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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellant,

v.

RALPH FABIAN RODRIGUEZ, Appellee.

No. 1 CA-CR 18-0782

Appeal from the Superior Court in Maricopa County

No. CR 2017-005562-001

The Honorable Jose S. Padilla, Judge

SENTENCING ORDER AMENDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Jeffrey R. Duvendack

Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix

By Robert W. Doyle

Counsel for Appellee

FILED 1-14-2020
STATE v. RODRIGUEZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop

joined.

B R O W N, Judge:

¶1 The State appeals from the superior court’s sentencing order, 

arguing the court improperly awarded defendant Ralph Fabian Rodriguez 

presentence incarceration credit for time he did not actually spend in 

custody for this case. Because the court erred, we amend the sentencing 

order to reflect the proper amount of credit Rodriguez is entitled to receive. 

BACKGROUND

¶2 In June 2013, while Rodriguez was serving a five-year prison 

sentence for a crime unrelated to this appeal, prison officials caught him in 

possession of heroin and determined he was involved in a wider conspiracy

of bringing drugs into the prison. Rodriguez completed the five-year 

sentence on December 31, 2015, and his community supervision ended on 

September 2, 2016. 

¶3 On September 22, 2017, the State indicted Rodriguez for one 

count of possession of contraband and one count of conspiring to commit 

drug offenses and/or promote prison contraband, each stemming from 

drug-related activities that allegedly occurred between June 24, 2013, and 

October 1, 2014, while he was in prison. Rodriguez moved to dismiss the 

indictment, asserting in part that his due process rights were violated based 

on pre-indictment delay, which the State had used to “usurp” the superior 

court’s sentencing discretion by denying him “an opportunity to argue for 

concurrent sentences.”1 Rodriguez eventually pled guilty to a single

amended count of promoting prison contraband and agreed to a sentencing 

range of nine to fifteen years’ imprisonment. 

1 The record does not show that the superior court made a ruling on 

the motion to dismiss. Because Rodriguez ultimately decided to enter a 

plea agreement, we must presume the court denied the motion. 
STATE v. RODRIGUEZ

Decision of the Court

3

¶4 At the time of the sentencing hearing on October 19, 2018, 

Rodriguez had been in custody pursuant to the contraband offense since 

September 22, 2017 (393 days). The superior court sentenced Rodriguez to 

the presumptive prison term of 9.25 years. Addressing presentence 

incarceration credit, the court first explained that based on the concept of a 

lost opportunity, it was inclined to consider awarding credit for “back time” 

from September 2013. The prosecutor stated that she had never heard of 

that concept, but that if the court was inclined to consider it, she “d[id] not 

have any objection.” After hearing from defense counsel, the court 

awarded Rodriguez a total of 1,845 days of presentence incarceration credit, 

which covered most of the time between the June 2013 prison incidents 

giving rise to the charge and the date of sentencing. The court based this 

decision on Rodriguez’s “loss of opportunity” to have his prison 

contraband sentence run concurrently with other crimes for which he had 

been imprisoned earlier. 

¶5 The State promptly moved for reconsideration, asserting the 

superior court improperly gave Rodriguez the additional presentence 

incarceration credit in violation of A.R.S. § 13-712(B). The court denied the 

motion, citing State v. Adler, 189 Ariz. 280 (1997), and explaining that if the 

contraband charges been brought “in a timely manner, it’s entirely 

reasonable for the defendant to have been given a concurrent sentence in 

this matter, to the sentence he was then serving.” The State timely 

appealed, and we have jurisdiction pursuant to A.R.S. § 13-4032(5). 

DISCUSSION

¶6 At the outset, we reject Rodriguez’s argument that the State

has waived its ability to object to his sentence on appeal because the 

prosecutor stated at the sentencing hearing that she did not object when the 

superior court alerted the parties it was considering applying the loss of 

opportunity concept. The State filed a motion for reconsideration, thereby 

allowing the court to consider the objection and correct the sentencing order 

if deemed necessary. See Ariz. R. Crim. P. 24.3(a) (“No later than 60 days of 

the entry of judgment and sentence . . . the court may correct any unlawful 

sentence or one imposed in an unlawful manner.”). Rodriguez cites no 

authority suggesting that the State could not reconsider its position after 

the hearing. Moreover, our supreme court has made it clear that the 

“failure to impose a legal sentence is one of those rare situations from which 

the [S]tate can seek review even if it failed to object in the trial court.” State 

v. Dawson, 164 Ariz. 278, 281 (1990). 
STATE v. RODRIGUEZ

Decision of the Court

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¶7 The State argues the superior court erred in awarding 

