Opinion
No. 2 CA-CR 2018-0332-PR
04-10-2019
THE STATE OF ARIZONA, Respondent, v. JOHNNY RAY CALVIN, Petitioner.
COUNSEL Mark Brnovich, Arizona Attorney General By Daniel P. Schaack, Assistant Attorney General, Phoenix Counsel for Respondent Johnny Ray Calvin, Tucson 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR200901726
The Honorable Jason R. Holmberg, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Mark Brnovich, Arizona Attorney General
By Daniel P. Schaack, Assistant Attorney General, Phoenix
Counsel for Respondent Johnny Ray Calvin, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Petitioner Johnny Calvin seeks review of the trial court's denial of his motions asking the court to clarify his sentences and comply with the "correct[]" sentencing order. We will not disturb the court's rulings absent an abuse of discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Calvin has not shown such abuse here.
In our January 31, 2019 order we stated we would treat Calvin's petition for review as his opening brief and permitted the state to file an answering brief, which it did. We now determine that our order was improvidently issued, and treat this matter as a post-conviction proceeding pursuant to Rule 32, Ariz. R. Crim. P., and A.R.S. § 13-4239. Although the motions before us on review were not expressly filed pursuant to Rule 32, Calvin did allege, in at least one of those motions, that he is entitled to immediate release. We thus conclude Calvin's claim is arguably cognizable under Rule 32. See Ariz. R. Crim. P. 32.1(d) cmt. (post-conviction relief for miscalculated sentence only available when petitioner would have been released already but for alleged error). And we therefore treat the trial court's ruling before us on review as a final decision as contemplated by Rule 32.9(c), a conclusion with which the state seems to agree. See State v. Serrano, 234 Ariz. 491, ¶ 4 (App. 2014) (appellate court has "independent duty to examine and confirm [its] appellate jurisdiction").
¶2 Pursuant to a plea agreement, Calvin was convicted of conspiracy to commit transportation and possession of marijuana for sale, illegally conducting an enterprise, transportation of marijuana for sale, possession of marijuana for sale, and use of a wire communication in a drug transaction (the "Pinal" matter). In 2012, the trial court sentenced him to concurrent and consecutive prison terms totaling 12.5 years. Calvin twice sought and was denied post-conviction relief and this court denied relief on review in both instances. State v. Calvin, No. 2 CA-CR 2017-0172-PR (Ariz. App. Sept. 5, 2017) (mem. decision); State v. Calvin, No. 2 CA-CR 2016-0075-PR (Ariz. App. Aug. 11, 2016) (mem. decision).
In his reply to the state's response to the petition for review, Calvin correctly points out that he received a five-year sentence for count fifteen, rather than the 2.5-year presumptive sentence the trial court stated it intended to impose. Insofar as Calvin intended to raise this as a claim, he is precluded from doing so in this successive Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(a)(2)(A); see also State v. Shrum, 220 Ariz. 115, ¶¶ 6-7, 23 (2009) (illegal sentence claim subject to preclusion). Moreover, fundamental error claims are not excepted from preclusion under Rule 32.2. See State v. Swoopes, 216 Ariz. 390, ¶ 42 (App. 2007).
¶3 In May 2018, the trial court issued an order "correcting" its 2012 sentencing order, noting that "the term[s] of incarceration imposed in the Pinal County case run concurrent with [Calvin's unrelated] Yuma County case," and correcting its original sentencing order to provide that, although consecutive to each other, counts eight and fourteen are to be served concurrently with, rather than consecutively to, the sentences in the Yuma County matter. Calvin then filed the above-referenced motions, arguing he was entitled to credit on his sentence for count fourteen for the time he had already served on counts one, two, fifteen, and the Yuma sentences, and that he thus was entitled to immediate release. Calvin so argued despite the fact that he was ordered to serve count fourteen consecutive to count eight; Calvin completed his sentence in count eight in September 2018, while this matter was pending before the trial court.
