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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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.
STATE v. MEDRANO

Decision of the Court

3

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 nonviolent 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 
STATE v. MEDRANO

Decision of the Court

4

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).
STATE v. MEDRANO

Decision of the Court

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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.