21CA0881 Peo v Kinard 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0881
Mesa County District Court No. 19CR1822
Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kevin Kinard,
Defendant-Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE JOHNSON
Schutz, J., concurs
J. Jones, J., concurs in part and dissents in part
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Kevin Kinard (Kinard), appeals the restitution
component of his sentence. He contends that the district court
erred by (1) failing to reject the prosecutor’s untimely request for
restitution and (2) awarding restitution based on the minimum
monetary range associated with the offense to which he pled guilty
in his plea agreement.
¶ 2 We conclude that the prosecutor’s failure to comply with
section 18-1.3-603(2)(a), C.R.S. 2023, did not deprive the court of
the authority to act and that under the circumstances presented,
the prosecutor’s failure does not require that we vacate the award.
And while we conclude that there was sufficient evidence to support
the finding that Kinard stole items from the victim, the court’s
findings as to the corresponding values of the items comprising the
$100,000 restitution award are insufficient for appellate review.
Therefore, we remand the case to the district court so it can detail
and clarify its findings in that regard.
I. Background
¶ 3 Kinard and two other people burglarized the victim’s shop.
The victim claimed that approximately $60,000 in cash, more than
$50,000 in jewelry, and several firearms of varying values had been
2
stolen. The victim’s safe, valued at $3,400, was also destroyed.
And the victim’s shop flooded when Kinard and the others plugged
a sink and turned on the water, resulting in approximately $7,000
in repair expenses.
¶ 4 Kinard was arrested and pled guilty to burglary, theft, and
possession of a weapon by a previous offender and agreed to
sentencing enhancers as a habitual criminal. On February 21,
2021, the district court sentenced Kinard to thirty-six years in the
custody of the Department of Corrections but held open the amount
of restitution to be determined later. As part of the plea agreement,
Kinard agreed to “waive[] the right to challenge or appeal any and
all matters related to this case except those having to do with either
a violation of [the plea] agreement or the imposition of an illegal
sentence.” After an evidentiary hearing, the court imposed
restitution of $100,000.
II. The District Court’s Authority to Order Restitution
¶ 5 Kinard contends his restitution order should be vacated as
untimely because section 18-1.3-603(2)(a) requires the prosecutor
to provide the restitution documentation to the court at the time of
3
sentencing when, as in this case, the prosecutor possessed the
information at that time.
¶ 6 The Attorney General does not dispute that the prosecutor’s
file contained the supporting documentation at the time of
sentencing or that the prosecutor failed to provide it to the court
before sentencing. Thus, the Attorney General concedes error. We
agree, but we conclude that this failure was procedural and did not
deprive the court of authority to impose restitution. We also
conclude that the error was harmless.
A. Standard of Review
¶ 7 Whether the district court complied with the restitution
statute involves statutory interpretation, which is a question of law
B. Prosecution Information
¶ 8 Kinard contends that the district court lacked authority to
impose restitution because the prosecutor did not comply with
section 18-1.3-603(2)(a). That provision states, “[t]he court shall
base its order for restitution upon information presented to the
court by the prosecuting attorney, who shall compile such
information through victim impact statements or other means to
4
determine the amount of restitution and the identities of the
victims.” Id. Relevant to this appeal, the provision continues, “the
prosecuting attorney shall present this information to the court
prior to the order of conviction or within ninety-one days, if it is not
¶ 9 We reject Kinard’s argument that the court necessarily
imposes an illegal sentence if the prosecution fails to comply with
section 18-1.3-603(2)(a).
¶ 10 Recently, a division of this court in People v. Brassill, 2024
COA 19, analyzed portions of section 18-1.3-603(2)(a). There, a
prosecutor did not present to the court any information about
restitution at the sentencing hearing. Brassill, ¶ 4. On appeal, the
Attorney General argued that the prosecutor had “no obligation” to
ascertain the amount of restitution before sentencing. Id. at ¶ 27.
