Opinion
No. 1 CA-CR 12-0321
04-25-2013
STATE OF ARIZONA, Appellee, v. EMELIO OSORIO-ROSAS, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Andrew Reilly, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas Baird, Deputy Public Defender Attorneys for Appellant
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(Not for Publication -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 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-134532-001
The Honorable Susanna C. Pineda, Judge
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Andrew Reilly, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Thomas Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix JOHNSEN, Judge ¶1 Emelio Osorio-Rosas appeals the superior court's award of presentence incarceration credit. For the following reasons, we modify the judgment of conviction to reflect 321 days of presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶2 At 5:17 p.m. on July 6, 2011, Osorio-Rosas was arrested after admitting he engaged in sexual conduct with a minor. The arresting officer certified a release questionnaire ("Form IV"), which included the booking number "P781918" and was dated July 6, 2011. The following day, the arresting officer executed a "Proposition 100" supplemental release questionnaire ("Supplemental"), using the same booking number as the Form IV but listing July 7, 2011 as the booking date. ¶3 A jury found Osorio-Rosas guilty of indecent exposure to a minor, a Class 6 felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1402(A) (West 2013); aggravated assault, a Class 6 felony, in violation of §§ 13-1203 (West 2013) and -1204(A)(6) (West 2013); and three counts of sexual conduct with a minor, Class 2 felonies and dangerous crimes against children in violation of § 13-1405(A) (West 2013). Sentencing originally was set for May 8, 2012, but was continued to May 22, 2012. At the continued hearing, the court sentenced Osorio-Rosas to concurrent one-year terms of imprisonment for the Class 6 felonies with 306 days' presentence incarceration credit and three consecutive terms of life imprisonment without the possibility of release for 35 years for the Class 2 felonies. ¶4 Osorio-Rosas timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013).
Absent material revisions after the date of an alleged offense, we cite a statute's current version.
DISCUSSION
¶5 As Osorio-Rosas's sole issue on appeal, he argues the superior court granted him too few days of presentence incarceration credit. Although he failed to object at sentencing, the failure to grant a defendant all the presentence incarceration credit to which he is entitled is fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). ¶6 "All 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 for by this chapter." A.R.S. § 13-712(B) (West 2013). "Custody" does not include the time during which a defendant is held under arrest prior to being "booked" into a detention facility. State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690, 691-92 (App. 1993); State v. Cereceres, 166 Ariz. 14, 16, 800 P.2d 1, 3 (App. 1990). "Arizona court decisions have consistently interpreted the 'in custody' requirement of this statute to mean actual or constructive control of prison or jail authorities." State v. Reynolds, 170 Ariz. 233, 235, 823 P.2d 681, 683 (1992). ¶7 The 306 days of credit would have been proper if Osorio-Rosas were booked into jail on July 7, 2011, and sentenced on May 8, 2012, the original date of sentencing. Osorio-Rosas argues he is entitled to 321 days of incarceration credit because that is the number of days between July 6, 2011, the date on the Form IV, and May 22, 2012, the date he was sentenced. Osorio-Rosas argues that because his booking number appears on the release questionnaire dated July 6, 2011, we can "deduce that a booking number was issued on the same day that the [Form IV] was prepared." The State concedes that the superior court erred by failing to take into account the additional days of presentence incarceration that resulted after sentencing was postponed. It argues, however, that Osorio-Rosas is entitled to only 320 days of presentence incarceration credit because the Supplemental states his date of booking as July 7, 2011. ¶8 The question, then, is whether Osorio-Rosas is entitled to 321 or 320 days of presentence incarceration credit. The arresting officer certified the Form IV on July 6, 2011, and the form bearing that date included a booking number. More paperwork, including the Supplemental, may have been necessary to complete the booking procedure, but we infer that Osorio-Rosas was in the actual control of prison or jail authorities once he was assigned a booking number and the Form IV was completed. Because Osorio-Rosas was assigned a booking number on July 6, we conclude that is the date he was "booked" into jail for purposes of this issue. ¶9 We therefore modify Osorio-Rosas's sentence to grant him 321 days of presentence incarceration credit. See Ariz. R. Crim. P. 31.17(b); State v. Stevens , 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App. 1992) (modifying award of presentence incarceration credit without remanding).
CONCLUSION
¶10 We affirm Osorio-Rosas's convictions and the sentences imposed, except that we modify the sentences imposed on the two Class 6 felonies to reflect presentence incarceration credit of 321 days.
__________________________
DIANE M. JOHNSEN, Judge
CONCURRING: __________________________
SAMUEL A. THUMMA, Presiding Judge
__________________________
MICHAEL J. BROWN, Judge