Peo v. Stone , 2020 COA 24 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
Date February 13, 2020
2020COA24
No. 16CA1348, Peo v. Stone— Criminal Law — Sentencing —
Restitution — Colorado Crime Victim Compensation Act; Labor
and Industry — Workers’ Compensation — Benefits —
Permanent Partial Disability
When a court is deciding whether to order a defendant to pay
restitution to a crime victim compensation board, which definition
of victim applies: section 18-1.3-602(4)(a), C.R.S. 2019, the one in
the general restitution statute; or section 24-4.1-102(10), C.R.S.
2019, the one in the crime victim compensation board statute? A
division of the court appeals decides that the latter statute controls.
When a court is deciding whether to order a defendant to pay
restitution to a workers’ compensation insurer, are the insurer’s
payments for permanent partial disability compensation for lost
future earnings, which the restitution statute does not allow? A
division of the court of appeals answers this question “no.”
COLORADO COURT OF APPEALS 2020COA24
Court of Appeals No. 16CA1348
Douglas County District Court No. 14CR154
Honorable Paul A. King, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ryan Cole Stone,
Defendant-Appellant.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by CHIEF JUDGE BERNARD
Taubman and Navarro, JJ., concur
Announced February 13, 2020
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ryan Cole Stone, appeals the trial court’s
restitution order. We affirm in part, and we reverse in part.
I. Background
¶2 Defendant stole a car, and he led the police on a high-speed
chase around the metro Denver area. In the process, he
commandeered several other cars. Colorado State Patrol troopers
tried to stop defendant using “stop sticks” — sticks with spikes on
them designed to puncture a car’s tires to disable it — on E-470,
but he avoided the stop sticks by swerving around them onto the
road’s shoulder. In doing so, he hit one of the troopers with the car,
causing the trooper serious injuries.
¶3 A jury convicted defendant of attempted manslaughter, first
degree assault, vehicular eluding, criminal mischief, six counts of
leaving the scene of an accident, two counts of robbery, two counts
of child abuse, and three counts of aggravated motor vehicle theft.
We affirm these convictions in a separate appeal. People v. Stone,
2020COA23.
¶4 Defendant objected to the prosecution’s written restitution
request, and he asked for a hearing. Following the hearing, the trial
court granted most of the prosecution’s request. The court asked
1
the prosecution to submit a proposed written restitution order for
its approval that reflected the amounts that it had orally ordered.
The prosecution submitted, and the trial court signed, a written
restitution order in the amount of $252,027.69.
II. Standard of Review and Legal Principles
¶5 Section 18-1.3-603, C.R.S. 2019, requires convicted offenders
to pay restitution to compensate crime victims for the harm that
they have suffered. “The purpose of restitution is to make the
victim whole, and the Restitution Act is to be ‘liberally construed’ to
accomplish that purpose.” People v. McCann, 122 P.3d 1085, 1087
(Colo. App. 2005)(quoting § 18-1.3-601(2), C.R.S. 2004). A trial
court must order restitution whenever a defendant’s criminal
conduct causes pecuniary damage to a victim. People v. Reyes, 166
P.3d 301, 302 (Colo. App. 2007).
¶6 The prosecution has the burden of proving restitution by a
preponderance of the evidence. People in Interest of D.W., 232 P.3d
182, 183 (Colo. App. 2009). Specifically, it must establish “the
amount of restitution owed and, generally, that the defendant’s
conduct was the proximate cause of the victim’s loss.” People v.
Henry, 2018 COA 48M, ¶ 15.
2
¶7 Generally, we review a court’s restitution order for an abuse of
discretion. Id. at ¶ 12. But, when the issue is whether there was
sufficient evidence to justify the order, we apply de novo review,
evaluating “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.” People v. Barbre, 2018
COA 123, ¶ 25; see also People in Interest of A.V., 2018 COA 138M,
¶ 32.
¶8 This appeal also requires us to interpret statutes. Our review
is de novo. People v. Jenkins, 2013 COA 76, ¶ 12.
¶9 When we interpret a statute, we must ascertain and give effect
to the legislature’s intent. Colo. Dep’t of Revenue v. Creager
Mercantile Co., 2017 CO 41M, ¶ 16. “We construe the entire
statutory scheme to give consistent, harmonious, and sensible
effect to all [of its] parts,” and “[w]e give effect to words and phrases
according to their plain and ordinary meaning[s].” Denver Post
Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If a statute’s
language is clear, we apply it as written. Id.
