24CA0704 Peo v Cannon 09-18-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0704 Archuleta County District Court No. 21CR125 Honorable Justin Patrick Fay, Judge Honorable Kimberly Karn, Judge Honorable Jeffrey R. Wilson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cody Ross Cannon,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE KUHN J. Jones and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Seth Johnson, Alternate Defense Counsel, Pueblo, Colorado, for Defendant- Appellant ¶1 Defendant, Cody Ross Cannon, appeals the judgment of
conviction entered on a jury verdict finding him guilty of possession
with the intent to sell or distribute methamphetamine. We affirm.
I. Background
¶2 We glean the following factual background from the record and
the evidence that the jury heard at trial.
¶3 In January 2021, the Colorado State Patrol Smuggling and
Trafficking Interdiction Unit began investigating Cannon on
suspicion that he had been dealing methamphetamine. Posing as a
potential drug buyer, Sergeant Mark Parsons initiated a text
exchange with Cannon that lasted several days. During the
exchange, Sergeant Parsons offered to pay $250 for an “8-ball,”
roughly three and a half grams of methamphetamine. Cannon
responded that he had “half [of] what [Sergeant Parsons] wanted”
and that he was planning to get more product from his supplier.
¶4 Still unaware that he was corresponding with an undercover
officer, Cannon wrote to Sergeant Parsons the next night that he
was on his way back from the supplier, that he had the product,
and that the “[p]rice did go up [a] little but [was] still worth it.”
Cannon also sent a photo of a plastic baggie containing several
1 chunks of a crystalline substance. Sergeant Parsons
communicated this information to his fellow officers and provided a
description of Cannon’s vehicle. Shortly thereafter, a state trooper
stopped Cannon’s pickup truck after observing that he had crossed
over the shoulder line and that the vehicle had no license plate
light.
¶5 A K-9 unit responded to the scene to conduct a drug sniff of
the exterior of the truck. The dog, trained to detect the odor of
illegal drugs, including methamphetamine, alerted to the presence
of narcotics. Following the alert, Cannon admitted that he had
methamphetamine in his truck. During a subsequent search of the
vehicle, officers found more than twenty-eight grams of a substance
containing methamphetamine and an unopened digital scale.
¶6 The prosecution charged Cannon with possession with the
intent to sell or distribute between 7 and 112 grams of
methamphetamine, a level 2 drug felony. See § 18-18-405(1)(a),
(2)(b)(I)(B), C.R.S. 2025. After a two-day trial, the jury found him
guilty of the charged offense. The trial court sentenced Cannon to
three years of supervised probation and ninety days in jail,
suspended upon his successful completion of probation. The court
2 also imposed various costs and fees, including a mandatory $3,000
drug offender surcharge under section 18-19-103(1)(b), C.R.S.
2025.
II. Analysis
¶7 On appeal, Cannon contends that the trial court reversibly
erred by (1) not allowing his trial counsel to withdraw from the case,
in violation of his constitutional right to representation; and (2) not
conducting an evidentiary hearing to consider whether the drug
offender surcharge should be waived because of his indigency. We
address each of these contentions in turn.
A. Defense Counsel’s Motion to Withdraw
¶8 Cannon contends that the court erred by denying his trial
counsel’s motion to withdraw after determining that the
appointment of substitute counsel wasn’t warranted. We disagree.
1. Applicable Law and Standard of Review
¶9 The United States and Colorado Constitutions guarantee
criminal defendants the fundamental right to effective assistance of
counsel. See U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16;
People v. Greer, 2022 CO 5, ¶ 21; People v. Lancaster, 2018 COA
168, ¶ 10. “The right to counsel encompasses both the right to a
3 retained attorney for a defendant who is financially able to pay for
legal representation, and the right to a court-appointed counsel for
an indigent defendant.” Greer, ¶ 21 (quoting People v. Alengi, 148
P.3d 154, 159 (Colo. 2006)).
¶ 10 However, an indigent defendant isn’t entitled to a
court-appointed attorney of their choice. People v. Arguello, 772
P.2d 87, 92 (Colo. 1989); People v. Travis, 2019 CO 15, ¶ 8.
Accordingly, a defendant will be appointed substitute counsel only
upon a showing of good cause, “such as a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict
that may lead to an apparently unjust verdict.” People v. Kelling,
151 P.3d 650, 653 (Colo. App. 2006). Put differently, a trial court
must appoint substitute counsel to a defendant like Cannon only if
the court determines that the defendant has some well-founded
reason for believing that the appointed attorney can’t competently
represent him. People v. Rodriguez, 2022 COA 98, ¶ 62.
