v. Rice , 2020 COA 143 ( 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
October 8, 2020
2020COA143
No. 19CA0014, People v. Rice — Criminal Law — Sentencing —
Restitution — Assessment of Restitution
A division of the court of appeals adopts the reasoning from
People v. Weeks, 2020 COA 44, which determined that the district
court must order a specific amount of restitution within ninety-one
days of sentencing. But the division departs from Weeks by holding
that a district court may impose restitution after that time based on
an implied finding of good cause that is supported by the record.
COLORADO COURT OF APPEALS 2020COA143
Court of Appeals No. 19CA0014
Pueblo County District Court No. 16CR2628
Honorable Thomas B. Flesher, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Allen Rice,
Defendant-Appellant.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE JOHNSON
Dailey and Davidson*, JJ., concur
Announced October 8, 2020
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant Brian Allen Rice (Rice) challenges the district
court’s order of restitution on grounds that (1) it was entered more
than ninety-one days after his conviction without a showing of good
cause and (2) he did not proximately cause the harm to the victim’s
vehicle. We affirm in part, reverse in part, and remand the case
with instructions to modify the amount of restitution awarded.
I. Background
¶2 On August 7, 2018, Rice pled guilty to one count of first
degree aggravated motor vehicle theft, display of unlawful license
plates, under section 18-4-409(2)(h), (3)(a), C.R.S. 2019. He was
also charged with two counts of the same, based on other
aggravating factors: retaining possession for more than twenty-four
hours and causing five hundred dollars or more in property
damage. See § 18-4-409(2)(a), (e). But those additional charges
were dismissed as part of Rice’s plea agreement. The district court
entered a restitution order in the amount of $3056.82 on November
14, 2018, ninety-nine days after Rice’s sentence.
1
II. Deadline to Determine Restitution Under Section
18-1.3-603(1)(b)
¶3 No one disputes that the district court held the restitution
hearing ninety-three days from entry of Rice’s sentence and issued
a restitution order ninety-nine days after entry of his sentence. We
conclude that a district court must enter restitution within
ninety-one days from sentencing, but that implied good cause to
extend that deadline was shown in this case.
A. Standard of Review
¶4 The interpretation of the restitution statute is a question of
law that we review de novo. People v. Ortiz, 2016 COA 58, ¶ 15.
The issue of whether good cause exists to extend the ninety-one-day
deadline to determine restitution under section 18-1.3-603(1)(b),
C.R.S. 2019, is one we review for an abuse of discretion. People v.
Harman, 97 P.3d 290, 294 (Colo. App. 2004). A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair, or when it misconstrues or misapplies the law. People v.
Weeks, 2020 COA 44, ¶ 11.
2
B. Analysis
¶5 Restitution is part of the district court’s sentencing function in
criminal cases. People v. Vasseur, 2016 COA 107, ¶ 16. Under the
Colorado restitution statute, if a district court decides at sentencing
to defer its decision regarding the appropriate amount of restitution,
“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).
¶6 At Rice’s sentencing, the district court left open the specific
amount of restitution for ninety-one days. Rice argues that under
People v. Turecek, 2012 COA 59, ¶¶ 13-15, section 18-1.3-603(1)(b)
requires a court to enter a restitution order within this time frame.
We agree.1
1 Subsequent to the entry of the order on appeal in Turecek, 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.
3
1. Ninety-One Day Deadline
¶7 Divisions of this court have recently disagreed over whether
the court or the prosecutor “determine[s]” restitution under section
18-1.3-603(1)(b) and (2).
¶8 Weeks, ¶¶ 12-13, held that section 18-1.3-603(1)(b)’s language
of “determin[ing]” restitution refers to the district court’s obligation
to order a specific amount within ninety-one days, unless good
cause is shown. Because the record in that case contained no
explanation of good cause as to an eleven-month delay from
conviction to entry of the restitution order, Weeks vacated the
restitution order.
