Opinion
No. 1 CA-CR 12-0124
01-08-2013
STATE OF ARIZONA, Appellee, v. NEAL ARTHUR HERRELL, Appellant.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Angela Kebric, Assistant Attorney General Attorneys for Appellee D. Jesse Smith Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-048902-001
The Honorable Maria del Mar Verdin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
and Angela Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix D. Jesse Smith
Attorney for Appellant
Tucson HOWE, Judge ¶1 Neal Arthur Herrell appeals his sentences, arguing that the trial court erroneously imposed consecutive sentences and erroneously calculated his presentence incarceration credit. For the reasons that follow, we find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A grand jury indicted Herrell on possession of marijuana for sale, a class four felony (Count One); misconduct involving weapons (use of a deadly weapon in commission of a felony), a class four felony (Count Two); misconduct involving weapons (possession of a weapon while being a prohibited possessor), a class four felony (Count Three); and possession of drug paraphernalia, a class six felony (Count Four). ¶3 At the settlement conference, the prosecutor agreed with defense counsel that she did not "think" the sentences could be consecutive, and defense counsel accordingly explained to Herrell that, if convicted, his presumptive sentence would be ten years, and his maximum sentence fifteen years. Herrell rejected the State's plea offer of a stipulated four-and-a-half year sentence, believing "the plea offer [was] ridiculous" and explaining that he believed that he would be successful on a motion to suppress or at trial. At a later hearing on Herrell's request that he be allowed to waive counsel and represent himself, the prosecutor reiterated that she "believe[d]" the sentences on the counts "would run concurrent." ¶4 A jury convicted Herrell of all the charges. At sentencing, the prosecutor asked the court to impose presumptive ten-year sentences on each of Counts One, Two, and Three, and that two of the ten-year sentences be served consecutively. Herrell did not object to the prosecutor's request for consecutive sentences. ¶5 The trial court sentenced Herrell to ten years' imprisonment on each of Counts One, Two, and Three, and to 3.75 years' imprisonment on Count Four, and ordered that the sentence on Count Two be served consecutively to the sentence on Count One, and that the sentences on Counts Three and Four be served concurrently with that on Count Two. On appeal, this Court affirmed the convictions but ordered the sentences vacated and the case remanded for resentencing because imposing consecutive sentences on Counts One and Two was impermissible. See State v. Herrell, 1 CA-CR 09-0898, 2011 WL 2176464, at *9, ¶ 42 (Ariz. App. May 26, 2011). ¶6 At the resentencing hearing, the prosecutor once again asked the court to impose presumptive ten-year sentences on each of Counts One, Two, and Three, and order that two of the ten-year sentences be served consecutively. The court once again sentenced Herrell to ten years' imprisonment on each of Counts One, Two, and Three, and to 3.75 years' imprisonment on Count Four, but this time ordered that the sentence on Count Three be served consecutively to the sentence on Count One, and the sentences in Counts One, Two and Four be served concurrently. The court ordered that 876 days of presentence incarceration credit be given only on Counts One, Two and Four.
