Pascua Yaqui Tribe Court of Appeals

No. CA-22-001

Pascua Yaqui Tribe Court of Appeals

Raymond Trujillo, Appellant,

V.

Pascua Yaqui Tribe, Appellee.

For the Appellant: Stuart de Haan, Deputy Public Defender

For the Appellee: Russell Boatwright, Prosecutor

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Opinion

Martinez, Associate Justice

Appellant Raymond Trujillo appeals an exhausted trial court sentence imposed as part of a

criminal conviction.

Facts

On July 14, 2021, the Pascua Yaqui Tribe charged Appellant with four criminal counts in

CR-21-197.1 Criminal Compl. CR-21-197. On July 21, 2021, Appellant appeared at the initial

hearing where the Court ordered that Appellant be held on bond to run consecutive to his probation

revocation matters.2 Initial Hr’ g Order CR-21-197, Jul. 21, 2021. On August 10, 2021, Appellant

admitted to probation violations and later was sentenced on those probation violations with a release

date of October 30, 2021. Order CR-19-049/263, Aug. 10, 2021; Order CR-19-049/263, Aug. 30,

2021.

On October 18, 2021, Appellant was convicted in CR-21-197 of Assault/Domestic Violence

pursuant to 4 PYTC §1-130(A)(3). On October 27, 2021, Appellant was sentenced to six months in

custody to run consecutively with his sentence for his probation violations. Order CR-21-197, Oct.

27, 2021. The trial court awarded Appellant 41 days of credit for time served. Order CR-21-197, Oct.

27, 2021

14 PYTC §1-130(A)(3), 4 PYTC §1-255(A), 4 PYTC §1-200(C), 4 PYTC §1-240.

2 At the time, Appellant was held on bond for probation revocation matters in CR-19-049 and CR-19-263.

In accordance with the trial court’s sentencing order, Appellant began serving his sentence in

the underlying matter on October 30, 2021 and completed his sentence on March 20, 2022.

Appellee’s Resp. Br. at 6.

Appellant filed a Notice of Appeal appealing the trial court’s sentencing order on November

23, 2021. On January 19, 2022 Appellant filed a Motion for Extension of Time for Filing Opening

Brief. This Court granted Appellant’s Motion and issued an Order that Appellant file its opening

brief by February 18, 2022. Order on Appellant’s Mot. for More Time to File Opening Br., Jan. 22,

2022. Appellant filed his Opening Brief on February 18, 2022. Appellee’s filed their Response Brief

on May 18, 2022.

Appellant seeks appellate review of what he alleges was an error by the trial court in not

awarding him more days of credit for time served with his criminal sentence. Appellant’s Opening

Br. at 4. Appellee argues that Appellant’s issue before this Court is moot because Appellant

completed his sentence on March 20, 2022 and this Court can no longer grant the Appellant the relief

he seeks. Appellant’s Resp. Br. at 6.

Discussion

There is no clear provision in the Pascua Yaqui Tribal Code or Constitution addressing the

mootness doctrine that limits the jurisdiction of this Court to actual “cases” or “controversies”. The

Pascua Yaqui Tribal code addressing jurisdiction does provide that the Pascua Yaqui Tribal Courts’

jurisdiction may be limited as required by Federal Law. 3 PYTC § 1-1-20(1). Article III Section 2 of

the United States Constitution limits federal courts to deciding “cases” and “controversies” and

requires an actual controversy to exist not only at the time the action is filed, but through all stages of

litigation. Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016). It is unclear if this

Court has similarly applied U.S. Constitutional limitations on its assessment of its jurisdiction. This

Court may however, look to persuasive authority in the absence of controlling authority. PYT v.

Miranda, CA-08-015 (2009). Other tribal courts have adopted the mootness doctrine, limiting their

jurisdiction to actual cases or controversies. James v. Window Rock Family Court, 9 Nav. R. 590,

591 (Sup. Ct. 2012), 2012 Navajo Sup. LEXIS 8 at 5-6. We agree with this persuasive authority and

find that there must be a live controversy before this Court so that it is actually capable of granting a

petitioner the relief they seek. Here, this case is moot, no live controversy exists because the

Appellant is no longer incarcerated and this Court cannot grant Appellant credits for days he has

already served.

The U.S. Supreme Court has recognized an exception to the mootness doctrine for a

controversy that is “capable of repetition, yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17

(1998). The capable-of-repetition doctrine applies only in exceptional situations, “‘where the

following two circumstances are simultaneously present: (1) the challenged action is in its duration

too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation

that the complaining party will be subject to the same action again.’” Jd. at 17 (quoting Lewis v.

Cont'l Bank Corp., 494 U.S. 472, 481 (1990)). We find that Appellant’s case does not satisfy either

of these circumstances. Appellant has not shown that the time between the trial court issuing a

sentencing order that includes a granting for credit for time served and the exhaustion of that

sentence is always too short to evade appellate review. Nor, has the Appellant shown a reasonable

likelihood that he will be convicted of a crime again and receive a similar criminal sentence where he

is denied credit for time served on a separate probation violation.

Conclusion

We hold that the Appellant’s action is moot as there is no case or controversy on which we

can provide the Appellant the relief he seeks. We therefore, decline review of this matter and dismiss

this appeal.

So ORDERED this 20th day of September, 2022.

Justice Kendra A. Martines

We CONCUR:

Kibet )- (ee,

Interim Chief Justice Robert J. Miller Hoa. Rebecca Plevel

eyT COR "22-05-18 panda

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IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

RAYMOND TRUJILLO

Appellant APPELLATE CASE NO: CA-22-001

Vs.

