State v. Cecena

• Decision Date: 25 September 2014
• Docket Number: No. 2 CA–CR 2013–0368.,2 CA–CR 2013–0368.
• Citation: 235 Ariz. 623,334 P.3d 1282,696 Ariz. Adv. Rep. 12
• Parties: The STATE of Arizona, Appellee, v. David Soto CECENA, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 623
334 P.3d 1282
696 Ariz. Adv. Rep. 12

The STATE of Arizona, Appellee
v.
David Soto CECENA, Appellant.

No. 2 CA–CR 2013–0368.

Court of Appeals of Arizona, Division 2.

Sept. 25, 2014.

334 P.3d 1283

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Joseph L. Parkhurst, Assistant Attorney General, Tucson, Counsel for Appellee.

Harriette P. Levitt, Tucson, Counsel for Appellant.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, Presiding Judge.

235 Ariz. 624

¶ 1 David Cecena was convicted after a jury trial of one count of continuous sexual abuse of a minor and sentenced to twenty years' imprisonment. On appeal, he argues the trial court erred in refusing to grant him credit for time served during his presentence incarceration in Mexico pursuant to A.R.S. § 13–712(B). For reasons set forth below, we remand this case for further fact finding as to whether his incarceration in Mexico was pursuant to the Arizona charge.

Factual and Procedural Background

¶ 2 We limit our overview to the facts relevant to Cecena's claimed error regarding presentence incarceration credit. On July 7, 2008, Cecena was arrested and later charged with one count of continuous sexual abuse of a child. He was held in the Pima County jail awaiting trial until March 30, 2009, when he was released on bond. He apparently returned shortly thereafter to his native Mexico.

¶ 3 In September 2010, Cecena failed to appear for trial; he was convicted in absentia, and the trial court issued a bench warrant for his arrest. He was extradited from Mexico to the United States on May 31, 2013, and was booked at the Pima County jail that day.

¶ 4 Cecena was sentenced on August 12, 2013. He claimed in the presentence report that he had been apprehended in Mexico on July 13, 2012, and remained in custody there until he was extradited. At the sentencing hearing, he requested credit for the time he had served both in the United States and in Mexico, claiming a total of 662 days. The trial court denied this request, sentencing Cecena to the presumptive term of twenty years and granting 340 days¹ of presentence incarceration credit, representing only the time served in the United States. Cecena timely appealed.

Discussion

¶ 5 Cecena's sole argument is that the trial court improperly denied his request for

235 Ariz. 625

334 P.3d 1284

presentence incarceration credit under A.R.S. § 13–712(B) for time spent incarcerated in Mexico. He maintains the statute requires credit for all presentence incarceration pursuant to an Arizona offense, even if served in a foreign nation.

¶ 6 We review interpretation of statutes de novo. Ariz. Citizens Clean Elections Comm'n v. Brain, 234 Ariz. 322, ¶ 11, 322 P.3d 139, 142 (2014). “[T]he best and most reliable index of a statute's meaning is its language,” State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007), and if that language is clear, then “ ‘we rely on the plain language rather than utilizing other ways of interpreting the statute.’ ” Cornerstone Hosp. of Se. Ariz., LLC v. Marner ex rel. Cnty. of Pima, 231 Ariz. 67, ¶ 11, 290 P.3d 460, 465 (App.2012), quoting Lo v. Lee, 231 Ariz. 531, ¶ 8, 298 P.3d 220, 222 (App.2012).

¶ 7 Section 13–712(B), provides: “All 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 otherwise provided for by this chapter.” In State v. Mahler, our supreme court granted a defendant credit for time served in Nevada pursuant to his Arizona offense. 128 Ariz. 429, 430, 626 P.2d 593, 594 (1981). The court reasoned that as a matter of plain language, the presentence credit statute² referred to “[a]ll time” spent in custody pursuant to an Arizona offense, making no distinction between custody in Arizona or in another jurisdiction. Id. However, this court later clarified that presentence incarceration credit is unavailable for time served based on a charge other than that for which the defendant is being sentenced, because such incarceration is not “pursuant to” the relevant offense. State v. Horrisberger, 133 Ariz. 569, 570, 653 P.2d 26, 27 (App.1982).

¶ 8 No Arizona case has determined whether § 13–712(B) applies to presentence incarceration in another country. Although the prosecutor argued in the trial court that foreign incarceration never provides pretrial credit, on appeal the state now concedes that it does. We agree. Just as the plain language of § 13–712(B) makes no distinction between in-state and out-of-state custody, Mahler, 128 Ariz. at 430, 626 P.2d at 594, neither does it distinguish between domestic and foreign custody. As long as the foreign incarceration is pursuant to the Arizona charge for which he or she is being sentenced, a defendant should be entitled to credit for presentence incarceration in another country just as for such incarceration in another state. A.R.S. § 13–712(B) ; ...