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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appell ant ,

v.

ROBERT DAVID LUIS ESPOSITO
, Appell ee

.

N o . 1 CA

- CR 2 2

- 0 162

Appeal from the Superior Court in M aricopa County

No. CR2018

- 155681

- 001 The Honorable Anne Phillips
, Judge Pro Tempore

REVERSED AND REMAND ED

COUNSEL
Maricopa County Attorney’s Office , Phoenix By Robert E. Prather Counsel for Appell ant
Maricopa County Public Defender’s Office
, Ph oenix By Robert W. Doyle C ounsel for Appell ee FILED 2-9-2023STATE v. ESPOSITO Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which Judge Michael J. Brown and Judge Michael S. Catlett joined.

M c M U R D I E , Judge:

¶1 The S tate appeals from the superior court ’s order granting Robert David Luis Esposito 413 days of incarceration credit toward his s tate sentence for time spent in federal custody

. Th e S tate argues that the court erred by applying the credit toward Esposito’s state prison term because the incarceration arose from a separate federal conviction

. ¶2 We agree with the State. Because credit toward an Arizona
sentence can only be awarded for time spent in custody based on that conviction , we vacate the presentence incarceration credit and remand for a correct determination of the applicable credit

.

FACTS AND PROCEDURAL BACKGROUND

¶3 Esposito pled guilty to one count of forgery and was placed
on a two

- year probation term beginning in August 2019. During that term, Espos ito was arrested under federal authority and charged with drug possession with the intent to distribute

. Based on the federal charge s , t he State petitioned to revoke his probation on February 16, 2021

. ¶4 Because Esposito was in federal custody, the State placed a hold on Esposito on February 18, 2021

. One month later, t he State petitioned the superior court for a w rit of habeas corpus ad prosequendum
, asking the federal government to order Esposito’s temporary release from federal custody so that he could appear before the superior court. The court granted t he w rit on March 11, 2021

. ¶5 Despite requesting the authority to bring Esposito before the superior court in March 2021 , the State did not obtain Esposito ’s transfer to state custody until March 31
, 2022 . On April 7, Esposito admitted he violat ed his probation
, and the court revoked Esposito’s probation and sentenced him to 2.5 years in prison.

¶6 The court next considered incarceration credit

. The State argued that Esposito qualified for seven days of presentence incarcerationSTATE v. ESPOSITO Decision of the Court

3 credit, counting the days between his March 31 return to state custody through the April 7 disposition. Esposito counter ed that he had a right to credit for the time spent in federal custody while the State’s hold was in place beginning on February 18, 2021, totaling 413 days.

¶7 The superior court disagreed with the State ’s calculation and grant ed Esposito 413 days of presentence incarceration credit “based on the fact that there was a writ of habeas corpus” on Esposito. The State appealed, and we have jurisdiction under A rticle 6
, Section 9 of the Arizona Constitution and A.R.S. §§ 12

- 120.21 (A)( 1), 13

- 4031 , and 13

- 403 2 ( 5 ).

DISCUSSION

¶8 We review the superior court’s ruling o n presentence incarceration credit de novo

. State v. Bomar , 199 Ariz. 472, 475
, ¶ 5 (App. 2001)

. ¶9 Under A.R.S. § 13

- 712 (B)
, “ [a] ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to i mprisonment for such offense shall be credited against the term of imprisonment .” Esposito was in custody for 413 days before the disposition hearing. But because Esposito was not “in custody pursuant to ” the Arizona sentence, the State argues the superior court erred by applying that time to his sentence

. See id. (emphasis added)

. ¶10 W e have consistently held that “ presentence incarceration credit is unavailable for time served based on a charge other than that for which the defendan t is being sentenced, because such incarceration is not

‘ pursuant to ’ the relevant offense. ” State v. Cecena , 235 Ariz. 623, 6 2 5, ¶ 7 (App. 2014)

