Opinion
No. 2 CA-CR 2017-0348-PR
05-11-2018
THE STATE OF ARIZONA, Respondent, v. MARCUS JAMES, Petitioner.
COUNSEL Brad Carlyon, Navajo County Attorney By Galen H. Wilkes, Deputy County Attorney, Holbrook Counsel for Respondent Marcus James, Phoenix In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Navajo County
No. S0900CR201400683
The Honorable Dale P. Nielson, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Brad Carlyon, Navajo County Attorney
By Galen H. Wilkes, Deputy County Attorney, Holbrook
Counsel for Respondent Marcus James, Phoenix
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Marcus James seeks review of the trial court's order denying his "Motion to Correct Sentence," properly construed as a petition for post-conviction relief pursuant to Rule 32.1(c), Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find none here and, accordingly, although we grant review, we deny relief.
James also captioned his filing in this court as "Appeal [of] Court's Decision on Not Correcting Sentence." As a pleading defendant, James is not entitled to an appeal of his conviction or sentence, A.R.S. § 13-4033(B); nor is he entitled to appeal from a denial of a motion to modify his sentence, State v. Jimenez, 188 Ariz. 342, 345 (App. 1996). He may only challenge his sentence in a post-conviction relief proceeding pursuant to Rule 32, with the final decision in that proceeding subject to our court's discretionary review under Rule 32.9. See Hoffman v. Chandler, 231 Ariz. 362, ¶ 6 (2013). We therefore construe his "appeal" as a petition for review of the trial court's post-conviction ruling, pursuant to Rule 32.9. --------
¶2 Pursuant to a plea agreement entered in January 2015, James was convicted of attempted promoting prison contraband. In accordance with the stipulated sentence in his plea agreement, he was sentenced to 1.5 years in prison, to be served consecutively to prison terms he was already serving when he committed the offense.
¶3 James filed a timely notice of post-conviction relief, but appointed counsel subsequently notified the trial court he could find no colorable claims to raise in a Rule 32 proceeding. The court granted James leave to file a pro se petition for post-conviction relief by September 30, 2016, but James failed to do so, and the court dismissed the Rule 32 proceeding on October 21, 2016.
¶4 On January 3, 2017, James filed his "Motion to Correct Sentence," in which he alleged he was entitled to 135 days presentence incarceration credit. The trial court denied the motion without comment. This petition for review followed.
¶5 We will affirm a trial court's decision in post-conviction relief proceedings if it is legally correct for any reason. Id. In this matter, two independent reasons support the court's denial of relief.
¶6 First, James's claim is grounded in Rule 32.1(c), which provides relief if "the sentence imposed exceeds the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law." But such a claim may only be raised in a first, timely Rule 32 proceeding. See Ariz. R. Crim. P. 32.2 (claims under Rule 32.1(a) through (c) precluded when raised in successive proceeding); 32.4(a)(2)(A) (time limits apply to all claims but those raised under Rule 32.1(d) through (h)). James's claim of an excessive sentence, raised nearly two years after he was sentenced, is clearly time-barred. See Ariz. R. Crim. P. 32.4(a)(2)(C) (defendant must file notice of post-conviction relief "no later than 90 days after the entry of judgment and sentence").
¶7 In addition, as an independent basis for denying relief, James's substantive claim of error is not colorable as a matter of law. See State v. McClure, 189 Ariz. 55, 57 (App. 1997) (defendant serving prison term when indicted on new charge not entitled to presentence incarceration credit for new consecutive sentence imposed). In McClure, we reasoned that an imprisoned defendant's incarceration pending sentencing on a new charge had already been credited against completion of his first sentence; thus, an additional credit against his new, consecutive prison term would result in an impermissible "double credit windfall." Id., quoting State v. Cuen, 158 Ariz. 86, 87 (App. 1988). James was sentenced to a consecutive term, as specified in his plea agreement. He is not entitled to presentence incarceration credit for time he served to satisfy a previous sentence while he awaited sentencing in this matter.
¶8 The trial court did not abuse its discretion in denying James's claim for correction of his sentence, which was both time-barred and without merit. Therefore, although we grant review, we deny relief.