                                                                     FILED BY CLERK
                        IN THE COURT OF APPEALS                        MAY 20 2013
                            STATE OF ARIZONA
                                                                         COURT OF APPEALS
                              DIVISION TWO                                 DIVISION TWO




THE STATE OF ARIZONA,                           )
                                                )    2 CA-CR 2013-0001-PR
                              Respondent,       )    DEPARTMENT B
                                                )
            v.                                  )    OPINION
                                                )
BRANDON ALBERT SEAY,                            )
                                                )
                                  Petitioner.   )
                                                )


PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR201100745

                        Honorable John F. Kelliher, Jr., Judge

                     REVIEW GRANTED; RELIEF GRANTED


Robert J. Zohlmann                                                          Tombstone
                                                                 Attorney for Petitioner


V Á S Q U E Z, Presiding Judge.
¶1              Brandon Seay petitions this court for review of the trial court’s order

denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P.

We will not disturb that ruling unless the court clearly has abused its discretion. See

State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review

and relief.

¶2              On October 6, 2011, Seay was indicted in Cochise County for second-

degree burglary, theft, and criminal damage. Because Seay was serving another sentence

in the custody of the Arizona Department of Corrections (ADOC) in Florence, the state

petitioned for and the trial court issued a writ of habeas corpus ad prosequendum,

directing that ADOC deliver Seay to the Cochise County Sheriff for arraignment. The

writ further ordered that Seay be returned to ADOC “upon the conclusion of all pending

proceedings.”     Seay subsequently was transferred to the Cochise County Jail on

October 21 and arraigned on October 24. Pursuant to a plea agreement, on April 17,

2012, Seay pled guilty to second-degree burglary and theft.          On May 14, he was

sentenced in accordance with the plea agreement to presumptive prison terms, the longest

of which was 3.5 years, to be served concurrently to each other and to the sentence Seay

currently was serving. The court further ordered that Seay was entitled to credit for

thirty-three days “served prior to sentencing.”

¶3              Seay filed a pro se motion requesting that the trial court award him

sentencing credit for all time between his transfer from ADOC to the Cochise County Jail

and his sentencing—a total of 206 days of credit. The court appointed Seay’s trial

counsel to represent him for the purposes of the motion, and the state filed a response to

                                             2
Seay’s motion, additionally requesting that the court amend its sentencing order to

“take[] away” the thirty-three days of credit. Counsel, characterizing Seay’s motion as a

“pro se Rule 32 petition,” filed an amended Rule 32 petition, and a reply to the state’s

response to that petition.

¶4              Counsel ultimately withdrew, however, on the basis that “there is an issue

of ineffective assistance of counsel,” creating a conflict of interest. The trial court

appointed new counsel, who filed a supplemental memorandum to include a claim that

trial counsel had been ineffective in failing to “clarify [Seay’s] custody status.” After

hearing argument, the court denied Seay’s petition for post-conviction relief. It noted

that it had “not set conditions of release upon [Seay’s] arraignment,” that Seay “was

already in the Arizona Department of Correction[’s] custody,” and that neither the state

nor trial counsel had “raised the issue of [Seay’s] conditions of release.” Thus, the court

concluded, Seay “continued in [the] custody” of ADOC “under the sentence(s) issued in

another distinct criminal case (albeit physically present in the Cochise County jail).” The

court additionally amended its sentencing order to give Seay “zero (0) days credit for

time served.”

¶5              The essential thrust of Seay’s argument on review, as it was below, is that

the writ of habeas corpus ad prosequendum “functioned . . . as an arrest warrant” and

thus, because the trial court did not set release conditions at his arraignment, he was

“actually . . . in custody pursuant to” the charged offenses and entitled to credit under




                                              3
A.R.S. § 13-712(B).1 A defendant is entitled to credit for “[a]ll time actually spent in

custody pursuant to an offense until the prisoner is sentenced to imprisonment for such

offense.” § 13-712(B).

¶6            We find no authority directly addressing the issue presented here—whether

an individual is entitled to presentence incarceration credit when transferred pursuant to

court order from ADOC to a county jail to face new charges and the court does not

modify the conditions of release on the new charges. A person in federal custody

transferred to Arizona for criminal proceedings is entitled to credit for time spent in

custody in Arizona against any sentence imposed, even if the person continues to receive

credit for time served against his or her federal sentence. State v. De Passquallo, 140

Ariz. 228, 229, 681 P.2d 380, 381 (1984) (“Petitioner was in jail in Arizona to stand trial

for the crimes he committed in Arizona, and is entitled to credit against his Arizona

sentence for this presentence custody.”); cf. State v. Gourdin, 156 Ariz. 337, 751 P.2d

997 (App. 1988) (defendant not entitled to credit for time spent in federal prison for

federal parole violation triggered by Arizona guilty plea). And an individual may be

entitled to credit when held in custody both due to a new criminal charge and a petition to

revoke probation or other criminal charge. See State v. Brooks, 191 Ariz. 155, 156-57,

953 P.2d 547, 548-49 (App. 1998) (defendant entitled to presentence credit when jailed

“and never released” for drug charge and held for probation violation based on same

       1
        Seay cites § 13-709(B), but the statute was renumbered in 2008. 2008 Ariz. Sess.
Laws, ch. 301, § 27. He also incorrectly calculates the number of days between his
transfer to Cochise County and his sentencing, which is 206 days, not the 239 days he
claims.