PASCUA YAQUI TRIBE, TRIBAL COURT CASE NO: CR-21-197

Appellee

APPELEE’S RESPONSE BRIEF

Malena Acosta,

Chief Prosecutor

Russell Boatwright,

Deputy Prosecutor

Pascua Yaqui Office of the Prosecutor

7777 S. Camino Huivisim

Bldg. A, 2"! Floor

Tucson, AZ 85757

Telephone: (520) 876-6251

Malena.Acosta@pascuayaqui-nsn.gov

Russell. Boatwright@pascuayaquinsn.gov

Attorneys for the Pascua Yaqui Tribe

TABLE OF CONTENTS

TE ABEE, GOP CODATEINGS asnsssvenencscsnsssursesnnccconaonannsansannsciisnasensnsceassoiesseurssbeesstioieneserensnenntse II

TABLE OF AUTHORITIES ...........cccccssssssssssssssssssscesscessceesesssesscsseessssesesessossseavsscecsoees Il

REQUEST FOR ORAL ARGUMENT..........c.scssscscssscsssssssessssseesssesscsssesesseesesseesesssseseces 1

STATEMENT OF JURISDICTION..........c.ccscscsssssssssscssesssesssssees 1

STANDARD OF REVIEW..........ccsssssccssssscssosessscececsssesececsssecsesesesecseecsesseeceessesesesacsesscsces 1

ISSUES PRESENTED FOR REVIEW..........ccccssscssssssscessssssscssssssesesesesecessesesseesssscsesesess 2

STATEMENT OF THE CASE... ana anonnacunmanenenies 3

I. FACTS AND PROCEEDINGS BELOW.............scsssscscscssscssscssssssscesessesssececessssecsees 3

A. Probation Cases- CR-19-049 and CR-19-263:......s.ccssssscscsserecscssscescesssesesesssscessees 4

B. CR-21-197, April 14, 20213..........ssscssscsssssssssssnssssscssecececscesecscecscsessesseseceesceosereceees 5

TI. SUMMARY OF THE ARGUMENT. ...........cccssssscsssscscscssscssssesssecesesseessesssssscesecs 5

LAW AND ARGUMENT ” wt

I. The Court Should Dismiss Appellant’s Petition Because this Issue is Moot........ 7

A. Appellant’s Petition Should be Dismissed as Moot Because he Only Challenges an

Expired Sentence, Not the Underlying Conviction, and Therefore has No Collateral

Consequence Sufficient to Establish an Ongoing Injury. ............c..s.0s000 8

B.Exception to the Mootness Doctrine Does Not Apply Because This is Not an Action

That is Too Short in Duration to be Fully Litigated Prior to Expiration, and

Appellant Cannot Expect to be Subjected to the Same Action..............cce0s0000 10

II. The Trial Court Did Not Abuse Its Discretion at Sentencing and Imposed a Sentence

that Was, Both, Procedurally Sound and Substantively Reasonable................. 12

A.A Sentencing Court is Not Required to Award a Defendant to “Double Credit” in

Calculating Time Credits Where a Prisoner is Serving a Sentence While

Simultaneously Awaiting Trial. ..............cscscscscscsecssssssssssscsesecesssssesssssssvesscsveseees 12

B.The Trial Court did Not Impose a Sentence that is Substantively Unreasonable

Because the Court Reached a Sentence that it Deemed Appropriate, and Could Have

Reached that Result Simply by Imposing a Longer Consecutive Sentence. ... 14

CONCLUSION AND REMEDY SOUGHT............cccsccsssssssssssssssocsseceesesecsesesecerscesceeees 15

CERTIFICATE OF SERVICE .........scsssssscscssssssssssesssesscesssesesesscacscecesesssecesecsesesesseessceseees A

il

TABLE OF AUTHORITIES

Authority Page Number

Pascua Yaqui Case Law

PYT v. Coleman, CA 15-003 (NOV. 2015) .o.ccccccccscccsssescssscsscsescscscsscscscscscsevacasacscsavavseereaceeeees ae

PYT v. Mesquita, CA-21-001 (PYT Ct. App. 2021) ..ceccccecessseeseseessessessesesesesesees 1,12, 14

PYT v. Miranda, CA-08-015, (PYT Ct. 2009) ......ccccccscscsescsesesesesescsescsescscssscscacaes 1,7, 11, 13

PYT v. Valenzuela, CA-19-001, p.1 (PYT Ct. App. 2019.0... .ccccecssessesssssssssseteesesseesesteees 1

PYT. Pesquiera CA-08-007 0.0... ccsesscssssesesesessesssessssscscscescecscscscscscssssscscscacsescsesesssseesssteasaceeees 7

Stoof ex. rel. Lopez, CA-18-O01......cccsssssesssesesesesesesesscsescscsesesscscscsescscssesecsvevscsesvseseceesseeeseees 2

Pascua Yaqui statutes

3 PYTC § 2-3-1OO(A) o.oeeeececeseesssesseestsesesesesesesesesesecsesesesessscseeeescssscscsesesesecscessesvacsessveasavaes 11

FPN TS Fah TVG) occsssncrcesssviesacansnananaenssnacnseanscasnencnsonerssonnsnsacsesanavacavessexessnesenennyrsesanenvene 11

3 PYTC § 2-3-140(A)(1) oo. eeeeeececseseeesesesesesesescsccacscsescssscsesesssescsescsescecessessessesarsususvacsesaneeseaes 11

3 PYTC § 2-3-140(A)(2) on eeeeceeesssssesesesssssesssseessesesesesesessesesesessscsesescsesscetscscssatssscecssseesneesees 11

3 PYTC § 2-3-140(A)(3) ee ecesscseesesstsssssesescsesesescsesesesessscsesesssscscscscscecscecacacacseaeacseesvacees 11

3 PYTC § 2-3-30 ooo cceceseseesesecesesesesesescsceeceesesesesesesesesesesasssccsescscssscscscscscsesesssssessesssesaseaesees 1

3 PYTC § 2-3-180 oo. eceessssssecsesesssesesesesesesesesesesssscsesesescasanssescscscscscscseseassesececsvssseesseacseaves 1

EF gf 2 | ey 1

PE Fe BL vi ccccnssanseeresnssansininsinsa sina iniesreasei ardenseeensqureecsepentemeaveyrvemesnwrantentoenceermvneeany 11,14

