                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                             ROBERT B. STEWART,
                                  Petitioner.

                          No. 1 CA-CR 14-0024 PRPC
                              FILED 12-3-2015


            Appeal from the Superior Court in Maricopa County
                           No. CR0000-073417
                  The Honorable Pamela S. Gates, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Robert B. Stewart, Florence
Petitioner
                           STATE v. STEWART
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.



O R O Z C O, Judge:

¶1             Robert B. Stewart petitions this court for review from the
dismissal of his petition for post-conviction relief. We have considered the
petition for review. For the reasons stated, we grant review but deny relief.

¶2             Stewart pled guilty to first degree rape in 1972 and the trial
court sentenced him to a term of forty years to natural life imprisonment.
The Arizona Supreme Court affirmed his conviction and sentence. Stewart
now seeks review of the summary dismissal of his fourth successive
petition for post-conviction relief. We have jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9.c and Arizona Revised Statute
(A.R.S.) section 13-4239.C (West 2015).1

¶3            Stewart properly presents two issues for review. Stewart
argues the department of corrections has held him beyond the date his
sentence should have expired because the department has not correctly
calculated and/or applied the time “deductions” Stewart has earned
during his imprisonment. Stewart also asks this court to modify his
sentence to a fixed, maximum number of years’ imprisonment, order the
department of corrections to calculate the amount of the deductions in time
he has earned and apply those deductions to that maximum term so that he
may benefit from those deductions.2 We deny relief because Stewart
misconstrues the nature of his sentence and the provisions of the Arizona
criminal sentencing scheme that apply to him.



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

2      The State argues we have no jurisdiction because Stewart has not
presented a cognizable claim for relief pursuant to Rule 32.1. We find
Stewart has presented a claim sufficient to establish jurisdiction under Rule
32.1.d (petitioner being held after the expiration of sentence).


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                            STATE v. STEWART
                            Decision of the Court

¶4              First, Stewart has no release date nor a sentence expiration
date to which to apply the deductions in the manner he seeks. Stewart will
remain in prison for the rest of his life unless he is placed on parole or
receives an absolute discharge. A trial court must sentence a criminal
offender pursuant to the laws in effect at the time of the offense. State v.
Newton, 200 Ariz. 1, 2, ¶ 3 (2001). Stewart committed the offense in 1972.
The sentence for first degree rape at that time was imprisonment for life or
for any term not less than five years. State v. Molina, 106 Ariz. 431, 431-32
(1970) (citing the former A.R.S. §§ 13-611(A) and -614(A)). At that time,
Arizona law also mandated “indeterminate” sentences for persons
sentenced to prison for felony convictions. Ard v. State ex rel. Superior Court,
102 Ariz. 221, 222 (1967) (citing the former A.R.S. § 13-1643(A)). An
indeterminate sentence is a sentence that identifies both a minimum and
maximum limit, not just a single fixed term of years as a trial court would
impose under the current sentencing scheme. Id. Therefore, in Stewart’s
case, the trial court was required to impose an indeterminate sentence with
a minimum term of not less than five years and a maximum term of not
more than natural life. As noted above, the court sentenced Stewart to an
indeterminate sentence of forty years to natural life.

¶5             The amount of time Stewart will serve pursuant to his
indeterminate sentence, however, is ultimately not up to the sentencing
court, the department of corrections or this court. Further, the minimum
limit of an indeterminate sentence does not determine a mandatory release
date nor a sentence expiration date. Defendants sentenced to an
indeterminate sentence who have completed their minimum term and who
seek to obtain release before the expiration of their maximum term must
apply to the board of executive clemency for parole or for absolute
discharge. State v. Rice, 110 Ariz. 210, 213 (1973) (citing the former A.R.S. §
31-411(A)).3 “Under the indeterminate sentence procedures, the actual time
served within the framework of the sentence depends upon the [board of
executive clemency’s] view of the prisoner’s record, rehabilitation, and
prospects of becoming a good citizen when set free.” State v. Hays, 109 Ariz.
123 (1973) (overruled on other grounds by State v. Lewis, 109 Ariz. 466
(1973)). Therefore, it is the board of executive clemency that ultimately
determines the actual amount of time a defendant will serve pursuant to an
indeterminate sentence. Id. Stewart has submitted multiple applications
to the board of executive clemency since 1985 and the board has placed

