                                  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.



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                             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,



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                              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.




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                             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


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                              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.




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                          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




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