People v. Babcock

535 P.3d 981

2023 COA 49

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Zachary Eugene BABCOCK, Defendant-Appellant.

Court of Appeals No. 20CA1678

Colorado Court of Appeals, Division II.

Announced June 8, 2023

Rehearing Denied July 13, 2023

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Zachary Eugene Babcock, appeals the trial court's restitution order, asserting that the trial court lacked authority to enter a restitution order more than ninety-one days after sentencing without a timely and express finding of good cause to extend that deadline. The People contend that Babcock waived his right to challenge the timeliness of the restitution order by requesting a hearing date outside the ninety-one-day period before the expiration of that deadline. Answering a question not addressed by the Colorado Supreme Court in People v. Weeks , 2021 CO 75, ¶ 24, 498 P.3d 142, we conclude that a defendant can waive the right to have restitution determined within the statutory time constraints and that Babcock did so by requesting a hearing outside the ninety-one-day period. We therefore address Babcock's challenge to the sufficiency of the evidence to support the restitution award and conclude the evidence was sufficient. Accordingly, we affirm the restitution order.

I. Background

¶ 2 On December 19, 2019, Babcock pleaded guilty to child abuse resulting in serious bodily injury as part of a deferred judgment and sentence agreement. When the court accepted the plea, it reserved restitution for ninety-one days. Eighty-two days later, on March 10, 2020, the prosecution filed its motion to impose restitution with supporting documentation, requesting $12,258.83 in restitution for medical bills. On March 18, 2020—ninety days after the court accepted the plea—defense counsel objected to the restitution request and asked that a restitution hearing be set in June—which would fall outside the ninety-one-day period—because of "the current pandemic the world is facing." The next day, the trial court set the hearing for June 11, 2020. Thereafter, the June hearing was continued because of COVID-19. Ultimately, the hearing was held on August 14, 2020, and the trial court imposed $12,258.83 in restitution.

II. Timeliness

A. Standard of Review and Applicable Law

¶ 3 This appeal calls for us to interpret the restitution statute, section 18-1.3-603, C.R.S. 2022. That presents a legal issue that we review de novo. Weeks , ¶ 24.

¶ 4 Every order of conviction for a felony "shall include consideration of restitution," which must take one or more of four prescribed forms: (1) an order to pay a specific amount; (2) an order that the defendant is obligated to pay restitution, but deferring the establishment of the actual amount owed; (3) an order that the defendant is obligated to pay the actual costs of specific future treatment for the victim; or (4) a finding that no victim suffered a pecuniary loss and thus no restitution is owed. § 18-1.3-603(1). If the court reserves the determination of restitution, the statute provides that the 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). For purposes of the restitution statute, an order of conviction for a felony includes the court's acceptance of a plea of guilty. People v. Roddy , 2021 CO 74, ¶¶ 18–21, 498 P.3d 136 (treating the acceptance of a deferred judgment and sentence agreement as an "order of conviction" for purposes of the statutory restitution deadlines); see also § 18-1.3-602(2), C.R.S. 2022.

¶ 5 The ninety-one-day "deadline in subsection (1)(b) refers to the court's determination of the restitution amount the defendant must pay, not to the prosecution's determination of the proposed amount of restitution." Weeks , ¶ 5. And "this deadline may be extended only if, before the deadline expires, the court expressly finds good cause for doing so." Id. If the court fails to comply with this deadline, it loses the authority to award restitution. See id. at ¶¶ 7, 45.

B. Analysis

¶ 6 The People contend that (1) the restitution statute's ninety-one-day deadline is not jurisdictional, and (2) Babcock waived "any timeliness challenge to the determination of restitution outside the ninety-one-day deadline by expressly requesting that the court set a ... hearing for restitution more than three months after expiration of the ninety-one[-]day deadline." We agree with both contentions.

1. Authority

¶ 7 We agree with the People that the restitution statute's ninety-one-day deadline is not jurisdictional.

