Opinion
No. 1 CA-CR 15-0778
12-20-2016
STATE OF ARIZONA, Appellee, v. CHRISTOPHER PAUL ARTER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Law Offices of Harriette P. Levitt, Tucson By Harriette P. Levitt Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201400655
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Donn Kessler joined. HOWE, Judge:
¶1 Christopher Paul Arter appeals his convictions and sentences for several drug related charges and forgery. Arter argues the trial court erred by denying his motion for funds for a second mental evaluation. He also contends he is entitled to credit for 45 days' presentence incarceration. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2014, the State charged Arter with possession of dangerous drugs for sale (methamphetamine), possession of dangerous drugs for sale (carisoprodol), possession of narcotic drugs for sale (hydrocodone), possession of drug paraphernalia, and forgery. For sentence enhancement purposes, the State alleged that Arter had a prior historical felony conviction and was on probation for a 2013 charge when he committed the present charged offenses.
¶3 During pretrial proceedings, Arter's court-appointed counsel moved to have Arter examined to determine his competency to stand trial and to investigate his mental condition at the time of the offenses. The trial court granted the motion and appointed a mental health expert to perform the evaluation. In his subsequent report, the expert found that Arter was incompetent to stand trial at the time and reported his findings and opinion regarding Arter's condition at the time of the offenses. Based on the expert's evaluation, the trial court found Arter incompetent to stand trial and committed him for treatment to restore his competency to stand trial. After six months' treatment and a subsequent mental evaluation, the trial court found that Arter had been restored to competency and set the matter for a jury trial.
¶4 Approximately one month before trial, Arter moved to obtain funds for another mental health evaluation to present a defense of guilty but insane. Arter argued that although the first mental health expert participated in the competency proceedings, the expert did not want to assist with an insanity defense. Noting that the county's Office of Indigent Defense Services granted him only $1,850 and that his out-of-county expert of choice quoted him a $3,500 fee, Arter requested that the trial court grant the necessary additional funds. The trial court denied the motion, however, stating that it had appointed the mental health expert at Arter's request, that the expert had examined him regarding the issue of his sanity at the time of the offenses, and that Arter could subpoena him to testify. At trial, Arter called the mental health expert as a witness, who testified regarding his examination of Arter and his opinions concerning Arter's mental condition.
¶5 Upon deliberation, the jury found Arter guilty on all counts. The jury further found Arter committed the offenses while on probation for the 2013 case. At a presentence hearing, the trial court found that Arter had one prior historical felony conviction.
¶6 At a consolidated disposition hearing, the trial court revoked Arter's 2013 probation and imposed a mitigated sentence of 1.75 years' imprisonment with 588 days' presentence incarceration credit for time served while waiting for sentencing in both cases. For the instant case, the trial court sentenced Arter to concurrent terms of 10 years' imprisonment for possession of dangerous drugs for sale (methamphetamine), 9.25 years' imprisonment for possession of dangerous drugs for sale (carisoprodol), 9.25 years' imprisonment for possession of narcotic drugs for sale, 1.75 years' imprisonment for possession of drug paraphernalia, and 4.5 years' imprisonment for forgery. The trial court further ordered that these sentences run consecutively to Arter's sentence for the 2013 case. Arter timely appealed.
DISCUSSION
1. Funds for Second Mental Evaluation
¶7 Arter first argues that the trial court erred by denying his motion for funds for a second mental evaluation. We review the denial of the appointment of an expert or additional funds for an abuse of discretion. State v. Apelt, 176 Ariz. 349, 366, 861 P.2d 634, 651 (1993). To find an abuse of discretion, we must determine that the denial or restriction of funds substantially prejudiced the defendant. State v. Eastlack, 180 Ariz. 243, 263, 883 P.2d 999, 1019 (1994). Because Arter has not shown that the trial court's denial of his motion for additional funds substantially prejudiced him, the court did not err.