¶9 People v. Perez, 2020 COA 83, ¶¶ 18-26, 36, on the other
hand, held that section 18-1.3-603(1)(b) only obligates the district
court to consider restitution as part of the defendant’s judgment of
conviction, but does not necessarily impose a deadline of ninety-one
days on the court. This interpretation, Perez reasons, avoids a
circumstance when the district court must decide restitution within
ninety-one days under subsection (1)(b), and the prosecutor may
take the same full ninety-one days to determine the restitution
amount it will seek under subsection (2).
4
¶ 10 Although we understand the rationale underlying Perez, we
determine the statutory interpretation in Weeks to be more
persuasive.2 Even though the district court did not enter Rice’s
restitution order within the required ninety-one days from entry of
conviction, as we explain next, we conclude that good cause was
shown to extend the deadline under section 18-1.3-603(1)(b).
2. Good Cause
¶ 11 Section 18-1.3-603(1)(b) permits a court to extend the time
period for determining restitution if “good cause is shown.” Our
reading of this provision is where we depart from Weeks and
2 In agreeing with Weeks, we reject the Attorney General’s argument
that the restitution statute does not require a court to “order”
restitution within ninety-one days from conviction. This argument
is similar to the interpretation in Perez, although that case had yet
to be decided when this issue was briefed.
We likewise reject the Attorney General’s argument that
restitution was entered upon the district court’s initial grant of the
prosecutor’s proposed restitution within the ninety-one-day
window, and that the court’s subsequent order following Rice’s
restitution hearing was merely a modification of that order. See
People v. Martinez-Chavez, 2020 COA 39, ¶ 29 (rejecting Attorney
General’s argument that written objections to restitution are
sufficient and holding that an in-person restitution hearing is
necessary to afford the defendant “the opportunity to contest or
otherwise challenge” the prosecution’s evidence of restitution owed);
People v. Hernandez, 2019 COA 111, ¶ 24 (holding that a restitution
hearing is a “critical stage” of the prosecution “at which a defendant
has a due process right to be present”).
5
determine that a showing may be implied. We instead adopt the
reasoning of Knoeppchen, ¶ 25, to the extent that division observed
that “nothing in the statute explicitly requires the court to make an
oral or written finding of good cause; rather, the statute merely
requires good cause to be shown.” (Emphasis added.) We
acknowledge that the Weeks majority rejected Knoeppchen’s
analysis of section 18-1.3-603(1)(b) on grounds that such analysis
was dicta, as “the division ultimately determined that the
defendant’s motion to vacate the restitution order was time barred.”
Weeks, ¶ 16.
¶ 12 Regardless, subsection (1)(b) requires a showing of good cause,
not an explicit finding, and we share Knoeppchen’s reluctance to
read additional requirements into the statute when such words are
not there. See People v. Roddy, 2020 COA 72, ¶¶ 25, 26 (assuming
without deciding that the ninety-one day period applies to court to
determine restitution, district court’s use of “extenuating
circumstances” constituted good cause to enter the order after that
time period because the victim continued to incur and pay
attorney’s fees); see also People v. Rojas, 2019 CO 86M, ¶ 11 (“We
may not add or subtract words from [a] statute, but instead read
6
the words and phrases in context, construing them according to the
rules of grammar and common usage.”).
¶ 13 Such a showing under the statute is also, in our view, not
time-restricted. See Knoeppchen, ¶ 26 (finding “no authority . . .
that requires the showing (or finding) of good cause to occur at any
particular time”). We therefore reject Rice’s argument that the
district court needed to affirmatively grant an extension within the
original statutory time period to enter a valid restitution order after
ninety-one days had passed.
¶ 14 With that said, we underscore the requirement that implied
good cause must be shown or demonstrated in the record for us to
uphold a district court’s tardy restitution order. See Harman, 97
P.3d at 294; see also Weeks, ¶ 27 (reversing the district court’s
eleven-month late restitution order where “[t]he trial court’s ruling
did not explain, and the record does not show, what good cause, if
any, existed for that inordinate delay”) (emphasis added). We will
not simply assume good cause exists by virtue of the district court
entering an order following the ninety-one day period. See, e.g.,
Weeks, ¶ 17 (“To the extent that the division in Knoeppchen said
that an order extending a prosecutor’s time to seek restitution
7
always constitutes good cause under section 18-1.3-603(1)(b), we
respectfully decline to follow the decision.”) (emphasis added).
