                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                     v.

                     STEVEN WATSON, Appellant.

                         No. 1 CA-CR 18-0838
                          FILED 1-21-2020


          Appeal from the Superior Court in Maricopa County
                       No. CR2017-002189-001
              The Honorable Susanna C. Pineda, Judge

     CONVICTIONS AFFIRMED; SENTENCES VACATED AND
                      REMANDED


                              COUNSEL

Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. WATSON
                            Opinion of the Court



                                 OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.


M c M U R D I E, Judge:

¶1            Steven Watson appeals from his convictions and sentences for
one count of fraudulent schemes and artifices and seven counts of theft. We
affirm Watson’s convictions but hold: (1) the superior court imposed an
unlawful sentence under Arizona Revised Statutes (“A.R.S.”) section 13-116
by imposing a term of probation for Watson’s fraudulent schemes and
artifices conviction to be served consecutively to the sentences of
imprisonment for the theft convictions resulting from the scheme; and
(2) although probation is not generally considered a criminal sentence,
A.R.S. § 13-116 prohibits imposing a consecutive term of probation for one
offense and a term of imprisonment for another offense if they stem from
the same act. As a result, we vacate Watson’s sentences and remand for
resentencing.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             In the summer of 2014, Watson began working as an associate
financial advisor for BBVA Compass (“Compass”). Watson’s primary job
responsibility was to assist customers in opening and managing investment
accounts, including withdrawing funds from bank accounts and depositing
them into investment accounts. Watson was not authorized to withdraw
from or deposit funds into a customer’s bank account on his own. Instead,
he was required to get approval from a Compass bank teller or manager to
engage in any transaction involving a customer’s bank account. Contrary
to the bank’s policy, during the time Watson worked at Compass, tellers
and managers at the branches where Watson worked allowed financial
advisors to withdraw funds on a customer’s behalf without requiring the
customer to be physically present, or the advisor to show the customer’s
identification for the transaction. Based on this unauthorized practice, at the

1      We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Watson. State v. Burgess, 245
Ariz. 275, 277, ¶ 3 (App. 2018).



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                            Opinion of the Court

request of a financial advisor like Watson, tellers would generate a cashier’s
check for the withdrawn funds and memorialize the transaction in writing.

¶3            In the fall of 2014, Watson and an acquaintance, Maja
Birkholz, hatched a scheme to steal money from Compass customers. First,
using his access to account information, Watson would identify bank
accounts whose owners had not been in contact with the bank for some
time. Watson would then ask tellers to withdraw the funds from the
accounts, purportedly on behalf of the account owners. He would then have
the funds paid to either Birkholz directly or to accounts owned by
“Millenium[sic] Planning Group,” a doing business as (“DBA”) designation
for Watson Consulting LLC (“Watson Consulting”), a limited liability
company managed solely by Watson. Acting in line with the unauthorized
local practice of the branches, the tellers would approve the requests
without requiring the account owners to be present or to present the
owners’ identification, thereby placing the funds under Watson’s and
Birkholz’s control. Through this scheme, Watson and Birkholz stole funds
from several bank customers in October and November 2014.

¶4            On October 21, 2014, Watson asked the tellers to close out a
checking account owned by the estate of D.G., who passed away in 2012.
The tellers approved the transaction. Per Watson’s instructions, funds
within the account were distributed as follows: (1) a cash withdrawal of
$7607.06, of which Watson and Birkholz took an even split; (2) a cashier’s
check for $7500 payable to Birkholz; and (3) a cashier’s check for $7500
payable to Karl Sheldon (an individual who was never positively
identified). The tellers memorialized the transaction in a memorandum,
which stated: “per customer close account[,] ok per Steve Watson—2
cashier’s checks.”