¶8 In Arizona, an indigent defendant is entitled to the appointment of "expert witnesses as are reasonably necessary to adequately present a defense at trial." A.R.S. § 13-4013(B). Upon a showing that such witnesses are reasonably necessary to adequately present a defense at trial or during sentencing, the trial court must appoint the witness at the county's expense. Id.; see also Ariz. R. Crim. P. 15.9(a) (providing that an indigent defendant may apply for the appointment of an expert witness at the county's expense if reasonably necessary to adequately present a defense).
¶9 Arter fails to establish that the trial court abused its discretion by denying the motion. First, the trial court had already appointed the first mental health expert at Arter's request to examine his mental state at the time of the offenses. In his report, the expert specifically noted that the trial court appointed him to examine Arter's mental state at the time of the offenses and reported his findings consistent with that instruction. The expert also testified at Arter's trial about his examination and findings. Arter cites to no authority requiring a court to provide a defendant with multiple experts on the same subject.
¶10 Second, as Arter stated in his motion, the Office of Indigent Defense Services had already authorized $1,850 to obtain a second mental evaluation. Despite these funds already available to him, Arter wanted to retain an out-of-county expert who had quoted a fee of $3,500. Arter did not show, however, that he was unable to retain a local expert who would perform the evaluation for the amount that the county had already authorized. While an indigent defendant has the constitutional right to an expert witness when the issue of his sanity is raised, the defendant has no "constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Ake v. Oklahoma, 470 U.S. 68, 83 (1985). On this record, the trial court did not abuse its discretion by denying the motion for additional funds for a second mental evaluation.
2. Credit for Presentence Incarceration
¶11 Arter next contends that the trial court erred by crediting all 588 days of his presentence incarceration against the 1.75-year prison term imposed in the 2013 case. Noting that this sentence was not a "calendar year sentence" under A.R.S. § 13-105(4), which would require him to serve the full imprisonment term without the possibility of release on any basis, Arter asserts he would be eligible for release based on good time behavior after serving 85 percent of this sentence, which would be 543 days. Thus, he argues, the trial court erred by not crediting the remaining 45 days of his presentence incarceration against the consecutive sentences imposed in the instant case. Arter did not object to the allocation of presentence incarceration credit in the trial court, however. He has therefore forfeited all but fundamental error review of this issue. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). To obtain relief under this standard of review, Arter must establish the existence of both fundamental error and prejudice. Id. at ¶ 20. He has not done so here.
¶12 A defendant is entitled to credit for all time spent in custody pursuant to an offense until sentencing. A.R.S. § 13-712(B). Failure to award full credit for time served in presentence incarceration is fundamental error. State v. Cofield, 210 Ariz. 84, 86 ¶ 10, 107 P.3d 930, 932 (App. 2005). "Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error." State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991).
¶13 A 1.75-year prison term equals a total of 639 days. Although a prisoner may become eligible for early release through earned release credits, "[r]elease credits earned by a prisoner . . . shall not reduce the term of imprisonment imposed by the court." A.R.S. § 41-1604.07(B). Thus, after crediting the 588 days of presentence incarceration against the 1.75-year prison term imposed in the 2013 case, no unused credit remained. Indeed, Arter still had 51 days left on that sentence. Accordingly, the trial court did not grant any credit for presentence incarceration against the consecutive sentences imposed in the instant case. See State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106 (App. 1997) ("When consecutive sentences are imposed, a defendant is not entitled to presentence incarceration credit on more than one of those sentences, even if the defendant was in custody pursuant to all the underlying charges prior to trial.").
¶14 Moreover, the earning of release credits is neither guaranteed nor a matter of right. See A.R.S. § 41-1604.06(A) (stating that release credits are subject to rules developed and maintained by the Director of Department of Corrections); Crumrine v. Stewart, 200 Ariz. 186, 189 ¶ 16, 24 P.3d 1281, 1284 (App. 2001) (holding that a person has no liberty interest in statutorily created earned release credit system). Thus, Arter's claim of an early release from the sentence imposed in the 2013 case is speculative in nature. Speculation is insufficient to establish prejudice under fundamental error review. State v. Dickinson, 233 Ariz. 527, 531 ¶ 13, 314 P.3d 1282, 1286 (App. 2013). Thus, the trial court did not err, much less err fundamentally.
CONCLUSION
¶15 For the foregoing reasons, we affirm.