State v. Nickerson

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NOTICE: 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. FRANKLIN HENRY NICKERSON, IV, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/21/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0923 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-150110-001 SE The Honorable Teresa A. Sanders, Judge AFFIRMED IN PART; VACATED IN PART Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Franklin Henry Nickerson, IV timely appeals from his sentence for aggravated assault under Arizona Revised Statutes ( A.R.S. ) section 13-1203(A)(1) (2010), a class one misdemeanor and domestic violence offense. Nickerson contends the superior court, first, should not have ordered him to submit to, and pay for, DNA testing, and, second, should have calculated his actual time spent in custody. We agree with Nickerson as to the first issue and disagree as to the second issue. Thus, although we affirm his conviction, we affirm in part, and vacate in part, the sentence imposed by the court. DISCUSSION I. DNA Testing ¶2 Nickerson argues (and the State concedes) the superior court improperly ordered him to submit to DNA testing because the DNA testing offense. must statute is not applicable to his convicted Although the State concedes error, we nevertheless review for fundamental error and prejudice because Nickerson failed to raise this issue in superior court. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 568, ¶ 26, 115 P.3d 601, 607, 608 (2005). When a court imposes a sentence not authorized it by statute, prejudicial error. constitutes fundamental and State v. McCurdy, 216 Ariz. 567, 574 n.7, ¶ 18, 169 P.3d 931, 938 n.7 (App. 2007); State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002) (citing State v. Cox, 201 Ariz. 464, 468, ¶ 13, 37 P.3d 437, 441 (App. 2002)). ¶3 As the State correctly explains in conceding error, DNA testing is not a penalty the court can impose for this 2 offense. Under A.R.S. § 13-610(O) (2010), a defendant must submit to DNA testing if he or she is convicted of a felony offense, is a juvenile adjudicated delinquent of certain enumerated offenses, or is a person arrested for a violation of any offense in chapter 11 of this title, a violation of § 131402, 13-1403, 13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 131417, 13-1507, 13-1508, 13-3208, 13-3214, 13-3555 or 13-3608 or a violation of any serious offense as defined in § 13-706 that is a dangerous offense. Here, Nickerson was not convicted of any of the qualifying offenses enumerated in A.R.S. § 13-610(O). Accordingly, the statute did not authorize the court to order Nickerson to submit to DNA testing on this offense. ¶4 Thus, we vacate the portion of the sentence ordering Nickerson to submit to DNA testing. Further, we instruct the superior court to order the Arizona Department of Public Safety to expunge identification from the sample DNA identification Nickerson submitted system pursuant any DNA to the superior court s order and to reimburse Nickerson any fees paid for the DNA testing. II. ¶5 Presentence Incarceration Credit Nickerson next argues the superior court should have calculated his presentence incarceration credit and requests we correct the sentencing minute entry to reflect his actual time 3 spent in custody. We disagree and thus affirm the court s presentence incarceration credit award. ¶6 We review for fundamental failed to object in superior court. 567, ¶ 19, 115 P.3d at 607. to grant . . . full clearly constitute[s] error because Nickerson Henderson, 210 Ariz. at Although a trial court s failure credit for fundamental presentence error, State incarceration v. Cofield, 210 Ariz. 84, 86, ¶ 10, 107 P.3d 930, 932 (App. 2005) (quoting State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989)), Nickerson must demonstrate that prejudice resulted from the court failing to calculate full presentence incarceration credit. ¶7 is See Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. Here, the record reflects no prejudice. impossible for us to determine on this Although it record how long Nickerson was incarcerated, he nevertheless was in custody at least 442 days -- from September 4, 2008, when the court set bond, to November 20, 2009, when the court sentenced Nickerson 1 1 On July 8, 2008, police arrested Nickerson for assault. The court released Nickerson on his own recognizance August 11, 2008, but the Notice of Supervening Indictment indicates Nickerson was in custody on August 26, 2008. In its September 4, 2008 release order, the court set a $200 secured appearance bond for Nickerson s release on this charge. The record contains no evidence showing Nickerson posted bond or was released from custody. In fact, at the September 8, 2009 status conference, the court modified Nickerson s release conditions on two prior charges but kept the $200 bond on this matter despite defense counsel s statement that Nickerson has been in custody 4 to 30 days in jail with 30 days credit for his time in custody. Thus, after he was sentenced, Nickerson was not serve any additional jail time on this offense. required to If the court had calculated the actual time Nickerson spent in custody for this offense, Nickerson would still have spent the same amount of time in jail after sentencing -- zero days. ¶8 Because defendants cannot use time spent in custody for one offense to reduce their sentence for another offense, Nickerson cannot argue he was prejudiced on another charge. A.R.S. § 13-712(B) (2010). See Therefore, Nickerson suffered no prejudice from the court s failure to calculate the actual time spent in custody, and we affirm the sentencing minute entry as it relates to presentence incarceration credit. for over a year on a misdemeanor charge. Nickerson on November 20, 2009. 5 The court sentenced CONCLUSION ¶9 For the foregoing reasons, we affirm Nickerson s conviction and his presentence incarceration credit award but vacate the part of the sentence ordering Nickerson to submit to DNA testing. Further, we instruct the superior court to order the Arizona Department of Public Safety to expunge from the DNA identification system any DNA sample Nickerson submitted pursuant to the court s order and to reimburse him any fees paid for the testing. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 6

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