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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Appellant,

v.

ROGER WESLEY GIARDINI, 

Appellee.

No. 1 CA-CR 21-0481 

Appeal from the Superior Court in Maricopa County

No. CR2011-121922-001

The Honorable Anne H. Phillips, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

Maricopa County Public Defender's Office, Phoenix

By Lawrence S. Matthew

Counsel for Appellee

Maricopa County Attorney's Office, Phoenix

By Robert E. Prather

Counsel for Appellant

FILED 10-18-2022
STATE v. GIARDINI

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

M O R S E, Judge:

¶1 The State of Arizona appeals the award of presentence 

incarceration credit for Roger Wesley Giardini. We modify the sentence 

and affirm the conviction and sentence as modified.

FACTS AND PROCEDURAL BACKGROUND

¶2 Roger Wesley Giardini entered a guilty plea for Failure to 

Register as a Sex Offender on August 12, 2011, for which he was sentenced 

to a lifetime of supervised probation. Hoping to serve his probationary 

sentence in California, Giardini submitted an Interstate Compact, which 

California accepted.

¶3 While on Interstate Compact Supervision in California, 

Giardini committed the crime of Child Annoyance in June 2012. Arizona

filed a petition to revoke probation on July 27, 2012. On July 30, the 

probation department entered a detainer hold on Giardini in California 

pursuant to the Arizona case. 

¶4 The California court convicted Giardini on the Child 

Annoyance charge and sentenced him to two years in the California 

Department of Corrections. California granted Giardini parole on July 7, 

2013, and extradited him to Arizona on July 23. On August 14, 2013, the 

Arizona court reinstated Giardini's probation. Giardini spent a total of 358 

days incarcerated in California while subject to the Arizona detainer. 

¶5 Subsequently, the State filed three additional petitions to 

revoke Giardini's probation. After the latest petition, the court revoked

probation and sentenced Giardini to 2.5 years imprisonment, with 483 days 

of pre-incarceration credit, including credit for 358 days that Giardini spent 

in California prison while subject to the detainer. 
STATE v. GIARDINI

Decision of the Court

3

DISCUSSION

¶6 The sole question presented for review is whether the trial 

court erred in granting presentence incarceration credit for the time 

Giardini served in a California prison on a California offense. The parties 

agree that the court erred in granting 483 days of credit. 

¶7 We also agree that the court erred. Whether Giardini is 

entitled to presentence incarceration credit is a matter of statutory 

interpretation, which we review de novo. State v. Bomar, 199 Ariz. 472, 475, 

¶ 5 (App. 2001). The law provides that "[a]ll time actually spent in custody 

pursuant to an offense until the prisoner is sentenced to imprisonment for 

such offense shall be credited against the term of imprisonment . . . ." A.R.S. 

§ 13-712(B).

¶8 A criminal defendant is entitled to presentence incarceration 

credit for time spent in out-of-state custody so long as the out-of-state 

incarceration is pursuant to the Arizona offense. State v. Mahler, 128 Ariz. 

429, 430 (1981). But he is not entitled to presentence incarceration credit for 

time spent in out-of-state custody on an out-of-state charge, regardless of 

whether he is subject to an Arizona detainer. State v. Horrisberger, 133 Ariz. 

569, 570 (App. 1982). The distinction is whether the Arizona charge is a 

"but-for" cause of his out-of-state incarceration. State v. Cecena, 235 Ariz. 

623, 626, ¶ 10 (App. 2014).

¶9 For most of his time in California prison, Giardini would have 

been incarcerated regardless of the Arizona hold. Giardini acknowledges 

that he is not entitled to credit for the time spent in custody pursuant to the 

California charges, but claims he is entitled to credit for 140 days, including 

the time after his California parole began. On appeal the State does not take 

an explicit position on the correct amount of credit. But when it moved the 

superior court to modify the sentence, the State urged the court to grant 140 

days presentence incarceration credit.

¶10 Giardini is not entitled to presentence incarceration credit for 

all post-detainer time spent in California prison, but he is entitled to the 

time he spent in custody after his parole grant. Accordingly, we modify the 

sentence, consistent with Giardini's position on appeal and the State's 

position before the superior court, to reflect credit for 140 days served 

instead of 483.
STATE v. GIARDINI

Decision of the Court

4

CONCLUSION

¶11 For the foregoing reasons, we modify Giardini's sentence and 

affirm his conviction and sentence as modified.