STATE v. GARRETT

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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, ) ) Appellee, ) ) v. ) ) PATRICK WAYNE GARRETT, ) ) Appellant. ) ) DIVISION ONE FILED: 09/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0795 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-116897-001 The Honorable Cari A. Harrison, Judge AFFIRMED AS MODIFIED Thomas C. By and Attorneys Horne, Arizona Attorney General Kent E. Cattani, Division Chief Counsel Joseph T. Maziarz, Section Chief Counsel for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 sentencing Patrick for one Wayne Garrett felony ( Appellant ) conviction, arguing appeals only that his the trial court erred in failing to award him sufficient presentence incarceration credit. Appellant maintains he should receive credit for one additional day of presentence incarceration, the State confesses error, and we agree. ¶2 A jury convicted Appellant of one count of attempting to commit robbery. See Ariz. Rev. Stat. ( A.R.S. ) §§ 13-1001 (West 2012), 1 -1902. 2 historical prior The trial court found Appellant had two felony convictions and sentenced him to a slightly aggravated (maximum) term of six years imprisonment in the Arizona Department of Corrections. 3 The court also credited Appellant with 199 days of presentence incarceration. 1 We cite the current version of the statutes as they appear in Westlaw if no changes material to our decision have since occurred. 2 The trial court s October 18, 2011 sentencing minute entry states that Appellant waived trial and entered a plea of guilty. The record makes clear, however, that Appellant did not waive trial and was convicted after a trial by a jury. Pursuant to A.R.S. § 13-4036, we modify the trial court s October 18, 2011 sentencing minute entry to reflect that Appellant was convicted after a trial by a jury. See State v. Ochoa, 189 Ariz. 454, 462, 943 P.2d 814, 822 (App. 1997). 3 In sentencing Appellant, the trial court found two aggravating circumstances - that Appellant had committed the crime with the expectation of pecuniary gain (a factor found by the jury) and the vulnerable condition of the victim. See A.R.S. § 13-701(D)(6), (24). (The court also found one mitigating factor Appellant s mental health but found that the aggravating factors outweighed the mitigating factor.) The trial court s minute entry does not reflect that it found these factors, and neither the minute entry nor the sentencing transcript provides a specific statutory citation for the factors relied on by the court; moreover, the minute entry also does not indicate that the court imposed a slightly aggravated (maximum) sentence. In order to facilitate appellate review, 2 ¶3 Appellant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13- 4033(A). ¶4 Appellant argues the trial court erred by failing to grant him credit. one additional day of presentence incarceration Because Appellant did not raise this objection in the trial court, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005); State v. Payne, 223 Ariz. 555, 560, ¶ 13, 225 P.3d 1131, 1136 (App. 2009). grant a defendant full constitutes such error. credit A trial court s failure to for presentence incarceration See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). ¶5 in Under A.R.S. § 13-712(B), [a]ll time actually spent custody pursuant to an offense until the prisoner is sentenced to imprisonment . . . shall be credited against the term of imprisonment. Custody commences when a defendant is booked into a detention facility, State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690, 691-92 (App. 1993), but does not the trial court should indicate on the record the type of sentence imposed, the aggravating/mitigating factors relied on by the court in imposing the sentence, and the applicable statutory citations. See State v. Hampton, 213 Ariz. 167, 183 n.18, ¶ 71, 140 P.3d 950, 966 n.18 (2006) (citing State v. Anderson, 211 Ariz. 59, 60-61 n.1, ¶ 4, 116 P.3d 1219, 1220-21 n.1 (2005)). 3 include the date sentence is imposed. State v. Hamilton, 153 Ariz. 244, 245-46, 735 P.2d 854, 855-56 (App. 1987). ¶6 The record indicates that Appellant was incarcerated for the current offense on April 1, 2011, and he remained in custody until his sentencing on October 18, 2011. The period from April 1, 2011, through October 17, 2011 (the day before sentencing) includes 200 days. Therefore, Appellant is entitled to 200 days of presentence incarceration credit, and the trial court committed fundamental error by only crediting him with 199 days of presentence incarceration. 774 P.2d at Appellant s presentence 237. Pursuant sentence to incarceration to See Ritch, 160 Ariz. at 498, A.R.S. reflect credit, presentence incarceration credit. one or a § 13-4037, additional total of we modify day 200 of days In addition, we modify the court s sentencing minute entry as noted herein. _____________/S/_________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ________________/S/________________ PATRICIA A. OROZCO, Judge _______________/S/_________________ MAURICE PORTLEY, Judge 4

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