v. Roddy , 2020 COA 72 ( 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
April 23, 2020
2020COA72
No. 17CA2267, People v. Roddy — Criminal Law — Sentencing
— Restitution — Assessment of Restitution
Distinguishing People v. Weeks, 2020 COA 44, a division of the
court of appeals holds that, because the prosecution presented its
restitution request ninety days after defendant’s conviction entered,
seeking hundreds of thousands of dollars in attorney billings, good
cause existed to extend the period for determining restitution so
that the defendant would have the opportunity to object to the
restitution request and the court would have the opportunity to
review and rule on the award.
The special concurrence highlights the ambiguities in the
wording of section 18-1.3-603, C.R.S. 2019; disagrees with the
Weeks decision; and would conclude that the ninety-one-day time
limit in section 18-1.3-603(1) applies to the prosecution’s
determination of restitution, and not to the court’s authority to
enter a restitution order.
COLORADO COURT OF APPEALS 2020COA72
Court of Appeals No. 17CA2267
Boulder County District Court No. 15CR1874
Honorable Maria E. Berkenkotter, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jonathan D. Roddy,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TERRY
Yun, J., concurs
Tow, J., specially concurs
Announced April 23, 2020
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan, & Foreman P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver,
Colorado, for Defendant-Appellant
¶1 Defendant, Jonathan D. Roddy, appeals the restitution order
entered against him by the district court. We reverse the restitution
order and remand the case to the district court for further
proceedings.
I. Background
¶2 Defendant’s guilty plea was a result of a complicated series of
events involving the victim, who was his ex-wife. The following
allegations were made by the prosecution.
¶3 Defendant and the victim share a child and were divorced in
2003. Since 2009, defendant and the victim had been engaged in
litigation regarding parenting time, decision-making authority, and
child support.
¶4 In a motion to temporarily restrict parenting time, filed in
2014, defendant included photographs of the inside and outside of
the victim’s home. Suspicious that the photos had been shot from
inside her home, the victim hired a forensic photographer to
investigate the location from which the photographs had been
taken. The investigator concluded that the photos had been shot
from inside the house. It was then apparent that defendant had
1
entered the house without the victim’s permission, in violation of a
court order, while she was out of town in November 2014.
¶5 The victim also discovered that defendant and his wife were
using the victim’s son’s iPad to access the victim’s personal emails
and digital files that were stored in Apple’s “iCloud” storage system.
Defendant’s wife had downloaded many of the victim’s documents
from the son’s computer, including her email communications with
her attorney regarding the domestic relations litigation. The emails
also included the victim’s communications with her financial
advisors, accountants, family, and friends. Defendant and his wife
intended to use the data they obtained against the victim in the
domestic relations case.
¶6 The victim became involved in protracted litigation with
defendant and his wife to retrieve her data. She tried to obtain
permanent protection orders against defendant and his wife, and
the parties entered into a settlement agreement in which defendant
and his wife represented and warranted that they had returned all
of the data, that they did not have any copies of the data, and that
they would no longer use the data. Shortly thereafter, the victim
alleged that defendant and his wife were continuing to use the
2
victim’s data in violation of the agreement. The parties then
became involved in an arbitration proceeding for breach of the
settlement agreement, and a contempt proceeding related to the
domestic relations case.
¶7 Defendant and his wife were each charged in separate cases
with one count of stalking and one count of computer crime. After
defendant pleaded guilty in this case to an added count of first
degree criminal trespass for the November 2014 incident, he was
given a two-year deferred judgment. About fifteen months after his
deferred judgment was entered, the trial court ordered him to pay
restitution of $688,535 to reimburse the victim’s attorney fees and
investigation costs incurred in connection with defendant’s conduct
in the civil and criminal proceedings. No restitution was sought or
ordered in defendant’s wife’s case following her guilty plea to a
computer crime. Defendant now appeals the court’s restitution
order.
II. Withdrawn Guilty Plea
¶8 As an initial matter, the People contend that defendant waived
his right to appeal the restitution order because, as part of the
deferred judgment, he successfully withdrew his guilty plea and
3
obtained dismissal of the criminal charge against him, and payment
of restitution was a condition of that deferred judgment. We
disagree with the People’s contention.
¶9 Section 18-1.3-603(4)(a)(I), C.R.S. 2019, states that any order
of restitution is a “final civil judgment in favor of the state and any
victim[,]” and that “any such judgment remains in force until the
restitution is paid in full. The provisions of [sections 16-18.5-104
to -112, C.R.S. 2019,] apply notwithstanding the termination of a
deferred judgment and sentence . . . .” Our supreme court has held
that this provision means that dismissal of a charge upon
completion of a deferred sentence does not deprive the trial court of
authority to enforce a restitution order. Pineda-Liberato v. People,
2017 CO 95, ¶¶ 32-33. Given that restitution can be enforced after
completion of a deferred sentence, and restitution is a separately
appealable order, see Sanoff v. People, 187 P.3d 576, 578 (Colo.