The division disagreed, concluding that “the restitution statute
requires the prosecution to exercise reasonable diligence to
determine the amount of restitution and present it to the court at or
before the sentencing hearing.” Id. at ¶ 30. It further reasoned that
“it would be contradictory for the legislature to impose this
affirmative obligation without a corresponding expectation that the
5
prosecution act with reasonable diligence to fulfill it.” Id.; see also
Weeks, ¶ 44, n.14 (“We reiterate that, by the time of the sentencing
hearing, the prosecution should know whether it is seeking
restitution, even if the information related to the proposed amount
isn’t yet available.”).
¶ 11 Although the Brassill division determined that the prosecutor
had not exercised reasonable diligence to obtain the restitution
information before sentencing, it also concluded that the court’s
failure to recognize that violation was harmless. Brassill, ¶¶ 45, 56-
62. It reasoned that the restitution order was entered within the
ninetieth day, so the case was distinguishable from Weeks, and that
the defendant had not alleged any prejudice, such as witnesses’
faded memories or loss of evidence. Id. at ¶¶ 56-57. Therefore, the
restitution order was affirmed.
¶ 12 Similarly, in People v. Babcock, 2023 COA 49, ¶¶ 7-11 (cert.
granted Apr. 8, 2024), a division of this court addressed whether
the ninety-one-day deadline in the restitution statute was
jurisdictional. If so, a defendant could raise a challenge to a
restitution order at any time. Id. In rejecting this argument,
Babcock concluded that Weeks’ use of the word “authority” does not
6
equate to “jurisdiction.” Id. at ¶ 10. Instead, the division relied on
People v. Turecek, 2012 COA 59, ¶ 20, overruled in part by Weeks,
2021 CO 75, which said, “To say that a court lacks authority to
order belated restitution does not use ‘authority’ in a jurisdictional
sense, but only in the same sense in which a court lacks ‘authority’
to impose a sentence above the statutory maximum.” Id. at ¶ 20
C.J., dissenting)).
¶ 13 We find Babcock and Brassill persuasive. We therefore hold
that a court does not lose jurisdiction or authority to impose
restitution when the prosecution fails to comply with section 18-
1.3-603(2)(a). Our conclusion in this regard is supported by at least
three other reasons.
¶ 14 First, when a court acquires jurisdiction over a matter,
generally, “a later failure to follow statutory requirements does not
divest the court of subject matter jurisdiction. Such a failure to
follow the statute would amount to an erroneous decision not
affecting jurisdiction.” People in Interest of N.D.V., 224 P.3d 410,
414 (Colo. App. 2009) (quoting People in Interest of Clinton, 762 P.2d
1381, 1386 (Colo. 1988)).
7
¶ 15 Second, holding that the court lacks authority would be
contrary to Sanoff v. People, 187 P.3d 576 (Colo. 2008). There, the
supreme court interpreted section 18-1.3-603(1)(b) to mean that,
“by specifying that an order of conviction need only include a
determination whether the defendant is obligated to pay restitution,
without designation of the amount, the General Assembly has made
clear its intent that the amount of the defendant’s liability no longer
be a required component of a final judgment of conviction.” Sanoff,
187 P.3d at 578 (emphasis added).
¶ 16 We acknowledge that the district court in this case held open
restitution for ninety-one days, which Weeks said is contrary to the
statute. Section 18-1.3-603(1)(b) only authorizes a court to defer
determination of the amount of restitution; it does not “authorize
the court to address the issue of restitution in a judgment of
conviction by entering an order deferring that issue in its entirety.”
Weeks, ¶ 30. But this case is not like Weeks.
¶ 17 The district court in Weeks had not considered whether the
defendant might be liable for restitution, whereas in this case, there
was extensive discussion about potential restitution liability: the
prosecutor even provided a verbal estimate to the court. In
8
addition, the court acknowledged that the plea agreement contained
a stipulation for Kinard to pay restitution, recognized its obligation
to resolve restitution within ninety-one days, and set the restitution
hearing so that the amount of restitution could be resolved within
ninety-one days. In other words, the court entered a judgment of
conviction and it “considered” restitution by determining that
Kinard would be liable for restitution, with the amount to be
determined later. Thus, Kinard’s judgment of conviction complies
with section 18-1.3-603(1)(b).
