                                                                FILED BY CLERK
                                                                   NOV 30 2010
                                                                    COURT OF APPEALS
                                                                      DIVISION TWO
                          IN THE COURT OF APPEALS
                              STATE OF ARIZONA
                                DIVISION TWO


THE STATE OF ARIZONA,                        )   2 CA-CR 2010-0227-PR
                                             )   DEPARTMENT B
                             Respondent,     )
                                             )   OPINION
            v.                               )
                                             )
VICTOR MANUEL RODRIGUEZ,                     )
                                             )
                               Petitioner.   )
                                             )


  PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                             Cause No. CR20060030

                    Honorable Teresa Godoy, Judge Pro Tempore

                     REVIEW GRANTED; RELIEF DENIED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                         Tucson
                                                         Attorneys for Respondent

Law Office of Richard Luff, PLLC
 By Richard Luff                                                           Tucson
                                                            Attorney for Petitioner


K E L L Y, Judge.
¶1            Petitioner Victor Rodriguez seeks review of the trial court‟s May 13, 2010,

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.

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

¶2            Rodriguez was convicted after a jury trial of aggravated driving under the

influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol

concentration of .08 or more, committed on December 21, 2005. Rodriguez committed

endangerment six years, eight months, and eleven days before his 2005 offenses. The

state had asserted at trial, however, that the 1999 conviction fell within the five-year

limitation of A.R.S. § 13-604(W)(2)(c) because the two years that Rodriguez had been

incarcerated for his 2003 DUI conviction were excluded from the five-year computation.

Upon finding he had historical prior felony convictions for endangerment in 1999 and

aggravated DUI in 2003, the trial court sentenced him to enhanced, concurrent,

presumptive prison terms of ten years for each conviction.

¶3            On appeal from those convictions and sentences, Rodriguez asserted his

conviction for endangerment, committed on April 10, 1999, did not qualify as a historical

prior felony under former § 13-604(W)(2)(c)1 because it was committed more than five

years before the date of his most-recent offenses. State v. Rodriguez, No. 2 CA-CR

       1
        The Arizona criminal sentencing code has been amended and renumbered, see
2008 Ariz. Sess. Laws, ch. 301, §§ 1-120, effective “from and after December 31, 2008.”
Id. § 120. We refer in this decision to the statutes as they were worded and numbered at
the time of Rodriguez‟s offenses. We note, however, that the term “historical prior
felony conviction” is now defined by A.R.S. § 13-105(22) and is, in all relevant respects,
identical to former § 13-604(W)(2). See also A.R.S. §§ 13-703, 13-704 (enhancing
sentences for persons with historical prior felony convictions).
                                             2
2007-0257 (memorandum decision filed Sep. 30, 2008); see also 2005 Ariz. Sess. Laws,

ch. 188, § 1 (§ 13-604). Because he had not raised this claim in the trial court, however,

we determined Rodriguez was “precluded” from raising it on appeal,2 and we affirmed

his convictions and sentences. Rodriquez, No. 2 CA-CR 2007-0257, ¶¶ 7-10.

¶4            Rodriguez then filed a petition for post-conviction relief, asserting his trial

counsel had been ineffective in failing to raise the claim that his 1999 conviction had

occurred more than five years before his current offenses.          Rodriguez argued that

evidence disclosed to his attorney showed he had been incarcerated for the 2003 offense

for only eighteen months, rendering his 1999 conviction too remote to qualify as a

historical prior felony under § 13-604(W)(2)(c).       Had his trial counsel raised that

argument, Rodriguez reasoned, he would have been sentenced to a lesser term.

Rodriguez did not discuss in his petition any time spent incarcerated for his 1999

conviction.

¶5            The state agreed that Rodriguez had been incarcerated for only eighteen

months for the 2003 DUI conviction. It asserted, however, that Rodriguez had been

incarcerated for a total of 109 days for his endangerment conviction because he had been

sentenced to a thirty-day jail term as a condition of probation in that case and had

received no credit for the seventy-nine days he had been in jail prior to his sentencing.