2008), it follows that a defendant does not waive his right to appeal
a restitution order by withdrawing his guilty plea.
¶ 10 Furthermore, the terms of the plea agreement did not indicate
that defendant waived his right to appeal all non-jurisdictional
issues related to the restitution order. The plea agreement,
4
according to the People, simply stated that defendant had sufficient
income or assets to pay all restitution ordered by the court, and
that failure to comply would be a violation of the plea agreement.
Those terms do not address, much less waive, defendant’s appellate
rights to the restitution order.
¶ 11 We are also not persuaded by the People’s contention that our
supreme court’s opinions in Neuhaus v. People, 2012 CO 65, and
Kazadi v. People, 2012 CO 73, warrant a different result. Both
cases are distinguishable.
¶ 12 Relying on Neuhaus, the People argue that “a defendant’s
motion to withdraw his guilty plea and dismiss the case pursuant to
[section] 18-1.3-102 [effects] a waiver of all non-jurisdictional issues
arising in the context of a deferred judgment and sentence,” and
that defendant cannot take the benefits of the deferred judgment
and sentence, but still obtain appellate review of a restitution order.
We do not read Neuhaus as supporting such an argument. That
case dealt with conditional guilty pleas. The court there said that a
guilty plea “‘represents a break in the chain of events which has
preceded it in the criminal process’ and waives all non-jurisdictional
errors in the defendant’s conviction, including the seizure of
5
evidence.” Neuhaus, ¶ 8 (quoting Tollett v. Henderson, 411 U.S.
258, 266-67 (1973)). Because the setting of restitution did not
precede the guilty plea, Neuhaus does not support the People’s
argument.
¶ 13 The People next argue that, under Kazadi, defendant was
obligated to seek a withdrawal of his plea agreement under Crim. P.
32(d) before completing his deferred judgment and sentence if he
wanted to preserve his appellate challenge to the restitution order.
We disagree. Kazadi, ¶ 20, noted that the parties had agreed that
“Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty
pleas involving deferred judgments.” Though a defendant may file a
motion to withdraw a guilty plea under Crim. P. 32(d), nothing in
Kazadi requires a defendant to follow that procedure to enable him
to contest a restitution order.
¶ 14 We therefore conclude that defendant’s appeal of his
restitution order is properly before us.
III. Timeliness of Restitution Order
¶ 15 Defendant contends that the trial court did not have authority
to enter the restitution order against him because it was entered
6
more than ninety-one days after entry of his deferred sentence. We
disagree.
A. Procedural Background
¶ 16 Defendant entered his guilty plea on July 20, 2016, and the
court reserved restitution for ninety-one days. The People filed a
motion for restitution within the ninety-one-day period, requesting
that the court order restitution of $390,613.90, which represented
the legal fees and disbursements that the victim made to two
different law firms.
¶ 17 Defendant filed an objection to the restitution amount and
requested that the court order the People to set forth a good faith
basis for the requested restitution. The People filed their response
in which they requested time to confer with the victim’s civil
attorney and with defendant’s counsel, and the court granted this
request.
¶ 18 After the parties met, the People filed a motion in February
2017 informing the court that the victim’s civil attorney was
concerned about releasing unredacted invoices because of the
attorney-client privilege, and that the civil attorney would like to
have a restitution hearing after resolution of the civil arbitration
7
hearing, which was scheduled for June 2017. Defendant filed a
motion to dismiss the People’s restitution request based on the
delay, and the court ordered a restitution hearing to resolve these
issues.
¶ 19 In July 2017, before the restitution hearing, the People moved
to amend the restitution request to $827,236.22, explaining that
the increase resulted from the victim’s ongoing civil litigation with
defendant. The People later filed affidavits supporting a reduced
restitution amount of $688,535.12. The reduced amount
accounted for attorney fees and costs that the victim had received
in the contempt litigation. The People provided defendant’s counsel
with redacted billing records to preserve the victim’s attorney-client
privilege.
¶ 20 After a two-day hearing, the court ordered defendant to pay
restitution of $688,535.12.
B. Analysis
¶ 21 Every order of conviction for a felony shall include
consideration of restitution. § 18-1.3-603(1). Each such order
shall include one or more of the following:
8
(a) An order of a specific amount of
restitution be paid by the defendant;
(b) An order that the defendant is obligated
to pay restitution, but that the specific
amount of restitution shall be determined
within the ninety-one days immediately
following the order of conviction, unless
good cause is shown for extending the
time period by which the restitution
amount shall be determined;
(c) An order, in addition to or in place of a
specific amount of restitution, that the
defendant pay restitution covering the
actual costs of specific future treatment
of any victim of the crime; or
(d) Contain a specific finding that no victim
of the crime suffered a pecuniary loss and
therefore no order for the payment of
restitution is being entered.
§ 18-1.3-603(1).
