Opinion
No. 2 CA-CR 2020-0226-PR
12-31-2020
THE STATE OF ARIZONA, Respondent, v. FOX JOSEPH SALERNO, Petitioner.
Fox J. Salerno, Canon City, Colorado In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2000017362
The Honorable Arthur T. Anderson, Judge
REVIEW GRANTED; RELIEF DENIED
Fox J. Salerno, Canon City, Colorado
In Propria Persona
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Fox Salerno seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Salerno has not met his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "The amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice.'" State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) (quoting Ariz. Sup. Ct. Order R-19-0012). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." Id.
¶2 Following a jury trial, Salerno was convicted of theft and sentenced in 2001 to a twenty-year prison term and community supervision "to be served consecutively to the actual period of imprisonment." We affirmed Salerno's convictions and sentences on appeal. State v. Salerno, No. 1 CA-CR 01-0693, ¶¶ 1, 27 (Ariz. App. Oct. 15, 2002) (mem. decision). Salerno sought post-conviction relief multiple times between 2003 and 2017, followed by his most recent notice and petition in 2019, apparently his ninth such proceeding. Pursuant to Rule 32.1(d), Salerno argued he was being held beyond the expiration of his sentence and he should have been released on community supervision before serving the five sentences in another matter, which are concurrent with each other but consecutive to the sentence in this case. He asserted the Arizona Department of Corrections (ADOC) violated his due process rights by failing to release him to community supervision on his earned release date of June 25, 2018, thereby impermissibly "split[ting]" his sentence in this matter.
¶3 The trial court summarily dismissed Salerno's notice and petition, which it treated as a single notice. The court concluded that Salerno's community supervision in this matter should not begin until after his release in the other matter, in "approximately 11 years." In support of its ruling, the court relied on A.R.S. § 13-105(5), which defines community supervision as that portion of a sentence imposed by the court pursuant to A.R.S. § 13-603(I), and served in the community "after completing a period of imprisonment." Section 13-603(I) further provides that at the time of sentencing a court shall impose a term of community supervision, which "shall be served consecutively to the actual period of imprisonment." The court also found unavailing Salerno's attempt to distinguish State v. Cowles, 207 Ariz. 8 (App. 2004), discussed below.
To the extent the trial court also considered Salerno's petition as having raised a claim pursuant to Rule 32.1(a), we note that although the court ultimately found his claim untimely, it nonetheless addressed it on the merits. See Ariz. R. Crim. P. 32.4(b)(3)(A), (D).
Salerno's anticipated release date in the other matter is April 14, 2031.
We cite the current version of the applicable statutes because no revisions material to this decision have occurred since Salerno's offenses. And, insofar as Salerno obliquely suggests that some of the statutes in effect when he was sentenced require a different outcome here, we note that he did not expressly raise this argument in his petition below. We thus do not address it. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (issues raised for first time in petition for review not addressed). In any event, he has not developed such an argument in a meaningful way. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim).
The trial court also denied Salerno's request that counsel be appointed to represent him, which he does not challenge on review.
¶4 On review, Salerno reasserts that ADOC has violated his due process rights by refusing to immediately release him on community supervision and later reincarcerate him, so that he can complete his sentence in this matter and then serve his consecutive sentences in the other matter. Arguing that community supervision is part of his "sentence" in this matter, Salerno asserts, without meaningful support, that he cannot begin serving his consecutive terms in the other matter until he has completed community supervision in this case. He also maintains that although § 13-105(5) provides that community supervision is served "after completing a period of imprisonment," it does not require that it follow "all" terms of imprisonment. He similarly asserts that § 13-603(I) provides that community supervision be served consecutively to "the actual period of imprisonment," rather than "period(s) o[f] future imprisonment." He also points out that A.R.S. § 41-1604.07(E) states that "[a] prisoner who has reached the prisoner's earned release date or sentence expiration date shall be released to begin the prisoner's term of community supervision."
¶5 Section 13-603(I) unambiguously contemplates that community supervision will extend past the end of the entire aggregate prison term. Notably absent from that statute or from § 13-105(5) is any provision providing for the repeated release and reincarceration scenario Salerno urges us to adopt. We additionally note, as Salerno has correctly pointed out, that § 41-1604.07(E) provides that a prisoner who has reached the prisoner's earned release or sentence expiration date be released to community supervision. However, we also note that § 41-1604.07(J) "authorize[s] the release of any prisoner on the prisoner's earned release credit date to serve any consecutive term imposed on the prisoner," and notably provides "[t]he prisoner shall remain under the custody and control of the department." The language in subsection (J) is consistent with the view that the relevant statutes do not contemplate, much less require, releasing incarcerated individuals between consecutive sentences.
¶6 Salerno also again attempts to distinguish Cowles, suggesting it stands "only" for the proposition that community supervision cannot be served while incarcerated. But that has no bearing on his case. 207 Ariz. 8, ¶ 13. In Cowles, after completing his term of imprisonment on his sentence in one matter, the defendant was released ninety days before the expiration of his 2.5-year consecutive sentence in another matter to serve community supervision, which had been ordered in both matters. Id. ¶¶ 4-6. He absconded from community supervision, was reincarcerated, and was subsequently released pursuant to a writ of habeas corpus. Id. ¶ 6. On appeal, we vacated the writ of habeas corpus, concluding that Cowles could not have served community supervision in his first case while incarcerated pursuant to the consecutive sentence in his second case. Id. ¶¶ 13, 15. As we noted in Cowles, although "[c]ommunity supervision is not equivalent to imprisonment," it is "part of the sentence that has to be served in the community after completion of a period of imprisonment." Id. ¶¶ 9, 14. Importantly, we also concluded that "the community supervision terms began after [Cowles] was released from ADOC," which in that case, unlike this one, occurred after Cowles had served most of his consecutive sentence. Id. ¶¶ 13-14.
In addition, to the extent Salerno intends to challenge ADOC's denial of his request for a commutation hearing, we agree with the trial court that such a claim is not cognizable under Rule 32, and we thus do not address it further. --------
¶7 Accordingly, we grant review but deny relief.