1
¶ 18 Finally, Kinard’s reliance on Meza v. People, 2018 CO 23, is
misplaced. In that case, the district court had entered a judgment
of conviction with a restitution amount imposed but later sought to
amend the order by increasing the amount of restitution. The
supreme court held that the court’s action was improper. Meza
1
We note that the mittimus in this case does not comply with
People v. Weeks, 2021 CO 75, ¶ 44, as it does not reflect that
restitution was ordered but that the specific amount would be
determined at a later date. The substance of the parties’
discussions at the sentencing hearing, however, is not accurately
reflected on the mittimus. Therefore, on remand, the district court
should amend the mittimus to reflect that restitution liability was
considered. See People v. Wood, 2019 CO 7, ¶¶ 4-5 (authorizing
amendment to mittimus under Crim. P. 36 when sentencing
hearing and mittimus do not reflect the same information).
9
reasoned that postponing a determination of the restitution amount
“will be permitted only if the required information is not available
before entry of judgment.” Id. at ¶ 11; see also § 18-1.3-603(2)(a).
¶ 19 Kinard argues that this language suggests a jurisdictional bar.
We disagree.
¶ 20 In Meza, the supreme court also said that, even though the
prosecutor must provide the restitution information within a
specified period of time,
[i]t is the court which is statutorily empowered
to finalize a judgment of conviction by finding
no injury, by ordering a specific amount of
restitution, or by ordering a postponement of
the determination of the amount of restitution
for ninety-one days or until the actual costs of
specific future treatment become known.
Meza, ¶ 18.
¶ 21 We read Meza to say that a prosecutor cannot later seek
additional restitution once a final restitution order is imposed. But
here, an amount of restitution had not yet been imposed when the
court entered its restitution order. Therefore, Meza is inapposite.
¶ 22 Because the prosecutor violated section 18-1.3-603(2)(a), and
the court-imposed restitution anyway, error occurred. But we
conclude the error is procedural and did not deprive the district
10
court of the authority to act on restitution. For an error of this
type, we must decide whether the error was harmless. See Brassill,
¶ 56 (“[A]ny error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded.” (quoting Crim. P.
52(a))).
C. Harmless Error
¶ 23 We conclude for three reasons that the error was harmless.
¶ 24 First, Kinard presents no argument that he was prejudiced by
virtue of the prosecution’s late filing. And we observe that defense
counsel was aware of the amount of restitution that the People were
seeking before the sentencing hearing and at the sentencing
hearing. The parties had discussed setting a restitution hearing
because Kinard contested some of the amounts.
¶ 25 Second, the restitution proceedings were completed within the
ninety-one-day timeframe set by section 18-1.3-603(1)(b). In other
words, this is not a situation akin to Weeks.
¶ 26 The prosecution provided the restitution information to the
court ten days after the judgment of conviction was entered on
March 5, 2021, and asked for additional time due to extenuating
circumstances on March 17, 2021, given the mistaken format of the
11
information. The restitution hearing was scheduled on May 13,
2021, before the ninety-first day after Kinard’s sentencing, as
required by section 18-1.3-603(1)(b).
2
And the court’s order
imposing restitution was issued just four days after the restitution
hearing on May 17, 2022, eighty-five days after the entry of the
judgment of conviction.
¶ 27 Finally, denying the victim restitution based on this record
would be patently unfair, as the prosecutor provided the proposed
restitution amount to the defendant in an email well in advance of
the sentencing hearing.
¶ 28 Because we conclude that the error was harmless, we turn to
Kinard’s challenges to the restitution amount.
III. Restitution Award
¶ 29 Kinard contends that the court erred by awarding $100,000 in
restitution because (1) the amount of claimed restitution was not
supported by corroborating evidence, and (2) his guilty plea did not
amount to an admission that the victim’s stolen property had a
2
The restitution hearing was originally scheduled for May 10, 2021.
The later May 13, 2021 date was eighty-one days after Kinard’s
sentencing date.
