Tohono O'odham Nation v. Frank, (2023)
| Decision Date | 08 May 2023 |
| Docket Number | 2010-1764CR |
| Parties | TOHONO O'ODHAM NATION, Plaintiff v. Glen Frank DOB: 12/31/88 Defendant |
| Court | Tohono O'odham Court of Appeals |
[] Set for:____
[] The following charges are dismissed:____
([])with prejudice ([]) without prejudice
[] Presentence Report Requested.
IT IS FURTHER ORDERED that the Defendant:
[] Pay a fine of $____. ([]) Suspended ([]) Fine Agreement allowed
Pay $____ Per month beginning____until fine is paid in full.
[] Shall complete ____hours of community service by:
([]) Shall enroll in:_____
Counseling by: _____
And shall show proof of completion to Court by_____
([]) Defendant not eligible for parole/work credit during first days.
([]) Defendant eligible for work release from____ __m to____ __ m.
([]) Defendant may drive a motor vehicle between the hours of____ __m and ____ __m.
AND THAT: Bond in the amount of: $_____ is hereby.
([]) exonerated ([]) converted ([]) forfeited ([]) All processing fees be paid by
[] Postage = $0.32
[] Certified Mail = $2.45
[] Refund BOND in the amount of $_____
([]) Issue Bench Warrant ([]) Quash Bench Warrant ([]) Conditions:
ADDITIONAL ORDERS: _____
Continuation Order
Nation v. Glen Frank
The Nation filed a motion to revoke probation seeking to impose all the suspended time. The Defendant Hied a motion for new trial because the sentences did not comply with the Indian Civil Rights Act ("ICRA"), which the Court granted in part and denied in part. Thus, the Court amended the sentences to ensure ICRA compliance. The Court then held this probation revocation hearing.
The parties agree that there is a substantive basis for the probation revocation. The parties also agree that the proper sentence to impose is the amended ICRA-compliant sentences, and the parties agree to the amount of community service hours remaining. The Court finds that the Defendant violated his probation, and the Court imposes the following sentences:
The parties, however, disagree on the calculations for credit for lime served, and if the sentences should run concurrent or consecutive to each other.
The Nation asserts that the Defendant should only receive credit for lime served since he was taken into custody on these cases. The Defendant argues that he should receive credit for time served that happened on other, unrelated cases where he served jail lime, but the appellate court ultimately overturned the conviction.
Regarding credit for lime served, the code provides: "The Court may. in its discretion, give full credit towards any sentence ordered of any time spent in confinement prior to arraignment of final commitment in connection with the same offense." 7 T.O.N. § 1.12.
As a general rule, the Court looks to the plain language of the Code because it is the best evidence of the Council's intent. See Nation v. Delores, 2 TOR3d 26, 28 (Trial Ct., 1997)(citing related Arizona cases); Zamora v Reinstein, 185 Ariz. 272, 275. 915 P.2d 1227, 1230 (1996). Also, when possible, the Court interprets statutory language in a way that gives meaning to each word and clause, and avoids making any part of a statute superfluous, contradictory, void, or insignificant. See Williams v. Chukut Kuk District, 2 TOR3d 57, 58 (Trial Ct. 1999)(citing related Arizona cases); Nation v. Gilmore, 1 TOR3d 111, 111-113 (Trial Ct., 1994) (same).
The term "arraignment of final commitment'' is not defined, and the Court was unable to find a definition in any published statute, case, or treatise. "Arraignment" means: "The initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea." Black's Law Dictionary (10th ed. 2014). But "final commitment" as used in § 1.12 means: "The order directing an officer to take a person to a penal or menial institution.'' Commitment 10. Black's Law Dictionary (10th ed. 2014). When read together and in context of § 1.12. the term "arraignment of final commitment" means final judgment as reading it as arraignment would prevent the Court from giving a Defendant credit for lime served during the pretrial process. [1] See State ex rd. Flournoy v. Mangum, 113 Ariz. 151, 152, 548 P.2d 1148, 1149 (1976) ( that Courts interpret statutes to avoid absurd results); see also Wade R. Habeeb, Annotation, Right to credit for lime spent in custody prior to trial or sentence, 77 A.L.R.3d 182 (Orig. Pub. 1977) (discussing that credit for lime served allows Defendants, who are held during the pretrial process, to have the lime applied to their sentence).
With this definition, a plain reading § 1.12 provides that credit for time served is discretionary. See H. H. Henry, Annotation, Withdrawal. forfeiture. modification, or denial of good-time allowance to prisoner, 95 A.L.R.2d 1265 (Orig. Pub. 1965) (surveying cases where Court did not allow credit for time
served). In its discretion, the Court may apply some or all of the time to a sentence. 7 T.O.N. §1.12 () (emphasis added). Moreover, §1.12 provides that credit for lime served applies to lime served in custody before the Court issued a final judgment. Id. () (emphasis added). Finally, the Court must apply the time served to a sentence that is related to the offense that the defendant was held on. Id () (emphasis added).
Here the credit for lime served that the Defendant is trying lo use in this case is not connected with the offenses in this case. For example, the conduct in this case happened on a different date and involved different victims. Another jurisdiction addressing a similar issue concluded that credit for lime served applies lo offenses arising from the same criminal conduct. See Tittle v. State, 169 Ariz. 8, 816 P.2d 267 (App. 1991) (discussing that credit for time served applies lo offenses that arose from the same criminal conduct).
Therefore, the Court denies the Defendant's request. Based on § 1.12. the Court orders that the Defendant is to receive credit for lime served since he has been in custody in this case.
Concurrent or Consecutive time
The Nation argues that the sentences should run consecutively lo each other. But the Defendant urges the Court to have the sentences run concurrently.
During plea agreement negotiations, the parties are free to negotiate if jail lime will run consecutively or concurrently. If the Court does not specify that the sentence runs concurrently, then the sentences run consecutively. See Rule 1(c). T.O. R. Gen. Prac. (); Rule 26.13. Ariz. R. Crim. Pro. (). Here, the consolidated plea agreement provides:
(emphasis in original).
Based on the plea agreement and the Court's order adopting the plea agreement, the suspended 930 days run consecutively for three reasons. First, the days are...
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