STATE v. BROWN

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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, ) ) ) ) ) ) Appellant. ) ) v. TONY LAMONT BROWN, DIVISION ONE FILED: 09/25/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 12-0005 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006334-001 The Honorable Randall H. Warner, 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 James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix W I N T H R O P, Chief Judge ¶1 Tony Lamont Brown ( Appellant ) appeals his sentencing for two felony convictions, arguing only that the trial court erred in failing to award him sufficient presentence incarceration credit. Appellant maintains he should receive credit for two additional days of presentence incarceration, the State confesses error, and we agree. ¶2 A jury convicted Appellant of Count I, unlawful imprisonment, a class six felony; and Count III, sexual assault, a class two historical felony. prior The felony court found convictions and Appellant had sentenced two him to concurrent, presumptive terms of 3.75 years imprisonment for Count I and 15.75 years (flat time) imprisonment for Count III. The court also credited Appellant with 449 days of presentence incarceration. ¶3 Appellant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). ¶4 him Appellant argues the court erred by failing to grant two Because additional Appellant days did of not presentence raise this incarceration objection in court, we review for fundamental, prejudicial error. credit. the trial 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). A trial court s failure to grant a 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 defendant full credit for presentence incarceration constitutes such error. 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 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 offenses on September 14, 2010, and he remained in custody until his sentencing on December 9, 2011. from September 14, 2010, through December before sentencing) includes 451 days. 8, 2011 The period (the day Therefore, Appellant is entitled to 451 days of presentence incarceration credit, and the trial court committed fundamental error by only crediting him with 449 days of presentence incarceration. Ariz. at 498, 774 P.2d at 237. See Ritch, 160 Pursuant to A.R.S. § 13-4037, we modify Appellant s sentences to reflect two additional days of presentence incarceration credit, or a total of 451 days presentence incarceration credit, to be applied to Counts I and 3 III. We affirm the court s sentencing order in all other respects. ______________/S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _____________/S/___________________ DONN KESSLER, Judge ____________/S/____________________ PATRICIA K. NORRIS, Judge 4

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