12
value of at least $100,000. We disagree with Kinard on his first
contention, but we agree with him that his admission was not
sufficient evidence of the amount. As to the second issue, we
remand the restitution order to the district court so that it can
make findings of fact sufficient for appellate review.
A. Additional Facts
¶ 30 At the restitution hearing, the prosecution requested $162,300
in restitution. The only witness to testify was the victim, who
estimated the values of items Kinard had stolen or damaged: cash
and property in his safe (e.g., firearms and jewelry); damage to the
safe itself; and property damage to the premises. The court issued
a written restitution order following the hearing.
¶ 31 In the order, the district court voiced concerns regarding the
lack of corroborating evidence establishing the restitution amount,
noting that there was “nothing preventing [a victim] from alleging
any amount of cash being taken” without corroboration. The court,
however, relied on language from the plea agreement and Kinard’s
plea to theft in an amount between $100,000 and $1,000,000 as
the corroborating evidence to determine the restitution amount,
stating, “[A] plea of guilty constitutes a judicial admission of the
13
offense and to its elements.” It concluded that “since the defendant
admitted to taking at least $100,000 in the theft, the court is
ordering that [Kinard] pay restitution in the amount of $100,000 to
the victim.”
B. Standard of Review and Applicable Law
¶ 32 Both parties agree that Kinard challenges the sufficiency of the
evidence. We agree but provide an explanation for employing the
following standard of review for a sufficiency claim considering the
supreme court’s recent opinion in Martinez v. People, 2024 CO 6M.
¶ 33 “[T]he prosecution bears the burden of proving by a
preponderance of the evidence not only the victim’s losses, but also
that the victim’s losses were proximately caused by the defendant’s
criminal conduct.” People v. Dyson, 2021 COA 57, ¶ 12 (quoting
People v. Martinez-Chavez, 2020 COA 39, ¶ 14). “Proximate cause
in the context of restitution is defined as a cause which in natural
and probable sequence produced the claimed injury and without
which the claimed injury would not have been sustained.” Id. at
¶ 13.
¶ 34 Historically, some divisions of this court reviewed de novo a
district court’s conclusion that a defendant’s conduct proximately
14
caused the victim’s losses because they reasoned that they were
reviewing whether the prosecution had met its burden of proof by a
preponderance of the evidence. Martinez, ¶ 22, n.2. But there is a
difference between a defendant’s challenge to a restitution award
based on sufficiency of the evidence and a defendant’s challenge to
a district court’s finding of proximate cause.
¶ 35 Sufficiency of the evidence is “concerned [with] the quantum of
evidence (i.e., was there proof by a preponderance of the evidence[)]”
that the defendant caused the victim’s injuries or losses. Id. at
¶ 22; see also People v. Barbre, 2018 COA 123, ¶ 25 (a defendant’s
challenge to whether the prosecution proved by a preponderance of
the evidence the amount of the claimed losses is a challenge to the
sufficiency of the evidence; it does not turn on the court’s
interpretation of the evidence); Babcock, ¶¶ 17-18, 30-31.
¶ 36 Both of Kinard’s challenges to his restitution award concern
the prosecution’s failure to present the quantum of evidence
necessary to prove by a preponderance of the evidence the victim’s
losses, not whether the prosecution proved that Kinard’s actions
were the proximate cause of the victim’s injury.
15
¶ 37 Under a sufficiency of the evidence challenge, we must
determine “whether the evidence, both direct and circumstantial,
when viewed as a whole and in the light most favorable to the
prosecution, establishes by a preponderance of the evidence that
the defendant caused that amount of loss.” Barbre, ¶ 25. We must
“draw every inference fairly deducible from the evidence in favor of
the [district] court’s decision,” and “[w]e will not disturb a district
court’s findings and conclusions if the record supports them, even
though reasonable people might arrive at different conclusions
based on the same facts.” Dyson, ¶ 15 (quoting People in Interest of
S.G.L., 214 P.3d 580, 583 (Colo. App. 2009)).
