State v. Webb ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,
v.
CARLOS LEAUDRE WEBB, Appellant.
No. 1 CA-CR 16-0497
FILED 6-13-2017
Appeal from the Superior Court in Maricopa County
No. CR2013-002132-001
The Honorable Warren J. Granville, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
STATE v. WEBB
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 Carlos Leaudre Webb appeals his resentencing on counts one
through three that this court had ordered from an earlier appeal. He argues
the trial court erred by failing to give him sufficient presentence
incarceration credit, and by designating count five as a dangerous offense.
The State concedes that the court did not properly calculate the presentence
incarceration credit and, thus, we modify the July 6 sentencing minute
entry. In all other respects, we affirm.
BACKGROUND
¶2 Webb was convicted by a jury of attempted second degree
murder (count one), kidnapping (count two), and two counts of aggravated
assault (counts three and five). He was sentenced to an aggravated prison
term of twenty years on count one, eighteen years on count two, and ten
years on count three, as well as a presumptive term of seven and one-half
years on count five. The court ordered the sentences on counts two, three,
and five to run concurrently, but consecutive to the sentence imposed on
count one.
¶3 Webb filed an appeal. State v. Webb (Webb I), 1 CA-CR 14-0546,
2016 WL 1273302, at *2, ¶ 8 (Ariz. App. Mar. 31, 2016) (mem. decision). This
court affirmed Webb’s convictions on all counts and the sentence on count
five, but vacated and remanded for resentencing counts one through three.
Id. at *5, ¶ 21. On remand, the trial court sentenced Webb to aggravated,
consecutive prison terms of twenty years on count one and eighteen years
on count two. The court sentenced Webb to a presumptive prison term of
seven and one-half-years on count three, and ordered it, as well as count
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2
STATE v. WEBB
Decision of the Court
five, to be concurrent with count one. The court then awarded Webb 1526
days of presentence incarceration credit on counts one and three.
¶4 Webb then timely appealed. We have jurisdiction over his
appeal pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(4).2 Because we previously affirmed his
conviction and sentence on count five, including the dangerousness
designation, in his first appeal, and did not remand it for resentencing, we
have no jurisdiction to consider it upon this second appeal. Cf. State v.
Nordstrom, 230 Ariz. 110, 116, ¶ 19, 280 P.3d 1244, 1250 (2012) (noting that
after convictions are affirmed on appeal, the trial court does not have
jurisdiction on remand to consider attacks on the validity of convictions).
DISCUSSION
¶5 Webb argues the court failed to award proper presentence
incarceration credit. The State concedes error, acknowledging that Webb
was in custody for 1527 days on the underlying charges prior to trial.
¶6 Based on the State’s concession, and our own review of the
record, we modify the sentencing minute entry to reflect that Webb is
awarded 1527 days of presentence incarceration credit, to be applied to the
total sentence. State v. McClure, 189 Ariz. 55, 57, 938 P.2d 104, 106 (App.
1997) (noting that when consecutive sentences are imposed, a defendant is
not entitled to presentence incarceration credit on more than one of those
sentences); see also A.R.S. § 13-4037; State v. Stevens, 173 Ariz. 494, 495–96,
844 P.2d 661, 662–63 (App. 1992) (correcting presentence incarceration
credit without remanding to the trial court).
¶7 Webb also argues the court erred by designating count five as
a dangerous offense without a jury finding of dangerousness. He did not
raise the issue in Webb I, and we affirmed the count five sentence. As a
result, the issue is “beyond the scope of the matter remanded to the trial
court” and we will not now consider it. State v. Hartford, 145 Ariz. 403, 405,
701 P.2d 1211, 1213 (App. 1985); see also State v. Schackart, 190 Ariz. 238, 255,
947 P.2d 315, 332 (1997).
2 We cite to the version of the statute in effect at the time of trial unless
otherwise noted.
3
STATE v. WEBB
Decision of the Court
CONCLUSION
¶8 Because the State conceded error in the presentence
incarceration credit calculation, we modify the July 6 sentencing minute
entry to reflect 1527 days of presentence incarceration credit, but otherwise
affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
4