      2
       We found the claim precluded on appeal pursuant to State v. Song, 176 Ariz. 215,
860 P.2d 482 (1993), and State v. Smith, 217 Ariz. 308, 173 P.3d 472 (App. 2007).
Rodriquez, No. 2 CA-CR 2007-0257, ¶¶ 7-10. Our supreme court later determined
fundamental error review was appropriate in these circumstances, overruling Song and
vacating Smith in State v. Smith, 219 Ariz. 132, ¶¶ 20-23, 194 P.3d 399, 403 (2008).
                                             3
Thus, the state concluded, Rodriguez‟s 1999 conviction fell within the five-year period

for purposes of § 13-604(W)(2)(c).

¶6           Relying on State v. Derello, 199 Ariz. 435, 18 P.3d 1234 (App. 2001),

Rodriguez responded that the seventy-nine days he had spent in jail before his sentencing

for the 1999 endangerment conviction should not be counted as excluded time under

§ 13-604(W)(2)(c) because it was not time spent incarcerated for a conviction. After an

evidentiary hearing, the trial court determined the phrase, “[a]ny time spent . . .

incarcerated” in § 13-604(W)(2)(c), included any presentence incarceration and that the

prior conviction therefore had been properly relied on to enhance his sentence. Thus, the

court concluded, Rodriguez‟s claim failed because he had not established his counsel‟s

performance was deficient or that he was prejudiced.

¶7           On review, Rodriguez first asserts the state was precluded from arguing his

endangerment conviction fell within § 13-604(W)(2)(c) because it had conceded on

appeal the conviction was too remote. We disagree. The issue before the trial court and

now before us on review is whether Rodriguez‟s trial counsel was ineffective, that is,

whether his counsel‟s performance fell below an objectively reasonable professional

standard and whether that deficient performance prejudiced him.        See Strickland v.

Washington, 466 U.S. 668, 669 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222,

227 (1985). In evaluating this question, whether his 1999 endangerment conviction fell

within § 13-604(W)(2)(c) is relevant only insofar as it informs us if counsel should have

made the argument Rodriguez asserts she should have made, and whether that argument

would have accorded him any relief.        The state‟s arguable concession in a later

                                           4
proceeding is not relevant to whether his counsel was ineffective in failing to raise it at

trial.

¶8            Even assuming, however, that Rodriguez‟s counsel was deficient in failing

to point out Rodriguez had served only eighteen months in prison for his 2003 DUI

instead of two years, we agree with the trial court that Rodriguez failed to demonstrate

that failure prejudiced him. See State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945

(1985) (defendant must prove both parts of Strickland test).         Rodriguez‟s argument

depends on his assertion that the seventy-nine days he was in jail before he was sentenced

for his 1999 conviction is not excluded time pursuant to § 13-604(W)(2)(c).              But

Rodriguez identifies no statutory support for that interpretation.3 The statute provides

that “[a]ny time” spent “incarcerated” is excluded. § 13-604(W)(2)(c). Nothing in its

provisions limits the term “incarcerated” to mean only time spent in confinement as a

result of conviction for a crime, nor is any such limitation inherent in the term itself. A

statute‟s plain language is the best indicator of the legislature‟s intent.         State v.

Streck, 221 Ariz. 306, ¶ 7, 211 P.3d 1290, 1291 (App. 2009). And we give that language

its ordinary meaning “„unless a specific definition is given or the context clearly indicates

that a special meaning was intended.‟” State v. Jones, 222 Ariz. 555, ¶ 14, 218 P.3d



         3
        As we understand his argument, Rodriguez suggests the definition of
“preconviction custody” in § 13-604(W)(3) distinguishes “incarceration” from other time
during which a person is confined to jail. We disagree. That term is defined for the
purpose of sentence enhancement for individuals who commit crimes after escape from
preconviction custody. It does not suggest a person in preconviction custody is not
incarcerated for the purpose of § 13-604(W)(2)(c).