C. Analysis
¶ 38 Some of the court’s findings render its restitution award
unclear. The court was concerned with a lack of corroborating
evidence presented by the victim, noting a lack of receipts or
photographs or testimony from others who might have had
knowledge about the stolen items. Therefore, the court said it was
“hesitant to attribute the values [testified to by the victim] to the
property in this case.” But elsewhere in the order, the court also
said it “does not dispute that several items were taken in the
16
burglary/theft.” Based on Kinard’s guilty plea to theft between
$100,000 and $1,000,000, the court imposed $100,000 in
restitution.
1. Sufficient Evidence of Stolen Items
¶ 39 We disagree with Kinard that the prosecution did not prove by
a preponderance of evidence that he stole items from the victim’s
safe. The victim testified at the restitution hearing about items
stolen from his safe. There was no contrary evidence, and the
victim’s testimony was sufficient. Cf. Barbre, ¶ 40 (rejecting the
defendant’s reliance on federal precedent requiring corroborating
evidence to support restitution when Colorado cases hold that a
victim’s impact statement may be sufficient); People v. Ortiz, 2016
COA 58, ¶ 28 (noting that although a victim’s impact statement is
considered hearsay, a district court may rely solely on it to award
restitution). Some of the victim’s testimony was specific about the
items stolen. The victim identified the types of firearms stolen;
described the Rolex watch; and described the way the cash was
bundled (in wrapped stacks of $10,000 in a Ziploc bag),
representing twenty-five to thirty years’ worth of the victim’s
savings. Although it may have been better practice for the
17
prosecutor to marshal corroborating evidence to support the
restitution request, we cannot say that the victim’s testimony was
insufficient to prove that Kinard had stolen items from the victim.
See Dyson, ¶ 15.
2. Restitution Amount
¶ 40 Because the court ordered a blanket restitution amount of
$100,000 without identifying what items (and their corresponding
values) contributed to that figure, we conclude that the district
court’s findings are insufficient for appellate review. See Cronk v.
Bowers, 2023 COA 68M, ¶ 33 (“Of course, the court ‘must
make sufficient findings to permit meaningful appellate review.’”
(quoting Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1211
(Colo. App. 2010))). We also conclude that relying on the minimum
range of an offense does not support the restitution award. A court
must make findings so that we can determine whether the items
stolen, and their corresponding values, align with and are
supported by the evidence presented at the restitution hearing.
¶ 41 We acknowledge that, as part of his plea agreement, Kinard
pled guilty to theft, a class 3 felony, when the “the value of the thing
involved is one hundred thousand dollars or more but less than one
18
million dollars.” § 18-4-401(2)(i), C.R.S. 2023. The result of this
guilty plea means that he admitted to the monetary range as an
element of the offense. See Juhl v. People, 172 P.3d 896, 900 (Colo.
2007) (“A guilty plea acts as a conviction and has the same effect as
a verdict rendered by a jury.” (quoting People v. Gallegos, 950 P.2d
629, 632 (Colo. App. 1997))); People v. Flagg, 18 P.3d 792, 794
(Colo. App. 2000) (“A plea of guilty is the equivalent of admitting all
material facts alleged in the charge.” (quoting United States v.
Powell, 159 F.3d 500, 503 (10th Cir. 1998))).
¶ 42 But because the district court had concerns over the lack of
corroborating evidence to support the monetary amounts of the
items and cash Kinard had stolen, it imposed a restitution amount
based on the monetary minimum of the offense of $100,000. The
dissent suggests that the district court’s conclusion is permissible
because Kinard admitted to stealing at least $100,000 worth of
items and cash from the victim.
¶ 43 But if this were simply the case, then there would be no need
for the court to hold a restitution hearing. The prosecution must
still prove that the “victim’s losses were proximately caused by the
defendant’s criminal conduct.” Dyson, ¶ 12 (quoting Martinez-
19
Chavez, ¶ 14). In other words, Kinard’s conduct caused the
claimed injury as to both the theft of items (which we conclude
above is proved) and the amount. See id. Regardless of whether
Kinard admitted to conduct that caused the victim to suffer a
minimum amount of monetary damage of $100,000, the court’s
findings must still be consistent to support its ruling. Here, the
court’s reasoning is inconsistent.