Pursuant to the corrected sentencing order, Calvin was sentenced as follows: counts one (five years), two (3.5 years), eight (7.5 years), and fifteen (five years) to run concurrent with each other; count fourteen (five years) to run concurrent with counts one, two and fifteen, but consecutive to count eight; and all of the Pinal sentences to run concurrent with the Yuma sentences (two concurrent 2.5-year terms).
¶4 On review, Calvin argues that, because counts one, two and fifteen were concurrent with count fourteen, and because he has finished serving the sentences for the former counts, the time he served pursuant to those counts should be credited to his sentence in count fourteen, which he maintains, therefore, "expired prior to commencing." In a related argument, Calvin contends that if the 218 days of presentence incarceration credit he received on the other Pinal counts had been properly applied to count fourteen, he would have been released in September 2018, when his sentence for count eight expired.
In his reply, Calvin presents what is essentially a new argument based on A.R.S. § 13-116, albeit couched as a "reply" to the "convoluted argument" the state presented in its response to the petition for review. We do not address issues raised for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (petition for review shall contain "statement of issues the trial court decided that the defendant is presenting for appellate review").
¶5 In its orders denying Calvin's motions below, the trial court essentially adopted the reasoning set forth in the state's response to those motions. As the state argued, Calvin began serving his five-year sentence for count fourteen in September 2018, immediately upon completion of his 7.5-year term for count eight, as A.R.S. § 41-1604.07(I) provides and as the court ordered. In addition, the Arizona Department of Corrections (ADOC) did not wait until the Yuma sentences ended before beginning the sentences in counts one, two, eight, and fifteen, but instead began counting those sentences on the day Calvin was sentenced in November 2012.
¶6 The state attached to its response below the declaration of Leovy DeGuzman, the sentence calculation administrator at ADOC. DeGuzman's detailed calculations, which referred to the trial court's May 2018 corrected sentencing order, established that Calvin's earliest possible release date on count fourteen, factoring in the maximum earned release credits to which he is entitled under A.R.S. § 41-1604.07(A), is December 29, 2022. Notably, other than Calvin's assertion that his sentence for count fourteen has expired, he has not challenged or meaningfully disputed the accuracy of DeGuzman's calculations.
¶7 And, although the original sentencing minute entry stated the sentence for count fourteen "is to date from this date," the trial court's oral pronouncement of sentence unambiguously confirmed that counts eight and fourteen were consecutive to each other: "[S]o I end up giving you essentially twelve-and-a-half years as a package . . . . [O]n Count 8 you'll get the seven-and-a-half and on Count 14 you'll get five, which makes twelve-and-a-half." See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013) (when discrepancy between oral pronouncement of sentence and written minute entry can be resolved by looking at record, oral pronouncement controls). Moreover, the "consecutive" language the court used in its original sentencing order and in its May 2018 corrected order clearly shows it intended that counts eight and fourteen be served consecutively.
¶8 And, as the state argues in its response, "concurrent sentences are served simultaneously only while both are in effect—when they overlap." See Bullard v. Dep't of Corr., 949 P.2d 999, 1002 (Colo. 1997) ("When two sentences run concurrently, it merely means that, for each day in custody while serving both sentences, the inmate receives credit toward each sentence. Concurrent sentences do not necessarily begin and end at the same time—they simply run together during the time that they overlap."). Despite Calvin's arguments, because counts eight and fourteen are consecutive, count fourteen did not overlap with his other counts. Finally, the trial court did not give Calvin credit for the 218 days of presentence incarceration credit on count fourteen expressly because that count was to be served consecutively to count eight. See State v. Cruz-Mata, 138 Ariz. 370, 374-76 (1983) (presentence incarceration credit applies to each concurrent sentence imposed, but may only apply once when consecutive sentences are imposed).
¶9 For all of these reasons, we conclude the trial court did not abuse its discretion by denying Calvin's motions. Accordingly, we grant review but deny relief.
We decline the state's request that we publish our decision in this matter. --------