State v. Jimenez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH A. JIMENEZ, Appellee.

No. 1 CA-CR 24-0591
FILED 07-31-2025

Appeal from the Superior Court in Maricopa County
No. CR2024-006437-001
The Honorable Sunita Cairo, Judge

SENTENCING ORDER MODIFIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jordan Anthony Smith
Counsel for Appellant

Maricopa County Legal Defender’s Office, Phoenix
By Kerina Ibarra
Counsel for Appellee
 STATE v. JIMENEZ
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Andrew J. Becke joined.

B R O W N, Judge:

¶1 The State of Arizona appeals from the superior court’s
sentencing order, asserting the court erred by awarding Jimenez excessive
presentence incarceration credit. For the following reasons, we modify the
court’s order.

BACKGROUND

¶2 In June 2008, Jimenez was convicted of participating in a
criminal street gang and was sentenced to a 10-year prison term. He was
also convicted on a separate felony charge and sentenced to a consecutive
6.5-year prison term. In September 2023, while still incarcerated in an
Arizona Department of Corrections (“ADOC”) prison for the 2008
convictions, Jimenez was indicted for promoting prison contraband, a class
2 felony, in violation of A.R.S. § 13-2505(A)(3), and possession or use of a
narcotic drug, a class 4 felony, in violation of A.R.S. § 13-3408(A)(1) (“2023
case”).1 On February 2, 2024, the superior court dismissed the 2023 case
without prejudice and ordered his return to ADOC custody.

¶3 Several weeks later a grand jury indicted Jimenez in the
present case (“2024 case”), alleging the same charges as in the 2023 case.
After his initial appearance, Jimenez was transferred to the Maricopa
County jail. On July 22, 2024, Jimenez’s sentences for the 2008 convictions
ended. On September 3, 2024, Jimenez pled guilty to promoting prison
contraband, a class 2, non-dangerous felony with one historical prior felony
conviction, in violation of A.R.S. § 13-2505(A)(3). The parties stipulated
Jimenez would be sentenced to the presumptive prison term of 9.25 years.

1 This information about the 2023 case is not included in the record on
appeal. Instead, both parties have included the information in their
appendices for our consideration. In our discretion, we consider it solely to
give additional context for the parties’ arguments and the superior court’s
decision.

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 STATE v. JIMENEZ
Decision of the Court

¶4 Jimenez filed a “motion for time credit,” asserting he should
be awarded 114 days of presentence incarceration credit from October 11,
2023, to February 2, 2024, under the 2023 case and 182 days of credit from
April 3, 2024, to October 2, 2024, under the 2024 case, totaling 296 days.
Jimenez also noted he was in custody throughout the 2023 and 2024 cases,
and the State brought the same charges twice. In response, the State
asserted Jimenez was only entitled to presentence incarceration credit for
“73” days, from his release date of July 21, 2024, through October 2, 2024,
the date scheduled for sentencing.

¶5 At the sentencing hearing, the court heard briefly from
counsel on their positions relating to presentence incarceration credit. As
the State explained, the time Jimenez spent in the county jail before July 21,
2024 was for his prison sentence on the 2008 convictions, which he did not
dispute. The State argued he “gets credit for time that he’s been in custody
here on all of the charges, but only for one case, and that is what happened
here.” Defense counsel argued caselaw has made it clear that a defendant
can receive credit for both a sentence they are serving in ADOC as well as
a currently pending case, and that awarding the full amount of credit
requested also makes sense from an “equitable standpoint.”

¶6 In granting Jimenez’s request, the court explained: “I think
this case is a little different from the other case[s], which - where I
understand that [with] a consecutive sentence, you can’t double-dip and
get the time again.” The court reasoned, however, this case was unique
because Jimenez was re-indicted on the same charges, and “from an
equitable [and] fair perspective,” Jimenez “should get time for the other
case as well.” The court awarded Jimenez 296 days of presentence
incarceration credit, calculated by combining the time Jimenez was in
custody on the 2023 and 2024 cases. The State timely appealed, and we
have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(5).

DISCUSSION

¶7 We review the superior court’s determination of presentence
incarceration credit de novo. State v. Yug, 252 Ariz. 203, 204–05, ¶ 4 (App.
2021) (citations omitted). Given the court’s imposition of a consecutive
sentence, the State argues the decision to grant Jimenez presentence
incarceration credit before July 22, 2024, is untenable. According to the
State, the court “was thrown off by the procedural posture” regarding the
initial dismissal and refiling of the case, which had no impact on Jimenez’s
undischarged term of imprisonment. Jimenez counters that the court acted
within its discretion in finding the credit was “equitable [and] fair.”