¶ 8 Subject matter jurisdiction "concerns the court's authority to deal with the class of cases in which it renders judgment, not its authority to enter a particular judgment within that class." People in Interest of J.W. v. C.O. , 2017 CO 105, ¶ 24, 406 P.3d 853 ; see also Minto v. Lambert , 870 P.2d 572, 575 (Colo. App. 1993) (noting that there is often "confusion about subject matter jurisdiction because of a blurring of the distinction between the appropriate exercise of power and the absence of power"). But not all mandatory statutory time limits are jurisdictional. See, e.g. , People v. McMurtry , 122 P.3d 237, 241–42 (Colo. 2005) (holding that the statutory right to a speedy trial within six months of pleading not guilty is not jurisdictional). When the legislature intends to impose a limit on the court's jurisdiction, it must do so explicitly. Wood v. People , 255 P.3d 1136, 1140 (Colo. 2011). A jurisdictional defect cannot be waived, but a nonjurisdictional deadline can be. Id. ; see also People v. Sprinkle , 2021 CO 60, ¶ 17, 489 P.3d 1242.

¶ 9 In Weeks , the supreme court stated that a trial court loses "authority" to order restitution more than ninety-one days after sentencing absent an express good cause finding to extend the deadline. Weeks , ¶ 45. Notably absent from Weeks —and from the statutory provision itself—is the use of the word "jurisdiction."

¶ 10 In People v. Turecek , 2012 COA 59, ¶¶ 20, 25, 280 P.3d 73, overruled in part by Weeks , 2021 CO 75, 498 P.3d 142, a division of this court determined that the statutory deadline for imposing restitution is not jurisdictional.

To say that a court lacks authority to order belated restitution does not use "authority" in a jurisdictional sense, but only in the same sense in which a court lacks "authority" to impose a sentence above the statutory maximum. Such action is an error of law, reversible on appeal, but it is not jurisdictional.

Id. at ¶ 20 (quoting Dolan v. United States , 560 U.S. 605, 626, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) (Roberts, C.J., dissenting)). Although in Weeks the supreme court overruled Turecek , the court did so only "[t]o the extent that [it was] inconsistent with" Weeks . Weeks , ¶ 47 n.16. We read nothing in Weeks that would be inconsistent with Turecek ’s jurisdictional analysis. Indeed, the fact that the discussion in Weeks is restricted to a sentencing court's authority—rather than its jurisdiction—indicates that the supreme court did not intend to abandon its long adhered-to distinction between the two.

¶ 11 We thus conclude that Weeks did not overrule Turecek ’s jurisdictional analysis. The ninety-one-day period remains a nonjurisdictional deadline and, as such, it can be waived. We therefore turn to the People's contention that Babcock waived his right to have restitution determined within ninety-one days by requesting a hearing date outside the ninety-one days.

2. Waiver

¶ 12 "Constitutional and statutory rights can be waived or forfeited." Richardson v. People , 2020 CO 46, ¶ 24, 481 P.3d 1. With respect to either a constitutional right or a statutory right, waiver is "the intentional relinquishment of a known right or privilege." Id. (quoting People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 ).

¶ 13 Defense counsel requested a hearing outside the ninety-one-day period before Weeks was decided. But at the time, the restitution statute stated, as it does now, 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), C.R.S. 2019. And before defense counsel requested that the hearing be set outside the ninety-one-day period, at least one published decision by a division of this court resolved the timeliness issue largely as the supreme court did later in Weeks . See Turecek , ¶ 25 (holding that the deadline applies to the court's determination of restitution and reversing the order); see also People v. Perez , 2020 COA 83, ¶¶ 18–27, 490 P.3d 768 (discussing the historical view that the deadline in section 18-1.3-603(1)(b) applies to the court), overruled in part by Weeks , 2021 CO 75, 498 P.3d 142, cert. granted, judgment vacated, and case remanded , ( No. 20SC559, 2021 WL 5918012 (Colo. Dec. 6, 2021) (unpublished order). Therefore, at the time defense counsel requested that a restitution hearing be set outside the ninety-one-day period, he was asking the trial court to act outside the timeframe proscribed by statute and case law. By doing so, he intentionally relinquished a known right.¹ See Rediger , ¶ 39.

¶ 14 Finally, to the extent Babcock contends that he also had a right to have the trial court make an express finding of good cause to extend the deadline within the original ninety-one days, and he did not waive that right, we disagree. The requirement that the trial court make an express finding of good cause to extend the deadline within the original ninety-one...