Federal Statutes

18 U.S.C. § 3585(b) woe eeeeeseseseseseseseeesssssesesesesescseseseseseesssesescscscscsesesceeseeecscacscscseeeecaees 13, 14

Federal Case Law

ili

Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055 (1997) ...cccsceseesveee 8

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 136 S. Ct. 663 (2016) ...cccccccssssssessesseseeees 8

Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556 (1968) ....ccccccscscsssssssscscscsssestscsteneesens 8,9

Church of Scientology of California v. United States, 506 U.S. 9, 113 S. Ct. 447, (1992) ..7

City of Los Angeles v. Lyons, 461 U.S. 95 (1983).....scccceccsssesessssssssssesescsescsesessesesacseateeees 8, 10

Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006)......cccccccccccsscsesessscsescecscssececetenseeseees 13

Lane v. Williams, 455 U.S. 624 102 S. Ct. 1322 (1982) ....ccecccsescscsssccsssssscstsceesseessseseeees 10

Mills v. Green, 159 U.S. 65116 S.Ct. 132 (1895) ...ccccccsssscssssscscsescscscssvesescscscscseacsvsnssasecaears 7

Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 2012).....cccccccscsescsescscscscssseesssescscseseesenes 11,14

North Carolina v. Rice, 404 U.S. 244, S.Ct. 402 (1971) .o.ccccccccscesescsssssescssseecsescareaseeseees 7

Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909 (1960).....ccccccesseesscscscssseseeeeees seeseeaeeseteneaeeneaes 8

Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330 (1975) w.cccccccsssssssessescscsssscsessesssvecereseeeees 7,8

Rita v. United States, 551 U.S. 338(2007) ......ccccsseccscsesesescsssssssscsescscscscscsasescsvscacsvececareacecees 12

Spencer v. Kemna, 523 U.S. 1 118 S. Ct. 978, (1998) ..ccccccccsccssssseseseseesseeseeserseeeeeeee passim

States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) ......ccccccecssssssssssesscscsesesessseessenees 1

United States v. Arroyo, 324 F. Supp. 2d 472 (S.D.N.Y. 2004) ..cccccccccccscscsesssesesesesesesseseee 13

United States v. Carty, 520 F.3d 984 (9th Cir. 2008) ......c.cccccccscscssssescsesstscsssseeseeseversees 12,15

United States v. Edwards, 595 F.3d 1004 (9th Cir. 2010) v..ccccccccccescscsssscscssssesesssesteseecsesees 1

United States v. Flynt, 756 F.2d 1352 (9th Cir.) vcccccccsssssssssesessssesssssssssssssssesessesssssssssssessssevees 1

United States v. Ressam, 679 F.3d 1069 (9th Cir. 2012) ...ccccccccscssscssssssssssesessseseseseesecsees 12

United States v. Wilson, 503 U.S. 329, 112 S. Ct. 1351 (1992) 13

Weinstein v. Bradford, 423 U.S. 147 96 S. Ct. 347(1975) 0

Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717 (1990) ...ccccecccsscsessessesesseesscseeesteeees 10

United States/Arizona Constitutions

iv

U.S. Const., Art. II, § 2

REQUEST FOR ORAL ARGUMENT

Neither of the parties are requesting oral argument in this matter. However, should the

Court feel that such arguments are necessary, authority exists under 3 PYTC § 2-3-180, 3 PYTC

§ 2-3-260(C)(6) and/or (D).

STATEMENT OF JURISDICTION

The Pascua Yaqui Tribal Rules of Appellate Procedure grant parties the right to appeal in

most, but not all, circumstances. See generally 3 PYTC § 2-3-30, et seq. This includes the right

for a Defendant to appeal the conviction and/or sentence imposed as part of a criminal case. See

generally PYT v. Valenzuela, CA-19-001, p.1 (PYT Ct. App. 2019). The Defendant/Appellant is

an enrolled member of the Pascua Yaqui Tribe, and was charged with several offenses that

occurred within the physical boundaries of the Pascua Yaqui Reservation. Thus, this Court has

jurisdiction over this appeal.

STANDARD OF REVIEW

This Court, and federal courts, have addressed the issue of sentencing decisions applying

the “abuse of discretion” standard. PYT v. Mesquita, CA-21-001, P.3 (PYT Ct. App. 2021); United

States v. Amezcua-Vasquez, 567 F.3d 1050, 1053 (9th Cir. 2009); United States v. Edwards, 595

F.3d 1004, 1014 (9th Cir. 2010); see also PYT v. Miranda, CA-08-015, p.22 (PYT Ct. App. 2009)

(holding that this Court may look to Arizona or Federal authority in the absence of controlling

Pascua Yaqui law).

Courts will “not find a clear abuse of discretion unless, after carefully evaluating all the

relevant factors, we conclude that the denial was arbitrary or unreasonable.” United States v. F Lynt,

756 F.2d 1352, 1358 (9th Cir.) amended, 764 F.2d 675 (9th Cir. 1985). This analysis depends

1

heavily on the facts and circumstances of a particular case, and the weight the reviewing court

gives to “any single factor may vary with the extent of the showings on the other factors.” Id. See

also PYT v. Coleman, CA 15-003 (Nov. 2015) (finding that a court “abuses its discretion when it

makes an error of law in reaching a discretionary conclusion or when the record, viewed in the

light most favorable to upholding the trial court’s decision, is devoid of competent evidence to

support the decision’); see also Stoof ex. rel. Lopez, CA-18-001, P.2.

ISSUES PRESENTED FOR REVIEW

1. Should the Appeal be denied as moot given that the Appellant has completed his sentence?

2. Did the Trial Court abuse its discretion when it declined to grant the Appellant presentence

credit for the period of time spent in custody that he was already serving a sentence on in

a separate matter?

