People v. Perez

490 P.3d 768

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

v.Rafael PEREZ, Defendant-Appellant.

Court of Appeals No. 16CA0446

Colorado Court of Appeals, Division II.

Announced May 28, 2020

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

Megan A. Ring, Colorado State Public Defender, Jason Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Rafael Perez, appeals the trial court's order of restitution, asserting both that the trial court lacked authority to enter a restitution order more than ninety-one days after sentencing and that there were no extenuating circumstances justifying the prosecutor's delay in submitting the information to the court. A division of this court previously addressed this appeal. People v. Perez , 2019 COA 62, ––– P.3d ––––. However, the supreme court vacated that opinion and remanded for reconsideration in light of its recent decision in Fransua v. People , 2019 CO 96, 451 P.3d 1208.

¶ 2 We reject Perez's first claim, concluding — contrary to decisions of other divisions of this court — that nothing in the restitution statute sets a deadline by which the trial court must enter an order for restitution. However, we agree that the trial court erred by ordering restitution without finding extenuating circumstances for the prosecution's untimely submission of the restitution information. In addition, we reject Perez's contention that his statutory and constitutional rights were violated when the trial court declined to disclose Crime Victim Compensation Board (CVCB) records.

¶ 3 Because of the lack of a finding of extenuating circumstances, we vacate the restitution order and remand for further proceedings.

I. Background

¶ 4 In June 2012, Perez hosted a wedding at his ranch. An argument ensued among some of the wedding guests. "A bunch of guys" started kicking one of the wedding guests and then Perez broke a beer bottle on the victim's face. The victim had to be transported to the hospital via helicopter for medical treatment.

¶ 5 Perez was charged with and convicted of second degree assault with a deadly weapon. On December 2, 2013, the trial court sentenced Perez to five years in the custody of the Department of Corrections. A division of this court affirmed his conviction. People v. Perez , (Colo. App. No. 14CA0326, 2017 WL 819693, Mar. 2, 2017) (not published pursuant to C.A.R. 35(e) ).

¶ 6 At sentencing, the trial court reserved a determination of restitution for ninety days. On March 6, 2014, ninety-four days after the order of conviction, the prosecution moved for an extension of time to request restitution. In its motion, the prosecution cited extensive and complex medical bills and a lost wages form received from the victim the previous day, as well as "substantial and possible ongoing medical claims from Crime Victim Compensation" as reasons for the requested extension. Perez did not object to this request, and the trial court granted the motion.

¶ 7 The prosecution filed its motion to impose restitution with supporting documentation on May 12, 2014. The trial court then held multiple hearings on the issue of restitution. At a restitution hearing in January 2015, the trial court determined that an in camera review of the records of the CVCB was necessary to address Perez's proximate causation concerns.

¶ 8 After the trial court conducted an in camera review of the CVCB's records, the trial court issued an order of restitution on March 16, 2015, finding that proximate cause had been established and ordering restitution in the amount of $17,060 to be paid to the CVCB. It also ordered restitution in the amount of $2546 to be paid to the victim for lost wages.

II. Analysis

¶ 9 Perez now appeals the restitution order on procedural and substantive grounds. He first argues that the trial court's failure to issue an order setting restitution within ninety-one days requires reversal. Second, he contends that the prosecution failed to establish extenuating circumstances to extend the deadline for submitting restitution information to the trial court. And third, he argues that the court improperly relied on records from the CVCB without disclosing those records to him.

A. Standard of Review

¶ 10 Generally, a trial court has broad discretion to determine a restitution order's terms and conditions. People v. Rivera , 250 P.3d 1272, 1274 (Colo. App. 2010). We will reverse only if the trial court abused its discretion. Id. An abuse of discretion occurs when the trial court's decision is manifestly arbitrary, unreasonable, or unfair, or the court misinterprets or misapplies the law. See People v. Henson , 2013 COA 36, ¶ 9, 307 P.3d 1135. To the extent this appeal requires us to consider the trial court's interpretation of the restitution statutes, we review such legal issues de novo. People v. Ortiz , 2016 COA 58, ¶ 15, 381 P.3d 410.

B. Good Cause and Extenuating Circumstances

¶ 11 Perez first argues that the trial court erred by ordering restitution more than ninety-one days after sentencing absent a showing of good cause. Perez also argues that the trial court failed to find extenuating circumstances for granting the prosecution additional time to provide the information necessary to determine restitution. We disagree with Perez's first contention but agree with the second.

1. Waiver and Preservation

¶ 12 The People assert that Perez waived any challenge to the timeliness of either the People's request for restitution or the trial court's order granting that request. Before the trial court, Perez raised two challenges regarding restitution. First, he argued there was insufficient evidence that he, as opposed to the other assailants, caused the damages. He also objected to not having been provided access to the CVCB records. But Perez did not challenge either the People's motion requesting more time to submit restitution information or the order granting that request and never objected that there was no showing of good cause or finding of extenuating circumstances affecting the prosecution's ability to determine restitution.

¶ 13 Waiver is the "intentional relinquishment of a known right or privilege." People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). Perez did not intentionally relinquish or abandon his claim on appeal simply by failing to raise this claim while contesting other aspects of the restitution order. See id. at ¶ 40 ("The requirement of an intentional relinquishment of a known right or privilege ... distinguishes a waiver from a forfeiture, which is ‘the failure to make the timely assertion of a right.’ " (quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) )). Because Perez's claim is not waived, we address the merits.

¶ 14 We also reject the People's request that we review Perez's unpreserved claim for plain error. Perez's claim would be cognizable under Crim. P. 35(a) as a contention that the court imposed the restitution (a component of Perez's sentence) in an illegal manner. See People v. Knoeppchen , 2019 COA 34, ¶ 27, 459 P.3d 679. Our supreme court recently held that a claim that is cognizable under Crim. P. 35(a) need not be preserved. Fransua , ¶ 13 ("It makes no sense to require preservation of a claim on direct appeal when an identical claim could be raised without preservation after the conclusion of the direct appeal.").

2. Applicable Law

a. The Statutory Language

¶ 15 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), C.R.S. 2019. 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) (emphasis added).

¶ 16 The court must base its restitution order on information presented by the prosecution. § 18-1.3-603(2). The prosecution "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." Id. The court may extend this deadline "if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution." Id.

¶ 17 Notably, subsection (1)(b) does not explicitly identify who "determines" the restitution amount for purposes of that subsection. But subsection (2) clearly states that the prosecutor "determines" the amount of restitution and the identities of the victims.

b. The Historical View

¶ 18 Despite this language, our appellate courts have routinely stated, or at least assumed, that the determination of restitution 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 this provision places the onus of determining the amount of restitution within ninety-one days on the sentencing court. People v. Weeks , 2020 COA 44, ¶ 13, ––– P.3d ––––.

¶ 19 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...