3
III. Restitution to the Crime Victim Compensation Board
¶ 10 Defendant contends that the trial court erroneously ordered
restitution to the Crime Victim Compensation Board, which we
shall call “the board.”
¶ 11 In Colorado, each judicial district has its own “crime victim
compensation board.” § 24-4.1-103(1), C.R.S. 2019. To be eligible
for compensation, a person must apply to the board. § 24-4.1-
105(1).
¶ 12 The board made two payments that are pertinent to this
appeal. First, the board paid a claim to the trooper’s brother for his
travel expenses to come to Colorado. Second, the board paid a
claim to the trooper’s girlfriend for her lost wages.
¶ 13 Defendant asserts that the trial court erred by awarding
restitution to the board for the payments to the brother and to the
girlfriend for two reasons: (1) they were not “victims” under the
restitution statute; and, (2) even if they were, the prosecution did
not prove that defendant’s conduct proximately caused their losses.
We disagree with both contentions for the following reasons.
4
A. Victim
¶ 14 Defendant first contends that the trial court could not order
restitution to the board because neither the brother nor the
girlfriend met the definition of a victim in the restitution statute.
We are not persuaded.
¶ 15 Under the restitution statute, a “victim” is “any person
aggrieved by the conduct of an offender.” § 18-1.3-602(4)(a), C.R.S.
2019. As is pertinent to this appeal, the restitution statute allows
compensation to a “sibling” or a “significant other,” as that term is
defined in section 24-4.1-302(4), C.R.S. 2019, of a victim, if the
victim is “deceased or incapacitated.” § 18-1.3-602(4)(a)(V).
Defendant asserts that, because the trooper was not “deceased or
incapacitated,” the definitions of “sibling” and “significant other” are
inapplicable to the brother and girlfriend.
¶ 16 But the restitution statute also provides that “victim” means
“[a]ny victim compensation board that has paid a victim
compensation claim.” § 18-1.3-602(4)(a)(IV). In this case, the board
paid for the brother’s travel expenses and the girlfriend’s lost wages.
So, under that statute, the board was the victim. See id.; see also
5
People v. Bohn, 2015 COA 178, ¶¶ 10-11, superseded by statute as
stated in Henry, 2018 COA 48M.
¶ 17 There are three reasons why we are not persuaded that the
person whom the board reimburses must also meet one of the
definitions in section 18-1.3-602(4)(a) for the trial court to award
restitution to the board.
¶ 18 First, the plain language of section 18-1.3-602(4)(a) does not
go that far. It begins by stating that the word “‘[v]ictim’ means any
person aggrieved by the conduct of an offender and includes but is
not limited to the following . . . .” Id. (emphasis added).
¶ 19 Second, when looking at the statutes that govern crime victim
compensation boards, we see that a victim includes “any person
who is a relative of a primary victim.” § 24-4.1-102(10)(a)(III),
C.R.S. 2019. A “primary victim” is “[a]ny person against whom a
compensable crime is perpetrated or attempted.” § 24-4.1-
102(10)(a)(I). A “[r]elative” includes a “brother” or “any person who
has a family-type relationship with a victim.” § 24-4.1-102(9).
¶ 20 When reading these statutes together, our first obligation is to
harmonize the definitions of “victim” in section 18-1.3-602(4)(a) and
in section 24-4.1-102(9) and (10). § 2-4-205, C.R.S. 2019. We can
6
do so by concluding that (1) the specific definition of “victim” in
section 24-4.1-102(9) applies to crime victim compensation board
decisions and to trial court decisions awarding restitution to such
boards; while (2) the definition of “victim” found in section 18-1.3-
602(4)(a) applies to all other trial court decisions to award
compensation.
¶ 21 But, third, even if we were to conclude that these two statutes
conflict, we would reach the same result because “[a] primary rule
of statutory construction is that a specific statute prevails over
general legislation.” People v. Weller, 679 P.2d 1077, 1082 (Colo.
