Opinion
2 CA-CR 2020-0208
07-09-2021
The State of Arizona, Appellant, v. David Martin Osollo, Appellee.
Laura Conover, Pima County Attorney By Amy S. Ruskin and Tai Summers, Deputy County Attorneys, Tucson Counsel for Appellant James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20165361001 The Honorable Teresa Godoy, Judge Pro Tempore
Laura Conover, Pima County Attorney By Amy S. Ruskin and Tai Summers, Deputy County Attorneys, Tucson Counsel for Appellant
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellee
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 The state appeals from the trial court's disposition order and its denial of the state's motion to correct sentence and motion to reconsider early termination of probation following David Osollo's admission to a probation violation and sentencing. For the following reasons, we vacate the court's disposition order and remand the case to the trial court for it to redetermine the disposition.
Factual and Procedural Background
¶2 In 2017, Osollo pleaded guilty to attempted kidnapping and unlawful distribution of images of the victim in a state of nudity. The charges arose from a 2016 incident when he sent a video of a nonconsensual sexual act with the victim to some of the victim's acquaintances. The trial court sentenced him to a 3.5-year prison term for attempted kidnapping with 335 days of presentence incarceration credit and, for unlawful distribution, suspended the imposition of sentence and ordered a consecutive, three-year term of intensive probation. Osollo completed his prison term for attempted kidnapping on December 3, 2019.
¶3 Upon his release from prison in December 2019, Osollo began serving his consecutive term of probation. In August 2020, the state filed a petition to revoke probation, followed by an amended petition in September 2020, alleging Osollo had violated multiple conditions of his probation. At the September 15, 2020, initial appearance hearing, Osollo admitted one of the allegations, and the trial court ordered him to be held in custody pending disposition. At the October 6, 2020 disposition hearing, the court did not revoke Osollo's probation, but instead continued him on probation. The court ordered Osollo to serve 365 days in jail as a condition of probation and applied a credit for 356 days served (335 days in custody before he was sentenced in 2017 plus twenty-one days in custody pursuant to the petition to revoke probation). It also ordered his probation to be terminated as "unsuccessful" at the end of the jail term. The result was that Osollo was to serve only a remaining nine days of probation, albeit in jail. The state argued, unsuccessfully, that Osollo was not entitled to credit for the 335 days served prior to his sentencing in 2017, asserting he had already been given credit for that time on his prison term and that doing so again "would be double-dipping."
¶4 On October 9, 2020, just after the disposition hearing, the state filed a motion to correct sentence and motion to reconsider early termination of probation. The state asked the trial court to correct its disposition order to reflect credit for only the twenty-one days Osollo had spent in custody due to the petition to revoke probation. The state reasserted that Osollo, having already received incarceration credit against the attempted kidnapping sentence, had received a double incarceration credit "windfall" by a 335-day reduction of the 365-day probationary jail term.
¶5 The state asked the trial court to reconsider its decision to terminate Osollo's probation early, contending it had "effectively terminated [Osollo's] 3 year probation term after only 8 months of probation - not even half of the original probation term." The state asserted that the requirements for early termination set forth in A.R.S. § 13-901(E)-where the ends of justice will be served and the conduct of defendant warrants discharge - had not been satisfied. In his response to the state's motion, Osollo essentially argued the court had the authority to terminate his probation early under § 13-901(E), and asked the court to deny the state's motion.
On October 16, 2020, while the state's motion was pending, the probation department filed a petition for discharge from probation, which the court granted the same day. The order discharged Osollo from probation pursuant to A.R.S. §§ 13-901, 13-903, and Rules 27.4 and 27.5, Ariz. R. Crim. P.
¶6 On December 15, 2020, the trial court conducted a hearing on the state's motion. Osollo argued that, although the court could not have imposed probation concurrent with his prison term, it could now "in the aftereffect . . . decide to impose the jail sentence concurrently with the prison term." The state argued that it was too late to modify the original consecutive sentences the court had imposed in 2017. The court repeatedly stated it had not terminated Osollo's probation early, but had instead modified it, and also stated that, once Osollo admitted having violated his probation, "he was back in front of the court at square one for sentencing, and the court had the discretion to impose any sentence within the range of what he pled to pursuant to the original plea in this case."
It appears Osollo did not challenge his sentence when it was imposed in 2017. See Ariz. R. Crim. P. 24.3.
The plea agreement provided, "[t]here is no agreement as to whether sentencing shall run consecutively or concurrently."
