Full Opinion

23CA1825 Peo v Harmon 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 23CA1825 Adams County District Court No. 20CR979 Honorable Courtney L. Dinnel, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Dallas Eugene Harmon, Defendant-Appellant. ORDER AFFIRMED Division IV Opinion by JUDGE HARRIS Lipinsky and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Dallas Eugene Harmon, appeals the trial court’s order requiring him to pay costs of prosecution. We affirm. I. Background ¶2 Harmon pleaded guilty to stalking in April 2020 and was sentenced to probation. In September 2021, the trial court revoked his probation, resentenced him to two years in community corrections, and waived all waivable fees and fines. Three months later, Harmon left the community corrections facility without permission. An arrest warrant was issued, and Harmon was later arrested in Kansas. ¶3 In June 2023, the trial court resentenced Harmon to two years in the custody of the Department of Corrections (DOC). In light of Harmon’s transfer to the DOC, the court found that Harmon was indigent, and it waived any remaining costs and fines. The next day, the prosecution filed a motion for a judgment in the amount of the costs that the Adams County Sheriff’s Office had incurred in extraditing Harmon from Kansas. 1 ¶4 Harmon objected to the motion, primarily on double jeopardy grounds. After a hearing, the court granted the motion and ordered Harmon to pay $1,493.90 to reimburse the sheriff’s office for the “costs of prosecution.” II. Order Imposing Costs of Prosecution After Sentencing Did Not Violate Double Jeopardy ¶5 Under section 18-1.3-701(1)(a), C.R.S. 2026, “when any person . . . is convicted of an offense,” the court must enter a judgment against the person and in favor of the state, the prosecuting attorney, or the appropriate law enforcement agency “for the amount of the costs of prosecution.” The judgment is enforceable “in the same manner as a[] civil judgment[] . . . .” Id. ¶6 Harmon argues, as he did in the trial court, that entry of a judgment for the costs of prosecution constitutes a punishment that increased his sentence after it was imposed, in violation of his right to be free from double jeopardy. ¶7 The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from being twice punished for the same offense. See U.S. Const. amends. V, 2 XIV; Colo. Const. art. II, § 18. Thus, a court is prohibited from increasing a legal sentence once it has been imposed and the defendant has begun serving it. People v. Howell, 64 P.3d 894, 899 (Colo. App. 2002). But “a second sanction in the form of an assessment that is primarily remedial rather than punitive does not violate principles of double jeopardy.” Id. ¶8 The question of whether costs of prosecution are punitive or remedial was resolved in Howell. In that case, the trial court’s oral pronouncement of sentence made no reference to an assessment of costs. Id. at 899. After sentencing, the court issued a mittimus that imposed costs of prosecution and probation. Id. at 896. The defendant argued that the imposition of costs was a form of punishment that increased his sentence in violation of his double jeopardy rights. Id. ¶9 Applying the test from Hudson v. United States, 522 U.S. 93 (1997), and Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the division concluded that the costs at issue were remedial in nature, not punitive. Id. at 899-900. The division first determined that “the statute intends a sanction that is essentially civil” because, when the court assesses costs of 3 prosecution, it renders a civil judgment in favor of the state or the state agency that has incurred the costs to litigate the case. Id. at 899. But because a statute that intends to provide a civil sanction might nonetheless operate as a criminal penalty, the division considered the seven factors that comprise the second part of the Hudson test. It concluded that although two of the factors support a finding that the costs are punitive — the imposition of costs generally requires a finding of scienter and applies to behavior that is a crime — the other factors establish that the costs are remedial: the assessment of costs does not involve an affirmative disability or restraint such as imprisonment, costs have not historically been viewed as punishment, costs of prosecution do not serve the goals of retribution and deterrence and are not part of the defendant’s sentence, the purpose of imposing costs is to reimburse the state for the actual expenses incurred in prosecuting a defendant, and the costs imposed are not excessive in relation to this purpose because they are limited to the prosecution’s actual expenses. Id. at 899-900. 4 ¶ 10 Harmon says that the Howell division failed to consider section 18-1.3-701’s placement within the criminal code, which, he contends, demonstrates the legislature’s intent to treat the costs as a criminal penalty. We think the statute’s placement is of limited relevance. For one thing, it is not clear where else the statute requiring a criminal defendant to pay the costs of prosecution would logically be located. But also, in Pellegrin v. People, 2023 CO 37, ¶¶ 57, 65, the supreme court did not appear to place any weight on the domestic violence sentencing statute’s placement in the criminal code when it concluded that mandatory treatment for perpetrators of domestic violence is not a punishment. ¶ 11 In short, we agree with Howell’s thorough analysis and conclude that it is dispositive of Harmon’s double jeopardy argument. Consequently, the trial court’s post-sentencing order did not violate Harmon’s right to be free from double jeopardy. 