¶5            Next, on October 27 and 28, 2014, Watson asked the tellers to
close out three accounts owned by the estate of K.K., who passed away in
2011. The tellers approved the transactions, and the funds within the
accounts were distributed as follows: (1) two cashier’s checks totaling
$53,162.45 payable to Watson Consulting’s DBA designation; and (2) a
cashier’s check for $35,698.47 payable to Birkholz. For this transaction, the
tellers’ memoranda indicated that the owner of the account had approved
the transaction “per [a] phone call” and that the “client initiated for
cashier[’]s check.” Three days after the theft, Birkholz transferred $27,000
of the funds she received to the accounts of Watson Consulting’s DBA
designation.




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                            Opinion of the Court

¶6             Finally, on November 14, 2014, Watson requested that the
tellers close out a savings account owned by S.S., a Texas resident. S.S. was
alive at the time the theft occurred but passed away shortly afterward. The
tellers approved the transaction, and the funds within the account totaling
$80,667.31 were withdrawn via a cashier’s check made payable to Watson
Consulting’s DBA designation. The memorandum for this transaction
stated: “purchase cashier[’]s check per Steve Watson.”

¶7            Between October and December 2014, Watson spent all the
funds he had stolen from D.G.’s, K.K.’s, and S.S.’s accounts on several
purchases, including a motorcycle, a car titled in his wife’s name, and
airfare for himself, his wife, and his child. Compass was first alerted to the
thefts in January 2015, when the beneficiary of two of K.K.’s accounts
contacted Compass to request that the funds within the emptied accounts
be liquidated. A senior fraud investigator for Compass examined the
circumstances surrounding the missing funds and discovered the other
thefts. During the investigation, the fraud investigator interviewed Watson,
who denied any knowledge of D.G. or the circumstances surrounding
D.G.’s account closure, denied any knowledge of Watson Consulting’s DBA
designation, and downplayed his relationship with Birkholz. The day after
the interview, Watson did not return to work and did not answer any of the
fraud investigator’s subsequent calls. After completing her investigation,
the fraud investigator reported the thefts to law enforcement.

¶8            Ultimately, the State charged Watson with: (1) one count of
fraudulent schemes and artifices, encompassing every theft that occurred
between October and November 2014; (2) three counts of theft of property
for the withdrawals from D.G.’s account; (3) three counts of theft for the
withdrawals from K.K.’s account; and (4) one count of theft for the
withdrawal from S.S.’s account. 2 After an eight-day trial, during which
Watson testified in his defense, the jury found Watson guilty as charged on
the fraudulent schemes and artifices count and the theft counts arising from
the withdrawals from K.K.’s and S.S.’s accounts. Concerning the charges
related to D.G.’s account, the jury found Watson guilty of three
misdemeanor counts of theft of property of a value of less than $1000.


2      The State also charged Birkholz for her role in the crimes. However,
Birkholz failed to appear shortly after the proceedings against her began,
and the court issued a bench warrant that remains active as of the date of
this opinion. See State v. Rhome, 235 Ariz. 459, 461, ¶ 8 (App. 2014) (court
may take judicial notice of its own records).



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                             Opinion of the Court

¶9           The superior court subsequently sentenced Watson to serve
concurrent prison terms totaling six years’ imprisonment on the felony theft
counts, with 65 days’ presentence incarceration credit and time served on
the three misdemeanor theft counts. Concerning the fraudulent schemes
and artifices count, the court suspended the imposition of Watson’s
sentence and imposed a consecutive seven-year term of probation to begin
upon his release from prison. Watson appealed, and we have jurisdiction
under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

A.     The Evidence Supports Watson’s Conviction for Fraudulent
       Schemes and Artifices.

¶10           Watson argues there was insufficient evidence to support his
conviction for fraudulent schemes and artifices because he “made no false
representations or pretense to acquire the money from” D.G.’s, K.K.’s, and
S.S.’s accounts.

¶11            We review de novo whether substantial evidence was
presented to support a conviction. State v. Burns, 237 Ariz. 1, 20, ¶ 72 (2015).
“‘Substantial evidence’ to support a conviction exists when ‘reasonable
persons could accept [it] as adequate and sufficient to support a conclusion
of [a] defendant’s guilt beyond a reasonable doubt.’” Id. at 20–21, ¶ 72 (first
alteration in original) (quoting State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)).
In reviewing the sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” West, 226 Ariz. at 562,
¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). “Both direct and
circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” Id.