DISCUSSION
¶7 At issue in this appeal is Herrell's resentencing. Herrell argues that equitable and judicial estoppel barred the trial court from imposing a consecutive sentence on Count Three. He argues that the prosecutor's statements during the settlement conference and a pretrial hearing that any sentences would be concurrent, required the trial court to impose only concurrent sentences. ¶8 We review a trial court's decision not to apply estoppel for an abuse of discretion. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007). Because Herrell failed to raise an issue of judicial or equitable estoppel with the trial court either at his initial sentencing or on resentencing however, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Herrell accordingly bears the burden of establishing that error occurred, that the error was fundamental, and that the error caused him prejudice. Id. at 567, ¶ 20, 115 P.3d at 607. ¶9 Herrell has failed to show that the court erred, much less fundamentally erred, by not applying judicial estoppel and equitable estoppel to bar the imposition of a consecutive sentence. Herrell cannot demonstrate that the court erred in failing to apply judicial estoppel. "Judicial estoppel prevents a party from taking an inconsistent position in successive or separate actions." State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304 (1996). "Judicial estoppel is not intended to protect individual litigants but is invoked to protect the integrity of the judicial process by preventing a litigant from using the courts to gain an unfair advantage." Id. Judicial estoppel is appropriate only when (1) the parties are the same, (2) the question involved is the same, and (3) the party asserting the inconsistent position was successful in the prior judicial proceeding. Id. ¶10 Judicial estoppel does not apply in this case because the prosecutor's positions that Herrell alleges were inconsistent, occurred in the same action and not in a prior judicial proceeding. Moreover, even if the settlement conference and waiver of counsel hearing could be considered "prior judicial proceedings" with respect to the resentencing, Herrell has failed to meet his burden to show that the prosecutor was somehow "successful" in asserting that the sentences would be concurrent in those pretrial hearings, as also necessary for application of judicial estoppel. See Towery, 186 Ariz. at 184, 920 P.2d at 306 (finding judicial estoppel did not occur where the State's prior position was not successfully maintained). ¶11 Herrell has also failed to demonstrate that the court erred in failing to apply equitable estoppel. Equitable estoppel has three elements: "(1) the party to be estopped commits acts inconsistent with a position it later adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former's repudiation of its prior conduct." Valencia Energy v. Ariz. Dep't of Rev., 191 Ariz. 565, 576-77, ¶ 35, 959 P.2d 1256, 1267-68 (1998). ¶12 Herrell has failed to argue or demonstrate that he suffered prejudice because of the prosecutor's suggestion in the settlement conference (and in the waiver of counsel hearing) that the sentences would be concurrent. To the extent that Herrell suggests had he known the sentences could be imposed consecutively, he would have accepted the plea offer, the record does not support this claim. The record reflects that Herrell rejected the plea offer because he believed he would be successful in a motion to suppress or at trial, and he believed the offer "ridiculous." Cf. Herrell, 2011 WL 2176464, at *9, ¶ 42, n.12 (declining defendant's request to remand for a Donald hearing, on the ground that "[i]t is amply clear from the record before us that such a hearing is not called for because we are firmly convinced that Defendant here was not interested in accepting the State's plea offer under any circumstance prior to trial."). Under these circumstances, Herrell has failed to meet his burden to demonstrate that he relied to his prejudice on the prosecutor's suggestion that the court would impose concurrent sentences, as necessary for application of equitable estoppel. See Valencia Energy, 191 Ariz. at 576-77, 959 P.2d at 1267-68. ¶13 Herrell also argues that the court incorrectly refused to credit him on Count Three with 876 days of time served before resentencing. He argues that because the court initially ordered that the sentence on Count Three be served concurrently with the sentence on Count Two, the 876 days he spent in prison before resentencing should also be awarded on Count Three, instead of only on Counts One, Two and Four. ¶14 We find no merit in Herrell's argument. Pursuant to Arizona Revised Statutes section 13-712(B) (Westlaw 2012), "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided by this chapter." The same rule applies to a new sentence imposed after the original sentence is vacated: "[T]he new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence." A.R.S. § 13-712(C). A defendant is not entitled to "double credit," however. State v. Whitney, 159 Ariz. 476, 487, 696 P.2d 638, 649 (1989). "When consecutive sentences are imposed, a defendant is not entitled to presentence incarceration credit on more than one of those sentences, even if the defendant was in custody pursuant to all of the underlying charges prior to trial." State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106 (App. 1997). The court awarded 876 days of presentence incarceration credit on Count One (as well as Counts Two and Four). Because the court ordered Herrell to serve his ten-year sentence on Count Three consecutively to his ten-year sentence in Count One, Herrell is not entitled to any presentence incarceration credit on Count Three. ¶15 For the foregoing reasons, we affirm Herrell's sentences.
We cite to the current version of the statute, which has not materially changed since the date of this offense.
___________
RANDALL M. HOWE, Judge
CONCURRING: ___________
MAURICE PORTLEY, Presiding Judge
___________
PATRICIA A. OROZCO, Judge