¶ 11 In making that determination, a trial court must consider
(1) the timeliness of the request at issue; (2) the adequacy of the
court’s inquiry into the defendant’s complaint; (3) whether the
attorney-client conflict was so great that it resulted in a total lack of
4 communication or otherwise prevented an adequate defense; and
(4) whether the defendant substantially and unreasonably
contributed to the underlying conflict. People v. Bergerud, 223 P.3d
686, 695 (Colo. 2010). If the court properly determines that the
request must be denied, then “the court can insist that the
defendant choose between continued representation by existing
counsel and appearing pro se.” Id. at 693 (quoting Arguello, 772
P.2d at 94).
¶ 12 We review for an abuse of discretion a trial court’s decision not
to appoint a new attorney to a defendant whose existing attorney
moved to be allowed to withdraw from the case. See Rodriguez,
¶ 61 (noting that we review for an abuse of discretion a defendant’s
request for substitution of counsel); Crim. P. 44(c) (“[W]ithdrawal of
a lawyer in a criminal case is a matter within the sound discretion
of the court.”). A court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair, or is based on a
misunderstanding or misapplication of the law. People v. Johnson,
2016 COA 15, ¶ 29.
5 2. Additional Background
¶ 13 In July 2023, the trial court appointed Cassandra Zobel from
the Office of Alternate Defense Counsel to represent Cannon. Zobel
was Cannon’s third court-appointed attorney; a public defender and
a different alternate defense counsel had already withdrawn from
the case due to, respectively, a breakdown in communication and
an unspecified ethical conflict with Cannon. Roughly four months
later, JayAnn Villalobos entered her appearance as co-counsel for
Cannon.
¶ 14 Then, on the Friday afternoon before the start of the scheduled
Monday trial, Zobel submitted a “Motion for a Hearing to Address
[an] Ethical Conflict Pursuant to [Bergerud].” In the motion, she
asserted that “[c]ounsel and Mr. Cannon have experienced a
complete breakdown in communication and have developed an
ethical conflict that makes continued representation by his current
attorneys impossible.”1 Zobel also asked for an ex parte hearing in
1 It is somewhat unclear to what extent the motion was intended to
cover Villalobos as well as Zobel. However, as we note below, Cannon limits his argument to Zobel’s representation, so we need not decide this issue.
6 front of a different judge. The court granted this request on the
morning of trial.
¶ 15 At the hearing, Zobel said that Cannon had made it difficult
for her to engage in consistent and productive communication with
him. She also asserted that Cannon’s desire to testify at trial would
preclude her from presenting an adequate defense and, therefore,
would render her assistance ineffective. Zobel said that Cannon
insisted on testifying in order to admit committing the crime but
provide a justification for his actions to the jury. Specifically,
Cannon had told her that he had committed the crime with the
intention of obtaining a court-appointed counsel who would then
represent him in an unrelated civil dispute involving access to his
home.
¶ 16 Zobel further explained that, if Cannon were to repeat these
statements on the stand, she would have to run a choice of evils
affirmative defense under section 18-1-702, C.R.S. 2025. But in
her view, that affirmative defense was at odds with the theory of
defense that she intended to present at trial — that the prosecution
failed to prove beyond a reasonable doubt that Cannon intended to
sell or distribute the drugs he was found with. And because she
7 wouldn’t know until the conclusion of the prosecution’s
case-in-chief whether Cannon would exercise his constitutional
right to testify, Zobel asserted that it was impossible for her to
choose a defense prior to trial.
¶ 17 During the conflict hearing, the court also questioned Cannon.
In response to the court asking whether he was dissatisfied with his
attorneys’ legal advice or representation, Cannon said, apparently
referring to Zobel, “No, . . . she’s been the best . . . .” He said that
he wanted to have a trial and not plead guilty to the charged offense
because, among other things, he wanted the jury to know why “[he]
did what [he] did.” But when the court asked him whether he was
“steadfast in testifying” at trial, Cannon said, “I would -- I don’t -- I
don’t know.”
