Opinion
No. 2 CA-HC 2018-0004
03-15-2019
ROBERT JOSEPH BENGE, Petitioner/Appellant, v. KEVIN CURRAN, WARDEN, ARIZONA STATE PRISON COMPLEX-FLORENCE, Respondent/Appellee.
COUNSEL Robert J. Benge, Florence In Propria Persona Mark Brnovich, Arizona Attorney General By Paul E. Carter, Assistant Attorney General, Tucson Counsel for Respondent/Appellee
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NOT FOR PUBLICATION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. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. CR056683
The Honorable Casey F. McGinley, Judge
AFFIRMED
COUNSEL Robert J. Benge, Florence
In Propria Persona Mark Brnovich, Arizona Attorney General
By Paul E. Carter, Assistant Attorney General, Tucson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Robert Benge seeks review of the trial court's order summarily denying his petition for writ of habeas corpus. He argues he is entitled to immediate release from prison because his maximum prison term has elapsed. He additionally makes several arguments related to the revocation of his community release. We affirm.
¶2 In April 2018, Benge filed a habeas petition, arguing the Arizona Department of Corrections (ADOC) had miscalculated his release date and he was entitled to be released on August 9, 2018. The trial court treated that filing as a petition for post-conviction relief filed under Rule 32, Ariz. R. Crim. P., and dismissed it "without prejudice," reasoning that Benge was not currently entitled to release even if his claim were correct and, thus, the claim was not "ripe for review." Although Benge filed a motion for reconsideration, which the trial court apparently never addressed, he did not seek review of the dismissal order in this court.
¶3 In August 2018, Benge filed what he described as a supplement to his April habeas petition, again asserting that his sentence would expire on August 9, 2018. The trial court ordered the Attorney General's Office to file a response. While that response was pending, Benge filed a motion to modify his sentence, essentially repeating his claims, and additionally requesting a "new parole revocation hearing" if the court did not order his release.
¶4 Through the Attorney General's Office, ADOC filed a response to the August petition, which included an affidavit from an ADOC "Time Computation Technician Specialist" stating Benge's release date is August 9, 2019. The affidavit explained that, in a Pima County case number, Benge had been sentenced to a twenty-year prison term on July 29, 1998, "with a projected release date of August 1, 2014." He was then sentenced in September 2005 under two cases in Maricopa County to sentences that would run concurrently with his earlier sentences, the longer sentence of fourteen years extending his release date to June 19, 2015. An additional conviction in Maricopa County resulted in a one-year sentence to run consecutively to his existing terms, with a community supervision release date of April 25, 2016, and an absolute discharge date of July 4, 2019. Benge absconded from supervision for thirty-six days before being arrested on December 1, 2017. The Board of Executive Clemency revoked his community supervision, and ADOC calculated his release date to be August 9, 2019, based on the remaining term of community supervision and the thirty-six days Benge was on absconder status.
¶5 The trial court, describing Benge's August filing as a petition for writ of habeas corpus, denied the petition, as well as Benge's motion to modify his sentence. The court observed that, although Benge's sentences in the Pima County case had expired, "he appears to be properly serving his sentence on subsequent convictions." This appeal followed.
¶6 Generally, "[i]n Arizona, the writ of habeas corpus may be used only to review matters affecting a court's jurisdiction." In re Oppenheimer, 95 Ariz. 292, 297 (1964). On appeal, Benge first argues there were deficiencies in the revocation hearing, including that his due process rights were violated and he was denied the right to counsel. Even had he adequately raised these claims below, they are not cognizable in a habeas proceeding because they do not address the court's jurisdiction. See id. Accordingly, we do not address them further.
¶7 Benge also reasserts his claim that he is entitled to immediate release. Habeas relief is available to defendants who are "entitled to immediate release from custody." Brown v. State, 117 Ariz. 476, 477 (1978). As we understand his arguments below and on review, Benge does not disagree with the bulk of the ADOC specialist's factual recitation. His claim, instead, is that his prison term based on the revocation of community supervision cannot exceed the maximum end date of his prison terms: August 9, 2018.
Although Rule 32.1(d) provides a similar basis for relief, it is not exclusive. See Ariz. R. Crim. P. 32.3(a) (Rule 32 does not "displace[] and incorporate[]" habeas corpus). Arguably, however, Benge's release claim should have been brought as a special action because it was dated June 8, 2018 and date-stamped August 8, 2018—one day before the date he contends he was entitled to release. See State v. Davis, 148 Ariz. 62, 64-65 (App. 1985) (suggesting court lacks authority to address premature Rule 32.1(d) claim). But, even assuming Benge's claim was premature, we nonetheless are empowered to address its merits as a request for special-action relief. See id.
¶8 Benge cites A.R.S. §§ 31-411.01(C), 31-415, and 31-417 for the proposition that his "Community Supervision end date" cannot exceed the "maximum term" of his prison sentence. Those statutes generally govern the operation of parole and community supervision. Most relevant here, § 31-417 provides that "a paroled prisoner or an offender on community supervision" is entitled to a hearing before the Board of Executive Clemency in the event that person is "returned to the prison." After that hearing, the board may "declare the parolee or offender on community supervision delinquent." Id. The statute further provides that, after that declaration, "[t]he prisoner may be thereafter imprisoned in the prison for a period equal to the prisoner's unexpired maximum term of sentence at the time the parole was granted." Id.
¶9 Presumably, Benge grounds his argument in the last sentence of § 31-417, arguing that his prison time as a result of the revocation of his community supervision cannot exceed the "flat maximum end date" of his sentence—which he contends was August 9, 2018. But Benge misreads that provision of § 31-417: it refers only to the sentence "at the time the parole was granted." Benge was not on parole, which was abolished in 1994; he was placed on community supervision. See State v. Rosario, 195 Ariz. 264, ¶ 26 (App. 1999). Section 31-417 does not address the prison term resulting from the revocation of his community supervision. Instead, A.R.S. § 31-402(C)(5)(b) governs. That statute permits the board, upon finding "that an offender on community supervision has violated the terms and conditions of community supervision," to "[r]evoke community supervision and return the offender to prison for the remainder of the offender's community supervision." Id. That is precisely what occurred here. Because Benge has not "allege[d] any facts which show that he is entitled to immediate release from custody," he is not entitled to relief. Brown, 117 Ariz. at 477.
Insofar as Benge argues the term of community supervision cannot extend past the end of his maximum sentence regardless of whether it has been revoked, he is mistaken. As the state points out, A.R.S. § 13-603(I) unambiguously contemplates that community supervision will extend past the end of the maximum prison term. See also State v. Jenkins, 193 Ariz. 115, ¶ 11 (App. 1998).
¶10 We affirm the trial court's order denying Benge's petition for writ of habeas corpus.