Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Patrick Russell Wayne, ) ) Defendant. ) __________________________ ) Case No. CR 04-938-PHX-SMM

8 United States of America, 9 10 11 12 13 14

OBJECTIONS TO PRESENTENCE REPORT

COMES NOW the Defendant, Patrick Russell Wayne, by and

15 through undersigned counsel, and files the following objections to 16 the presentence report: 17

1.

Concerning paragraph 2 on page 4 of the presentence

18 report, Defendant agrees to make restitution to Bank One, but he 19 believes that the bank recovered $1,856.00. 20

2.

Concerning paragraph 25 on page 7, in the full it should

21 paragraph where it says, "On March 16, 1974, . . ." 22 read, "On March 16, 1975 . . ." 23

3.

The Defendant objects to paragraph 27 which gives Before

24 him an additional three criminal history points.

25 explaining the technical reasons why this calculation is in error, 26 Mr. Wayne's general proposition is that with a correct time 27 computation, Mr. Patrick Russell Wayne's maximum expiration would 28 have been sometime around April 23, 1989 as opposed to July 19,

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1 1991.

Fifteen years would separate his April 18, 1975 crime (and

2 expiration of such) from the current offense. 3

4.

Concerning paragraph 28, again, if Patrick Russell

4 Wayne's time computation had been correctly computed by the 5 Arizona Department of Corrections, his maximum expiration date 6 would have been April 23, 1989, as opposed to July 19, 1991, and 7 the one criminal history point could not be added. 8

5.

For the armed robbery found in paragraph 27, which

9 occurred at a western clothing store on or about April 14, 1975, 10 and the armed robbery found in paragraph 28, which occurred on or 11 about April 18, 1975, at a Native American arts store, Defendant 12 Patrick Russell Wayne maintains that his time computations from 13 the Arizona Department of Corrections are incorrect.

When Patrick

14 Russell Wayne was sentenced in the Superior Court, he was 15 sentenced pursuant to A.R.S. § 31-252, which is the double-time or 16 two-for-one statute.

The famous (at least for older prisoners)

17 "Coppel" decision ruled that inmates were to earn two-for-one 18 while housed in administrative segregation. 19

In the early 1980's, the Arizona Department of

20 Corrections sought to reconcile or somehow incorporate "old code" 21 inmates into "new code" policy.

Revisiting the issue in Black v.

22 Ricketts, a new class action suit, Judge Coppel held in 1985 that 23 "old code" inmates would be returned to two-for-one (after being 24 write up free for six months) earning status while housed in 25 administrative segregation. In 1987, the Arizona Department of 26 Corrections returned to the earlier 1974 holding and gave inmates 27 in administrative segregation two-for-one earning status and thus, 28 only those in disciplinary isolation would not receive a two-for-

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1 one credit. 2

Two-for-one credits were erroneously withheld from the

3 Defendant's state sentence when he was in administrative 4 segregation.

If these two-for-one credits are restored, his

5 lawful sentence would have been completed over 15 years ago, 6 taking the three criminal history points from paragraph 27 and the 7 one criminal history point in paragraph 28 "out of the mix." 8 would move him from criminal history V to criminal history 9 category III. 10

This

This can more readily be seen in Exhibit "A" where it

11 shows how he should have received two-for-one for the dates of 12 April 5, 1983, to March 5, 1987, less 35 days in isolation.

This

13 would have placed the Defendant completely off paper by April 23, 14 1989, and there would have been no parole violation in January, 15 1990, because he would have been off parole and not within the 16 grasp of the Arizona Department of Corrections because that grasp 17 would have been lost by April 23, 1989.

When discussing the date

18 of January 19, 1990, that crime is addressed paragraph 29 on page 19 10 of the presentence report, and again, there should have been no 20 parole violation. 21

Returning to the computation, Patrick Wayne was in

22 isolation from November 17 to November 22 of 1977. See Exhibit 23 "B".

He was in isolation from November 16 to November 21 of 1978 He was in isolation from December 8 to December

24 (Exhibit "C").

25 23, 1979, (Exhibit "D") and he was also in isolation on October 26 26, through November 5 of 1980 (exhibit not attached).

The total

27 of these isolation days adds 35 days of non-two-for-one, so that 28 means instead of March 18, 1989, to be off paper 35 days would be

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1 added and he would be off paper on April 23, 1989. 2

The long and the short of it is that if his two-for-one

3 computation had been correctly computed, his expiration date would 4 have been April 23, 1989 (when he would have been completely off 5 paper). 6

An easier way to look at this is that the time period

7 from July 11, 1980 through September 23, 1980, had Patrick Wayne 8 in administrative segregation for 72 days and the Arizona 9 Department of Corrections did not credit him with his two-for-one 10 time, thus incorrectly adding 72 days to his release date. 11

More significantly, during the time period of April 5,

12 1983, through March of 1987, the Defendant was in administrative 13 segregation for 1,430 days and the Arizona Department of 14 Corrections did not give him two-for-one time and should have, for 15 a total 1502 days that should hve been off his sentence. 16

6.

The Defendant objects to paragraph 32 found on page

17 11 of the presentence report as he believes his criminal history 18 points should be six, establishing a criminal history III as 19 opposed to ten criminal history points establishing a criminal 20 history category V as proposed by the presentence report. 21

7.

Concerning paragraph 38 found on page 12 of the

22 presentence report where it asserts that the Defendant is not 23 looking forward to his release from incarceration, it should be 24 noted that the Defendant has spent many hours pouring through the 25 Arizona Department of Corrections records with undersigned counsel 26 and is looking forward to his release from incarceration, however 27 understands that it will be difficult, as a felon, to live "like a 28 normal person" in the real world.

The Defendant knows that felons

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1 have incredible difficulty getting jobs, and of course, have to 2 report to supervised release officers (probation officers) at 3 least once a month (and perhaps multiple times per month when 4 first released) and are subject to searches and seizures that 5 normal citizens are not.

However, he does not want to die in

6 prison and would like to make a good attempt at living as a 7 productive citizen in the free world. 8

8.

The Defendant objects to paragraph 51 found on page

9 14 of the presentence report as he believes that his criminal 10 history category should be III and the guideline range for 11 imprisonment would be 37 to 46 months. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RESPECTFULLY SUBMITTED this 14th day of November, 2005. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Defendant

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CERTIFICATE OF SERVICE

X I hereby certify that on November 14, 2005, I electronically transmitted the attached document to the Clerk's Office using the 3 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Michael T. Morrissey, Esq. 5 ASSISTANT UNITED STATES ATTORNEY X I hereby certify that on November 14, 2005, I served the 7 attached document by hand delivery on the following, who are not registered participants of the CM/ECF System: 8 Justine Kozak 9 U. S. PROBATION OFFICER Sandra Day O'Connor U.S. Courthouse - SPC 7 10 401 West Washington - Suite 160 Phoenix, AZ 85003 11
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S/Philip A. Seplow

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