State v. Esposito

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

ROBERT DAVID LUIS ESPOSITO, Appellee.

No. 1 CA-CR 22-0162
FILED 2-9-2023

Appeal from the Superior Court in Maricopa County
No. CR2018-155681-001
The Honorable Anne Phillips, Judge Pro Tempore

REVERSED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.

M c M U R D I E, Judge:

¶1 The State appeals from the superior court’s order granting
Robert David Luis Esposito 413 days of incarceration credit toward his state
sentence for time spent in federal custody. The State argues that the court
erred by applying the credit toward Esposito’s state prison term because
the incarceration arose from a separate federal conviction.

¶2 We agree with the State. Because credit toward an Arizona
sentence can only be awarded for time spent in custody based on that
conviction, we vacate the presentence incarceration credit and remand for
a correct determination of the applicable credit.

FACTS AND PROCEDURAL BACKGROUND

¶3 Esposito pled guilty to one count of forgery and was placed
on a two-year probation term beginning in August 2019. During that term,
Esposito was arrested under federal authority and charged with drug
possession with the intent to distribute. Based on the federal charges, the
State petitioned to revoke his probation on February 16, 2021.

¶4 Because Esposito was in federal custody, the State placed a
hold on Esposito on February 18, 2021. One month later, the State petitioned
the superior court for a writ of habeas corpus ad prosequendum, asking the
federal government to order Esposito’s temporary release from federal
custody so that he could appear before the superior court. The court
granted the writ on March 11, 2021.

¶5 Despite requesting the authority to bring Esposito before the
superior court in March 2021, the State did not obtain Esposito’s transfer to
state custody until March 31, 2022. On April 7, Esposito admitted he
violated his probation, and the court revoked Esposito’s probation and
sentenced him to 2.5 years in prison.

¶6 The court next considered incarceration credit. The State
argued that Esposito qualified for seven days of presentence incarceration

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credit, counting the days between his March 31 return to state custody
through the April 7 disposition. Esposito countered that he had a right to
credit for the time spent in federal custody while the State’s hold was in
place beginning on February 18, 2021, totaling 413 days.

¶7 The superior court disagreed with the State’s calculation and
granted Esposito 413 days of presentence incarceration credit “based on the
fact that there was a writ of habeas corpus” on Esposito. The State appealed,
and we have jurisdiction under Article 6, Section 9 of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(5).

DISCUSSION

¶8 We review the superior court’s ruling on presentence
incarceration credit de novo. State v. Bomar, 199 Ariz. 472, 475, ¶ 5 (App.
2001).

¶9 Under A.R.S. § 13-712(B), “[a]ll time actually spent in custody
pursuant to an offense until the prisoner is sentenced to imprisonment for
such offense shall be credited against the term of imprisonment.” Esposito
was in custody for 413 days before the disposition hearing. But because
Esposito was not “in custody pursuant to” the Arizona sentence, the State
argues the superior court erred by applying that time to his sentence. See id.
(emphasis added).

¶10 We have consistently held that “presentence incarceration
credit is unavailable for time served based on a charge other than that for
which the defendant is being sentenced, because such incarceration is not
‘pursuant to’ the relevant offense.” State v. Cecena, 235 Ariz. 623, 625, ¶ 7
(App. 2014). A writ of habeas corpus ad prosequendum is used “to return the
accused to the county where charges have been filed” and is “the equivalent
of a request for temporary custody.” State v. Loera, 165 Ariz. 543, 545–46
(App. 1990); see also State v. Kaipio, 246 Ariz. 134, 137, ¶ 9 (App. 2019). Even
when, as here, an Arizona charge causes a hold on a defendant incarcerated
in another jurisdiction, incarceration credit does not apply to time spent in
custody unless the Arizona charge is the but-for cause of the incarceration.
See Cecena, 235 Ariz. at 626, ¶ 10; State v. Horrisberger, 133 Ariz. 569, 570
(App. 1982); accord Thomas v. Whalen, 962 F.2d 358, 361, n.3 (4th Cir. 1992)
(“A prisoner is not even in custody for purposes of [sentence computation]
when he appears in federal court pursuant to a writ ad prosequendum; he is
merely ‘on loan’ to federal authorities.”) (emphasis added). Thus, the
Arizona hold on Esposito does not qualify him for incarceration credit
because he would have been incarcerated under federal charges regardless.

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¶11 Still, Esposito maintains that the credit should stand because
“[t]he State was aware that Esposito was in federal custody” and, despite
obtaining a writ of habeas corpus ad prosequendum, “the State delayed for over
1 year with no reason given.” Esposito argues that the State’s delay
prejudiced him by eliminating the opportunity for the Arizona and federal
prison sentences to run concurrently.

¶12 Esposito relies on State v. Adler, 189 Ariz. 280 (1997), for the
proposition that “[w]hen a Petition to Revoke probation is filed against a
defendant and the State knows [he is] in federal custody by filing a hold,
due process requires granting full presentence incarceration credit.”
According to Esposito, Adler directs that “[f]ailure to bring such a person to
court does not vacate the revocation proceedings but does require that the
defendant receive concurrent sentences.”

¶13 But Esposito misstates Adler’s conclusion. The Adler court did
not direct the superior court to apply presentence incarceration credit. See
189 Ariz. at 285. Instead, in Adler, the supreme court directed that the
probation revocation petition be dismissed. Id. Thus, while unreasonable
delay may be grounds to bar the State from revoking probation, nothing in
Adler permits a court to award presentence credit outside the boundaries of
A.R.S. § 13-712.

¶14 Even so, we will not consider dismissing the probation
revocation petition because Esposito has not made such a request.1 And we
cannot assess the reasonableness of the delay, as the record is silent on what
caused the delay from when the court granted the writ until Esposito was
brought to Maricopa County. We note that when a court issues a writ, it is
addressed to the executive branch. Velazquez v. Myers, 1 CA-SA 17-0298,
2018 WL 326515, at *3, ¶ 16 (Ariz. App. Jan. 9, 2018) (mem. decision). When
a state court issues a writ, the federal Bureau of Prisons considers it. See 28
C.F.R. § 527.30. Still, the warden has the discretion to reject the state’s writ
and “shall authorize transfer only when satisfied that the inmate’s
appearance is necessary, that state and local arrangements are satisfactory,
that the safety or other interests of the inmate . . . are not seriously

1 If, as in Adler, the delay in prosecution by the State was
unreasonable such that it infringed on Esposito’s right to due process, he
may make the argument in a petition for post-conviction relief. See Ariz. R.
Crim. P. 33.1(a).

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jeopardized, and that federal interests . . . will not be interfered with, or
harmed.” 28 C.F.R. § 527.31(b).

¶15 Thus, because the Arizona hold was not the but-for cause of
Esposito’s incarceration while he was in federal custody, we conclude that
the superior court erred by awarding Esposito presentence incarceration
credit for those days.

CONCLUSION

¶16 We reverse the award of incarceration credit and remand for
a correct calculation of the time to be credited.

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

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