STATEMENT OF THE CASE

I. Facts and Proceedings Below:

Appellant was already held on bond in his two probation revocation matters (CR-19-049

and CR-19-263) when he had his initial hearing in CR-21-197 on July 21st, 2021. See Tribe’s

Exhibit A, PYT v. Trujillo CR-21-197 Initial Hearing Order. The Court ordered that Appellant be

held on bond in the CR-21-197 matter and ordered that bond run consecutive to his probation

revocation matters. Jd. On August 10th, 2021, Appellant entered admissions to probation

violations and suspended sentences were imposed in CR-19-049 and CR-19-263 (hereinafter CR-

19-049/263). See Tribe’s Exhibit B, PYT v. Trujillo CR-19-049/CR-19-263 Probation Revocation

Order.' The court further ordered that the parties submit a stipulation as to time credit the Appellant

was entitled to in CR-19-049/263. Id. The parties then calculated time credit that Appellant was

entitled to on his sentences in CR-19-049/263 and filed a stipulation as to that time credit. See

Tribe’s Exhibit C, CR-19-049/CR-19-263 Order. Based on that stipulation, the court ordered

Appellant to be released on October 30, 2021 in CR-19-049/263. Id.

Appellant was subsequently convicted at trial in CR-21-197 on October 18, 2021. On

October 27, 2021 Appellant was sentenced to 6 months incarceration. His sentence in CR-21-197

was ordered to commence on October 30, 2021, after Appellant’s sentences in CR-19-049/CR-19-

263 concluded. See Tribe’s Exhibit D, CR-21-197 Sentencing Order. The Court credited Appellant

41 days presentence credit for the time the Appellant had been in custody on CR-21-197. However,

' At this time, Appellant would not have been able to bond out in his CR-21-197 matter because he had begun serving active

sentences in separate matters.

3

the court excluded time served credit for the period of time Appellant began serving his sentences

in CR-19-049/263. Id.”

A. Probation Cases- CR-19-049 and CR-19-263:

Appellant was charged on September 19, 2018, in CR-19-049 for Count 1, Kidnapping,

Family Violence; Count 2, Assault, Family Violence; Count 3, Assault, Family Violence; Count

4, Battery, Family Violence; Count 5, Assault, Family Violence; Count 6, Disorderly Conduct and

Count 7, Disorderly Conduct. See Tribe’s Exhibit E, CR-19-049 Criminal Complaint. Appellant

accepted a plea agreement in that matter on August 8, 2019 to Counts two through five of the

Complaint. See Tribe’s Exhibit F, CR-19-049 Change of Plea and Sentencing Order. On

September 7, 2019, Appellant was charged on a new offense in CR-19-263 for Count 1, Refusal

to Obey a Lawful Order and Count 2, Resisting a Lawful Arrest. See Tribe’s Exhibit G, CR-19-

263 Criminal Complaint. Appellant entered into a plea agreement in that matter on December 16,

2019 and was given a concurrent sentence with CR-19-049. See Tribe’s Exhibit H, CR-19-263,

Order Accepting Plea and Order for Probation.

Appellant admitted to probation violations on October 3, 2019 and was offered another

chance at probation. See Tribe’s Exhibit I, Probation Revocation and Disposition Order. Probation

ultimately filed another Petition to Revoke Probation and Appellant went into warrant status on

March 26, 2021. See Tribe’s Exhibit J, CR-19-049/CR-19-263 Order Issuing Warrant. Appellant

was picked up on that warrant and was held at his Detention Release Hearing for his probation

revocation matters in CR-19-049/CR-19-263 on July 7, 2021. See Tribe’s Exhibit K, CR-19-

049/CR-19-263 Detention Release Order. The Tribe filed new charges in CR-21-197 on July 14,

2021. See Tribe’s Exhibit L, CR-21-197 Criminal Complaint. These allegations included a new

>The court, in error, awarded Appellant than intended because it calculated the time credit from July 21, 2021 to

Disposition on August 30, 2021, awarding Appellant to 41 days for CR-21-197. The Disposition occurred on August 10,

2021 and therefore the correct time was 21 days credit. See Tribe’s Exhibit B and Tribe’s Exhibit D.

4

violent offense alleged to have been committed while Appellant was on warrant status facing a

probation revocation for violent offenses.

B. CR-21-197, April 14, 2021:

On July 21, 2021, the court found probable cause in CR-21-197 for an incident that

occurred on April 21, 2021. Appellant was held on a $200 bond that was ordered to run consecutive

to his probation matters. Tribe’s Exhibit A. Appellant was tried at a bench trial on October 18,

2021. At the onset of trial, the Victim refused to testify. See Tribe’s Exhibit M, CR-21-197 Trial

Order. After being ordered to testify by the court, the Victim went on to provide testimony that

significantly differed from what she reported to police officers after the incident. Jd. Appellant was

still convicted for Assault/Domestic Violence and sentenced on October 27th, 2021. Jd.

The court imposed a sentence of six months detention. Tribe’s Exhibit D. In calculating

credit for time served, the court gave Appellant credit for presentence incarceration from his initial

appearance up to imposition of his suspended sentences in CR-19-049/263. Id. The court did not

credit Appellant with time spent in custody in CR-21-197 for the period that overlapped with the

time he was serving sentences in CR-19-049/263. Id. While the court did not explicitly state that

the sentences run consecutive, its intent that the sentences were to run consecutive is clear in the

court’s sentencing order where the court ordered that Appellant begin serving his sentence in CR-

21-197 after the conclusion of his sentences in CR-19-049/263 on October 30th, 2021. Jd.

Il. Summary of the Argument

Appellant raises a single issue on appeal. Appellant argues he is entitled to the additional

time credit that the trial court excluded from its calculation when Appellant began serving a

sentence in separate matters. Appellant argues that because he was held on bond pending trial in

CR-21-197, the trial court must afford time credit for the entire time he spent in custody awaiting

trial, notwithstanding the fact the Appellant began serving sentences in CR-19-049/263, and

5

notwithstanding the trial court ultimately ordered that CR-21-197 run consecutive to CR-19-

049/263.

