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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                          JAMIS BEARD, Appellant.

                             No. 1 CA-CR 16-0908
                               FILED 11-30-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-148525-001
                  The Honorable Mark H. Brain, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                              STATE V. BEARD
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Justice Rebecca White Berch 1 joined.


M c M U R D I E, Judge:

¶1           Jamis Beard appeals the superior court’s award of 179 days’
presentence incarceration credit on his conviction for misconduct involving
weapons. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 2

¶2            The State indicted Beard for misconduct involving weapons,
a Class 4 felony. Beard was arrested after a police officer, who was
responding to an emergency call, found a concealed weapon on him during
a pat-down. Due to prior felony convictions, Beard was a prohibited
possessor. After a three-day trial, a jury convicted Beard of the charge. The
jury also found Beard committed the offense while on parole from a prior
armed robbery conviction. Beard was sentenced to 4.5 years’ imprisonment.
At sentencing, the superior court awarded Beard 179 days’ presentence
incarceration credit. Beard timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1).

                                DISCUSSION

¶3            A defendant is entitled to presentence incarceration credit for
“[a]ll time actually spent in custody pursuant to an offense until the
prisoner is sentenced to imprisonment for such offense.” A.R.S. § 13-712(B).
Beard was in custody from October 16, 2015, the date he committed the
offenses, until July 21, 2016, the date he was released on bond. Following


1      The Honorable Rebecca White Berch, retired Justice of the Arizona
Supreme Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3, of the Arizona Constitution.

2     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).


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                            STATE V. BEARD
                           Decision of the Court

his conviction, Beard was remanded into custody on November 14, 2016,
and sentenced on December 14, 2016.

¶4            Beard’s presentence report recommended he be awarded 311
days’ presentence incarceration credit. However, Beard’s criminal history
report showed he violated his parole for the armed robbery conviction on
October 30, 2015. Beard’s prison release date for the parole violation was
March 10, 2016. At sentencing, the superior court awarded Beard 179 days’
presentence incarceration credit, explaining that the time Beard spent in
custody from October 30, 2015, to March 10, 2016, “has to be [a] credit
against the previous prison sentence not the current matter.”

¶5            Beard argues he was entitled to 310 or 311 days’ presentence
incarceration credit and that the superior court erred when it calculated the
179 days of presentence incarceration credit by considering evidence
outside the record, without taking judicial notice of the evidence
considered, when it concluded the October 30, 2015, to March 10, 2016,
period counted toward the remainder of Beard’s parole violation.

¶6            The court did not take judicial notice of evidence outside the
record because the evidence was properly before the court. Beard’s criminal
history report showed Beard violated parole for the armed robbery offense
on October 30, 2015, and that his prison release date for the parole violation
was March 10, 2016. The State also alleged, and the jury found, Beard
committed the offense while on parole. To prove that finding to the jury,
the State called Beard’s parole officer, who testified that Beard was on
parole when he committed the current offense. Therefore, evidence in the
record established Beard was on parole when he committed misconduct
involving weapons, and that Beard was imprisoned on the parole violation
from October 30, 2015, to March 10, 2016. The superior court did not err by
determining from the record that Beard was in custody for the parole
violation from October through March.

¶7             Beard also argues the State “previously asserted that the
record accurately portrays the correct amount of presentence incarceration
credit,” and therefore this court should “rely solely upon the record in this
case to conclude that the trial court erred by imposing a sentence which did
not grant Mr. Beard full presentence incarceration credit.” Beard previously
moved to remand his case to the superior court to reconstruct the record to
include (1) a record of a bench conference that occurred during sentencing
and (2) documents considered by the superior court in determining Beard’s
presentence incarceration credit. In response, the State argued “[t]his is a
purely legal issue to be determined by calculating the time [Beard] was in


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                             STATE V. BEARD
                            Decision of the Court

custody based upon the photostated instruments, including the
presentence report,” and that it was unnecessary to reconstruct the record.
As discussed above, the record in this case supports the superior court’s
award of presentence incarceration credit.

¶8            The superior court correctly calculated Beard’s presentence
incarceration credit. Under A.R.S. § 13-711(B), Beard was required to serve
his imprisonment for the misconduct involving weapons conviction
consecutive to any imprisonment for the armed robbery conviction. Section
13-711(B) states:

       [I]f a person is subject to an undischarged term of
       imprisonment and is sentenced to an additional term of
       imprisonment for a felony offense that is committed while the
       person is under the jurisdiction of the state department of
       corrections, the sentence imposed by the court shall run
       consecutively to the undischarged term of imprisonment.

¶9            Because Beard was on parole when he committed the current
offense, he was “subject to an undischarged term of imprisonment” and
“under the jurisdiction of the State department of corrections.” See State v.
Rios, 169 Ariz. 108, 110 (App. 1991) (if a defendant is released on parole, the
sentence imposed for the underlying conviction is a “term of imprisonment
imposed at a previous time”). Therefore, Beard’s sentence for the
misconduct involving weapons conviction was required to run
consecutively to his imprisonment for the parole violation. Section 13-708
also mandates Beard’s conviction for Count 1 be served consecutively to his
sentence for the parole violation. Section 13-708 states:

       C. A person who is convicted of any felony offense . . . that is
       committed while the person is on . . . parole . . . or any other
       release or escape from confinement for conviction of a felony
       offense shall be sentenced to a term of not less than the
       presumptive sentence authorized for the offense.

       E. A sentence imposed pursuant to subsection A, B or C of this
       section shall revoke the convicted person’s release if the
       person was on release and shall be consecutive to any other
       sentence from which the convicted person had been
       temporarily released . . . unless the sentence from which the
       convicted person had been paroled or placed on probation
       was imposed by a jurisdiction other than this state.




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                             STATE V. BEARD
                            Decision of the Court

¶10            A defendant sentenced to consecutive sentences is entitled to
presentence incarceration credit on just one sentence, “even if the defendant
is in custody pursuant to all of the underlying charges prior to trial.” State
v. McClure, 189 Ariz. 55, 57 (App. 1997); State v. Jackson, 170 Ariz. 89, 94
(App. 1991). A defendant is not entitled to “double credit” for time served.
State v. Cuen, 158 Ariz. 86, 88 (App. 1988). Therefore, Beard is not entitled
to presentence incarceration credit for the time he spent imprisoned on the
parole violation.

¶11            Beard is entitled to 177 days’ presentence incarceration credit.
He is entitled to 147 days for the time spent in custody from October 16,
2015, to July 21, 2016, excluding October 30, 2015, to March 10, 2016. He is
further entitled to 30 days for the time spent in custody from November 14,
2016, to December 13, 2016. Beard is not entitled to credit for December 14,
2016, the date he was sentenced. See State v. Hamilton, 153 Ariz. 244, 246
(App. 1987). The superior court granted Beard 179 days’ presentence
incarceration credit, but the State did not appeal or cross-appeal the
sentence. An illegal sentence favoring an appellant cannot be corrected on
appeal unless the State files a timely cross-appeal. State v. Dawson, 164 Ariz.
278, 281–82 (1990). While the State argues in its answering brief Beard is
entitled to 178 days’ presentence incarceration credit, raising the issue in an
answering brief without cross-appealing is insufficient. See id. at 282.
Accordingly, we decline to modify Beard’s presentence incarceration credit
and affirm the superior court’s award of 179 days’ credit.

                              CONCLUSION

¶12           For the foregoing reasons, we affirm Beard’s sentence.




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




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