People v. Fregosi

547 P.3d 402

2024 COA 6

2024 COA 6

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

v.Alexander Ryan FREGOSI, Defendant-Appellant.

Court of Appeals No. 21CA0116

Colorado Court of Appeals, Div. V.

Prior Opinion Announced November 30, 2023, WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35(e)" ON November 30, 2023, IS NOW DESIGNATED FOR PUBLICATION

Announced January 18, 2024

Weld County District Court No. 19CR2209, Honorable Marcelo A. Kopcow, Judge

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶ 1 Defendant, Alexander Ryan Fregosi, appeals the district court’s restitution order. We affirm.

I. Background

¶ 2 Fregosi pleaded guilty to menacing as an act of domestic violence, a class 5 felony, in exchange for the dismissal of two other counts. As part of his plea agreement, he acknowledged that "[t]he People reserve[d] restitution" and that he "stipulate[d] to [a] factual basis."

¶ 3 The court accepted the plea agreement and confirmed that Fregosi understood its terms. The court found Fregosi’s plea was knowing, intelligent, and entered without undue influence or coercion. The court then set the matter for a sentencing hearing.

¶ 4 The court sentenced Fregosi to three years in the custody of the Department of Corrections. During the hearing, the prosecutor asked for ninety-one days to seek restitution. The court asked defense counsel if he had any objection, and counsel responded, "No, Judge." The court granted the prosecutor’s request.

¶ 5 Fifty-one days later, the prosecutor requested $873.10 in restitution for the victim’s medical and therapy costs accrued to date. Additionally, the prosecutor said he believed further restitution would be forthcoming and asked the court to reserve future restitution under section 18-1.3-603(1)(c), C.R.S. 2023, to account for the victim’s future treatment costs.

¶ 6 The court gave Fregosi twenty-one days to object to the motion. Fregosi did not object or otherwise respond to the motion. Therefore, on May 28, 2020 (seventy-three days after sentencing), the court ordered Fregosi to pay $873.10 in restitution to the Crime Victim Compensation Board (CVCB). The order further stated, "Pursuant to C.R.S. § 18-1.3-603, in addition to the specific amount of restitution listed in this order, the defendant shall be required to pay the actual costs of specific future treatment of any victim of the crime, if applicable."

¶ 7 Subsequently, the prosecution filed thirteen amended restitution requests seeking compensation for the victim’s ongoing therapy costs. Fregosi objected to the amended requests. Among other things, he objected to the court entering any orders beyond the ninety-one-day deadline without making express and timely good cause findings.

¶ 8 The court granted all the amended requests. In each of its orders, the court indicated that, under section 18-1.3-603, it reserved final determination of restitution to account for the costs of the victim’s ongoing treatment. And at each hearing, the court reiterated its intent to reserve the final restitution determination under section 18-1.3-603.

¶ 9 At a December 2021 restitution hearing, the CVCB coordinator reported that the victim had reached the limit of therapy sessions covered by the CVCB. The court then entered a final restitution order in the amount of $4,473.10.¹

II. Restitution

¶ 10 Fregosi contends that the district court lacked the authority to grant the prosecutor’s requested amount of restitution seventy-three days after sentencing because (1) the prosecutor failed to file the information necessary to support restitution before the judgment of conviction entered, as required by section 18-1.3-603(2); and (2) the court failed to enter a specific order at sentencing under section 18-1.3-603(1). We address and reject both contentions.

A. Standard of Review and Applicable Law

[1] ¶ 11 Questions of statutory interpretation and whether a district court has authority to order a defendant to pay restitution are legal questions that we review de novo. People v. Weeks, 2021 CO 75, ¶ 24, 498 P.3d 142; People v. Roddy, 2021 CO 74, ¶ 23, 498 P.3d 136.

¶ 12 The restitution statute provides, in pertinent part, as follows:

(1) Every order of conviction of a felony … shall include consideration of restitution. Each such order shall include one or more of the following:

(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.

(2)(a) 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.

….

(3) Any order for restitution may be:

(a) 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.

[2, 3] ¶ 13 Every judgment of conviction must include one or more of the four types of restitution orders outlined in section 18-1.3-603(1). Weeks, ¶ 3. Section 18-1.3-603(1) does not permit the district court "to address the issue of restitution in a judgment of conviction by entering an order deferring that issue in its entirety." Id. at ¶ 30. Nor does it allow the prosecution "to ask that the issue of restitution (not just the amount of restitution) ‘remain open’ for any period of time after the judgment of conviction enters." Id.

[4, 5] ¶ 14 Further, under section 18-1.3-603(2), the prosecutor must move for restitution before or during the sentencing hearing and present the information supporting a proposed amount of restitution before the judgment of conviction is entered, if it is then available. Id. at ¶¶ 30-31. If that information is not available, the prosecution may submit it no later than ninety-one days after the judgment of conviction enters. Id. And the district court may extend this ninety-one-day deadline if — before the deadline expires — it expressly finds extenuating circumstances affecting the prosecution’s ability to determine restitution. Id. at ¶ 40.

[6] ¶ 15 Any failure to comply with these provisions bars the district court from awarding restitution. Id. at ¶ 45.

B. Initial Restitution Request

¶ 16 Fregosi maintains that the district court lacked the authority to grant the ninety-one-day extension because the prosecution had access to, but failed to present, information supporting its initial restitution request at the time of sentencing. We disagree and conclude that he waived the issue. We further conclude that even if he did not waive the issue, the record shows that the restitution information was not available at the time of sentencing.

1. Waiver

[7–10] ¶ 17 Waiver is the intentional relinquishment of a known right or privilege. People v. Roberson, 2023 COA 70, ¶ 24, 537 P.3d 825. Although a waiver can be implied, the conduct must be unequivocal and clearly manifest an intent to relinquish the claim. Phillips v. People, 2019 CO 72, ¶ 21, 443 P.3d 1016. The mere failure to raise an issue does not suffice. Id. We indulge every reasonable presumption against waiver. Id. In "[a]nswering a question not addressed by the Colorado Supreme Court in [Weeks]," a division of this court recently held that a district court’s ninety-one-day deadline for entry of restitution under section 18-1.3-603(1)(b) is not jurisdictional and is therefore waivable. People v. Babcock, 2023 COA 49, ¶¶ 1, 5-11, 535 P.3d 981.

[11] ¶ 18 We find People v. Johnson, 2023 COA 43M, 534 P.3d 947, instructive concerning waiver. There, the division determined that, under Weeks, a plea agreement provision giving the prosecutor additional time to submit restitution information serves "as both a motion for restitution and the parties’ acknowledgment that restitution information was not available before the conviction." Johnson, ¶ 24. When the prosecution subsequently files its restitution motion within ninety-one days, the prosecution has "met its obligation under subsection (2)" of section 18-1.3-603. Id.

[12] ¶ 19 Here, as in Johnson, Fregosi agreed to pay restitution, and "[t]he People reserve[ ]d restitution" in the plea agreement. Id. at ¶ 6; see also id. at ¶¶ 35-39 (Welling, J., specially concurring) (concluding that the defendant, by the terms of his plea agreement, waived any challenge to the prosecution’s deadline in section 18-1.3-603(2) to provide restitution information to the court before judgment of conviction enters). Thus, simply by the terms of the plea agreement, Fregosi waived this issue.

¶ 20 But even if we look beyond the terms of the plea agreement, the...