Court of Appeals of Arizona, Second Division, Department B
October 2, 2013
THE STATE OF ARIZONA, Appellee,
DONAVAN ANTHONY JOHNSON, Appellant.
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20083679 Honorable Richard S. Fields, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Nicholas Klingerman Tucson Attorneys for Appellee.
Lori J. Lefferts, Pima County Public Defender By Abigail Jensen Tucson Attorneys for Appellant.
PETER J. ECKERSTROM, Judge
¶1 Donavan Johnson was convicted after a jury trial held in his absence of conspiracy to commit possession and/or transportation of marijuana for sale and possession of marijuana for sale. He was sentenced to concurrent, presumptive five-year prison terms. He argues on appeal that the trial court erroneously entered a criminal restitution order (CRO) at sentencing and failed to award sufficient presentence incarceration credit. We vacate the CRO but otherwise affirm Johnson's convictions and sentences.
¶2 In its sentencing minute entry, the trial court imposed attorney fees, a fine, and a surcharge and ordered that "all fines, fees, assessments and/or restitution are reduced to a Criminal Restitution Order, with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." Johnson argues, the state concedes, and we agree that the entry of this CRO "before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This error is not made harmless by a court's delaying the accrual of interest, penalties, or fees. Id. ¶ 5. Accordingly, the CRO is vacated.
¶3 The trial court concluded at sentencing that Johnson was entitled to forty- six days of presentence incarceration credit. Johnson contends he was instead entitled to forty-eight days' credit. He states that he was booked into jail following his arrest for the offenses of conviction on September 10, 2008, and released the following day, and he argues that he is entitled to two days of presentence incarceration for this period of confinement. The remaining forty-six days, according to Johnson, are calculated from his April 30, 2012, re-arrest to his sentencing on June 14. The state responds that Johnson has incorrectly included the date of his sentencing in his calculations and that his presentence incarceration credit resulting from his 2008 arrest was only one day because, despite being arrested on September 10, he was not booked into jail until September 11.
¶4 We agree with the state that, because the presentence report included the forty-six-day calculation and Johnson did not object to that report, he has waived all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 26.8(c); State v. Vermuele, 226 Ariz. 399, ¶ 14, 249 P.3d 1099, 1103 (App. 2011) (defendant has "duty to challenge all . . . errors related to sentencing" that "become apparent" before trial court pronounces sentence). But, in any event, we find no reversible error, fundamental or otherwise.
¶5 Johnson is entitled to credit for "[a]ll time actually spent in custody pursuant to an offense." A.R.S. § 13-712(B). This court determined in State v. Cereceres that there is a "clear distinction between incarceration and arrest, " and that a defendant is entitled to credit "only [for] time spent under conditions tantamount to incarceration in a jail or prison." 166 Ariz. 14, 16, 800 P.2d 1, 3 (App. 1990). Thus, we concluded, the defendant there was not entitled to credit for the day he was arrested, only from the following day when he was booked into jail. Id. at 15-16, 800 P.2d at 2-3; see also State v. Reynolds, 170 Ariz. 233, 235, 823 P.2d 681, 683 (1992) ("[T]he legislature intended the words 'in custody' to mean actual incarceration in a prison or jail and more than simply a restraint on freedom as onerous as jail or prison would be."); State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690, 691-92 (App. 1993) ("[F]or purposes of presentence incarceration credit, 'custody' begins when a defendant is booked into a detention facility.").
¶6 Consistent with the 2008 booking information summary and conditions of release and order, Johnson's presentence report shows he was arrested on September 10, 2008, and incarcerated on September 11, 2008, for one day. Johnson has identified nothing in the record suggesting he was in the custody of jail or prison officials before September 11. Thus, we find no error in calculating his presentence incarceration credit from that time. He therefore is entitled to only one day of presentence incarceration credit stemming from his time in custody in 2008. And he is not entitled to credit for the date of his sentencing. See State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987). Johnson was not entitled to more than the forty-six days of presentence incarceration credit he was awarded.
¶7 For the reasons stated, the CRO is vacated; Johnson's convictions and sentences are otherwise affirmed.
CONCURRING: VIRGINIA C. KELLY, Presiding Judge, PHILIP G. ESPINOSA, Judge