State v. Cutrone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDON CLOWARD CUTRONE, Petitioner.

No. 1 CA-CR 22-0280 PRPC
FILED 2-23-2023

Petition for Review from the Superior Court in Maricopa County
No. CR2002-097157
The Honorable Christine E. Mulleneaux, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Respondent

Maricopa County Legal Advocate’s Office, Phoenix
By Kyle Kinkead
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 Brandon Cutrone petitions for review of the summary
dismissal of his petition for post-conviction relief, which asserted claims for
presentence incarceration credit and ineffective assistance of counsel (IAC).
See Ariz. R. Crim. P. 33. Having considered the petition for review, this
court grants review but denies relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2002, Cutrone pled guilty to two counts of sexual abuse and
one count of attempted child molestation committed in Maricopa County.
After serving a four-year prison term for one sexual abuse conviction,
Cutrone began lifetime probation on the other two convictions. He violated
probation four times, and each time was reinstated on probation.

¶3 In September 2018, Cutrone was arrested on drug charges in
Gila County. Two days later, the State petitioned to revoke his probation in
the Maricopa County case based on the charges in Gila County and other
alleged violations. Because the Maricopa County petition incorrectly stated
that Cutrone had been arrested, no detainer was placed on him in Gila
County.

¶4 In October 2019, while in custody in Gila County, Cutrone
filed a motion in Maricopa County to: (1) be transported to Maricopa
County on the probation violation petition; (2) have counsel appointed to
represent him in Maricopa County and (3) have bond determined. The
Maricopa County court denied his motion because there were “no open
cases pending.”

¶5 In November 2019, the State filed a new petition to revoke
Cutrone’s probation in Maricopa County, this time seeking an arrest
warrant. The Maricopa County court dismissed the September 2018 petition
to revoke, remarking that it had been “filed incorrectly” and that the State

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should have filed a petition seeking an arrest warrant “to begin the
probation violation process.”

¶6 Cutrone pled guilty in Gila County to possessing a dangerous
drug for sale and, on June 1, 2020, was sentenced to nine years in prison,
with 619 days of presentence incarceration credit. The sentence was ordered
to run concurrently with any sentence imposed in Maricopa County.

¶7 Cutrone was then transported to Maricopa County where he
admitted to violating probation by committing a new crime. The Maricopa
County court revoked probation and sentenced him to five years in prison
for sexual abuse and ten years in prison for attempted child molestation.
The sentences were ordered to run concurrently with each other and with
the sentence in the Gila County. The Maricopa County court awarded
Cutrone 547 days of presentence incarceration credit on the sexual abuse
conviction, and 729 days of credit on the attempted child molestation
conviction, recognizing he had previously served six months in jail as a
condition of probation on that count. Those credits included credit from the
November 2019 date when the petition to revoke probation with warrant
was filed until the date Cutrone was sentenced.

¶8 Cutrone timely filed for post-conviction relief, claiming
another 427 days of presentence incarceration credit, consisting of the
September 2018 date when the State filed the warrantless petition to revoke
through the November 2019 date when the State filed the petition with the
request for a warrant. See Ariz. R. Crim. P. 33.1(c); A.R.S. § 13-712(B). He
contended that he would have received credit for that period had the State
filed the correct petition and that depriving him of credit solely based on
the State’s mistake violated his due process and equal protection rights. See
Ariz. R. Crim. P. 33.1(a); U.S. Const. amend. XIV; Ariz. Const. art. 2, §§ 4,
13. Cutrone also asserted IAC, arguing his attorneys failed to properly
argue that he receive credit. See Ariz. R. Crim. P. 33.1(a). The court
summarily dismissed Cutrone’s claims. This court has jurisdiction to
review that decision under Ariz. R. Crim. P. 33.16 and A.R.S. § 13-4239(C).

DISCUSSION

¶9 “All 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.” A.R.S. § 13-712(B). The
defendant has the burden to establish a right to credit. State v. Cecena, 235
Ariz. 623, 625–26 ¶ 10 (App. 2014). This court reviews the denial of post-
conviction relief for an abuse of discretion, State v. Seay, 232 Ariz. 146, 147

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¶1 (App. 2013), but reviews the calculation of presentence incarceration
credit and questions of statutory interpretation de novo, State v. Lambright, 243 Ariz. 244, 249 ¶ 9 (App. 2017).

¶10 Cutrone has not shown that the superior court abused its
discretion in denying his petition because he has shown no right to more
presentence incarceration credit. Cutrone’s argument that he would have
received credit had the State petitioned to revoke seeking a warrant in
September 2018 presupposes that his right to credit hinged on issuance of
the warrant. But even though the court, without objection by the State,
awarded him credit from the November 2019 date that the warrant issued,
such award appears to conflict with prior decision. When a defendant is in
custody on one offense and a hold is placed on the defendant for a different
charge, the defendant has no right to credit for the second charge based
only on the issuance of the hold. See State v. Horrisberger, 133 Ariz. 569, 570
(App. 1982) (reasoning that if a defendant cannot satisfy the release
conditions for the first offense, the hold for the second offense “never
[comes] into play” and the defendant cannot show “that his custody was
time spent ‘pursuant to’ his [second] offense”); see also Cecena, 235 Ariz. at
626 ¶ 10 (to receive credit for custodial time in another jurisdiction, the
defendant must show that the offense for which credit is sought was a “but
for” cause of such custody).

