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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CARLOS IVAN MENDIVIL, Appellant.
No. 1 CA-CR 20-0126
FILED 10-29-2020
Appeal from the Superior Court in Maricopa County
No. CR2018-129998-001
The Honorable Kathleen H. Mead, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Stuart Reilly
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
STATE v. MENDIVIL
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s Decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.
M c M U R D I E, Judge:
¶1 Carlos Ivan Mendivil appeals the sentence imposed following
his conviction for possession of narcotic drugs for sale. For the following
reasons, we modify Mendivil’s sentence for that conviction.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Mendivil challenges only the amount of pre-incarceration
credit he received concerning his sentence. Therefore, we address only the
facts relevant to his sentencing. Mendivil was arrested on June 15, 2018,
pursuant to a traffic warrant. Police searched Mendivil’s bag and
discovered three bags of white powder, a scale, and plastic baggies.
Mendivil was booked into jail on June 16, 2018, and was released the same
day. Grand jurors indicted Mendivil on three counts: possession of narcotic
drugs for sale (“Count One”), possession of drug paraphernalia (“Count
Two”), and resisting arrest (“Count Three”). On December 9, 2019, jurors
convicted Mendivil on Counts One and Two and acquitted him on Count
Three. Mendivil was taken into custody on December 9, 2019, and held in
custody until sentencing on February 27, 2020.
¶3 On Count One, the court sentenced Mendivil to a less than the
minimum term of 3.25 years’ imprisonment, with 80 days’ presentence
incarceration credit. On Count Two, the court suspended the imposition of
Mendivil’s sentence and placed him on two years of supervised probation
to be served upon his imprisonment release. Mendivil appealed, and we
have jurisdiction under Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
2
STATE v. MENDIVIL
Decision of the Court
¶4 Mendivil argues he was entitled to 81 days of presentence
incarceration credit for count one—one day more than the 80 days the
superior court credited him. The State agrees that Mendivil is entitled to 81
days of credit.
¶5 A defendant sentenced to prison is entitled to have all time
spent in custody for the offense credited towards their imprisonment.
A.R.S. § 13-712(B). “[F]or purposes of presentence incarceration credit,
‘custody’ begins when a defendant is booked into a detention facility.” State
v. Carnegie, 174 Ariz. 452, 454 (App. 1993). Moreover, a defendant is entitled
to a full day of credit for any partial day of incarceration, including the day
of booking. Id. However, a defendant is not entitled to presentence
incarceration credit for the day their sentence is imposed because the day
of sentencing counts as the first day of their sentence. State v. Hamilton, 153
Ariz. 244, 246 (App. 1987). A court’s failure to grant a defendant full credit
for presentence incarceration constitutes fundamental error. State v. Ritch,
160 Ariz. 495, 498 (App. 1989).
¶6 Mendivil was booked and released on June 16, 2018, which
amounts to one day of presentence incarceration. Following his convictions,
Mendivil was held in custody from December 9, 2019, until his sentencing
on February 27, 2020, which amounts to 80 days of presentence
incarceration. Added together, Mendivil was entitled to 81 days of
presentence incarceration credit. Therefore, the superior court erred by
awarding Mendivil only 80 days of presentence incarceration credit.
CONCLUSION
¶7 We modify Mendivil’s sentence on Count One to reflect that
he is entitled to 81 days of presentence incarceration credit.
AMY M. WOOD • Clerk of the Court
FILED: AA
3