STATE v. ARVIZO

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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. Sup. Ct. 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. RICHARD JAMES ARVIZO, Appellant. DIVISION ONE FILED: 05/07/2013 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 11-0461 1 CA-CR 11-0472 (Consolidated) DEPARTMENT D MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause Nos. CR2007-031246-001 CR2010-007644-001 The Honorable Joseph Kreamer, Judge AFFIRMED Thomas C. Horne, Attorney General By 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 Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Presiding Judge ¶1 Richard James Arvizo (defendant) appeals the trial 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 additional 140 days that he probation violation matter. spent in custody pursuant to a For the reasons that follow, we affirm defendant s convictions and sentences. FACTUAL AND PROCEDURAL HISTORY ¶2 In October 2007, defendant store and attempted to steal beer. entered a convenience In the process, defendant threw a case of beer at the store clerk s head. Defendant was 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 in jail. ¶3 After committed the his acts CR2010-007644-001. release that led from to jail his in 2008, criminal defendant conviction in On December 12, 2008, defendant approached the victims in a parking lot and displayed a knife. Defendant claimed to be a member of the East Side Chandler street gang and threatened to kill the victims. away from assaulted the him. victims, Police a While defendant was walking truck brought 2 approached defendant to and a three men hospital for treatment of his injuries. Defendant absconded from the hospital before police could book him. ¶4 The state filed a petition to revoke probation in CR2007-031246-001 in December 2008. defendant s The petition alleged that defendant violated his probation on December 12, 2008 by committing intimidating, aggravated disorderly assault, conduct, and threatening criminal and damage. The petition also alleged that defendant failed to pay probation service fees and failed to complete under the terms of his probation. community service The court issued a bench warrant. Defendant was arrested on October 27, 2009. 2, defendant 2010, admitted to hours violating failing to complete community service hours. his On March probation for The trial court suspended the imposition of sentencing, continued defendant on probation, and imposed a thirty day term in jail as a condition of his probation. The trial court dismissed the remaining allegations. ¶5 Meanwhile, on January 22, 2009, prior to defendant s arrest, the Chandler City Attorney s Office filed a complaint alleging that on December 12, 2008, defendant committed the crime of threatening or intimidating, a class 1 misdemeanor. On March 15, 2010, the Chandler City Attorney s Office voluntarily dismissed this misdemeanor charge. 3 ¶6 The indictment on Maricopa October County 21, Attorney s 2010 charging Office obtained defendant with an five 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. ¶7 At trial, remaining counts. the jury convicted defendant of the 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. In CR2010-007644-001, 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. timely appealed. We have jurisdiction pursuant Defendant to Arizona Constitution Article 6, Section 9 and Arizona Revised Statutes 4 (A.R.S.) sections 12-120.21(A) (2003), 13-4031 (2010) and 134033 (2010). DISCUSSION ¶8 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 dismissal of the misdemeanor complaint on March 15, 2010. 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). fundamental error analysis, To prevail under the defendant must show that fundamental error exists and that it causes him prejudice. a Id. at 567, ¶ 20, 115 P.3d at 607. We review issues involving statutory the construction, including incarceration credit, de novo. grant of presentence State v. Bomar, 199 Ariz. 472, 475, ¶ 5, 19 P.3d 613, 616 (App. 2001). ¶9 awarded Defendant him 140 argues days of that the additional trial court presentence should have incarceration credit because the misdemeanor complaint and the later felony indictment arose out of the same set of circumstances. 1 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. or C.P. 1 5 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 had issued and the Chandler filed when custody began. misdemeanor complaint had been To this end, defendant cites State v. Brooks, in which we held that a defendant arrested on new charges and a petition to revoke probation is entitled to 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). ¶10 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). defendant s probation was based Id. at 156, Here, the petition to revoke not only on his conduct on December 12, 2008, but also on various other violations of his probation terms. probation violation In fact, defendant ultimately resolved the matter and was released from custody by 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. 6 ¶11 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). We held that incarceration pursuant to a petition to revoke probation is separate and distinct from incarceration pursuant to the charges underlying that petition. Based on the record Id. at 60-61, 643 P.2d at 1030-31. before us, we find no indication that defendant s custody beginning on October 27, 2009 was due to the charges later brought against him in the felony indictment. ¶12 grant Defendant is correct that a trial court s failure to full credit fundamental error. for presentence court s constitutes See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). trial incarceration calculation However, we find no error in the here. Presentence incarceration credit is offense-specific, and compensates a defendant for time in custody pursuant to an offense until sentencing for such offense. 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 7 probation.2 The petition alleged several probation violations distinct from those brought in the later felony indictment. ¶13 The misdemeanor fact that complaint the Chandler against defendant incarceration is not decisive. does not, as defendant City Attorney prior to filed his a first The mere filing of a complaint contends, mean custody is pursuant to that complaint. that any subsequent 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) (citations omitted). Defendant is unable to indicate evidence in the record that his arrest on October 27, 2009 was pursuant to anything other than required by statute. the petition to revoke probation as Therefore, defendant fails to meet his burden of establishing fundamental error. CONCLUSION ¶14 For the foregoing reasons, we affirm the convictions 2 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. 8 and sentences. /s/ ________________________________ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ ___________________________________ DONN KESSLER, Judge /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge 9

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