State v. Shervington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHERROD QUINTELL SHERVINGTON, Appellant.

No. 1 CA-CR 19-0225
FILED 7-16-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-002295-001
The Honorable Douglas Gerlach, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
 STATE v. SHERVINGTON
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Sherrod Quintell Shervington appeals from a sentence
imposed after a jury convicted him of two counts of aggravated driving
under the influence (“aggravated DUIs”) and one count of false reporting
to law enforcement. Shervington argues the court made multiple mistakes
in his sentencing, resulting in an illegal sentence. The State agrees that there
was a sentencing error on one of the counts, and we modify the superior
court’s order to reflect the proper sentence for that count. We otherwise
affirm Shervington’s convictions and sentences, as clarified below.

FACTS AND PROCEDURAL HISTORY

¶2 Shervington was convicted by a jury of driving while having
a prescribed drug in his body with a suspended or revoked license, a class
4 felony (“count two”); driving while having a prescribed drug in his body
with a minor in the car, a class 6 felony (“count four”); and false reporting
to law enforcement, a class 1 misdemeanor (“count five”).

¶3 After the verdict, the superior court heard evidence that
Shervington had historical prior felony convictions (“HPFC”) and accepted
a stipulation that he was on probation at the time of the offenses. The State
alleged Shervington had three prior felony convictions, only two of which
qualified as historical priors. At sentencing, the court found all three prior
convictions were historical priors and that Shervington was on probation at
the time of the offenses.

¶4 On count two, a class 4 felony, the court sentenced
Shervington to a presumptive prison term of 10 years as a category-three
repetitive offender under Arizona Revised Statutes (A.R.S.) § 13-703(J). On
count four, the court treated the offense as a class 4 felony and sentenced
Shervington as a non-repetitive offender to a concurrent prison term of 2.5
years. See A.R.S. § 13-702(D) (2020). In addition, the court imposed
$4,622.50 in fines and assessments for each count, citing A.R.S. § 13-3405.

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Decision of the Court

¶5 With authorization from the trial court, Shervington filed a
delayed notice of appeal. Ariz. R. Crim. P. 31.2(a)(3). This court has
jurisdiction under Article 6, Section 9, of the Arizona Constitution, as well
as A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(4).

DISCUSSION

¶6 Shervington does not contest his convictions but alleges
several sentencing errors. Because Shervington raises these issues for the
first time on appeal, this court reviews his sentence for fundamental error.
State v. Henderson, 210 Ariz. 561, 563, ¶ 1 (2005). To obtain relief, a defendant
must prove there was error, that the error was fundamental, and that the
error was prejudicial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
Imposition of an illegal sentence constitutes fundamental error that will be
reversed on appeal. State v. Cox, 201 Ariz. 464, 468, ¶ 13 (App. 2002).

I. Count Four Sentencing Guidelines

¶7 Shervington raises two issues regarding the sentence on
count four. First, he contends, and the State concedes, that the court
erroneously sentenced him as if the crime was a class 4 felony, not a class 6
felony. See A.R.S. § 28-1383(O)(2). Treating the crime as a non-repetitive,
non-dangerous offense, the court sentenced Shervington to a presumptive
term of 2.5 years. The presumptive term for a non-repetitive, non-
dangerous class 6 felony, however, is one year. A.R.S. § 13-702(D). Because
the court erred in treating count four as a class 4 felony rather than a class
6 felony, an unlawful sentence was imposed. We need not remand,
however, because Shervington was on probation at the time he committed
the offenses, and a sentence below the presumptive term is therefore
unavailable. See A.R.S. § 13-708(C) (“A person who is convicted of any
felony offense . . . that is committed while the person is on probation for a
conviction of a felony offense . . . shall be sentenced to a term of not less
than the presumptive sentence.”). A sentence above the presumptive term
is unavailable because the state did not cross appeal. See State v. Dawson, 164 Ariz. 278, 286 (1990).

¶8 This court may correct an unlawful sentence. A.R.S. § 13-
4037(A); State v. Gourdin, 156 Ariz. 337, 339 (App. 1988) (extending the
power under this statute to this court). Accordingly, we correct
Shervington’s sentence on count four from 2.5 years to 1 year.

¶9 Shervington also notes that the court erred in sentencing him
as a non-repetitive offender on count four. After the court found at least
two historical priors, it should have treated count four as a category-three

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Decision of the Court

repetitive offense instead of a category-one, non-repetitive offense.
Although the court should have sentenced Shervington on count four as a
category-three repetitive offender, the error benefited Shervington, and this
court will not correct an illegally lenient sentence absent a timely appeal
from the State. Dawson, 164 Ariz. at 286.

II. Classification of the January 2011 Conviction as a HPFC

¶10 The State alleged that Shervington had three prior
convictions, only two of which qualified as historical priors. Shervington
argues the superior court erred by finding his January 2011 conviction
qualified as a third historical prior. As the State points out, and as
Shervington concedes on appeal, the court correctly designated his other
two convictions as historical priors. Even if the court erred, therefore, the
finding caused him no prejudice because the court sentenced him pursuant
to A.R.S. § 13-703(C) (“two or more historical prior felony convictions”). See
State v. Derello, 199 Ariz. 435, 439, ¶¶ 24-25 (App. 2001) (affirming sentence
when the trial court miscalculated the number of historical priors, but the
correct calculation left the defendant with two or more historical priors).

III. Fines Assessed Against Shervington

¶11 The court imposed fines, assessments and surcharges totaling
$4,622.50 for each count pursuant to A.R.S. § 13-3405(D). As Shervington
argues, that statute applies to drug crimes and does not apply to aggravated
DUI offenses. Nevertheless, the court had the power to impose the same
amount of financial penalties under Title 28. A.R.S. § 28-1383(J)(2)–(5).
“When we are able to ascertain the trial court’s intention by reference to the
record, remand for clarification is unnecessary.” State v. Neese, 239 Ariz. 84,
89, ¶ 24 (App. 2016) (quoting State v. Contreras, 180 Ariz. 450, 453 n.2 (App.
1994)). Therefore, the minute entry is amended to reflect the fines under
A.R.S. § 28-1383(J)(3) and the remaining assessments arising under A.R.S.
§§ 28-1383(J)(2), -1383(J)(4), and -1383(J)(5).

IV. Consecutive Fines

¶12 The minute entry did not clearly order the fines and
assessments in count two and count four to run concurrently. Arizona law
requires fines to be concurrent if two separate counts arise out of a single
act. State v. McDonagh, 232 Ariz. 247, 251, ¶ 18 (App. 2013) (holding that
assessments for separate DUI convictions arising from a single act are
statutorily required to be concurrent, such that “payment of the
Assessments on one count is credited to payment on [the other counts]”).

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Decision of the Court

The sentencing order is amended to reflect that the fines and assessments
for each count are concurrent.

CONCLUSION

¶13 Shervington’s convictions and sentences are affirmed, as
modified. As stated above, Shervington is sentenced to concurrent
sentences of 10 years’ incarceration on count two and 1 year on count four.
In addition, the fines and assessments are imposed pursuant to A.R.S. § 28-
1383(J)(2)-(5) and run concurrently.

AMY M. WOOD • Clerk of the Court
FILED: AA

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