State of Arizona v. Brandon Albert Seay

FILED BY CLERK
IN THE COURT OF APPEALS MAY 20 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2013-0001-PR
Respondent, ) DEPARTMENT B
)
v. ) OPINION
)
BRANDON ALBERT SEAY, )
)
Petitioner. )
)
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR201100745
Honorable John F. Kelliher, Jr., Judge
REVIEW GRANTED; RELIEF GRANTED
Robert J. Zohlmann Tombstone
Attorney for Petitioner
V Á S Q U E Z, Presiding Judge.
¶1 Brandon Seay petitions this court for review of the trial court’s order
denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P.
We will not disturb that ruling unless the court clearly has abused its discretion. See
State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review
and relief.
¶2 On October 6, 2011, Seay was indicted in Cochise County for second-
degree burglary, theft, and criminal damage. Because Seay was serving another sentence
in the custody of the Arizona Department of Corrections (ADOC) in Florence, the state
petitioned for and the trial court issued a writ of habeas corpus ad prosequendum,
directing that ADOC deliver Seay to the Cochise County Sheriff for arraignment. The
writ further ordered that Seay be returned to ADOC “upon the conclusion of all pending
proceedings.” Seay subsequently was transferred to the Cochise County Jail on
October 21 and arraigned on October 24. Pursuant to a plea agreement, on April 17,
2012, Seay pled guilty to second-degree burglary and theft. On May 14, he was
sentenced in accordance with the plea agreement to presumptive prison terms, the longest
of which was 3.5 years, to be served concurrently to each other and to the sentence Seay
currently was serving. The court further ordered that Seay was entitled to credit for
thirty-three days “served prior to sentencing.”
¶3 Seay filed a pro se motion requesting that the trial court award him
sentencing credit for all time between his transfer from ADOC to the Cochise County Jail
and his sentencing—a total of 206 days of credit. The court appointed Seay’s trial
counsel to represent him for the purposes of the motion, and the state filed a response to
2
Seay’s motion, additionally requesting that the court amend its sentencing order to
“take[] away” the thirty-three days of credit. Counsel, characterizing Seay’s motion as a
“pro se Rule 32 petition,” filed an amended Rule 32 petition, and a reply to the state’s
response to that petition.
¶4 Counsel ultimately withdrew, however, on the basis that “there is an issue
of ineffective assistance of counsel,” creating a conflict of interest. The trial court
appointed new counsel, who filed a supplemental memorandum to include a claim that
trial counsel had been ineffective in failing to “clarify [Seay’s] custody status.” After
hearing argument, the court denied Seay’s petition for post-conviction relief. It noted
that it had “not set conditions of release upon [Seay’s] arraignment,” that Seay “was
already in the Arizona Department of Correction[’s] custody,” and that neither the state
nor trial counsel had “raised the issue of [Seay’s] conditions of release.” Thus, the court
concluded, Seay “continued in [the] custody” of ADOC “under the sentence(s) issued in
another distinct criminal case (albeit physically present in the Cochise County jail).” The
court additionally amended its sentencing order to give Seay “zero (0) days credit for
time served.”
¶5 The essential thrust of Seay’s argument on review, as it was below, is that
the writ of habeas corpus ad prosequendum “functioned . . . as an arrest warrant” and
thus, because the trial court did not set release conditions at his arraignment, he was
“actually . . . in custody pursuant to” the charged offenses and entitled to credit under
3
A.R.S. § 13-712(B).1 A defendant is entitled to credit for “[a]ll time actually spent in
custody pursuant to an offense until the prisoner is sentenced to imprisonment for such
offense.” § 13-712(B).
¶6 We find no authority directly addressing the issue presented here—whether
an individual is entitled to presentence incarceration credit when transferred pursuant to
court order from ADOC to a county jail to face new charges and the court does not
modify the conditions of release on the new charges. A person in federal custody
transferred to Arizona for criminal proceedings is entitled to credit for time spent in
custody in Arizona against any sentence imposed, even if the person continues to receive
credit for time served against his or her federal sentence. State v. De Passquallo, 140
Ariz. 228, 229, 681 P.2d 380, 381 (1984) (“Petitioner was in jail in Arizona to stand trial
for the crimes he committed in Arizona, and is entitled to credit against his Arizona
sentence for this presentence custody.”); cf. State v. Gourdin, 156 Ariz. 337, 751 P.2d
997 (App. 1988) (defendant not entitled to credit for time spent in federal prison for
federal parole violation triggered by Arizona guilty plea). And an individual may be
entitled to credit when held in custody both due to a new criminal charge and a petition to
revoke probation or other criminal charge. 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
1
Seay cites § 13-709(B), but the statute was renumbered in 2008. 2008 Ariz. Sess.
