STATE v. ESQUIVEL

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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. ) ) ALEJANDRO GARCIA ESQUIVEL, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/17/2013 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 12-0626 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-144412-001 The Honorable Christine E. Mulleneaux, Judge Pro Tem SENTENCE MODIFIED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Marty Lieberman, Maricopa County Legal Defender By Cynthia D. Beck, Deputy Legal Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 court Alejandro improperly Garcia Esquivel calculated his contends that presentence the trial incarceration credit. We agree and therefore modify his sentence. FACTS AND PROCEDURAL HISTORY ¶2 Esquivel was arrested and incarcerated on August 26, 2011. 1 On August 27, 2011, he was notified of his preliminary hearing date and released from custody. When he failed to appear for the preliminary hearing, a bench warrant was issued for his arrest. Esquivel was arrested pursuant to the warrant on September 29, 2011. He remained in custody until September 30, 2011, when he was released on bond. ¶3 Esquivel was convicted after a jury trial. He was taken into custody on July 27, 2012, where he remained until sentencing counsel on September requested incarceration that time, 21, 2012. Esquivel stating: be He At sentencing, credited does for have, defense presentence according to my count, 52 days credit for time served. So I would ask that he get credit six-year for term that. of The court imprisonment and sentenced awarded Esquivel him 52 to days a of presentence incarceration credit. ¶4 Esquivel pursuant to timely Arizona appealed. Revised Statutes We have jurisdiction ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and -4033(A). 1 Details of the offense are irrelevant to the narrow issue presented on appeal. 2 DISCUSSION ¶5 Esquivel argues the trial court erred in awarding him 52 days of presentence incarceration credit rather than the 60 days to which he claims entitlement under A.R.S. § 13-712(B). Fundamental error review occurs when, as here, the appealing party failed to properly raise the issue before the trial court. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of review, the appellant must establish that fundamental error occurred and that the error prejudiced him. I. Id. at ¶ 20. Presentence Incarceration Credit ¶6 Section 13-712(B) provides that [a]ll 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. When calculating presentence incarceration credit, a defendant is entitled to a full day of credit for any partial day spent in custody. State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). A defendant does not, however, receive credit for the day of sentencing. See A.R.S. § 13-712(A) (for defendants in custody on sentencing day, sentencing day is first day of sentence); State v. Lopez, 153 Ariz. 285, 285, 736 P.2d 369, 369 (1987) (if sentencing day is first day presentence of sentence, incarceration sentencing credit). 3 day not Applying counted these toward standards, Esquivel was entitled to 60 days of presentence incarceration credit. 2 ¶7 It is fundamental, illegal sentence. prejudicial error to does illegal. not an State v. McPherson, 228 Ariz. 557, 559, ¶ 4, 269 P.3d 1181, 1183 (App. 2012) (citations omitted). that impose comply with a mandatory sentencing A sentence statute is State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 2007) (citation omitted). at issue here is mandatory. The sentencing statute See State v. Williams, 128 Ariz. 415, 416, 626 P.2d 145, 146 (App. 1981) ( A statute such as [A.R.S. § 13-712(B)], providing for pre-sentence confinement credit, is mandatory, and the sentencing court has no discretion in the matter. ). presentence sentence By not crediting Esquivel with 60 days of incarceration that did not credit, the comply trial with court A.R.S. § imposed a 13-712(B), constituting fundamental, prejudicial error. 3 II. Invited Error ¶8 The State argues Esquivel is foreclosed from raising this issue on appeal by the doctrine of invited error. 2 Under We calculate the credit as follows: Aug. 26 Aug. 27, 2011: 2 days Sept. 29 Sept. 30, 2011: 2 days July 27 Sept. 20, 2012: 56 days 3 The State does not contest that Esquivel was entitled to the additional credit or that the miscalculation constituted fundamental error. 4 that doctrine, a party who deliberately causes a court to commit error cannot complain of that same error on appeal. In re MH2010-002348, 228 Ariz. 441, 445, ¶ 12, 268 P.3d 392, 396 (App. 2011) (citations parties who omitted). inject error The for doctrine strategic benefiting from that error on appeal. exists purposes to prevent from later State v. Lucero, 223 Ariz. 129, 137, ¶¶ 26-27, 220 P.3d 249, 257 (App. 2009). Under the doctrine of invited error, we will not grant relief if the party complaining of the error on appeal was the source of the error. State v. Logan, 200 Ariz. 564, 565-66, ¶¶ 9, 11, 30 P.3d 631, 632-33 (2001). ¶9 Defense counsel asked the trial court to give Esquivel credit for time served, stating that, according to my count, 52 days was appropriate. ultimate responsibility incarceration credit. However, the trial court bears the for calculating presentence State v. Nieto, 170 Ariz. 18, 19, 821 P.2d 285, 286 (App. 1991) (It is abundantly clear that the sentencing judge has the duty and responsibility of computing and pronouncing the presentence custody credit at the time of sentence. ). Because the court had an independent duty to calculate the credit owed Esquivel, the invited error doctrine does not preclude Esquivel s appeal. 5 CONCLUSION ¶10 For the reasons stated, we modify Esquivel s sentence by awarding him 60 days of presentence incarceration credit, rather than the 52 days previously awarded. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Presiding Judge /s/ JON W. THOMPSON, Judge 6

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