State v. Estell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,

v.

JIMMY EDWARD ESTELL JR., Petitioner.

No. 1 CA-CR 21-0346 PRPC
FILED 4-21-2022

Petition for Review from the Superior Court in Yuma County
No. S1400CR201600826
The Honorable Brandon S. Kinsey, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yuma County Attorney’s Office, Yuma
By Jon R. Smith
Counsel for Respondent

Yuma County Legal Defender’s Office, Yuma
By Zachary John Dumyahn
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Jimmy Estell Jr. petitions this court for review from the
dismissal of his petition for post-conviction relief filed under Arizona Rule
of Criminal Procedure (“Rule”) 33. We have considered the petition for
review and, for the reasons stated, grant review and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 While serving a prison sentence on an unrelated conviction,
Estell pleaded guilty in 2016 to the offense of attempting to promote prison
contraband. The plea agreement stipulated to the sentence of prison for a
term not to exceed the presumptive and that such sentence run
consecutively to the term of imprisonment he was then serving in Maricopa
County Superior Court case number CR2011-117395-001. By statute, any
prison sentence Estell received had to be consecutive. See A.R.S. § 13-711(B)
(requiring a sentence imposed on a current prisoner to run “consecutively
to the undischarged term of imprisonment.”). At the change-of-plea
hearing, Estell concurred with the trial court’s statement that he had agreed
to a consecutive prison term.

¶3 At the start of the sentencing hearing, the trial court stated it
was “inclin[ed] to follow the recommendation contained” in the
presentence report—which urged the court to impose “the presumptive
term of 3.5 years, with credit for 125 days served and that this be served
consecutively to the sentence” Estell was then serving. At Estell’s request,
the court postponed sentencing to consider mitigation.

¶4 After presenting mitigation evidence at a combined
mitigation/sentencing hearing, Estell’s attorney asked the trial court to
impose a less-than-presumptive term, reasoning that “since [Estell] is
presently doing another prison sentence, it is consecutive, and I think that
is significant punishment in and of itself.” The court responded that having
previously “indicated it was inclined to follow the recommendation of the
presentence report writer because it could find no reason to mitigate,” it

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Decision of the Court

“still f[ou]nd no mitigation” after the defense’s presentation. After allowing
Estell to speak, the court stated it had “reviewed the presentence report
prepared in this case” and had “considered the nature and circumstances
of [Estell’s] offense and the law applicable to [his] case.” The court then
pronounced sentence as follows:

It is the judgment of the court that for the previously
mentioned offense the defendant shall serve the presumptive
term of imprisonment of three and a half years in the custody
of the Arizona Department of Corrections. The sentence shall
date from today’s date and the defendant shall receive credit
for 146 days served prior to sentencing.

¶5 The court did not explicitly address the consecutive or
concurrent nature of the sentence imposed. Nor did its written sentencing
order, which merely stated, “This sentence is to date from February 8, 2017
[i.e., the date of sentencing]. The defendant is to be given credit for one
hundred and forty six (146) days served prior to sentencing.”

¶6 More than a year later, the trial court issued an order under
Rule 24.4 “correcting” the sentencing order. See Ariz. R. Crim. P. 24.4 (“The
court on its own or on a party’s motion may, at any time, correct clerical
errors, omissions, and oversights in the record. The court must notify the
parties of any correction.”). The Rule 24.4 order added the following
language to the description of Estell’s sentence quoted in the above
paragraph: “This sentence shall run consecutively to the Maricopa County
case number CR2011-117395-001.”

¶7 Estell opposed the order, contending there was no “clerical
mistake” permitting correction under Rule 24.4 and that his sentence, as
orally imposed and documented in the record, was a concurrent one. In
response, the State urged the court to deny Estell’s objection on the grounds
that his sentence was required by statute and the plea agreement to be
consecutive, the parties acknowledged the sentence would be consecutive,
and the sentence was presumed to be consecutive given the trial court’s
failure to make that designation explicit. The trial court rejected Estell’s
arguments, letting its Rule 24.4 order stand.

¶8 Estell petitioned for post-conviction relief, elaborating on his
position that the trial court lacked authority to modify the sentencing order
because the sentence as originally imposed was concurrent and final. Estell
reasoned that the concurrent nature of the sentence was implied by the trial
court’s (1) statement the sentence would date from the date of sentencing

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and (2) award of presentence incarceration credit. The State responded that
Estell had waived his claim by agreeing not to challenge a consecutive
sentence as part of his plea deal and that the claim failed on the merits, in
any event, because the record showed the court intended to impose a
consecutive sentence. The trial court summarily dismissed Estell’s petition,
occasioning our review.

DISCUSSION

¶9 We review the trial court’s summary denial of post-conviction
relief for an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).
The court did not abuse its discretion by dismissing Estell’s petition here
because we interpret the oral pronouncement of his sentence as imposing a
consecutive term.

¶10 Though the superior court did not explicitly designate the
sentence as consecutive, neither did it explicitly designate a concurrent
term. Thus, the court’s sentencing language is ambiguous because “it is
open to multiple reasonable interpretations.” Chaparro v. Shinn, 248 Ariz.
138, 140, ¶ 9 (2020) (quoting Glazer v. State, 244 Ariz. 612, 614, ¶ 12 (2018)).

