An administrative order issued by a Gila County judge in 1994 that allows a judge to impose a fee on a defendant toward the cost of their own prosecution has been upheld by the Arizona Court of Appeals in what appears to be the first legal challenge to the fee in all these years.
Leonard Michael Digeno challenged two $750 “Cost of Prosecution Fund” assessments which were included in plea deals he signed in Gila County Superior Court in 2018 and 2019. He argued that without specific “constitutional or statutory authority” the fees were illegal, even if he agreed to it as part of a plea deal.
According to the 1994 order, 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.” The prosecution fee can be negotiated between the Gila County Attorney’s Office and a defendant as part of a plea deal.
The administrative order also specifies that whatever Costs of Prosecution fee money is received by the Clerk of the Superior Court is to be split 60 percent to the County Attorney’s Cost of Prosecution Fund, 30 percent to the Gila County Superior Court Cost of Prosecution Fund and 10 percent to the Clerk of the Court Cost of Prosecution Fund.
Fast forward to 2018 and Digeno enters into a plea agreement for an attempted aggravated assault. He is placed on three years of probation and agrees to pay $750 to the Cost of Prosecution Fund. The next year he is convicted for possession of drug paraphernalia and has his probation revoked in the earlier case.
The result was a 2.5 year prison sentence for the two cases. And he is on the books for the $750 prosecution fee in his first case and then another $750 for the second case. Digeno later challenged the fees as illegal. An Apache County judge heard his challenge but ruled against Digeno, who took the issue to the court of appeals.
The appellate court noted a county board of supervisors does not have authority to issue a mandatory local prosecution fee, but what the Gila County court system did was not the same. The question came down to whether a county court system has authority to issue an administrative order to create, collect, and distribute a prosecution fee.
The Gila County Attorney’s Office argued such a cost-of-prosecution assessment is “a voluntary undertaking” by defendants like Digeno to resolve a case and that in Digeno’s situation he “voluntarily” agreed to pay both fees. The county attorney also argued courts have discretion to implement a fee via an administrative order, even if a county board is prohibited by state law from implementing an ordinance to do the same thing.
In its ruling, the court of appeals noted the 1994 administrative order “identifies no statutory basis or other authority to impose costs of prosecution on convicted defendants” and that if such a fee is illegal, it “cannot become legal because it was contained in the plea agreements that Digeno had signed.”
However, the 3 to 0 appellate opinion points out that under Arizona statutes Digeno’s judge was allowed to impose a fine of $150,000 or less, in addition to imprisonment or probation, upon conviction of the offenses in the plea agreements. The admin order of the Gila County courts simply allows for imposition of costs of prosecution in a case as part of a fine and then provides the method by which those monies are distributed, Presiding Judge Karl Eppich wrote in the opinion.
“Because the trial court’s orders that Digeno pay a $750 ‘Cost of Prosecution’ assessment in each of his cases are consistent with the statutory authority, they are not illegal,” Eppich wrote. “Accordingly, the court did not abuse its discretion in dismissing Digeno’s petitions. For the foregoing reasons, we grant review but deny relief.”