Opinion
No. 1 CA-CR 19-0567 PRPC
03-23-2021
STATE OF ARIZONA, Respondent, v. RICHARD ANTHONY BACA, Petitioner.
COUNSEL Navajo County Attorney's Office, Holbrook By Michael R. Shumway Counsel for Respondent Nick D. Patton Attorney at Law PLLC, Show Low By Nicholas D. Patton Counsel for Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Navajo County
No. S0900CR201200484
The Honorable Robert J. Higgins, Judge (retired)
REVIEW GRANTED; RELIEF GRANTED IN PART
COUNSEL Navajo County Attorney's Office, Holbrook
By Michael R. Shumway
Counsel for Respondent Nick D. Patton Attorney at Law PLLC, Show Low
By Nicholas D. Patton
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie, Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop delivered the decision of the Court. PER CURIAM:
¶1 Richard Anthony Baca petitions this court for review from the superior court's decision on his petition for post-conviction relief—in which Baca submitted he was entitled to additional pre-sentence incarceration credit. For reasons that follow, we conclude the superior court did not abuse its discretion by denying Baca's claim for additional credit but hold the court lacked the authority to reduce the credit it previously awarded Baca. We, therefore, grant review and grant relief in part.
FACTS AND PROCEDURAL HISTORY
¶2 In 2009, Baca was placed on probation for driving under the influence (Cause No. CR-2009-0255) and escape in the second degree (Cause No. CR-2009-0620). In May 2011, the State petitioned to revoke his probation, contending, inter alia, Baca had violated the "obey all laws" condition of probation by committing another crime. The superior court issued a warrant for Baca's arrest, specifying he should be held without bond pursuant to Arizona Rule of Criminal Procedure 7.2(c).
¶3 In June 2011, Baca's ex-girlfriend reported to law enforcement that he had physically and sexually assaulted her. On August 17, 2011, police arrested Baca in California on the probation violation warrant. Several days later, the State supplemented the petition to revoke probation by adding additional allegations, including that Baca failed to "obey all laws" by committing domestic violence and sexual assaults on his ex-girlfriend.
¶4 On August 26, 2011, the State charged Baca with one count of criminal damage in 2010 (Cause No. CR-2011-00626). The superior court ruled Baca was bondable in the criminal damage case but affirmed he should be held without bond in the -0255 and -0620 probation cases. Baca remained in custody. In December 2011, he pleaded guilty to violating probation in -0255 and -0620 and criminal damage in -00626. In the plea agreement, Baca admitted he violated probation by committing both the criminal damage offense and the alleged assaults on his ex-girlfriend. The superior court sentenced Baca to concurrent prison terms, the longest of which was two and one-half years, and awarded pre-sentence incarceration credit toward his sentences in the probation violation cases.
Although the record is not clear, the criminal damage offense appears to be the crime referred to in the initial petition to revoke probation.
¶5 In June 2012, while Baca was incarcerated for the above convictions, the State indicted him on three offenses stemming from his ex-girlfriend's report to law enforcement in June 2011—sexual assault, attempted sexual assault, and kidnapping. At Baca's arraignment, the superior court set a $25,000 bond.
¶6 Baca's first trial on the new charges resulted in a mistrial. Shortly thereafter, in late October or early November 2013, he was released from his imprisonment for the December 2011 convictions. The superior court ordered Baca to self-surrender and ruled he was not bondable. After Baca's second trial resulted in yet another mistrial, he pleaded guilty to the kidnapping charge, and the State dismissed the remaining two counts.
¶7 In September 2014, the superior court sentenced Baca to ten years' imprisonment for kidnapping. The parties disputed how much pre-sentence incarceration credit was due, however. Baca argued he was entitled to 1,096 days, which included time spent in custody on the probation violation warrant and ensuing incarceration. The State disputed that credit should date back to Baca's arrest on the probation violation warrant but stipulated to awarding credit from the date the indictment was filed in the kidnapping case. Following that stipulation, the superior court awarded Baca 787 days of credit. At the same time, it also ordered the Probation Department to independently calculate credit so that the parties could move to modify the sentence if warranted. See Ariz. R. Crim. P. 24.3(a) (allowing the superior court to correct an unlawful sentence within sixty days of judgment and sentence).
¶8 Two weeks later, the Probation Department filed a statement asserting that Baca had been held in the Navajo County jail for purposes related to this case for a total of 457 days. Neither party moved to modify Baca's sentence based on the Probation Department's report. On behalf of the victim, the State filed an appeal challenging an unrelated aspect of the sentencing order. See State v. Baca, 1 CA-CR 14-0691, 2015 WL 4131943, at *1, ¶ 1 (Ariz. App. July 9, 2015) (mem. decision). The State's appeal did not raise Baca's pre-sentence incarceration credit as an issue.
