Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-144412-001 The Honorable Christine E. Mulleneaux, Judge Pro Tem
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee
Marty Lieberman, Maricopa County Legal Defender Phoenix By Cynthia D. Beck, Deputy Legal Defender Attorneys for Appellant
MARGARET H. DOWNIE, Judge
¶1 Alejandro Garcia Esquivel contends that the trial court improperly calculated his presentence incarceration credit. We agree and therefore modify his sentence.
FACTS AND PROCEDURAL HISTORY
¶2 Esquivel was arrested and incarcerated on August 26, 2011. On August 27, 2011, he was notified of his preliminary hearing date and released from custody. When he failed to appear for the preliminary hearing, a bench warrant was issued for his arrest. Esquivel was arrested pursuant to the warrant on September 29, 2011. He remained in custody until September 30, 2011, when he was released on bond.
¶3 Esquivel was convicted after a jury trial. He was taken into custody on July 27, 2012, where he remained until sentencing on September 21, 2012. At sentencing, defense counsel requested that Esquivel be credited for presentence incarceration time, stating: "He does have, according to my count, 52 days credit for time served. So I would ask that he get credit for that." The court sentenced Esquivel to a six-year term of imprisonment and awarded him 52 days of presentence incarceration credit.
¶4 Esquivel timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A).
¶5 Esquivel argues the trial court erred in awarding him 52 days of presentence incarceration credit rather than the 60 days to which he claims entitlement under A.R.S. § 13-712(B). Fundamental error review occurs when, as here, the appealing party failed to properly raise the issue before the trial court. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) . Under this standard of review, the appellant must establish that fundamental error occurred and that the error prejudiced him. Id. at ¶ 20.
I. Presentence Incarceration Credit
¶6 Section 13-712(B) provides that "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment." When calculating presentence incarceration credit, a defendant is entitled to a full day of credit for any partial day spent in custody. State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993) . A defendant does not, however, receive credit for the day of sentencing. See A.R.S. § 13-712(A) (for defendants in custody on sentencing day, sentencing day is first day of sentence); State v. Lopez, 153 Ariz. 285, 285, 736 P.2d 369, 369 (1987) (if sentencing day is first day of sentence, ...