Rodriguez 1,845 days of presentence incarceration credit rather than the 393 

days he was actually in custody for the prison contraband offense, as 

required by A.R.S. § 13-712(B), which provides 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.” Rodriguez counters that § 13-712(B) is not implicated here 

because the superior court properly based his presentence incarceration 

credit on Adler, 189 Ariz. 280. We review de novo the court’s calculation of 

presentence incarceration credit. See State v. Lambright, 243 Ariz. 244, 249, 

¶ 9 (App. 2017). 

¶8 In Adler, the defendant was placed on probation and allegedly 

committed acts in violation of his probation terms. 189 Ariz. at 281. The 

State filed a petition to revoke probation and the superior court issued an 

arrest warrant. Id. About two years later, probation officials were notified 

that the defendant had been arrested and imprisoned in another state on 

federal charges. Id. While detained in federal prison, the defendant 

repeatedly attempted to have the probation violation hearing conducted in 

absentia, but the State refused. Id. More than six years after the probation 

violation, the defendant unsuccessfully moved to dismiss the petition, 

arguing the lengthy delay violated his right to due process. Id. at 281–82. 

After the violation hearing was conducted, the court sentenced the 

defendant to prison. Id. at 282. Our supreme court held that the defendant 

was prejudiced by “the loss of an opportunity” to have his prison sentence 

for his probation violation run concurrently with his federal sentence. Id. 

at 284. The court remanded the case to the superior court for dismissal of 

the petition for revocation with prejudice. Id. at 285.

¶9 We are not persuaded that Adler is applicable here. First,

Rodriguez cites no authority indicating that the analysis used by our 

supreme court in Adler has been applied outside the probation violation 

context. 

¶10 Second, pre-indictment delay, which is what occurred here, 

does not implicate due process in the same way as a delay in holding a 

probation violation hearing. See State v. Broughton, 156 Ariz. 394, 397 (1988) 

(finding the due process clause has a “limited” role in the case of preindictment delays as such matters are protected primarily by statutes of 

limitations). In Broughton, our supreme court explained that to establish a 

due process violation based on pre-indictment delay, “there must be a 

showing that the prosecution intentionally delayed proceedings to gain a 

tactical advantage over the defendant or to harass him, and that the 
STATE v. RODRIGUEZ

Decision of the Court

5

defendant has actually been prejudiced by the delay.” Id. The only delay 

Rodriguez faced here was pre-indictment delay, and nothing in this record 

supports the showing required under Broughton. 

¶11 Third, even assuming Adler applies outside the probation 

violation context, and that Rodriguez was deprived of due process by the 

pre-indictment delay, the remedy would presumably be dismissal of the 

charge. But the superior court made no finding that Rodriguez was 

deprived of due process, and by pleading guilty, Rodriguez waived any 

such issue. See State v. Chavez, 243 Ariz. 313, 318, ¶ 14 (App. 2017) (“A 

defendant who pleads guilty waives the right to assert on review all nonjurisdictional defenses, including deprivations of constitutional rights.”).

¶12 We find nothing in Adler suggesting a sentencing judge may 

award presentence incarceration credit in excess of the actual time a 

defendant has been in custody. 189 Ariz. at 285. Instead, the judge must 

follow the statutory directive—a defendant may only receive credit for 

“time actually spent in custody pursuant to an offense.” A.R.S. § 13-712(B). 

Accordingly, the superior court erred in this case by granting Rodriguez 

presentence incarceration credit beyond the time he was in custody for the 

prison contraband offense.

CONCLUSION

¶13 Because the superior court erred in its calculation of 

presentence incarceration credit, we amend the court’s sentencing order to 

reflect credit for the 393 days Rodriguez spent in custody pursuant to the 

offenses charged in this case. See State v. Seay, 232 Ariz. 146, 149, ¶ 10 (App. 

2013); see also Ariz. R. Crim. P. 31.19(c).