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, ¶ 12, 159 P.3d 547, 550
(App. 2006), quoting State v. Estrada, 201 Ariz. 247, ¶ 17, 34 P.3d 356, 360 (2001).
When, as here, the plain language of the pertinent statute expresses a legislative intent
that is not absurd, it is for the legislature, not this court, to debate the wisdom of that
legislation.

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