State v. Dahnad ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SHIDAN DAHNAD, Appellant.
No. 1 CA-CR 22-0286
FILED 3-23-2023
Appeal from the Superior Court in Maricopa County
No. CR2003-018000-001
The Honorable Patricia A. Starr, Judge
DISMISSED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Diane Leigh Hunt
Counsel for Appellee
Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
STATE v. DAHNAD
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Jennifer M. Perkins and Judge Angela K. Paton joined.
W I L L I A M S, Judge:
¶1 Shidan Dahnad appeals the trial court’s denial of his motion
to restore early release credits and request for release from custody. Because
we lack jurisdiction over the appeal, we dismiss.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2006, Dahnad was convicted of two counts of child
molestation, both class 2 felonies and dangerous crimes against children.
The trial court sentenced Dahnad under the dangerous crimes against
children sentencing range to presumptive terms of seventeen years
imprisonment on both counts to run concurrently. A.R.S. § 13-604.01(D)
(2003). At the sentencing hearing, the court first told Dahnad he was eligible
for early release, but then corrected itself and explained Dahnad was
required to serve his sentences day for day:
[I]t’s the judgment of the Court as to both Counts 1 and 2, that
Mr. Dahnad be imprisoned in the Arizona Department of
Corrections for the presumptive terms of 17 years to date
from today’s date.
...
It’s further ordered that the defendant serve a term of
community supervision, equal to one-seventh of the prison
term imposed to be served after that term of imprisonment.
This is really surplusage because actually the defendant will
have to serve all of the time to which he has been sentenced.
¶3 The court’s confinement order correctly listed counts 1 and 2
as class 2 felonies, but the sentencing order mistakenly listed both counts as
class 3 felonies. That was the only error in the sentencing order, which
correctly identified both counts as (1) completed offenses, rather than
attempted offenses, and (2) dangerous crimes against children.
2
STATE v. DAHNAD
Decision of the Court
¶4 The Arizona Department of Corrections (“ADC”) apparently
treated Dahnad as an offender who was eligible for early release and
calculated his early release date as May 3, 2021. Dahnad contends he
participated in ADC programs and maintained adequate behavior to earn
early release credits in reliance on ADC’s calculation.
¶5 In 2021, fifteen years after sentencing, the State moved the
trial court to correct the sentencing order to reflect Dahnad’s convictions for
class 2 felonies rather than class 3. The court issued an order nunc pro tunc
making the correction. ADC notified Dahnad he was not eligible for early
release and that his release date was now October 3, 2023.
¶6 In 2022, Dahnad moved the trial court to restore his early
release credits and requested he be released from custody immediately.
Dahnad argued the court’s sentencing order designating his offenses as
class 3 felonies was “binding.” The court denied Dahnad’s motion,
concluding that “everything in the record demonstrate[d] that the
designation in the sentencing minute entry was simply a clerical error.”
¶7 Dahnad appeals. If the trial court’s nunc pro tunc order
affected Dahnad’s “substantial rights,” we have jurisdiction to hear the
appeal under Article 6, Section 9, of the Arizona Constitution and A.R.S.
§ 13-4033(A)(3). Otherwise, we lack jurisdiction. See A.R.S. § 13-4033.
DISCUSSION
¶8 A trial court generally may correct an unlawful sentence so
long as it does so within sixty days of sentencing. Ariz. R. Crim. P. 24.3(a).
However, a trial court may correct clerical errors in a sentencing order “at
any time.” Ariz. R. Crim. P. 24.4. Dahnad argues the nunc pro tunc order
was not clerical, but instead affected his substantive rights by reclassifying
his offenses from class 3 felonies to class 2 felonies. We disagree.
¶9 The purpose of a nunc pro tunc order “is to record now for
then an order actually made . . . which through some oversight or
inadvertence was . . . incorrectly entered.” Shinn v. Ariz. Bd. of Exec.
Clemency, 521 P.3d 997, 1002, ¶ 17 (Ariz. 2022) (citations omitted). A nunc
pro tunc order is limited to correcting clerical errors within an order to
reflect the actual facts found within the record, and not to reflect
unexpressed intentions of the court. Id. at 1003, ¶ 22.
¶10 The record clearly shows the trial court expressly intended to
sentence Dahnad for class 2 felonies. The court stated that Dahnad was
being sentenced as “set forth in the indictment.” The indictment listed both
3
STATE v. DAHNAD
Decision of the Court
child molestation charges Dahnad was convicted of as class 2 felonies. The
court’s confinement order also correctly categorized the offenses as class 2
felonies. And the court’s reference to presumptive terms of seventeen years
imprisonment also aligns with class 2 (not class 3) felony designations that
were dangerous crimes against children.
¶11 Dahnad’s eligibility for early release depended upon whether
he attempted, rather than completed, a dangerous crime against children, not
the class of felony. A.R.S. § 13–604.01(G) (2003) (“[A] person sentenced for
a dangerous crime against children in the first degree . . . is not eligible for
. . . [early] release . . . .); A.R.S. § 13–604.01(L)(1) (2003) (“A dangerous crime
against children is in the first degree if it is a completed offense and is in the
second degree if it is a preparatory offense.”) And though the trial court
referenced early release during Dahnad’s sentencing hearing, the court
immediately clarified that Dahnad was required to “serve all of the time to
which he [was] sentenced.”
¶12 On this record, it is clear the trial court sentenced Dahnad for
class 2 felonies, both of which were (1) dangerous crimes against children
and (2) made Dahnad ineligible for early release. The court’s nunc pro tunc
order was clerical under Rule 24.4 and did not affect Dahnad’s substantial
rights.
CONCLUSION
¶13 For the foregoing reasons, we dismiss for lack of jurisdiction.
AMY M. WOOD • Clerk of the Court
FILED: AA
4