¶12            To support a conviction for fraudulent schemes and artifices,
the State was required to prove that (1) pursuant to a scheme or artifice to
defraud, (2) Watson knowingly obtained any benefit (3) by means of false
or fraudulent pretenses, representations, promises, or material omissions.
A.R.S. § 13-2310(A); see also State v. Haas, 138 Ariz. 413, 418–24 (1983)
(discussing statutory elements of fraudulent schemes and artifices and their
definitions under a prior version of the statute). Because Watson only
challenges whether the State produced sufficient evidence for a jury to
conclude beyond a reasonable doubt that he obtained the money from
D.G.’s, K.K.’s, and S.S.’s accounts by means of false or fraudulent pretenses,



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                           Opinion of the Court

representations, promises, or material omissions—and because sufficient
evidence was presented concerning the other elements—we only address
that element.

¶13          The fraudulent schemes and artifices statute “was, from the
beginning, thought to be a law which ‘encompasses a very broad range of
fraudulent activities.’” Haas, 138 Ariz. at 422 (quoting State v. Moses, 123
Ariz. 296, 298 (App. 1979)). “False pretense, created through words or
omissions, is the act that separates fraud from routine theft.” State v.
Johnson, 179 Ariz. 375, 378 (1994). Concerning the pretense,
misrepresentation, promise, or material omission element of the offense:

      [A]     defendant       may     be      found      guilty     of
      knowingly . . . participating in a scheme or artifice to
      defraud . . . when that defendant has knowingly led the
      adverse party to believe a state of facts which is not true and
      when this has been accomplished either by active
      misrepresentations, or omitting material facts which
      defendant knew were being misunderstood, or by stating
      half-truths, or by any combination of these methods.

Haas, 138 Ariz. at 423. A “false or fraudulent” misrepresentation can,
therefore, “be made by concealment and statements of half-truths.” Id. at
422. And a false pretense includes any “subterfuge, ruse, trick, or
dissimulation upon another.” Johnson, 179 Ariz. at 377.

¶14            Here, there was ample evidence from which the jury could
reasonably conclude Watson obtained the money from D.G.’s, K.K.’s, and
S.S.’s accounts through misrepresentations or false pretenses. Although the
tellers who testified at trial could not remember the specific transactions,
they testified Watson would have necessarily provided information to
initiate the withdrawals and generate the cashier’s checks, including D.G.’s,
K.K.’s, and S.S.’s names and the identities of the payees, Watson
Consulting’s DBA designation and Birkholz. The documents
memorializing the withdrawals also contained statements indicating
Watson made representations concerning the transactions, including: “per
customer close account,” “ok per Steven Watson,” “per phone call,” and
“purchase cashier[’]s check per Steven Watson.” Watson reinforced the
accuracy of this circumstantial evidence by admitting at trial that he asked
the tellers to withdraw the funds from each account and that he caused
them to be distributed to Watson Consulting’s DBA designation in some
instances and Birkholz in others.




                                     6
                            STATE v. WATSON
                            Opinion of the Court

¶15            By engaging in this conduct, Watson created a false pretense
that the victims had authorized him to request and conduct the
transactions. And once the transactions were completed by the tellers—thus
placing the funds under his and his accomplice’s control—the crime of
fraudulent schemes and artifices was complete. Contrary to Watson’s
assertions on appeal, the fact that he took advantage of the lax procedures
employed by the branches’ employees does not change this conclusion;
indeed, it strengthens it. By concealing his intent under the guise of the
accepted, albeit unauthorized, practices of the branches in which he
worked, Watson was better able to deceive the tellers into believing the
fraudulent transactions were permissible. That false pretense, created by
both Watson’s statements and omissions, elevated Watson’s conduct from
routine theft to fraud. Johnson, 179 Ariz. at 378.

