State v. Rushing

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BRANDI LOUISE RUSHING, Appellant.

No. 1 CA-CR 18-0678
FILED 4-18-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-134942-001
The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge David D. Weinzweig and Judge Lawrence F. Winthrop joined.
 STATE v. RUSHING
Decision of the Court

T H U M M A, Chief Judge:

¶1 In this criminal case, the State of Arizona agrees that
defendant Brandi Louise Rushing was entitled to 36 (rather than 34) days
of presentence incarceration credit, the sole issue raised on appeal.

¶2 After a jury trial, Rushing was found guilty of one count of
shoplifting with artifice or device, a class 4 felony. Given Rushing’s prior
criminal history, the superior court sentenced her as a Category One
repetitive offender to a minimum prison term of 1.5 years, awarding her 34
days of presentence incarceration credit. This timely appeal followed.

¶3 Rushing does not challenge her conviction on appeal. Instead,
she seeks a modification of her presentence incarceration to reflect “2 days
[she] spent in custody immediately after her arrest,” meaning her
sentencing order “should therefore be corrected that [she] is entitled to a
total of 36 days of presentence incarceration credit.” The State concedes the
point and “agrees with Rushing that she is entitled to an additional 2 days
of presentence credit for a total of 36 days’ credit.”

¶4 Having considered the briefs on appeal and the relevant
portions of the record, this court accepts the State’s confession of error.
Rushing 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.” Ariz. Rev. Stat. § 13-712(B). To comply with this requirement,
her sentencing orders should have awarded Rushing 36 days of presentence
incarceration credit.

¶5 Accordingly, although Rushing’s conviction is affirmed, her
sentence is modified to reflect that she is entitled to 36 days of presentence
incarceration credit. In all other respects, her sentence is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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