¶9 In a petition for post-conviction relief filed in 2018, Baca argued his sentence should be corrected to reflect 1,118 days of pre-sentence incarceration credit. See Ariz. R. Crim. P. 33.1(c), (d). The State responded by asserting that not only was Baca not entitled to 1,118 days of credit, but that the superior court erroneously awarded him too much credit at the time of sentencing and the court should therefore reduce Baca's credit to 457 days. The superior court agreed with the State and ordered Baca's award of pre-sentence incarceration credit to be modified from 787 days to 457 days.
The rules of procedure applicable to Baca's proceeding for post-conviction relief were amended as of January 1, 2020. The current rules apply to all actions "pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Ariz. S. Ct. Order R-19-0012 (Aug. 29, 2019). We cite the current rules unless otherwise indicated.
¶10 Baca petitioned this court for review of the superior court's order. We review the court's denial of post-conviction relief for an abuse of discretion, State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015), but we consider a petitioner's entitlement to pre-sentence incarceration credit de novo, State v. Lambright, 243 Ariz. 244, 249, ¶ 9 (App. 2017).
DISCUSSION
¶11 A defendant who is sentenced to prison shall be credited with "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense." A.R.S. § 13-712(B). Baca contends he should receive credit dating back to his August 17, 2011, arrest on the probation violation warrant because his probation was alleged to have been violated and subsequently revoked "pursuant to" the offense conducted in this case. Decisional authority interpreting § 13-712(B) does not support Baca's argument.
¶12 If a defendant is held in custody on two matters—which could comprise a petition to revoke probation and the offense that triggered the petition to revoke—the defendant is entitled to pre-sentence incarceration credit toward both sentences provided they are ordered to run concurrently. See State v. Cruz-Mata, 138 Ariz. 370, 375-76 (1983); State v. Brooks, 191 Ariz. 155, 156-57 (App. 1997); State v. Brooks, 161 Ariz. 177, 178, 181 (App. 1989). Conversely, if a defendant is held in custody on two matters as to which consecutive sentences are ordered, the defendant may not receive "double credit" toward both sentences. See State v. Whitney, 159 Ariz. 476, 487 (1989); see also State v. Sodders, 130 Ariz. 23, 30 (App. 1981) ("We do not believe . . . that the legislature intended that a criminal defendant would receive compounded credit time when consecutive sentences are imposed."); State v. McClure, 189 Ariz. 55, 57 (App. 1997) (by agreeing in a plea agreement to serve Arizona sentence consecutive to federal sentence, the defendant was not entitled to credit on Arizona sentence for time served during federal sentence even if some of that time was in an Arizona jail pursuant to the Arizona charges).
¶13 Here, Baca did not expressly receive a consecutive sentence in this case, nor did he receive a concurrent one. Rather, he was convicted and sentenced on the kidnapping charge after being released from his imprisonment in the probation-violation matter. The cases Baca relies on to support his argument for additional credit, State v. Guido, 1 CA-CR 15-0711, 1 CA-CR 15-0713, 2016 WL 3773536 (Ariz. App. July 12, 2016) (mem. decision) and Brooks, 161 Ariz. 177, are not dispositive because both entailed the imposition of concurrent sentences.
¶14 Although no Arizona decision addresses the precise circumstances before us, we find Baca's situation more akin to those involving consecutive, rather than concurrent, sentences because awarding him the credit he seeks would effectively give him double credit toward non-overlapping prison terms. Applying that principle, we hold Baca is not entitled to credit for all time spent in custody from the date of his arrest on the probation violation warrant—even if we assume the revocation of Baca's probation was connected to the charges in this case. Cf. State v. Gourdin, 156 Ariz. 337, 339 (App. 1988) (where defendant's sentence for an Arizona drug conviction began to run after his sentence for a federal parole violation triggered by the drug offense, the defendant was not entitled to credit toward the drug sentence for the days he spent in federal custody before the drug sentence began). By the same logic, there is nothing inherent in the fact of Baca's indictment or arraignment in this case—both of which occurred while he was incarcerated for the criminal damage and probation violation convictions—that would require the superior court to award credit for all time spent in custody from the date of either of those events.
The record does not show how Baca's credit toward his sentences in the probation violation cases was calculated, but Baca does not dispute that such credit included time spent in custody on the probation violation warrant.
