State v. Reyes

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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. MARTIN MANRIQUEZ REYES, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/27/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0841 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-006934-001 DT The Honorable John R. Hannah, Judge AFFIRMED AS CORRECTED ________________________________________________________________ Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Thomas Baird, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 He Martin raises committed one Reyes issue appeals on fundamental his appeal: error convictions whether when it and the trial awarded incarceration credit to him totaling 592 days. sentences. court presentence Reyes asks this court to amend his sentences to reflect 595 days of presentence incarceration credit. For the following reasons, we affirm Reyes s convictions and amend the sentencing minute entry to reflect 595 days of presentence incarceration credit on the prison terms for the convictions on counts one, two, four, and nineteen. FACTS AND PROCEDURAL HISTORY Reyes was initially arrested for molesting victim CZ 1 ¶2 on February 26, 2009, and charged on March 3, 2009. The State moved was to dismiss the initial complaint and Reyes later indicted on June 10, 2009 for multiple offenses against multiple victims including CZ. including: A jury convicted Reyes on nineteen counts four counts of sexual conduct, eight counts of child molestation, five counts of sexual abuse, one count of aggravated assault, and one count of public sexual indecency -all with minor children. Reyes was sentenced to numerous prison terms, some to be served concurrently and several to be served consecutively. Reyes was credited with 592 days of presentence 1 We use initials to protect the victim s because of the sensitive nature of the offenses. 2 identity incarceration credit for counts one, two, and four. 2 ¶3 to Reyes timely appeals and we have jurisdiction pursuant Article Arizona 6, Section Revised 9, Statutes of the ( A.R.S. ) Arizona Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). 3 ANALYSIS ¶4 Reyes contends he was entitled to 595 days of credit as opposed to the trial court s finding of 592 days. failed to object credit at trial. to the amount of presentence Reyes incarceration Therefore, our review of the record is limited to fundamental error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005) (stating that defendant s failure to object at trial limits review only for fundamental error on appeal). To establish fundamental error, Reyes must prove that an error occurred, the error was fundamental (goes to the heart of defendant s case and deprives him of a fair trial), and that he suffered prejudice as a result of the error. id. at 568, ¶¶ 23-24, 26, 115 P.3d at 608. See A trial court s failure to give proper presentence credit is fundamental error. 2 The sentencing minute entry states that 592 days of presentence incarceration credit was awarded only on the sentence for the conviction on count one. But the orders of confinement signed by the court regarding the prison terms imposed on the convictions for counts two and four also indicate credit for 592 days of presentence incarceration. 3 Absent material revisions to a statute after the date of an offense, we cite the current version. 3 See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). ¶5 Remand incarceration modifying is not credit the necessarily errors. sentencing We minute required may entry for correct to presentence the reflect error the by proper amount of presentence incarceration credit due the defendant. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992); A.R.S. § 13-4037 (2010). The statute directing that credit be given for presentence incarcerations states: 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. A.R.S. § 13-712(B) (2010). The trial court is duty bound to calculate the correct presentence incarceration credit entitled to the defendant. See State v. Nieto, 170 Ariz. 18, 19, 821 P.2d 285, 286 (App. 1991). ¶6 Reyes and the State dispute the date that Reyes was arrested for the crimes enumerated in this appeal. Reyes contends that he was arrested on February 26, 2009, while the State places the actual date of arrest as June 12, 2009, after the indictment. Reyes argues that the State is mistaken in its calculation because he was initially charged with one count of molestation of victim CZ on March 3, 2009, under cause number CR2009-114670, with the conduct allegedly occurring on February 4 22, 2009. ¶7 The State argues that Reyes was credited for extra days and should have been awarded only 489 days of credit because Reyes was already in custody at the time he was arrested for the current offenses. 4 defendant is incarceration in The State contends that while a custody credit does for not another accrue actually arrested for the new offense. offense, until the presentence defendant is See State v. Rivers, 190 Ariz. 56, 61, 945 P.2d 367, 372 (App. 1997). If the State was correct that Reyes received more presentence credit than he was entitled to, Reyes would be incapable of demonstrating any prejudice from the asserted loss of three days of presentence credit, and we would affirm his sentences. See Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608 (stating that defendant must prove how he was prejudiced by trial court s error). ¶8 We disagree with the State s conclusion, however. On July 30, 2009, the State asked the trial court to dismiss the original transition cause complaint into number a filed new on case CR2009-006934. March with The 4 a 3, 2009, complex trial in order designation court to under dismissed the The State acknowledges that it did not cross-appeal to assert that Reyes was credited with more days than he was entitled to receive. See State v. Dawson, 164 Ariz. 278, 28086, 792 P.2d 741, 743-49 (1990) (holding State s failure to cross-appeal deprives court of appeals of subject matter jurisdiction to correct illegally lenient sentence). 5 complaint. The State s new case, according to the trial court, was based in part on the same set of operative facts as cause number CR2009-114670 and included allegations of offenses against victim CZ. ¶9 The release questionnaire supports Reyes s contention: Reyes was booked with booking number P516651 under cause number CR2009-114670 on February 26, 2009; the arresting officer was Kathy V.; and the probable cause statement identified the victim as CZ. The June 10, 2009 indictment in count eight alleges the same conduct for which Reyes was arrested and booked into jail on February 26, 2009 -- that is, of the alleged molesting of CZ on February 22, 2009. ¶10 We conclude that Reyes is entitled to presentence incarceration credit beginning on February 26, 2009. He was accused and arrested for molesting CZ in February and formally charged in March. In July 2009, the State indicted Reyes on numerous charges including the original charge based on CZ s allegations. Although the initial criminal prosecution against Reyes was dismissed, it appears from the record that he remained incarcerated as a new proceeding was begun, which encompassed the greatly expanded charges from the indictment. with A.R.S. § 13-712(B), Reyes had been In accordance incarcerated since February 26, 2009 on a charge for which he was convicted and sentenced to prison. 6 ¶11 After doing the math and using the arrest date of February 26, 2009, and the sentencing date of October 14, 2010, we further presentence conclude that Reyes incarceration was credit entitled instead to of 595 the days 592 of days credited by the trial court or the 489 days argued by the State. ¶12 Finally, the State suggests that Reyes is also entitled to the same presentence incarceration credit for all the prison sentences that have been ordered to run concurrently with count one. We agree. The trial court determined that the prison terms for counts one, two, four, and nineteen were to be served concurrently. Reyes is entitled to presentence credit of 595 days for counts one, two, four, and nineteen. See State v. Cruz-Mata, 1373 138 Ariz. 370, 375, 674 P.2d 1368, (1983) (holding that the trial court should credit time spent against each concurrent sentence). Therefore, we modify the sentences to reflect this result, in accordance with Stevens, 173 Ariz. at 496, 844 P.2d at 663, and A.R.S. § 13-4037. CONCLUSION ¶13 We affirm Reyes s convictions and sentences with the exception that we hereby amend the sentences to reflect 595 days of presentence incarceration credit 7 and we apply this to his sentences on counts one, two, four, and nineteen. ____/s/______________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/_____________________________ PATRICIA A. OROZCO, Judge ___/s/_____________________________ PHILIP HALL, Judge 8

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