STATE v. SCHMALLIE

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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. ) ) ) LEONARD SCHMALLIE, JR., ) Appellant. ) ) DIVISION ONE FILED: 8/13/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0205 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006448-001 The Honorable Pamela Svoboda, Judge AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Section Chief Counsel Criminal Appeals Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Leonard Schmallie, Jr. ( Appellant ) appeals his sentencing for four felony convictions, arguing the trial court erred in failing to award him sufficient presentence incarceration credit credit. for Appellant sixty-nine maintains additional he days should of receive presentence incarceration, the State confesses error, and we agree. ¶2 A jury convicted Appellant of four counts of aggravated DUI, class four felonies committed in Maricopa County on September 15, 2008. On March 16, 2012, the trial court sentenced Appellant to concurrent, presumptive ten-year terms of imprisonment for each count and credited him for 211 days of presentence incarceration. be served concurrent The court ordered that the sentences with Appellant s sentence in Coconino Appellant filed a timely notice of appeal. We have County cause number CR2009-0516. 1 ¶3 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 2013), 2 13-4031, and 13-4033(A). ¶4 credit Appellant argues the trial court erred by failing to him for incarceration. sixty-nine additional days of presentence Appellant did not raise this objection during 1 In April 2008, Appellant committed aggravated DUI in Coconino County, and he was convicted of that offense on January 11, 2010, in Coconino County cause number CR2009-0516. By the time of his sentencing in this case, Appellant had begun serving a term of 2.5 years imprisonment stemming from his 2010 Coconino County conviction. 2 We cite the current version of the applicable statutes if no changes material to our decision have occurred since the crimes were committed. 2 his sentencing hearing; therefore, 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). A trial court s failure to grant a 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 for such offense shall be credited against the term of imprisonment. defendant is booked Carnegie, 174 Ariz. into 452, a Custody commences when a detention 453-54, 850 facility, P.2d 690, State v. 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 reflects and the parties agree that Appellant served eight days of presentence incarceration from September 16, 2008, through September 23, 2008; sixty-eight days of presentence incarceration from March 30, 2010, through June 5, 2010; and 135 days of presentence incarceration from November 2, 2011, through March 15, 2012, 3 for a total of 211 days of 3 The record lists March 16, 2012, as Appellant s last day of presentence incarceration, but Appellant s sentencing occurred 3 presentence incarceration. The record also reflects, however, that on August 25, 2011, the trial court in Maricopa County revoked Appellant s release after he failed to appear at a status hearing, ostensibly due to his incarceration in Coconino County. The court issued orders to secure his attendance in Maricopa County, and Appellant remained incarcerated in either the Coconino Corrections detention County until facility he on jail was or the Arizona transferred November 2, to 2011. 4 Department a Maricopa of County Consequently, if Appellant had not been serving his sentence in Coconino County cause number CR2009-0516, Appellant would have been incarcerated in Maricopa County from August 25 to November 1, 2011, a total of sixty-nine days to which he is entitled to credit. See State v. Seay, 232 Ariz. 146, 148-49, ¶¶ 6-9, 302 P.3d 671, 673-74 (App. 2013); State v. Prevost, 118 Ariz. 100, 103-04, 574 P.2d 1319, 1322-23 (App. 1977). 280 days of presentence Appellant is therefore entitled to incarceration credit, and the trial court erred by only crediting him with 211 days of presentence incarceration. See Ritch, 160 Ariz. at 498, 774 P.2d at 237. on that day; accordingly, he does not receive presentence incarceration credit for March 16, 2012. See Hamilton, 153 Ariz. at 245-46, 735 P.2d at 855-56. Consequently, the trial court s calculation of 135 days credit for the period from November 2, 2011, until sentencing is correct. 4 Appellant was returned to Maricopa County to await trial in this case, and he remained incarcerated until he was sentenced on March 16, 2012. 4 Pursuant to A.R.S. § 13-4037, we modify Appellant s sentences (and, accordingly, the trial court s March 16, 2012 sentencing minute entry) presentence to reflect incarceration sixty-nine credit, or a additional total of days 280 of days presentence incarceration credit, to be applied to all counts. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). We affirm Appellant s sentences in all other respects. ______________/S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/________________ RANDALL M. HOWE, Judge _____________/S/_________________ DIANE M. JOHNSEN, Judge 5

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