5 III. No Abuse of Discretion in Trial Court’s Order Requiring Harmon to Pay Prosecution Costs ¶ 12 Harmon next contends that the trial court abused its discretion by (1) failing to recognize and exercise its discretion to waive the costs of prosecution; and (2) imposing the costs without adequately determining his indigency. We perceive no abuse of discretion in the court’s order. A. Standard of Review and Legal Principles ¶ 13 We review a trial court’s exercise of its discretion to waive a fee or cost for an abuse of discretion and reverse only if its ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplied the law. See People v. Trujillo, 2018 COA 12, ¶ 62. ¶ 14 Although section 18-1.3-701(1)(a) requires the court to impose costs of prosecution when a defendant is convicted, if the court determines that the defendant is unable to pay the costs, the state shall pay the costs of criminal cases. § 16-18- 101(1), C.R.S. 2026; see also People v. Fisher, 539 P.2d 1258, 1260 (Colo. 1975) (the general rule regarding imposition of costs “may be avoided if the trial judge, in his discretion, determines that the defendant is unable to pay the costs”). 6 ¶ 15 However, “[t]he court shall only grant a waiver [of costs] . . . after making a finding of financial inability to pay the assessment, based on a review of a financial affidavit or similar supporting documentation.” Chief Justice Directive 85-31, Directive Concerning the Assessment and Collection of Statutory Fines, Fees, Surcharges, and Costs in Criminal, Juvenile, Traffic and Misdemeanor Cases (amended Apr. 2025) (CJD 85-31). ¶ 16 In determining whether an offender is unable to pay, courts can consider future ability to pay. See People v. Fogarty, 126 P.3d 238, 241 (Colo. App. 2005) (finding no abuse of discretion in the court’s determination that, although defendant was not presently able to pay costs of prosecution, he would be able to do so in the future); see also CJD 85-31 (citing Fogarty). Further, a finding of indigency for purposes of obtaining assistance of counsel is not dispositive of the issue of indigency for purposes of paying costs, fees, and surcharges. See Medina v. Dist. Ct., 543 P.2d 62, 63 (Colo. 1975) (“A finding of indigency for one purpose is not necessarily a finding of indigency for all purposes.”). 7 B. Analysis ¶ 17 At the hearing on the prosecution’s request for a judgment in the amount of the extradition costs, the parties disputed whether the court could waive costs of prosecution based on Harmon’s inability to pay. The court noted its uncertainty whether it had the authority to waive the mandatory costs but concluded that it need not resolve the issue because Harmon had not shown a present or future inability to pay the costs. ¶ 18 Therefore, the court rejected Harmon’s waiver request and ordered Harmon to pay the prosecution costs. ¶ 19 We disagree that the court abused its discretion when it declined to resolve the legal issue of whether it could waive the costs of prosecution (though we note that it had that authority, see CJD 85-31; Fogarty, 126 P.3d at 241; Fisher, 539 P.2d at 1260). The court did not fail to exercise its discretion; it decided that, regardless of whether it had (or did not have) the discretion to waive the extradition costs, Harmon was not entitled to a waiver of those costs because it “simply 8 d[id]n’t have information before [it] that [Harmon] [was] unable to pay them.”1 ¶ 20 We likewise disagree that the court abused its discretion by finding that Harmon had the ability to pay the costs. Harmon did not present any evidence of his inability to pay. His lawyer argued that Harmon had recently been paroled, was currently unemployed, and lacked stable housing, “but ‘[t]he arguments of counsel, of course, are not evidence.’” Robertson v. People, 2017 COA 143M, ¶ 35 (citation omitted). Although Harmon had notice of the prosecution’s motion for costs of prosecution, filed an objection, and requested a hearing, he did not submit a financial affidavit or other similar supporting financial documentation, as required by CJD 85- 31, to establish that he was unable, either presently or in the 1 The court also noted that Harmon’s choice to abscond from the community corrections facility and to leave the state created the financial circumstances that his lawyer argued warranted a waiver of costs. Because Harmon does not argue that the court relied on improper considerations in declining to waive the costs, we do not weigh in on the propriety of the court’s comments. 9 future, to pay those costs. Nor did Harmon testify at the hearing about his current financial circumstances. ¶ 21 Harmon faults the trial court for failing to “conduct the fact-specific inquiry necessary to determine whether [he] had the ability to pay.” But it is the defendant’s burden to prove an inability to pay. See, e.g., People v. Thames, 2019 COA 124, ¶ 78 (remanding for a hearing to “afford [the defendant] an opportunity to prove he is entitled to a waiver”). ¶ 22 Because Harmon did not present any evidence of indigency, we cannot say that the court abused its discretion in concluding that Harmon could pay the costs. See People v. DeBorde, 2016 COA 185, ¶¶ 29-30 (record supported the trial court’s finding that the defendant did not establish his inability to pay, in part, because the record contained no evidence of defendant’s future inability to pay and nothing in the record indicated that the defendant was unemployable). IV. Disposition ¶ 23 The order imposing costs of prosecution is affirmed. JUDGE LIPINSKY and JUDGE GOMEZ concur. 10