                                             5
1012, 1016 (App. 2009), quoting Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz.

535, ¶ 27, 48 P.3d 485, 491 (App. 2002).

¶9           Additionally, we observe that our legislature‟s use of the term

“incarcerated” in other statutes encompasses individuals in custody who have not

necessarily been convicted of a crime. See A.R.S. § 31-331(5) (defining “[p]risoner” as

“a person incarcerated in a detention facility who has been charged with or convicted of a

misdemeanor, or a person incarcerated for nonpayment of a fine, for contempt or as a

condition of probation for any criminal offense”); A.R.S. § 31-163(D) (referring to

“incarcerated person” in custody of sheriff); A.R.S. § 36-731 (referring to persons

“charged with crimes” as incarcerated). Rodriguez identifies nothing that would require

a narrower definition of the term “incarcerated” in § 13-604(W)(2)(c) than that used

elsewhere in our criminal code. See State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261,

1264 (App. 2007) (in analyzing statute, court should give meaning consistent with entire

statutory scheme).

¶10          Rodriguez argues, however, that this court‟s decision in Derello compels

the conclusion that his seventy-nine days of preconviction incarceration should not have

been excluded. In Derello, the defendant argued that, in determining if his crimes were

historical prior felonies under § 13-604, the trial court could not exclude time

incarcerated for other felonies. 199 Ariz. 435, ¶ 20, 18 P.3d at 1238. He reasoned the

phrase “„[a]ny time spent incarcerated‟ refers only to time spent incarcerated for the

specific offense the State seeks to use as an historical prior felony conviction.” Id. We

disagreed, concluding the phrase clearly included “all time that a defendant spent in

                                            6
prison, regardless of whether that incarceration was for the particular prior conviction at

issue or for some other crime.” Id. ¶ 22. Rodriguez seizes upon this phrase to argue the

term “incarcerated” in § 13-604(W)(2)(c) includes only time spent in prison as a result of

a conviction for a crime and not time spent confined prior to sentencing.

¶11           But Derello does not address the issue of presentence incarceration, and we

had no reason to consider in deciding that appeal whether the term “incarcerated” in § 13-

604 would include such confinement. Thus, to the extent that Derello‟s statement that

time excluded under § 13-604 includes incarceration “for some other crime” supports

Rodriguez‟s argument, it is not controlling. Moreover, we noted in Derello that the

legislature “intended to punish repetitive offenders more severely than first time

offenders,” and that “[e]xcluding time spent incarcerated is more reflective of repetitive

offender status because a defendant is more able and apt to commit crimes . . . while out

of prison rather than in prison.” Id. ¶ 23. That reasoning applies with equal force to

presentence incarceration.       For the foregoing reasons, we conclude the term

“incarcerated” in § 13-604(W)(2)(c) includes any period of time a defendant is in

presentence custody. Thus, that period is excluded when determining whether a previous

offense had been committed within five years of the commission of the current offense

and therefore qualifies as a historical prior felony conviction.

¶12           Rodriguez identifies no other basis to conclude that his presentence

incarceration should not be excluded time under § 13-604(W)(2)(c).4 Accordingly, he


       4
        Although Rodriguez suggested below that excluding the seventy-nine days
“raises an equal protection issue under both the First and Fourteenth Amendments” on
                                              7
has not met his burden of demonstrating he was prejudiced by his counsel‟s failure to

point out at sentencing that his prison term for his 2003 DUI had been eighteen months

rather than the two years the state had asserted. Although we grant Rodriguez‟s petition

for review, we deny relief.




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


CONCURRING:

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


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge




the ground that he was incarcerated only because he could not post bond, he does not
raise this argument in his petition for review and we therefore do not address it. See
generally Ariz. R. Crim. P. 32.9.

                                           8
