Background
Andres Alejandro Nunez was convicted by jury of discharging a firearm at a nonresidential structure, aggravated assault, and disorderly conduct stemming from a road rage incident. During the incident, Nunez fired at least 11 shots from a handgun at victims as they drove away, striking one victim three times. The jury found each offense dangerous and identified three aggravating factors for each count.
The trial court sentenced Nunez to slightly more than eight years on the firearm and assault counts and 2.25 years on the disorderly conduct count, all served concurrently, with credit for 1455 days of presentence incarceration. On Nunez’s first appeal, this court affirmed the convictions but remanded for resentencing, finding that the trial court had improperly considered Nunez’s failure to admit guilt as a sentencing factor.
At resentencing, the trial court again found aggravating circumstances outweighed mitigating factors and reimposed substantially identical sentences with the same presentence incarceration credit calculation.
The Court’s Holding
The Arizona Court of Appeals affirmed Nunez’s sentences as reimposed at resentencing. The court found that the trial court properly conducted the resentencing proceedings in compliance with Arizona Rules of Criminal Procedure, afforded Nunez all constitutional and statutory rights, and that the sentences imposed fell within the legally prescribed range.
However, the court identified and corrected a mathematical error in calculating presentence incarceration credit. Although the trial court properly recognized Nunez’s entitlement to credit for each day in custody before sentencing under Arizona Revised Statutes § 13-712(B), its calculation of the period from Nunez’s remand into custody after trial to the resentencing date was one day short. The court modified the sentences to award 1456 days of presentence incarceration credit instead of 1455 days.
Key Takeaways
- Trial courts must calculate presentence incarceration credit with precision; mathematical errors, however minor, will be corrected on appeal.
- Resentencing proceedings must scrupulously follow constitutional and procedural requirements, particularly after appellate remand.
- A trial court’s sentencing decision within the statutory range is generally affirmed even when the court has previously been reversed on sentencing grounds, provided the error has been cured.
- One-day discrepancies in jail credit calculations warrant modification of sentences, reflecting courts’ commitment to accurate credit application.
Why It Matters
This decision underscores Arizona courts’ meticulous scrutiny of sentencing calculations, particularly presentence incarceration credit. For defendants, even a single day miscalculation matters—it affects both the total time served and potential early release eligibility. For prosecutors and defense counsel, the case illustrates that appellate courts will identify and correct computational errors in sentencing records, regardless of whether the parties raised them.
The affirmance also signals that when a trial court remands for resentencing due to error, a properly conducted resentencing without the identified defect will generally withstand appellate review, even in serious violent felony cases. However, the court’s willingness to correct the mathematical error demonstrates that sentencing is subject to rigorous appellate oversight at every stage.