¶ 44 For instance, the victim testified that he had $60,000 cash in
the safe and a Rolex watch with a diamond bezel and diamond
wristband valued at $50,000. Did the court accept the total value
for the cash and property? If so, the court could not award
$100,000 as those two categories of property alone added up to
$110,000. Because the court found that Kinard stole items during
the burglary, the court must make findings as to which items were
stolen from the victim and assign values for every stolen item.
¶ 45 We acknowledge that the court already identified this to be
problematic based on the lack of corroborating evidence from the
victim. But it is the function of the district court to make credibility
findings and to weigh the evidence. Carousel Farms Metro. Dist. v.
Woodcrest Homes, Inc., 2019 CO 51, ¶ 19 (“Because appellate
20
courts don’t make findings of fact, trial judges are the only ones
who have the ‘unparalleled opportunity to determine the credibility
of the witnesses and the weight to be afforded the evidence.’”
(quoting M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.
1994))).
¶ 46 Therefore, because the court’s current findings are insufficient
and, in some instances, inconsistent, we vacate the restitution
order and remand the case to the district court to make findings
consistent with this opinion.
3
Either party may exercise their
appellate rights with respect to any future restitution order.
IV. Conclusion
¶ 47 The order is affirmed in part, reversed in part, and the case is
remanded to the district court to conduct further proceedings
consistent with the opinion.
JUDGE SCHUTZ concurs.
JUDGE J. JONES concurs in part and dissents in part.
3
We decline to impose the restitution figure proffered by the
Attorney General because that would require us to engage in
factfinding, which, as an appellate court, is not our function.
21
JUDGE J. JONES, concurring in part and dissenting in part
¶ 48 I concur in the majority’s conclusion that the district court
didn’t lose authority to impose restitution merely because the
prosecution may have failed to comply with section 18-1.3-
603(2)(a), C.R.S. 2023. I also concur in the majority’s conclusion
that there was sufficient evidence that Kinard stole various items
from the victim. But I disagree with the majority’s decision to
remand the case to the district court for further findings on the
amount of restitution and therefore respectfully dissent on that
point.
¶ 49 The district court imposed restitution of $100,000 — the
minimum that Kinard, by virtue of his guilty plea, admitted stealing
from the victim. Kinard pleaded guilty to count two, which charged
him with theft of “cash, firearms, jewelry, and other items listed in
discovery . . . with the value of one hundred thousand dollars or
more but less than one million dollars[,] in violation of” sections 18-
4-401(1), (2)(i), and (6), C.R.S. 2023. By so doing, Kinard (1)
admitted to every element of the offense — including that the total
value of any items stolen was at least $100,000, see Neuhaus v.
People, 2012 CO 65, ¶ 8; People v. Rockwell, 125 P.3d 410, 421
22
(Colo. 2005); and (2) admitted the material facts alleged in the
charge — including that the value of the specified stolen items was
at least $100,000, see People v. Zuniga, 80 P.3d 965, 970 (Colo.
App. 2003) (a guilty plea waives the right to contest such facts);
People v. Flagg, 18 P.3d 792, 794 (Colo. App. 2000).
¶ 50 I don’t see any reason why these admissions can’t — on their
own — support an award of restitution of the statutory bottom of
the range. When a defendant pleads guilty to an offense, he relieves
the prosecution of its burden to prove the statutory elements or the
material facts charged. In my view, there is no reason that
shouldn’t carry over to restitution.
¶ 51 Of course, when the prosecution in a case like this seeks
restitution above the bottom of the statutory range — as the
prosecution did in this case — a hearing will be necessary if the
defendant challenges the amount sought above the statutory
minimum. Such a hearing was held in this case, but the court
awarded only the statutory minimum. Given the binding and
conclusive nature of Kinard’s admissions, there is no need for
factual findings (or additional evidence) supporting the amount
imposed. (In any event, I would conclude that Kinard’s admissions,
23
combined with the victim’s testimony, was sufficient to support an
award of $100,000.)
