Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41441-4-II

                             Respondent,

       v.

THURMAN FINLEY SHERRILL,                                   UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Thurman Sherrill appeals the trial court's resentencing on a 2003 first 

degree assault conviction, specifically the firearm sentencing enhancement.  He asserts that the 

trial court improperly refused to consider his argument that the sentencing enhancement should be 

vacated under State v. Bashaw1 and that the trial court erred in imposing the sentencing 

enhancement.  We affirm.

                                            FACTS

       In 2002, the State charged Thurman Sherrill with first degree assault,2 with  a  firearm 

sentencing enhancement,3 and first degree unlawful possession of a firearm

1 169 Wn.2d 133, 234 P.3d 195 (2010).

2 RCW 9A.36.011(1)(a).
3 Former RCW 9.94A.510(3)(a) (Supp. 2001). 

No. 41441-4-II

4 for shooting a man four times. 

       A jury convicted Sherrill on both counts and found by special verdict that he had 

committed the assault while armed with a firearm.  In 2003, the trial court sentenced Sherrill 

within the standard range, and it imposed the mandatory 60-month sentencing enhancement on 

the assault conviction.

       In 2009, we granted Sherrill's personal restraint petition (PRP) challenging a 1996 drug 

conviction.  We remanded the 1996 case for Sherrill to withdraw his guilty plea; and, on remand, 

the State dismissed the case. Sherrill then appealed his 2003 sentence for his 2002 case, arguing 

that the judgment and sentence was facially invalid  because  it was based on a now-incorrect 

offender score that had included the now-dismissed 1996 drug conviction.  The State agreed that 

the 2003 judgment and sentence was invalid and that Sherrill was entitled to resentencing with his 

corrected offender score.  We again remanded to the trial court for resentencing.

       At resentencing in 2010, Sherrill argued that he was entitled, not only to a corrected 

offender score, but also to the withdrawal of the firearm enhancement because under Bashaw the 

sentencing enhancement jury instruction improperly suggested a unanimity requirement.   The trial 

court heard arguments regarding whether imposition of the mandatory sentencing enhancement 

could be addressed at resentencing.  Ultimately, the trial court determined that the only issue on 

remand was to correct Sherrill's offender score and impose a sentence within the standard range.  

The trial court recalculated the offender score,  sentenced Sherrill within the standard range, and 

added the mandatory 60-month sentencing enhancement to the first degree assault sentence.  

4 Former RCW 9.41.040(1)(a) (1996).

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No. 41441-4-II

Sherrill appeals.

                                          ANALYSIS

                         I.  Refusal to Consider Appellant's Arguments

       Sherrill asserts that the trial court erred and violated RAP 12.2 and our remand order by 

applying the firearm sentencing enhancement on remand.  We disagree. 

       Appellate court actions govern all subsequent proceedings in any trial court.  RAP 12.2.  

Following a remand for resentencing, a trial court's discretion is limited by the scope of the 

appellate court's mandate.  State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009).  And, trial 

courts must strictly comply with directives from appellate courts that leave no discretion to the 

trial court.  State v. Schwab, 134 Wn. App. 635, 645, 141 P.3d 658 (2006), aff'd, 163 Wn.2d 

664, 185 P.3d 1151 (2008). Appellate courts apply an abuse of discretion standard in reviewing a 

trial court's resentencing decision on remand.  See Kilgore, 167 Wn.2d at 42-43.

       Where a trial court exercises no independent judgment on remand, there is no issue to 

review on appeal because the original judgment and sentence remains final and intact.  Kilgore, 

167 Wn.2d at 40.  Where one portion of a sentence is found to be erroneous, that erroneous 

portion does not undermine the otherwise valid part of the sentence.  State v. Rowland, 160 Wn. 

App. 316, 328, 249 P.3d 635, review granted, 172 Wn.2d 1014 (2011).  And, we may remand for 

resentencing due to an erroneous offender score but leave otherwise valid sentences intact.  

Rowland, 160 Wn. App. at 328; see Kilgore, 167 Wn.2d at 37 ("'[T]he finality of that portion of 

the judgment and sentence that was correct and valid at the time it was pronounced' is unaffected 

by the reversal of one or more counts." (quoting In re Pers. Restraint of Carle, 93 Wn.2d 31, 34, 

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No. 41441-4-II

604 P.2d 1293 (1980)).  This was the case here.  

       The trial court properly refused to hear Sherrill's arguments for invalidating his special 

firearm sentencing enhancement because      (1)  reconsideration of  the mandatory sentencing 

enhancement  would have exceeded      the scope of our     resentencing mandate; and,    (2) the 

imposition of the special enhancement was statutorily mandated rather than imposed at the trial 

court's discretion. 

       First, we remanded to the trial court for resentencing because the trial court had applied 

an inaccurate offender score in sentencing Sherrill.5      We, however, did not remand for 

reconsideration of the 60-month sentencing enhancement -- part of his sentence not influenced by 

his offender score.  Therefore, the trial court would have improperly exceeded the scope of our

mandate on remand had it altered the sentencing enhancement.  See Rowland, 160 Wn. App. at 

328.  On remand, we limited the trial court's review to correcting sentencing errors resulting from 

the original offender score miscalculation.

       Second, Sherrill argues, for the first time on appeal, that the trial court's jury instructions

about the sentencing enhancement special verdict were improper.  But, he supports his argument 

with cases involving challenges to a trial court exercising its discretion during sentencing.  See 

State v. White, 123 Wn. App. 106, 97 P.3d 34 (2004) (affirming the trial court's discretion to 

decline imposing a  Drug Offender Sentencing Alternative sentence on remand, after having 

5 Specifically, we explained in the order: 
       The State concedes that the judgment and sentence in the 2002 case is facially 
       invalid and that Sherrill is entitled to be resentenced without inclusion of the 
       conviction in the now-dismissed 1996 case in his criminal history.  We accept the 
       State's concession and remand to the trial court for resentencing.  
Clerk's Papers at 153.

