State v. Thayer ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER EDWARD THAYER, Petitioner.
No. 1 CA-CR 14-0848 PRPC
FILED 2-23-2017
Appeal from the Superior Court in Maricopa County
No. CR2008-123452-001
The Honorable J. Justin McGuire, Commissioner
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Christopher Edward Thayer, Florence
Petitioner
STATE v. THAYER
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
¶1 Petitioner Christopher Edward Thayer pled guilty to three
counts of attempted sexual exploitation of a minor, and the superior court
imposed lifetime probation for each count. Thayer was also sentenced to
ten months’ incarceration for Count 1, followed by one year for Count 2. In
2014, after his release from prison, the superior court found Thayer violated
his probation conditions and sentenced him to seven years’ imprisonment
for Count 1 with 804 days’ presentence incarceration credit. The court
waived community supervision for Count 1 after it reinstated lifetime
probation for Counts 2 and 3.
¶2 Thayer initiated post-conviction relief proceedings and the
superior court ultimately ordered him to file his pro se petition for post-
conviction relief by November 21, 2014. In apparent response to this order,
Thayer filed a “Motion for Time Calculation” in October and argued that
the court should have imposed community supervision for Count 1 and
that he was entitled to additional credit for presentence incarceration. The
superior court denied the motion, correctly noting that Thayer’s additional
days in custody were for Count 2 only and cannot be credited towards the
sentence imposed in Count 1. The court did not treat the motion as Thayer’s
petition for post-conviction relief, however, and later dismissed Thayer’s
post-conviction relief proceedings for failure to file a timely petition.
¶3 Thayer has filed in this court an “Appeal of Adverse Ruling
by Superior Court of Maricopa County” in which he challenges the denial
of his motion for time calculation. The State asserts we lack jurisdiction
because Thayer’s petition is untimely. We disagree. We elect to consider
Thayer’s motion for time calculation as a timely petition for post-conviction
relief and his appeal of adverse ruling as his petition for review.
¶4 Thayer argues the superior court should have imposed a term
of community supervision for Count 1 after the court found he had violated
probation. He further argues that because the court was required to impose
community supervision, he must also receive an additional 365 days of
2
STATE v. THAYER
Decision of the Court
credit for presentence incarceration for Count 1. We deny relief. A
sentencing court may waive community supervision after a prison sentence
for one count if the court imposes a consecutive term of probation for
another count. A.R.S. § 13-603(K) (2016). Because Thayer is not entitled to
community supervision on Count 1, we need not address his assertions
regarding presentence incarceration credit on this ground.
¶5 Thayer also asserts the superior court incorrectly calculated
his presentence incarceration credit of 804 days and claims he is actually
entitled to 1169 days of credit. However, the additional year of presentence
incarceration credit that Thayer is claiming is the year he served for Count
2 as a condition of his probation for that count. See State v. Fragozo, 197 Ariz.
220, 222, ¶¶ 5-6 (App. 2000). Thayer’s additional days in custody were for
Count 2 only and cannot be credited towards the sentence imposed in
Count 1. Thus, we deny relief.
¶6 For the reasons stated above, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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