¶ 15 Here, the record reflects that good cause was shown to extend
the time period for determining restitution under section 18-1.3-
603(1)(b). The timeline of filings, actions, and hearings that
followed Rice’s conviction reflects a trial court that was proactively
attending to the unresolved restitution issue, but ultimately missed
the ninety-one-day deadline by mere days due to docket scheduling.
 The parties did not agree on the amount of restitution, so the
district court left it open for ninety-one days.
 Three days after the conviction entered, the prosecution filed
its motion for restitution, seeking $3605.34 payable to the
victim for automobile repairs. Six days after the conviction
entered, the district court granted the motion before Rice filed
his objection.
 Rice filed his objection to the prosecution’s proposed
restitution fifty-two days after his conviction, leaving the
district court with less than half of the presumptive
ninety-one-day period.
8
 Four business days after Rice’s objection, the district court
placed the matter on its upcoming setting docket.
 At the setting hearing, the court attempted to expedite the
restitution issue by inquiring whether counsel “could talk and
maybe reach an agreement.”
 When this attempt was unsuccessful, the court was left with
fifteen days to schedule a restitution hearing, preside over the
hearing, and enter a restitution order.
 The court held the restitution hearing two days past the
presumptive deadline and, after taking the matter under
advisement, entered its final order eight days late.
Such a procedural history constitutes a showing of implied good
cause.
¶ 16 The district court kept up with the filings in this case and
repeatedly took action; it did not let the issue of restitution languish
unresolved for months. Cf. id. at ¶¶ 6-8, 10, 28 (reversing
restitution order where more than seven months elapsed without
the district court acting on the defendant’s filed objection). Given
the circumstances in this case, we will not vacate an order of
restitution where, despite the documented reasonable efforts of the
9
court, “the press of other business precludes the court from
determining the amount within the ninety-one-day window.” See
Perez, ¶ 59 (Yun, J., concurring in part and dissenting in part).
III. Restitution Award
¶ 17 Rice contends that the prosecutor failed to prove by a
preponderance of the evidence that he proximately caused the
damage to the victim’s vehicle. We agree in part but direct the
district court to order a modified restitution amount of $500.
A. Waiver Argument
¶ 18 As an initial matter, we disagree with the Attorney General’s
argument that Rice waived his right to challenge the finding that he
caused all the damages reflected in the restitution order.
¶ 19 Rice signed a plea agreement which stated that “[t]he
defendant will be ordered to pay restitution to the victim(s) of
his/her conduct” and that “[d]ismissed counts will be considered
for sentencing and restitution purposes.” He verbally acknowledged
this requirement at sentencing and stipulated to a factual basis for
his plea.
¶ 20 From these acknowledgments alone, we do not view Rice to
have waived the right to challenge causation of the victim’s
10
damages for restitution purposes. See People In Interest of A.V.,
2018 COA 138M, ¶ 16 (noting that “simply stipulating to a factual
basis may be insufficient to waive causation where the issue of
causation is not specifically identified or discussed”). The general
acknowledgments contained in Rice’s plea agreement and
sentencing statements differ considerably from the specific types of
admissions that have characterized scenarios where a court found
such a waiver. See, e.g., McCarty v. People, 874 P.2d 394, 400-01
(Colo. 1994) (concluding that the defendant could not disavow
restitution obligation where she agreed to restitution amount “on
several occasions without objection and while represented by and in
the presence of counsel”); A.V., ¶ 18 (concluding the defendant
waived his argument challenging causation of restitution where
defense counsel conceded exact amount of restitution owed and
requested that the court order that amount).
¶ 21 We decline to conclude Rice waived his right to challenge
causation and will consider his sufficiency challenge.
11
B. Standard of Review and Applicable Law
¶ 22 We review the sufficiency of the evidence to support a
restitution award de novo.3 People v. Barbre, 2018 COA 123, ¶ 25;
see also People v. Jaeb, 2018 COA 179, ¶ 48 (concluding that
defendant’s claim “that the prosecution failed to prove that he
caused the damage” is “a sufficiency determination that should be
reviewed de novo”); Ortiz, ¶ 26 (same). In doing so, we evaluate
“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.
