               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41078

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 626
                                                 )
       Plaintiff-Respondent,                     )     Filed: July 17, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
CULLEN ROBERT SIMS,                              )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Orders denying motions for credit for time served, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Cullen Robert Sims appeals from the district court’s orders denying his motions for credit
for time served. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       On August 9, 2012, police observed Sims driving and attempted to stop him in order to
serve him with an arrest warrant for a parole violation. Sims failed to stop, rammed his vehicle
into a police vehicle, struck another police vehicle, and sped away. While fleeing, Sims collided
with a third party. The crash resulted in an injury to the third party and an injury to Sims’s
passenger. Sims was transported to a hospital for treatment of his injuries and a possible drug
overdose.
       On October 17, 2012, the state filed a complaint charging Sims with two offenses--felony
eluding a peace officer and misdemeanor resisting or obstructing officers. An arrest warrant



                                                1
issued and an officer served Sims with the warrant on November 21, 2012. On January 16,
2013, the state filed an amended complaint charging Sims with felony eluding a peace officer;
aggravated driving under the influence (DUI); possession of methamphetamine; felony
destruction, alteration, or concealment of evidence; and misdemeanor resisting or obstructing
officers. A magistrate bound Sims over on all but the destruction of evidence charge, and the
state filed a corresponding information.
       Pursuant to a plea agreement, Sims pled guilty to aggravated DUI, I.C. § 18-8006, and
the state dismissed the remaining charges. The district court imposed a unified sentence of
fifteen years, with a minimum period of confinement of seven and one-half years. The district
court ordered that Sims receive credit for time served in the amount of 191 days (starting from
the date of arrest on November 21, 2012, and ending at his sentencing hearing on May 30, 2013).
       After sentencing, Sims sent the district court a letter requesting credit for 295 days. Sims
contended officers arrested him for the aggravated DUI on August 9, 2012. The district court
treated the letter as an I.C.R. 35 motion for credit for time served and denied it. The district
court reasoned Sims was not arrested until November 21, 2012, and that, although Sims may
have been in custody on other charges preceding that date, because the arrest warrant was not
issued until October 17, 2012, Sims was at large for at least a month before his arrest. Sims
thereafter filed another motion for credit for time served and included an affidavit and
attachments in support thereof. Sims again asserted he was arrested for the aggravated DUI on
the day of the offense (August 9, 2012). The district court found that the evidence submitted by
Sims did not demonstrate he was incarcerated on the date of the incident. Accordingly, the
district court denied Sims’s motion. Sims appeals.
                                                II.
                                  STANDARD OF REVIEW
       The question of whether a sentencing court has properly awarded credit for time served to
the facts of a particular case is a question of law, which is subject to free review by this Court.
State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct. App. 2005). We defer to the
district court’s findings of facts, unless those findings are unsupported by substantial and
competent evidence in the record and are therefore clearly erroneous. State v. Covert, 143 Idaho
169, 170, 139 P.3d 771, 772 (Ct. App. 2006).




                                                2
                                               III.
                                          ANALYSIS
       Sims contends the district court’s finding that he was not incarcerated on the date of the
incident is clearly erroneous. Sims also contends that, although he was served with the arrest
warrant on November 21, 2012, he was actually arrested August 9, 2012, for aggravated DUI.
The state concedes Sims was incarcerated on the date of the incident. 1 However, the state argues
this incarceration was not attributable to the aggravated DUI charge but, rather, to a parole
violation in a separate case.
       The award of credit for time served is governed by I.C. § 18-309, which provides in
pertinent part:
               In computing the term of imprisonment, the person against whom the
       judgment was entered, shall receive credit in the judgment for any period of
       incarceration prior to entry of judgment, if such incarceration was for the offense
       or an included offense for which the judgment was entered. The remainder of the
       term commences upon the pronouncement of the sentence . . . .

