State v. Sholes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SEANATHON JOICLAIRE SHOLES, Appellant.

No. 1 CA-CR 21-0497
FILED 10-27-2022

Appeal from the Superior Court in Maricopa County
No. CR2019-005381-001
The Honorable Laura M. Reckart, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Diane Leigh Hunt
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant

STATE v. SHOLES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 Defendant Seanathon Joiclaire Sholes appeals from her
probation grant for assault and for resisting arrest, challenging the
imposition of $35 in financial consequences on the resisting arrest
conviction. Because the consequences are not authorized by law, they are
vacated. Sholes’ probation grants are affirmed as modified to remove those
consequences.

FACTS AND PROCEDURAL HISTORY

¶2 After a bench trial on charges arising out of an August 2018
incident in Phoenix, Sholes was convicted of two Class 1 misdemeanors:
Count 1, assault, a domestic violence offense, and Count 4, resisting arrest.

¶3 At sentencing, the court placed Sholes on concurrent
unsupervised probation grants for 18 months and imposed financial
consequences. As reflected in the written sentencing order, for Count 1, the
court imposed a $50 address confidentiality program assessment; a $50
family offense assessment; a $20 probation assessment; a $20 time payment
fee; a $13 criminal penalty assessment; and a $2 victim rights enforcement
assessment to total $155. For Count 4, the written sentencing order shows
another $20 time payment fee; another $13 criminal penalty assessment;
and another $2 victims’ rights enforcement assessment, totaling $35.

¶4 This court has jurisdiction over Shole’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A).

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STATE v. SHOLES
Decision of the Court

DISCUSSION

¶5 “Where there is a discrepancy between the oral sentence and
the written judgment, the oral pronouncement of sentence controls.” State
v. Hanson, 138 Ariz. 296, 304-05 (App. 1983). Both Sholes and the State agree
that the court did not impose the $35 consequences for Count 4 in open
court at sentencing and that doing so, for the first time, in the written
sentence order is improper. Given this error, Sholes asks this court to vacate
the $35 consequences for Count 4. The State seeks a resentencing, arguing
the issues Sholes raises “are not presently ripe because the trial court might
not impose any of them on remand.”

¶6 Arizona law does not authorize the $35 consequences for
Count 4. The $20 time payment fee, the $13 criminal penalty assessment and
the $2 victims’ rights enforcement assessment each require a predicate fine,
penalty or forfeiture. See A.R.S. § 12-116(A); A.R.S. § 12-116.04(A); A.R.S. §
12-116.09(A). Here, the court imposed no such predicate fine, penalty or
forfeiture for Count 4. See State v. Dustin, 247 Ariz. 389 (App. 2019).

¶7 A time payment fee is proper only if the “court imposed a
specific stand-alone penalty, fine or sanction that [the defendant] did not
pay on the date of sentencing.” Dustin, 237 Ariz. at 390–91 ¶ 5. The time
payment fee is assessed on the defendant, not on each count, fee, fine or
assessment. See A.R.S. § 12-116(A). Sholes has already properly been
assessed a time payment fee for Count 1, meaning the time payment fee
assessed for Count 4 was not authorized by law.

¶8 “The [criminal] penalty assessment. . . is not a stand-alone
obligation—it requires that some other fine, penalty or forfeiture be
imposed as a predicate, similar to the requirements of the time payment
fee.” Dustin, 237 Ariz. at 392 ¶ 12; see also A.R.S. § 12-116.04(A). Because
there was no fine, penalty or forfeiture imposed for Count 4, the criminal
penalty assessment for Count 4 was not authorized by law. Similarly, the
victims’ rights enforcement assessment “also requires a predicate fine,
penalty, or forfeiture.” Dustin, 237 Ariz. at 392 ¶ 12; see also A.R.S. § 12-
116.09(A). Because there was no fine, penalty or forfeiture imposed for
Count 4, the victims’ rights enforcement assessment for Count 4 was not
authorized by law.

¶9 Because the court did not impose any predicate fine, penalty
or forfeiture for Count 4, the $35 consequences are not authorized by law.
Although requesting a remand, the State has not shown that the
consequences for Count 4 constitute an illegal sentence and did not cross-

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STATE v. SHOLES
Decision of the Court

appeal from the sentence. Thus, no remand is needed, and this court
modifies the sentencing order as to Count 4 so that no financial
consequences are imposed for that conviction.

CONCLUSION

¶10 Sholes’ probation grants are affirmed as modified to remove
from the consequences for the Count 4 conviction the $20 time payment fee,
the $13 criminal penalty assessment and the $2 victims’ rights enforcement
assessment.

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

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