                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                        DAVID SOTO CECENA,
                            Appellant.

                      No. 2 CA-CR 2013-0368
                      Filed September 25, 2014


          Appeal from the Superior Court in Pima County
                         No. CR20082701
             The Honorable Deborah Bernini, Judge

                              REMANDED


                               COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Joseph L. Parkhurst, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant
                       STATE v. CECENA
                       Opinion of the Court




                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.



M I L L E R, Presiding Judge:

¶1          David Cecena was convicted after a jury trial of one
count of continuous sexual abuse of a minor and sentenced to
twenty years’ imprisonment. On appeal, he argues the trial court
erred in refusing to grant him credit for time served during his
presentence incarceration in Mexico pursuant to A.R.S. § 13-712(B).
For reasons set forth below, we remand this case for further fact
finding as to whether his incarceration in Mexico was pursuant to
the Arizona charge.

                Factual and Procedural Background

¶2           We limit our overview to the facts relevant to Cecena’s
claimed error regarding presentence incarceration credit. On July 7,
2008, Cecena was arrested and later charged with one count of
continuous sexual abuse of a child. He was held in the Pima County
jail awaiting trial until March 30, 2009, when he was released on
bond. He apparently returned shortly thereafter to his native
Mexico.

¶3           In September 2010, Cecena failed to appear for trial; he
was convicted in absentia, and the trial court issued a bench warrant
for his arrest. He was extradited from Mexico to the United States
on May 31, 2013, and was booked at the Pima County jail that day.

¶4          Cecena was sentenced on August 12, 2013. He claimed
in the presentence report that he had been apprehended in Mexico
on July 13, 2012, and remained in custody there until he was
extradited. At the sentencing hearing, he requested credit for the


                                   2
                         STATE v. CECENA
                         Opinion of the Court

time he had served both in the United States and in Mexico,
claiming a total of 662 days. The trial court denied this request,
sentencing Cecena to the presumptive term of twenty years and
granting 340 days1 of presentence incarceration credit, representing
only the time served in the United States. Cecena timely appealed.

                              Discussion

¶5          Cecena’s sole argument is that the trial court
improperly denied his request for presentence incarceration credit
under A.R.S. § 13-712(B) for time spent incarcerated in Mexico. He
maintains the statute requires credit for all presentence incarceration
pursuant to an Arizona offense, even if served in a foreign nation.

¶6           We review interpretation of statutes de novo. Ariz.
Citizens Clean Elections Comm’n v. Brain, 234 Ariz. 322, ¶ 11, 322 P.3d
139, 142 (2014). “[T]he best and most reliable index of a statute’s
meaning is its language,” State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d
166, 168 (2007), and if that language is clear, then “‘we rely on the
plain language rather than utilizing other ways of interpreting the
statute.’” Cornerstone Hosp. of Se. Ariz., LLC v. Marner ex rel. Cnty. of
Pima, 231 Ariz. 67, ¶ 11, 290 P.3d 460, 465 (App. 2012), quoting Lo v.
Lee, 231 Ariz. 531, ¶ 8, 298 P.3d 220, 222 (App. 2012).



      1 The sentencing minute entry prescribes 340 days of
presentence credit, but at the sentencing hearing, the judge quoted a
figure of 343 days. Cecena served 267 days from his initial booking
on July 7, 2008, until he posted bond on March 30, 2009. He served
an additional 73 days from his extradition on May 31, 2013, to the
date of his sentencing, August 12, 2013. The correct amount of
presentence credit for time spent in the United States therefore is 340
days. See State v. Provenzino, 221 Ariz. 364, ¶¶ 25-26, 212 P.3d 56, 62
(App. 2009) (discrepancy between oral pronouncement of sentence
and minute entry may be resolved by reference to the record
showing dispositive evidence of trial court’s intent); State v. Lopez,
230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012) (“When we can
ascertain the trial court’s intent from the record, we need not
remand for clarification.”).