¶7 The trial court further stated:
The case law is replete that the Court must consider time spent in custody presentence while awaiting disposition and sentencing, and the Court did that.
I considered it, and the Court believed that given the nearly year [Osollo] spent in custody pending sentencing initially together with the additional time that the Court gave him was an appropriate sentence for a number of different reasons that I don't need—I don't know that I need to get into at this point in time.
But clearly, this offense that he was on probation for was so inextricably intertwined with the offense that he went to prison for. He pled to an attempted kidnapping with the intent to commit a felony.
So the Court believes that I had to consider his presentence incarceration, and the case law is replete that the Court does.
So I don't believe that this is giving him double credit. I think it's credit that the Court is
required pursuant to statute to consider when someone is back before the Court for disposition on a probation matter.
At the conclusion of the hearing, the court denied the state's motion. This appeal followed.
In October 2020, the state filed its first notice of appeal from the trial court's October 2020 disposition order. We revested jurisdiction in the trial court to permit it to rule on the state's motion to correct sentence and reconsider early termination of probation. The state's notice of appeal from the court's denial of that motion, filed in December 2020, is part of the record before us.
Jurisdiction
¶8 Although the state is appealing "the double crediting on a consecutive sentence and the negative termination of probation" which it characterizes as illegal sentences pursuant to A.R.S. § 13-4032(5) (state may appeal illegal sentence), it questions whether we have jurisdiction to consider its appeal. Consequently, it asks in the alternative that we exercise our special action jurisdiction. Osollo maintains the appeal should be dismissed because the sentence imposed was lawful, alternatively asserting that the disposition should be affirmed, and additionally contending that, in any event, special action jurisdiction should be denied.
¶9 This court has a continuing obligation to examine its own jurisdiction. Musa v. Adrian, 130 Ariz. 311, 312 (1981). Our jurisdiction is controlled by statute. Id. at 315. "If there is no statute which provides that a judgment or order is appealable, the appellate courts of this state do not have jurisdiction to consider the merits of the question raised on appeal." Id. at 312. Relevant here, § 13-4032(5), allows the state to appeal "[a] sentence on the grounds that it is illegal."
¶10 Although we have historically found that" [probation is not a sentence," State v. Muldoon, 159 Ariz. 295, 298 (1988), in State v. Watson, we recently "recognized that the lines between sentencing and probation within our criminal code 'have blurred' over time." 248 Ariz. 208, ¶ 27 (App. 2020) (quoting State v. Mathieu, 165 Ariz. 20, 24 (App. 1990)). In Watson, we provided a detailed summary of examples where Arizona courts have "disregarded traditional distinctions between probation and a sentence," and cited examples where our criminal code has used the term "sentence" to encompass probation. 248 Ariz. 208, ¶¶ 26-27. Accordingly, although a court must still suspend the imposition of sentence in order to place a defendant on probation, A.R.S. §§ 13-901(A), 13-914(C), we conclude the state has a remedy by appeal here, and that we have jurisdiction over this appeal pursuant to § 13-4032(5). See State v. Falco, 162 Ariz. 319, 321 (App. 1989) (recognizing unauthorized term of probation as "unlawful sentence").
Presentence Credit
¶11 Pursuant to A.R.S. § 13-712(B), "time actually spent in custody pursuant to an offense" is to "be credited against the term of imprisonment." However, a defendant is not entitled to presentence incarceration credit on a consecutive sentence. State v. Sodders, 130 Ariz. 23, 29-30 (App. 1981); see also State v. McClure, 189 Ariz. 55, 57 (App. 1997) (defendant not entitled to credit on consecutive sentences even when in custody on all offenses or on federal, in-state, or out-of-state cases). Rather, when time is served pursuant to multiple charges, § 13-712 is satisfied if the defendant "received credit for his . . . jail time against his total sentence." McClure, 189 Ariz. at 57. The state contends, therefore, that Osollo is only entitled to credit for the additional days he spent in custody pending disposition in the revocation proceedings, not credit again for the 335 days he spent in custody awaiting sentencing in 2017. The state asks that we vacate the "illegal sentence" and remand for resentencing. This court reviews de novo a trial court's ruling as to presentence incarceration credit. State v. Bomar, 199 Ariz. 472, ¶ 5 (App. 2001).
