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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                 RALPH FABIAN RODRIGUEZ, Appellee.

                             No. 1 CA-CR 18-0782
                               FILED 1-14-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR 2017-005562-001
                  The Honorable Jose S. Padilla, Judge

                   SENTENCING ORDER AMENDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellee
                          STATE v. RODRIGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.


B R O W N, Judge:

¶1             The State appeals from the superior court’s sentencing order,
arguing the court improperly awarded defendant Ralph Fabian Rodriguez
presentence incarceration credit for time he did not actually spend in
custody for this case. Because the court erred, we amend the sentencing
order to reflect the proper amount of credit Rodriguez is entitled to receive.

                             BACKGROUND

¶2            In June 2013, while Rodriguez was serving a five-year prison
sentence for a crime unrelated to this appeal, prison officials caught him in
possession of heroin and determined he was involved in a wider conspiracy
of bringing drugs into the prison. Rodriguez completed the five-year
sentence on December 31, 2015, and his community supervision ended on
September 2, 2016.

¶3            On September 22, 2017, the State indicted Rodriguez for one
count of possession of contraband and one count of conspiring to commit
drug offenses and/or promote prison contraband, each stemming from
drug-related activities that allegedly occurred between June 24, 2013, and
October 1, 2014, while he was in prison. Rodriguez moved to dismiss the
indictment, asserting in part that his due process rights were violated based
on pre-indictment delay, which the State had used to “usurp” the superior
court’s sentencing discretion by denying him “an opportunity to argue for
concurrent sentences.”1 Rodriguez eventually pled guilty to a single
amended count of promoting prison contraband and agreed to a sentencing
range of nine to fifteen years’ imprisonment.




1      The record does not show that the superior court made a ruling on
the motion to dismiss. Because Rodriguez ultimately decided to enter a
plea agreement, we must presume the court denied the motion.


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                           STATE v. RODRIGUEZ
                            Decision of the Court

¶4            At the time of the sentencing hearing on October 19, 2018,
Rodriguez had been in custody pursuant to the contraband offense since
September 22, 2017 (393 days). The superior court sentenced Rodriguez to
the presumptive prison term of 9.25 years. Addressing presentence
incarceration credit, the court first explained that based on the concept of a
lost opportunity, it was inclined to consider awarding credit for “back time”
from September 2013. The prosecutor stated that she had never heard of
that concept, but that if the court was inclined to consider it, she “d[id] not
have any objection.” After hearing from defense counsel, the court
awarded Rodriguez a total of 1,845 days of presentence incarceration credit,
which covered most of the time between the June 2013 prison incidents
giving rise to the charge and the date of sentencing. The court based this
decision on Rodriguez’s “loss of opportunity” to have his prison
contraband sentence run concurrently with other crimes for which he had
been imprisoned earlier.

¶5            The State promptly moved for reconsideration, asserting the
superior court improperly gave Rodriguez the additional presentence
incarceration credit in violation of A.R.S. § 13-712(B). The court denied the
motion, citing State v. Adler, 189 Ariz. 280 (1997), and explaining that if the
contraband charges been brought “in a timely manner, it’s entirely
reasonable for the defendant to have been given a concurrent sentence in
this matter, to the sentence he was then serving.” The State timely
appealed, and we have jurisdiction pursuant to A.R.S. § 13-4032(5).

                                DISCUSSION

¶6             At the outset, we reject Rodriguez’s argument that the State
has waived its ability to object to his sentence on appeal because the
prosecutor stated at the sentencing hearing that she did not object when the
superior court alerted the parties it was considering applying the loss of
opportunity concept. The State filed a motion for reconsideration, thereby
allowing the court to consider the objection and correct the sentencing order
if deemed necessary. See Ariz. R. Crim. P. 24.3(a) (“No later than 60 days of
the entry of judgment and sentence . . . the court may correct any unlawful
sentence or one imposed in an unlawful manner.”). Rodriguez cites no
authority suggesting that the State could not reconsider its position after
the hearing. Moreover, our supreme court has made it clear that the
“failure to impose a legal sentence is one of those rare situations from which
the [S]tate can seek review even if it failed to object in the trial court.” State
v. Dawson, 164 Ariz. 278, 281 (1990).




