State v. Velasco

NOTICE: NOT FOR PUBLICATION.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. MARCO ANTONIO VELASCO, Appellant. No. 1 CA-CR 14-0095 FILED 09-16-2014 Appeal from the Superior Court in Yuma County No. S1400CR201300189 The Honorable Lawrence C. Kenworthy, Judge AFFIRMED AS MODIFIED COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Yuma County Public Defender's Office, Yuma By Edward F. McGee Counsel for Appellant STATE v. VELASCO Decision of the Court MEMORANDUM DECISION Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Randall M. Howe joined. J O H N S E N, Judge: ¶1 Marco Antonio Velasco was convicted of aggravated assault, a Class 3 felony, and misconduct involving weapons, a Class 4 felony. The superior court sentenced him to concurrent prison terms, the longer of which was 6.5 years, and credited him with 342 days of presentence incarceration. On appeal, Velasco argues only that the superior court erred by failing to grant him an additional day of presentence incarceration credit. The State confesses error, acknowledging that Velasco was entitled to 343 days of presentence incarceration credit. Although Velasco did not object to the error at trial, the failure to grant all presentence credit to which a defendant is entitled constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). ¶2 For the reasons stated, we affirm Velasco's convictions and sentences, but modify the judgment to reflect a total of 343 days of presentence incarceration credit on each count. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). :gsh 2