Opinion
No. 1 CA-CR 16-0003 PRPC
06-06-2017
STATE OF ARIZONA, Respondent, v. SAMUEL JORDAN ORONA-HARDEE, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Samuel J. Orona-Hardee, Eloy 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2012-156763-001
The Honorable John R. Ditsworth, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Samuel J. Orona-Hardee, Eloy
Petitioner
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
JONES, Judge :
¶1 Samuel Orona-Hardee petitions this Court for review of the trial court's ruling on his petition for post-conviction relief denying a portion of the relief sought. We have considered the petition for review and, for the reasons stated, grant review but deny relief.
¶2 Orona-Hardee pled guilty to one count of stalking. The trial court imposed a presumptive 6.5-year term of imprisonment and ordered that it be served consecutive to the prison term Orona-Hardee was serving for earlier convictions on other charges.
¶3 Orona-Hardee timely filed a notice of post-conviction relief. After his appointed counsel notified the trial court that counsel found no basis for post-conviction relief, Orona-Hardee filed an in propria persona petition for post-conviction relief, raising a claim of ineffective assistance of counsel based upon counsel's failure to clarify his custody status, and seeking credit for 596 days of presentence incarceration. In its ruling on the petition, the court granted Orona-Hardee credit for the 363 days he spent in custody in the Maricopa County jail pending resolution of the stalking charge.
¶4 On review, Orona-Hardee contends the trial court erred by denying him credit for the additional 233 days he was in the custody of the Department of Corrections during the pendency of the stalking charge. We review a trial court's ruling on a petition for post-conviction relief for an abuse of discretion. See State v. Seay, 232 Ariz. 146, 147, ¶ 1 (App. 2013) (citing State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007)).
¶5 A defendant is entitled to credit for "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense." Ariz. Rev. Stat. § 13-712(B) (2017). Orona-Hardee argues he should be credited with the entire 596 days he was in custody during the pendency of the stalking charge regardless of the actual location where he was being housed. He asserts that even when he was in the physical custody of the Department of Corrections he remained in custody on the stalking charge because he was being held on bond on that charge throughout its prosecution.
¶6 Orona-Hardee's argument, however, ignores the fact that the trial court ordered the sentence imposed on the stalking charge be served consecutive to the sentence he was serving on his prior convictions. For this reason, both Orona-Hardee and the trial court's reliance on this Court's
decision in Seay is misplaced. Although procedurally similar in many aspects, Seay is readily distinguishable because the sentences imposed therein were ordered concurrent, not consecutive. 232 Ariz. at 147, ¶ 2; see also State v. Cruz-Mata, 138 Ariz. 370, 375-76 (1983) (overruling State v. Wallis, 132 Ariz. 445 (1982), in holding a defendant sentenced to concurrent terms is entitled to have presentence incarceration credit applied to each).
¶7 Even though Orona-Hardee was in custody while serving time on another sentence during the entire presentence period for the stalking charge, the sentence imposed for that offense was ordered consecutive to the sentence imposed for Orona-Hardee's prior offenses. "When consecutive sentences are imposed, a defendant is not entitled to presentence incarceration credit on more than one of those sentences." State v. McClure, 189 Ariz. 55, 57 (App. 1997) (citing State v. Cuen, 158 Ariz. 86, 88 (App. 1988), and then State v. Jackson, 170 Ariz. 89, 94 (App. 1991)). To allow otherwise would give Orona-Hardee an impermissible "double credit windfall." Cuen, 158 Ariz. at 87.
¶8 Accordingly, Orona-Hardee was not entitled to any presentence incarceration credit toward his sentence on the stalking charge. Indeed, the trial court erred by imposing an illegally lenient sentence when it credited Orona-Hardee with 363 days of presentence incarceration against the sentence imposed on the stalking charge. However, because the State did not seek review of that ruling, we lack jurisdiction to correct the illegally lenient sentence. See State v. Dawson, 164 Ariz. 278, 286 (1990) ("[W]e will continue to decline correction of illegally lenient sentences in the absence of proper appeals or cross-appeals by the state.").
¶9 Because there was no error by the trial court in denying credit for the additional 233 days of presentence incarceration sought by Orona-Hardee, we grant review, but deny relief.