3      We refer to the board of executive clemency because the relevant
functions of the former board of pardons and paroles that existed at the
time Stewart committed his offense are now within the functions of the
board of executive clemency. A.R.S. §§ 31-411, et seq. (2015).


                                       3
                            STATE v. STEWART
                            Decision of the Court

Stewart on parole twice since 1986. Unless and until the board places
Stewart on parole again or grants him an absolute discharge, Stewart will
remain in prison for the remainder of his life.

¶6             Second, Stewart misconstrues how the time deductions he has
earned are applied to his sentence. Stewart has earned deductions by two
methods. Pursuant to the former A.R.S. § 31-251(B), Stewart has earned
deductions for labor he has performed while in prison. See Hogan v. Ariz.
Bd. of Pardons and Paroles, 108 Ariz. 472, 473-74 (1972). This credit is known
colloquially as “copper time.” State v. Valenzuela, 144 Ariz. 43, 45 (1985).
Pursuant to the former A.R.S. § 31-252(A), Stewart has also earned credit
for work or assignments “of confidence and trust[.]” Rabon v. State ex. rel.
Eyman, 18 Ariz. App. 523, 524 (1972). This credit is known colloquially as
“double time.” Valenzuela, 144 Ariz. at 45. At the time Stewart committed
his offense, both types of deductions applied to the minimum term of a first-
time offender’s indeterminate sentence. See Hogan, 108 Ariz. at 473-74;
Rabon, 18 Ariz. App. at 524.4 As noted above, however, the minimum
sentence imposed by the trial court does not determine a mandatory release
date nor does it determine a sentence expiration date. The deductions in
time that Stewart earned merely allowed Stewart to apply for parole or
absolute discharge at an earlier period in his sentence – the minimum term
minus the “copper time” and “double time” he earned. Rice, 110 Ariz. at
213-14 (addressing the former A.R.S. § 31-411(A) and applications for
parole or absolute discharge from indeterminate sentences).5 Therefore,
Stewart received the benefit of his time deductions in the manner
contemplated by the applicable sentencing statutes.

¶7            While the petition for review presents additional issues, these
are issues Stewart did not raise in his petition for post-conviction relief filed

4      The legislature later amended these statutes to apply the deduction
to the maximum term of any offender’s sentence. Valenzuela, 144 Ariz. at
45.

5      The former A.R.S. § 31-411(A) also provides that a defendant who
has served one-third of the minimum sentence, without consideration of
any time deduction, and who has served at least one year in prison may
apply for parole but not absolute release. Rice, 110 Ariz. at 213. In short,
the former A.R.S. § 31-411(A) permits a defendant who completes a third of
the minimum limit of an indeterminate sentence, without consideration of
any time deductions, to apply for parole. It permits a defendant who
completes the minimum limit of an indeterminate sentence, including
consideration for deductions in time, to apply for parole or absolute release.


                                       4
                            STATE v. STEWART
                            Decision of the Court

below or issues he raised or could have raised in prior post-conviction relief
proceedings. A petition for review may not present issues not first
presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467 (App. 1980);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575,
577 (App. 1991); Ariz. R. Crim. P. 32.9.c.1(ii). Further, any claim a defendant
raised or could have raised in an earlier post-conviction relief proceeding is
precluded. Ariz. R. Crim. P. 32.2.a. None of the exceptions under Rule
32.2.b apply here.

¶8            For the foregoing reasons, we grant review but deny relief.




                                    :ama




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