State v. Harris

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASON LEE HARRIS, Petitioner.

No. 1 CA-CR 24-0416 PRPC
FILED 01-30-2025

Appeal from the Superior Court in Maricopa County
No. CR2023-119881-001
The Honorable Jonathan Simon, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Jason Lee Harris, Buckeye
Petitioner

Jason B. Easterday, Phoenix
Maricopa County Attorney’s Office
Counsel for Respondent
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Jason Harris petitions this court to review the superior court’s
order denying his petition for post-conviction relief (“PCR”), which was
filed under Arizona Rule of Criminal Procedure (“Rule”) 33.1(d). We grant
review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2023, police officers observed Harris sitting between two
closed businesses with visible “No Trespassing” signs. Next to Harris was
a glass pipe with a white, powdery substance and multiple lighters. Police
arrested and searched Harris, locating two bags of methamphetamine in his
sock. The State charged Harris with possession or use of a dangerous drug
as a class 4 felony and possession or use of drug paraphernalia as a class 6
felony. Harris waived his right to a preliminary hearing and pled guilty to
possession or use of a dangerous drug as a class 4 felony. Under the plea
agreement terms, Harris agreed to serve 2.5 years’ imprisonment, and the
State agreed to dismiss count 2 and the alleged sentencing enhancements.
The court accepted the plea agreement and sentenced Harris to 2.5 years’
imprisonment with credit for 58 days’ presentence incarceration.

¶3 Harris filed a pro se notice of post-conviction relief. The court
appointed Harris counsel, but the appointed counsel could not identify any
claims for relief. Harris then filed a pro se PCR petition.

¶4 In his petition, Harris alleged that he should receive drug
possession earned release credits under Arizona Revised Statutes (“A.R.S.”)
§ 41-1604.07(B)(1), 3 days of credit for every 7 days served. The State
responded that the petition did not include evidence that Harris had
completed a prison drug program that would qualify him for the credit.
Harris replied and attached evidence that the Department of Corrections
(“DOC”) recognized that he had completed the prison drug program,
awarded him the applicable credits, and updated his release date to
February 5, 2025. Harris disputed the February 5 calculation and argued
that the correct calculation was October 13, 2024.

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¶5 The court denied Harris relief. The court noted that Harris
had not provided details about his completed program. The missing
information should have included when he started or completed the
program, entitling him to the requested release credits compared with those
credited by DOC. Instead, Harris requested that the court conduct “an
independent audit of Defendant’s time computation.” The court refused
such an “audit” because it did not have the “requisite information to do so.”
Based on the lack of information, the court determined that Harris had not
shown that October 13, 2024, was the correct release date. Alternatively, the
court noted that Harris was not entitled to PCR because the claim was
premature under Rule 33.1(d). The court dismissed the petition.

¶6 Harris petitioned this court for review. We have jurisdiction
under A.R.S. §§ 13-4031, -4239, and Rule 33.16.

DISCUSSION

¶7 We review the superior court’s denial of a petition for PCR for
an abuse of discretion, State v. Macias, 249 Ariz. 335, 339, ¶ 8 (App. 2020),
but review the interpretation of the Criminal Rules de novo, State v. Mendoza, 248 Ariz. 6, 14, ¶ 12 (App. 2019). On review, a petitioner must show that the
superior court abused its discretion by denying the PCR petition. State v.
Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021). We review the court’s legal
conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

The Court Correctly Concluded That the Petition Was Premature.

¶8 Rule 32.1(d) provides for PCR if “the defendant continues to
be or will continue to be in custody after his or her sentence expired.” This
provision includes “claims such as miscalculation of sentence or
computation of sentence credits that result in the defendant remaining in
custody when he or she should be free.” Ariz. R. Crim. P. 32.1(d) cmt. Harris
argues that it was error for the court to dismiss his petition as premature.
We disagree.

¶9 Credits toward a sentence provided in statutes are matters of
statutory right, see State v. Rice, 110 Ariz. 210, 213 (1973), and may only be
forfeited following the provisions of the statutes, State v. Davis, 148 Ariz. 62,
65 (App. 1985). But the application of statutory credits is not self-evident.
A.R.S. § 41-1604.07 provides:

A. Pursuant to rules adopted by the director, each prisoner
who is in the eligible earned release credit class shall be allowed
an earned release credit as set forth in subsection B of this

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section, including time served in county jails, except for those
prisoners who are sentenced to serve the full term of
imprisonment imposed by the court.

B. The earned release credit is:

1. Three days for every seven days served if the prisoner:

(a) Was sentenced to a term of imprisonment for the
possession or use of marijuana pursuant to § 13-3405,
subsection A, paragraph 1, the possession or use of a
dangerous drug pursuant to § 13-3407, subsection A,
paragraph 1, the possession or use of a narcotic drug pursuant
to § 13-3408, subsection A, paragraph 1 or the possession of
drug paraphernalia pursuant to § 13-3415.

(b) Has successfully completed a drug treatment program or
other major self-improvement program provided by the
department during the prisoner’s term of imprisonment.

(c) Has not previously been convicted of a violent or
aggravated felony as defined in § 13-706.

2. One day for every six days served if the prisoner was
sentenced to a term of imprisonment for an offense not listed
in paragraph 1 of this subsection.

(emphasis added).

¶10 Under A.R.S. § 41-1604.07, the first step in determining the
statutory drug treatment credit is determining whether the inmate is or was

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in an “earned release credit class.”1 If the inmate is in and remains in the
class, he or she has a right to the drug treatment credit.

¶11 Rule 33.1(d) requires an inmate to show that he or she is in
custody beyond the sentence imposed after considering the sentence and
any applicable earned release credits. The Rule’s requirement prevents
advisory opinions because the court can only grant relief if the inmate has
a right to be released. For example, an inmate may claim that DOC has
miscalculated a future release date based on his or her current classification
and compliance with the statutory requirements listed in A.R.S.
§ 41-1604.07. But such a claim depends on the inmate maintaining the
current eligibility classification. See A.R.S. § 41-1604.07(D) (“On
reclassification of a prisoner resulting from the prisoner’s failure to adhere
to the rules of the department . . . the director may declare all release credits
earned by the prisoner forfeited.”). Until a defendant reaches a release date
with sufficient credits, a court cannot grant the defendant relief under Rule
33.1(d) because the director could rescind release credits based on the
inmate’s misbehavior. A claim is premature until a court can grant PCR
under Rule 33.1(d).

CONCLUSION

¶12 We grant review but deny relief.

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

1 A.R.S. § 41-1604.06(A) provides:

The director shall develop and maintain an earned release credit
eligibility classification system. Within such system, the director shall
establish one class of earned release credit eligibility to be given effect as
provided for in this section and as many other classes of noneligibility as he
deems necessary or desirable. Each person committed to the state
department of corrections shall be classified pursuant to the earned release
credit eligibility system established by the director.

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