¶16           Watson’s reliance on State v. Johnson, where our supreme
court held that a mere betrayal of the “implicit representation of honesty”
inherent in the employment relationship was not enough to satisfy the
misrepresentation element of fraud, is misplaced. 179 Ariz. at 379. In that
case, the supreme court based its conclusion on the fact that the defendant
“created no pretense, made no representation, and concealed nothing from
his employer” by using a company credit card to purchase fuel from a fuel
pump for unauthorized personal purposes. Id. at 380. Here, the evidence
showed Watson created a false pretense that the account holders had
authorized the transactions by requesting the withdrawals and providing
the information necessary to complete them. This pretense, disguised
within the usual practice and reliant on the specific trust the tellers placed
in financial advisors like Watson, induced the tellers to allow the
transactions to occur. Id. at 379 (breaching a trust relationship may lead to
fraud so long as breach includes misrepresentation, false pretense, or
omission); see also State v. Fimbres, 222 Ariz. 293, 297–98, ¶¶ 5–10 (App. 2009)
(distinguishing Johnson because the defendant altered gift cards to contain
victims’ account information and represented the cards were valid when he
made purchases with the cards). Accordingly, substantial evidence
supports Watson’s conviction for fraudulent schemes and artifices.




                                       7
                             STATE v. WATSON
                             Opinion of the Court

B.     The Superior Court Imposed an Unlawful Double Punishment by
       Sentencing Watson to a Consecutive Term of Probation for the
       Fraudulent Schemes and Artifices Count.

           1. The Theft and Fraudulent Schemes and Artifices Offenses
              Constituted a Single Act for Sentencing Purposes.

¶17           In our review of the record, we discovered a potential
sentencing error concerning the consecutive term of probation imposed for
the fraudulent schemes and artifices count. See State v. Woods,
1 CA-CR06-0840, 2008 WL 2954665, at *3, ¶¶ 16–22 (Ariz. App. July 29,
2008) (mem. decision) (finding the sentence imposed for fraudulent
schemes and artifices cannot run consecutive to the sentence imposed for
the theft charged under the scheme). “Although we do not search the record
for fundamental error, we will not ignore it when we find it.” State v.
Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007). “Imposition of an illegal
sentence constitutes fundamental error.” State v. Thues, 203 Ariz. 339, 340,
¶ 4 (App. 2007). We ordered supplemental briefing to address whether the
term of probation imposed consecutive to the prison sentences violated
Arizona’s statutory prohibition of double punishment, A.R.S. § 13-116.
After reviewing the parties’ supplemental briefs, we conclude the
fraudulent schemes and artifices count and the theft counts, in this case, are
based on the same act, and that the court committed fundamental error by
imposing the term of probation consecutive to the concurrent sentences for
the theft counts.

¶18             The double jeopardy clauses of the United States and Arizona
constitutions protect criminal defendants from multiple prosecutions and
punishments for the same offense. U.S. Const. amend. V; Ariz. Const. art. 2,
§ 10; see also State v. Eagle, 196 Ariz. 188, 190, ¶ 5 (2000) (federal and Arizona
double jeopardy clauses generally provide the same protections). Because
greater and lesser-included offenses are considered the “same offense,” the
double jeopardy clauses forbid the imposition of a separate punishment for
a lesser crime when a defendant has been convicted and sentenced for the
greater offense. See Illinois v. Vitale, 447 U.S. 410, 421 (1980); State v. Garcia,
235 Ariz. 627, 629, ¶ 5 (App. 2014); State v. Chabolla-Hinojosa, 192 Ariz. 360,
362–63, ¶¶ 10–13 (App. 1998).