¶ 18 The court denied counsel’s motion to withdraw after applying
the four-factor test from Bergerud. The court reasoned that (1) the
motion was “particularly untimely” because Zobel had submitted it
“very much [on] the eve of trial”; (2) the court’s inquiry into the
nature of the grievance revealed that Cannon “was largely unable to
articulate any dissatisfaction with [his] representation”; (3) there
was no total lack of communication between Cannon and Zobel
8 given that she had spent a substantial number of hours on the case
and had met with him multiple times before the trial; (4) any
difficulty in communication was “substantially and unreasonably”
the result of Cannon’s own conduct based on his frustration with
Zobel’s recommended trial strategy and reconciling that strategy
with his constitutional rights to decide whether to testify, enter a
guilty plea, and represent himself at trial; and (5) the case must be
expeditiously resolved considering its age and significant prior
delays.
¶ 19 Following this ruling, Cannon informed the trial court that he
did not wish to proceed pro se. Accordingly, both Zobel and
Villalobos represented Cannon for the trial’s duration.2
2 On appeal, Cannon only contends that the court should have
allowed Zobel to withdraw as his counsel. Accordingly, we limit our analysis to that issue and do not consider how Villalobos’s representation impacted the trial or Cannon’s constitutional right to counsel or any other right. See Galvan v. People, 2020 CO 82, ¶ 45 (noting that courts should only address questions presented by the parties).
9 3. The Court Didn’t Abuse Its Discretion by Denying the Motion to Withdraw from the Case
¶ 20 We conclude that the court didn’t abuse its discretion by
denying counsel’s motion to withdraw because the court properly
applied the Bergerud factors in reaching its decision.3
a. The Motion Was Untimely
¶ 21 For starters, we agree with the court that counsel’s
motion — filed on the Friday before the trial’s Monday start
date — was untimely. Indeed, Cannon admits that fact in his
briefing. But it’s also true that, in evaluating the timeliness of a
request for new counsel, a trial court should consider not only
“whether the defendant’s request was late in coming” but also “the
cause for any delay and whether responsibility for the delay lies
with the defendant or with his lawyers.” Bergerud, 223 P.3d at 695.
3 We agree with the People that this case is factually distinguishable
from People v. Bergerud, 223 P.3d 686 (Colo. 2010), because Cannon didn’t request substitution of counsel. Nonetheless, his attorney filed the motion to withdraw premised on her obligation under Bergerud to bring a total breakdown in communication to the court’s attention. See 223 P.3d at 698. And the outcome of a successful motion would have been either the appointment of substitute counsel or Cannon proceeding pro se. We thus conclude that the four-prong Bergerud test is the appropriate framework under which to review the court’s ruling.
10 Cannon argues that the delay here was solely attributable to Zobel
because she knew “from the inception of her representation” that he
wanted to testify in a manner inconsistent with her preferred
defense strategy. We’re not persuaded.
¶ 22 This argument disregards the fact that the record shows that,
in the weeks leading up to his trial, Cannon was aware that the
issue underlying counsel’s subsequent motion to withdraw
remained unresolved. See id. at 706 (noting that, in assessing the
timeliness factor, the court should consider whether the defendant
“should have known the dispute remained unresolved and failed to
bring the conflict to the attention of the court earlier despite
opportunity to do so”).
¶ 23 During the conflict hearing, Zobel said that her and Cannon’s
disagreement over which theory of defense to run at trial started
shortly after she was appointed to represent him. She said that she
had made multiple unsuccessful attempts to reconcile Cannon’s
purported need for legal representation in the unrelated civil
property dispute with her objective of presenting what she believed
was the strongest defense. For example, Zobel recounted how she
had approached Cannon roughly two weeks before the trial date to
11 explain why they should argue that the prosecution had failed to
prove the intent element of the charged offense. However, after
Cannon told her that he nonetheless “wanted to testify and tell his
story,” Zobel informed him that “potentially the only possible
defense . . . could be the affirmative defense of necessity but that
[she] needed to do more research about that.”
¶ 24 Regardless, “both the defendant and his attorneys have an
obligation to bring conflicts to the attention of the court at the
earliest practicable time, lest requests for new counsel or time to
resolve such conflicts be used to obstruct the orderly
administration of justice.” Id. at 697. Here, there’s no indication in
the record that Cannon lacked the opportunity to inform the court
of his disagreement with Zobel because she undermined his earlier
attempts to raise his disagreement about the defense should he
have wanted to do so. See id. at 706 (noting that a defendant’s
untimely request for substitution of counsel should be excused if
the court determines that the defendant’s lawyers “stifled” his
attempts to bring the matter to the court’s attention earlier).
