State v. Reynolds

• Decision Date: 26 February 1991
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Reynolds, 168 Ariz. 580, 816 P.2d 237 (Ariz. App. 1991)
• Parties: STATE of Arizona, Appellee, v. Brian Keith REYNOLDS, Appellant. 89-612.
• Court: Arizona Court of Appeals

Page 237

816 P.2d 237

168 Ariz. 580

STATE of Arizona, Appellee, v. Brian Keith REYNOLDS, Appellant.

No. 1 CA-CR 89-612.

Court of Appeals of Arizona Division 1, Department D.

Feb. 26, 1991.

Review Granted Sept. 24, 1991.

Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, for appellant.

OPINION

KLEINSCHMIDT, Judge.

The issue in this case is whether time spent in a drug rehabilitation program as a condition of probation is time spent "in custody" within the meaning of the statute which mandates credit against a sentence of imprisonment for presentence incarceration. We hold that when a defendant is confined in such a program under conditions which the trial court finds are as onerous and as restrictive on movement and conduct as those a defendant would experience if he were in jail, a defendant is entitled to credit for such time if he is later sentenced to imprisonment.

FACTS

The defendant pled guilty to attempted sale of narcotic drugs and was placed on probation for five years. He violated probation and was reinstated on intensive probation. He violated probation again and was again reinstated on intensive probation on condition that he participate in the New Arizona Family, a residential drug treatment program. The defendant again violated probation by failing to successfully complete the drug rehabilitation program. He admitted his failure and probation was revoked. He was sentenced to a mitigated term of imprisonment of 3.75 years. His request that he receive credit against his sentence for the 297 days that he spent in the New Arizona Family was denied. It is from this denial that he appeals.

At the disposition hearing at which the defendant was sentenced to prison, he and a drug counselor described the regimen that participants in the New Arizona Family were required to follow. The defendant was required to rise daily at 6:00 a.m. to attend to his personal grooming and clean his room. At 7:00 a.m., he attended roll call and a half hour later ate breakfast. From 8:00 to 9:00 a.m., Monday through Saturday, the defendant was required to help clean the facility compound. From 9:20 to 10:00 a.m., he attended a meeting at which matters of concern to the program were discussed. From 10:30 until 11:30 a.m., the defendant attended a group drug counseling session.

Lunch was scheduled from noon to 1:00 p.m., and the defendant then, on Tuesdays, attended a counseling session from 1:30 to 3:30 p.m. On Fridays, he attended small group sessions during this period and at other times attended individual counseling sessions.

Each day at 6:00 p.m., a general meeting of residents lasted from one to two hours. This was followed by yet another group meeting. The defendant had free time between 9:00 and 10:00 p.m., when he was required to go to bed.

During the periods between these activities, the defendant had work assignments, such as kitchen duty. He was also required to read and report on books on drug abuse and to study for his general equivalency diploma.

For the first thirty days of the program, the defendant was not allowed any contact with people outside the New Arizona Family. The only outside contacts allowed thereafter were for such things as doctor's appointments and court appearances. Contact with his own family members was minimal.

The defendant, who had considerable experience with incarceration, testified that his time spent in the rehabilitation program was much more difficult than jail. The trial judge apparently accepted this assessment but nevertheless denied the request for credit. She said:

And, I do not find any current case law in the State of Arizona which would ... support giving you credit for that time in the New Arizona Family, even though I agree it probably was tougher and stricter in many ways than your county jail time was.

THE DEFENDANT IS ENTITLED TO CREDIT

We acknowledge at the outset that there is Arizona case law at odds with our conclusion, and there is a split of authority among other jurisdictions on this issue. We first discuss the reasons for our decision before turning our attention to the contrary authority.

The question turns on the construction to be placed on A.R.S. section 13-709(B). That statute provides:

All time actually spent in custody pursuant to an offense until a prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter.

