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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            KHEYLON TRISTAN CUNNINGHAM, Appellant.

                             No. 1 CA-CR 16-0354
                               FILED 5-2-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2009-030745-001
                     The Honorable Erin Otis, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
                         STATE v. CUNNINGHAM
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge:

¶1            Kheylon Tristan Cunningham (appellant) appeals from his
sentence following an automatic violation and revocation of probation.
Appellant and the state contend that the trial court committed fundamental
error by failing to award appellant any presentence incarceration credit.
We agree, but conclude both appellant and the state incorrectly calculated
the amount of presentence credit appellant is due.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Appellant was indicted for armed robbery, a class two
dangerous felony (count one), and aggravated assault, a class three
dangerous felony (count two), in 2009. On January 27, 2010, appellant was
arrested and booked into custody based on the indictment. Appellant
pleaded guilty to count one in exchange for the state dismissing both count
one’s dangerousness allegation and count two. The trial judge sentenced
appellant to four years of probation. As a condition of probation, appellant
was ordered to serve a flat twelve months in the county jail beginning
September 23, 2010. Appellant was released on July 16, 2011.1

¶3            In April 2012, appellant’s probation officer petitioned to
revoke appellant’s 2010 probation, alleging appellant had committed a
number of offenses on or about November 7, 2011. Appellant was arrested
on April 3, 2012. Appellant’s probation hearing was initially scheduled for
April 20, 2012. However, the hearing was postponed twice, once on motion
from appellant’s counsel and once for reasons not stated on the record.
Appellant remained in custody until October 12, 2012, the date of the


1      The parties disagree on what day appellant was released from this
sentence, and the record is silent on the issue. At sentencing, the trial court
credited appellant’s sentence with 68 days of presentence incarceration
credit. Thus, appellant was incarcerated for 297 days. Accordingly, we
presume appellant was released on July 16, 2011.



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                         STATE v. CUNNINGHAM
                           Decision of the Court

hearing on the petition to revoke probation. That day, the state moved to
dismiss the petition for revocation. The court granted the state’s motion
and ordered appellant’s release from custody.

¶4             In December 2013, appellant’s probation officer filed another
petition to revoke appellant’s probation. The probation officer alleged that
appellant had committed first degree murder, first degree burglary, and
aggravated assault with a deadly weapon on or about December 12, 2013.
Appellant was arrested on December 13, 2013 and placed on a probation
hold until the end of the trial for the above charges. A jury found appellant
guilty on all charged counts.

¶5            At the sentencing hearing on December 11, 2015, the trial
court credited appellant with 729 days of pre-sentence incarceration
towards the 2013 charges. The trial court also revoked appellant’s
probation on the 2010 conviction and, as to that matter, sentenced him to
an aggravated term of eight years to be served consecutively to his 2013
sentences. The court did not credit appellant with any presentence
incarceration credit for the two periods of time he spent in custody related
to the 2010 conviction.

¶6            Appellant did not timely appeal, but his motion requesting a
delayed notice of appeal was granted. We have jurisdiction under Article
6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes
(A.R.S) sections 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).2

                               DISCUSSION

¶7           Regarding the 2010 sentence, appellant argues the trial court
erred by failing to credit him 730 days of presentence incarceration.
Because appellant did not raise this objection during his sentencing hearing,
we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005). To prevail under this standard of review,
appellant must establish that fundamental error exists and that the error
caused him prejudice. Id. at ¶ 19 (citation omitted).

¶8             A trial court’s failure to grant a defendant presentence
incarceration credit constitutes fundamental, prejudicial error because it is
an illegal sentence. See generally State v. McPherson, 228 Ariz. 557, 559, ¶ 4,
269 P.3d 1181, 1183 (App. 2012) (internal citations omitted). Defendants are
statutorily entitled to credit for “[a]ll time spent in custody pursuant to an

2      Absent changes material to this decision, we cite a statute’s current
version.


                                      3
                        STATE v. CUNNINGHAM
                          Decision of the Court

offense.” A.R.S. §13-712 (B) (2010). Custody begins the day a defendant is
booked into detention. State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690,
691-92 (App. 1993) (citation omitted). A defendant is given a full day of
credit for the day he is booked regardless of how late in the day booking
occurs. Id. at 454, 850 P.2d at 692. Defendants are also entitled to have the
time they serve in prison as a condition of probation applied to the sentence
imposed following probation revocation. A.R.S. § 13-903(F) (2010).
Following these standards, we agree with appellant that the trial court
committed a fundamental, prejudicial error.

¶9            As noted, appellant spent two different periods in custody
pursuant solely to his 2010 conviction.3 The first period began when he was
booked, January 27, 2010, and includes the day he was released from his
condition of probation sentence, July, 16, 2011. For this period of custody,
appellant was incarcerated for a total of 537 days.

¶10           The second period of custody began when appellant was
booked for alleged probation violations, April 3, 2012, and includes the day
appellant was released from custody, October 12, 2012. For this period,
appellant is entitled to 194 days of presentence incarceration credit.
Because appellant is entitled to one day of presentence incarceration credit
for “all time spent in custody”—including partial days in custody—
appellant is entitled to 731 days of presentence incarceration credit.4




3       Appellant’s sentence for the 2010 armed robbery runs consecutive to
the sentences imposed for the 2013 convictions. “When consecutive
sentences are imposed, a defendant is not entitled to presentence
incarceration credit on more than one of those sentences, even if the
defendant was in custody pursuant to all of the underlying charges prior to
trial.” See State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106 (App. 1997)
(citation omitted). Accordingly, appellant is not entitled to presentence
credit toward the 2010 sentence for the same time period for which he
obtained credit in relation to the 2013 convictions.

4      We note, however, that although many of the continuances in both
convictions were motions by appellant’s counsel and appellant waived the
applicable time limits of Arizona Rule of Criminal Procedure 8.2, the time
he spent incarcerated before sentencing or release for both his 2010 and 2013
convictions borders on egregious and should not be encouraged.




                                      4
                        STATE v. CUNNINGHAM
                          Decision of the Court

                              CONCLUSION

¶11           Pursuant to A.R.S. § 13-4037 (2010), we modify appellant’s
eight-year, aggravated sentence for count one (and, accordingly the trial
court’s December 11, 2015 sentencing minute entry) to reflect 731 days’
presentence incarceration credit. We affirm appellant’s sentence in all other
respects.




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




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