Cannon had the opportunity to alert the court of the alleged conflict
and wasn’t prevented from doing so by his counsel. And both
12 parties agree with the court’s finding that counsel’s motion to
withdraw, filed on the eve of trial, was untimely. We thus perceive
no error in the way the court weighed this factor.
b. The Court Adequately Examined the Circumstances Underlying the Motion to Withdraw
¶ 25 The court also adequately inquired into the circumstances
surrounding the withdrawal request. The court questioned both
Zobel and Cannon about the alleged ethical conflict and breakdown
in communication between them. The court spoke to them about
(1) Cannon’s desire to testify and how his potential testimony would
affect the trial strategy; (2) their prior meetings regarding the case;
and (3) how they had gotten along before trial. But while Zobel
alleged that her relationship with Cannon was strained, Cannon
couldn’t provide any reason why the court should allow her to
withdraw from the case. Indeed, as the court noted, Cannon was
not only “unable to articulate dissatisfaction with [his]
representation” but also had said that Zobel had been “the best of
the attorneys that he’[d] been provided.”
¶ 26 Thus, the second factor of the Bergerud test likewise
supported the court’s denial of the motion to withdraw.
13 c. The Claimed Conflict Didn’t Result in a Total Lack of Communication or Prevent Cannon from Presenting an Adequate Defense
¶ 27 Next, there was no showing of a severe conflict between
Cannon and his counsel that resulted in a total lack of
communication or otherwise prevented the presentation of an
adequate defense. A total breakdown in communication must be
“evidenced by proof ‘of a severe and pervasive conflict with [the
defendant’s] attorney or evidence that he had such minimal contact
with the attorney that meaningful communication was not
possible.’” Rodriguez, ¶ 63 (alteration in original) (quoting People v.
Faussett, 2016 COA 94M, ¶ 24). As noted above, the alleged
conflict centered on Cannon’s desire to testify and explain to the
jury that he committed the crime believing that a public defender or
other court-appointed attorney in the resulting criminal case would
be able to assist him with his civil property dispute. Zobel thought
that, while this testimony could potentially support an affirmative
defense of choice of evils, though that was also a “very long
shot,” Cannon’s statements would essentially constitute an
admission of guilt that would be irreconcilable with her argument
14 that the prosecution had failed to prove an element of the charged
crime.
¶ 28 But despite their discord over the theory of defense, the record
supports the court’s finding that there was no total breakdown in
communication between Cannon and Zobel. To the contrary, Zobel
said that about a month and a half after her appointment as
Cannon’s counsel, they met in person “for several hours over two
days.” She counted nine phone calls with Cannon over the roughly
five-month period that she had been representing him. In total,
Zobel had spent 104 billable hours on the case by the time of the
conflict hearing. Accordingly, while Zobel also detailed some
difficulties that she had encountered in trying to engage Cannon in
consistent and productive conversations regarding his case, the
record from the conflict hearing demonstrates that any breakdown
in communication was not substantial enough to show a “severe
and pervasive conflict” or that Cannon “had such minimal contact
with [his] attorney that meaningful communication was not
possible.” Id. (citation omitted).
¶ 29 Additionally, the conflict underlying counsel’s motion to
withdraw didn’t prevent Cannon from presenting an adequate
15 defense: he didn’t intend to sell or distribute the methamphetamine
he was found with. Cannon contends that because his and Zobel’s
disagreement originated from his intent to exercise his
constitutional right to testify, the court failed, among other things,
to “assess whether any improper actions [had] already resulted in a
constitutional violation.” Cannon posits that had the court made
such an assessment, it would have determined that Zobel’s actions
undermined his ability to testify in support of his theory of defense.
According to Cannon, those actions included Zobel’s failure to
(1) timely endorse the choice of evils defense and (2) request a
pretrial ruling on the applicability of that defense to the
circumstances of his case. See § 18-1-702 (providing that, for a
choice of evils defense to be “submitted for the consideration of the
jury, the court shall first rule as a matter of law whether the
16 claimed facts and circumstances would, if established, constitute a
justification”).4
¶ 30 It’s true that counsel can’t prevent her client from “making the
fundamental choices extended to [the client] by the Constitution,”
including the client’s right to testify in his own defense. Bergerud,
223 P.3d at 695. Consequently, a trial court must appoint new
4 While we resolve this appeal on the grounds that Cannon’s alleged
conflict with Zobel didn’t warrant her withdrawal from the case under the Bergerud test, we note that Cannon’s preferred theory of defense underlying this conflict fails on the merits as a matter of law. The statutory choice of evils affirmative defense requires a “defendant [to] establish that the crime committed was necessary to prevent an imminent injury.” Andrews v. People, 800 P.2d 607, 610 (Colo. 1990). Thus, for that defense to be presented to the jury, a defendant must establish in an offer of proof that
(1) all other potentially viable and reasonable alternative actions were pursued, or shown to be futile[;] (2) the action taken had a direct causal connection with the harm sought to be prevented, and that the action taken would bring about the abatement of the harm[;] and, (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.
