NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ROGELIO MALDONADO, Appellant.
No. 1 CA-CR 13-0563
FILED 06-17-2014
Appeal from the Superior Court in Maricopa County
No. CR2010-006399-001
The Honorable J. Justin McGuire, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
STATE v. MALDONADO
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined.
K E S S L E R, Judge:
¶1 Rogelio Maldonado filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969), following his illegal re-entry into the United States under
8 U.S.C. § 1326 and the revocation of his probation. Finding no arguable
issues to raise, Maldonado’s counsel requested that this Court search the
record for fundamental error. Maldonado was given the opportunity to,
but did not submit a pro per supplemental brief. For the reasons that
follow, we affirm the revocation of Maldonado’s probation and the
sentence imposed.
FACTUAL AND PROCEDURAL HISTORY
¶2 In September 2011, Maldonado was convicted of three
counts of attempt to commit molestation of a child (“Attempted
Molestation”), a class three felony. He was sentenced to serve six
months’ incarceration and lifetime probation. As part of the terms of
probation, Maldonado agreed to obey all laws, not engage in any criminal
activity and if deported, “not return to the United States without legal
authorization during the term of his probation.” In March 2012,
Maldonado was deported to Mexico with the instruction not to re-enter.
Five months later, U.S. Immigration and Customs Enforcement became
aware that Maldonado had re-entered the United States illegally. In
January 2013, Maldonado entered into a plea agreement, pleading guilty
to entering the United States illegally and receiving thirty-seven months’
incarceration. A bench warrant was issued for his arrest and he was
brought to Maricopa County Superior Court for a probation revocation
hearing. The trial court found Maldonado guilty of violating the terms of
his probation and sentenced him to serve three, consecutive, ten-year
terms for his three Attempted Molestation convictions. He was instructed
to serve this after completion of his incarceration on the federal offense of
illegal re-entry. The trial court gave Maldonado 1009 days of pre-
incarceration credit. Maldonado timely appealed.
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STATE v. MALDONADO
Decision of the Court
STANDARD OF REVIEW
¶3 In an Anders appeal, this Court must review the entire record
for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388,
391 (App. 1993). Fundamental error is “error going to the foundation of
the case, error that takes from the defendant a right essential to his
defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688
P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Henderson, 210 Ariz. at 567, ¶
20, 115 P.3d at 607.
DISCUSSION
¶4 After careful review of the record, we find no grounds for
reversal of the revocation of Maldonado’s probation and the sentences
imposed. The record reflects Maldonado had a fair trial and all
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. Maldonado was present and represented at all
critical stages of trial, was given the opportunity to speak at sentencing,
and the sentences imposed were within the range for Maldonado’s
offenses.
¶5 The record supports the trial court’s revocation of probation.
Once deported, Maldonado was not permitted to return to the United
States without legal authorization. Maldonado pled guilty to illegally re-
entering the United States after he had been deported, in violation of the
terms of his probation.
¶6 Presentence incarceration credit is given for time spent in
custody beginning on the day of booking, State v. Carnegie, 174 Ariz. 452,
454, 850 P.2d 690, 692 (App. 1993), and ending on the day before
sentencing, State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App.
1987). Any illegal sentence that favors the appellant (i.e., too many days
given of pre-incarceration credit) cannot be corrected unless the State has
filed a timely cross-appeal. State v. Dawson, 164 Ariz. 278, 282-83, 792 P.2d
741, 745-46 (1990).
¶7 At his probation disposition hearing, the court sentenced
Maldonado to three, consecutive, ten-year terms for violating the
probation terms of his three Attempted Molestation convictions. The trial
court awarded Maldonado 1009 days of pre-incarceration credit for the
first count of Attempted Molestation. The court calculated the
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STATE v. MALDONADO
Decision of the Court
presentence incarceration period began on October 21, 2009 and ran until
the sentencing date of September 20, 2011. We conclude Maldonado’s
presentence incarceration for any of the counts of Attempted Molestation
could not begin until he was in custody on these specific charges, which
did not occur until August 19, 2010. Therefore, absent any explanation in
the record, the correct pre-incarceration credit awarded is 707 days.
However, since the miscalculation favors the defendant, it cannot be
corrected unless the State had filed a timely cross-appeal. See Dawson, 164
Ariz. at 282-83, 792 P.2d at 745-46. Since the State did not cross-appeal, we
affirm the sentence and pre-incarceration credit of 1009 days.
CONCLUSION
¶8 For the foregoing reasons, we affirm the revocation of
Maldonado’s probation and the sentences imposed. Upon the filing of
this decision, defense counsel shall inform Maldonado of the status of his
appeal and his future appellate options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Upon the
Court’s own motion, Maldonado shall have thirty days from the date of
this decision to proceed, if he so desires, with a pro per motion for
reconsideration or petition for review.
:gsh
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