Peo v. Harmon
CourtColorado Court of Appeals
Date FiledOctober 22, 2026
Docket23CA1825
StatusUnpublished
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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.
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¶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,
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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
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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.
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¶ 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.
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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”).
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¶ 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.”).
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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
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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.
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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.
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