1984); see also § 2-4-205, C.R.S. 2019. And the definition of
“victim” in section 24-4.1-102(9) is more specific than the definition
in section 18-1.3-602(4)(a) because it deals with only one part of the
universe of restitution cases: awards made by crime victim
compensation boards. So defendant’s assertion — the board could
not compensate the brother or the girlfriend because they were not
victims for the purposes of the general restitution statute under
section 18-1.3-602(4)(a) — is rebuffed by the express language of
the statute that governed the board’s decisions in this case.
7
B. Proximate Cause
¶ 22 The prosecution must prove, by a preponderance of the
evidence, that the defendant proximately caused the victim’s loss.
People v. Henson, 2013 COA 36, ¶ 11. This legal principle brings us
to defendant’s second contention.
¶ 23 In 2015, the General Assembly amended the restitution
statute to address cases in which a compensation board seeks
reimbursement for assistance provided to a victim. See Henry,
¶ 16. “A crime victim may seek compensation from a compensation
board [and,] [i]f the board pays such a claim, a court may order the
defendant to reimburse the board for the amount of assistance that
it paid to the victim.” Id. (citation omitted).
¶ 24 Under this statute, “the amount of assistance provided and
requested by the crime victim compensation board is presumed to
be a direct result of the defendant’s criminal conduct and must be
considered by the court in determining the amount of restitution
ordered.” § 18-1.3-603(10)(a). This statute creates a rebuttable
presumption that the prosecution has satisfied its burden of
proving “that the defendant’s conduct was the proximate cause of
the victim’s loss.” Henry, ¶ 18. So, “[o]nce a compensation board
8
has established that it paid a victim a set amount, the defendant
has the burden of introducing evidence to show that the amount
paid was not the direct result of his criminal conduct.” Id. at ¶ 19.
¶ 25 Although the division decided Henry before the prosecution
filed its answer brief and defendant filed his reply brief, neither
party mentions it. We will nonetheless assume, without deciding,
that the amended statute does not apply in the present case
because defendant committed the underlying crimes before the
legislature amended the statute. See Ch. 60, sec. 6, § 18-1.3-603,
2015 Colo. Sess. Laws 147; see also People v. Stellabotte, 2018 CO
66, ¶ 33 (noting that a statute that is silent on whether it applies
prospectively or retroactively is presumed to apply prospectively
unless an exception applies).
¶ 26 We therefore apply Bohn, ¶ 19, which provided that “where a
[victim compensation board] has paid a victim compensation claim,
the prosecution still must show by a preponderance of the evidence
that . . . the underlying loss was proximately caused by the
defendant.” For our purposes, “[p]roximate cause . . . is defined as
a cause which in natural and probable sequence produced the
claimed injury and without which the claimed injury would not
9
have been sustained.” People v. Rivera, 250 P.3d 1272, 1274 (Colo.
App. 2010). When the underlying loss is attenuated from the crime,
“the trial court must carefully consider whether proximate cause
exists.” Id.
¶ 27 In other words, the prosecution in this case needed to show
that defendant’s conduct “proximately caused” (1) the brother’s
travel expenses; and (2) the girlfriend’s lost wages. We conclude, for
the following reasons, that the prosecution provided sufficient
evidence to prove that defendant caused the brother’s travel
expenses and the girlfriend’s lost wages.
1. The Brother’s Travel Expenses
¶ 28 The trooper said that his mother and his brother came to
Colorado to visit him before his fifth surgery. He told the court that
“they were there to support [him] and be there physically for [him].”
He added that they would not have visited him but for his surgery.
He said that his mother and his brother rented a car to transport
him “to and from the medical facility and home.” The board’s
director testified that the board reimbursed the mother and the
brother for their travel expenses.
10
¶ 29 Defense counsel declined to question either the trooper or the
board’s director.
¶ 30 The trial court found that the mother and the brother came to
Colorado to “help [the trooper] in [his] recovery.” But the court also
noted that it had not heard any evidence “related to what the
mother or the brother did for [the trooper] with respect to the
surgery.” The trial court then raised a concern: “they were both
here at the same time providing . . . the same type of service.”
¶ 31 So the court decided that it would only award the restitution
request for the board’s payments to one of the two; it chose, at
random, the brother. Relying on People v. Lassek, 122 P.3d 1029
(Colo. 2005), the court decided that “there’s enough of a connection
made . . . that the relative would not have had to come out here to
provide assistance to [the trooper] but for the fact that [he had]
suffered injury at the hands of the defendant.”