                                            4
charge); State v. Brooks, 161 Ariz. 177, 181, 777 P.2d 675, 679 (App. 1989) (defendant

that “remained in custody on [two] warrants . . . entitled to credit for the time held on

each”).

¶7           We find no basis to distinguish custody in ADOC from federal custody in

determining whether Seay is entitled to sentencing credit for time spent in the Cochise

County Jail.2 A writ of habeas corpus ad prosequendum is used to “return the accused to

the county where charges have been filed” and is “the equivalent of a request for

temporary custody.” State v. Loera, 165 Ariz. 543, 545-46, 799 P.2d 884, 886-87 (App.

1990). And it may be used to transfer a person from a state facility to a county jail. See

State v. Sheriff of Pima County, 97 Ariz. 42, 43, 396 P.2d 613, 613-14 (1964). Thus,

Seay was in the custody of Cochise County when transferred pursuant to that writ,3 and

he clearly was in custody for the offenses charged in the October 6 indictment. See § 13-

712(B); De Passquallo, 140 Ariz. at 229, 681 P.2d at 381. That ADOC may have

retained some control such that the Cochise County Jail could not simply release him is

not relevant. See De Passquallo, 140 Ariz. at 229, 681 P.2d at 381.



      2
        We recognize that, in State v. Bridgeforth, this court modified a sentence to
eliminate presentence incarceration time calculated by using the arrest date of an
incarcerated defendant and instead used that defendant’s mandatory release date as a
starting point. 156 Ariz. 58, 60, 750 P.2d 1, 3 (1986). But that defendant was charged
for an offense committed while imprisoned, and nothing in that case suggests the
defendant was transported to a county jail as a result of that charge. We therefore find
Bridgeforth inapplicable here.
      3
        Seay is incorrect that the writ should have been filed in Maricopa County, where
he was in ADOC custody, instead of in Cochise County. See Palmer v. State, 99 Ariz.
93, 95, 407 P.2d 64, 66 (1965); see also A.R.S. § 31-225.

                                            5
¶8            Moreover, the authority relied on by the trial court in declining to grant

relief does not support that result. The court cited State v. San Miguel, 132 Ariz. 57, 643

P.2d 1027 (App. 1982). There, a defendant was arrested for a charged offense and a

probation revocation based on that offense. Id. at 58, 643 P.2d at 1028. He was released

on his own recognizance on the new offense but held without bond on the probation

violation. Id. We determined on appeal that he was not entitled to presentence credit on

his sentence for the new offense because he had not been confined due to that charge, but

instead “as a result of the petition to revoke” his probation. Id. at 61, 643 P.2d at 1031.

Here, however, Seay never was released on his new charge—no release conditions were

set at his arraignment.     See Ariz. R. Crim. P. 4.2(a)(7) (trial court required to

“[d]etermine the conditions of release” at arraignment). Thus, San Miguel does not

support the court’s determination.

¶9            The trial court’s reliance on a case cited in San Miguel, State v. Prevost,

118 Ariz. 100, 574 P.2d 1319 (App. 1977), similarly does not support the court’s ruling.

There, we determined a defendant was not entitled to credit for time spent incarcerated

for a federal offense before the state trial court revoked his release based on the federal

arrest. Id. at 102-03, 574 P.2d at 1321-22. We determined, however, that he could be

entitled to presentence credit for time spent in custody after his release had been revoked

because he had been “confined for both the state and federal charges.”4 Id. at 103-04,


       4
         At that time, a defendant was not necessarily entitled to presentence incarceration
credit, and whether to award such credit was left to the trial court’s discretion. See San
Miguel, 132 Ariz. at 59, 643 P.2d at 1029.

                                             6
574 P.2d at 1322-23. Here, Seay was held pursuant to both his ADOC prison term and

the new charges in Cochise County and is entitled to credit. See Brooks, 191 Ariz. at

156-57, 953 P.2d at 548-49; Brooks, 161 Ariz. at 181, 777 P.2d at 679.

¶10              For the foregoing reasons, we conclude Seay was entitled to presentence

incarceration credit from October 21, when he was transferred to Cochise County from

ADOC.5 Thus, we grant review and grant relief. We amend the trial court’s sentencing

order to reflect credit for 206 days of presentence incarceration. See Ariz. R. Crim. P.

32.9(f) (appellate court “may issue such orders and grant such relief as it deems

necessary and proper”); see also State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663

(App. 1992) (correcting presentence incarceration credit without remand to trial court).


                                                /s/ Garye L. Vásquez
                                                GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




       5
           We need not address Seay’s related claim of ineffective assistance of counsel.

                                               7
