State v. DiGeno
| Decision Date | 29 June 2021 |
| Docket Number | No. 2 CA-CR 2020-0192-PR,2 CA-CR 2020-0192-PR |
| Citation | 251 Ariz. 549,494 P.3d 1117 |
| Court | Arizona Court of Appeals |
| Parties | The STATE of Arizona, Respondent, v. Leonard Michael DIGENO, Petitioner. |
Bradley D. Beauchamp, Gila County Attorney By Diana L. Kanon, Deputy County Attorney, Globe, Counsel for Respondent
Harriette P. Levitt, Tucson, Counsel for Petitioner
Presiding Judge Eppich authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
¶1 Leonard Digeno seeks review of the trial court's order summarily dismissing his petitions for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry , 237 Ariz. 507, ¶ 7, 353 P.3d 847 (2015). Digeno has not met his burden of establishing such abuse here.
¶2 In October 1994, the presiding judge of Gila County Superior Court signed Administrative Order No. 94-ELD16. The order provides: "A Cost of Prosecution Fund has been established wherein persons who have admitted or been found guilty of violating the laws in Gila County, may be ordered to contribute to the cost incurred by both the County Attorney's Office and the Superior Court in resolving these matters." It then lists the potential costs to the county attorney and to the court. And it orders that "upon receipt of monies for Costs of Prosecution, the Clerk of the Superior Court" must transfer sixty percent to the County Attorney's Cost of Prosecution Fund and forty percent to the superior court, with thirty percent going to Superior Court Cost of Prosecution Fund and ten percent going to the Clerk of the Court Cost of Prosecution Fund. It also identifies the account numbers of each fund.
¶3 Almost twenty-five years later, pursuant to a plea agreement in CR201800521, Digeno was convicted of attempted aggravated assault. The plea agreement provided that, subject to the trial court's approval, the parties stipulated Digeno "must pay $750 to the Cost of Prosecution Fund." The court suspended the imposition of sentence, placed Digeno on thirty-six months’ probation, and ordered Digeno to pay the "Cost of Prosecution" assessment consistent with the plea agreement.
¶4 Less than a year later, pursuant to a plea agreement in CR201900391, Digeno was convicted of possession of drug paraphernalia. The plea agreement again provided that subject to the trial court's approval, the parties stipulated Digeno "must pay $750 to the Cost of Prosecution Fund." Based on the plea agreement in CR201900391, the court also found Digeno had violated the conditions of his probation in CR201800521. For the two cases, the court sentenced Digeno to concurrent prison terms, the longer of which was 2.5 years. In CR201900391, the court additionally ordered that Digeno pay the "Cost of Prosecution" assessment consistent with the plea agreement.
¶5 Digeno sought post-conviction relief in both cases, and the trial court appointed counsel. In his petition in CR201900391, Digeno argued that "[t]he imposition of a cost of prosecution fee is illegal, and has been since 2009." He relied on State v. Payne , 223 Ariz. 555, 225 P.3d 1131 (App. 2009), and asked the court to vacate the $750 "prosecution fee." Digeno further requested that the court "direct the Gila County Attorney's Office to delete from its plea agreements any provision requiring payment of a prosecution fee." In his petition in CR201800521, Digeno made the same "prosecution fee" argument, and he also raised a claim of ineffective assistance of counsel.1
¶6 In response to Digeno's "prosecution fee" argument, the state asserted that Payne was inapplicable because it "dealt solely with a County's ability to impose a cost of prosecution through a county ordinance." The state pointed out that "[t]he cost of prosecution in these cases ... stems from an administrative order issued by the Gila County Superior Court." The state further reasoned that the cost-of-prosecution assessment was "a voluntary undertaking made by [Digeno in] resolving his case through a plea agreement," was only imposed in practice "when it ha[d] been voluntarily agreed to by the Defendant as part of a negotiated plea agreement," and was "not illegal."
¶7 The trial court summarily dismissed Digeno's petitions.2 It determined that "the $750 prosecution fee imposed as part of the negotiated plea agreement does not violate the holding" in Payne . With regard to CR201800521, the court also concluded that Digeno had failed to establish that his counsel's conduct "fell below prevailing norms" for his claim of ineffective assistance.3 This consolidated petition for review followed.