¶ 22 An order for restitution may also be increased if “additional
victims or additional losses not known to the judge or the
prosecutor at the time the order of restitution was entered are later
discovered and the final amount of restitution due has not been set
by the court.” § 18-1.3-603(3)(a).
¶ 23 Defendant contends that, under Meza v. People, 2018 CO 23,
and People v. Turecek, 2012 COA 59, the court lacked authority to
enter its October 20, 2017, restitution order because it did so after
its statutory authority expired. He argues that the court was bound
9
by the ninety-one-day limit in section 18-1.3-603(1). He also
asserts that the People never argued, and the district court never
found, that good cause existed for extending the time period. The
People counter that the ninety-one-day period limits only the time
within which the prosecution must present its restitution request.
We conclude that the court had authority to enter the restitution
order.
¶ 24 A division of this court recently addressed this issue and held
that a district court is obligated to order a specific amount of
restitution within ninety-one days, unless good cause exists to
extend that deadline. People v. Weeks, 2020 COA 44, ¶¶ 13-15.
¶ 25 Assuming, without deciding, that the statutory ninety-one-day
time limit applies to the period within which the court must enter an
order for a specific amount of restitution, we conclude that the
district court here had authority to enter an order for restitution
after the ninety-one-day deadline because good cause existed to
extend the time period. See Meza, ¶¶ 13-14 (referring to a court’s
findings within ninety-one days but recognizing statutory extension
of that time “for good cause”); Weeks, ¶ 20 (same); People v.
Knoeppchen, 2019 COA 34, ¶ 20 (same); Turecek, ¶ 13 (same).
10
¶ 26 The court found that good cause had been shown to allow the
People to file their amended restitution requests because the victim
continued to incur and pay attorney fees. Given this good cause
finding, the court must necessarily have found good cause to
likewise extend its own determination of restitution. See § 18-1.3-
603(1)(b) (empowering court to rely on a showing of good cause to
extend the time period by which the restitution amount “shall be
determined”); see also Knoeppchen, ¶¶ 25-26 (noting that nothing in
the restitution statute explicitly requires the court to make a finding
of good cause, the statute merely requires good cause to be shown,
and the statute does not dictate when a showing or finding of good
cause must be made).
¶ 27 Furthermore, the record supports that there was good cause
to extend the time under section 18-1.3-601(1)(b). See
Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,
271 P.3d 587, 589 (Colo. App. 2011) (“[W]e may affirm a trial court’s
ruling on any grounds that are supported by the record.”). As the
court found, the victim sought attorney fees and costs incurred as a
result of the charged conduct, and she continued to incur and pay
ongoing fees and costs. The prosecution filed an initial request for
11
restitution ninety days after the deferred judgment was entered, as
permitted by statute. In a case where such a high amount of
restitution was sought based on complex facts, the prosecution’s
timing was not surprising.
¶ 28 After expiration of the ninety-one-day statutory period,
defendant filed a “Motion to Compel People to Set Forth Good Faith
Basis for Pecuniary Loss Pursuant to C.R.S. 18-1.3-601 et seq. and
Objection to Restitution.” Had the court ordered restitution within
ninety-one days, it would have provided defendant an inadequate
opportunity to lodge objections — a situation that would have been
grossly unfair to defendant, especially given the size and complexity
of the restitution demand. See Weeks, ¶ 20 (“[I]f the prosecution
needs the full ninety-one days (or more) to complete its request for
restitution under section 18-1.3-603(2), that in itself could
constitute ‘good cause’ for the trial court to extend its restitution
ruling beyond the ninety-one-day deadline . . . .”).
¶ 29 We conclude that the court did not err in finding good cause,
and, thus, the court had authority to enter the order. That good
cause finding renders this case distinguishable from Turecek and
Meza, cited by defendant. See Turecek, ¶¶ 14-15 (because
12
prosecution did not determine a specific amount of restitution
within then-applicable ninety day period, prosecution’s initial
restitution request was merely an estimate, and record did not
establish that good cause existed for prosecution’s delay in
determining restitution, district court erred in imposing restitution
as requested by prosecution); see also § 18-1.3-603(3)(a) (permitting
increase in the amount of restitution for additional losses “not
known to the judge or the prosecutor at the time the order of
restitution was entered”); Meza, ¶¶ 13-14 (noting statutory
requirement to determine restitution within ninety-one days or
longer if good cause is shown).
IV. Proximate Cause
¶ 30 Defendant next argues that the court erred in concluding that
his unlawful conduct proximately caused the victim’s losses
because he pleaded guilty only to the physical trespass of her home
and did not plead guilty to any computer crimes. Because we agree
with defendant’s contention to the extent the restitution amounts
were unrelated to the physical trespass, we reverse the restitution
order and remand for the district court to award restitution only for
the losses proximately caused by his conduct.