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No. 41441-4-II

previously imposed it); State v. Harrison, 148 Wn.2d 550, 61 P.3d 1104 (2003) (reversing a 

discretionary exceptional sentence imposed by the trial court). These cases demonstrate that a 

trial court may, on a remand for resentencing, reevaluate discretionary sentences; but, Sherrill's 

case differs.

       Here, the trial court could not exercise independent discretion in applying the sentencing 

enhancement, as state law mandated its imposition.  RCW 9.94A.533(3).  Therefore, the trial 

court did not abuse its discretion in refusing to consider Sherrill's arguments regarding whether or 

not the new sentence should include the sentencing enhancement.  See Kilgore, 167 Wn.2d at 40.

                          II.  Validity of the Sentencing Enhancement

       Sherrill argues that the trial court erred by imposing a special 60-month sentence 

enhancement because the enhancement was invalid and improper under Bashaw, 169 Wn.2d 133. 

The State responds that Sherrill failed to preserve this issue for appeal; and, even if he did 

preserve the issue -- and the instructions were improper -- any error was harmless.  The State is 

correct.

       Generally, a party cannot raise an issue for the first time on appeal unless it is a "manifest 

error affecting a constitutional right." RAP 2.5(a).  The appellant has the initial burden of 

showing that (1) the error is "truly of constitutional dimension" and (2) the error was "manifest."  

State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).  An appellant cannot simply assert that 

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No. 41441-4-II

an error occurred at trial and label the error "constitutional"; instead, he must identify an error of 

constitutional magnitude and show how the alleged error actually affected his rights at trial.  State 

v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).     If an appellant successfully shows that a 

claim raises a manifest constitutional error, then the burden shifts to the State to prove that the 

error was harmless beyond a reasonable doubt under the Chapman6 standard.  Gordon, 172 

Wn.2d at 676.

       To determine whether an error is truly of a constitutional dimension, appellate courts first 

look to the asserted claim and assess whether, if the claim is correct, it implicates a constitutional 

interest, as compared to another form of trial error.  O'Hara, 167 Wn.2d at 98.  Jury instruction 

errors, however, are not automatically constitutional in magnitude.  See O'Hara, 167 Wn.2d at 

106.  We recently held that jury instruction errors requiring jury unanimity to answer "no" on the 

special sentencing-enhancement verdict form are not constitutional in nature.  State v. Grimes, 

165 Wn. App. 172, 189, 267 P.3d 454 (2011).

       When we conclude that an error is of a constitutional magnitude, we must then determine 

whether the error was manifest.  O'Hara, 167 Wn.2d at 99.  For an error to be "manifest," the 

appellant must show that the asserted error had practical and identifiable consequences at trial.  

Gordon, 172 Wn.2d at 676.  To ascertain whether, given what the trial court knew at that time, 

the trial court could have corrected the alleged error, the appellate court must place itself in the 

shoes of the trial court when determining if an alleged error had an identifiable consequence.  

6 Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (noting that 
the State bears the burden to show harmless error beyond a reasonable doubt).

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No. 41441-4-II

O'Hara, 167 Wn.2d at 100.

       If an alleged error is both "manifest" and of "constitutional magnitude," the reviewing 

court usually will address the merits of the claim and determine whether, in the context of the 

entire record, the error is harmless beyond a reasonable doubt.  O'Hara, 167 Wn.2d at 98.  To 

find an error harmless beyond a reasonable doubt, from the record, an appellate court must find 

that the alleged instructional error did not contribute to the verdict obtained.  State v. Brown, 147 

Wn.2d 330, 344, 58 P.3d 889 (2002).

       Sherrill failed to object to the jury instructions at trial.  Now on appeal, he fails to identify 

a specific constitutional interest affected by the alleged jury instruction error. Therefore, he failed 

to preserve this issue for appeal.  RAP 2.5(a).  See Grimes, 165 Wn. App. at 189.

       Sherrill simply cites Bashaw, 169 Wn.2d 133; yet, the Supreme Court noted in Bashaw  

that jury instruction errors like those involved in Sherrill's case do not constitute an error of 

constitutional magnitude, but are instead the product of Washington common law.7  Bashaw, 169 

Wn.2d at 146, n.7; See Grimes, 165 Wn. App. at 189.  And, because the allegedly erroneous jury 

instruction does not rise to a level of constitutional magnitude, we do not need to inquire whether 

the alleged error was "manifest" or "harmless."   For this reason, we deny Sherrill's request to 

vacate his firearm sentencing enhancement.8

7 The Supreme Court in Bashaw applied a constitutional harmless error analysis after determining 
the instruction was erroneous (see Bashaw, 169 Wn.2d at 147).  The court neither expressly 
addressed nor held that the error was constitutional in nature for purposes of the RAP 2.5(a) 
exception.

8 Even if the jury instruction error requiring unanimity were of constitutional magnitude, Sherrill 
must show practical and identifiable consequences at trial.  See Gordon, 172 Wn.2d at 676.  He 
cannot demonstrate any actual manifest prejudice resulting from this error.  Finally, the error was 

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No. 41441-4-II

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

               Armstrong, P.J.

                   Hunt, J.

harmless. The jury convicted Sherrill of first degree assault -- a crime in which the victim suffered 
multiple gunshot wounds.  Clearly the jury unanimously believed Sherrill to be armed.  Absent an 
error in the jury instruction on the special verdict form, Sherrill fails to demonstrate how the jury 
would have unanimously convicted him of shooting another man -- without possessing a firearm.  
Therefore, any error in the instruction was harmless.

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