¶ 32 In Lassek, the division affirmed a trial court’s restitution
award that included the victim’s parent’s travel to a “memorial
service at which the victim was honored along with other[s] . . . who
had died that year” because “[t]he parents’ attendance at a
memorial service was a natural and probable consequence that
11
would not have occurred without defendant’s actions.” Id. at 1036.
But defendant submits that the trial court misapplied Lassek
because the victim’s parents in that case were clearly “victims”
under the restitution statute. But the issue in Lassek was not
whether the parents were victims under the statute. The issue was,
instead, whether attending a memorial service could be properly
attributed to the defendant’s conduct. At any rate, defendant’s
submission is foreclosed by our conclusion in Part III.A that the
brother and the girlfriend were victims for the purposes of section
18-1.3-602(4)(a)(IV).
¶ 33 Defendant also asserts that, “because the court could not find
that [the trooper] needed help and that his brother and mother
provided it, [the court] had no basis to order restitution to either of
them.” We disagree because defendant misconstrues the trial
court’s findings. The court determined that the prosecution had
proved that the underlying losses — mother’s and brother’s travel
expenses — were proximately caused by defendant’s conduct. In
other words, the mother’s and the brother’s travel expenses were “a
natural and probable consequence that would not have occurred
without defendant’s actions.” Lassek, 122 P.3d at 1036. The only
12
reason the court did not award restitution to them both is because
it could not determine whether the trooper needed them both to be
there.
¶ 34 We therefore conclude that the prosecution presented
sufficient evidence to show by a preponderance of the evidence that
defendant proximately caused the brother’s travel expenses. See
City of Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 38
(noting that the preponderance-of-the-evidence standard does not
require a particularly high degree of proof).
2. The Girlfriend’s Lost Wages
¶ 35 The trooper described also described the girlfriend as his
“partner,” and, according to documents in the record, she lived with
him. He told the court that she worked full time as the director of a
preschool, but that she had to take time off to help him recover
from his injuries. He said that she would not have taken time off
work but for his injuries. She took time off during the initial two
weeks that he was in the hospital, and then again after he got out of
the hospital, so that she could transport him to other medical
facilities. The prosecution also submitted pay stubs showing the
amount of time that the girlfriend missed work at the preschool.
13
¶ 36 The trial court concluded that the prosecution had presented
sufficient evidence to prove that the girlfriend had “provided a
service to [the trooper] immediately after the injury occurred and
that she then suffered a loss in wages as a result of that.”
¶ 37 Defendant contends that the prosecution did not establish
that his conduct had proximately caused the girlfriend’s lost wages
because the trooper’s testimony “did not differentiate between the
time [the girlfriend] spent providing moral versus physical support.”
Defendant believes this distinction is important because “moral
support” does not “necessarily occur during working hours.”
¶ 38 We are not persuaded because defendant does not submit that
the girlfriend’s lost wages were not proximately caused by his
conduct. He simply asserts that some of the support that the
girlfriend gave defendant may have occurred during nonworking
hours. This assertion is irrelevant. The prosecution showed that
the girlfriend took time off work to help the trooper, which “was a
natural and probable consequence that would not have occurred
without defendant’s actions.” Lassek, 122 P.3d at 1036. We
therefore conclude, that the prosecution presented sufficient
evidence to show by a preponderance of the evidence that defendant
14
proximately caused the girlfriend’s lost wages. See City of Littleton,
¶ 38.
IV. Restitution to the Workers’ Compensation Administrator
¶ 39 Defendant contends that the trial court erroneously ordered
restitution for the trooper’s “permanent partial disability.” He adds
that permanent partial disability benefits constitute a “loss of future
earnings,” which are not compensable under the restitution statute.
(We note that this challenge only concerns about $26,000 of the
amount that the court ordered him to pay to the administrator;
defendant does not contest the rest of it, which totals more than
$200,000.)
A. Additional Background
¶ 40 The state of Colorado insures itself for workers’ compensation
claims, which means that the state has set aside funds to provide
benefits for its workers who experience on-the-job injuries. It has
contracted with a third-party administrator called Broadspire,
which we shall call “the administrator,” to manage these claims. So
state employees’ workers’ compensation benefits are paid by the
administrator. When a state employee is injured, the administrator
assigns a claims adjuster to investigate the injury and to determine
15
whether the claim is compensable under the workers’ compensation
statute.