Id. (footnotes omitted). Cannon doesn’t explain — and we don’t see — how his claim that he committed the crime for the purposes of obtaining legal representation in an unrelated civil property dispute could possibly satisfy these elements of the choice of evils defense.
17 counsel to a defendant in the situation where existing counsel’s
actions so undermine the defendant’s ability to testify that the right
is “reduce[d] . . . to a nullity.” Id. at 702.
¶ 31 But here, at the conclusion of the prosecution’s case, Cannon
was provided with a written advisement form regarding his right to
testify, consistent with People v. Curtis, 681 P.2d 504, 514-15 (Colo.
1984). Cannon initialed and signed the advisement after having
ample opportunity to confer with his counsel. On the form, he
expressly indicated that he didn’t want to testify at trial.
¶ 32 Then, the trial court went over the written Curtis advisement
with Cannon. After Cannon confirmed under oath that he
understood every element of the advisement, the trial court found
that his waiver of the right to testify was knowing, intelligent,
voluntary, and made “without force or undue influence.” Thus,
Cannon can’t now contend on appeal that Zobel should have been
allowed to withdraw from the case based on a conflict between her
preferred trial strategy and his right to testify when he ultimately
waived that right. See Kelling, 151 P.3d at 656 (noting that in
determining whether to grant a defendant’s request for substitute
18 counsel, the trial court is not limited to the facts as they existed at
the time the defendant made that request).
d. Cannon Substantially and Unreasonably Contributed to the Conflict with His Attorney
¶ 33 Finally, we agree with the court’s determination regarding the
fourth Bergerud factor that Cannon substantially and unreasonably
contributed to the issues underlying his counsel’s motion to
withdraw from representing him. Specifically, to the extent a
breakdown in communication existed, the record shows that it
occurred in large part due to Cannon’s own actions. After all, Zobel
said that Cannon had failed to show up for two in-person meetings;
he had stopped “communicating with [her] for long stretches of time
despite repeated voice mails [and] text messages”; and he had hung
up on her multiple times after expressing disagreement with her
legal advice.
¶ 34 For all these reasons, then, we conclude that the court didn’t
abuse its discretion by denying Cannon’s counsel’s motion to
withdraw from the case.
19 B. The Drug Offender Surcharge
¶ 35 Cannon contends, and the People agree, that the trial court
erred by not conducting an evidentiary hearing to address his
request for a waiver of the drug offender surcharge. We disagree
with the parties because we perceive no error in the court’s decision
not to waive the surcharge.
¶ 36 In relevant part, section 18-19-103(1)(b) provides that a drug
offender who is convicted of a level 2 drug felony shall be required
to pay a $3,000 surcharge. The drug offender surcharge is
statutorily mandated, meaning that a trial court’s failure to order it
at sentencing renders the defendant’s sentence illegal and subject
to correction at any time under Crim. P. 35(a). Yeadon v. People,
2020 CO 38, ¶¶ 1, 15; Waddell v. People, 2020 CO 39, ¶¶ 1, 20.
However, a trial court also has the authority to waive any portion of
the drug offender surcharge if, after a hearing, the court determines
by clear and convincing evidence that the defendant is financially
unable to pay the waived portion of the surcharge.
§ 18-19-103(6)(a) and (b).
20 ¶ 37 We review for an abuse of discretion a trial court’s decision
whether to waive the drug offender surcharge.5 See Waddell, ¶ 18
(noting that a trial court “is vested with discretion” to waive the
surcharge if the defendant proves inability to pay).
2. The Trial Court Didn’t Abuse Its Discretion by Declining to Waive Cannon’s Drug Offender Surcharge
¶ 38 At sentencing, the trial court imposed the mandatory $3,000
drug offender surcharge in addition to other costs and fees, but it
set a hearing to consider whether any portion of that amount
should be waived due to Cannon’s claim of indigency. The court
informed Cannon that he could bring to the hearing “any financial
information [he had] in terms of [his] income” to establish that he
was financially unable to pay the surcharge.