This issue is moot, The Appellant is asking this Court to award him time credit for an

exhausted sentence. The Appellant’s sentence in CR-21 -197 expired on March 20", 2022. Id. This

issue is not one that falls within the exception to the mootness doctrine because it is not an issue

that would be too short in duration to be fully litigated, and it is not an issue the Appellant should

reasonably expect to be subjected to.again. Because the issue raised by the Appellant is moot, there

is simply no case or controversy that this Court has the ability to weigh in on.

LAW AND ARGUMENT

I. The Court Should Dismiss Appellant’s Petition Because this Issue is Moot.

This Court should deny the Appellant’s petition because this issue is moot. Appellant seeks

to challenge a time credit computation for a sentence that he has already served. Appellant

completed his sentence on March 20", 2022.3 Id. Appellant is not challenging the underlying

conviction, which would arguably still present a concrete injury due to identifiable collateral

consequences associated with a criminal conviction, as will be discussed infra, but rather is only

seeking adjusted time credit for an expired sentence.

While the Pascua Yaqui Tribal Code does not lay out justiciability rules for a petitioner,

this Court has adhered to federally applied justiciability principles in denying review on the

grounds that a matter has become moot. PYT. Pesquiera CA-08-007 (dismissing appeal because

the issue raised in Appellant’s brief had been rendered moot by the lower court’s dismissal of

criminal charges against Appellant). Additionally, it is well-settled that Pascua Yaqui Courts may

look to federal or state law for guidance in the absence of controlling Pascua Yaqui authority.

Miranda, CA-08-015 at P.22.

The United States Supreme Court has held that federal courts cannot “give opinions upon

moot questions or abstract propositions, or to declare principles or rules of law which cannot affect

the matter in issue in the case before it.” Church of Scientology of California v. United States, 506

US. 9, 12, 113 S. Ct. 447, 449, (1992); (citing Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132,

133 (1895)). See also Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, (1975); North

Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404 (1971). This “mootness doctrine” is

grounded in U.S. Const., Art. III, § 2, which limits federal jurisdiction to “cases” and

3 The issue before this Court was not rendered moot by the fact that the Tribe asked for, and was granted, two extensions to

file its Response. Those requests were unopposed by Appellant. However, had the Tribe filed its Response as of its initial

March 18", 2022, due date, the issue would still have been rendered moot by the passage of time. Appellant would still

have needed to file its Reply brief, and this Court would have needed time to review the record and any pleadings filed, and

may possibly have needed to schedule oral argument.

7

“controversies” that are still “extant at all stages of review, not merely at the time the complaint is

filed.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160, 136 S. Ct. 663, 669, (2016), as

revised (Feb. 9, 2016) (emphasis added); Arizonans for Official English v. Arizona, 520 U.S. 43,

67, 117 S.Ct. 1055 (1997) (Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330 (1975)). “If an

intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’

at any point during litigation, the action can no longer proceed and must be dismissed as moot.”

Campbell-Ewald Co., 577 U.S. 153.

There is an exception to the mootness doctrine that allows matters that are otherwise moot

to be heard if they are ones that are “capable of repetition, yet evading review.” Spencer v. Kemna,

523 U.S. 1, 17, 118 S. Ct. 978, 988 (1998). The United States Supreme Court has stated that the

“capable-of-repetition” doctrine applies “only in exceptional situations” Id (emphasis added);

citing City of Los Angeles v. Lyons, 461 U.S. 95, 108-09 (1983). The “capable of repetition”

. exception.applies when both of the following circumstances apply: 1) the challenged action is one .

that its duration is too short to be fully litigated prior to expiration and; 2) there is a reasonable

expectation that the party will be subject to the same action again. Jd. As will be discussed below,

neither circumstance applies to this case, and the Appellant’s request should be denied.

A. Appellant’s Petition Should be Dismissed as Moot Because he Only Challenges an

Expired Sentence, Not the Underlying Conviction, and Therefore has No Collateral

Consequence Sufficient to Establish an Ongoing Injury.

The U.S. Supreme Court has declined to find issues moot simply because a sentence has

exhausted. Carafas v. LaVallee, 391 U.S. 234, 237, 88 S. Ct. 1556, 1559 (1968). However, when

a sentence has expired, a petitioner must show that there is a concrete and continuing injury in

order for a suit to be maintained. Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 908 (1998).

In Carafas, the Supreme Court overturned its previous decision in Parker v. Ellis, 362 U.S.

574, 80 S. Ct. 909 (1960) which had held that courts no longer had jurisdiction in criminal matters

once the sentence imposed had expired. Jd. The petitioner in Carafas challenged his conviction

claiming that evidence was illegally obtained against him. Jd at 235-236. Respondent relied on

Parker v. Ellis in asserting the Court should reject that matter as moot since the petitioner’s

sentence had concluded and the court therefore lacked jurisdiction. Jd. In overturning its previous

decision in Parker, the Supreme Court determined that the Petitioner’s request for relief — by

virtue of his challenging the underlying nature of his conviction — was not rendered moot by the

expiration of his sentence. This was because the Petitioner was still exposed to ongoing collateral

consequences, including loss of his rights to vote, to serve in a union, or to serve as a juror. Id at

237. However, while Carafas is instructive, the Supreme Court has found cases moot where a

sentence has expired and there is no identifiable concrete and continuing injury sufficient to satisfy

Article III’s injury-in-fact requirement. Kemna, 523 U.S. 1, 118 S. Ct. 978.

In Kenma, petitioner challenged his parole revocation that resulted in him serving the

remainder of his prison sentence. Jd at 3-6. By the time the matter was heard by the Supreme Court,

petitioner’s prison sentence had expired. Jd. Petitioner claimed that, although his sentence had

expired, he faced several concrete and ongoing injuries-in-fact as a result of the parole revocation.