¶ 41 There are three types of benefits under the workers’
compensation statute: medical, disability, and death. See generally
§§ 8-42-101 to -125, C.R.S. 2019. The claims adjuster in this case
determined that the trooper was entitled to both medical and
disability benefits, but, for the purposes of this appeal, we are only
concerned with the disability benefits.
¶ 42 There are two general types of disability benefits: temporary
and permanent. See City of Thornton v. Replogle, 888 P.2d 782, 784
(Colo. 1995). When the prosecution filed its request for restitution
in January 2016, the accompanying documents only included
payments made by the administrator for temporary disability
benefits. The prosecution amended its request in April 2016, but it
did not modify the restitution requested for the administrator.
¶ 43 In June 2016, the trial court held the restitution hearing. On
the morning of the hearing, the prosecutor notified the court that
the trooper “was provided updated ongoing benefits that were paid
[by the administrator] so th[e] amount [requested] has changed.”
The prosecutor told the court that he “could deal with this through
16
testimony” and that he had given “a copy to counsel of the updated
information this morning.” Defendant objected to the increased
request “on the basis of lack of notice.” The trial court “noted” the
objection, and it chose to proceed with the hearing.
¶ 44 The claims adjuster testified at the hearing. During her
testimony, the prosecutor offered two exhibits, which reflected the
increased amount of restitution to be paid to the administrator.
Defendant objected to the exhibits and to the increased amounts
contained within them “based on lack of notice.” In response, the
prosecutor explained that he had discovered that “the amounts we
had were a little old” and that he had received updated documents
on the morning of the hearing. He then conceded that, if the court
wanted to limit the amount of restitution to the previous filing
because “there needs to be more notice,” he would file an amended
request. The prosecutor also told the court that the increased
restitution amounts fell “under the rubric of future medical
expenses.” The prosecutor did not mention any new restitution
requests for permanent partial disability.
17
¶ 45 The trial court overruled defendant’s objection based on lack
of notice, and it admitted the evidence because the objection dealt
only with “a discovery issue.”
¶ 46 During her testimony, the claims adjuster discussed the
differences between the original request submitted in January 2016
and the updated request produced on the morning of the hearing.
As is pertinent to this appeal, the claims adjuster noted that the
updated request included payment for permanent partial disability.
¶ 47 At the end of the hearing, the trial court awarded restitution to
the administrator for its payment to the trooper of permanent
partial disability benefits.
B. Permanent Partial Disability Benefits
¶ 48 Defendant submits that the trial court could not order
restitution to the administrator for its payment to the trooper of
permanent partial disability benefits because it was a “loss of future
earnings,” which section 18-1.3-602(3)(a) of the restitution statute
does not allow. We conclude, for the following reasons, that the
permanent partial disability benefits paid to the trooper were not a
loss of future earnings under the restitution statute.
18
¶ 49 We begin with some background concerning workers’
compensation disability benefits. To explain the permanent
disability benefits at issue in this case, we need to start with a
description of temporary benefits.
¶ 50 Temporary benefits compensate an employee for lost wages
during the employee’s recovery from a work-related injury. §§ 8-42-
105 to -106, C.R.S. 2019. Temporary total disability benefits
compensate an employee for lost wages after an injury when he or
she is unable to go back to work. § 8-42-105. When an employee
is able to return to work, but still not at full capacity, temporary
partial disability benefits compensate an employee for partial lost
wages. § 8-42-106. Generally, temporary benefits are available
until the employee reaches maximum medical improvement, which
occurs “when the underlying condition has stabilized to the extent
that no further medical treatment will improve the condition.” Allee
v. Contractors, Inc., 783 P.2d 273, 279 (Colo. 1989).
¶ 51 After the employee reaches maximum medical improvement,
he or she may be entitled to receive “permanent partial disability”
benefits. § 8-42-107, C.R.S. 2019. There are two types: scheduled
19
benefits and whole person benefits. Both types are calculated
based on a statutory formula. See § 8-42-107(2), (8)(d).
