State v. Kuang ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,
v.
DEREK KUANG, Appellant.
No. 1 CA-CR 21-0511
FILED 8-15-2023
Appeal from the Superior Court in Maricopa County
No. CR2019-127865-001
The Honorable Lauren R. Guyton, Judge pro tempore
DISMISSED IN PART; SENTENCE AMENDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. KUANG
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 Derek Kuang (“Kuang”) appeals the superior court’s denial
of pre-sentence credit for his 2019 conviction for criminal trespass. Kuang
also argues the superior court violated his due process rights by not
providing adequate notice of a bond forfeiture hearing. Because the court
did not include time served solely for Kuang’s 2019 conviction, we amend
the sentence. We lack jurisdiction, however, to address the due process
argument because Kuang’s notice of appeal, filed before the bond forfeiture
hearing occurred, does not identify the bond forfeiture judgment as being
appealed.
FACTS AND PROCEDURAL HISTORY
¶2 In 2019, the State charged Kuang with criminal trespass, and
a bench warrant issued for his arrest when he failed to appear for trial. The
minute entry indicating the court issued a bench warrant also contained the
date, time, and virtual login information for the bond forfeiture hearing.
The address listed for Kuang in that minute entry was the same address
where Kuang was later apprehended.
¶3 Kuang was ultimately convicted. A pre-sentence report
calculated time periods when Kuang was incarcerated for two separate
2017 convictions as well as prior to sentencing for the 2019 conviction.
While many dates of pre-sentence incarceration for Kuang’s convictions
overlapped, the report identified June 20, 2019 through August 22, 2019 and
July 16, 2021 through August 23, 2021 as dates where Kuang was in custody
solely for the 2019 conviction.
¶4 The court sentenced Kuang to 3.75 years, to run consecutively
with his sentences for the 2017 convictions, with no credit for time served.
Kuang objected and argued he should receive credit for any time served
solely for the 2019 conviction. The court rejected the argument, stating
Kuang would only receive credit for the 2017 convictions and had to serve
those sentences before receiving any credit against his 2019 sentence.
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STATE v. KUANG
Decision of the Court
Kuang filed a notice of appeal designating only “the judgments of guilt and
sentences . . . on November 4, 2021.”
¶5 Ten days after doing so, while Kuang was in custody, the
bond forfeiture hearing occurred in Kuang’s absence. The court found
there was no reasonable cause for Kuang’s failure to appear for trial and
forfeited the bond.
DISCUSSION
I. Jurisdiction
¶6 While the State did not challenge our jurisdiction, “we have
an independent duty to determine our jurisdiction over the appeal.” State
v. Perry, 245 Ariz. 310, 311 ¶ 3 (App. 2018). Kuang filed his notice of appeal
on November 8, 2021, appealing “the judgments of guilt and sentences . . .
on November 4, 2021.” But Kuang’s opening brief addresses two
arguments. Kuang’s first argument is the court improperly calculated
Kuang’s pre-sentence credit. Kuang timely appealed this issue and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 13-4033(A).
¶7 Kuang’s second argument is that we should set aside the bond
forfeiture judgment because he did not receive adequate notice of the
forfeiture hearing, which resulted in his failure to appear and violated his
due process rights. When determining jurisdiction, we first determine
whether the bond forfeiture judgment is civil or criminal in nature. See
Perry, 245 Ariz. at 311 ¶ 3. Although stemming from a criminal case, a bond
forfeiture judgment is civil in nature. State v. Copperstate Bail Bonds, 222
Ariz. 193, 195 ¶ 15 (App. 2009); see also Ariz. R. Crim. P. 7.6(c)(4) (“If the
court finds that the [forfeiture] violation is not excused . . . the State may
enforce that order as a civil judgment.”) (emphasis added).
¶8 Because a bond forfeiture judgment is civil, we apply the
Arizona Rules of Civil Appellate Procedure. See Perry, 245 Ariz. at 312 ¶ 7
(applying the applicable rules after determining whether a proceeding was
civil or criminal for jurisdictional purposes). Under those rules, a party
must “[d]esignate the judgment or portion of the judgment” in the notice of
appeal. Ariz. R. Civ. App. P. 8(c)(3). Kuang appealed “the judgments of
guilt and sentences” on November 8, 2021, before the superior court held
the bond forfeiture hearing on November 18, 2021 and signed the bond
judgment on November 23, 2021. Kuang did not amend his notice of appeal
to designate the bond forfeiture judgment or file a new notice of appeal
designating the bond forfeiture judgment.
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STATE v. KUANG
Decision of the Court
¶9 “As a general rule, our review is limited to matters designated
in the notice of appeal[.]” Desert Palm Surgical Grp. v. Petta, 236 Ariz. 568,
576 ¶ 15 (App. 2015). Thus, we lack jurisdiction to address Kuang’s
arguments challenging the bond forfeiture judgment, and we dismiss that
portion of his appeal. See Robinson v. Kay, 225 Ariz. 191, 192 ¶ 4 (App. 2010)
(“[W]e must dismiss an appeal over which we lack jurisdiction[.]”); see also
China Doll Rest., Inc. v. Schweiger, 119 Ariz. 315, 316 (App. 1978) (“Since this
action was not contained in the notice of appeal, and in fact occurred . . .
after the notice of appeal was filed, we acquired no jurisdiction to determine
this issue.”).1
II. Pre-Sentence Incarceration Credit
¶10 Kuang argues the superior court erred by not including 103
days of pre-sentence credit for time served in the 2019 conviction. We
review the superior court’s determination of pre-sentence incarceration
credit de novo. State v. Yug, 252 Ariz. 203, 204 ¶ 4 (App. 2021).
¶11 Arizona law requires that “[a]ll time actually spent in custody
pursuant to an offense until the prisoner is sentenced to imprisonment for
such offense shall be credited against the term of imprisonment[.]” A.R.S.
§ 13-712(B). The State concedes the superior court erred by not including
103 days of pre-sentence incarceration credit for time served solely for the
2019 conviction. We agree. The pre-sentence time served solely for the 2019
conviction was from June 20, 2019 through August 22, 2019, which is 64
days, and July 16, 2021 through August 23, 2021, which is 39 days, totaling
103 days. Accordingly, we “modify the action of a lower court” by ordering
Kuang’s 2019 sentence to be amended to include 103 days of pre-
incarceration credit. See Ariz. R. Crim. P. 31.19(c); see also Yug, 252 Ariz. at
206 ¶ 13 (amending a sentence based on pre-sentence incarceration credit).
1 We also note that treating the bond forfeiture judgment as a
civil judgment is not determinative; we would still lack jurisdiction if we
instead treated the judgment as criminal. See Ariz. R. Crim. P. 31.2(c)(1) (“A
notice of appeal . . . must identify the order, judgment, or sentence that is
being appealed.”).
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STATE v. KUANG
Decision of the Court
CONCLUSION
¶12 We amend the superior court’s 3.75 year sentence for Kuang’s
2019 conviction to include 103 additional days of pre-sentence incarceration
credit. We dismiss the remainder of Kuang’s appeal for lack of jurisdiction.
AMY M. WOOD • Clerk of the Court
FILED: AA
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