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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          HENRY DAVIS, Appellant.

                             No. 1 CA-CR 18-0653
                               FILED 12-24-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-115737-001
                     The Honorable Erin Otis, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                             STATE v. DAVIS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            Henry Davis appeals his felony and misdemeanor sentences,
which imposed concurrent terms in the Arizona Department of Corrections
(“the DOC”) and the Maricopa County Jail. Because A.R.S. § 13-707
prohibits misdemeanor sentences from being served in the state prison,
Davis’s concurrent misdemeanor sentence constitutes fundamental error.
We have the authority to correct sentencing errors without a remand,
however, where the trial court’s intent is clearly expressed in the record. See
A.R.S. § 13-4037(A); see State v. Gourdin, 156 Ariz. 337, 339–40 (1988).
Because the trial court expressed its intent to terminally dispose of Davis’s
misdemeanor conviction, we affirm his misdemeanor sentence as modified.
We also affirm his conviction and felony sentence.

                              BACKGROUND

¶2              Davis was convicted of Misconduct Involving Weapons
(Count 1) and Possession or Use of Marijuana (Count 2) in two separate
trials. At his first trial, a jury found him guilty of the weapons charge and
found aggravating circumstances applied. Because it was designated a
misdemeanor, the possession charge was prosecuted separately in a bench
trial, where the trial court found Davis guilty.

¶3            A single sentencing hearing was conducted by the judge who
presided over both trials. For Count 1, a class 4 felony, the court sentenced
Davis as a category three repetitive offender to the presumptive term of ten
years in the DOC. See A.R.S. § 13-703(J). Finding “terminal disposition . . .
appropriate” for Count 2, a class 1 misdemeanor, the court then sentenced
Davis on the possession charge to a concurrent term of six months to be
served in the Maricopa County Jail. See A.R.S. § 13-707(A)(1). The court
ordered both sentences to begin on September 5, 2018, and assigned Davis
75 days of presentence incarceration credit for both counts. Davis’s counsel
did not object to these sentences, and Davis timely appealed.




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                              STATE v. DAVIS
                             Decision of the Court

                                 DISCUSSION

¶4              Davis raises a single issue on appeal―a sentence in the
Maricopa County Jail imposed concurrently with a sentence in the DOC
constitutes an illegal sentence. See A.R.S. § 13-707(A) (“imprisonment for a
misdemeanor shall be . . . served other than a place within custody of the
state department of corrections”). Because Davis did not object at
sentencing, our review is for fundamental error. See State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005); see also State v. Vargas–Burgos, 162 Ariz. 325, 327
(App. 1989) (legality of sentence may be properly appealed despite failure
to object in trial court). Davis bears the burden of establishing that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him prejudice.”
State v. Smith, 219 Ariz. 132, 136, ¶ 21 (2008); State v. Escalante, 245 Ariz. 135,
142, ¶ 21 (2018).

¶5            The imposition of an illegal sentence is fundamental error.
State v. Pesqueira, 235 Ariz. 470, 478, ¶ 29 (App. 2014); State v. Thues, 203
Ariz. 339, 340, ¶ 4 (App. 2002). The court’s imposition of six months for the
misdemeanor possession charge was illegal because, by requiring Davis to
serve the six months of jail time concurrently with imprisonment in the
DOC, the court imposed a sentence that is incompatible with the applicable
sentencing statute, § 13-707(A).1 See State v. Gonzales, 141 Ariz. 512, 513
(1984) (sentence inconsistent with sentencing statute is illegal). The State
concedes the sentence is “technically” illegal but argues it is illegally
lenient. Based on this assertion, the State claims we lack jurisdiction to
disturb the sentence under State v. Dawson, 164 Ariz. 278 (1990).
Alternatively, the State argues that an illegally lenient sentence is not
fundamental error.

¶6              The imposition of an illegally lenient sentence may be
harmless error. See State v. Kinslow, 165 Ariz. 503, 507 (1990) (imposition of
sentence with parole eligibility under statutory minimum was harmless
error); but see State v. Ortiz, 104 Ariz. 493, 495 (1969) (“An illegal sentence is
no sentence at all.”). A sentence is illegally lenient when correcting the error
“inures to the detriment of a criminal defendant.” Dawson, 164 Ariz. at 286.
Davis’s misdemeanor sentence is not illegally lenient because the effect of
the sentencing error is uncertain. The State argues correcting the sentencing
error would only harm Davis because “he will never have to serve the



1     Other than challenging the imposition of illegally concurrent
sentences, Davis does not directly challenge his felony sentence.