¶ 52 Section 18-1.3-602(3)(a) of the restitution statute prohibits an
award of restitution for “loss of future earnings.” That phrase is not
defined by statute, but a division of this court interpreted it to mean
“earnings not expected to be received by the victim after restitution
is imposed.” People v. Bryant, 122 P.3d 1026, 1029 (Colo. App.
2005). Defendant cites to several Colorado appellate court
decisions describing permanent partial disability benefits as
compensation for “a loss of future earnings capacity.” See, e.g.,
Hussion v. Indus. Claims Appeals Office, 991 P.2d 346, 348 (Colo.
App. 1999). He therefore asserts that loss of future earnings in the
restitution context is the functional equivalent of a loss of future
earning capacity in the workers’ compensation context. We are not
persuaded.
¶ 53 Despite defendant’s contention, the workers’ compensation
case law is clear: permanent partial disability benefits do not
compensate an employee for “actual wage loss that has already
occurred or may occur in the future.” Bus. Ins. Co. v. BFI Waste
Sys. of N. Am., Inc., 23 P.3d 1261, 1265 (Colo. 2001)(emphasis
20
added). Rather, it compensates an employee for a permanent
impairment, which impacts the employee’s present and future
ability to compete in the labor market. Id. (“The workers’
compensation system operates on the assumption that the future
earning capacity of a partially disabled worker will be less than that
of a non-disabled worker.”).
¶ 54 And an employee who continues to earn the same — or even
more — after reaching maximum medical improvement may still be
entitled to permanent partial disability payments. Vail Assocs., Inc.
v. West, 692 P.2d 1111, 1114 (Colo. 1984). This proposition is true
because the employee’s entitlement to benefits “must be based
upon his employability in the open labor market and not merely
ascertained in the limited context of his future employability with
his present employer.” Hobbs v. Indus. Claim Appeals Office, 804
P.2d 210, 212 (Colo. App. 1990)(citation omitted).
¶ 55 Defendant relies on a single conclusion in People v. Oliver,
2016 COA 180M, to support his position. In Oliver, the division
noted that, even though death benefits are calculated using the
employee’s average weekly wage, they are “independent of wage
benefits because they are owed to the employee’s dependents and
21
not to the employee herself.” Id. at ¶ 51. True, the disability
benefits in this case are distinguishable from the death benefits in
Oliver for that reason. But, for the following reasons, we conclude
that Oliver supports our conclusion that permanent partial
disability benefits are compensable under the restitution statute.
¶ 56 In Oliver, ¶ 50, the division concluded that death benefits were
“out-of-pocket expenses” and “anticipated future expenses” of the
workers’ compensation administrator in that case, which were both
allowable restitution under the definition of “restitution” in section
18-1.3-602(3)(a). In other words, the division determined that the
administrator was a victim who had suffered a pecuniary loss
proximately caused by the defendant that could “be reasonably
calculated in money because it was a monetary payout entirely
determined by a statutory formula.” Id. So the administrator’s
payout was “just like any other insurance policy payout.” Id. at
¶ 53.
¶ 57 In this case, disability payments are likewise an insurance
policy payout. See id.; see also § 18-1.3-602(3)(a); People v.
Lunsford, 43 P.3d 629, 631 (Colo. App. 2001)(noting that an
insurer’s payout to the victim for “future wage loss” was not
22
relevant to whether the insurer’s “expenditures were actual
pecuniary damages”). And the payments were “reasonably
calculated in money because [they were] a monetary payout entirely
determined by a statutory formula.” Oliver, ¶ 50; see § 8-42-107(2),
(8)(d). As the division concluded in Oliver, ¶ 52, “[t]he method by
which this benefit is calculated is simply not relevant to the
question whether [the administrator], as an insurer, can recover
through restitution money it paid” to the trooper.
C. Notice
¶ 58 Defendant asserts that we should remand this case to the trial
court for a new hearing because he had no notice of the
prosecution’s request for restitution to the administrator for
permanent partial disability benefits. Although we agree that he
was entitled to notice, we conclude that this error was harmless.
¶ 59 “[A] defendant is entitled to adequate notice of the claimed
amount of damages and the amount of restitution which the court
is asked to impose.” People v. Valdez, 928 P.2d 1387, 1392 (Colo.
App. 1996).
