State v. Cunningham
1 CA-CR 16-0354
| Ariz. Ct. App. | May 2, 2017Background
- Appellant Kheylon Cunningham pleaded guilty in 2010 to armed robbery and was sentenced to four years’ probation with a flat 12‑month county jail term as a probation condition (began Sept. 23, 2010). He was released July 16, 2011.
- Probation revocation proceedings were initiated twice: April 2012 (arrested Apr. 3, 2012; released Oct. 12, 2012 after the state dismissed the revocation petition) and December 2013 (arrested Dec. 13, 2013; later convicted on multiple charges).
- At the Dec. 11, 2015 sentencing for the 2013 convictions, the court credited Cunningham with 729 days of presentence custody for the 2013 charges and revoked Cunningham’s 2010 probation, imposing an aggravated 8‑year term consecutive to the 2013 sentences.
- The trial court did not award any presentence incarceration credit on the 2010 conviction for the two distinct periods Cunningham was held solely on the 2010 matter (Jan 27, 2010–July 16, 2011 and Apr 3, 2012–Oct 12, 2012).
- Cunningham sought appellate relief, arguing the court committed fundamental error by failing to award presentence custody credit for time spent in custody related to the 2010 conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s failure to award presentence incarceration credit on the 2010 sentence was fundamental error | Cunningham: Court erred by not crediting 730 days (all custody time relating to the 2010 conviction) | State: Trial court erred but disputed the proper amount of credit; argued some time already credited to 2013 convictions or otherwise not applicable | Court: Failure to award credit was fundamental, prejudicial error (illegal sentence); defendant entitled to presentence credit |
| How much presentence credit Cunningham is due on the 2010 sentence | Cunningham: Entitled to 730 days | State: Calculated differently; some days overlap with credit for 2013 convictions and thus should not be double‑counted | Court: Cunningham is entitled to 731 days of presentence incarceration credit for the two custody periods solely attributable to the 2010 conviction |
| Whether any overlapping custody time already credited to 2013 convictions reduces credit on the 2010 sentence | Cunningham: Sought full credit for all time in custody under the 2010 matter | State: Emphasized rule barring duplicate credit when sentences run consecutively | Court: Confirmed that credit previously applied to 2013 convictions does not also apply to the consecutive 2010 sentence; only custody time solely attributable to the 2010 matter was credited |
| Whether continuances or waivers by defense affect entitlement to credit | State: Not argued to eliminate credit entitlement | Cunningham: Not asserted to negate credit entitlement | Court: Noted many continuances were by defense and Rule 8.2 waivers occurred, criticized lengthy pretrial incarceration but maintained statutory entitlement to credit |
Key Cases Cited
- State v. Henderson, 210 Ariz. 561 (Ariz. 2005) (standard for fundamental error review)
- State v. McPherson, 228 Ariz. 557 (App. 2012) (failure to grant presentence incarceration credit is an illegal sentence)
- State v. Carnegie, 174 Ariz. 452 (App. 1993) (custody begins on booking day; full‑day credit for booking day)
- State v. McClure, 189 Ariz. 55 (App. 1997) (no double credit on consecutive sentences for the same custody period)