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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        KENNETH JOHN FALCONE,
                              Appellant.

                            Nos. 1 CA-CR 15-0519
                                 1 CA-CR 15-0522
                                (Consolidated)
                                 FILED 7-28-16


           Appeal from the Superior Court in Maricopa County
                         Nos. CR 1989-008697
                              CR 1989-002205

           The Honorable J. Justin McGuire, Judge Pro Tempore

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant

Kenneth John Falcone, Kingman
Appellant



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1             Kenneth John Falcone appeals from a decision revoking his
probation and from the resulting disposition. Pursuant to Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel has searched the record, found no arguable question of law, and
asked us to review the record for reversible error. Falcone filed a
supplemental brief in propria persona that we have considered. With the
exception of the amount of presentence incarceration credit, which we
modify, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Falcone pled guilty to attempted child molestation in 1989
and was placed on lifetime probation in Maricopa County Superior Court
cause number CR 1989-08697. He also pled guilty to two counts of
attempted child molestation in Maricopa County Superior Court cause
number CR 1989-02205 and received a sentence of ten years’ imprisonment
for one count and lifetime probation for the other.

¶3            In 2005, Falcone was arrested in Pima County for sexual
contact with two minors, and the Adult Probation Department petitioned
to revoke his Maricopa County probation. No further action occurred in
the probation revocation proceedings until after Falcone was tried and
sentenced for the Pima County offenses in February 2007.1 Thereafter, in

1     The Pima County Superior Court initially found Falcone guilty of
attempted sexual conduct with a minor, two counts of sexual conduct with



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                           STATE v. FALCONE
                           Decision of the Court

June 2007, the Maricopa County Superior Court dismissed the probation
revocation petition without prejudice at the State’s request.

¶4            In 2011, the Adult Probation Department again petitioned to
revoke Falcone’s Maricopa County probation based on the Pima County
offenses. Falcone requested and received numerous continuances of those
proceedings. Ultimately, the Maricopa County Superior Court held a
probation violation hearing in June 2015. The court found that, based on
the Pima County convictions, Falcone violated his probation terms in both
Maricopa County cases. The court revoked Falcone’s probation and
imposed two ten-year sentences, which are to run consecutively to each
other and to the Pima County sentence. Reasoning that all of the sentences
were consecutive and that Falcone was already receiving credit toward his
Pima County sentence, the court gave him credit for only two days of
presentence incarceration.

¶5           Falcone timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                              DISCUSSION

¶6            We have reviewed the entire record. Except for the
calculation of presentence incarceration credit, we find no reversible error.
Falcone was present and represented by counsel at all critical phases of the
proceedings, which were conducted in compliance with the Rules of
Criminal Procedure. The superior court’s findings were supported by the
record, and the disposition was within the range authorized by law. We
nonetheless address arguments Falcone asserts in his supplemental brief.

I.    Revocation Proceedings

¶7            Falcone contends the superior court “failed to follow the
mandate of former A.R.S. § 13-604.02 B when it dismissed the petition to
revoke probation, upon the State’s motion.” We disagree. The cited statute
— as well as its current version, A.R.S. § 13-708 — affected the Pima County
sentencing, but not the Maricopa County revocation proceedings. See
A.R.S. § 13-604.02 (2015) (probationer convicted of subsequent felony
offense must be sentenced to no less than presumptive term for that offense,


a minor under eighteen, public sexual indecency to a minor under fifteen,
and luring a minor for sexual exploitation. However, except for the two
counts of sexual conduct with a minor, those convictions were later vacated.


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                           STATE v. FALCONE
                           Decision of the Court

is not eligible for probation, and the sentence “shall revoke the convicted
person’s release”); see also A.R.S. § 13-708(C), (E) (same).

¶8             Broadly construing Falcone’s argument, we consider the
implicit contention that the State failed to pursue probation revocation in a
timely manner. Due process entitles a probationer to “some minimal
inquiry at or reasonably near the place of the alleged parole violation or
arrest and as promptly as convenient after arrest while information is fresh
and sources are available.” State v. Flemming, 184 Ariz. 110, 115 (1995). In
evaluating the reasonableness of delay, we evaluate its length, reasons
given for the delay, and any prejudice to the defendant. See id.

¶9             Here, the delay was substantial, and the record does not
disclose the State’s reasons for dismissing the 2005 petition. Cf. Flemming,
184 Ariz. at 115 (Expressing “disapproval of the practice of deferring the
hearing on probation revocation until after the adjudication of guilt or
innocence on the new criminal charge.”). On the other hand, Falcone did
not raise a timely challenge to the timeliness of the revocation proceedings
and contributed significantly to the delay by requesting numerous
continuances. Additionally, we agree with the superior court’s observation
about the lack of demonstrable prejudice:

      I also find that because the law specifically mandates that the
      sentences for all these offenses have to run consecutive to each
      other, you didn’t suffer any prejudice as a result of the
      unusual circumstances that brought us here today. There was
      never the possibility that some of these things could have
      been run concurrent with each other.

As such, Falcone has not demonstrated that the delay caused him prejudice.

II.   Presentence Incarceration Credit

¶10           We do, however, agree with Falcone that he received
insufficient presentence incarceration credit. “All 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.” A.R.S. § 13-712(B). Under certain circumstances, a
defendant is entitled to presentence incarceration credit even if he is
currently serving a prison term. In State v. Seay, we stated:

      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


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                            STATE v. FALCONE
                            Decision of the Court

       person continues to receive credit for time served against his
       or her federal sentence. 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.

       We find no basis to distinguish custody in ADOC from
       federal custody in determining whether [a defendant] is
       entitled to sentencing credit for time spent in the . . . County
       Jail.

232 Ariz. 146, 147–48, ¶¶ 6, 7 (App. 2013) (citations omitted).

¶11           The Pima County sentence included presentence
incarceration credit for all days prior to its entry. Falcone is not entitled to
“double credit” for those days. See State v. Cuen, 158 Ariz. 86, 88 (App. 1988)
(“[M]ultiple credit should not be given against later consecutive sentences
pertaining to the convicted person.”). However, he was entitled to credit
for every day — prior to sentencing in the Maricopa County cases — he was
held pursuant to the probation violation, even if those days also counted
toward his Pima County sentence.

¶12          The record reflects that Falcone was held in custody by the
Maricopa County Sherriff’s Office for the probation violation during the
following time periods:

      April 19, 2007 to June 21, 2007 — 64 days;
      June 2, 2011 to August 24, 2011 — 84 days; and
      April 2, 2015 to July 14, 2015 — 104 days.
Falcone is thus entitled to 252 days’ presentence incarceration credit toward
his first 10-year sentence. See State v. Cofield, 210 Ariz. 84, 86, ¶ 10 (App.
2005) (failure to award full credit presentence incarceration is fundamental
error).

                               CONCLUSION

¶13          With the exception of modifying presentence incarceration
credit in cause number CR 1989-002205, we affirm the judgment of the
superior court. Defense counsel’s obligations in this appeal have ended.
Counsel need do nothing more than inform Falcone of the status of the
appeal and his future options, unless counsel’s review reveals an issue
appropriate for submission to the Arizona Supreme Court by petition for



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                           STATE v. FALCONE
                           Decision of the Court

review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On this Court’s
own motion, and if he so desires, Falcone may proceed with an in propria
persona motion for reconsideration or petition for review within 30 days of
this decision.




                                    :jt


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