¶ 60 The prosecution asserts that defendant had sufficient notice
because he knew that it was seeking restitution for workers’
23
compensation claims and specifically for restitution to reimburse
the insurer for “temporary partial disability” and “temporary total
disability” benefits paid to the trooper. We are not persuaded
because temporary disability benefits are different from permanent
disability benefits. Compare § 8-42-105 (temporary total disability),
and § 8-42-106 (temporary partial disability), with § 8-42-107
(permanent partial disability), and § 8-42-111, C.R.S. 2019
(permanent total disability). Indeed, the prosecution did not simply
request an increase in restitution for temporary benefits that the
administrator had paid to the trooper; it requested restitution for a
previously undisclosed type of disability benefit. Defendant had no
reason to know that the trooper would be entitled to permanent
disability benefits simply because he had received temporary
benefits.
¶ 61 The prosecution also asserts that, because defendant never
specifically asked for a continuance and did not cross-examine the
claims adjuster, he was not prejudiced by the late disclosure. We
are not aware of any legal authority that requires a defendant to
make a specific request for a continuance or cross-examine a
witness in situations like this one. In fact, the prosecutor
24
suggested that a continuance would be appropriate. And the lack
of cross-examination could be equally as consistent with
defendant’s lack of notice and opportunity to defend as with a
concession that defendant did not want to contest the claims
adjuster’s testimony.
¶ 62 We conclude that the defendant did not have sufficient notice
of the prosecution’s request that the court order him to pay
restitution to the administrator for the permanent partial disability
benefits that it had paid to the trooper. See People in Interest of
J.L.R., 895 P.2d 1151, 1153 (Colo. App. 1995). But we conclude,
for the following reasons, that we do not have to remand that part
of the order to the trial court for a new hearing.
¶ 63 Defendant asserts that the trial court entered the award for
permanent partial disability benefits “without adequate notice or an
opportunity to be heard on the brand new category of” permanent
partial disability benefits. But his only contention on appeal
concerning this “brand new category” of benefits is the one that we
have already decided in Part IV.B: whether such benefits were lost
future earnings that fell outside the scope of the restitution statute.
As a result, the court’s error was harmless: we have resolved
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defendant’s challenge to the order requiring him to pay restitution
to the administrator for the permanent partial disability benefits
that it paid to the trooper, and defendant does not raise any other
challenges to that part of the restitution order.
V. Restitution Order to the Trooper
¶ 64 Defendant contends that the trial court erroneously ordered
him to pay $979.41 to the trooper for the mother’s travel expenses.
We agree.
¶ 65 As discussed above, the prosecution requested restitution to
compensate the trooper’s mother for her travel expenses. The
prosecution’s written restitution request stated that the trooper had
paid for his mother’s travel expenses. The evidence at the hearing,
however, showed that the board had reimbursed the mother’s travel
expenses. But the trial court ultimately denied the prosecution’s
request for the mother’s travel expenses for the reasons noted above
in Part III.B.1.
¶ 66 The court then asked the prosecution to file a proposed order
that would exclude mother’s travel expenses. But the prosecution’s
order, which the court signed, did not do so. As a result, the
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proposed order erroneously requires defendant to pay the trooper
$979.41 as restitution for those expenses.
¶ 67 Defendant asserts that we should remand this case to the trial
court so it can correct its clerical error under Crim. P. 36, which
provides that “[c]lerical mistakes in judgments [and] orders . . .
arising from oversight or omission may be corrected by the court at
any time.” The prosecution concedes the error, and it agrees that
the proper remedy is to remand the case to the trial court for
correction of the restitution order.
¶ 68 We agree with both the prosecution and defendant, and we
therefore reverse the $979.41 restitution award to the trooper for
the mother’s travel expenses. The trial court shall, on remand,
correct the restitution order by deducting this $979.41 payment to
the trooper.
VI. Conclusion
¶ 69 We affirm the part of the court’s order requiring defendant to
pay restitution to the board and the part of the order requiring
defendant to pay restitution to the administrator for permanent
partial disability benefits that the administrator paid to the trooper.
We reverse the part of the order awarding the trooper $979.41 for
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his mother’s travel expenses and, on remand, direct the trial court
to deduct that amount from the restitution order.
JUDGE TAUBMAN and JUDGE NAVARRO concur.
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