                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 MARCUS TRAVIS MEDRANO, Appellant.

                             No. 1 CA-CR 14-0130
                               FILED 7-28-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-000406-001
                The Honorable Roland J. Steinle, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                          STATE v. MEDRANO
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G O U L D, Judge:

¶1             Defendant Marcus Travis Medrano appeals from his prison
sentences for two drug convictions on the grounds he was entitled to
mandatory probation.       He also claims he was awarded incorrect
presentence incarceration credit. For the reasons that follow, we affirm in
part, vacate in part and remand.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Defendant was indicted for aggravated assault on a police
officer, a dangerous nature felony, possession of narcotic drugs, and
possession of drug paraphernalia. The indictment alleged Defendant used
a knife, a deadly weapon, in committing the aggravated assault.

¶3           The jury found Defendant guilty on both of the drug charges
and guilty of the lesser-included offense of disorderly conduct on the
aggravated assault charge. The jury further found the disorderly conduct
to be a dangerous nature offense.

¶4           At sentencing, the State elected to treat Defendant’s
disorderly conduct conviction as a repetitive felony rather than a dangerous
felony. The court found Defendant had two or more historical felonies
rendering Defendant a category 3 offender.            Based on the jury’s
determination that Defendant was on release for a prior felony conviction
at the time he committed the subject offenses,1 the court increased the
sentence for each count by 2 years and ordered the sentences served
consecutive to the sentence imposed in the prior case. As a result,
Defendant was sentenced to concurrent prison terms of 6 years on the
disorderly conduct and drug paraphernalia convictions, and 13 years on the
drug possession conviction. The court did not award Defendant credit for
time served in custody because (1) the sentences were imposed
consecutively to Defendant’s prior conviction, and (2) the court concluded


1     Maricopa County Superior Court Case No. CR2011-157573-001.


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                            STATE v. MEDRANO
                            Decision of the Court

Defendant had already been given credit for time spent in custody in his
prior case.

¶5            Defendant timely appealed.

                                DISCUSSION

I.     Eligibility for Prison

¶6            Defendant claims he was entitled to mandatory probation for
his drug convictions in accordance with Arizona Revised Statute (“A.R.S.”)
section 13-901.01. He argues the State did not provide the requisite notice
to sentence him as a violent offender, an exception to the mandatory
probation provisions of A.R.S. § 13-901.01.

¶7             “Section 13-901.01 is the codification of a voter initiative
commonly known as Proposition 200” that directs mandatory probation for
defendants “‘convicted of certain nonviolent, first- and second-time drug
offenses.’” State v. Joyner, 215 Ariz. 134, 137, ¶¶ 6-7 (App. 2007) (citing State
v. Rodriguez, 200 Ariz. 105, ¶ 2 (App. 2001)). “Proposition 200 is intended
both to require less costly, but more effective, treatment programs for non-
violent drug offenders and to promote the imprisonment of violent
offenders. . . . Consistent with these goals, A.R.S. § 13–901.01(B) excludes
violent offenders from the mandatory probation otherwise afforded by
Proposition 200.” State v. Gomez, 212 Ariz. 55, 59, ¶ 20 (2006); see A.R.S. §
13-901.01(B) (“Any person who has been convicted of or indicted for a
violent crime as defined in § 13-901.03 is not eligible for probation . . . but
instead shall be sentenced pursuant to chapter 34 of [title 13].”).

¶8             A defendant must be given notice prior to trial that his prior
convictions for a violent crime render him ineligible for probation under
A.R.S. § 13-901.01(B). State v. Benak, 199 Ariz. 333, 336-37, ¶ 14 (App. 2001).
However, when a violent offense is charged in the same indictment as a
drug offense, and the defendant is found guilty of the violent offense, no
separate notice is required. State v. Givens, 206 Ariz. 186, 188, ¶ 7 (App.
2003) (“Nothing in § 13–901.01(B) suggests that a defendant cannot be
regarded as a violent offender if, as in this case, the violent offense is
charged in the same indictment or information as the drug offense and the
defendant is found guilty.”). The indictment can provide sufficient notice
of a defendant’s potential imprisonment. Benak, 199 Ariz. at 337, ¶ 16 (citing
State v. Burge, 167 Ariz. 25, 28 (1990)).

¶9          Defendant received adequate notice he would not be eligible
for mandatory probation under A.R.S. § 13-901.01(A). The indictment


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                            STATE v. MEDRANO
                            Decision of the Court

charged Defendant with assaulting a police officer using a knife. The
indictment further designated the offense as a dangerous nature felony
alleging Defendant used or threateningly exhibited the knife, a deadly
weapon or dangerous instrument. Under A.R.S. § 13-901.03(B), the criminal
use of a deadly weapon or dangerous instrument in the commission of an
offense constitutes a violent crime. It is clear from the face of the indictment
that Defendant was being charged with a violent crime. Under these
circumstances, the indictment provided adequate notice that Defendant
would be ineligible for mandatory probation on his drug convictions, and
no reference to A.R.S. § 13-901.03(B) was needed. Givens, 206 Ariz. at 188,
¶ 7.

¶10           Defendant’s conviction for the lesser-included offense of
disorderly conduct does not make him eligible for mandatory probation.
He was convicted of a lesser crime, but it was still a violent crime. See
Montero v. Foreman, 204 Ariz. 378, 381-82, ¶ 13 (App. 2003) (stating that
disorderly conduct involving recklessly handling displaying or discharging
a deadly weapon or instrument is a violent crime under 13-901.03 even if
no determination of dangerousness has been made). The jury specifically
found the disorderly conduct to be a dangerous offense because of the use
of a deadly weapon. Thus, the court properly found probation was
unavailable, and sentenced Defendant to prison terms on the drug counts.
Givens, 206 Ariz. at 188, ¶ 7 (“[B]ecause he was charged with committing a
violent offense and was convicted of [a violent] offense, he is not exempt
from potential incarceration.”).

II.    Presentence Incarceration Credit

¶11            Defendant argues, and the State concedes, that the record
does not support the trial court’s determination regarding presentence
incarceration credit. A trial court’s failure to grant a defendant correct
credit for presentence incarceration constitutes fundamental error;
accordingly, we remand to the trial court to calculate the proper amount of
credit, if any, owed to Defendant. State v. Ritch, 160 Ariz. 495, 498 (App.
1989).




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                        STATE v. MEDRANO
                        Decision of the Court

                           CONCLUSION

¶12           Because the record is unclear as to whether Defendant
received proper presentence incarceration credit, we vacate the court’s
award and remand for resentencing on this issue. However, we affirm all
other aspects of Defendant’s sentences.




                               :ama




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