Pima County Attorney's Office fighting to collect questionable fines in old drug cases

Jan. 20--After imposing millions in what some would call questionable fines in local drug cases, the Pima County Attorney's Office is fighting to collect the funds from hundreds of defendants.

The fines, which were believed to be mandatory, for what are known as preparatory offenses were previously agreed upon as part of plea agreements. The fines were to be paid to the State Drug and Gang Enforcement account, established to help fund investigations and prosecutions of drug offenders.

However, after it was discovered that the fines do not apply to preparatory offenses -- such as solicitation to possess a dangerous drug or narcotic -- fines for hundreds of defendants still on probation were waived, the Star reported in November 2017.

Those, however, who completed probation haven't been as fortunate.

Pima County Public Defender Joel Feinman told the Star that his office began filing motions to vacate the fines about a month ago, after his office unsuccessfully tried to reach an agreement with the county attorney's office on behalf of people who had completed probation.

In response to his motions, the county attorney's office filed written objections in virtually every case and in at least one case in which the judge granted the motion to vacate, have filed a motion to reconsider the ruling.

In one March 2016 case, a Pima County man pleaded guilty to solicitation to possess a dangerous drug and possession of paraphernalia.

The plea, part of an agreement with the Pima County Attorney's Office, included 18 months of probation and multiple fees and fines, including a $1,000 fine to be paid to the State Drug and Gang Enforcement Account.

The public defender's office filed a motion recently to vacate the man's fines, arguing that he completed probation in November 2017 and didn't have the money to pay the fines, in part because of difficulty finding a job due to his felony conviction.

The convictions were both considered undesignated felonies, meaning they can be downgraded to misdemeanors once the conditions of a plea agreement is met, including the payment of fines and fees. The public defender's motion also asked the court to designate his conviction as a misdemeanor and set aside the conviction, which doesn't clear a person's criminal record, but shows that the sentence was completed, fines paid and no additional charges are pending.

In the county attorney office's response, Deputy County Attorney Jacob Lines said that the state opposed the motion to vacate the fines, but left the rest to the discretion of the judge.

Because the defendant's probation had been completed, the court "lacks the jurisdiction to change the fine," Lines said in the response, saying "a fine is part of a sentence."

"More importantly, the fine is legal," the response went on to say, adding that the plea agreement did not specifically characterize the fine as mandatory.

Nonetheless, defendants caught in the middle have been negatively impacted, Feinman said.

"The problem is we have clients who plead guilty to Class 6 undesignated offenses who have been off probation and who have been working and paying their taxes, but have not been able to have their offenses designated as a misdemeanor because of these outstanding fines," Feinman said. "That often times means the difference between a low paying job and a high paying job; a decent apartment and an apartment that's not fit for children; a bad school district versus a good school district. These have real world consequences."

Whether the motions to vacate the fines are accepted is very much dependent on the judge, but the county attorney's office has been consistent in filing their objections across the board, Feinman said.

"I've talked to clients ... they feel like they're caught in this weird Rube Goldberg machine where they can't get a head start or even a fair shake," Feinman said. "They just want an opportunity to move past these convictions."

The Pima County Attorney's Office has recently changed its practice when it comes to plea agreements for preparatory drug possession offenses. Pleas now contain "non-mandatory" but "agreed to" fines that are $500, as opposed to the $1,000 for "completed" drug offenses, such as sales, Chief Criminal Deputy Tom Weaver wrote in an email to the Star.

"We've always taken the position that some fine or community service is warranted for these offenses which is why we haven't agreed to the wholesale vacating of previously imposed fines," Weaver said.

"Since these fines are agreed to by the defendant in exchange for a reduced criminal charge they have to be imposed by the judge unless the parties agree otherwise," Weaver said. "We agree to community service hours in lieu of these agreed-to fines whenever asked."

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Contact reporter Caitlin Schmidt at cschmidt@tucson.com or 573-4191. Twitter: @caitlincschmidt

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