Ludwig v. State

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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 DIVISION ONE FILED: 05/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) KEITH LUDWIG, Appellant, v. STATE OF ARIZONA, Appellee. No. 1 CA-HC 11-0002 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. CR1992-17242 The Honorable Dan R. Slayton, Judge The Honorable Richard K. Mangum, Judge (Ret.) PETITION FOR HABEAS CORPUS DISMISSED Keith Ludwig In Propria Persona David Rozema, Coconino County Attorney by Serena Serassio, Deputy County Attorney Attorneys for Appellee Phoenix Flagstaff H A L L, Judge ¶1 Appellant Keith Ludwig challenges the superior court s denial of his petition for a writ of habeas corpus, in which he requested the court to quash an outstanding detainer currently restraining Ludwig of his liberty. For the foregoing reasons, we dismiss the petition for writ of habeas corpus. FACTS AND PROCEDURAL BACKGROUND ¶2 The following facts are not disputed. On April 9, 1992, Ludwig was charged by indictment with one count of armed robbery, one count of burglary in the first degree, one count of theft, and two counts of aggravated assault. The State added allegations of dangerousness and alleged that Ludgwig was on parole when he committed the offenses. indictment, Ludwig was serving a At the time of his sentence in a federal penitentiary for an unrelated offense. ¶3 Ludwig guilty to assault be a armed robbery and with felonies. would entered a deadly written an weapon, plea amended both agreement count of dangerous and pled aggravated non-repetitive The parties stipulated that the sentences imposed served concurrently, but that the sentencing judge would have discretion to order the sentences served concurrently or consecutively with Ludwig s federal sentences. for Ludwig s concessions, the State agreed to In exchange dismiss the remaining allegations. ¶4 At the sentencing hearing, the superior court found numerous aggravating factors and sentenced Ludwig to an aggravated term of 21 years imprisonment on the count of armed 2 robbery and an aggravated term of 15 years imprisonment on the count of aggravated assault with a deadly weapon. The superior then stated, in relevant part: Those two terms will be served concurrently with each other, and against them you will have credit for 752 days that you have already served. As to the federal sentence, which I understand was imposed in Nebraska and was being served in California, I see a pattern here of consistent criminal behavior throughout your life which has gotten worse and more serious as you have gone along. I think that this Arizona sentence therefore should be made consecutive to the federal sentence, and that is my sentence concerning it. . . . . [Court ordered restitution] The sentence that I have imposed shall start to today. . . . . [Court advised Ludwig of his right to appeal] To carry out this sentence, I make the following orders. I have been advised off the record that federal officials want to pick up [Ludwig] at the Coconino County Jail and transport him back to federal custody. I understand that the sentence, the first part, that is, the federal part, will continue to be served in the federal corrections system. After that s done, then, of course, there would be a transfer to the Arizona Department of Corrections. The sentencing minute entry reflects that the sentence for each of the counts was ordered to be concurrent with the other, and consecutive to the federal sentence. The sentencing minute entry further states that each sentence commenced on the date of 3 sentencing, October 23, 1992, and credited Ludwig 752 days presentence incarceration on each count. ¶5 Ludwig appealed the sentences imposed. His attorney filed a brief complying with Anders v. California, 386 U.S. 738 (1967), advising that she was unable to find any arguable grounds for reversal and requesting fundamental error review. Ludwig was granted the opportunity to file a supplemental brief, but he did not do so. On April 13, 1993, this court entered a memorandum decision, finding no error and affirming the superior court s noted sentence. that the In the superior memorandum court decision, ordered Ludwig we to expressly serve his sentences on each count concurrently, but consecutively with Ludwig s federal sentences. State v. Ludwig, 1 CA-CR 92-1692 at 3 (Ariz. App. Apr. 13, 1993) (mem. decision). ¶6 In August 2011, Ludwig filed a petition for writ of habeas corpus outstanding requesting detainer the superior currently court restraining [] to his quash an liberty. Ludwig asserted that the superior court s sentence appears to be ambiguous with respect to whether or not it runs concurrent or consecutively to his federal sentence. Specifically, Ludwig pointed out that the superior court s sentencing minute entry states that his sentence for armed robbery is to date from October 23, 1992. days served prior The Defendant is to be given credit for [752] to sentencing. 4 Likewise, the sentencing minute entry states that Ludwig s sentence for aggravated assault with a deadly weapon is to date from October 23, 1992. The Defendant is to be given credit for [752] days served prior to sentencing. ¶7 The superior court denied Ludwig s petition for a writ of habeas corpus, finding that both the record and the minute entry show the [superior] court s clear intent to sentence the defendant to serve his state sentence consecutive to his federal sentence. This appeal followed. DISCUSSION ¶8 On erred by appeal, denying Specifically, Ludwig his Ludwig contends petition asserts for that that the superior writ of habeas the record court corpus. evidences the [sentencing] court s intent to impose a concurrent rather than a consecutive sentence. ¶9 the [T]he purpose of a writ of habeas corpus is to test legality confinement. and correctness of a prisoner s judgment and Griswold v. Gomes, 111 Ariz. 59, 62, 523 P.2d 490, 493 (1974). Pursuant to Arizona Revised Statutes (A.R.S.) section (2010), detained, 13-4121 confined or [a] person restrained of unlawfully his liberty, committed, under any pretense whatever, may petition for and prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint. The decision whether to issue a writ of habeas 5 corpus is entrusted to the sound discretion of the [superior] court, and we will not disturb the [superior] court s decision unless we see an abuse of that discretion. State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004). ¶10 habeas The corpus State is first premature argues that because he Ludwig s is still petition for serving his federal sentence and therefore, as yet, is not being unlawfully detained. We agree. As reflected in the record, Ludwig is ineligible for release from federal prison until June 19, 2012. Thus, his claim that the sentencing court in the underlying case intended to sentence him to a concurrent sentence rather than a consecutive sentence is not cognizable until the expiration of his federal sentence and his petition for writ of habeas corpus is therefore premature. See Brown v. State, 117 Ariz. 476, 477- 78, 573 P.2d 876, 877-78 (1978) (explaining a petitioner is not entitled to habeas corpus relief in the absence of a showing that he is entitled to immediate release from custody); Goodman v. State, 96 Ariz. 139, 142, 393 P.2d 148, 150 (1964) ( Relief cannot be granted while petitioner is still lawfully held in custody[.] ).1 Accordingly, we dismiss Ludwig s petition for writ of habeas corpus without prejudice. 1 Upon expiration of his Even if we construed this appeal as a petition for postconviction relief, Ludwig would not be entitled to relief. See Ariz. R. Crim. P. 32.1(d) (explaining a petitioner may be entitled to relief if being held in custody after the sentence imposed has expired ). 6 federal sentence, Ludwig may seek relief by writ of habeas corpus. _/s/____________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ MAURICE PORTLEY, Presiding Judge _/s/__________________________________ DIANE M. JOHNSEN, Judge 7

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