¶11 We are unpersuaded that the court’s award of presentence
incarceration credit can only be interpreted as showing an intent to impose
a concurrent sentence. Because Estell was transferred from the custody of
state prison officials to a county detention facility to answer the charges in
this case, he could be entitled to presentence incarceration credit for that
time even if he received a consecutive sentence. See State v. Seay, 232 Ariz.
146, 147–49, ¶¶ 6–7, 10 (App. 2013) (holding a defendant is entitled to
presentence incarceration credit “when transferred pursuant to court order
from ADOC to a county jail to face new charges and the court does not
modify the conditions of release on the new charges”).

¶12 Estell argues the decision in State v. McClure, 189 Ariz. 55
(App. 1997), barred him from receiving credit toward a consecutive
sentence and therefore implies he must have received a concurrent one. In
McClure, we decided that although the defendant was transferred from a
federal prison facility to a county jail to answer state charges, the defendant
was not entitled to presentence incarceration credit toward his state
sentence because the parties stipulated in a plea agreement that the
defendant’s state sentence would be served consecutively to his federal
sentence. Id. at 57. McClure is distinguishable from the facts of Estell’s
situation. In McClure, the defendant was found to have “bargained away”
his entitlement to credit by negotiating for “minimum, concurrent state

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sentences in exchange for serving those sentences consecutively to his
federal sentence,” leaving “nothing left to waive in terms of incarceration
credit.” Id. Estell’s plea deal, by contrast, does not show a waiver of
presentence incarceration credit. Because Estell’s sentence was statutorily
required to be consecutive, it was not an issue subject to negotiation as in
McClure. And in any event, the record contains no evidence that the parties
considered waiver of presentence incarceration credit as part of the plea
negotiations at issue here.

¶13 Estell’s argument that the trial court necessarily imposed a
concurrent sentence by stating it would “date from today’s date” is also
unpersuasive. It is true such language ordinarily reflects imposition of a
concurrent term. However, it is not necessarily inconsistent with an intent
to impose a consecutive term. See Valenzuela v. State ex rel. Eyman, 14 Ariz.
App. 374 (1971) (holding that the court’s “intent that consecutive sentences
be served [wa]s manifested,” though “not a model of clarity,” where the
court stated the sentences were “to run consecutively and to commence as
of this date”); but see McGilbry v. State ex rel. Eyman, 5 Ariz. App. 264 (1967)
(holding that the pronouncement of a sentence “[t]o date from this day, said
sentence to run consecutively” with a second sentence, should be treated as
concurrent based on authority that sentences were presumed to be
concurrent unless “the contrary clearly appears, and any reasonable doubt
or ambiguity on that point is resolved in favor of the defendant”). Here,
Estell’s sentence was required to run consecutively by operation of a
statute. See A.R.S. § 13-711(B). Section 13-711(B) is self-effectuating. “Trial
judges are presumed to know the law and to apply it in making their
decisions.” State v. Williams, 220 Ariz. 331, 334, ¶ 9 (App. 2008) (citation
omitted). Given the requirements of the statute and this presumption, it
does not follow that the court necessarily intended to impose a concurrent
sentence because it described Estell’s sentence as “dat[ing] from today’s
date.”

¶14 Where sentencing language “is subject to more than one
reasonable interpretation, we will resolve the ambiguity by examining
other factors, including the surrounding circumstances.” Chaparro, 248
Ariz. at 140, ¶ 9. Here, the court made statements at the change-of-plea and
sentencing/mitigation hearings recognizing the plea agreement required a
consecutive sentence and conveying it would follow the recommendation
of the presentence report—which called for a consecutive sentence. At no
point did the court or any party contemplate that a concurrent sentence
might be imposed or that the court might reject any condition of the plea
agreement. Furthermore, Rule 26.13 at that time stated that “[s]eparate
sentences of imprisonment imposed on a defendant for 2 or more offenses,

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whether they are charged in the same indictment or information, shall run
consecutively unless the judge expressly directs otherwise.” A comment to
Rule 26.13 provided it was intended to apply to “a sentence imposed while
the defendant is serving a sentence in Arizona or elsewhere for another
offense.” This record indicates the court intended to impose a consecutive
term. See State v. Bowles, 173 Ariz. 214 (App. 1992) (holding that the trial
court intended to impose a consecutive sentence where, despite describing
the sentence as “concurrent” during its oral pronouncement, the court
“clearly stated at both the change of plea hearing and the sentencing
hearing that the sentence was to be consecutive per the plea agreement,”
and “[a]t no time did she state that she was not going to follow the plea
agreement”).

¶15 Rule 24.4 may not be used “to cause an order or judgment that
was never previously made or rendered to be placed upon the record of the
court.” State v. Pyeatt, 135 Ariz. 141, 143 (App. 1982). The rule does,
however, “allow[ ] the record to be corrected to reflect the truth.” State v.
Johnson, 113 Ariz. 506, 509 (1976). Because the trial court’s Rule 24.4 order
“reflect[ed] the truth of the intention of the court at the time” it pronounced
sentence, it “was proper under these circumstances.” Id.

CONCLUSION

¶16 We grant review and deny relief.

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

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