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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appellee ,

v.
SEANATHON JOICLAIRE SHOLES , Appellant

.

No. 1 CA

- CR 21

- 0497

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 C ounsel for Appellant FILED 10-27-2022STATE v. SHOLES Decision of the Court

2 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 th e consequence s 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 a n 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 , t he court placed Sholes on concurrent unsupervised probation grants for 18 months and imposed financial consequences

. As reflected in th e written sentencing order, for Count 1, the court imposed a $50 address confidentiality program assessment; a $50 family offense assessment; a $20 p robation a ssessment ; a $20 time payment fee; a $13 criminal penalty assessment ; and a $2 v ictim r ights e nfo rcement

a ssessment to total $ 1 55. For Count 4, the written sentencing order shows

a nother $20 t ime p ayment f ee ; a nother $13 c riminal p enalty a ssessment ; and another $2 v ictim s’ r ights e nforcement a ssessment , 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).STATE v. SHOLES Decision of the Court

3 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 as ks this court to vacate the $35 consequences for Count 4

. T he 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

. T he $20 time payment fee, the $13 criminal penalty assessment and the $2 vic tim s’ 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, t he 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 sentencin g .” 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). Shole s has already properly been assessed a time payment fee for Count 1 , meaning the time payment fee assessed for Count 4 was n ot 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 ; s ee 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, t he victim s’ rights enforcement assessment “also requires a predi cate fine, penalty, or forfeiture.” Dustin , 237 Ariz. at 392 ¶ 12 ; see also A.R.S. § 12

- 116.09(A). Because t here was no fine, penalty or forfeiture imposed for Count 4, the victims’ rights enforcement assessment for Count 4 was not authorized by law.
¶9 Becau se 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 di d not cross

-STATE v. SHOLES Decision of the Court

4 appeal from the sentence. Thus, no remand is needed, and t his 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.