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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENT DREW, Appellant.

No. 1 CA-CR 14-0451

Appeal from the Superior Court in Maricopa County

No. CR 2013-105422-001

The Honorable Jeanne M. Garcia, Judge

CONVICTIONS AFFIRMED; SENTENCE MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Terry Reid

Counsel for Appellant
STATE v. DREW

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.

D O W N I E, Judge:

¶1 Kent Drew timely appeals his convictions for armed 

robbery, aggravated assault, and misconduct involving weapons in 

violation of Arizona Revised Statutes (“A.R.S.”) sections 13-1203(A)(1), -

1204(A)(2), -1902, -1904, and -3102(A)(4). Pursuant to Anders v. California, 

386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), 

Drew’s counsel searched the record, found no arguable question of law, 

and asked that we review the record for reversible error. See State v. 

Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Drew was 

given the opportunity to file a supplemental brief in propria persona; he has 

not done so. For the following reasons, we affirm Drew’s convictions but 

modify his sentence to reflect entitlement to 171 days of presentence 

incarceration credit rather than 170 days.

FACTS AND PROCEDURAL HISTORY1

¶2 A.F. bought smart phones from Drew on several occasions. 

On September 15, 2012, Drew called to say that he had 20–30 phones to 

sell. The men met in Drew’s car in the parking lot of A.F.’s apartment 

complex and discussed the available phones and what A.F. was willing to 

pay. A.F. gave Drew cash, but when A.F. reached in the backseat to “grab 

the bag with the phones in it,” Drew ordered him out of the car. Drew 

also pulled out a gun. A.F. said, “Are you really about to rob me, are you 

serious.” Drew responded, “You know what time it is.”2 A.F. lunged at 

Drew and attempted to redirect the gun. During the altercation, A.F. was 

shot in the calf and foot. 

 

1 “We view the evidence in the light most favorable to sustaining the 

verdicts and resolve all inferences against appellant.” State v. Nihiser, 191 

Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 

2 A.F. testified that in “street lingo,” Drew’s statement basically 

meant “I’m about to rob you.” 
STATE v. DREW

Decision of the Court

3

¶3 The State charged Drew with armed robbery, aggravated 

assault, and misconduct involving weapons. A jury trial ensued. At the 

conclusion of the State’s case-in-chief, Drew moved for a judgment of 

acquittal pursuant to Arizona Rules of Criminal Procedure, Rule 20. The 

court denied the motion. The jury returned a guilty verdict on all charges. 

Drew asked to be remanded into custody immediately following the 

verdict and waived his right to be present during the aggravation hearing. 

¶4 At the aggravation hearing, the jury found that the State had 

proven the following aggravating factors for the armed robbery and 

aggravated assault counts: (1) the offenses involved the infliction or 

threatened infliction of serious physical injury; (2) the offenses caused 

physical, emotional, or financial harm to the victim; (3) the counts were

dangerous offenses, meaning an offense involving the discharge, use, or 

threatening exhibition of a deadly weapon or dangerous instrument or the 

intentional or knowingly infliction of serious physical injury on another 

person; (4) Drew committed the offenses as consideration for the receipt 

or in the expectation of the receipt of anything of pecuniary value; and (5) 

Drew was previously convicted of a felony within the ten years 

immediately preceding the date of the offense.3 The jury found the fifth 

aggravating factor also applied to the misconduct involving weapons 

offense. 

¶5 At sentencing, the court found several mitigating factors, but 

determined the aggravating factors tended to outweigh them. It also 

found Drew had been convicted of five prior felony offenses. The court 

thus imposed sentences greater than the presumptive: twelve years for 

armed robbery; nine years for aggravated assault; and six years for 

misconduct involving weapons. Each sentence was to run concurrently. 

The court awarded Drew 170 days of presentence incarceration credit. 

DISCUSSION

¶6 We have read and considered the brief submitted by Drew’s 

counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 

 

3 Under A.R.S. § 13-701(D)(11), it is the trial court’s role — not the 

jury’s — to find an aggravating circumstance of a prior felony conviction 

within ten years. The error was not prejudicial or fundamental here, 

however, as the State introduced a certified affidavit establishing the 

conviction and Drew admitted to another qualifying conviction at

sentencing. 
STATE v. DREW

Decision of the Court

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P.2d at 881. With the exception of presentence incarceration credit, we 

find no reversible error. All of the proceedings were conducted in 

compliance with the Rules of Criminal Procedure, and the sentences

imposed were within the statutory range. Drew was present at all critical 

phases of the proceedings and represented by counsel. The jury was 

properly impaneled and instructed. The jury instructions were consistent 

with the offenses charged. The record reflects no irregularity in the 

deliberation process. 

I. Batson Challenge 

¶7 During jury selection, Drew raised a Batson challenge after 

the State struck Juror 3 — the only potential juror who was black.

4 See 

Batson v. Kentucky, 476 U.S. 79, 80 (1986) (“Equal Protection Clause forbids 

the prosecutor to challenge potential jurors solely on account of their race . 

. . .”). The trial court rejected the challenge. 

¶8 We employ a three-step process in determining whether a 

peremptory strike violates Batson: (1) the opposing party must make a 

prima facie showing of discrimination; (2) the proponent must offer a raceneutral basis for the strike; and (3) the opponent must persuade the court 

that the proffered reason is a pretext and the strike was “actually based on 

race.” State v. Lucas, 199 Ariz. 366, 368, ¶ 7, 18 P.3d 160, 162 (App. 2001). 