¶ 23 The General Assembly defines restitution as “any pecuniary
loss suffered by a victim,” including “losses or injuries proximately
caused by an offender’s conduct and that can be reasonably
3 We disagree with the Attorney General that under People v. Henry,
2018 COA 48M, ¶ 12, we review a restitution order for abuse of
discretion. While this may be true for certain aspects of a
restitution order, Rice’s contention that the prosecution failed to
prove proximate cause represents a sufficiency of the evidence
challenge. See People v. Ortiz, 2016 COA 58, ¶ 26 (“True, setting
the terms and conditions of restitution involves discretionary calls.
But defendant challenges the sufficiency of the evidence.”) (citations
omitted).
12
calculated and recompensed in money.” § 18-1.3-602(3)(a), C.R.S
2019. The prosecution bears the burden of proving by a
preponderance of the evidence both the amount of restitution owed
and that the victim’s losses were proximately caused by the
defendant. Vasseur, ¶ 15.
¶ 24 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. People v. Rivera, 250 P.3d 1272, 1274 (Colo.
App. 2010).
C. Sufficiency of the Evidence
¶ 25 Rice argues that the prosecution failed to satisfy its burden in
proving by a preponderance of the evidence that he proximately
caused $3056.82 in damages to the victim’s vehicle. We agree,
except as discussed below, with respect to consideration of the
dismissed criminal charge.
¶ 26 In a restitution proceeding, “more than speculation is required
in order for a defendant to be ordered to bear responsibility for the
victim’s loss.” People v. Randolph, 852 P.2d 1282, 1284 (Colo. App.
13
1992). We view the district court’s conclusion that Rice proximately
caused $3056.82 of the victim’s losses to be speculative.
¶ 27 At the restitution hearing, the court heard evidence concerning
the dollar value of damages to the victim’s vehicle, including
testimony from the victim and an itemized list of repair estimates
from an auto body shop dated approximately a month from the
vehicle’s recovery. The victim testified the instrument panel, center
console, ignition, heating system, front hood, back seat, and
bumper were damaged.
¶ 28 But the prosecution did not present evidence at the hearing —
and the record contains insufficient evidence — that Rice more
likely than not proximately caused these damages. Whereas the
victim testified at the restitution hearing that the car had been
stolen for almost a year before it was recovered, the police reports
and sentencing transcript both reflect Rice’s own account that he
had only purchased the car weeks before, “got a deal that was too
good to be true,” and “did not follow the proper channels to ensure
the vehicle was not stolen.”
¶ 29 This purported gap of time — indeed a substantial period —
between when the car was stolen and when Rice claims to have
14
obtained possession is problematic in determining whether, and to
what extent, Rice proximately caused the damages that the district
court awarded. Other divisions of this court have vacated
restitution orders involving shorter lengths of time in which the
prosecution failed to prove proximate cause for damage due to the
defendant’s mere possession. See, e.g., People in Interest of D.I.,
2015 COA 136, ¶ 24 (vacating restitution order for damages to
stolen car when the defendant’s possession did not establish
damage to and initial theft of the vehicle two days earlier);
Randolph, 852 P.2d at 1284 (reversing restitution order for personal
property taken from stolen car where the defendant was not
involved with the initial theft).
¶ 30 Rice’s statements are not dispositive as to what happened in
this case. But it was not Rice’s burden to prove that he did not
proximately cause $3056.82 in damages to the car; it was the
prosecution’s burden to prove that he did.
¶ 31 The only evidence that Rice was involved with the initial theft
is that the car was parked at his residence when it was recovered
nearly a year later. Such evidence is insufficient to establish Rice’s
involvement with the initial theft, and, by extension, his continuous
15
possession of the car over the course of the year it was presumably
damaged.
¶ 32 Assuming Rice’s account to be true that he only possessed the
car for a short time, it is certainly possible that he caused part, or
all, of the $3056.82 in damages in the intervening weeks between
when he obtained possession and when the vehicle was recovered
upon his arrest. But we find no evidence in the record — and none
was presented at the restitution hearing — of when these damages
were sustained. Therefore, regardless of when Rice took possession
the stolen car, the evidence is insufficient to show that he
proximately caused this amount of damages.