The statute’s phrase “if such incarceration was for the offense or an included offense for which
the judgment was entered” means that the right to credit is conferred only if the prejudgment
incarceration is a consequence of or attributable to the charge or conduct for which the sentence
is imposed. Vasquez, 142 Idaho at 68, 122 P.3d at 1168; State v. Akin, 139 Idaho 160, 164, 75
P.3d 214, 218 (Ct. App. 2003); State v. Hale, 116 Idaho 763, 765, 779 P .2d 438, 440 (Ct. App.
1989). If a particular period of confinement served prior to the imposition of a sentence is not
attributable to the charge or conduct for which a sentence is to be imposed, the offender is not
entitled to credit for such confinement; neither does the sentencing judge err by denying credit
under such circumstances. Hale, 116 Idaho at 765, 779 P.2d at 440.
       Sims argues the district court erred because one of the police reports following the
August 9, 2012, incident contains the following statement, “Sims was then taken into custody for
felony eluding and his outstanding felony parole violation.” However, an officer’s narrative in a



1
        The district court’s finding that Sims was not incarcerated is clearly erroneous. However,
because we conclude the district court did not fail to award Sims any credit to which he was due,
remand is not necessary. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct. App. 1984)
(Where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may
be sustained upon the proper legal theory.).

                                                3
police report is not dispositive of whether Sims’s incarceration was attributable to the aggravated
DUI. Rather, that is a legal determination for this Court to make. The record demonstrates that
the state did not file a complaint in the aggravated DUI case until October 17, 2012. A warrant
was issued for Sims’s arrest on this same date. Moreover, the record demonstrates officers
served Sims with the arrest warrant on November 21, 2012. Thus, we hold Sims’s incarceration
could not have been attributable to the aggravated DUI charge until he was arrested on that
charge on November 21, 2012.
       Sims further contends the district court erred as a matter of law by concluding service of
an arrest warrant constitutes incarceration. This argument misses the mark. The relevant inquiry
is whether Sims’s incarceration from August 9, 2012, to November 21, 2012, was attributable to
the aggravated DUI charge. Given that that complaint was not filed until October 17, 2012, and
the warrant was not served until November 21, 2012, Sims’s argument is untenable. The record
demonstrates that Sims’s incarceration from August 9, 2012, to November 21, 2012, was
attributable to a separate, no-bond warrant for a parole violation.
       We recognize that State v. Horn, 124 Idaho 849, 865 P.2d 176 (Ct. App. 1993), may call
into question the correctness of the credit given in this case. In Horn, the state filed a complaint
in Ada County charging the defendant with forgery. An Ada County warrant was served on
Horn at the Gem County jail, where Horn awaited disposition of unrelated criminal charges.
After disposition, the state transferred Horn to Canyon County to answer unrelated criminal
charges. The state then transferred Horn to Owyhee County to respond to more unrelated
criminal charges and thereafter to Elmore County, where even more unrelated criminal charges
were pending. At the conclusion of the Elmore County case, the state remanded Horn to the
custody of the Board of Correction to serve his sentence. Approximately 200 days after service
of the arrest warrant, Horn was brought before a magistrate in Ada County and arraigned. Id. at
849, 865 P.2d at 176. The magistrate released Horn on his own recognizance. Horn was never
incarcerated in the Ada County jail in connection with that warrant. On appeal, this Court held
Horn was not entitled to the 271 days that elapsed between service of the Ada County arrest
warrant and sentencing on those charges because Horn was incarcerated in different counties on
unrelated criminal charges. Id. at 851, 865 P.2d at 178. Thus, the incarceration was not
attributable to the charge or conduct for which the Ada County sentence was imposed. Id. at
850, 865 P.2d at 177. This Court further explained that the determining factor was one of


                                                 4
causation--whether the presentence incarceration was caused by the charge for which the
sentence was being imposed. Id. Pursuant to this analysis, the district court may have granted
Sims more credit than that to which he was due. However, the state has not cross-appealed the
decision of the district court and does not challenge the amount of credit awarded to Sims.
Therefore, we do not address this issue further.
                                                   IV.
                                         CONCLUSION
       The district court did not fail to award Sims any credit to which he was due.
Accordingly, we affirm the district court’s orders denying Sims’s motions.
       Judge LANSING and Judge GRATTON, CONCUR.




                                                   5
