State v. Dustin ( 2019 )


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  •                                   IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    JOSEPH E. DUSTIN, Appellant.
    No. 1 CA-CR 18-0399
    FILED 8-27-2019
    Appeal from the Superior Court in Yavapai County
    No. P1300CR201701095
    The Honorable Patricia A. Trebesch, Judge, Retired
    AFFIRMED AS MODIFIED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Eric Knobloch
    Counsel for Appellee
    M. Alex Harris PC, Chino Valley
    By M. Alex Harris
    Counsel for Appellant
    OPINION
    Judge Michael J. Brown delivered the opinion of the Court, in which
    Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
    STATE v. DUSTIN
    Opinion of the Court
    B R O W N, Judge:
    ¶1            We address here whether the superior court lawfully
    imposed a “time payment fee” and a “criminal restitution order” at
    sentencing following Joseph E. Dustin’s conviction for unlawful flight from
    a pursuing law enforcement vehicle. We consider other issues Dustin raises
    in a separate memorandum decision. See Ariz. R. Sup. Ct. 111(a)(2), (h);
    Ariz. R. Crim. P. 31.19(f). For the following reasons, we affirm the court’s
    imposition of the time payment fee but vacate the criminal restitution order.
    BACKGROUND
    ¶2           The State charged Dustin with one count of unlawful flight
    from a pursuing law enforcement vehicle, a class 5 felony. After the jury
    returned a guilty verdict, the superior court sentenced Dustin to prison.
    The court imposed no fine authorized by A.R.S. ' 13-801, but it ordered
    Dustin to pay the following: a time payment fee of $20; a public defender
    assessment fee of $25; a probation assessment (formerly known as a
    probation surcharge) of $20; a penalty assessment of $13; and a victim rights
    enforcement assessment of $2. The court then reduced the monetary
    obligations to a criminal restitution order (“CRO”). Dustin timely
    appealed.
    DISCUSSION
    A.     Time Payment Fee
    ¶3            Dustin argues the superior court erred by imposing a time
    payment fee because there was no corresponding penalty, fine or sanction
    that triggered statutory authorization of the fee. See A.R.S. § 12-116.
    Because Dustin did not object at sentencing, we review for fundamental
    error. State v. McDonagh, 
    232 Ariz. 247
    , 248, ¶ 7 (App. 2013). If the time
    payment fee was not authorized by statute, it constitutes an illegal sentence,
    and the court fundamentally erred in imposing it. 
    Id. at 248–49
    (concluding
    that imposing “an unauthorized fine renders a criminal sentence illegal,”
    which “constitutes fundamental error”).
    ¶4            We review the interpretation of statutes de novo. State v.
    Francis, 
    243 Ariz. 434
    , 435, ¶ 6 (2018). “When the statutory language is clear
    and has only one reasonable construction, we apply it according to its plain
    meaning.” 
    Id. We construe
    related statutes together, “seeking to give
    meaning to all provisions.” 
    Id. 2 STATE
    v. DUSTIN
    Opinion of the Court
    ¶5          Our legislature has mandated that trial courts impose a time
    payment fee under the following circumstances:
    In addition to any other assessment authorized by law, a fee of
    twenty dollars shall be assessed on each person who pays a court
    ordered penalty, fine or sanction on a time payment basis,
    including parking penalties, restitution and juvenile
    monetary assessments. A time payment basis shall be any
    penalty, fine or sanction not paid in full on the date the court
    imposed the fine, penalty or sanction. Notwithstanding any
    other law, the time payment fee shall be collected first after
    restitution. A judge may not waive or suspend a time
    payment fee.
    A.R.S. § 12-116(A) (emphasis added). This case does not involve a parking
    penalty, restitution or juvenile monetary assessment. Instead, the propriety
    of the time payment fee turns solely on whether any of the following fees
    the court imposed constitutes a “penalty, fine or sanction”: the public
    defender assessment fee, the probation assessment, the penalty assessment
    or the victim rights enforcement assessment. Unless the superior court
    imposed a specific stand-alone penalty, fine or sanction that Dustin did not
    pay on the date of sentencing, the time payment fee was improper.
    ¶6            In State v. Connolly, 
    216 Ariz. 132
    , 132–33, ¶ 3 (App. 2007), we
    held that an “indigent assessment fee” is not a penalty, fine or sanction that
    can be the basis for imposing a time payment fee. The current version of
    the statute at issue in Connolly is A.R.S. § 11-584(C)(1), which authorizes
    imposition of the indigent administrative assessment fee on defendants
    who receive appointed counsel. The assessment is collected and paid to the
    county “for the cost of the person’s legal services.” See A.R.S. § 11-584(C)(3);
    see also 
    Connolly, 216 Ariz. at 132
    , ¶ 3 (assessment “imposed to reimburse
    the county for costs of legal services”). The sentencing order here described
    the fee as a “Public Defender Assessment Fee [Indigent Assessment Fee].”
    We discern no meaningful distinction between the indigent fee at issue in
    Connolly and the public defender assessment fee imposed in this case; thus,
    the time payment fee cannot be justified on that basis.
    ¶7            The statute authorizing the $20 probation assessment states as
    follows:
    Except as provided in § 12-269(C) [(authorizing a different
    probation assessment for counties having a population
    greater than two million)], in addition to any other penalty,
    3
    STATE v. DUSTIN
    Opinion of the Court
    fine, fee, surcharge or assessment authorized by law, a person
    shall pay an assessment of twenty dollars on conviction of a criminal
    offense or a finding of responsibility for a civil traffic violation,
    for a violation of any local ordinance relating to the stopping,
    standing, or operation of a vehicle, except parking violations,
    or for a violation of the game and fish statutes in title 17.
    A.R.S. § 12-114.01(A) (emphasis added).1
    ¶8             We have described a “fine” as “a pecuniary form of
    punishment or sum of money exacted from a person guilty of an offense.”
    State v. Sheaves, 
    155 Ariz. 538
    , 541 (App. 1987). Put another way, “[a] fine is
    a criminal penalty that constitutes a sentence,” State v. Marquez-Sosa, 
    161 Ariz. 500
    , 503 (App. 1989), and is “imposed upon the defendant after a
    judgment of guilty,” State v. Payne, 
    223 Ariz. 555
    , 565, ¶ 31 (App. 2009)
    (citation and quotations omitted).
    ¶9             In determining whether an assessment is a fine, we consider
    the following factors: “(1) when the assessment could be recovered; (2) to
    whom the assessment was paid; and (3) any other indications suggesting
    the assessment was a fine rather than restitution or civil penalty.” 
    Payne, 223 Ariz. at 565
    , ¶ 33; see 
    Sheaves, 155 Ariz. at 541
    –42. In Sheaves, we
    addressed whether a “felony penalty assessment” constituted a fine and,
    therefore, a sentence for double punishment 
    purposes. 155 Ariz. at 541
    . The
    authorizing statute stated, in relevant part:
    A. In addition to any other fine or assessment, each person
    convicted of a felony shall be assessed a penalty of:
    1. One hundred dollars if the person is an individual
    ...
    B. Monies received pursuant to this section shall be
    transferred to the victim compensation fund . . . .
    1      The legislature amended § 12-114.01, effective Jan. 1, 2019. See 2018
    Ariz. Sess. Laws Ch. 237, § 1 (53d Leg., 2d Reg. Sess.). Because the
    amendment did not materially change the statute as it applies here, we cite
    the current version of the statute.
    4
    STATE v. DUSTIN
    Opinion of the Court
    A.R.S. § 13-812 (1986), repealed by 1993 Ariz. Sess. Laws, ch. 243, § 18 (1st
    Reg. Sess.). Applying the three factors, we concluded that the felony
    assessment imposed pursuant to § 13-812 was a fine:
    First, the felony penalty is a form of pecuniary punishment
    imposed by sentencing courts upon each person convicted of
    a felony. Second, the monies recovered under the statute go
    to the people of the State of Arizona by way of a legislatively
    created fund—the victim compensation fund. Finally, there
    is no indication that the felony penalty assessment is a civil
    penalty or restitution.
    