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                              STATE v. DAVIS
                             Decision of the Court

6-month jail sentence,” which “will have expired” prior to his release from
the DOC.

¶7             We are not convinced that this outcome is dictated by the very
terms of Davis’s sentences. The State offers no supporting reasons or legal
authority to buttress its claim that Davis’s jail sentence will expire during
his prison term. In fact, after Davis completes his ten-year sentence at the
DOC, his jail sentence will remain, at least technically, unserved. Davis is
concerned that, at the end of his prison sentence, he will be transferred to
the county jail to serve the remainder of his misdemeanor sentence. The
State argues his concern is “unfounded,” citing a Maricopa County Sheriff’s
Office (“MCSO”) policy which states that “[a] concurrent sentence shall be
served at the same time as any other sentence that the inmate serves.” See
MCSO, Policy No. DM-2, Computation of Projected Release Dates 1 (Mar.
13, 2018), https://www.mcso.org/documents/Policy/Detention/DM-
2.pdf (effective date Dec. 4, 2015).

¶8            Even were we to take judicial notice of this policy, the MCSO
cannot correct an illegally imposed sentence―that power rests squarely
with the judicial branch of government.2 State v. Prentiss, 163 Ariz. 81, 85
(1989) (noting judiciary’s sole and unrestricted power to “decid[e] what a
sentence should be” within statutory sentencing limits). Further, the
uncertainty surrounding Davis’s illegal concurrent sentencing raises due
process concerns. The illegality of his sentence is not lenient—it is
inherently prejudicial.3

¶9            The sentencing error here was fundamental and prejudicial.
Davis’s misdemeanor sentence must therefore be modified. Although
remand may be appropriate for the imposition of unlawful concurrent
prison and jail sentences, see, e.g., State v. Harris, 134 Ariz. 287, 287 n.1, 289
(App. 1982), we have independent authority to correct sentencing errors if
the trial court’s intent is clearly expressed in the record. See A.R.S.
§ 13-4037(A); see Gourdin, 156 Ariz. at 339–40 (reducing length of sentence
to fulfill State and Defendant’s expectations for plea bargain where
negotiated presentence incarceration credit was illegal). Sentence
modification only requires a remand if it would affect a substantial right of

2       See In re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000) (Arizona Rule
of Evidence 201 allows appeals court to take notice of anything of which
trial court could have taken notice).
3       Because we do not find Davis’s sentence to be illegally lenient, we
need not further address the State’s arguments based on that premise.



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                             STATE v. DAVIS
                            Decision of the Court

the defendant or if it involves sentencing discretion. State v. Davis, 105 Ariz.
498, 502 (1970) (“modification of a judgment which affects the substantial
rights of a defendant requires his presence”); State v. Pena, 209 Ariz. 503,
509, ¶ 23 (App. 2005) (“The exercise of sentencing discretion is the trial
judge’s, not ours.”).

¶10           Because these concerns are not implicated here and because
the trial court’s intent is clear from the record, modification of Davis’s
sentence does not require remand. At the sentencing hearing, the trial court
expressly stated that terminal disposition of the misdemeanor conviction
“[wa]s appropriate.” The State and Davis both advocated in support of this
terminal disposition. We conclude the trial court’s intention was to impose
a ten-year sentence for the felony conviction and to terminally dispose of
the misdemeanor charge. The fact that Davis lacked sufficient presentence
incarceration credit to effect this terminal disposition does not disturb this
conclusion, when considered in a comprehensive review of the sentencing
hearing.

¶11           In light of this clearly expressed intent, modification of
Davis’s sentence for the misdemeanor (Count 2) is appropriate. Thus, we
modify his sentence for the misdemeanor from six months in jail to 75 days
in the county jail with credit for the 75 days he served prior to sentencing.
This modification will effectuate the terminal disposition intended by the
trial court within the bounds of the applicable sentencing provisions. See
A.R.S. § 13-703(J) (presumptive term of ten years for class 4 felony and
category three repetitive offender); see § 13-707(A)(1) (maximum term of six
months for class 1 misdemeanor).

                               CONCLUSION

¶12          Because the imposition of an illegal sentence for the
misdemeanor possession charge (Count 2) was fundamental error, we
modify that sentence from a concurrent term of six months to a concurrent
term of 75 days with credit for time served. Because Davis challenges




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                           STATE v. DAVIS
                          Decision of the Court


neither his convictions nor the sentence imposed for the felony weapons
charge (Count 1), we affirm his convictions on both counts, and we affirm
his sentence for the felony.




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




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