13
¶ 31 Restitution is defined as “any pecuniary loss suffered by a
victim.” § 18-1.3-602(3)(a), C.R.S. 2019. Restitution includes
losses or injuries proximately caused by an offender’s conduct and
that can be reasonably calculated and recompensed in money. Id.
The prosecution bears the burden of establishing the restitution
amount by a preponderance of the evidence. See § 18-1.3-603(2);
People v. Martinez, 2015 COA 37, ¶ 30. “In the context of
restitution, proximate cause is a cause which in natural and
probable sequence produced the claimed injury and without which
the claimed injury would not have been sustained.” People v. Sieck,
2014 COA 23, ¶ 6.
¶ 32 Proximate cause can be found where the victim incurs
expenses to avoid or mitigate the consequences of a specific and
ongoing threat related to the offender’s unlawful conduct, rather
than merely to mitigate against a general feeling of insecurity.
Martinez, ¶¶ 35-38; People in Interest of D.W., 232 P.3d 182, 185
(Colo. App. 2009).
¶ 33 Our supreme court recently held that conduct underlying an
acquitted charge cannot serve as the basis for a restitution order.
Cowen v. People, 2018 CO 96, ¶ 24. The court based its decision on
14
an interpretation of the restitution statutes and concluded that the
statutes limit restitution liability “to individuals found guilty of
causing injury or property loss that resulted in suffering or
hardship to victims harmed by their misconduct.” Id. at ¶ 19.
¶ 34 A division of this court extended Cowen to hold that
procedural due process does not allow a court to order a defendant
to pay restitution based on losses caused by uncharged conduct.
People v. Sosa, 2019 COA 182, ¶¶ 26-27. The division also
addressed dismissed charges and reasoned:
Unlike uncharged conduct, a dismissed charge
is based on conduct for which an individual
has been criminally charged. But like
uncharged conduct, when a charged count is
dismissed, an individual cannot be found
guilty of (or plead guilty to) that crime. She
cannot be deemed an “offender” as to the
dismissed count, the conduct underlying the
dismissed count cannot be deemed the
“conduct of an offender,” and no person can be
considered a victim as to that conduct. And
she retains the presumption of innocence as to
the dismissed count. Thus . . . no court may
order restitution for losses proximately caused
by conduct underlying a dismissed charge.
Due process so requires.
Id. at ¶ 28 (citations omitted).
15
¶ 35 The division noted that its decision does not prevent the
prosecution and the defense from entering into a plea agreement
that allows the dismissed counts to be considered for restitution
purposes. Id. at ¶ 29. We agree with the Sosa division’s reasoning
and see no reason to depart from it.
¶ 36 Here, the deferred judgment agreement did not detail the
charges for which defendant would be required to pay restitution.
The agreement merely said that “defendant agrees that he has a
sufficient amount of income and/or assets to pay all of the
restitution and fees ordered by the court.” The record does not
indicate whether defendant was aware that he would be liable for
restitution for the dismissed charges when he entered his guilty
plea. But to the extent the People argue that defendant is
responsible to pay these items as a complicitor, we reject that
notion, because he did not plead or otherwise admit to being
complicit in his wife’s conduct.
¶ 37 We conclude that under these circumstances, defendant is
only liable for restitution for the losses caused by the conduct to
which he pleaded guilty. See Sosa, ¶ 28; Cowen, ¶ 19. We
therefore remand to the district court to determine which of the
16
losses that were presented by the prosecution at the restitution
hearing were proximately caused by defendant’s trespass onto the
victim’s property, and to issue a new restitution order accordingly.
The prosecution may not introduce any evidence that was not
previously presented to the court.
V. Attorney-Client Privilege
¶ 38 Defendant next contends that the trial court erred in
concluding that the attorney-client privilege applied to the victim’s
attorney billing records. He further contends that, if the privilege
did apply, the victim waived it by placing the records at issue. We
agree in part.
¶ 39 We note that our holding — that restitution may not be
ordered with respect to conduct for which defendant was not
convicted or did not agree to be responsible in a guilty plea —
renders the court’s previous restitution award obsolete, and to the
extent some of the billing records relate only to conduct for which
he was not convicted, those records are irrelevant.
¶ 40 To the extent the prosecution continues to seek restitution, we
provide the following guidance to the court on remand.
17
¶ 41 The attorney-client privilege operates to protect
communications between attorneys and clients relating to legal
advice, § 13-90-107(1)(b), C.R.S. 2019; Wesp v. Everson, 33 P.3d
191, 196 (Colo. 2001).
¶ 42 Any descriptions of the tasks performed by counsel that may
be contained in the bills could be attorney-client privileged
information. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 402-
03 (4th Cir. 1999) (billing records that reveal specific research or
litigation strategy would be entitled to protection from disclosure);
Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir.
