Opinion
1 CA-CR 20-0485 PRPC
06-15-2021
STATE OF ARIZONA, Respondent, v. DORIAN DWIGHT MCCLELLAN, Petitioner.
Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Respondent Dorian Dwight McClellan, Douglas Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2018-002775-001 The Honorable Michael J. Herrod, Judge.
Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Dorian Dwight McClellan, Douglas
Petitioner
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
MEMORANDUM DECISION
FURUYA, Judge.
¶1 Dorian McClellan petitions this court for review from the dismissal of his petition for post-conviction relief filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 33.1. Granting review, we deny relief.
¶2 The State indicted McClellan in 2018 on charges of aggravated taking identity of another and forgery. The superior court issued a warrant for his arrest. On December 3, 2018, police in North Dakota made contact with McClellan after a traffic stop and learned of the Arizona warrant. McClellan was taken into custody based on the Arizona warrant and after officers found probable cause he had committed drug crimes under North Dakota law.
¶3 Pursuant to the Interstate Agreement on Detainers, McClellan was later transported from the custody of the North Dakota State Penitentiary to Arizona and booked in the Maricopa County Jail on April 25, 2019. He was held without bond because of his North Dakota imprisonment. A few months later, McClellan plead guilty to the Arizona charge of aggravated taking identity of another. On August 28, 2019, the Arizona superior court sentenced him to a minimum term of 2.5 years' imprisonment for that offense, with 125 days of presentence incarceration credit, to be served concurrently with McClellan's North Dakota sentence.
¶4 Approximately one year after he was sentenced in this case, McClellan filed a "Motion to Correct Clerical Oversight" in the superior court, asserting the court had awarded him too little presentence incarceration credit. McClellan argued he should have received 269 days of presentence incarceration credit, "from December 3rd, 2018 until August 28, 2019." The court denied the motion, reasoning it had awarded the correct amount of credit based on the date McClellan was booked into the Maricopa County Jail.
¶5 McClellan petitioned this court for review of the superior court's decision. Further, McClellan's petition states it was filed pursuant to Rule 32.16. However, because he pled guilty, and also because he argues the court erred by not awarding him credit for the period he spent in North Dakota custody pursuant to the Arizona warrant, we review McClellan's motion instead pursuant to Rule 33. See Ariz. R. Crim. P. 33.1(c) and 33.3(b).
¶6 To be timely, a defendant seeking relief under Rule 33.1(c) "must file the notice for a claim . . . within a reasonable time after discovering the basis for the claim." Ariz. R. Crim. P. 33.4(b)(3)(B) .
¶7 Given the nature of McClellan's argument, it would appear that he would have known of the proper number of days that should have been credited to him against his sentence for time served upon the entry of the superior court's sentencing order. But no such challenge was made at sentencing and his motion challenging that calculation was not filed until after the passage of nearly a year. No explanation was given for this significant delay.
¶8 Moreover, the superior court's decision shows no abuse of discretion because McClellan failed to carry his burden of demonstrating entitlement to additional credit. See State v. Cecena, 235 Ariz. 623, 625, ¶ 10 (App. 2014). Even though McClellan states he was in custody in North Dakota at least in part because of the Arizona warrant, he does not provide sufficient information about his North Dakota conviction- such as when he was charged and taken into custody in that matter-to show "that the Arizona charge was a but for cause" of his North Dakota incarceration. Id. (citation and internal quotation marks omitted).
¶9 For these reasons, we accept jurisdiction but deny the relief requested.