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 STATE v. JIMENEZ
Decision of the Court

¶8 A defendant is entitled to presentence incarceration credit for
“[a]ll time actually spent in custody pursuant to an offense until the prisoner
is sentenced to imprisonment for such offense.” A.R.S. § 13-712(B)
(emphasis added). From the date of his initial appearance through his
release date, Jimenez was not incarcerated “pursuant to” the 2024 case.
Instead, he continued to serve the sentences for his 2008 convictions. Thus,
he was not entitled to presentence incarceration credit for the pre-release
incarceration period.

¶9 “When consecutive sentences are imposed, a defendant is not
entitled to presentence incarceration credit on more than one of those
sentences . . . .” State v. McClure, 189 Ariz. 55, 57 (App. 1997). Under A.R.S.
§ 13-711(B),

[I]f a person is subject to an undischarged term of
imprisonment and is sentenced to an additional term of
imprisonment for a felony offense that is committed while the
person is under the jurisdiction of the state department of
corrections, the sentence imposed by the court shall run
consecutively to the undischarged term of imprisonment.

Jimenez was serving an undischarged term of imprisonment in ADOC for
his sentences on the 2008 convictions when he committed the June 2023
felony offense. In October 2024, the court sentenced Jimenez for that offense
and ordered his sentence to run consecutively to his 2008 sentences.

¶10 The superior court acknowledged that Jimenez’s sentence had
to run consecutively to the 2008 sentences under A.R.S. § 13-711(B) and that
he could not “double-dip” for presentence incarceration credit. Even so,
the court concluded from an equitable and fair perspective that Jimenez
“should get credit” because the State indicted him twice. That conclusion
was error because it failed to follow the established legal standards for
calculating presentence incarceration credit. See Yug, 252 Ariz. at 205, ¶ 4
(“The court’s sentencing authority originates from ‘legislative mandates
regarding sentencing, and discretion may be exercised only within the
parameters determined by the legislature.’”) (citation omitted); State v.
Payne, 223 Ariz. 555, 560, ¶ 9 (App. 2009) (“[The court] must proceed in the
manner and upon the conditions imposed by the law.”); State v.
Vargas-Burgos, 162 Ariz. 325, 326 (App. 1989) (“The sentencing court has no
discretion to substitute its own judgment for that of the legislature.”).

¶11 Arizona caselaw establishes it was error to award Jimenez
presentence incarceration here, including State v. Bridgeforth, 156 Ariz. 58

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(App. 1986). There, the defendant committed criminal offenses while
serving a sentence in state prison. The court granted him presentence
incarceration credit from the date of his arrest to the date of sentencing. Id.
at 58. The State cross-appealed, challenging that ruling. Id. This court held
that “[c]redit may only be awarded for time actually spent in custody
pursuant to the offense” and amended the defendant’s presentence
incarceration credit from 244 days to 163 days. Id. at 59. It explained the
defendant was still serving another sentence (with a mandatory release date
of June 24, 1985) at the time of his arrest on April 4, 1985, so “his maximum
credit [could] only date from the earliest release date for the previous
offense.” Id. at 59–60.

¶12 Jimenez relies on State v. Seay, 232 Ariz. 146 (App. 2013),
asserting a court should “focus[] only” on a defendant’s time spent in
custody. In Seay, the defendant was serving a sentence in state prison when
he was indicted in Cochise County. Id. at 147, ¶ 2. The defendant pled
guilty, the court sentenced him, and it ordered him to serve that sentence
concurrently with the sentence he was already serving. Id. Thus, Seay is not
controlling because it did not involve the circumstances presented here—a
consecutive sentence imposed as a result of the plea agreement and A.R.S.
§ 13-711(B). See McClure, 189 Ariz. at 57 (defendant had no right to credit
against consecutive sentence in Arizona case for time spent in federal
prison); State v. Verdugo, 180 Ariz. 180, 186 (App. 1993) (person serving a
sentence for a prior conviction “is entitled to credit only from the earliest
release date for the previous offense”).

CONCLUSION

¶13 The superior court erred by awarding Jimenez 296 days of
presentence incarceration credit based on equity and fairness. We therefore
amend the sentencing order to reflect 72 days of presentence incarceration
credit.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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