1992) (“time records which also reveal the motive of the client in
seeking representation, litigation strategy, or the specific nature of
the services provided, such as researching particular areas of law,
fall within the [attorney-client] privilege.”); Levy v. Senate of
Pennsylvania, 65 A.3d 361, 373 (Pa. 2013) (billing records that
contain descriptions of legal services that address the client’s
motive for seeking counsel, legal advice, strategy, or other
confidential communications are undeniably protected under the
attorney client privilege).
18
¶ 43 To the extent the victim or her counsel disclosed the billing
records with task descriptions to the prosecution, or to the
prosecution’s expert witness who opined on their reasonableness,
and those billing records are still in issue with respect to
restitution, any attorney-client privilege was waived as to those
records. See Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d
533, 543 (Colo. 1989) (recognizing that attorney-client privilege may
be waived if, “by words or conduct, [the privilege holder] has
expressly or impliedly forsaken his claim of confidentiality” with
respect to the information in question).
¶ 44 We see no basis to conclude that the prosecution or its expert
could be in privity with the victim for purposes of the attorney-client
privilege. The privilege extends only to matters communicated by or
to an attorney’s client in the course of gaining counsel, advice, or
direction with respect to the client’s rights or obligations. § 13-90-
107(1)(b); Wesp, 33 P.3d at 196; Gordon v. Boyles, 9 P.3d 1106,
1123 (Colo. 2000); see also Lanari v. People, 827 P.2d 495, 499
(Colo. 1992) (“[T]he privilege applies only to statements made in
circumstances giving rise to a reasonable expectation that the
statements will be treated as confidential.”). “[I]f a communication
19
to which the privilege has previously attached is subsequently
disclosed to a third party, then the protection afforded by the
privilege is impliedly waived.” Wesp, 33 P.3d at 198. Thus, the
privilege does not apply to billing records that have been so
disclosed.
¶ 45 To the extent (1) the prosecution, on remand, continues to
seek restitution for the victim’s attorney fees, (2) the attorney task
descriptions in the applicable billing records have not been
previously disclosed to the prosecution or the expert witness, and
(3) attorney-client privilege is claimed as to those descriptions, the
prosecution must produce redacted copies of the subject bills to the
defense. If the defense objects to the redactions, and the
prosecution declines to produce additional information from the
victim about the redactions, the district court must examine those
task descriptions in camera to determine whether they are subject
to the attorney-client privilege. See id. at 197-98 (“No blanket
privilege for all attorney-client communications exists. Rather, the
privilege must be claimed with respect to each specific
communication and, in deciding whether the privilege attaches, a
trial court must examine each communication independently.”); see
20
also People v. Madera, 112 P.3d 688, 691 (Colo. 2005) (privilege is
waived only to the extent necessary to give opponent a fair
opportunity to defend against it).
¶ 46 If the court, after in camera review, determines that any
particular attorney fee item is likely subject to payment as
restitution, it should order the prosecution to provide the defense
with at least some description of the task performed by counsel, so
that defendant has a fair opportunity to review and challenge the
propriety of ordering him to pay it as restitution.
VI. Due Process and Public Policy
¶ 47 Defendant contends that multiple alleged errors violated his
right to due process and contravened public policy.
 Defendant contends that it was fundamentally unfair for the
court to enter an order based on amounts that were unclear
and were constantly revised. Because we are reversing the
court’s order and remanding for further consideration of
restitution, we need not address this contention.
 Defendant next contends that the prosecution abdicated its
constitutional and statutory responsibility to independently
determine whether restitution is proper by relying on the
21
victim’s civil attorney’s representations. We disagree. The
prosecution is statutorily required to compile all information
pertaining to restitution “through victim impact statements or
other means.” § 18-1.3-603(2). We see no error in the
prosecution’s reliance on assistance from the victim’s counsel
in determining her losses.
 Defendant also argues that he should have been provided with
the email communications between the prosecution and the
victim’s civil attorney because they would have shed light on
the basis of the restitution request and on whether the
prosecution independently determined that restitution was
proper. To the extent this issue remains relevant on remand,
given our rulings, the district court must determine whether
and to what extent such disclosure should be granted.
VII. Conclusion
¶ 48 The restitution order is reversed and the case is remanded to
the district court for further proceedings.
JUDGE YUN concurs.
JUDGE TOW specially concurs.
22
JUDGE TOW, specially concurring.
¶ 49 I agree that the district court had jurisdiction to order
restitution in this case and that Jonathan D. Roddy can only be
ordered to pay restitution for pecuniary losses that were
proximately caused by the conduct to which he pleaded guilty.
However, I write separately to address the need for clarification or
re-assessment of the restitution statute by both the Colorado
Supreme Court and the legislature.