¶12 In his answering brief, Osollo points out that the trial court stated that the "offense that [Osollo] was on probation for was . . . inextricably intertwined with the offense he went to prison for." He maintains that this statement means that the court was, "of course," mindful of the prohibition against double jeopardy and double punishment under A.R.S. § 13-116 (act or omission punishable in different ways by different sections of laws may be punished under both, "but in no event may sentences be other than concurrent"). Relying on § 13-116 and State v. Gordon, 161 Ariz. 308 (1989), Osollo argues that the ultimate crime-unlawful distribution of the video of the victim-could not have been committed without the attempted kidnapping of the victim, and that the resulting consecutive sentences violated double jeopardy and § 13-116. He contends that, irrespective of the consecutive nature of the probation term, the court "necessarily was required to credit [him] with the entire amount of presentence incarceration credit" as to each imposed period of incarceration "because both sentences should have been served concurrently."
Although Rules 33.1(c) and 33.2(b)(1), Ariz. R. Crim. P., permit a pleading defendant to challenge an unlawful sentence in a successive or untimely post-conviction proceeding, Osollo has not raised such a claim.
¶13 Notably, in Watson, we concluded that if "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 § 13-116 to allow a consecutive term of probation for the same act "would yield an absurd result." 248 Ariz. 208, ¶ 31. We held, therefore, 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." Id. ¶ 32.
¶14 However, despite Osollo's assertion that the trial court must, "of course," have been trying to avoid double-jeopardy issues, the record before us is not entirely clear why the trial court gave Osollo double presentence incarceration credit. The court stated, without explanation, that Osollo was "back at square one for sentencing," but notably failed to explain why it was, or felt it was, required to take his 2017 presentence incarceration into account, ultimately stating only that the sentence it was imposing was "appropriate" for various reasons it did not "need to get into at [that] point in time."
¶15 Other than § 13-116, we are unaware of any legal basis arguably justifying the conferring of a double credit. To the extent the trial court felt bound by § 13-116 and Gordon, it did not say so, and, if it based its early termination ruling on some other consideration, the record does not contain sufficient evidence for us to review the court's exercise of discretion. Because it is unclear whether the court correctly applied the law or otherwise correctly exercised its discretion, we vacate the court's disposition, and its later reaffirmation of that disposition when it denied the state's motion. State v. Mohajerin, 226 Ariz. 103, ¶ 18 (App. 2010) ("When a trial court predicates its decision on an incorrect legal standard, . . . it commits an error of law and thereby abuses its discretion."); Reed-Kaliher v. Hoggatt, 235 Ariz. 361, ¶ 10 (App. 2014) (court abuses its discretion when it makes error of law). We thus remand for the court to redetermine Osollo's disposition, including any findings of fact or conclusions of law necessary to support its ruling.
We express no opinion whether the consecutive probation term was legally imposed in the first instance in 2017. Nor do we express an opinion whether Osollo would be permitted to challenge, under § 13-116, a sentence imposed as a result of his admitted probation violation.
Termination of Probation
¶16 The state also argues the trial court improperly terminated Osollo's probation early, asserting the court did not find that the ends of justice would be served by doing so, or that Osollo's performance on probation warranted early termination. See § 13-901(E); Ariz. R. Crim. P. 27.4. The state urges us to vacate the early termination of Osollo's probation and remand "for proper findings on the record to support the termination of probation or for continued probation." Osollo responds that the court did not, in fact, terminate his probation early, but instead modified his probation as part of the revocation proceeding pursuant to Rule 27.8(c)(2), Ariz. R. Crim. P. (upon finding probationer violated condition of probation, court may revoke, modify, or continue probation). See also Ariz. R. Crim. P. 27.3.
Osollo also asserts that even if the trial court did terminate his probation early, it was entitled to do so, adding that the court's comment that "addiction is tricky" meant the court believed Osollo had been rehabilitated on probation. In light of our ruling, we do not address Osollo's argument further.
¶17 Indeed, the trial court stated more than once at the motion hearing that it had not terminated Osollo's probation early, but had instead modified it. See State v. Dean, 226 Ariz. 47, ¶ 17 (App. 2010) ("[Precedent suggests that a court must modify the period of probation if . . . the period is found to be illegal or unauthorized by statute."). However, regardless of how the court characterized its disposition ruling, it appears it did, in fact, terminate Osollo's probation early, notably, without making any findings that "the ends of justice [would] be served" and that Osollo's conduct on probation warranted early termination, as required by § 13-901(E). For all of these reasons, we conclude the court made an error of law. See Mohajerin, 226 Ariz. 103, ¶ 18.
Disposition
¶18 Accordingly, we vacate the trial court's October 2020 disposition order and remand for the court to redetermine disposition consistent with this decision.