. A writ of habeas corpus ad prosequendum is used “ to return the accused to the county where charges have been filed” and is “the equivalent of a request for temporary custody.” State v. Loera , 165 Ariz. 543, 545

– 46 (App. 1990) ; see also State v. Kaipio , 246 Ariz. 134, 137, ¶ 9 (App. 2019)

. E ven when , as here, an Arizona charge causes a hold on a defendant incarcerated in a nother jurisdiction, incarceration credit does not apply to time spent in custody unless the Arizona charge is the but

- for cause of the incarceration. See Cecena
, 2 35 Ariz. at 6 26 , ¶ 10 ; State v. Horrisberger , 133 Ariz. 569, 570 (App. 1982) ; accord Thomas v. Whalen
, 962 F.2d 358, 361, n.3 (4th Cir. 1992) (“A prisoner is not even in custody for purposes of [sentence computation] when he appears in federal court pursuant to a writ ad prosequendum ; he is merely ‘on loan’ to feder al authorities.”) (emphasis added)

. Thus, the Arizona hold on Esposito do es not qualify him for incarceration credit because he would have been incarcerated under federal charges regardless.STATE v. ESPOSITO Decision of the Court

4 ¶11 Still, Esposito maintain s that the credit should stand because “[t]he State was aware that Esposito was in federal custody” and
, despite obtaining a writ of habeas corpus ad prosequendum
, “the State delayed for over 1 year with no reason given.” Esposito argues that the State’s delay
pr ejudiced him by eliminating the opportunity for the Arizona and federal prison sentences to run concurrently.

¶12 Esposito relies on State v. Adler , 189 Ariz. 280 (1997) , for the proposition that “[w]hen a Petition to Revoke probation is filed against a defend ant and the State knows [he is] in federal custody by filing a hold, due process requires granting full presentence incarceration credit

. ” According to Esposito, Adler directs that “[f]ailure to bring such a person to court does not vacate the revocation p roceedings but does require that the defendant receive concurrent sentences.”

¶13 But Esposito mi sstate s Adler ’s conclusion. The Adler court did not direct the superior court to apply presentence incarceration credit

. See 189 Ariz. at 285. I n stead, in Adler , the supreme court directed th at th e probation revocation petition be dismissed

. Id. Thus, w hile unreasonable delay may be grounds to bar the State from revoking probation, n othing in Adler permits a court to award presentence credit outside the boun daries of A.R.S. § 13

- 712.

¶14 Even so, w e will not consider dismissing the probation revocation petition because Esposito has not made such a request. 1 And we cannot assess the reasonableness of the delay, as the record is silent on what caused the delay from when the court granted the w rit until Esp osito was brought to Maricopa County. We note that wh en a court issues a w ri t, it is addressed to the executive branch. Velazquez v. Myers , 1 CA

- SA 17

- 0298, 2018 WL 326515, at *3, ¶ 16 (A riz. App. Jan. 9, 2018) (mem. decision)

. When
a state court issues a w rit, the federal Bureau of Prisons consider s it

. S ee 28 C.F.R. § 527.30 . Still, the w arden has the discretion to reject the state ’ s w rit and “shall authorize transfer only when satisfied that the inmate ’ s appearance is necessary, that state and local arrangements are satisfactory, that the safety or other interests of the inmate

. . . are not seriously

1 If, as in Adler , the delay in prosecution by the State was unreasonable such that it infringed on Esposito’s right to due process, he may make the argument in a petition for post

- conviction relief. See Ariz. R. Crim. P. 3 3

. 1(a).STATE v. ESPOSITO Decision of the Court

5 jeopardized, and that federal interests

. . . will not be interfered with, or harmed.” 28 C.F.R. § 527.31(b)

. ¶15 Thus, be cause the Arizona hold was not the but

- for cause of Esposito’s incarceration while he was in federal custody, w e conclude that the superior court erred by awarding Esposito presentence incarceration credit for those days

.
CONCLUSION

¶16 We reverse th e award of incarceration credit and re m a nd for a correct calculation of the time to be credited

.