    Sheaves, 155 Ariz. at 541
    –42. The Sheaves court also noted that although the
    victim compensation fund was intended to compensate crime victims, the
    felony penalty assessment was required to be imposed on any defendant
    convicted of a felony offense, without regard to whether the offense
    involved an identifiable victim. 
    Id. at 541.
    As a result, “the manner in which
    [the assessment] is imposed . . . comports with the definition of ‘fine.’” Id.;
    see also 
    Payne, 223 Ariz. at 564
    –65, ¶¶ 31–34 (applying Sheaves and
    concluding a “prosecution fee” imposed on every convicted defendant
    constituted a fine, not a “remedial or compensatory assessment or fee[]”).
    ¶10            Using the same analysis, the probation assessment imposed
    here is likewise a fine. First, as relevant here, the probation assessment is
    imposed at the time of sentencing and only upon a defendant who has been
    convicted of a criminal offense. A.R.S. § 12-114.01(A) (“[I]n addition to any
    other penalty, fine, fee, surcharge or assessment authorized by law, a
    person shall pay an assessment of twenty dollars on conviction for a
    criminal offense.”). Second, the collected monies are deposited in a
    legislatively created account, the “judicial collection enhancement fund.”
    A.R.S. § 12-114.01(B); see A.R.S. § 12-113 (establishing the judicial collection
    enhancement fund). Third, § 12-114.01(A) does not indicate that the
    probation assessment is a civil penalty (as contemplated in Sheaves) or
    restitution. Nor, unlike the indigent assessment fee at issue in Connolly, is
    the probation assessment tied to the particular defendant’s use of public
    services or other circumstances that may vary from one case to another. See
    
