Opinion
No. 1 CA-CR 11-0295
12-22-2011
STATE OF ARIZONA, Appellee, v. DONN ALLEN LEROY MCFARLIN, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-122690-001 SE
The Honorable Edward O. Burke, Judge (Retired)
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Terry J. Adams, Deputy Public Defender
Attorneys for Appellant
Phoenix JOHNSEN , Judge
¶1 Donn Allen Leroy McFarlin appeals his sentences, arguing the superior court awarded him insufficient presentence incarceration credit. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 McFarlin was charged in 2009 with theft of credit card or obtaining a credit card by fraudulent means, a Class 5 felony; forgery, a Class 4 felony; taking the identity of another, a Class 4 felony; and fraudulent use of a credit card, a Class 1 misdemeanor. On September 14, 2009, McFarlin failed to appear for the first day of his trial, and a warrant was issued for his arrest. The trial proceeded without him, and the jury convicted him on all counts the next day. Meanwhile, a federal warrant had been issued for McFarlin's arrest in connection with a post office robbery that occurred a few days before the trial. Federal officers arrested him late in the day on September 14.
¶3 McFarlin was in federal custody until February 8, 2011, when he was transferred to state custody. On April 1, 2011, the superior court sentenced McFarlin to incarceration terms of five years, ten years and ten years on the three felony counts, to be served concurrently. The court awarded him 563 days' presentence incarceration credit against the three concurrent felony terms. On the misdemeanor count, the court sentenced McFarlin to "83 days time served."
¶4 McFarlin timely appealed. 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), 13-4031 and 13-4033 (2011).
DISCUSSION
A. Introduction.
¶5 The sole argument McFarlin raises on appeal is that he received insufficient presentence incarceration credit. McFarlin argues the superior court ordered all four sentences to be served concurrently, and that as a result, the 83 days of credit he received on the misdemeanor charge also should be applied against the felony sentences.
¶6 In response, the State argues we should reject McFarlin's appeal because the superior court improperly gave him more incarceration credit than he was entitled to receive. It contends McFarlin was not entitled to presentence incarceration credit for the time he spent in federal custody because he was not then in custody on the state charges pursuant to A.R.S. § 13-712(B) (2011) . We need not decide that issue, however, because even assuming McFarlin was entitled to presentence incarceration credit for all the time he spent in federal custody, the superior court properly awarded him that credit.
Having not cross-appealed from the superior court's award of presentence incarceration credit, the State does not ask us to reduce the credit on appeal. See State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990).
Absent material revision after the date of an alleged offense, we cite a statute's current version.
B. Legal Principles.
¶7 A failure to award the correct amount of presentence incarceration credit constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). A defendant is entitled to presentence incarceration credit for all time spent in custody pursuant to an offense. A.R.S. § 13-712(B). When concurrent sentences are imposed, a defendant's "time spent in presentence custody" is credited "to each concurrent sentence." State v. Cruz-Mata, 138 Ariz. 370, 375, 674 P.2d 1368, 1373 (1983). When consecutive sentences are imposed, however, "a defendant is not entitled to presentence incarceration credit on more than one of those sentences, even if the defendant was in custody pursuant to all of the underlying charges prior to trial." State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106 (App. 1997) (citing State v. Cuen, 158 Ariz. 86, 88, 761 P.2d 160, 162 (App. 1988)).
C. The Court Did Not Err.
¶8 We reject the premise of McFarlin's argument, which is that the superior court ordered that his sentence on the misdemeanor charge be served concurrently with the felony sentences.
¶9 We note at the outset that the court was permitted to order the sentences to be served consecutively because the basis of the misdemeanor charge was not the basis of any of the felony charges. See A.R.S. § 13-116 (2011) (concurrent sentences required when separate punishments are imposed for a single act); State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989) (setting forth test for a "single act" under § 13-116).
McFarlin was charged with stealing credit cards from his employer (theft of credit card) and using them to make purchases (fraudulent use of a credit card). The charges of forgery and taking the identity of another arose out of the discovery, upon his arrest, that McFarlin had a driver's license and Social Security card bearing a Florida man's name, but with McFarlin's picture laminated on the driver's license.
¶10 Unless otherwise provided by law, multiple sentences of imprisonment imposed at the same time "shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence." A.R.S. § 13-711(A) (2011). At no point during sentencing did the court in this case "expressly direct" that the misdemeanor sentence would run concurrently with the felony sentences. Although the court expressly directed that the three felony sentences be served concurrently, the closest it came to addressing the issue with respect to the misdemeanor charge was to note that 83 days of credit were "used up" on the misdemeanor. Because presentence incarceration credit is applied to each concurrent sentence but only once to consecutive sentences, the 83 days only could be "used up" if the court was designating the misdemeanor sentence to be consecutive.
¶11 Accordingly, pursuant to A.R.S. § 13-711(A), we conclude the sentence on the misdemeanor charge was to be served consecutively to the three concurrent sentences imposed on the felony charges. Under this analysis, the court did not fail to credit McFarlin with any presentence incarceration time to which he was entitled.
¶12 McFarlin originally was arrested on April 1, 2009, and released on bail on May 7, 2009, 37 days later. Federal agents arrested him on September 14, 2009, and, although the record is unclear, he seems to have remained in federal custody until his transfer to state custody on February 8, 2011, 512 days later. He was then in state custody until his sentencing on April 1, 2011, 52 days later. All told, prior to sentencing, McFarlin was in state custody for 89 days and in federal custody for 512 days.
¶13 At sentencing, as recommended by the presentence report, it appears the superior court awarded McFarlin on the misdemeanor charge what the court understood was the total time he had spent in state custody. The court then awarded McFarlin an additional 563 days' presentence incarceration credit on the felony sentences. We infer the court arrived at the 563 days of credit by summing the number of days McFarlin was in federal custody and the number of days he was in state custody after he was transferred from federal custody. In awarding credit based on this calculation, the court credited McFarlin twice with the 52 days he spent in state custody from February 8, 2011, to the date of sentencing, because the court already had awarded McFarlin credit for those days on the misdemeanor charge.
As stated, the court awarded McFarlin 83 days of credit although he had been in state custody for 89 days. The presentence report said he had been in state custody for 83 days, but sentencing was continued from March 25 to April 1, meaning that by the time McFarlin was sentenced he had been in state custody a total of 89 days, not 83 days. The miscalculation does not result in error that disadvantaged McFarlin, however, because, as noted, the court mistakenly credited McFarlin twice with 52 days of credit.
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¶14 Assuming for purposes of argument that McFarlin was entitled to presentence incarceration credit in this matter for the time he spent in federal custody, he was entitled to a total of 601 days of credit. Because the sentence on the misdemeanor count was imposed consecutively, 83 of the 601 days were, as the superior court stated, "used up" on the sentence on that charge. McFarlin therefore was entitled to no more than 518 days' presentence incarceration credit for the felony sentences. Because he received 563 days' credit on those sentences, we reject his contention that he was deprived of any credit to which he was entitled.
CONCLUSION
¶15 For the foregoing reasons, we affirm McFarlin's convictions and sentences.
________________________
DIANE M. JOHNSEN, Presiding Judge
CONCURRING: ________________________
PATRICIA A. OROZCO, Judge
___________________
PATRICK IRVINE, Judge