Opinion
1 CA-CR 22-0209
02-28-2023
STATE OF ARIZONA, Appellant, v. JULIO LUGO, Appellee.
Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Appellant Maricopa County Public Defender's Office, Phoenix By Kevin D. Heade Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2013-003829-001 The Honorable Anne H. Phillips, Judge, Pro Tempore
Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Appellant
Maricopa County Public Defender's Office, Phoenix By Kevin D. Heade Counsel for Appellee
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
MEMORANDUM DECISION
MORSE, JUDGE
¶1 The State of Arizona appeals the superior court's award of presentence incarceration credit for Julio Lugo. For reasons that follow, we vacate the portion of the court's order granting him 547 days' credit and remand for recalculation.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2014, Lugo pled guilty to four counts of armed robbery. Consistent with the plea agreement's stipulations, the superior court sentenced him to concurrent terms of five years' imprisonment on two counts, followed by concurrent terms of supervised probation on the remaining counts.
¶3 When Lugo completed his prison sentence in July 2019, Immigration and Customs Enforcement ("ICE") authorities deported him to Mexico. In August 2020, police officers arrested him in Tempe, Arizona for a driving under the influence ("DUI") misdemeanor offense. ICE authorities immediately took him into custody and placed him in a federal correctional institution based on his illegal reentry into the United States following deportation.
¶4 Probation officials petitioned to revoke Lugo's probation for his DUI and illegal reentry. After learning Lugo was in federal custody, the State sought and obtained a writ of habeas corpus ad prosequendum ("Writ") directing the federal marshal to release him temporarily to face probation-violation proceedings in Maricopa County Superior Court. Several successive Writs followed before the State took custody of Lugo in March 2022.
¶5 At a probation-violation hearing on April 6, 2022, Lugo admitted he violated his probation terms by committing the DUI offense, and the superior court revoked his probation. Before imposing sentence, the court heard argument from the parties on whether Lugo should receive presentence incarceration credit for the time he had spent in federal custody following the Writ's issuance. The State asserted that, because he was also held on unrelated federal charges during that time, Lugo was entitled to credit only from March 29, 2022, when he was extradited to Arizona. Lugo countered that he was entitled to credit from the date of his DUI arrest because he had been held in "continuous custody." Lugo's counsel further explained that Lugo had been "charged with illegal reentry" and "was sentenced to 24 months" on his federal charges, a point Lugo expressly confirmed.
¶6 The superior court concluded that Lugo was entitled to "credit for 5 [47] days that [he had] been in custody, beginning October 7th, 2020, which is the date that [the] Maricopa County Attorney's Office and the State of Arizona filed a writ of habeas corpus attaching to [him] while [he was] in federal custody." In so determining, the court reasoned that "but for federal custody . . . Lugo would've been here [in Maricopa County Superior Court] . . . because the State filed th[e] writ of habeas corpus." The court therefore awarded him 547 days' presentence incarceration credit.
¶7 The State timely appealed. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4032(5).
DISCUSSION
¶8 The sole question on appeal is whether the superior court incorrectly awarded Lugo presentence incarceration credit for the time he spent in federal custody. We review the ruling de novo. State v. Lambright, 243 Ariz. 244, 249, ¶ 9 (App. 2017).
¶9 Under § 13-712(B), defendants must receive presentence incarceration credit for "all time actually spent in custody pursuant to an offense until the prisoner is sentenced . . . ." Defendants carry the burden of demonstrating that they are entitled to presentence incarceration credit. State v. Cecena, 235 Ariz. 623, 625, ¶ 10 (App. 2014). To make such a showing, defendants must prove the Arizona charge was the "but for cause of his or her out-of-state presentence incarceration." Id. at 626, ¶ 10 (quotation omitted). Defendants are not entitled to presentence-incarceration credit for time they spent in out-of-state custody on an out-of-state charge even if they also have an Arizona hold. See id.; see also State v. Horrisberger, 133 Ariz. 569, 570 (App. 1982) (denying defendant credit for time spent in out-of-state custody for charges in other states despite having an Arizona hold because the incarceration was not "pursuant to" the Arizona offense).
¶ 10 Here, in awarding Lugo the contested credit, the superior court failed to find the time he spent in federal custody resulted solely from his Arizona charges. See Cecena, 235 Ariz. at 626, ¶ 10. Instead, the court concluded that Lugo was entitled to credit because his federal hold on unrelated charges contributed to the delay in his probation-violation hearing. Therefore, because Lugo neither argued nor showed that the Arizona probation case was the "but-for" cause of his incarceration, the court erred in granting him credit. Compare Horrisberger, 133 Ariz. at 570 (finding the defendant was not entitled to time served in out-of-state custody because incarceration was not "pursuant to" the Arizona offense), with State v. Mahler, 128 Ariz. 429, 430 (1981) (finding the defendant was entitled to time served in out-of-state custody when he was held solely on Arizona charges).
