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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      PAUL ELLIOT TAYLOR, Petitioner.

                          No. 1 CA-CR 18-0607 PRPC
                               FILED 2-14-2019


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2016-001575-001
                              CR2016-005559-001
           The Honorable William R. Wingard, Judge Pro Tempore

               REVIEW GRANTED AND RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Paul Elliot Taylor, Florence
Petitioner
                              STATE v. TAYLOR
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1            Paul Elliot Taylor petitions this Court for review from the
dismissal of his petition for post-conviction relief of-right (“PCR”). We have
considered the petition for review and for the reasons stated, grant review
but deny relief.

¶2             In June 2017, Taylor entered two plea agreements, pleading
guilty to one count of aggravated DUI in CR 2016-001575 and one count of
aggravated DUI and one count of possession of dangerous drugs in CR
2016-005559. As set forth in the plea agreements, Taylor stipulated to a term
of 4.5 years’ imprisonment in CR 2016-001575 and a consecutive term of 2.5
years’ imprisonment in CR 2016-005559. The trial court sentenced Taylor in
accordance with the plea agreements’ terms and awarded him presentence
incarceration credit of 471 days in CR 2016-001575 and 318 days in CR
2016-005559.

¶3            After sentencing, Taylor moved to correct the presentence
incarceration credit awarded to him in CR 2016-005559. See Ariz. R. Crim.
P. (“Rule”) 24.4 (“The court on its own or on a party’s motion may, at any
time, correct clerical errors, omissions, and oversights in the record.”).
Concluding Taylor had “received the appropriate credited time[,]” the trial
court dismissed the motion to correct.

¶4           Taylor then timely commenced Rule 32 proceedings in CR
2016-005559 but not in CR 2016-001575. Filing identical PCRs in both CR
2016-005559 and CR 2016-001575, Taylor argued that the trial court
improperly calculated his presentence incarceration credit in both cause
numbers. The trial court dismissed the PCRs, and this petition for review
followed.

¶5             Absent an abuse of discretion or error of law, this Court will
not disturb a trial court’s ruling on a petition for post-conviction relief. State
v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). The burden is on Taylor to show
that the trial court abused its discretion. See State v. Poblete, 227 Ariz. 537,



                                        2
                            STATE v. TAYLOR
                           Decision of the Court

538 ¶ 1 (App. 2011) (petitioner has burden on review to establish abuse of
discretion).

¶6            On review, Taylor reasserts his claim that the trial court
incorrectly calculated his presentence incarceration credit in both cause
numbers. As the trial court found, Taylor failed to file a notice of
post-conviction relief in CR 2016-001575, and his PCR in that matter was
therefore defective and untimely. For these reasons, we do not consider his
challenge to the presentence incarceration credit awarded in CR
2016-001575.

¶7            Because Taylor timely filed both his notice and PCR in CR
2016-005559, however, we consider the merits of that claim. The failure to
grant a defendant full credit for any presentence incarceration time
constitutes fundamental error. State v. Cofield, 210 Ariz. 84, 86 ¶ 10 (App.
2005).

¶8            “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[.]” A.R.S. § 13–712(B). Custody
commences “when a defendant is booked into a detention facility,” State v.
Carnegie, 174 Ariz. 452, 453–54 (App. 1993), but does not include the date a
sentence is imposed, State v. Hamilton, 153 Ariz. 244, 245–46 (App. 1987).

¶9            As reflected in the record, Taylor was arrested on October 4,
2016, pursuant to a bench warrant issued in CR 2016-005559. Because he
was on felony release at the time of his arrest and therefore non-bailable, he
remained in custody on the charges in CR 2016-005559 until he was
sentenced on August 17, 2017, for a total of 317 days. Therefore, the trial
court fully credited him all of his time in custody by awarding him 318
days’ presentence incarceration credit in CR 2016-005559.

¶10           Accordingly, we grant review but deny relief.




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



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