Id at 14-16. Petitioner claimed that the parole revocation could be used against him at future

revocation proceedings, that the revocation could be used to increase a future sentence, and that

the revocation could be used to impeach him as a witness in a trial. Jd. The Court rejected these

arguments and found that petitioner failed to present any collateral consequences sufficient to

establish concrete and ongoing injuries. Jd. The Court reasoned that these claims were speculative.

Id. The Court further noted insofar as petitioner facing enhanced future sentences, that claim would

require him to break the law and to get caught and convicted. Jd. The Court discounted that claim,

noting that people have a duty to abide by the law thereby preventing that possibility from

occurring. Id.

The issue raised in Appellant’s brief is analogous to Kenma and distinguishable from

Carafas. Appellant has served his sentence, is not challenging the underlying conviction, and

therefore cannot point to any ongoing concrete injuries, as found in Carafas. Any injury that could

be asserted would be of the same speculative nature as those asserted in Kenma.

B. Exception to the Mootness Doctrine Does Not Apply Because This is Not an Action

That is Too Short in Duration to be Fully Litigated Prior to Expiration, and Appellant

Cannot Expect to be Subjected to the Same Action.

As discussed supra, the “capable of repetition, yet evading review” doctrine is limited to

the situations where two elements combine: (1) the challenged action was in its duration too short

to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation

that the same complaining party would be subjected to the same action again. Weinstein v.

Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349(1975); see also Kemna, 523 U.S. at 17, 118 S. Ct.

at 988; City of Los Angeles v. Lyons, 461 U.S. 95, 108-09, 103 S. Ct. 1660, 1669 (1983). While

not addressed in Appellant’s petition, in order for his petition to survive dismissal as moot, it is

presumed that Appellant will have to establish that he could be subjected to the same issue at a

future sentencing, and that this is an issue that is too short in duration to be fully litigated. Appellant

fails on both grounds.

The exception requires that there exists “a reasonable expectation that the same

complaining party would be subjected to the same action again”. Lane v. Williams, 455 U.S. 624,

634, 102 S. Ct. 1322, 1328 (1982) (emphasis added); see also Whitmore v. Arkansas, 495 U.S.

149, 110 S. Ct. 1717 (1990) (holding second death row inmate did not have individual standing to

challenge validity of death sentence imposed on capital defendant who elected to forego his right

of appeal to Arkansas Supreme Court). As was discussed supra, Courts reject such arguments

where speculation of future harms rest on a petitioner having to violate the law. Spencer v. Kemna,

523 U.S. at 15, 118 S. Ct. at 986.

Insofar as Appellant being subject to this potential issue again — that he would be

incarcerated serving a prison sentence while awaiting trial in a separate matter - the U.S. Supreme

Court rejected such arguments where petitioners point to a potential harm that would require them

10

to violate the law to encounter it, on the grounds that it is presumed people will not, or should not,

violate the law. Jd (finding that respondents were required by law to prevent themselves from

facing a future order of revocation because it would require them breaking the law, getting caught,

and convicted).

We can look to Kenma again to analyze whether this is an issue that is too short in duration

to be fully litigated. In Kenma, the Court rejected petitioner’s argument that the matter was too

short to be fully litigated, finding that he failed to establish that the time between parole revocation

and expiration of sentence is always too short to evade review. Id (emphasis added). That is the

case here.

The Pascua Yaqui Tribal Criminal Code allows a trial court to impose a sentence of up to

one year per offense. 4 PYTC § 4-20. The trial court has the authority to run sentences consecutive

for a total of up to 3 years. PYT v. Miranda CA-08-015; citing Miranda v. Anchondo, 684 F.3d

- 844 (9th Cir. 2012) (affirming a Pascua Yaqui Tribal Court sentence of 910 days). A brief look at

the timeline of an appeal shows that a matter like this could be resolved before a sentence is

exhausted. 3 PYTC § 2-3-100(A) provides that the appellant has 30 days to file a notice of appeal

from the judge signing final order of matter being appealed. Tribal court then has 30 days to

provide the record. 3 PYTC § 2-3-110(B). The appellant then has 30 days to file his brief after the

appellate court clerk mails the notice required by Rule 10(A). 3 PYTC § 2-3-140(A)(1). The

appellee then has 30 days to file its brief after service of the appellant’s brief. 3 PYTC § 2-3-

140(A)(2). Appellant then has 15 days to Reply. 3 PYTC § 2-3-140(A)(3). Given that a sentence

could run up to three years, an issue like the matter at-hand could be decided before it becomes

moot. Because of this, the issue Appellant raises is not one that fits within the parameters of one

that is too short in duration to be fully litigated before expiration.

11

Il. The Trial Court Did Not Abuse Its Discretion at Sentencing and Imposed a Sentence

that Was, Both, Procedurally Sound and Substantively Reasonable.

When determining whether a trial court has abused its sentencing discretion, the reviewing

court need only determine whether the imposed sentence is “reasonable.” United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (“[O]nly a procedurally erroneous or substantively unreasonable

sentence will be set aside.”); see also Rita v. United States, 551 U.S. 338, 351 (2007) (noting that

a sentence within local sentencing guidelines is considered to be presumptively reasonable);

United States v. Ressam, 679 F.3d 1069, 1088-89 (9th Cir. 2012) (“The overarching statutory

charge for a district court is to impose a sentence sufficient, but not greater than necessary to reflect

the seriousness of the offense, promote respect for the law, and provide just punishment; to afford

adequate deterrence; to protect the public; and to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment”) (quoting Carty, 520 F.3d at

992-93).

A. A Sentencing Court is Not Required to Award a Defendant to “Double Credit” in

Calculating Time Credits Where a Prisoner is Serving a Sentence While

Simultaneously Awaiting Trial.

The trial court committed no procedural error because there is nothing in the Pascua Yaqui

Tribal Code or within Pascua Yaqui case law that requires a sentencing court to award a defendant

“double credit” if they are simultaneously serving a sentence while awaiting trial.