I. The Process of Reserving Restitution
A. The Historical View
¶ 50 As the majority notes, there are four proper ways for a
sentencing court to address restitution at the time of sentencing: (1)
order a specific amount; (2) order that the defendant is obligated to
pay restitution, but defer establishing the actual amount; (3) order
that the defendant is obligated to pay the actual costs of specific
future treatment for the victim; or (4) find that no victim suffered a
pecuniary loss and thus no restitution is owed. § 18-1.3-603(1),
C.R.S. 2019. The second of these options — deferment — requires
that the amount of restitution “shall be determined within the
ninety-one days immediately following the order of conviction,
23
unless good cause is shown for extending the time period by which
the restitution amount shall be determined.” § 18-1.3-603(1)(b)
(emphasis added).
¶ 51 Notably, this subsection of the statute does not explicitly
identify who is “determining” the amount for purposes of this
deadline. But the next subsection of the statute references how,
and by whom, restitution is “determined”:
The 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 determine the amount of
restitution and the identities of the victims.
Further, 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 available prior to the order of conviction.
The court may extend this date if it finds that
there are extenuating circumstances affecting
the prosecuting attorney’s ability to determine
restitution.
§ 18-1.3-603(2). Thus, at least for purposes of this paragraph, it is
clear that the prosecutor “determines” the amount of restitution
and the identities of the victims.
¶ 52 Despite this language, our appellate courts have routinely
stated, or at least assumed, that the determination of restitution
24
referenced in section 18-1.3-603(1)(b) is a different act than the
determination of restitution referenced in section 18-1.3-603(2).
Recently, for example, a division of this court explicitly held that the
earlier paragraph places the onus of determining the amount of
restitution within ninety-one days on the sentencing court. People
v. Weeks, 2020 COA 44, ¶ 13.
¶ 53 Several other divisions have at least assumed that to be the
case. In People v. Harman, 97 P.3d 290, 293 (Colo. App. 2004), a
division of this court rejected a claim that the ninety-one-day
provision was jurisdictional. In doing so, the division observed that
“[t]he General Assembly set forth separate standards for accepting
the late presentation of restitution information by the prosecutor
and for the late determination of the restitution amount.” Id.
¶ 54 In People v. Turecek, 2012 COA 59, ¶ 13, a division of this
court held that the statute “mandates the determination of the
specific amount of restitution within ninety days of the order of
25
conviction and provides an exception only if good cause to extend
that time period is shown.”1
¶ 55 And in People v. Knoeppchen, 2019 COA 34, ¶ 19, the division
stated that when the determination of restitution has been reserved,
“the statute requires the amount of restitution to be established
within ninety-one days.” However, in a footnote, the division
observed that making the deadline for the prosecution to provide
the court with restitution information the same as the deadline for
the court to set the amount of restitution creates an inconsistency
such that the sentencing court in many, if not most, situations
would not be able to rule by the ninety-first day. Id. at ¶ 19 n.4.2
¶ 56 Our supreme court has never been directly asked to resolve
this question, but has made observations similar to those in Weeks,
1 Subsequent to the entry of the order on appeal in People v.
Turecek, 2012 COA 59, the time periods in the statute were
amended from ninety to ninety-one days. Ch. 208, sec. 112, § 18-
1.3-603, 2012 Colo. Sess. Laws 866-67.
2 I acknowledge that I was the author of the division’s opinion in
People v. Knoeppchen, 2019 COA 34. Since noting what at the time
I viewed as an apparent inconsistency in the statute, however, I
have come to the conclusion, for reasons set forth in this special
concurrence, that this perceived inconsistency was actually an
indication that the prevailing interpretation of the statute was
incorrect.
26
Harman, Turecek, and Knoeppchen reflecting at least an assumption
that the deadline in section 18-1.3-601(1)(b) applies to the court.
¶ 57 For example, in Sanoff v. People, 187 P.3d 576, 578 (Colo.
2008), the court explained that this provision, originally enacted in
2000, altered the statutory process for establishing criminal
restitution. Before this enactment, the amount of restitution had to
be fixed at the time of sentencing and included on the mittimus. Id.
The new statute, though still requiring that the order of conviction
include some consideration of restitution, authorized the sentencing
court to “postpone a determination of the specific amount of
restitution.” Id.
¶ 58 The supreme court again addressed this scheme in two
companion cases involving the sentencing court’s ability to modify
restitution once ordered. People v. Belibi, 2018 CO 24; Meza v.
