Opinion
No. 1 CA-CR 15-0838 No. 1 CA-CR 16-0091 (Consolidated)
12-20-2016
STATE OF ARIZONA, Appellee, v. HENRY SIMON HOLGUIN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-119474-001
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Acting Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Jennifer B. Campbell joined. THUMMA, Judge:
The Honorable Jennifer B. Campbell, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 In these consolidated cases, Henry Simon Holguin appeals from his felony conviction and resulting prison sentence for unlawful flight from a law enforcement vehicle. Holguin argues the superior court improperly resentenced him, in absentia, by granting the State's motion to amend the sentencing minute entry, nunc pro tunc, resulting in a prison sentence of five years and five months, not six years with 208 days of presentence incarceration credit, as he was not entitled to any presentence incarceration credit. Because Holguin has shown no reversible error, his sentence, as clarified in the nunc pro tunc minute entry, is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In this case, a jury found Holguin guilty of unlawful flight from a law enforcement vehicle, a Class 5 felony, committed in April 2015. In another case pending at that same time, a jury found Holguin guilty of other felonies committed in March 2015. The court set a consolidated sentencing hearing for both cases.
In this case, Holguin also was found guilty of threatening or intimidating, a Class 1 misdemeanor, and sentenced to time served, a conviction and sentence not at issue on appeal.
¶3 Holguin was present at the November 23, 2015 sentencing and addressed the court. After considering a presentence report, information provided before and at the sentencing and arguments of counsel, the court sentenced Holguin to concurrent, mitigated prison terms (the longest of which was six years) in the other case. In this case, the court sentenced Holguin to a mitigated term of six years in prison, to be served consecutively to the concurrent prison terms in the other case. Although imposing consecutive sentences, the court stated it was awarding Holguin presentence incarceration credit of 210 days in the other case and 208 days in this case.
¶4 On December 8, 2015, the State filed a motion to amend the November 23 sentencing minute entry, nunc pro tunc. The State argued that, given the prison sentence in this case was consecutive to the other case, Holguin was not entitled to presentence incarceration credit in this case. See State v. McClure, 189 Ariz. 55, 57 (App. 1997) ("[w]hen 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."). Because the sentence imposed was an illegal sentence, the State asked the court to amend the sentencing minute entry in this case to reflect that Holguin "is to receive credit for zero days served." The response filed by Holguin's counsel stated that the relief requested by the State "would be a modification" of Holguin's sentence that could not be done without his "presence or waiver of his presence."
¶5 On December 14, 2015, Holguin filed a notice of appeal from the November 23 sentence. The superior court then set a hearing on the State's motion to amend for January 29, 2016 and issued a transport order to secure Holguin's presence for that hearing. Holguin, however, was transported to Pinal County Superior Court for another criminal case on January 29.
¶6 At the January 29 hearing in this case, Holguin's counsel told the court that Holguin was transported to Pinal County and was not present for the hearing. She avowed to the court, however, that she had spoken with Holguin and "he did wish to waive his presence at this point." Holguin's counsel added that she "explained to him that this could be considered a resentencing. He has an absolute right to be present for that and he told [her] that he wished to waive his presence, so [she's] fine moving forward with that from him, if the Court believes that that is acceptable." The State's position was that the hearing was not
a resentencing. There's no -- the Court is not considering any new aggravating factors or mitigating factors, it merely has to do with the amount of credit he is to receive in one of his cases. So I believe we are fine to proceed without him, in any event, but I also do take
[counsel for Holguin], obviously, at her word and she says she has spoken to him and he has waived his presence for today.
¶7 The court then recounted its "intent, basically, to give him the credit for that time. What I'm going to be doing is adjusting the length of his [prison] sentence. So if I can't give him the credit for 208 days, I intend to reduce the sentence to five years and five months on the matter in which he is erroneously, apparently, being given credit." After the State repeated that it took counsel's avowals that Holguin waived his presence, the court wondered aloud whether Holguin needed to be present and whether the court's intention "converts this into [a] resentencing." Holguin's counsel stated "I do think that it is a resentencing then since . . . the Court is changing his sentence. But, I mean, I did speak with him and if we want . . . It's to his benefit," adding that Holguin "did not want to be brought back." The court then recalled that, at sentencing, it "looked at the total amount of time that [Holguin] was going to serve between the two cases," it "was mistaken" in giving him 208 days of presentence credit in this case and that, given its desire to impose "the same length of sentence," expressed an inclination to grant the State's motion to modify the sentencing minute entry, nunc pro tunc, to impose a prison term of five years and five months with no presentence incarceration credit. Although the court gave counsel an opportunity to present argument, they declined to do so and the court concluded by stating it would "issue a minute entry." At no point was there any objection to going forward with the hearing without Holguin present.
¶8 The resulting minute entry noted Holguin "waives his presence for the purposes of this hearing," adding
THE COURT FINDS the prison term needs to be modified to delete the credit for presentence incarceration time served as the Defendant was not entitled to credit on a consecutive sentence. However, the Court considered the total amount of time in the aggregate the Defendant would be required to serve when imposing the sentence and does not feel a longer sentence is warranted. Therefore,
The Court affirms the previous findings from November 23, 2015.