¶11 Even assuming credit was correctly awarded from the date
the petition seeking a warrant was filed, Cutrone has not established a right
to credit from the date that the warrantless petition was filed. A defendant
has a right to credit for “[a]ll time actually spent in custody pursuant to an
offense.” A.R.S. § 13-712(B). Because no warrant issued in the Maricopa
County case until November 2019, Cutrone’s custody in Gila County before
that date was not “time actually spent in custody” for the Maricopa County
case. That the State could have sought a warrant for his arrest at an earlier
date does not entitle him to credit from that earlier date under A.R.S. § 13-
712(B).

¶12 Cutrone correctly notes that courts have awarded equal
presentence incarceration credit toward concurrent sentences. See, e.g., State
v. Cruz-Mata, 138 Ariz. 370, 374–76 (1983). But imposition of concurrent
sentences does not entitle a defendant to receive equal credit. The defendant
must still show that he or she was held in presentence custody “pursuant
to” each offense. In Cruz-Mata, for example, the defendant received
concurrent sentences for offenses that were committed on the same
occasion and charged in the same case. See id. at 371–72 (felony murder and
armed robbery). In State v. Brooks, the defendant received equal credit for

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concurrent sentences for a probation violation and a new offense based on
an express finding that the defendant was held “in custody on both
warrants.” 161 Ariz. 177, 181 (App. 1989) (emphasis added).

¶13 Cutrone’s situation, by contrast, is closer to State v. San Miguel, 132 Ariz. 57 (App. 1982). There, the defendant received concurrent
sentences for trafficking stolen property and a probation violation triggered
by the trafficking charge. Id. at 58. The defendant was arrested on the same
date for both offenses, but he was released on the trafficking charge while
being held without bond on the petition to revoke probation. Id. The
defendant argued that because the trafficking charge was “the only basis
on which he was being held on the petition to revoke probation,” he should
receive credit toward the trafficking sentence despite being “technically”
released on that count. Id. at 60. This court rejected that argument,
reasoning that statute was “clear” that defendant’s release status on the
trafficking count meant he was not “actually . . . in custody pursuant to”
that charge. Id. at 60–61. The same analysis applies here. Because Cutrone
was not held on the probation violation charge during the time that the
warrantless petition to revoke was in effect, A.R.S. § 13-712(B) does not
entitle him to credit for that time.

¶14 Given the plain language of A.R.S. § 13-712(B), Cutrone
argues due process and equal protection require a different result. While
equal protection dictates that a defendant unable to make bond receive
credit for presentence custody, see State v. Sutton, 21 Ariz. App. 550 (1974),
Cutrone was not treated differently here because of his inability to make
bond. Cutrone posits that had he “been wealthier and posted bond on the
Gila County matter, he would not have been deprived of the 427 days of
custody that he currently stands deprived of.” But Cutrone has not been
deprived of those days because they were credited toward his sentence in
the Gila County case. Nor does Cutrone show that the delay in issuing an
arrest warrant violated his due process rights. See State v. Lacy, 187 Ariz.
340, 346 (1996) (due process violation based on preindictment delay
requires “proof of an intentional delay for strategic or harassment
purposes”). And Cutrone had no right to be arrested on any particular date.
See Hoffa v. United States, 385 U.S. 293, 310 (1966) (“There is no constitutional
right to be arrested.”); State v. Monaco, 207 Ariz. 75, 80–81 ¶ 17–18 (App.
2004) (defendant “had no individual right to be arrested after [his] first
narcotics sale“ even though an earlier arrest might have led to a lighter
punishment).

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¶15 Nor has Cutrone shown the superior court abused its
discretion by denying his IAC claims. A defendant establishes an IAC claim
by showing both “that counsel’s conduct fell below an objective standard
of reasonableness and that he was prejudiced thereby.” State v. Bigger, 251
Ariz. 402, 407 ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687–
88 (1984)). To receive an evidentiary hearing, the defendant must allege
facts that, “if true, would probably have changed the verdict or sentence.”
Bigger, 251 Ariz. at 407 ¶ 9 (quoting State v. Amaral, 239 Ariz. 217, 220 ¶ 11
(2016)). Given the application of A.R.S. § 13-712(B) discussed above,
Cutrone has not shown that he probably would have received more credit
had defense counsel tried to get a new petition to revoke filed, or advocated
for more credit at the sentencing hearing.

CONCLUSION

¶16 For these reasons, this court accepts review but denies relief.

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

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