                                   3
                        STATE v. CECENA
                        Opinion of the Court

¶7           Section 13-712(B), provides: “All 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 otherwise provided for by this chapter.” In State v.
Mahler, our supreme court granted a defendant credit for time
served in Nevada pursuant to his Arizona offense. 128 Ariz. 429,
430, 626 P.2d 593, 594 (1981). The court reasoned that as a matter of
plain language, the presentence credit statute 2 referred to “[a]ll
time” spent in custody pursuant to an Arizona offense, making no
distinction between custody in Arizona or in another jurisdiction.
Id. However, this court later clarified that presentence incarceration
credit is unavailable for time served based on a charge other than
that for which the defendant is being sentenced, because such
incarceration is not “pursuant to” the relevant offense. State v.
Horrisberger, 133 Ariz. 569, 570, 653 P.2d 26, 27 (App. 1982).

¶8           No Arizona case has determined whether § 13-712(B)
applies to presentence incarceration in another country. Although
the prosecutor argued in the trial court that foreign incarceration
never provides pretrial credit, on appeal the state now concedes that
it does. We agree. Just as the plain language of § 13-712(B) makes
no distinction between in-state and out-of-state custody, Mahler, 128
Ariz. at 430, 626 P.2d at 594, neither does it distinguish between
domestic and foreign custody. As long as the foreign incarceration
is pursuant to the Arizona charge for which he or she is being
sentenced, a defendant should be entitled to credit for presentence
incarceration in another country just as for such incarceration in
another state. A.R.S. § 13-712(B); see also State v. Hemphill, 917 A.2d
247, 249-50 (N.J. Super. Ct. App. Div. 2007) (interpreting analogous
New Jersey statute to allow credit for detention in Scotland if solely
because of New Jersey charge, and remanding for further fact
finding on that issue); Ex parte Rodriguez, 195 S.W.3d 700, 703-04



      2 The court in Mahler construed former A.R.S. § 13-709(B),
which was later renumbered as A.R.S. 13-712(B). See 128 Ariz. at
430, 626 P.2d at 594; 2008 Ariz. Sess. Laws, ch. 301, § 27(B). The
relevant language is identical.


                                  4
                         STATE v. CECENA
                         Opinion of the Court

(Tex. Crim. App. 2006) (granting presentence incarceration credit for
Mexico detention on Texas charge).

¶9           Resolving this statutory interpretation question does
not end our inquiry, however, because we must determine whether
Cecena’s incarceration in Mexico was “pursuant to” his Arizona
charge within the meaning of § 13-712(B). See Horrisberger, 133 Ariz.
at 570, 653 P.2d at 27 (no Arizona credit for presentence
incarceration on out-of-state charges); State v. Lalonde, 156 Ariz. 318,
320, 751 P.2d 978, 980 (App. 1987) (same).

¶10          It is the defendant’s burden at sentencing to
demonstrate entitlement to presentence incarceration credit. 3 See
People v. Shabazz, 132 Cal. Rptr. 2d 708, 709 (Cal. Ct. App. 2003);
accord State v. Coe, 554 A.2d 656, 659 (Vt. 1988) (defendant seeking
presentence credit, “bears the burden” of showing home state
charge was sole basis for sister state incarceration); Kitzke v. State, 84
P.3d 950, 951-53 (Wyo. 2004) (defendant failed to carry his burden of
proof on presentence credit). Indeed, in Arizona, the defendant has
the obligation to object to the presentence report, which includes a
calculation of presentence incarceration credit. See Ariz. R. Crim. P.
26.8(a). To meet this burden, a defendant must show that the
Arizona charge was a “‘but for’ cause” of his or her out-of-state
presentence incarceration. See People v. Bruner, 892 P.2d 1277, 1286-
87 & n. 11 (Cal. 1995).

¶11           The state argues for the first time on appeal that Cecena
failed to meet his burden of proving entitlement to time served
because he did not show he was confined by Mexican authorities as
a result of a formal hold or detainer, citing a Texas case, Fernandez v.
State, 775 S.W.2d 787 (Tex. App. 1989). But more recent Texas cases
indicate that a defendant may demonstrate by some other means
that his presentence incarceration was pursuant to the state cause.