¶8 As he did below, Digeno relies on Payne to argue that the "prosecution fee" imposed in both of his cases was illegal. He recognizes that trial courts are "authorized to collect fees and assessments pursuant to statute," but he argues they do not "have the authority to issue an administrative order for the creation[,] collection and distribution of a prosecution fee." And because there is "no constitutional or statutory authority" for the "prosecution fee," Digeno reasons that it is illegal, regardless of his agreement to it as part of his plea.
¶9 As a preliminary matter, we agree with Digeno that an illegal sentence—even one stipulated to in a plea agreement—must be corrected if timely raised. See State v. Robertson , 249 Ariz. 256, ¶¶ 22–24, 468 P.3d 1217 (2020). An unauthorized prosecution fee constitutes an illegal sentence. Payne , 223 Ariz. 555, ¶ 14, 225 P.3d 1131. And a claim that a sentence is not authorized by law may be raised in a post-conviction proceeding. See Ariz. R. Crim. P. 33.1(c), 33.2(b), 33.4(b)(3)(B). Accordingly, if the "prosecution fee" at issue here is unauthorized, it is illegal and cannot become legal because it was contained in the plea agreements that Digeno had signed. To the extent the trial court's dismissal of Digeno's petitions rested on this basis, the court erred. See State v. Pandeli , 242 Ariz. 175, ¶ 4, 394 P.3d 2 (2017) ().
¶10 In Payne , the trial court imposed on several convicted defendants at sentencing a $1,000 "prosecution fee," pursuant to a Pinal County Ordinance, that was payable to the county and deposited into a fund benefitting the Pinal County Attorney's Office.
223 Ariz. 555, ¶ 1, 225 P.3d 1131. The ordinance directed, "Upon a defendant's conviction at trial, the Justice Court shall, and the Superior Court is requested, to impose and collect a Prosecution Fee pursuant to the Prosecution and Supervision Fee Schedule." Id. ¶ 3 (emphasis omitted). It also provided that it was "adopted pursuant to A.R.S. § 11-251.05 and A.R.S. § 11-251.08." Id.
¶11 On appeal, this court noted, "If the prosecution fee was unauthorized and amounts to an illegal sentence, the trial court fundamentally erred in imposing it." Id. ¶ 14. We then turned to the question of "whether § 11-251.05 or § 11-251.08 expressly provides or necessarily implies that a county is empowered to impose by ordinance a prosecution fee on convicted defendants in felony cases." Id. ¶ 20. After reviewing the relevant legislative history, we recognized "a potential conflict ... between the ordinance and Arizona's statutory scheme addressing punishment for felonies." Id. ¶¶ 21–28. We next examined the "prosecution fee" to determine whether it was a "fee," which would be permissible, or a "fine," which would not. Id. ¶ 30. We concluded that the "prosecution fee" was "more akin to a punitive fine than a compensatory fee." Id. ¶¶ 33–38. Accordingly, we determined that "neither § 11-251.05 nor § 11-251.08 clearly authorize[d] the type of county prosecution fee imposed," and we vacated the prosecution fees. Id. ¶¶ 47, 50.
¶12 As the state points out, this case is distinguishable from Payne insofar as it involved a county ordinance, while here we are concerned with a Gila County Superior Court administrative order. However, Payne is instructive.
¶13 Digeno first seems to differentiate between the trial court's power to impose fees and assessments and its power to enact an administrative order regarding the same, suggesting that although the former may be permissible, the latter is not. But he fails to meaningfully develop this argument or to cite any specific authority about the court's authority to issue administrative orders. See Ariz. R. Crim. P. 32.16(c)(2)(D) (); State v. Stefanovich , 232 Ariz. 154, ¶ 16, 302 P.3d 679 (App. 2013) (). In any event, we find any distinction immaterial in this context.
¶14 Unlike the county ordinance in Payne , Administrative Order No. 94-ELD16 does not request, let alone require, the imposition of costs of prosecution in any case. Rather, it provides that if such costs are imposed, they shall be distributed among the county attorney, the superior court, and the clerk of the court, identifying the specific percentages and account numbers of each. Thus, the presiding judge's purpose in issuing the order appears to have been purely administrative—detailing the distribution of costs of prosecution once imposed. See Ariz. Const. VI, § 11 (); Ariz. R. Sup. Ct. 92(a) (same) ; Acker v. CSO Chevira , 188 Ariz. 252, 254, 934 P.2d 816, 818 (App. 1997) ().
¶15 We must next determine what authority, if any, the presiding judge of Gila County Superior Court relied on in issuing Administrative Order No. 94-ELD16 and whether that authority "expressly provides or necessarily implies" that trial courts can impose costs of prosecution on...
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