People, 2018 CO 23. In Belibi, the court stated that “the current
statutory scheme permits a criminal court, under certain
circumstances, to order a defendant obligated to pay restitution and
yet order that the specific amount of restitution be set within
ninety-one days.” Belibi, ¶ 7. Notably, this language was qualified
27
with the phrase “[a]s we described more fully in Meza v. People,
2018 CO 23, ___ P.3d ___, also reported today by this court.” Id.
¶ 59 In Meza, however, the court was not as direct. In fact, the
court seemed to use different nomenclature to refer to the
sentencing court’s act of establishing a restitution amount. For
example, the court observed that the 2000 legislation “altered
existing law by relieving the sentencing court of its obligation to set
the amount of restitution at the time of sentencing.” Meza, ¶ 10
(emphasis added). Similarly, in discussing how a court might be
faced with altering a non-final restitution amount, the court stated,
“[t]he statutory scheme therefore allows for specific amounts of
restitution to be determined and ordered at sentencing, without
their necessarily representing the ‘final amount’ to be set by the
court.” Id. at ¶ 15 (emphasis added). In other words, Meza appears
to recognize the difference between the determination of the amount
of restitution and the trial court’s act of setting or ordering that
amount. Indeed, the court also stated that “the statutory scheme
does not explicitly limit the circumstances under which a
sentencing court may postpone until after conviction a final
determination of the specific amount of restitution owed by the
28
defendant.” Id. at ¶ 11. This language is difficult to reconcile with
an interpretation of the ninety-one-day deadline in section 18-1.3-
603(1)(b) as applying to the sentencing court.
B. A Different Interpretation
¶ 60 Significantly, the issue of whether this particular ninety-one-
day deadline applied to the sentencing court’s act of entering an
order imposing restitution or merely to the prosecution’s act of
providing restitution information to the sentencing court was not
before the supreme court in Sanoff, Belibi, or Meza. In Sanoff, the
issue was solely whether the filing of a direct appeal of a judgment
of conviction divested the sentencing court of jurisdiction to order a
specific amount of restitution while the appeal was pending.
Sanoff, 187 P.3d at 577. In Belibi and Meza, the issue was not
whether the sentencing court ruled (or was required to rule) within
ninety-one days, but rather whether it could change the amount of
restitution previously ordered. Belibi, ¶ 2; Meza, ¶ 2.
¶ 61 Thus, in my view, the language in each of these cases
appearing to state that the time period in section 18-1.3-603(1)(b)
establishes a deadline by which the court must fix the amount of
restitution was dictum. As such, this language does not
29
conclusively resolve the interplay between section 18-1.3-603(1)(b)
and 18-1.3-603(2).3 Moreover, I believe the dicta in these opinions
reflect an illogical reading of the statute. For similar reasons, I
respectfully disagree with the division’s holding in Weeks, and with
the assumptions and observations made in the other cases
discussed above.
¶ 62 The first reason for my disagreement is rooted in the canon of
statutory interpretation that counsels us to “ascribe the same
meaning to the same words occurring in different parts of the same
statute, unless it clearly appears therefrom that a different meaning
was intended.” Everhart v. People, 54 Colo. 272, 276, 130 P. 1076,
1078 (1913); see also Berthold v. Indus. Claim Appeals Office, 2017
COA 145, ¶ 35.
¶ 63 As noted, both subsection (1)(b) and subsection (2) of the
statute refer to “determining” restitution. The latter, two separate
times, explicitly places the obligation to determine restitution on the
3 To the extent this language was not dicta, I urge the supreme
court to take a fresh view of its interpretation of the restitution
statute. The lack of clarity in this area has resulted in a significant
increase in appellate claims involving the sentencing court’s
authority and jurisdiction to enter restitution orders outside the
ninety-one-day period.
30
prosecuting attorney. First, it provides that the prosecuting
attorney “shall compile such information through victim impact
statements or other means to determine the amount of restitution
and the identities of the victims.” § 18-1.3-603(2) (emphasis
added). Then it states that the court may extend the deadline for
submitting the information “if it finds that there are extenuating
circumstances affecting the prosecuting attorney’s ability to
determine restitution.” Id. (emphasis added).
¶ 64 To the contrary, subsection (1)(b) does not impose the duty to
determine restitution upon the court. Rather, it provides one way
in which the court may discharge its obligation to address
restitution in the judgment of conviction, that being to enter an
order that restitution is owed “but that the specific amount of
restitution shall be determined within the ninety-one days
immediately following the order of conviction, unless good cause is
shown for extending the time period by which the restitution
amount shall be determined.” § 18-1.3-603(1)(b).
¶ 65 The word “determine” should be given the same meaning
throughout the statute — i.e., the process of identifying the amount
31
of restitution and the victims to which it is owed.4 There is nothing
in the statute to suggest the legislature intended otherwise. Indeed,
as noted in Knoeppchen, to read the provisions as if one refers to
the prosecutor’s gathering of the information to present to the court
and the other refers to the sentencing court’s ultimate resolution of
the request based on that information would set up a frequent
conflict in that the court would often be left with little to no time to
rule without giving the defendant an opportunity to respond to the
request. It would seem odd for the legislature to provide for a “good
cause” extension when the need for such an extension would
appear to be the rule and not the exception.5
¶ 66 Significantly, within this same statute, the legislature used a
different term than “determine” when referring to the sentencing
4 Of course, the ultimate act of fixing the amount owed falls to the
court, after providing the defendant with an opportunity to
challenge the prosecuting attorney’s “determination” of the amount
and holding the prosecution to its burden of proving the accuracy of
its determination by a preponderance of the evidence. See People v.
Martinez, 166 P.3d 223 (Colo. App. 2007).