    Connolly, 216 Ariz. at 132
    , ¶ 3. Though the probation assessment may have
    other ramifications in the civil context, here, “it effectively penalizes those
    defendants convicted of a [crime] after trial and thus essentially constitutes
    a fine.” 
    Payne, 233 Ariz. at 565
    , ¶ 34.
    ¶11        For these reasons, we hold that a probation assessment
    imposed under § 12-114.01 constitutes a fine that allows imposition of the
    5
    STATE v. DUSTIN
    Opinion of the Court
    $20 time payment fee. Given this holding, we need not address whether
    the probation assessment also constitutes a penalty or sanction within the
    meaning of § 12-116(A). Nor do we consider whether a probation
    assessment imposed under § 12-114.01 in a non-criminal proceeding
    constitutes a penalty, fine or sanction.
    ¶12            The State argues the time payment fee also was proper based
    on the $13 penalty assessment. According to the plain language of A.R.S.
    § 12-116.04, however, the penalty assessment mandated by that statute 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. See A.R.S. § 12-116.04(A) (“In addition to any other penalty
    assessment provided by law, a penalty assessment shall be levied in an
    amount of thirteen dollars on every fine, penalty and forfeiture imposed and
    collected by the courts for criminal offenses.”) (emphasis added). As we
    have held, the probation assessment the court imposed on Dustin was a
    “fine.” Having imposed a fine on Dustin when it imposed the probation
    assessment, the court also properly imposed the “penalty assessment.” The
    same is true with the $2 victim rights enforcement assessment under A.R.S.
    § 12-116.09, which also requires a predicate fine, penalty or forfeiture.
    B.      Criminal Restitution Order
    ¶13            At sentencing, the superior court ordered that Dustin’s “fines
    and fees be reduced to a criminal restitution order.” Dustin argues the
    imposition of the CRO is fundamental, prejudicial error because he had not
    completed his sentence or absconded; nor was he placed on probation. The
    State concedes the error. Imposing a criminal restitution order that
    encompasses fees and assessments before the sentence expires or the
    defendant absconds is an illegal sentence constituting fundamental,
    reversible error. State v. Cota, 
    234 Ariz. 180
    , 184–85, ¶ 15 (App. 2014); State
    v. Lopez, 
    231 Ariz. 561
    , 562, ¶ 2 (App. 2013); see also A.R.S. § 13-805(B), (C)(1).
    Accepting the State’s concession of error, we vacate the CRO.
    6
    STATE v. DUSTIN
    Opinion of the Court
    CONCLUSION
    ¶14         Dustin’s conviction is affirmed; his sentence is affirmed as
    modified.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    7
    

Document Info

Docket Number: 1 CA-CR 18-0399

Filed Date: 8/27/2019

Precedential Status: Precedential

Modified Date: 8/27/2019