Appeal
from the Superior Court in Maricopa County No.
CR2016-110588-001 The Honorable Cynthia L. Gialketsis, Judge
Pro Tempore The Honorable Joseph P. Mikitish, Judge The
Honorable Dean M. Fink, Judge
Arizona Attorney General's Office, Phoenix By Jana Zinman
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By
Edward F. McGee Counsel for Appellant
Judge
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen
joined.
OPINION
MCMURDIE, JUDGE
¶1
Gilbert Ray Ayonayon appeals the superior court's order
affirming a $45 bench warrant fee following his convictions
for burglary in the third degree and possession of burglary
tools. We hold a bench warrant fee imposed pursuant to
Maricopa County Superior Court Administrative Order No.
2004-199 ("Administrative Order") is statutorily
authorized by Arizona Revised Statutes ("A.R.S.")
section 11-251.08 and is not a criminal fine. We also hold
the superior court did not err by ordering Ayonayon to pay
the bench warrant fee, despite the bench warrants being
quashed. Accordingly, we affirm the superior court's
order imposing the bench warrant fee against Ayonayon.
FACTS
AND PROCEDURAL BACKGROUND
¶2
The State charged Ayonayon on one count each of burglary in
the third degree, a class 4 felony, and possession of
burglary tools, a class 6 felony. After Ayonayon failed to
appear for the preliminary hearing, the superior court issued
a bench warrant for his arrest, and imposed a $45 bench
warrant fee. Ayonayon moved to quash the bench warrant,
arguing: "Please quash the warrant in this case. This is
the first time Mr. Ayonayon has been in court & need
[sic] time to get mental health docs." The court quashed
the warrant but did not vacate the bench warrant fee. Several
months later, Ayonayon failed to attend a status conference,
and the court again issued a bench warrant and imposed a $45
fee. Ayonayon moved to quash the second bench warrant,
claiming he was unable to attend the status conference due to
a family emergency. After oral argument on the motion, the
superior court quashed the bench warrant. A jury subsequently
convicted Ayonayon as charged. At sentencing, the superior
court imposed concurrent sentences, the longest of which was
seven years, and ordered Ayonayon to pay the $45
"warrant charge." Ayonayon timely appealed, and we
have jurisdiction pursuant to A.R.S. §§
12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶3
Ayonayon only challenges the superior court's imposition
of the bench warrant fee. Because Ayonayon failed to raise
this issue below, we review for fundamental error. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). To prevail under fundamental-error review, Ayonayon
"must establish both that fundamental error exists and
that the error in his case caused him prejudice."
See id. at ¶ 20. "Generally, imposition of
an illegal sentence constitutes fundamental error."
State v. Soria, 217 Ariz. 101, 102, ¶ 4 (App.
2007) (quoting State v. Munninger, 213 Ariz. 393,
397, ¶ 11 (App. 2006)).
¶4
The parties' arguments focus on the bench warrant fee
imposed after Ayonayon's failure to appear at the status
conference. However, the superior court also issued a bench
warrant for Ayonayon's arrest after he failed to appear
at the preliminary hearing, and both minute entries directed
Ayonayon to pay a $45 fee "immediately." Both bench
warrants were quashed, but neither fee was vacated, and there
is no evidence in the record regarding whether Ayonayon paid
either fee. Thus, it is unclear which bench warrant fee the
superior court affirmed at sentencing. However, regardless of
which bench warrant fee was affirmed at sentencing, we find
no error.
¶5
Maricopa County Superior Court Administrative Order No.
2004-199 authorizes a court to impose a $45 "warrant
fee" "on defendants whose arrest is commanded by a
bench warrant for, 1) their failure to appear in court as
required; or 2) their failure to pay outstanding fines and
fees . . . ."[1] The Administrative Order was adopted
pursuant to A.R.S. § 11-251.08(A), which provides:
In addition to any other county power or authority the board
of supervisors may adopt fee schedules for any specific
products and services the county provides to the public.
Notwithstanding fee schedules or individual charges in
statute, a board of supervisors may adopt an additional
charge or separate individual charge.
The
bench warrant fee "is designed to recover costs
associated with issuing a bench warrant arising out of a
failure to appear . . . . Its application is limited,
therefore, to circumstances where a defendant fails to follow
the express ...