¶19           Statutorily, the prohibition of multiple punishments for the
same act is codified in A.R.S. § 13-116, which provides: “An act or omission
which is made punishable in different ways by different sections of the laws
may be punished under both, but in no event may sentences be other than
concurrent.” Arizona uses the identical elements test to determine whether



                                        8
                             STATE v. WATSON
                             Opinion of the Court

a “constellation of facts” constitutes a single act, which requires concurrent
sentences, or multiple acts, which permit consecutive sentences. State v.
Gordon, 161 Ariz. 308, 312 (1989); State v. Tinghitella, 108 Ariz. 1, 3 (1971). To
ensure neither the double jeopardy nor statutory mandates are violated,
Arizona courts apply a three-part test outlined in Gordon. See also State v.
Bush, 244 Ariz. 575, 595, ¶ 90 (2018) (reaffirming the validity of the Gordon
test). First, the court must subtract the evidence necessary to convict on the
“ultimate charge,” or the charge “that is at the essence of the factual nexus”
of the case and determine whether enough evidence remains to “satisf[y]
the elements of the other crime.” Gordon, 161 Ariz. at 315. Second, the court
must then consider “whether . . . it was factually impossible to commit the
ultimate crime without also committing the secondary crime.” Id. Finally,
the court must “consider whether the defendant’s conduct in committing
the [secondary] crime caused the victim to suffer an additional risk of harm
beyond that inherent in the ultimate crime.” Id.

¶20            Under the facts of this case, the fraudulent schemes and
artifices offense was the ultimate charge concerning each victim; the
underlying theft charges stem directly from Watson’s scheme to obtain the
funds in the victims’ accounts by creating the false pretense that they had
authorized the transactions. The State, in the exercise of its broad charging
discretion, chose to charge Watson with a single count of fraudulent
schemes that encompassed every theft he committed. 3 State v. Peltz, 242
Ariz. 23, 27, ¶ 8 (App. 2017) (“The prosecutor has broad discretion in
deciding . . . which charges to file against a defendant.”); State v. Via, 146

3       The State could have charged Watson with a separate count of
fraudulent schemes and artifices for each victim. See State v. Suarez, 137
Ariz. 368, 374 (App. 1983) (State can charge separate fraudulent acts
pursuant to single scheme as a single count of fraudulent schemes and
artifices); State v. Mullet, 1 CA-CR 17-0179, 2018 WL 2976266, at *4, ¶ 15
(App. June 14, 2018) (mem. decision) (Suarez does not require the State to
charge single fraudulent schemes or artifices count but allows it to “charge
each event separately or all events in a single aggregate charge”). The
State’s reason for charging Watson with an aggregated fraudulent schemes
and artifices charge became clear once it amended the indictment to add an
allegation that the fraudulent schemes and artifices offense “involved a
benefit with a value of one hundred thousand dollars or more,” which
would have rendered Watson ineligible for “suspension of sentence,
probation, pardon or release from confinement” for the charge. A.R.S.
§ 13-2310(C). However, the jury could not agree on whether the benefits
Watson obtained totaled $100,000 or more.



                                        9
                            STATE v. WATSON
                            Opinion of the Court

Ariz. 108, 116 (1985) (“[W]here numerous transactions are merely parts of a
larger scheme, a single count encompassing the entire scheme is proper.”).
We must now subtract the evidence necessary to satisfy the elements of the
ultimate charge and determine whether the remaining evidence can meet
the statutory elements of theft, which requires proof that (1) Watson
knowingly (2) controlled property of another (3) with the intent to deprive
the other person of such property, A.R.S. § 13-1802(A)(1). Considering the
elements of each offense and the facts surrounding both the theft and
fraudulent schemes and artifices crimes, there is insufficient evidence to
convict Watson of the theft charges once the evidence necessary to convict
him of the fraudulent schemes and artifices charge is subtracted. Under the
facts of this case, Watson obtained control of the victims’ property at the
same moment he received a benefit through his false pretense and
misrepresentations. Thus, because the State would be unable to prove theft
without the evidence required for fraudulent schemes and artifices, the first
prong of the Gordon test has not been satisfied, and the sentence for the
fraudulent schemes and artifices charge must run concurrently with the
theft sentences.

¶21          The second and third prongs of the Gordon test also cannot be
satisfied. Watson could not have obtained the funds from the victims’
accounts using fraudulent schemes and artifices without simultaneously
committing theft. Gordon, 161 Ariz. at 315. As for the third prong, the harm
to the victims caused by the thefts—that they were deprived of their
property—is the same harm they suffered as a result of the fraudulent
schemes and artifices offense. See id.