Appellant relies on Mesquita to assert he was entitled to additional presentence

incarceration credit. However, Mesquita is distinguishable from our case at-hand. In Mesquita, the

defendant was not afforded any presentence incarceration credit. PYT v. Mesquita, CA-21-001,

P.1-3, 6, (PYT Ct. App. 2021); see also Tribe’s Exhibit N, CR-20-107/CR-20-122 Sentencing

Order and Presentence Report. There, the defendant was entitled to credit from when he was

arrested and awaiting trial in Pascua Yaqui Tribal custody up to his extradition to the State of

Arizona. Mesquita at 1-3, 6. Appellant also relies on Jonah R. v. Carmona, 446 F.3d 1000 (9th

12

Cir. 2006), which, like Mesquita, deals with the denial of any presentence incarceration credits.

These two cases are misapplied here.

In this matter, Appellant was credited with 41 days for time spent in custody. What we

have here is the question of whether a court must afford time credit for a defendant awaiting trial

while they are already serving a sentence in a separate matter. The federal rules provide some

guidance here. The Pascua Yaqui Tribal code does not contain a provision regarding the issuance

of time credit for incarcerated persons. In the absence of controlling Pascua Yaqui authority, we

may look to the federal rules for guidance. Miranda, CA-08-015, at p.22. The federal statute

addressing the issue of time calculations expressly states that a defendant is not entitled to double

credit in calculating presentence time credit. 18 U.S.C.A. § 3585(b) states that “[a] defendant shall

be given credit toward the service of a term of imprisonment for any time he has spent in official

detention prior to the date the sentence commences... that has not been credited against another

. sentence.” (emphasis added); United States v. Wilson, 503 U.S. 329, 337, 112 S. Ct. 1351, 1355 .

(1992) (noting that, according to federal statute, a defendant was not entitled to “double credit” for

time served in multiple jurisdictions for different offenses).

In a persuasive opinion out of the Southern District of New York, United States v. Arroyo

highlights the bright-line rule of denying double credit in federal matters under 18 U.S.C. §

3585(b). United States v. Arroyo, 324 F. Supp. 2d 472, 473 (S.D.N.Y. 2004). There, defendant

was transferred from state custody, where he was serving a sentence on an unrelated matter, to

federal custody on May 21, 2000. Jd. Defendant continued to accumulate time on his state sentence

while awaiting resolution of his federal matter. Defendant ultimately pled guilty in his federal

matter and was sentenced on July 20, 2001. Jd. Defendant’s state sentence concluded on January

8, 2002. Id. At sentencing, the district court ordered that his federal sentence run concurrent with

any undischarged portion of his state sentence. Jd. The court later denied defendant’s request for

an additional 15 months presentence credit towards his federal case for the time he spent in federal

13

custody, but while simultaneously serving his state sentence. Jd. The court rejected defendant’s

request to “double dip”, ruling that 18 U.S.C. § 3585(b) precluded the BOP from awarding

presentence credit that was already awarded towards another sentence. Jd. Arroyo is directly on

point with the matter here.

The trial court appropriately credited Appellant with presentence time credits and did so

in-line with the federal statute and case law directly addressing this issue. The trial court afforded

Appellant with presentence time credit while he was awaiting trial and held on bond. When

Appellant began serving a sentence, and could no longer bond out, the trial court was no longer

required to credit Appellant with time spent in custody. Had the trial court ultimately ordered that

all sentences run concurrently, the Appellant would have received that time credit. However, the

Court made it clear that it intended that the Appellant was to serve his sentence in CR-21-197

consecutive to those he was already serving in CR-19-049/263 when it ruled he was not entitled

to credit while serving those sentences, and when it ordered that his sentence commence after the

conclusion of those sentences. Tribe’s Exhibit D.

B. The Trial Court did Not Impose a Sentence that is Substantively Unreasonable

Because the Court Reached a Sentence that it Deemed Appropriate, and Could Have

Reached that Result Simply by Imposing a Longer Consecutive Sentence.

There is nothing substantively unreasonable about the sentence imposed by the trial court.

The court sentenced appellant within a lawful time frame allowable under the Pascua Yaqui Tribal

Code sentencing parameters, and it announced the reasons why it imposed the sentence. An

appellate court may presume that a sentence is reasonable if it falls within sentencing guidelines.

Rita at 338.

Here, the court is authorized to impose a sentence of up to one year in prison. 4 PYTC § 4-

20. A sentencing judge may also order that sentences run consecutive, up to a period of 3 years.

Mesquita, at 5 (upholding trial court’s imposition of consecutive sentences); Anchondo at 844.

The court properly awarded Appellant 99 days credit presentence incarceration before sentencing

14

him to 6 months. Tribe’s Exhibit D. The court considered Appellant’s history of probation

revocations and escalating violent behavior, inter alia, in deciding a fair sentence. See PYT v.

Raymond Trujillo CR-21-197 Sentencing Hearing, Pg. 9-10. The trial court considered these

aggravating factors and carved out a sentence in-line with goals laid out in U.S. v. Carty that was

“sufficient, but not greater than necessary to reflect the seriousness of the offense...” U.S. v. Carty

at 991.

The court ultimately ordered a consecutive sentence and therefore denied Appellant the

time he spent in custody awaiting trial that overlapped with a sentence he was already serving in

order to impose a sentence it deemed appropriate. Jd. The trial court was free to sentence Appellant

to 9 months, 10 months or even 12 months consecutive to the sentence he was already serving in

order to arrive at the sentence it felt was warranted. Even assuming for the sake of arguendo that

Appellant was entitled to the time credit he now seeks, there is nothing unreasonable about the

imposed sentence because the court could have reached the imposed sentence. by simply ordering

a sentence that was 41 days longer.

