State v. Durazo, 2 CA-CR 2016-0198-PR
| Decision Date | 15 September 2016 |
| Docket Number | No. 2 CA-SA 2016-0030,No. 2 CA-CR 2016-0198-PR,2 CA-CR 2016-0198-PR,2 CA-SA 2016-0030 |
| Parties | THE STATE OF ARIZONA, Respondent, v. SANTINO RAMON DURAZO, Petitioner. SANTINO RAMON DURAZO, Petitioner, v. HON. CHRISTOPHER BROWNING, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and THE STATE OF ARIZONA, Real Party in Interest. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
The Honorable Christopher Browning, Judge
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 7(g), (i).
Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Assistant Attorneys General, Tucson
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.
¶1 Santino Durazo seeks review of the respondent judge's denial of his "Writ of Habeas Corpus and/or Motion Pursuant to Rule 32[, Ariz. R. Crim. P.]" (the "Motion") in which he maintained the Arizona Department of Corrections (ADOC) had erroneously failed to afford him earned release credits pursuant to A.R.S. § 41-1604.07. In a contemporaneously filed petition for special action, he seeks relief from the same ruling, asserting his appellate remedy is unclear due to "the manner in which this issue was raised before and ruled upon by the superior court." On its own motion, this court consolidated the two proceedings.
¶2 We agree that the manner in which Durazo has presented his claims has created some confusion, not only for this court, but perhaps for the respondent judge as well.1 After full review of the arguments and the record, we accept special action jurisdiction, as both Durazo and ADOC have urged, with respect to Durazo's claim that the respondent judge exceeded his authority by "effectively modif[ying] the sentence more than five years after it was imposed" and had become final. As explained below, that claim is contingent on whether his sentence for sexual assault was imposed pursuant to A.R.S. § 13-702(D) and in accordance with his plea agreement, or pursuant to the mandatory flat-time sentencing provision in A.R.S. § 13-1406(B).2 Because we conclude sentence was imposed pursuant to § 13-1406(B), as ADOC maintains, we deny special action relief.
¶3 But Durazo also claims, in the alternative, that he is entitled to specific performance of his plea agreement under the Supreme Court's decision in Santobello v. New York, 404 U.S. 257 (1971). This claim, that his sentence was imposed in violation of his constitutional rights, is properly considered under Rule 32.1(a). Accordingly, we review Durazo's Santobello claim in the context of Rule 32.9 and, for the reasons that follow, we grant relief.
¶4 Pursuant to a plea agreement, Durazo was convicted in March 2011 of one count each of sexual assault, sexual abuse, and kidnapping, and sentenced to concurrent terms of imprisonment, the longest of which is 7.5 years. According to Durazo's plea agreement and the presentence report prepared for the court, the range of sentences available was consistent with that provided in § 13-702(D), the general sentencing statute for first-time felony offenders. Thus, the agreement provided that, for the sexual assault, a class two felony, Durazo would be sentenced within the range of three years, a "Substantial[ly] Mitigated Sentence," and 12.5 years, a "Substantially Aggravated Sentence," with a presumptive term of five years' imprisonment. See § 13-702(D).
¶5 In addition, the plea agreement included the following provision:
If sentenced to prison, the defendant must serve approximately 85 percent of the sentence imposed before (s)he is eligible for release on any basis. Upon completion of the prison sentence, the defendant will be placed on community supervision. The duration of community supervision is one day of community supervision for every seven days of the prison sentence imposed, not actually served. Violation of the terms of community supervision could result in the defendant being required to complete the prison term imposed by the Court.
¶6 Before accepting Durazo's guilty plea, the trial court3 informed him of the above range of sentences for "the sexual assault and the kidnapping," both class two felonies, and then stated,
¶7 In pronouncing judgment, the respondent judge noted the "determination of guilt . . . [was] by way of a plea entered on or about February 4th, 2011" and entered judgments of conviction for "sexual assault, a class two felony, . . . in violation of ARS 13-1406"; "sexual abuse, a class five felony, . . . in violation of ARS 13-1404"; and of "kidnapping, a class two felony, . . . in violation of ARS 13-1304." In imposing sentence, the respondent judge did not identify any specific sentencing statutes, and he did not state Durazo's sentence for sexual assault was a flat-time sentence to be served in full. Nor was there any mention of specific sentencing statutes in the sentencing portions of the court's minute entry. Durazo has not previously sought post-conviction relief pursuant to Rule 32.
¶9 In March 2016, Durazo again wrote to the court, stating that he had attempted to address the matter between April and July 2014, presumably with ADOC, and had been told "this would be resolved," but that ADOC had not yet applied earned release credits to his sentence. He further stated that, if earned release credits were applied, he would be eligible for release near the end of May 2016. He again emphasized that he did not wish to withdraw from his plea, but instead sought a clarification of his sentence, so that ADOC's "miscalculated 'flat-time'" release date could be corrected to reflect "the 85%" sentence imposed by the court.
¶10 Durazo's counsel then filed the Motion alleging ADOC was wrongly denying him "earned release credit[s] of one day for every six days served" pursuant to § 41-1604.07(A).4 Relying on the plea agreement's provision that he "was to serve a minimum of 85 percent" of his sentence, Durazo argued he was entitled to early release credits under that statute. He asked the respondent judge to "either bring [the director of ADOC] before the Court to determine why [he] should not be required to fulfill his duty and thereby release [Durazo] on or about May 16, 2016," or, in the alternative, to reduce Durazo's sentence "by roughly 2.25 years" to provide "the benefit of his bargain reached with the State."
¶11 Rather than respond to Durazo's Motion, the Pima County Attorney's Office deferred to the Arizona Attorney General's Office, which filed a response on behalf of ADOC. In that response, ADOC correctly pointed out that the language Durazo quoted from his plea agreement had not been included in the respondent judge's sentencing minute entry. Because Durazo had "pleaded guilty to a Sexual Assault under A.R.S. § 13-1406," ADOC argued he was ineligible for earned release credits under a mandatory sentencing provision in § 13-1406(B).5 Based on this statutory provision, it maintained the respondent judge had necessarily "sentenced [Durazo] to a flat term of incarceration." It argued Durazo "is not eligible to earn release credits," because § 13-1406(B) limits early release to the "temporary" removal or release authorized by A.R.S. § 31-233(A) or (B).6 And, citing ADOCDepartment Order 1002.09, § 1.1.1.2,7 a rule that precludes eligibility for supervised, discretionary, temporary release under § 31-233 for inmates who "have a conviction for a sex offense," ADOC argued that Durazo's "sentence expiration date, July 2, 2017, remains his only permissible release date."
¶12 Durazo filed a reply maintaining he "was sentenced under the provisions of ARS 13-702," noting the respondent judge had not ordered a "flat time" sentence, and alleging the state apparently was "not willing to stand by . . . part of the bargained for disposition in this case." The following day, Durazo filed a "supplemental reply" in which he asserted the respondent judge had "imposed judgment and sentence in accordance with th[e] plea agreement," and that sentence, albeit illegally lenient under the provisions of § 13-1406(B), had become final and enforceable pursuant to this court...
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