5 To the extent the historical interpretation continues to hold sway,
the legislature may wish to address this structure to avoid trial
courts being put in an unworkable situation or feeling forced to rule
quickly, potentially at the expense of the defendant’s opportunity to
be heard on the issue.
32
court’s act of establishing the final amount of restitution. In
particular, the statute provides that if additional victims or losses
are later discovered, the sentencing court may increase the amount
of restitution provided that “the final amount of restitution due has
not been set by the court.” § 18-1.3-603(3)(a) (emphasis added).
Thus, while the sentencing court “sets” the final amount of
restitution, it does so based on the prosecutor’s “determination.”
But only the latter must be accomplished (absent a showing of good
cause or extenuating circumstances as applicable) within
ninety-one days.
¶ 67 Moreover, contrary to the division’s view in Weeks, this
construction does not “render section 18-1.3-603(1)(b) superfluous
of the language in section 18-1.3-603(2).” Weeks, ¶ 14. The two
provisions serve different purposes. The first paragraph requires
the court to expressly include consideration of restitution in the
judgment of conviction. It is important to remember that this
paragraph never says “the court shall determine restitution within
ninety-one days.” Rather, it merely says that, when a court is
deferring restitution, the order of conviction must include specific
33
language, i.e., that restitution shall be determined within that time
frame (or some other time frame upon a showing of good cause).
¶ 68 The second paragraph explains how the amount of restitution
(if any) is arrived at. Note that the process by which the
prosecuting attorney determines the restitution and the identity of
the victims, as set forth in subsection (2), applies whether the court
is deferring restitution, ordering restitution on the day of
sentencing, ordering restitution for a particular future treatment, or
finding that no restitution is owed.
¶ 69 Nor is it either a superfluity or an inconsistency that the
legislature established two different standards to obtain an
extension of the ninety-one-day deadline, because the assessment
addresses the need for additional time at two different points in the
process. The first provision allows the court to determine at the
time it enters the order of conviction that there is good cause for
granting an initial period of deferral longer than ninety-one days.
The second provision allows for an additional deferment period, but
to warrant this additional time requires a different showing —
“extenuating circumstances.” § 18-1.3-603(2). At these two
different points on the timeline, both the reasons underlying the
34
need for additional time and the impact of additional delay on
defendants and victims may be different. Accordingly, it is not
unusual that the legislature chose to impose different standards for
the two requests. Consequently, this view of the statute actually
avoids making any of the language superfluous. See People v. Null,
233 P.3d 670, 679 (Colo. 2010) (Appellate courts “avoid
interpretations that would render any words or phrases superfluous
or would lead to illogical or absurd results.”)
¶ 70 Moreover, this interpretation differs from the historically held
view of the statute in that it avoids the nearly unworkable conflict
created when the two ninety-one-day provisions are read to apply to
different acts (the prosecution’s provision of the information and the
court’s ultimate decision imposing restitution). Also, the historical
view increases the possibility that a victim loses the right to
restitution, and a defendant avoids responsibility to pay it, merely
because a trial court does not act within the relatively short time
period. Instead, by reading the statute as imposing deadlines by
which the prosecution must act, but granting the court the
flexibility to adjust those deadlines, this construction serves the
purposes of the statute, which include imposing restitution as “a
35
mechanism for the rehabilitation of offenders,” deterring “future
criminality,” ensuring full restitution for victims of crime in the
most expeditious manner, and “aid[ing] the offender in reintegration
as a productive member of society.” See § 18-1.3-601(1)(c), (1)(d),
(1)(g)(I), (2), C.R.S. 2019. This statutory construction is thus more
consistent than the historical view with the legislative mandate that
the restitution statute “be liberally construed to accomplish” these
purposes. § 18-1.3-601(2).
¶ 71 Under this interpretation, having reserved restitution for
ninety-one days,6 the court could extend the initial deadline based
on “extenuating circumstances affecting the prosecuting attorney’s
ability to determine restitution.” § 18-1.3-603(2). Such
circumstances are more than sufficiently shown by the fact that the
claimed restitution was based on expenses arising out of ongoing
legal battles allegedly caused by Roddy’s conduct, and thus were a
6 I note that at the time of the plea the prosecution made no
representation that restitution information was “not available prior
to the order of conviction.” § 18-1.3-603(2), C.R.S. 2019. However,
because Roddy does not challenge the sentencing court’s initial
decision to reserve restitution, neither I nor the majority need
address that issue.
36
continually moving target.7 Thus, I agree, albeit for reasons
different than the majority, that the sentencing court had the
authority to enter a restitution order outside of the ninety-one-day
window.
7 The fact that the majority holds — and I agree — that most if not
all of these legal expenses were ultimately not chargeable to Roddy
does not impact whether the circumstances interfering with the
prosecutor’s ability to gather the information to support the
restitution claim were sufficiently extenuating to warrant the
deadline extension.
37