      3That  being said, the prosecutor has an ethical duty to timely
disclose to the defense all evidence or unprivileged information he
or she knows that tends to demonstrate the defendant is entitled to
presentence incarceration credit. See ER 3.8(d), Ariz. R. Prof’l
Conduct, Ariz. R. Sup. Ct. 42.


                                    5
                          STATE v. CECENA
                          Opinion of the Court

See Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App. 2006)
(letter from United States Department of Justice regarding Mexico
incarceration sufficient); cf. Hannington v. State, 832 S.W.2d 355, 356
(Tex. Crim. App. 1992) (regarding in-state incarceration, “existence
of a detainer is merely one means of establishing incarceration on a
particular cause”). This strikes us as the better course. As with
other sentencing issues, such as introduction of mitigating factors,
entitlement to presentence incarceration credit can be demonstrated
by less formal means, as deemed appropriate by the trial court. See
Ariz. R. Crim. P. 26.7(b) (“any reliable, relevant evidence, including
hearsay,” may be introduced at pre-sentence hearing); see also State
v. Marquez, 127 Ariz. 3, 6, 617 P.2d 787, 790 (App. 1980) (same).

¶12          The state next maintains, again for the first time on
appeal, that even if we do not follow Fernandez, Cecena nevertheless
failed to prove that his custody in Mexico was pursuant to the bench
warrant issued after his trial in absentia.4 The state thus asks us to
affirm the sentence. In the alternative, the state proposes that we
remand this case for further fact finding on the issue of whether
Cecena was confined in Mexico pursuant to the Arizona charge,
citing Hemphill, 917 A.2d at 250.

¶13          At the sentencing hearing, Cecena’s attorney asserted
that Cecena had been detained in Mexico on July 13, 2012, and held
there until May 31, 2013, when he was extradited. This is in accord
with Cecena’s own statements in the presentence report. The state
did not contest these dates below, nor does it do so on appeal.

¶14         However, Cecena never actually asserted before the
trial judge that his detention in Mexico was pursuant to the
September 2010 arrest warrant. As previously noted, the prosecutor

      4 Cecena   argues the state waived this claim since it never
suggested below that his Mexico incarceration was on account of
any other charge. Even assuming, without deciding, that this
contention is correct, we nevertheless may consider the issue at our
discretion. See, e.g., State v. Smith, 203 Ariz. 75, ¶ 12, 50 P.3d 825, 829
(2002) (failure to make legal argument in trial court does not bar
appellate court from addressing merits in its discretion).


                                    6
                         STATE v. CECENA
                         Opinion of the Court

opposed pretrial credit solely based on an incorrect statement of law
that the trial court accepted, and the issue was not addressed
further. Thus, neither the prosecutor nor the court questioned
whether Cecena’s incarceration in Mexico was for reasons other than
the Arizona offense, and the state may not benefit from persuading
the court that no fact-finding was necessary. We decline to affirm
the sentence on this ground.

                              Disposition

¶15          We remand this case for further findings on the length
of Cecena’s incarceration in Mexico and whether it was pursuant to
the Arizona charge of continuous sexual abuse of a minor. See
Hemphill, 917 A.2d at 250 (remanding for hearing to determine
whether defendant’s foreign incarceration was solely on account of
in-state charge); cf. State v. Alevras, 517 A.2d 460, 465 (N.J. Super. Ct.
App. Div. 1986) (“We decline to decide the question of credits to
which defendant was entitled . . . because the issue was not
developed before the sentencing judge.”). If, upon remand, the trial
court determines that some or all of Cecena’s time served in Mexico
was pursuant to the Arizona charge within the meaning of
§ 13-712(B), then Cecena is entitled to credit for such time, in
addition to the 340 days the trial court already granted him for
presentence incarceration in the United States.




                                    7