¶22            Based on how the State charged the offenses in this case,
Watson committed a single crime resulting in the commission of a series of
crimes. The consecutive term of probation for the fraudulent schemes and
artifices charge was, therefore, an unlawful double punishment. And
because our review of the sentencing proceedings leaves us unable “to
determine . . . that the trial court would have imposed the same sentences
if it had been aware that consecutive sentences were not available,” we
must vacate all of Watson’s felony sentences and remand for resentencing.
State v. Viramontes, 163 Ariz. 334, 340 (1990).

          2. Imposing a Term of Probation Constitutes a Sentence Under
             A.R.S. § 13-116.

¶23           The State attempts to avoid the Gordon mandate by citing our
supreme court’s statement in State v. Muldoon, 159 Ariz. 295, 298 (1988), that
“[p]robation is not a sentence.” The State then argues that A.R.S. § 13-116


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                             STATE v. WATSON
                             Opinion of the Court

permits a term of imprisonment and a consecutive term of probation to be
imposed for offenses resulting from the same act because the statute only
prohibits consecutive “sentences.” However, because the State’s
interpretation of “sentences” in A.R.S. § 13-116 is contrary to prior caselaw
interpreting the statute and would lead to absurd results, we reject the
argument.

¶24            We review the interpretation of a statute de novo. Bilke v. State,
206 Ariz. 462, 464, ¶ 11 (2003). If the statute’s language is clear, “the court
must ‘apply it without resorting to other methods of statutory
interpretation’ unless application of the plain meaning would lead to
impossible or absurd results.” Id. (citation omitted) (quoting Hayes v. Cont’l
Ins. Co., 178 Ariz. 264, 268 (1994)). When a statute’s meaning cannot be
found from its language alone, “we attempt to determine legislative intent
by interpreting the statute as a whole, and consider the statute’s context,
subject matter, historical background, effects and consequences, and spirit
and purpose.” Calik v. Kongable, 195 Ariz. 496, 500, ¶ 16 (1999) (quoting Aros
v. Beneficial Arizona, Inc., 194 Ariz. 62, 66 (1999)). We also consider the
statute “in light of its place in the statutory scheme.” Grant v. Bd. of Regents
of Univ. and State Colls. of Ariz., 133 Ariz. 527, 529 (1982).

¶25            “Trial courts have no inherent authority to suspend a prison
sentence and impose probation.” State v. Bowsher, 225 Ariz. 586, 587, ¶ 6
(2010). That power “must be found in the statutes of the state.” Id. (quoting
State v. Bigelow, 76 Ariz. 13, 18 (1953)). In Muldoon, our supreme court held
that the superior court was not required to warn a defendant that he would
be subject to mandatory consecutive sentencing if he were to violate the
terms of his lifetime probation because Arizona Rule of Criminal Procedure
17.2(B), now 17.2(a)(2), only required the court to inform defendants of
“special conditions regarding sentencing,” not probation. 159 Ariz. at
297–98. In so holding, the court reiterated the long-recognized distinction
between a sentence and probation:

       A sentence is a judicial order requiring a defendant convicted
       in a criminal case to presently suffer a specified sanction such
       as incarceration, monetary fine, or both. Probation is a judicial
       order allowing a criminal defendant a period of time in which
       to perform certain conditions and thereby avoid imposition of
       a sentence. . . . If the conditions are performed, the court need
       not impose the sentence because the defendant has proven
       himself or herself worthy not to suffer such sentence. If the
       conditions of probation are not performed, however, the court
       may vacate the order suspending the imposition of sentence,


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       and then impose sentence, including such sanctions as it
       might have in the first instance.

