Opinion
No. 2 CA-CR 2013-0299
04-28-2014
THE STATE OF ARIZONA, Appellee, v. ANDREW ABRAHAM SMITH, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Ronald Zack, PLC, Tucson By Ronald Zack Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20084154001
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Ronald Zack, PLC, Tucson
By Ronald Zack
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Andrew Smith was convicted after a jury trial of conspiracy to possess marijuana for sale and conspiracy to transport marijuana for sale and was sentenced to concurrent, five-year prison terms. On appeal, he argues that his conviction and sentence for conspiracy to possess marijuana for sale must be vacated because it violates double jeopardy and that the trial court erred in calculating his presentence incarceration credit. The state concedes error, and we agree.
¶2 Smith's convictions stem from his participation in a drug trafficking operation. During their investigation of that operation, law enforcement officers discovered forty-five pounds of marijuana in the back seat of a truck, based on which Smith was charged with conspiracy to transport marijuana for sale and conspiracy to possess marijuana for sale.
The state also charged Smith with money laundering, but that charge was dismissed on the state's request after the jury failed to reach a verdict on that count.
¶3 Smith contends on appeal that his conviction for conspiracy to possess marijuana for sale violates double jeopardy and, thus, constitutes fundamental error. we need not reach his double-jeopardy argument, however. As the state correctly points out, the conspiracy statute provides that "[a] person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to." A.R.S. § 13-1003(C); State v. Medina, 172 Ariz. 287, 289, 836 P.2d 997, 999 (App. 1992); see also City of Sierra Vista v. Dir., Ariz Dep't of Envtl. Quality, 195 Ariz. 377, ¶ 6, 988 P.2d 162, 165 (App. 1999) (court should "decide cases on nonconstitutional grounds if possible to avoid the unnecessary resolution of constitutional issues"). Thus, Smith cannot be convicted of both conspiracy to transport and conspiracy to possess the same marijuana for sale. And, although Smith did not raise this argument below, the improper conviction constitutes fundamental error. See State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005) (conviction based on insufficient evidence is fundamental error); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (defendant forfeits all but fundamental, prejudicial error by failing to raise argument in trial court).
¶4 Smith next argues, and the state also concedes, that the trial court erred in calculating his presentence incarceration credit. A defendant is entitled to credit for presentence incarceration for any time "actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense." A.R.S. § 13-712(B). "[C]ustody begins when a defendant is booked into a detention facility." State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). Although Smith did not object below, a trial court's failure to grant full credit for presentence incarceration constitutes fundamental error. See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989).
¶5 At sentencing, the trial court stated Smith was entitled to two days presentence incarceration credit. The record shows he was first arrested on October 17, 2008, and released the following day and then was booked into jail on January 11, 2009, and released that day. Smith absconded and was tried in absentia in September 2009. At a status hearing in April 2013, his counsel explained Smith had been arrested pursuant to the warrant issued in this case and held in Maricopa County Jail to await transfer. At some point, the state apparently discovered there was also a warrant for Smith in Maricopa County, and he was held there until his sentencing in that matter. At that April status hearing, the trial court stated it had to "set bond" to ensure Smith received "in-custody credits toward this CR number" and imposed a $200 bond.
¶6 We agree with the parties that Smith is entitled to credit for some or all of the time between his arrest pursuant to the warrant and his sentencing in this case. See State v. Brooks, 191 Ariz. 155, 156-57, 953 P.2d 547, 548-49 (App. 1998) (defendant entitled to presentence credit when jailed and "never released" for drug charge and held for probation violation based on same charge). Thus, he was entitled to at least three days of presentence incarceration credit. See Carnegie, 174 Ariz. at 453-54, 850 P.2d at 691-92 (defendant "in custody" on date booked into jail); State v. Brooks, 161 Ariz. 177, 181, 777 P.2d 675, 679 (App. 1989) (defendant that "remained in custody on [two] warrants . . . entitled to credit for the time held on each"). And we agree with the parties that, because the record does not show when he was arrested on the warrant, the proper remedy is to remand the case to the trial court to calculate the correct amount of presentence incarceration credit. See State v. Brooks, 191 Ariz. at 157, 953 P.2d at 549 (remanding for recalculation of presentence incarceration credit because record did not indicate how it was computed).
¶7 For the reasons stated, we affirm Smith's conviction and sentence for conspiracy to transport marijuana for sale, vacate his conviction and sentence for conspiracy to possess marijuana for sale, and remand the case to the trial court to recalculate his presentence incarceration credit.