Opinion
2 CA-CR 2023-0049-PR
04-06-2023
The State of Arizona, Respondent, v. Joseph John Viola, Petitioner.
Joseph Viola, Yuma In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR1990010323 The Honorable Michael C. Blair, Judge
Joseph Viola, Yuma In Propria Persona
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Joseph Viola seeks review of the trial court's ruling denying his motion for correction of a clerical error. For the following reasons, we grant review but deny relief.
¶2 After a jury trial, Viola was convicted of five counts of fraudulent schemes and artifices. The trial court sentenced him to eighteen years' imprisonment for each count, with the sentences for counts two through five concurrent to each other but consecutive to the sentence for count one. It also awarded Viola 358 days' presentence incarceration credit toward his sentence for count one. This court affirmed Viola's convictions and sentences on appeal. State v. Viola, No. 1 CA-CR 11-0338 (Ariz. App. Oct. 2, 2012) (mem. decision). Approximately five years later, Viola sought and was denied post-conviction relief. This court denied relief on review. State v. Viola, No. 1 CA-CR 17-0660-PRPC (Ariz. App. Apr. 19, 2018) (mem. decision).
¶3 In July 2022, Viola filed an "Emergency Motion for Correction of Clerical Error Resulting in Custody after the Sentence Imposed has Expired," citing Rule 24.4, Ariz. R. Crim. P. He argued that, based on the sentencing transcript, the trial court had ordered all five of his sentences to run concurrently. Specifically, he pointed to the court's statement that "Sentence as to Counts 1, 2, 3, 4, and 5 will begin today." He also asserted that he was owed an additional sixty-two days of presentence incarceration credit for time spent awaiting extradition from San Francisco.
Although Viola cited Rule 24.4, he also requested relief because he remains "in custody after the sentence imposed has expired," language consistent with Rule 32.1(d), Ariz. R. Crim. P.
¶4 In October 2022, the trial court denied Viola's motion. The court explained that, despite the statement Viola had cited, "the very next paragraph in the transcript clearly states that 'Counts 2, 3, 4, and 5, shall run concurrently to each other, but consecutively to the sentence imposed in Count 1.'" The court further observed that "the sentencing order states in four separate places" that the sentences for counts two, three, four, and five are concurrent with each other and consecutive to the sentence for count one. Thus, the court concluded, "[I]t is clear from the transcript and the sentencing order that counts 2, 3, 4, and 5 are to be served concurrently with each other, but consecutive to count 1." As to the statement that all five sentences "will begin today," the court explained it "simply reflects that the sentence for count 1 began that day and the concurrent sentences for counts 2, 3, 4, and 5 would follow consecutively thereafter." Viola filed a motion for reconsideration, which the court also denied. This petition for review followed.
Viola filed a notice of appeal, but his appeal was dismissed and deemed a petition for review under Rule 32.
¶5 On review, Viola again argues that the sentencing transcript shows all five of his sentences were to run concurrently. He contends that the trial court's statement that all five sentences "will begin today" controls and "instantly became the official order of the court," "notwithstanding subsequent conflicting sentence commentary or the defective entry in court minutes." He further maintains that he is being held in custody after his sentence expired. See Ariz. R. Crim. P. 32.1(d). We will not disturb the court's ruling absent an abuse of discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Viola has not met his burden of establishing such abuse here.
¶6 When there is a purported discrepancy between the sentencing transcript and minute entry, we must look to the record as a whole to determine the trial court's intent. State v. Lopez, 230 Ariz. 15, n.2 (App. 2012). Here, based on the sentencing transcript and minute entry, the court's intent is clear: Viola's sentences for counts two through five were to run concurrent with each other but consecutive to his sentence for count one. Although the court stated that all five sentences "will begin today," the very next sentence clarifies that "the sentences as to Counts 2[,] 3, 4, and 5, shall run concurrently to each other, but consecutively to the sentence imposed in Count 1." See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013). As the trial court pointed out, that statement can be interpreted to mean that the sentence for count one began the day of sentencing, while the concurrent sentences for counts two through five would follow immediately thereafter.
¶7 Viola also reasserts his claim that he is entitled to an additional sixty-two days of presentence incarceration credit for time spent in San Francisco awaiting extradition. See Ariz. R. Crim. P. 32.1(d). First, Viola's claim is untimely. He has failed to establish that he raised his claim within a reasonable time after its discovery. See Ariz. R. Crim. P. 32.4(b)(3)(B). Indeed, Viola appears to acknowledge that he knew of the issue at the time of the sentencing in May 2011, when the trial court awarded him 358 days' credit. Yet, he waited more than eleven years to raise the issue. Second, Viola has also not explained why he failed to raise this claim in his previous petition for post-conviction relief or in a timely manner. See Ariz. R. Crim. P. 32.2(b).
Although the trial court did not explicitly address this argument in its ruling, we need not remand the matter because Viola failed to establish a colorable claim. See Roseberry, 237 Ariz. 507, ¶ 7 ("We will affirm a trial court's decision if it is legally correct for any reason.").
¶8 Moreover, in support of his claim, Viola has offered a "report excerpt," purportedly showing "commencement of custody for extradition" on March 10, 2010. While the untitled document does indicate that Viola was incarcerated in San Francisco County Jail pending extradition to Arizona on a felony warrant, the origins and author of the alleged report are not identified. Viola has also failed to provide any documentation showing how the court calculated his 358 days' credit or that the sixty-two days was missing therefrom. See State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) (to establish colorable claim, defendant must present more than conclusory assertion); State v. Borbon, 146 Ariz. 392, 399 (1985) (court not required to conduct evidentiary hearing on generalizations and unsubstantiated claims). For all these reasons, summary dismissal was appropriate.
To the extent Viola raises new claims for the first time on review, we do not address them. See Ariz. R. Crim. P. 32.16(c)(2)(B) (petition for review shall include statement of issues trial court decided that defendant is presenting for review); see also State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (reviewing court will not consider issues raised for first time on review).
¶9 Accordingly, we grant review but deny relief.