Id. at 298; see also Pickett v. Boykin, 118 Ariz. 261, 262 (1978); State v. Risher,
117 Ariz. 587, 589 (1978); State v. Smith, 112 Ariz. 416, 419 (1975). Although
these cases stand for the general principle that probation and a criminal
sentence are not synonymous, the supreme court at the same time
acknowledged the need for probation to be treated as a sentence when the
failure to do so would produce inconsistent and illogical results. See, e.g.,
Ariz. R. Crim. P. 26.1 cmt. (1973) (“The term sentence as used in this rule
does include probation even though in most cases . . . imposition of
sentence must be suspended in order to place a person on probation.”
(citation omitted)); State v. Fuentes, 26 Ariz. App. 444, 446–47 (1976)
(probation treated as a sentence for the purpose of calculating the time to
appeal), aff’d and adopted, 113 Ariz. 285 (1976).

¶26            Thus, in the years following Muldoon, Arizona courts have
disregarded traditional distinctions between probation and a sentence
when unique situations require it. See, e.g., State v. Peek, 219 Ariz. 182, 183,
¶¶ 5–6, 20 (2008) (citing A.R.S. § 13-4037, which permits correction of an
illegal sentence, in decision vacating illegal lifetime probation term); State
v. Mathieu, 165 Ariz. 20, 23–25 (App. 1990) (defendant entitled to
presentence incarceration credit for a mandatory prison term condition of
probation under statute granting credit to defendants “sentenced to
imprisonment”); State v. Falco, 162 Ariz. 319, 321 (App. 1989) (Arizona Rule
of Criminal Procedure 24.3, which permits a trial court to correct “unlawful
sentence,” applies to the imposition of probation); State v. Bouchier, 159 Ariz.
346, 347–48 (App. 1989) (illegal term of probation is fundamental error “as
is an illegal sentence,” and may be modified by an appellate court under
A.R.S. § 13-4037).

¶27           More broadly, this court has recognized that the lines
between sentencing and probation within our criminal code “have blurred”
over time. Mathieu, 165 Ariz. at 24. For example, A.R.S. § 13-603, which
outlines Arizona’s sentencing scheme, contains several subsections where
a “sentence” as used in the text either explicitly or necessarily encompasses
probation. See, e.g., A.R.S. § 13-603(A) (every person convicted of any
criminal offense “shall be sentenced in accordance with” chapters 7
(sentencing and imprisonment), 8 (restitution and fines), and 9 (probation)
(emphasis added)); A.R.S. § 13-603(B) (“[T]he court . . . may suspend the
imposition or execution of sentence and grant such person a period of
probation except as otherwise provided by law. The sentence is tentative to
the extent that it may be altered or revoked in accordance with chapter 9 of


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                             Opinion of the Court

this title, but for all other purposes it is a final judgment of conviction.”
(emphasis added)); A.R.S. § 13-603(E)(4) (“If a person is convicted of an
offense and not granted a period of probation, or when probation is
revoked, any of the following sentences may be imposed . . . . [including,]
intensive probation, subject to the provisions of chapter 9 of this title.”
(emphasis added)). The statutes defining probation and intensive probation
also refer to the imposition of both as a “sentence” in specific subsections.
A.R.S. § 13-901(I) (“When granting probation, the court shall set forth at the
time of sentencing and on the record the factual and legal reasons in
support of each sentence.”); A.R.S. § 13-914(D) (“When granting intensive
probation the court shall set forth on the record the factual and legal reasons
in support of the sentence.”).

¶28            This is not to say that Muldoon’s pronouncement concerning
the distinctions between probation and a sentence is no longer applicable;
the fact remains that a court must suspend imposition or execution of a
sentence to place a defendant on probation. See A.R.S. § 13-901(A); A.R.S.
§ 13-914(C). The cases and statutes cited above merely stand for the
proposition that we must not cling to those distinctions when doing so
would undermine clear expressions of the legislature or lead to absurd
results. Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017) (the primary goal
of statutory interpretation “is to effectuate the legislature’s intent”); State ex
rel. Montgomery v. Harris, 237 Ariz. 98, 101, ¶ 13 (2014) (“Statutes should be
construed sensibly to avoid reaching an absurd conclusion.”).