CONCLUSION AND REMEDY SOUGHT

We ask this Court to dismiss Appellant’s petition because the matter is moot. Furthermore,

this issue cannot survive on the exception to the mootness doctrine as one that is capable of

repetition yet evading review, because there is no reasonable expectation that Appellant would

face this same issue in the future. Indeed, federal case law states such claims are speculative and

presumes Appellant would avoid this situation by not violating the law and thereby facing

sentencing again. Kemna, 523 at 15. There also are no facts to support this issue is one that is too

short in duration to be fully litigated. Given that the Pascua Yaqui Code and case law allows for a

sentence that could run up to three years, it is entirely possible that this is the type of issue that

could be litigated during the life of the case.

15

If this Court reaches the merits of the matter, we ask this Court to affirm Appellant’s

sentence. The trial court imposed a sentence and credited Appellant with presentence incarceration

credit that would be in-line with the federal rule and case law. Since the Pascua Yaqui Tribal Code

is silent on this issue, the federal rule and case law on this issue should be followed. Policy also

implores affirming the trial court’s sentence. To hold that a sentencing court is required to award

presentence incarceration credits to a defendant who is in custody awaiting trial, while

simultaneously serving a sentence in a separate matter, runs the risk of forcing a sentencing court

to impose a de facto concurrent sentence where it may deem that a consecutive sentence is

warranted.

RESPECTFULLY submitted this 18th day of May, 2022.

LkiLé~g—

alena Acosta Russell Boatwright

Chief Prosecutor Deputy Prosecutor

16

CERTIFICATE OF SERVICE

I hereby certify that the Tribe’s pleading was delivered this date to:

Benjamin Casey

Ben.Casey@pascuayaqui-nsn.gov

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 §. Camino Huivisim

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered, this date to:

Stuart de Haan

Stuart.deHaan@pascuayaqui-nsn.gov

Pascua Yaqui Office of the Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered this date to:

. Associate Judge Cornelia Cruz

Pascua Yaqui Tribal Court

7777 8. Camino Huivisim

Tucson, AZ 85757

Dated this_18 day of May, 2022.

Wf, IP

alena Acosta

Chief Prosecutor

Gall.

Russell Boatwright a

Deputy Prosecutor

Sworn before me this day of , 2022

Notary Signature

a

CERTIFICATE OF SERVICE

I hereby certify that the Tribe’s pleading was delivered this date to:

Benjamin Casey

Ben.Casey@pascuayaqui-nsn.gov

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 §. Camino Huivisim

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered, this date to:

Stuart de Haan

Stuart.deHaan@pascuayaqui-nsn.gov

Pascua Yaqui Office of the Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered this date to:

Associate Judge Cornelia Cruz

Pascua Yaqui Tribal Court

7777 S. Camino Huivisim

Tucson, AZ 85757

Dated this_18 day of May, 2022.

PASCUA YAQUEFPROSECUTOR

Chief Prosecutor

laa: fonkieg

Russell Boatwright

Deputy Prosecutor

Sworn before me this [37 day of Haag , 2022

YVETTE 1 GRADILLAS

Notary ®ublic - Arizona

Pima County

Cornmission # 535864

My Comm. Expires Jul 13, 2024

. EXHIBIT A

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, )

Plaintiff, ) No. __ CR-21-197

TVS. )

Trujillo Raymond, ) INITIAL HEARING ORDER

Defendant )

)

| Pascua Yaqui Public Defender’s Office is appointed to represent the defendant;; that after the

IN THE PASCUA YAQUI TRIBAL COURT

In compliance with 3PYTC R. Crim.P.Rule 16 of the Pascua Yaqui Court and Rules of

Court, the defendant appeared before this Court om this 21% day of July, 2021 for the scheduled

Initial hearing, in custody.

THE COURT FINDS, that defendant qualifies for appointment of legal counsel and the

waiver of the reading of the rights, the Court finds probable cause to believe defendant may have

committed the offenses of Assault/Domestic Violence, Threatening or Intimidating/Domestic

Violence, Kidnapping/Domestic Violence and Unlawful Imprisonment/Domestic Violence; that

defense counsel moves the Court to proceed to the Arraignment hearing and after the. waiver of

that the Bench Trial hearing will be scheduled: that the Tribe recommends that bond of $200.00

be imposed based on the defendant’s history of failures to appear, failures to comply, and history

of probation revocations; that defense counsel has no objections and moves the Court to run the

bond concurrent to the bonds imposed in unrelated cases pending against the defendant as

recommended and will run consecutive given the defendant’s substantial history.

IT IS ORDERED THAT:

X_Defendant shall be released upon posting bond of _$200.00(consecutive)

____ Defendant shall be held without bond.

____ Defendant shall be released on his/her own recognizance.

____ Defendant shall be released to the custody of PRE-TRIAL SERVICES

Defendant shall be notified of the Arraignment hearing date.

xX BENCH TRIAL HEARING is scheduled for_ MONDAY, SEPTEMBER 27,

2021 AT 9:00 A.M...

THIS IS THE ONLY NOTICE OF HEARING YOU WILL RECEIVE.

& Other: the bond shall be posted prior to release and the bond shall run

from any contact with Samantha Molina, and defendant shall not possess or consume any

narcotics or dangerous drugs or drug paraphernalia or any alcoholic beverages. shall be subject

to random urinalysis and breathalyzer tests, shall not possess an weapons. shall obey all laws and

appear for all hearings and in the event that the bond is not posted, Transport Order shall issue

Present were: Russel] Boatwright for the Tribe; Stu De Haan, legal counsel for defendant.

the reading of the rights and of the complaint, not guilty pleas are entered to the four charges; |

defendant wiil be unable to post any of the imposed bonds; that bond will be imposed as

consecutive to the bond imposed in CR-19-049/163 and CR-21-197 and defendant is restrained |

PLEADING TITLE - |

and defendant shall be transported to the hearing from any adult detention facility housing the

defendant.

ce:

o7-2j-.9!

Date

Mf Tribe s fendant/Legal Counsel Probation Detention Other

Pura

Clerk

PLEADING TITLE - 2

EXHIBIT B

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