State v. Johnson
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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, ) ) Respondent, ) ) v. ) ) RICHARD EUGENE JOHNSON, ) ) Petitioner. ) ) ) ) __________________________________) DIVISION ONE FILED: 08/23/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0247 PRPC DEPARTMENT C Maricopa County Superior Court No. CR2001-090873-001DT DECISION ORDER Petitioner Richard Eugene Johnson seeks review of the dismissal of his petition for post-conviction relief. Presiding Judge Maurice Portley, and Judges Margaret H. Downie and Michael J. Brown, have considered this petition for review and, for the reasons stated, grant review and grant relief. We modify the award of presentence incarceration credit and add 365 days, for a total award of presentence incarceration credit of 784 days. PROCEDURAL BACKGROUND Johnson pled guilty to two counts of attempted child molestation, class three felonies and dangerous crimes against children. There were no sentencing agreements except that if the defendant is placed on probation on Count 1 and Count 2, it 1 CA-CR 10-0096 PRPC (Page 2) shall be lifetime probation and he shall be required to serve one year flat in jail on each count consecutively without work furlough. At sentencing, the trial court placed him on lifetime probation on each count, and pursuant to the plea agreement, ordered that Johnson be incarcerated for a total of two years (one year on each count). Later, after admitting that he had used cocaine, the trial court revoked his probation. Johnson was sentenced to concurrent, presumptive ten-year terms, with credit for 419 days of presentence incarceration. The presentence incarceration credit included only one of the two one-year periods Johnson spent incarcerated pursuant to his probation. Johnson relief. He filed raised two a timely claims in notice his of post-conviction petition: one alleged ineffective assistance of counsel, and the other alleged that he was entitled to additional credit for 365 days of presentence incarceration (the second, or consecutive, year he spent incarcerated as a condition of his probation on Count 2). After the State argued Johnson s counsel had not been ineffective, it also claimed that Johnson was not entitled to credit for the 1 CA-CR 10-0096 PRPC (Page 3) additional year he had spent in custody. The State reasoned that terms even though the two one-year jail were served consecutively, the probation terms were concurrent, as were the ten-year prison terms. Thus, the State concluded, [T]he [judicial officer] did in fact accord Defendant the credit to which he was concurrently, entitled. the Since credit the from sentences the were consecutive to run sentences previously imposed was to be served concurrently. The trial court summarily dismissed the petition for the reasons stated in the response. unsuccessful motion for rehearing. Johnson filed an He then filed this petition for review and asked whether he is entitled to an additional credit for the second, or consecutive, 365 days for the time he spent incarcerated as a condition of his probation. ANALYSIS It is undisputed Johnson spent 784 days in jail prior to the imposition of his prison sentences. Of that time, 730 days were served as a condition of probation; 365 days on Count 1, and 365 days on Count 2. governed by Arizona Revised Presentence incarceration credit is Statutes ( A.R.S. ) sections 13- 1 CA-CR 10-0096 PRPC (Page 4) 712(B) (2010), and -903(F) (2010). 1 statutes, and should Chavez, 172 Ariz. A.R.S. sections be 102, The statutes are companion interpreted 104, 13-709(B) 834 and consistently. P.2d 825, -903(F) 827 were State (App. v. 1992). companions in enactment, see 1977 Ariz. Sess. Laws 678, 713, 719, and address the related credit. subjects of pre-probationary and probationary We believe it proper to interpret them consistently. Id. Section 13-712(B) states that 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 [imposed]. contradictory to the literal language of Though seemingly the statute, the statute has been interpreted to require that credit be awarded against all concurrently. sentences imposed which are ordered to run State v. Cruz-Mata, 138 Ariz. 370, 375, 674 P.2d 1368, 1373 (1983). The requirement is necessary to achieve the legislative purpose of the statute; to wit: to reduce the number of days served in prison by the number of days the inmate spent in presentence custody. 1 If the credit were not applied to all We cite to the current version of the statutes because there have been no changes material to this decision. 1 CA-CR 10-0096 PRPC (Page 5) concurrent sentences, the time served in prison by an inmate would not be reduced, and the credit would be illusory and the effect of the statute would be without meaning. In Cruz-Mata, the defendant spent time in custody pursuant to only one of the offenses for which he was sentenced to prison. was entitled However, our supreme court held that the defendant to the presentence incarceration credit another prison sentence ordered to run concurrently. explained: We think the remedy is to credit appellant's time spent in presentence custody to each concurrent sentence. This does not grant appellant a windfall. The result will be that the time he must serve in prison before he is eligible for parole will be reduced by the actual number of days spent in presentence custody. See State v. Thomas, 133 Ariz. 533, 652 P.2d 1380 (1982) (applying credit for presentence custody against the minimum 25-year portion of the sentence). Stated another way, the term of imprisonment minus the number of days spent in presentence custody equals the length of incarceration in prison. In this case, appellant's minimum term of imprisonment is 25 years minus 260 days credit for presentence custody which equals 24 years, 105 days to be served in prison before he is eligible for parole. Id. at 375, 674 P.2d at 1373. against The court 1 CA-CR 10-0096 PRPC (Page 6) In comparison, § 13-903(F) states, Time spent in custody under § 13-901, subsection F shall be credited to any sentence of imprisonment imposed upon revocation of probation. Like Cruz-Mata, Johnson is entitled to credit against his concurrent sentences for all time actually spent in custody. does not receive any windfall because the time Johnson He must serve in prison will be reduced by the actual number of days he spent in custody. The State s argument that although Johnson served the two jail terms consecutively, he ultimately was sentenced to concurrent terms, and thus the jail terms should be treated as concurrent, has effectively been rejected by Cruz-Mata. If the State is correct, and Johnson was only entitled to credit for one year eleven against years for both sentences, each he would offense. effectively However, adopting serve the interpretation set forth in Cruz-Mata, and awarding credit for both years effectively offense. ( all time serves the actually sentence spent imposed, in custody ) ten years Johnson for each 1 CA-CR 10-0096 PRPC (Page 7) We vacate the trial court s order of January 4, 2010, summarily dismissing the post-conviction relief proceeding, and we modify the sentencing minute entry of August 6, 2008, and award presentence incarceration credit for a total of 784 days against both sentences. /s/ ___________________________________ MAURICE PORTLEY, Presiding Judge
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