Opinion
2 CA-CR 2021-0118-PR
02-17-2022
The State of Arizona, Respondent, v. Cory Rivers, Petitioner.
Cory Rivers, Tucson In Propria Persona
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20185369001 The Honorable Michael J. Butler, Judge
Cory Rivers, Tucson In Propria Persona
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Espinosa concurred.
MEMORANDUM DECISION
VÁSQUEZ, Chief Judge:
¶1 Petitioner Cory Rivers was convicted pursuant to a guilty plea of attempted promoting prison contraband. He seeks review of the trial court's order summarily denying his petition for post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P., in which he had claimed he was entitled to additional credit for presentence incarceration. We will not disturb the court's ruling absent an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 Rivers, an inmate at the Arizona State Prison Complex in Tucson, committed the offense on August 31, 2018, by possessing a cell phone that contained photographs he shared with another inmate. He entered a guilty plea in July 2020, and was sentenced to a .75-year prison term on August 20, 2020. The court ordered that Rivers be given 595 days' credit for "time served only in the event that the Defendant's regular sentence was suspended for purposes of time that this occurred; if it indeed was not suspended, the Defendant is not entitled to the credits going toward that." As the court explained in its minute entry denying Rivers's Rule 33 petition, Rivers had been transported from the Arizona Department of Corrections (ADOC) to the Pima County Adult Detention Center (PCADC) on February 19, 2019, for a Case Management Conference on the instant charge and remained there until he was sentenced "on a nominal bond." The court further explained the conditional credit, stating it was not certain at the time of sentencing whether the sentence Rivers had been serving would be suspended while Rivers was held at PCADC.
¶3 Rivers sought post-conviction relief, requesting the 595 days' presentence incarceration credit, after he learned that the initial sentence had not been suspended while he was held in PCADC, and that he had not received the credit. Although Rivers checked various spaces in the form for his petition and claimed he was entitled to relief under Rule 33.1(b) through (h), the trial court characterized his claim as a challenge to the sentence because it was not authorized by law or the plea agreement, see Ariz. R. Crim. P. 33.1(c). Rivers argued, as he does on review, that based on A.R.S. § 13-712(B) he was entitled to credit for the time he was in prison from the date of the instant offense and his arrest on that charge until the date of sentencing. But because Rivers was an inmate when he committed the offense, A.R.S. § 13-711(B) applies. It states,
if a person is subject to an undischarged term of imprisonment and is sentenced to an additional term of imprisonment for a felony offense that is committed while the person is under the jurisdiction of the state department of corrections, the sentence imposed by the court shall run consecutively to the undischarged term of imprisonment.§ 13-711(B). Additionally, the plea agreement provided that the sentence would be consecutive pursuant to § 13-711.
¶4 As the trial court correctly stated in denying Rivers relief, citing State v. Cuen, 158 Ariz. 86 (App. 1998), a defendant is not entitled to presentence incarceration credit when the sentencing is consecutive. See also State v. McClure, 189 Ariz. 55, 57 (App. 1997) (defendant sentenced to consecutive sentences entitled to presentence incarceration credit on only one sentence, "even if the defendant was in custody pursuant to all of the underlying charges prior to trial"); State v. Verdugo, 180 Ariz. 180, 186 (App. 1993) (defendant who commits new offense while serving term of imprisonment in prior case can only receive incarceration credit from earliest release date in prior case). Contrary to Rivers's suggestion in his petition for review, Cuen is not meaningfully distinguishable.
¶5 We also reject Rivers's argument that because he was being held on bond on the new offense, the time he spent in PCADC was pursuant to the instant offense, as contemplated by § 13-712(B). Rivers fails to recognize that because he continued to serve the term previously imposed on the other offense, and that term was not suspended while he was in PCADC, he remained incarcerated for the initial offense and he does not begin to serve the new sentence until that sentence is completed. Rivers's reliance on State v. Seay, 232 Ariz. 146 (App. 2013), is also unavailing. As the trial court stated in its order denying relief, the sentences imposed in that case were concurrent and § 13-711(B) was never implicated.
¶6 Rivers has not demonstrated the trial court erred in concluding he was not entitled to presentence incarceration credit on the instant charge, nor has he otherwise demonstrated the court abused its discretion. The petition for review is therefore granted, but we deny relief.