Download as PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Sup. Ct. 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
STATE OF ARIZONA,
RICHARD JAMES ARVIZO,
RUTH A. WILLINGHAM,
1 CA-CR 11-0461
1 CA-CR 11-0472
(Not for PublicationRule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court of Maricopa County
The Honorable Joseph Kreamer, Judge
Thomas C. Horne, Attorney General
Kent E. Cattani, Division Chief Counsel
and Joseph T. Maziarz, Section Chief Counsel
Criminal Appeals Section
and Andrew Reilly, Assistant Attorney General
Attorneys for Appellee
James J. Haas, Maricopa County Public Defender
Eleanor S. Terpstra, Deputy Public Defender
Attorneys for Appellant
T H O M P S O N, Presiding Judge
court’s grant of 237 days of presentence incarceration credit
for his conviction in CR2010-007644-001.
Defendant argues that
the trial court erred in failing to give him credit for an
probation violation matter.
For the reasons that follow, we
affirm defendant’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
store and attempted to steal beer.
In the process, defendant
threw a case of beer at the store clerk’s head.
arrested and pled guilty to aggravated assault in CR2007-031246001.
The trial court suspended the imposition of sentencing and
placed defendant on three years of probation.
As a condition of
his probation, the court ordered defendant to serve six months
On December 12, 2008, defendant approached
the victims in a parking lot and displayed a knife.
claimed to be a member of the East Side Chandler street gang and
threatened to kill the victims.
While defendant was walking
hospital before police could book him.
probation in CR2007-031246-001 in December 2008.
alleged that defendant violated his probation on December 12,
petition also alleged that defendant failed to pay probation
under the terms of his probation.
The court issued a bench
Defendant was arrested on October 27, 2009.
failing to complete community service hours.
The trial court
suspended the imposition of sentencing, continued defendant on
probation, and imposed a thirty day term in jail as a condition
Meanwhile, on January 22, 2009, prior to defendant’s
arrest, the Chandler City Attorney’s Office filed a complaint
crime of threatening or intimidating, a class 1 misdemeanor.
March 15, 2010, the Chandler City Attorney’s Office voluntarily
dismissed this misdemeanor charge.
counts: aggravated assault, a class 3 dangerous felony (count
1); disorderly conduct, a class 6 dangerous felony (count 2);
assisting a criminal street gang, a class 3 felony (count 3);
criminal damage, a class 2 misdemeanor (count 4); and escape in
the second degree, a class 5 felony (count 5).
A bench warrant
issued, and police booked defendant at a detention center on
October 23, 2010.
Prior to trial, the trial court granted the
state’s motion to dismiss count 4.
The jury further found aggravating factors
for counts 1, 2, and 3.
Based on these convictions, the trial
court found defendant in violation of his probation in CR2007031246-001 and sentenced him to 3.5 years in prison, with 651
days of presentence incarceration credit.
the court sentenced defendant to concurrent prison terms of 10
years on count 1, 4.5 years on count 2, 8.3 years on count 3,
and 1 year on count 5.
Defendant received credit for 237 days
of presentence incarceration for time spent in custody between
October 23, 2010 and his sentencing on June 17, 2011.
Constitution Article 6, Section 9 and Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A) (2003), 13-4031 (2010) and 134033 (2010).
The sole issue on appeal is whether the trial court
should have granted defendant additional credit for spending 140
days in custody between his arrest on October 27, 2009 and the
Because defendant failed to object at sentencing, we review for
fundamental error only.
See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005).
To prevail under the
fundamental error exists and that it causes him prejudice.
at 567, ¶ 20, 115 P.3d at 607.
We review issues involving
incarceration credit, de novo.
State v. Bomar, 199 Ariz. 472,
475, ¶ 5, 19 P.3d 613, 616 (App. 2001).
credit because the misdemeanor complaint and the later felony
The misdemeanor complaint alleged that defendant committed the
crime of threatening or intimidating on December 12, 2008 of
victims S.P. and C.P. The felony indictment alleged five counts
based on defendant’s conduct on that same day. However, only two
victims were named in the indictment, neither of which was S.P.
Defendant asserts that the misdemeanor complaint and the felony
indictment contain an overlapping offense, and that he deserves
credit for custody between October 27, 2009 and March 15, 2010
because “both the warrant from the probation violation petition
filed” when custody began.
To this end, defendant cites State
v. Brooks, in which we held that a defendant arrested on new
presentence incarceration from the time of arrest to the time of
sentencing for both matters.
State v. Brooks, 191 Ariz. 155,
156-57, 953 P.2d 547, 548-49 (App. 1997).
We find defendant’s reliance on our holding in Brooks
to be misplaced.
The new charges against defendant in Brooks
“formed the sole basis for revoking his probation.”
953 P.2d at 548 (emphasis added).
Id. at 156,
Here, the petition to revoke
December 12, 2008, but also on various other violations of his
In fact, defendant ultimately resolved the
admitting to failing to complete his community service hours.
Thus, unlike in Brooks, it cannot be said here that defendant’s
custody on the probation violation matter was dependent on the
new charges against him.
Instead, we agree with the state’s argument that State
v. San Miguel is apposite.
In San Miguel, we explained that
presentence incarceration credit is appropriate only when the
confinement “is due to or arises out of the offense against
which credit is claimed.”
State v. San Miguel, 132 Ariz. 57,
60, 643 P.2d 1027, 1030 (App. 1982) (citation omitted).
that incarceration pursuant to a petition to revoke probation is
separate and distinct from incarceration pursuant to the charges
underlying that petition.
Id. at 60-61, 643 P.2d at 1030-31.
defendant’s custody beginning on October 27, 2009 was due to the
charges later brought against him in the felony indictment.
Defendant is correct that a trial court’s failure to
See State v. Ritch, 160 Ariz. 495, 498, 774
P.2d 234, 237 (App. 1989).
However, we find no error in the
credit is offense-specific, and compensates a defendant for time
in custody “pursuant to an offense” until sentencing “for such
A.R.S. § 13-712(B) (2009).
The record before us
indicates that defendant’s incarceration from October 27, 2009
until March 15, 2010 was based solely on the petition to revoke
The petition alleged several probation violations
distinct from those brought in the later felony indictment.
incarceration is not decisive.
The mere filing of a complaint
custody is pursuant to that complaint.
A defendant cannot rely
on speculation from a silent record to support a claim of error.
State v. Ethington, 121 Ariz. 572, 574, 592 P.2d 768, 770 (1979)
Defendant is unable to indicate evidence
in the record that his arrest on October 27, 2009 was pursuant
required by statute.
Therefore, defendant fails to meet his
burden of establishing fundamental error.
For the foregoing reasons, we affirm the convictions
The executed bench warrant and the release questionnaire
explicitly reference “probation violation” as the basis for
arrest and incarceration.
There is no mention of the
misdemeanor complaint in these documents.
JON W. THOMPSON, Presiding Judge
DONN KESSLER, Judge
LAWRENCE F. WINTHROP, Judge