We must, if possible, determine what the legislature intended when it enacted this statute. Presumably, one of the legislature's purposes in enacting the statute was to afford equal protection of the law to those who must remain in jail pending trial because they are unable to post bond. See State v. Gray, 122 Ariz. 445, 449, 595 P.2d 990, 994 (1979); State v. Mathieu, 165 Ariz. 20, 795 P.2d 1303 (App.1990). Too, an argument has been made that proscriptions against double punishment mandate such credit. See Sentencing--Granting Credit For Time Served, 13 Ariz.L.Rev. 402, 408-9 (1971). Most important, we assume that the animus for the statute was simple fairness. We see nothing in the wording of the statute itself that throws much light on what the legislature might have intended regarding time spent in a program like the New Arizona Family. We look then to common sense, reason, and fairness as we perceive these qualities to bear on the question.

We conclude that because the defendant was in custody pursuant to court order, compelled to live under conditions that were as confining and restrictive as those he would have been subjected to in jail, he ought to receive credit for that time against his sentence. We find nothing that would suggest the legislature intended otherwise. The dissent observes that when the legislature has intended a defendant to receive credit for time spent in custody in various circumstances, it has enacted appropriate legislation to effect that purpose. This is not to say, however, that the legislature has foreseen every circumstance that should properly give rise to credit for presentence incarceration.

Our decision is supported by authority from other jurisdictions. For example, in Lock v. State, 609 P.2d 539 (Alaska 1980), the Supreme Court of Alaska decided a case identical to this one in all important respects. The Alaska statute, section 11.05.040(a), provided in part:

A person who is sentenced shall receive credit toward service of his sentence for time spent in custody pending trial or sentencing, or appeal, if that detention was in connection with the offense for which sentence was imposed.

Lock, 609 P.2d at 542.

In Lock, the defendant had, as a condition of probation, been ordered to participate in two different residential rehabilitation programs. When his probation was revoked, the trial judge refused to allow him credit on his sentence for the time he had spent in those programs. The Supreme Court of Alaska reversed, saying:

We think that under certain circumstances the restraints imposed as conditions of probation may be so substantial that the defendant is, in legal effect, 'in custody' although on probation. Confinement need not be penal in nature to be custodial. McNeil v. Director of Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972).

Lock, 609 P.2d at 543.

The court then went on to list examples of how confinement in institutions like mental hospitals and halfway houses has been construed as time spent "in custody" for purposes of credit towards a sentence and said:

We conclude that upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one's freedom of movement and behavior.

Id. at 545.

For cases which reach similar conclusions, see People v. Stange, 91 Mich.App. 596, 283 N.W.2d 806 (1979); Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979). For a review of the cases on both sides of the question, see Annot., 24 A.L.R. 4th 789 (1983).

CONTRARY AUTHORITY

The only Arizona case directly on point is against the defendant. In State v. Vasquez, 153 Ariz. 320, 736 P.2d 803 (App.1987), Division Two of this court held that time spent in Amity House, a residential treatment facility, was not spent "in custody" within the meaning of A.R.S. section 13-709(B). The court compared that statute with A.R.S. section 13-903(E), ¹ which requires that defendants who have been incarcerated in a jail as a condition of probation shall receive credit for such incarceration against a sentence imposed later. It rejected the suggestion that the statutes were ambiguous and concluded that time spent "in custody" meant time spent in the actual or constructive control of jail or prison officials. In so doing, the court considered the earlier decision of the Arizona Supreme Court in Green v. Superior Court, 132 Ariz. 468, 647 P.2d 166 (1982), which held that credit must be allowed for time a defendant spends on work furlough or authorized release if the defendant is in such status while serving a jail sentence. In citing Green, Division Two stressed that in such a circumstance, the person on work furlough or authorized release was still under the control of jail officials.

The appellate court went on to say, citing a Florida decision, that there is a "key conceptual difference" between structured rehabilitation and incarceration and added that it believed that denying credit for time spent in a rehabilitative program will encourage probationers to abide by the rules of the program and adhere to the terms of probation. Vasquez, 153 Ariz. at 322, 736 P.2d at 805.

Another recent Arizona case from this court, which is also against the defendant's...