¶11 Nonetheless, Lugo asks us to leave the credit award undisturbed because "[n]othing in this record establishes that [he] was held in federal custody on anything other than the Writ of Habeas Corpus Ad Prosequendum filed on October 07, 2020." We disagree.
¶12 First, the facts of Lugo's federal incarceration were undisputed. At the disposition hearing, he and his counsel repeatedly averred that he had been held in federal custody since his DUI arrest and ultimately served a federal sentence for his illegal reentry. See United Metro Material Inc., v. Pena Blanca Props., L.L.C., 197 Ariz. 479, 483, ¶ 22 (App. 2000) (explaining that the superior court has discretion to accept counsel's avowals). Lugo's counsel also noted that following the probation-violation proceeding, Lugo had to "go back in federal custody" where federal authorities would release and deport him. See id. Furthermore, the probation-violation report contained unobjected-to information indicating Lugo had been held in federal custody on an immigration offense. See State v. Elmore, 174 Ariz. 480, 484 (App. 1992) (approving consideration of a probation-violation report in a probation disposition); see also Ariz. R. Crim. P. 26.8(b) (permitting a party to object to the contents of a presentence report); State v. Gonzales, 233 Ariz. 455, 458, ¶ 11 (App. 2013) ("A defendant who fails to object to the contents of a presentence report has waived objections as to the accuracy and completeness of the report.").
¶ 13 Second, a writ of habeas corpus ad prosequendum is "the equivalent of a request for temporary [physical] custody" and is issued "when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction where the crime was committed." State v. Kaipio, 246 Ariz. 134, 136-37, ¶ 9 (App. 2019) (quotations and italics omitted). In this case, Lugo was held on federal charges when the State obtained the Writ, and the Writ required the State to return him to federal prison after the completion of his probation-violation proceedings. See id. at 137, ¶¶ 9, 11 (noting such writs only temporarily transfer physical custody to another jurisdiction and priority jurisdiction continues without interruption). Stated differently, the federal government merely "loan[ed]" Lugo's physical custody to the State. See id. at ¶ 11. Thus, the Writ compels the conclusion that Lugo had a contemporaneous federal hold.
¶ 14 Lugo next asks us to "infer that the [superior] court issued its order with State v. Adler, 189 Ariz. 280 (1997) in mind," even though Adler was never mentioned in the probation-violation proceedings.
¶ 15 In Adler, two years after the defendant's probation officer petitioned to revoke his probation, probation officials learned that the defendant was imprisoned in another state on federal charges. 189 Ariz. at 281. While in federal prison, the defendant repeatedly moved for a speedy disposition in his probation-violation matter. Id. Despite the defendant's requests, the State refused to adjudicate the probation-violation case, informing him by letter that "it would not initiate any proceeding to obtain custody of him because it had no legal obligation to do so." Id. The probation-revocation hearing finally occurred more than six years after the petition's filing, and the superior court sentenced him to prison. Id. at 282.
¶16 Our supreme court held that "the [S]tate did not have a legitimate explanation for the unreasonable delay," which prejudiced the defendant by denying him the opportunity to have his probation-violation sentence run concurrently with his federal sentence. Id. at 284-85. The court remanded the case to the superior court to dismiss the petition with prejudice. Id. at 285.
¶ 17 Unlike in Adler, the State did not refuse to proceed with Lugo's probation-violation hearing. On the contrary, when the State discovered that Lugo was in federal custody, it promptly obtained the Writ and persistently sought to have him delivered to Arizona. Therefore, on this record, we cannot conclude the State violated Adler. We note, however, that because the superior court did not address Adler-related delay in the earlier proceedings, Lugo is free to raise it on remand, and we express no opinion regarding whether the delay in conducting the probation-violation hearing was reasonable. See State v. Flemming, 184 Ariz. 110, 115 (1995) (evaluating whether a delay in probation-revocation proceedings was reasonable requires consideration of (1) the delay's length, (2) its cause, and (3) prejudice to the defendant).
¶ 18 Given the record's lack of clarity about the reasons for the delay in Lugo's transfer to Arizona, we agree with the State that the proper remedy is to remand to the superior court to recalculate the amount of presentence incarceration credit. See State v. Brooks, 191 Ariz. 155, 157 (App. 1997) (remanding for recalculation of presentence incarceration credit when the record did not indicate how it was computed); see also State v. Nieto, 170 Ariz. 18, 19 (App. 1991) (sentencing judge has the responsibility of calculating presentence incarceration credit); but see State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (modifying presentence incarceration credit without remand). Accordingly, we vacate the portion of the sentencing order awarding Lugo 547 days' presentence incarceration and remand for recalculation.
CONCLUSION
¶19 For the foregoing reasons, we vacate the superior court's award of presentence incarceration credit and remand for recalculation.