When considering a Batson challenge, we defer to the trial court's findings 

of fact unless clearly erroneous, but we review the court's application of 

the law de novo. Lucas, 199 Ariz. at 368, ¶ 6, 18 P.3d at 162. To rebut a 

prima facie showing of discrimination, the State must give “a clear and 

reasonably specific explanation” of its “legitimate reasons” for exercising 

a peremptory strike. Purkett v. Elem, 514 U.S. 765, 768 (1995).

¶9 The prosecutor offered the following explanation for striking 

Juror 3:

I struck number 3 for multiple reasons. One, I’m concerned 

for his kids, his six and four year old who he has no one to 

pick up after school. He repeatedly said he doesn't have 

 

4 Drew also moved to strike the entire jury panel because the pool of 

sixty included only one black member. He did not argue or show, 

however, “that the disparity [was] a result of systematic exclusion in the 

jury selection process.” Randolph v. People of the State of Cal., 380 F.3d 1133, 

1140 (9th Cir. 2004); see Duren v. Missouri, 439 U.S. 357, 364 (1979).
STATE v. DREW

Decision of the Court

5

anyone to pick them up and CPS would be called if he didn't 

pick them up he said by 2:45 or 3:00 p.m. The other reasons 

include he has lots of family members in the Department of 

Corrections. His wife works for a criminal defense firm. He 

doesn't know which one. He says he talks to her a lot about 

what she does presumably criminal defense work. The state 

did not strike him based on race. The reasons we struck him 

is mainly because he doesn't have any one to pick up his 

kids. I think that's going to be distracting to him. 

Drew did not offer any reasons why the State’s explanation was 

pretextual. The trial court thus appropriately rejected the Batson 

challenge. See State v. Newell, 212 Ariz. 389, 401, ¶ 54, 132 P.3d 833, 845 

(2006) (the State meets its burden by offering a “facially valid explanation” 

for the challenge).

II. Rule 20 Motion

¶10 A judgment of acquittal is appropriate only when there is 

“no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). 

Substantial evidence is such proof that “reasonable persons could accept 

as adequate and sufficient to support a conclusion of defendant’s guilt 

beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 

866, 869 (1990). “Reversible error based on insufficiency of the evidence

occurs only where there is a complete absence of probative facts to 

support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 

610, 624 (1996).

¶11 A.F. testified that Drew took several thousand dollars in 

cash from him at gunpoint and that he was shot in the resulting struggle. 

Drew’s ex-girlfriend testified that Drew told her he robbed A.F. and shot 

him. A police officer and two apartment managers testified about the 

content of a surveillance video overlooking the parking lot where the men 

met.

5 Their testimony corroborated A.F.’s version of events. The State 

also introduced an affidavit certified by the clerk of the Maricopa County 

 

5 Apartment management promised to give officers a copy of the 

footage but never did so, and the content was deleted. Based on the 

unavailability of the video, the trial court gave a Willits instruction to the 

jury. See State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964) 

(adverse-inference jury instruction appropriate when the State loses or 

destroys evidence that could have been useful to a defense). 
STATE v. DREW

Decision of the Court

6

Superior Court establishing that Drew had a prior conviction and had not

had his right to carry a gun reinstated. 

¶12 Based on the foregoing, the State presented substantial 

evidence that Drew was guilty of: (1) armed robbery by forcefully using a 

deadly weapon with the intent to coerce A.F. to surrender cash from his 

person and against his will, see A.R.S. §§ 13-1902, -1904; (2) aggravated 

assault, because Drew was at least reckless when he physically injured 

A.F. with a deadly weapon, see A.R.S. §§ 13-1203(A)(1), -1204(A)(2); and 

(3) misconduct involving weapons, because Drew knowingly possessed a 

gun while he was a prohibited possessor, see A.R.S. § 13-3102(A)(4).

III. Presentence Incarceration Credit

¶13 “All 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). When 

calculating presentence incarceration credit, a defendant is entitled to a 

full day of credit for any partial day spent in custody. State v. Carnegie, 

174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). When the date sentence 

is imposed serves as the first day of a defendant’s sentence under A.R.S. § 

13-712(A) that date does not also count for presentence credit under A.R.S. 

§ 13-712(B). See State v. Lopez, 153 Ariz. 285, 285, 736 P.2d 369, 369 (1987)

(interpreting A.R.S. § 13-709, which is now A.R.S. § 13-712). Applying 

these standards, Drew was entitled to 171 days of presentence 

incarceration credit.

¶14 Presentence incarceration credit under A.R.S. § 13–712(B) is 

mandatory and the sentencing court has no discretion in the matter. See 

State v. Williams, 128 Ariz. 415, 416, 626 P.2d 145, 146 (App. 1981). A 

sentence that does not comply with a mandatory sentencing statute is 

illegal. State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 

2007). Because our calculation reveals Drew was entitled to 171 days of 

presentence incarceration credit, not 170, we modify the sentencing order 

to so reflect. 

CONCLUSION

¶15 We affirm Drew’s conviction but modify his sentence to 

award him 171 days of presentence incarceration credit. Counsel’s 

obligations pertaining to Drew’s representation in this appeal have ended. 

Counsel need do nothing more than inform Drew of the status of the 

appeal and his future options, unless counsel’s review reveals an issue 

appropriate for submission to the Arizona Supreme Court by petition for 
STATE v. DREW

Decision of the Court

7

review. State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 

(1984). On the court’s own motion, Drew shall have thirty days from the 

date of this decision to proceed, if he desires, with an in propria persona 

motion for reconsideration or petition for review.