¶ 33 The Attorney General argues that D.I. and Randolph are
distinguishable, as Rice pled guilty to first degree aggravated
automobile theft, while those cases involved the lesser offenses of
second degree motor vehicle theft and theft by receiving,
respectively. We disagree that the severity of the offense is a
distinguishing factor, however, as one can be convicted of
aggravated motor vehicle theft in the first degree without having
committed the initial theft and causing all of the attendant
damages. See § 18-4-409(2) (“A person commits aggravated motor
16
vehicle theft in the first degree if he or she knowingly obtains or
exercises control over the motor vehicle of another without
authorization or by threat or deception and: [engages in any listed
behaviors].”)
¶ 34 We therefore reverse the district court’s restitution order of
$3056.82, as the prosecution did not sufficiently prove Rice to have
proximately caused the entirety of the damages.
¶ 35 We note, however, that Rice signed a plea agreement stating
that “[d]ismissed counts will be considered for sentencing and
restitution purposes.” (Emphasis added.) We now turn to whether
consideration of the dismissed charge warrants entry of a modified
restitution award.
D. Consideration of Dismissed Charge
¶ 36 One dismissed count with which Rice was charged was first
degree aggravated motor vehicle theft (causing five hundred dollars
or more in property damage). See § 18-4-409(2)(e). A person
commits that crime if he or she knowingly obtains or exercises
control over the motor vehicle of another without authorization and
“[c]auses five hundred dollars or more property damage, including
but not limited to property damage to the motor vehicle involved, in
17
the course of obtaining control over or in the exercise of control of
the motor vehicle.” Id.
¶ 37 We acknowledge that restitution may not be awarded for
criminal conduct of which the defendant was acquitted, see Cowen
v. People, 2018 CO 96, ¶ 24, or for conduct with which the
defendant was never criminally charged, People v. Sosa, 2019 COA
182, ¶ 1.
¶ 38 But here, the plea agreement mandates the consideration that
Rice caused a minimum of five hundred dollars of damage.
Although the prosecution did not sufficiently prove Rice proximately
caused specific damages above this minimum amount, awarding
restitution in the modified amount of $500 gives effect to the terms
of Rice’s plea agreement. See People v. Antonio-Antimo, 29 P.3d
298, 303 (Colo. 2000) (“Plea agreements are contractual in
nature.”); People v. Johnson, 999 P.2d 825, 829 (Colo. 2000)
(“Determination of the parties’ obligations under a plea agreement is
a question of law we review de novo.”); see also Sosa, ¶ 29
(acknowledging that the prosecution and defense may “enter[] into a
plea agreement pursuant to which dismissed or uncharged counts
will be considered for purposes of restitution”).
18
¶ 39 Aside from Rice’s plea agreement, which explicitly
contemplates a restitution award covering dismissed charges, such
an award is further bolstered by the record. The district court’s
ordered restitution of $3056.82 was a reduction from the
prosecution’s original proposed amount of $3605.34. This
reduction was based on Rice’s filed objection that the amount of
restitution was “excessive” because he did not cause the damage to
the front bumper.
¶ 40 In other words, the focus of Rice’s challenge to the restitution
award in the underlying case disputed the amount — not the fact —
of restitution owed. Consequently, the record further supports our
imposition of modified restitution of $500 in consideration of the
dismissed count of first degree aggravated motor vehicle theft with a
minimum damage component. See People v. Stone, 2020 COA 24,
¶ 5 (noting that the purpose of imposing restitution against
defendants is to compensate victims, and that “the Restitution Act
is to be ‘liberally construed’ to accomplish that purpose” (quoting
People v. McCann, 122 P.3d 1085, 1087 (Colo. App. 2005))).
19
IV. Conclusion
¶ 41 The district court’s restitution order is affirmed in part and
reversed in part, and the case is remanded with instructions to
award restitution in the modified amount of $500.
JUDGE DAILEY and JUDGE DAVIDSON concur.
20