                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

               MICHAEL DAVID SANDERS, JR., Petitioner.

                         No. 1 CA-CR 16-0796 PRPC
                              FILED 3-22-2018


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2008-030926-001
           The Honorable J. Justin McGuire, Judge Pro Tempore

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Respondent

Michael David Sanders, Jr., Kingman
Petitioner
                            STATE v. SANDERS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Kent E. Cattani joined.


H O W E, Judge:

¶1           Michael David Sanders, Jr. petitions this Court for review
from the dismissal of his petition for post-conviction relief of-right (“PCR”).
For the reasons stated, we grant review but deny relief.

¶2           In August 2009, Sanders pled guilty to four counts of
attempted child molestation, class 3 felonies and dangerous crimes against
children. The parties stipulated to a seven-year prison term on count one,
followed by lifetime probation on the remaining counts. The trial court
sentenced Sanders pursuant to the stipulated terms and awarded Sanders
545 days’ presentence incarceration credit.

¶3            Sanders was released from prison in March 2014. Shortly
thereafter, his probation officer petitioned to revoke probation. Sanders
admitted that he had violated his probation. The trial court accepted
Sanders’s admission, suspended the imposition of sentence, and continued
Sanders on probation.

¶4             Approximately four months later, his probation officer again
petitioned to revoke probation. At the probation violation hearing, Sanders
admitted that he had violated his probation. At the disposition hearing, the
trial court revoked probation on count two and sentenced Sanders to the
presumptive ten-year imprisonment term and awarded Sanders 139 days’
presentence incarceration credit. The court reinstated Sanders’s probation
for counts three and four.

¶5            Sanders timely commenced PCR proceedings. An Arizona
Rule of Criminal Procedure 32 counsel was appointed, but after reviewing
the record counsel found no claims for relief. Sanders then filed a pro se
petition and claimed that: (1) the court erred when it failed to award him
an additional 545 days of presentence incarceration credit for count two for
the time that he spent in custody before sentencing in 2009, (2) his trial
counsel and his Rule 32 counsel were ineffective for failing to object to or
raise the presentence credit error, (3) the court lacked jurisdiction to



                                      2
                            STATE v. SANDERS
                            Decision of the Court

proceed with the probation violation and disposition hearings because the
Attorney General had not been notified of the proceedings as A.R.S. § 13–
121 requires, and (4) his prison sentence was imposed in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000).

¶6             The State responded that Sanders had already received credit
for the 545 days he spent in custody against his seven-year prison sentence
for count one. Because his second, ten-year sentence was a consecutive
sentence, Sanders was not entitled to double credit. Consequently, the State
argued that neither Sanders’s trial counsel nor his Rule 32 counsel had been
ineffective for failing to object.

¶7            Regarding the remaining claims, the State noted that the trial
court had jurisdiction to proceed with the probation violation and
disposition hearings under State v. Ray, 209 Ariz. 429 (App. 2004). Finally,
relying on State v. Brown, 209 Ariz. 200 (2004), the State pointed out that
Sanders had received a presumptive sentence, and thus no violation of
Apprendi had occurred. Finding no colorable claim, the trial court dismissed
the petition. Sanders moved for reconsideration, which the trial court
denied. This timely petition for review followed.

¶8             Absent an abuse of discretion or error of law, we will not
disturb a trial court’s ruling on a PCR. State v. Gutierrez, 229 Ariz. 573, 577
¶ 19 (2012). Sanders’s burden on review is to demonstrate that the trial court
abused its discretion. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
Sanders has not met that burden.

¶9             Sanders received 545 days’ presentence incarceration credit
for his seven-year prison sentence and was not entitled to any further credit.
See State v. Cruz-Mata, 138 Ariz. 370, 375 (1983) (purpose of presentence
incarceration credit is to reduce the number of days served in prison by an
inmate by the number of days the inmate spent in presentence custody); see
also State v. Cuen, 158 Ariz. 86, 88 (App. 1988) (sentencing court may not
give double credit for presentence time served when consecutive sentences
are imposed). Because the trial court did not err by declining to apply the
presentence credit to Sanders’s ten-year prison sentence for count two,
counsel was not ineffective for failing to object.1



1      Sanders’s ineffective assistance claim against his Rule 32 counsel is
not a cognizable claim in this proceeding. Any ineffective assistance claims
against his Rule 32 counsel must be brought in a new PCR filed within 30



                                       3
                            STATE v. SANDERS
                            Decision of the Court

¶10           Sanders’s claim that the trial court lacked jurisdiction to
proceed with the probation violation and disposition hearings because the
Attorney General had not been notified of the proceedings under A.R.S. §
13–121 is without merit. This claim has already been rejected by the court
in Ray. Ray held that A.R.S. § 13–121 does not apply to probation revocation
proceedings. 209 Ariz. at 431 ¶ 5. The court held that the more specific
statute, A.R.S. § 13–901(C), controls and “grants the trial court jurisdiction
over probation revocation proceedings and § 13–121 does not apply.” Id.

¶11            Sanders’s Apprendi claim is also without merit. Apprendi
requires that ”[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. at 490. In light of the holding in Apprendi, our supreme court has held
that the prescribed statutory maximum sentence for Apprendi analysis is the
presumptive term. Brown, 209 Ariz. at 202–03 ¶¶ 11–12. Here, Sanders
received the presumptive term. Sanders’s argument appears to be based on
his misunderstanding of our criminal code. His sentence was not enhanced
or aggravated based on dangerousness. A dangerous crime against children
is merely a classification of certain criminal offenses subject to more severe
penalties. A.R.S. § 13–604.01 (now A.R.S. § 13–705).

¶12            Accordingly, we grant review but deny relief.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




days of the issuance of the mandate in this case. Ariz. R. Crim. P. 32.4(a); see
also State v. Pruett, 185 Ariz. 128, 131 (App. 1995).


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