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                          STATE v. RODRIGUEZ
                           Decision of the Court

¶7            The State argues the superior court erred in awarding
Rodriguez 1,845 days of presentence incarceration credit rather than the 393
days he was actually in custody for the prison contraband offense, as
required by A.R.S. § 13-712(B), which provides that “[a]ll 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.” Rodriguez counters that § 13-712(B) is not implicated here
because the superior court properly based his presentence incarceration
credit on Adler, 189 Ariz. 280. We review de novo the court’s calculation of
presentence incarceration credit. See State v. Lambright, 243 Ariz. 244, 249,
¶ 9 (App. 2017).

¶8             In Adler, the defendant was placed on probation and allegedly
committed acts in violation of his probation terms. 189 Ariz. at 281. The
State filed a petition to revoke probation and the superior court issued an
arrest warrant. Id. About two years later, probation officials were notified
that the defendant had been arrested and imprisoned in another state on
federal charges. Id. While detained in federal prison, the defendant
repeatedly attempted to have the probation violation hearing conducted in
absentia, but the State refused. Id. More than six years after the probation
violation, the defendant unsuccessfully moved to dismiss the petition,
arguing the lengthy delay violated his right to due process. Id. at 281–82.
After the violation hearing was conducted, the court sentenced the
defendant to prison. Id. at 282. Our supreme court held that the defendant
was prejudiced by “the loss of an opportunity” to have his prison sentence
for his probation violation run concurrently with his federal sentence. Id.
at 284. The court remanded the case to the superior court for dismissal of
the petition for revocation with prejudice. Id. at 285.

¶9          We are not persuaded that Adler is applicable here. First,
Rodriguez cites no authority indicating that the analysis used by our
supreme court in Adler has been applied outside the probation violation
context.

¶10           Second, pre-indictment delay, which is what occurred here,
does not implicate due process in the same way as a delay in holding a
probation violation hearing. See State v. Broughton, 156 Ariz. 394, 397 (1988)
(finding the due process clause has a “limited” role in the case of pre-
indictment delays as such matters are protected primarily by statutes of
limitations). In Broughton, our supreme court explained that to establish a
due process violation based on pre-indictment delay, “there must be a
showing that the prosecution intentionally delayed proceedings to gain a
tactical advantage over the defendant or to harass him, and that the


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                           STATE v. RODRIGUEZ
                            Decision of the Court

defendant has actually been prejudiced by the delay.” Id. The only delay
Rodriguez faced here was pre-indictment delay, and nothing in this record
supports the showing required under Broughton.

¶11            Third, even assuming Adler applies outside the probation
violation context, and that Rodriguez was deprived of due process by the
pre-indictment delay, the remedy would presumably be dismissal of the
charge. But the superior court made no finding that Rodriguez was
deprived of due process, and by pleading guilty, Rodriguez waived any
such issue. See State v. Chavez, 243 Ariz. 313, 318, ¶ 14 (App. 2017) (“A
defendant who pleads guilty waives the right to assert on review all non-
jurisdictional defenses, including deprivations of constitutional rights.”).

¶12           We find nothing in Adler suggesting a sentencing judge may
award presentence incarceration credit in excess of the actual time a
defendant has been in custody. 189 Ariz. at 285. Instead, the judge must
follow the statutory directive—a defendant may only receive credit for
“time actually spent in custody pursuant to an offense.” A.R.S. § 13-712(B).
Accordingly, the superior court erred in this case by granting Rodriguez
presentence incarceration credit beyond the time he was in custody for the
prison contraband offense.

                               CONCLUSION

¶13             Because the superior court erred in its calculation of
presentence incarceration credit, we amend the court’s sentencing order to
reflect credit for the 393 days Rodriguez spent in custody pursuant to the
offenses charged in this case. See State v. Seay, 232 Ariz. 146, 149, ¶ 10 (App.
2013); see also Ariz. R. Crim. P. 31.19(c).




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




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