STATE v. EASTER
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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 ) ) ) Appellee, ) ) ) v. ) ) ) MICHAEL DEAN EASTER, ) Appellant. ) _____________________________ ) 1 CA-CR 11-0682 STATE OF ARIZONA, DIVISION ONE FILED: 07/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Yavapai County Cause No. P1300CR20080548 The Honorable Celé Hancock, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals and Capital Litigation Section Attorneys for Appellee White Law Offices, PLLC By Wendy F. White Attorney for Appellant Michael Dean Easter Appellant T H O M P S O N, Judge Phoenix Flagstaff ¶1 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d (defendant) 878 has (1969). advised us Counsel that, for after Michael Dean Easter searching the entire record, she has been unable to discover any arguable questions of law and has filed a brief requesting that this court conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propria persona, and he has done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We review the facts in the light most sustaining the conviction reasonable inferences against defendant. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶3 On April 25, 2008, 911 operators received multiple phone calls regarding a pick-up truck driving northbound on the southbound lanes of the Interstate 17 in Arizona. The truck nearly collided with several vehicles before ultimately striking a semi-truck owned by Great Wide Distribution at approximately 2:00 A.M. The driver of the pick-up truck fled the scene before police arrived. The semi-truck driver suffered injuries to his 2 stomach, neck, and right arm. The collision resulted in extremely heavy damage to the pick-up truck and damages to the semi-truck totaling $14,408.38. ¶4 Police ran a check of the truck s license plate to find that the truck was registered to defendant. A search of the surrounding area was then conducted with the assistance of a helicopter. At approximately 8:00 a.m., an Arizona Department of Public Transportation (ADOT) employee informed police that he had detected an unidentified male subject located in a culvert two miles north of the accident site. Officers found defendant lying face down near a fence line in an attempt to hide from view. Defendant had sustained minor scratches and abrasions, and he told police he had received the injuries while attempting to elude the police helicopter. Defendant emanated a strong odor of alcohol when he was taken into custody. ¶5 While in transit to the jail, defendant, without being questioned, volunteered that he had been driving intoxicated. Once at the jail, defendant was read his Miranda rights and stated police that he officers understood obtained and a voluntarily telephonic waived search them. The warrant for defendant s blood and drew two tubes of blood from defendant at 10:32 a.m. Tests on the blood revealed defendant s blood alcohol content (BAC) to be .0551 at the time of the blood draw. Retrograde analysis provided that defendant s BAC was between 3 .14 and .31 at the time of the accident. During the subsequent police questioning, defendant said that he was upset and drank an entire bottle of Crown Royal. He further stated that he did not know he was driving the wrong direction on the highway or that he had been involved in a head on collision. of the accident, defendant s license was At the time suspended in Ohio, Illinois, Florida, North Carolina, and West Virginia. ¶6 Defendant was indicted on one count of aggravated driving while under the influence of alcohol to the slightest degree (Count 1), a class 4 felony, one count of criminal damage (Count 2), a class 4 felony, one count of aggravated assault (Count 3), a class 3 felony, seven counts of endangerment (Counts 4-10), class 6 felonies, and one count of leaving the scene of an injury accident (Count 11), a class 5 felony. counts of convicted remaining endangerment defendant, counts. were who A was dismissed tried nationwide in at trial. absentia, warrant was Two A jury all nine issued for of defendant s arrest. ¶7 2011 Defendant was arrested in North Carolina in January on a imprisonment. drug offense and sentenced to six months of Following the completion of his sentence in North Carolina, defendant was brought to Arizona in June 2011 pursuant to his Arizona warrant to face sentencing for his convictions. The trial court sentenced defendant to presumptive sentences of 4 2.5 years for Count 1, 2.5 years for Count 2, 7.5 years for Count 3, 2.25 years for each of Counts 4 through 8, and 1.5 years run for Count concurrently, thereafter. 9. with Counts the 1, remaining 3, and counts 6 to were run set to consecutively He received 243 days of presentence incarceration credit for each count. Defendant timely appealed. DISCUSSION ¶8 Our review sentencing errors. of the record reveals the following First, the trial court granted defendant too many days of presentence incarceration credit. In determining the amount of credit, the trial court counted from the day he was arrested in North Carolina, and spent time there in jail on a North Carolina drug charge, to the day he was sentenced in Arizona, which totaled 243 days. Defendant is entitled to all presentence incarceration that he spent in custody. Rev. Stat. § 13-712(B) (2001). See Ariz. Nevertheless, defendant is not entitled to presentence incarceration credit for time served in an out of state jail on an out of state charge. State v. LaLonde, 156 Ariz. 318, 320, 751 P.2d 978, 980 (App. 1987). This is true even if, as is the case here, defendant had an outstanding Arizona arrest custody on both matters. warrant and was technically in See State v. Horrisberger, 133 Ariz. 569, 570, 653 P.2d 26, 27 (App. 1982). Defendant should have received credit for only the time spent in custody in Arizona 5 prior to his sentencing, which began when he was arrested on June 24, 2011. seventy-three Therefore, days of defendant presentence was entitled incarceration to only credit. However, any illegal sentence that favors the appellant, such as excess without presentence filed a timely corrected As not a be Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). has filing cannot v. state state credit, State the the incarceration timely cross-appeal. cross-appeal, defendant s presentence incarceration credit must remain 243 days. ¶9 Second, the trial court erroneously granted defendant presentence incarceration credit on every sentence, those that were to run consecutively to one another. including See State v. Jackson, 170 Ariz. 89, 94, 821 P.2d 1374, 1379 (App. 1991) ( The credit applies to only one of his sentences. ); see also State v. Cuen, 158 Ariz. 86, 88, 761 P.2d 160, 162 (App. 1988) ( [T]he cases are unanimous in denying double credit against consecutive sentences . . . . ). However, the state must appeal, or cross-appeal when the defendant appeals, if it wishes to challenge an illegally lenient sentence. at 286, 792 P.2d at 749. appeal, this court is Dawson, 164 Ariz. As the state failed to file a crosswithout jurisdiction illegally lenient sentence. counsel s correct the Id. ¶10 to We have read brief and defendant s supplemental brief, and we have searched the entire record for 6 reversible error and find none. P.2d at 881. All of the See Leon, 104 Ariz. at 300, 451 proceedings were conducted compliance with the Arizona Rules of Criminal Procedure. in So far as the record reveals, defendant was adequately represented by counsel at all stages of the proceedings. ¶11 defendant Upon the filing of this decision, counsel shall inform of the status of the appeal and his options. Counsel s duty to further defendant s cause on direct appeal is satisfied and counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision in which to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. 7 CONCLUSION ¶12 We affirm defendant s convictions and sentences. /s/ __________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ MICHAEL J. BROWN, Judge 8
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