¶29          With these principles in hand, we turn to the meaning of the
term “sentences” in A.R.S. § 13-116. Arizona courts have addressed claims
concerning whether a consecutive term of probation violates A.R.S. § 13-116
for some time. See, e.g., State v. McDonagh, 232 Ariz. 247, 248, ¶ 3 (App. 2013)
(“Consistent with A.R.S. § 13-116, the probation grants were ordered to run
concurrently.”); State v. Cornish, 192 Ariz. 533, 538, ¶ 19 (App. 1998)
(considering A.R.S. § 13-116 concerning a term of probation imposed
consecutively to a prison sentence). Although these decisions did not
directly address whether A.R.S. § 13-116 applies to a consecutive term of
probation, we find them persuasive. Therefore, we conclude A.R.S. § 13-116
must encompass a consecutive term of probation for two reasons.

¶30            First, both our supreme court and this court have recognized
that the legislature intended A.R.S. § 13-116’s protections to extend beyond
the boundaries of a traditional criminal sentence. In Anderjeski v. City Court
of Mesa, our supreme court held that A.R.S. § 13-116 applied not only to
several defendants’ potential sentences—i.e., the term of imprisonment and
fines the court might impose upon conviction—but also to the “points”


                                       13
                            STATE v. WATSON
                            Opinion of the Court

assessed on the defendants’ driving records according to the Motor Vehicle
Department’s administrative scheme. 135 Ariz. 549, 551 (1983). In so
holding, the court concluded that A.R.S. § 13-116 expressed “clear
legislative intent . . . not to cumulate punishment for one act.” Id. (emphasis
added); see also McDonagh, 232 Ariz. at 250, ¶ 14 (absent clear legislative
intent overriding A.R.S. § 13-116’s prohibition on cumulative punishment,
“sentencing court may not impose cumulative punishment for a single
act”); State v. Sheaves, 155 Ariz. 538, 540 (App. 1987) (“The legislature
enacted § 13-116 to protect a defendant from the imposition of multiple
punishment[s] . . . arising from the same factual situation.”). Although
probation is not generally considered a sentence, it has long been
considered a punishment, albeit a “mild and ambulatory
punishment . . . intended as a reforming discipline.” Korematsu v. United
States, 319 U.S. 432, 435 (1943) (quoting Cooper v. United States, 91 F.2d 195,
199 (5th Cir. 1937)); see also State v. Heron, 92 Ariz. 114, 115 (1962). We see
no meaningful basis on which we could distinguish, for the purpose of
interpreting A.R.S. § 13-116’s reach, between the punishment inflicted by
“points” on an individual’s driving record and the imposition of probation.

¶31            Second, interpreting A.R.S. § 13-116 to bar consecutive
sentences, but not a consecutive term of probation imposed after multiple
convictions for the same act, would lead to absurd results. As noted by the
supreme court when discussing the nature of a probation grant in Muldoon,
“[i]f the conditions [of probation] are performed, the court need not impose
the sentence because the defendant has proven himself or herself worthy
not to suffer such sentence.” 159 Ariz. at 298. But if the conditions of
probation are not performed, the court is authorized to impose a sentence.
Ariz. R. Crim. P. 27.8(c)(2) (“If the court revokes probation, the court must
pronounce sentence . . . .”). Yet, if the State’s argument were correct, the
revocation of the consecutive probation term would lead to the very
sentence that A.R.S. § 13-116 would have barred if the court had imposed
consecutive prison sentences originally. Interpreting the statute in this
manner would yield an absurd result.

¶32           Accordingly, we hold that despite the general principle that
probation is not a sentence, A.R.S. § 13-116 must be interpreted to prohibit
the court from imposing a consecutive term of probation when the
conviction underlying it flows from the same act as a conviction resulting
in a sentence of imprisonment. Therefore, the consecutive term of probation
imposed for the fraudulent schemes and artifices conviction was an
unlawful double punishment, and the case must be remanded for
resentencing.



                                      14
                          STATE v. WATSON
                          Opinion of the Court

                             CONCLUSION

¶33          We affirm Watson’s convictions but vacate his sentences and
remand for resentencing in accordance with this opinion.




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




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