5 Citing Yeadon v. People, 2020 CO 38, ¶ 6, and Waddell v. People,
2020 CO 39, ¶ 10, the People concede Cannon’s assertion that we should review this issue de novo. But those cases involved the legality of a defendant’s sentence, an issue that we do review de novo. Magana v. People, 2022 CO 25, ¶ 33. Because Cannon’s challenge to the drug offender surcharge doesn’t implicate the legality of his sentence or require us to resolve another legal question, we disagree with the parties’ assertion that de novo review applies. See People v. Backus, 952 P.2d 846, 850 (Colo. App. 1998) (“[A]n appellate court is not bound by the concessions of the parties regarding the applicable law.”).
21 ¶ 39 At the hearing, which was held a day earlier than initially set
and in front of a judge who didn’t preside over the trial and
sentencing, a probation officer provided information about
Cannon’s progress on probation. The probation officer said,
“[Cannon is] actually doing very well. He’s ran into some barriers,
but he’s staying well in communication with us and overcoming the
barriers where he can and communicating when he can’t. So he
would be 100 percent in compliance as of right now.” But the
probation officer also said that because Cannon had lost his job, “it
would be very hard for him to come up with [enough] money” to pay
the costs, fees, and the surcharge.
¶ 40 The trial court ordered that “anything that can be waived in
terms of costs and fees [is] waived, including [Cannon’s] probation
supervision fees.” “As to the drug surcharge,” the court said, “I’m
going to leave that where it is for right now. If [Cannon] continue[s]
to stay unemployed and do well on probation, [Cannon’s] attorney
can file a motion [to waive the surcharge] and I will seriously
consider that.”
¶ 41 At the outset, we agree with Cannon’s assertion that even
though the trial court set a hearing where he would have the
22 opportunity to prove, by clear and convincing evidence, that he was
financially unable to pay the drug offender surcharge, no such
hearing occurred. As the above record reveals, the hearing that the
court held was brief and didn’t involve any presentation of evidence
regarding Cannon’s claimed indigency. But that doesn’t necessarily
mean that the court erred by refusing to waive the surcharge.
¶ 42 “[W]hen a defendant presents clear and convincing evidence at
a hearing that he lacks the financial means to pay any portion of
the drug offender surcharge, the trial court is vested with discretion
to waive that portion of the surcharge.” Yeadon, ¶ 13. And if a
“trial court . . . d[oes] not hold the necessary hearing or make the
necessary finding, it ha[s] no choice but to impose the mandatory
surcharge.” Waddell, ¶ 18. But it is not true that if a court holds a
hearing or finds that a defendant lacks financial means to pay, then
it must waive the surcharge. In other words, a trial court has
authority to not waive a drug offender surcharge even if a defendant
like Cannon can establish that he’s currently financially unable to
pay the surcharge.
¶ 43 Here, the information received by the trial court during the
hearing suggested that Cannon lacked the financial means to pay
23 his $3,000 obligation. His probation officer said that he was
unemployed, and his counsel said that he had no other income and
had been struggling with housing.
¶ 44 Nonetheless, we discern no abuse of discretion in the trial
court’s decision not to immediately waive the surcharge. While
Cannon was unemployed at the time of the hearing, his counsel
said that he had lost his job sometime after sentencing, which had
occurred just over a month earlier. Similarly, while the probation
officer said that Cannon had complied with all aspects of his
probation, the officer also indicated that Cannon had been on
probation only for “a couple [of] months by now, maybe a month
and a half.” This record shows that Cannon’s unemployment and
compliance with the conditions of his probation were still recent
occurrences at the time of the hearing. The trial court didn’t
indicate that it was denying the surcharge based on its perception
of Cannon’s financial situation. Instead, it indicated that,
essentially, it wanted to see if he was unable to find a job and how
he did on probation. And the court told Cannon that, if the
circumstances supporting a waiver persisted, he could again seek a
waiver of the surcharge. The court’s approach wasn’t manifestly
24 arbitrary, unreasonable, or unfair, nor was it a misapplication of
the law. See Johnson, ¶ 29.
¶ 45 Under these circumstances, we conclude that the trial court
didn’t abuse its discretion by declining to waive Cannon’s $3,000
drug offender surcharge.
III. Disposition
¶ 46 The judgment is affirmed.
JUDGE J. JONES and JUDGE MOULTRIE concur.