IT IS ORDERED amending the prison term nunc pro tunc to reflect the Defendant shall serve five years and five months in the Department of Corrections consecutive to [the other case], with no credit for time served rather than 6 years with credit for 208 days.This minute entry accounts for an error of law (improperly awarding presentence incarceration credit where the law did not allow for such credit) by imposing, nunc pro tunc, a prison sentence several days shorter than the net sentence announced on November 23.
The remainder of the sentencing minute entry stands in full force and effect as stated therein.
¶9 Holguin then filed a timely appeal from this nunc pro tunc minute entry. This court consolidated the cases sua sponte, and has jurisdiction over the consolidated case pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A) (2016).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶10 Holguin does not challenge his conviction or the length of his sentence. Instead, arguing the January 29 hearing was a resentencing, Holguin argues he was denied his rights to be present and of allocution at a resentencing. Holguin's arguments turn on whether the January 29 hearing was a resentencing that triggers those rights, see State v. Davis, 105 Ariz. 498, 502 (1970) (holding resentencing requires defendant's presence as much as an original sentencing) or a proceeding that simply led to a nunc pro tunc order correcting the original sentencing order, for which Holguin had no right to be present.
¶11 Because Holguin did not object at the time of the January 29 hearing, and because the superior court "has observed, questioned, listened to the defendant and his attorney, and advised the defendant of his appellate and post-conviction rights," State v. Forte, 222 Ariz. 389, 395 ¶ 21 (App. 2009), this court reviews the issue for fundamental error, State v. Allen, 235 Ariz. 72, 78 ¶ 21 (App. 2014); see also State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20 (2005). "Accordingly, [Holguin] 'bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.'" State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).
¶12 The parties' positions about the nature of the January 29 hearing have changed over time. The State's motion sought a nunc pro tunc amendment to the sentencing minute entry, not a resentencing. Holguin's counsel claimed he had a right to be present at the January 29 hearing, and the court issued a transportation order to make that so, but when Holguin was not transported, his counsel made no objection to the hearing proceeding. Indeed, after the superior court relayed its intention to impose the same net sentence (albeit a shorter prison term, given Holguin had no right to presentence incarceration credit), there was no objection to the hearing going forward in his absence. And neither party made any record, or had any issue, regarding proceeding, even when asked for their positions by the superior court. Accordingly, and although the superior court questioned whether Holguin should be present, it decided the appropriate action was to issue a nunc pro tunc correction and the hearing went forward as scheduled. On this record, Holguin has not shown error.
Nor does the State's repeated reference in its answering brief to the January 29 hearing as a "resentencing" constitute a confession of error, let alone a confession of error binding on this court. See State v. Stewart, 3 Ariz. App. 178, 180 (1966) ("[W]e are not bound by a confession of error in a criminal case."). --------
¶13 Although stated differently in different cases, at the core, the purpose of a nunc pro tunc order "is to make the record reflect the intention of the . . . court at the time the record was made." State v. Pyeatt, 135 Ariz. 141, 143 (App. 1982). Comparing the transcripts from the November 23 sentencing and the January 29 hearing shows that is precisely what the nunc pro tunc order accomplishes here.
¶14 The transcript from the November 23 sentencing suggests that the superior court was focused on the proper prison term to be imposed in the two cases collectively, recognizing the sentences were consecutive. The transcript from the January 29 hearing on the State's motion for a nunc pro tunc order is even more express. At that hearing, the court stated that, at sentencing, it was "look[ing] at the total amount of time that he was going to serve between the two cases." The court recounted its "intent, basically, to give him the credit for that time. What I'm going to be doing is adjusting the length of his [prison] sentence. So if I can't give him the credit for 208 days, I intend to reduce the sentence to five years and five months on the matter in which he is erroneously, apparently, being given credit." As the court stated, this resulted in "the same length of sentence, which is what [the court] was focusing on at the time that [it] imposed the sentence."
¶15 From these transcripts, where the superior court explained its rationale for entering the nunc pro tunc order and did so to reflect the intent of the original sentencing rulings, "[t]his is not a case where the trial court failed to express its true intention; its intent is clearly expressed in the record." State v. Hanson, 138 Ariz. 296, 304 (App. 1983). Moreover, when a court makes a favorable adjustment to presentence incarceration credit, it is not considered a resentencing. See, e.g., State v. Cruz-Mata, 138 Ariz. 370, 376 (1983) (crediting defendant with appropriate amount of credit without remanding for resentencing); State v. Carnegie, 174 Ariz. 452, 455 (App. 1993) (similar); State v. Brooks, 161 Ariz. 177, 181 (App. 1989) (similar). Likewise, when a court favorably reduces a sentence to account for credit erroneously given to a defendant but to which the defendant was not entitled, it properly is not considered a resentencing.
¶16 The nunc pro tunc order entered here was not "the rendering of a new judgment and the ascertainment and determination of new rights." Am. Sur. Co. of N.Y. v. Mosher, 48 Ariz. 552, 564 (1936). Instead, it merely made the sentencing minute entry "speak the truth" of the court's intention at the time of sentencing. Pyeatt, 135 Ariz. at 143. As such, in this unique case, Holguin has shown no reversible error, let alone fundamental error resulting in prejudice, in the court entering the nunc pro tunc order or the process that resulted in that order.
CONCLUSION
¶17 Because Holguin has shown no error, his sentence is affirmed.