Laws, ch. 301, § 27. He also incorrectly calculates the number of days between his
transfer to Cochise County and his sentencing, which is 206 days, not the 239 days he
claims.
4
charge); 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”).
¶7 We find no basis to distinguish custody in ADOC from federal custody in
determining whether Seay is entitled to sentencing credit for time spent in the Cochise
County Jail.2 A writ of habeas corpus ad prosequendum is used to “return the accused to
the county where charges have been filed” and is “the equivalent of a request for
temporary custody.” State v. Loera, 165 Ariz. 543, 545-46, 799 P.2d 884, 886-87 (App.
1990). And it may be used to transfer a person from a state facility to a county jail. See
State v. Sheriff of Pima County, 97 Ariz. 42, 43, 396 P.2d 613, 613-14 (1964). Thus,
Seay was in the custody of Cochise County when transferred pursuant to that writ,3 and
he clearly was in custody for the offenses charged in the October 6 indictment. See § 13-
712(B); De Passquallo, 140 Ariz. at 229, 681 P.2d at 381. That ADOC may have
retained some control such that the Cochise County Jail could not simply release him is
not relevant. See De Passquallo, 140 Ariz. at 229, 681 P.2d at 381.
2
We recognize that, in State v. Bridgeforth, this court modified a sentence to
eliminate presentence incarceration time calculated by using the arrest date of an
incarcerated defendant and instead used that defendant’s mandatory release date as a
starting point. 156 Ariz. 58, 60, 750 P.2d 1, 3 (1986). But that defendant was charged
for an offense committed while imprisoned, and nothing in that case suggests the
defendant was transported to a county jail as a result of that charge. We therefore find
Bridgeforth inapplicable here.
3
Seay is incorrect that the writ should have been filed in Maricopa County, where
he was in ADOC custody, instead of in Cochise County. See Palmer v. State, 99 Ariz.
93, 95, 407 P.2d 64, 66 (1965); see also A.R.S. § 31-225.
5
¶8 Moreover, the authority relied on by the trial court in declining to grant
relief does not support that result. The court cited State v. San Miguel, 132 Ariz. 57, 643
P.2d 1027 (App. 1982). There, a defendant was arrested for a charged offense and a
probation revocation based on that offense. Id. at 58, 643 P.2d at 1028. He was released
on his own recognizance on the new offense but held without bond on the probation
violation. Id. We determined on appeal that he was not entitled to presentence credit on
his sentence for the new offense because he had not been confined due to that charge, but
instead “as a result of the petition to revoke” his probation. Id. at 61, 643 P.2d at 1031.
Here, however, Seay never was released on his new charge—no release conditions were
set at his arraignment. See Ariz. R. Crim. P. 4.2(a)(7) (trial court required to
“[d]etermine the conditions of release” at arraignment). Thus, San Miguel does not
support the court’s determination.
¶9 The trial court’s reliance on a case cited in San Miguel, State v. Prevost,
118 Ariz. 100, 574 P.2d 1319 (App. 1977), similarly does not support the court’s ruling.
There, we determined a defendant was not entitled to credit for time spent incarcerated
for a federal offense before the state trial court revoked his release based on the federal
arrest. Id. at 102-03, 574 P.2d at 1321-22. We determined, however, that he could be
entitled to presentence credit for time spent in custody after his release had been revoked
because he had been “confined for both the state and federal charges.”4 Id. at 103-04,
4
At that time, a defendant was not necessarily entitled to presentence incarceration
credit, and whether to award such credit was left to the trial court’s discretion. See San
Miguel, 132 Ariz. at 59, 643 P.2d at 1029.
6
574 P.2d at 1322-23. Here, Seay was held pursuant to both his ADOC prison term and
the new charges in Cochise County and is entitled to credit. See Brooks, 191 Ariz. at
156-57, 953 P.2d at 548-49; Brooks, 161 Ariz. at 181, 777 P.2d at 679.
¶10 For the foregoing reasons, we conclude Seay was entitled to presentence
incarceration credit from October 21, when he was transferred to Cochise County from
ADOC.5 Thus, we grant review and grant relief. We amend the trial court’s sentencing
order to reflect credit for 206 days of presentence incarceration. See Ariz. R. Crim. P.
32.9(f) (appellate court “may issue such orders and grant such relief as it deems
necessary and proper”); see also State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663
(App. 1992) (correcting presentence incarceration credit without remand to trial court).
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
5
We need not address Seay’s related claim of ineffective assistance of counsel.
7