¶15 Notwithstanding the general rule against awarding the same credit toward nonconcurrent sentences, there is authority justifying double credit where a defendant currently serving a prison term is transferred to a local jail to answer the local charge. In State v. De Passquallo, 140 Ariz. 228 (1984), the defendant was serving a federal prison sentence when he was transferred to a Maricopa County jail to stand trial on an Arizona charge. Id. at 229. Our supreme court held that even though the defendant received credit toward his federal sentence for the time he spent in the Arizona jail, he was also entitled to receive credit for that time toward his Arizona sentence—which began after the defendant was released from his federal sentence. Id.; see also State v. Seay, 232 Ariz. 146, 148,¶ 7 (App. 2013) (holding that the rule set forth in De Passquallo is not limited to a transfer from a federal correctional facility but also applies where the defendant is transferred from the custody of the Arizona Department of Corrections to a county jail).
¶16 Citing De Passquallo and Seay, the State argues that the only credit due Baca in this case for the time he spent in custody in the probation violation and criminal damage cases pertains to the days when he was held in a Navajo County jail to participate in proceedings in this case. Those days, combined with the time Baca spent in pre-sentence custody after his release in the probation violation and criminal damage cases, amount to 457 days of credit—in other words, the exact amount calculated by the Probation Department two weeks after Baca was sentenced.
¶17 Assuming the State's calculation is correct, we nonetheless hold the superior court lacked authority to modify the amount of credit initially awarded.
¶18 When the superior court imposes an unlawfully lenient sentence, the State may seek to correct the error by filing a post-trial motion to modify the sentence, see Ariz. R. Crim. P. 24.3(a), or by filing an appeal, see A.R.S. § 13-4032(5); Ariz. R. Crim. P. 31.2(a). Absent the State's timely resort to one of those mechanisms, the courts of this state lack authority to modify the sentence. See State v. Dawson, 164 Ariz. 278, 281, 286 (1990); see also Chaparro v. Shinn, 248 Ariz. 138, 142, ¶ 19 (2020) ("Illegally lenient sentences are final under Arizona law absent timely appeal or post-judgment motion."); State v. Condry, 114 Ariz. 499, 501 (1977) (declining to address State's argument, first raised in its respondent's brief, that defendant's sentence was improper because "a cross-assignment of error in the absence of a cross-appeal can be considered only in support of the judgment"); State v. Falkner, 112 Ariz. 372, 374 (1975) (superior court has no inherent power to modify a sentence).
Even though Baca's petition for review focuses on his claimed entitlement to 1,118 days of credit, without specifically challenging the superior court's authority to reduce the amount of credit originally awarded, the latter issue is considered a question of subject-matter jurisdiction, see Dawson, 164 Ariz. at 280, which "'can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised' in the [trial] court." State v. Chacon, 221 Ariz. 523, 526, ¶ 5 (App. 2009) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
¶19 Here, the State had notice two weeks after Baca was sentenced that he had been awarded too much pre-sentence incarceration credit. "It is clear in this case that the state, had it chosen to do so, could have challenged the incorrect pre-sentence incarceration credit on appeal or by post-trial motion." State v. Lee, 160 Ariz. 323, 324 (App. 1989). Having declined to do so at that point, the State did not regain the opportunity by Baca filing a post-conviction relief petition. Cf. State v. Kinslow, 165 Ariz. 503, 507 (1990) ("[W]e will not correct sentencing errors that benefit a defendant, in the context of his own appeal, absent a proper appeal or cross-appeal by the state."). If Baca had been entitled to file an appeal to challenge the award of pre-sentence incarceration credit, this court would have lacked authority to reduce Baca's credit absent a cross-appeal by the State. The State provides no authority or reasoned argument explaining why the rule preventing an appellate court from correcting an unlawfully lenient sentence absent timely appeal by the State should not apply equally in the context of proceedings for post-conviction relief. Rules for post-conviction relief specify different actions a superior court may take if it finds in the defendant's favor. See Ariz. R. Crim. P. 32.13(d)(2). But the rules do not offer an analogous provision regarding the scope of the court's authority if it decides against the defendant—the implication being that the court is limited to merely denying the petitioner's claim for relief. See A.R.S. §§ 13-4236(C), -4238(D).
¶20 Interpreting the rules for post-conviction relief together with the Dawson line of cases, we conclude the superior court lacked authority to reduce Baca's pre-sentence incarceration credit. Insofar as the court denied Baca's claim to additional credit, the court's ruling showed no abuse of discretion. The court's order reducing Baca's credit, however, is void. See State v. Chacon, 221 Ariz. 523, 526, ¶ 5 (App. 2009).
CONCLUSION
¶21 For the foregoing reasons, we vacate the superior court's order modifying Baca's pre-sentence incarceration credit and otherwise deny relief.