People v. Roberson

537 P.3d 825

2023 COA 70

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

v.Jessica Jo ROBERSON, Defendant-Appellant.

Court of Appeals No. 21CA1713

Colorado Court of Appeals, Division V.

Announced July 20, 2023

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BROWN

¶ 1 Defendant, Jessica Jo Roberson, appeals the district court's restitution order. She contends that the court erred by (1) entering a restitution order more than ninety-one days after sentencing, in violation of section 18-1.3-603(1)(b), C.R.S. 2022, as construed by the Colorado Supreme Court in People v. Weeks , 2021 CO 75, 498 P.3d 142 ( Weeks II ), aff'g 2020 COA 44, 490 P.3d 672 ( Weeks I ); (2) ordering a higher restitution amount than she agreed to in her plea agreement; and (3) ordering restitution for conduct related to dismissed charges.

¶ 2 In resolving Roberson's first contention, we distinguish this case from two recent decisions from other divisions of this court: People v. Johnson , 2023 COA 43M, ¶ 28, 534 P.3d 947, which held that a trial court made an express finding of good cause to extend the statutory deadline by entering orders allowing the defendant to object to restitution beyond the deadline, and People v. Babcock , 2023 COA 49, ¶¶ 13–15, 535 P.3d 981, which held that a defendant waived his right to challenge the timeliness of a restitution order by requesting that a restitution hearing be set outside the statutory deadline.

¶ 3 Because we conclude that the district court lacked authority to determine the amount of restitution to be paid by Roberson more than ninety-one days after sentencing, and that Roberson did not waive or invite the error, we vacate the restitution order and do not reach her other challenges.

I. Background

¶ 4 Roberson pleaded guilty to felony counts of forgery and theft in one case, a misdemeanor count of criminal mischief in a second case, and a probation violation in a third case. The district court sentenced Roberson on June 25, 2020. At the sentencing hearing, the court ordered restitution but reserved determination of the amount. It gave the prosecution twenty-nine days to file a request and the defense twenty-one days from the date of that filing to file an objection.

¶ 5 The prosecution filed its initial request for restitution on July 23, seeking $62,241.28. The next day, the court ordered that any objection to the restitution request was due by August 7. Because Roberson did not file an objection by that date, the court entered an order for the requested amount of restitution on August 10. On August 11, however, defense counsel filed an objection and moved the court to reconsider the restitution order because she had confused the deadlines. That same day, the court granted Roberson's motion "based on the reasons stated in the motion" and directed the parties to set the matter for a status conference.

¶ 6 On August 13, the court held a status conference at which defense counsel requested that the prosecution provide more information to substantiate the claimed amount of restitution. Reasoning that the prosecution would need some "time to get that information to Ms. Roberson" before the restitution hearing, the court set the next status conference for October 2. Defense counsel acquiesced to that date.

¶ 7 On September 16, the prosecution filed an amended request for restitution. At the status conference on October 2, defense counsel requested that the court set another status conference because she was still trying to understand how the prosecution determined the restitution amount. The court set another status conference for December 21.

¶ 8 After several more amended requests for restitution and several more continuances, the court conducted a final restitution hearing on September 14, 2021, 446 days after sentencing. At that hearing, defense counsel argued that the court was without authority to enter restitution under Weeks I because the ninety-one-day deadline had passed. The court denied this objection and stated, "[T]he [c]ourt can find, and does find, good cause to not have entered the order for restitution based upon the objection and the necessity of setting it for a hearing." The court ultimately found that the prosecution had provided sufficient evidence to establish restitution in the full amount of its last amended request, $60,633.94.

II. Authority to Order Restitution

¶ 9 Roberson contends that the district court failed to make an express good cause finding before the statutory ninety-one-day deadline passed and therefore lacked authority to order restitution. We agree.

A. Standard of Review

¶ 10 Questions of statutory interpretation are questions of law that we review de novo. See Weeks II , ¶ 24. In construing a statute, we aim to effectuate the legislature's intent by giving the language its plain and ordinary meaning; reading the words and phrases in context and in accordance with the rules of grammar and common usage; and construing the statute as a whole, giving consistent, harmonious, and sensible effect to all its parts, but avoiding constructions that render any words or phrases superfluous or lead to illogical or absurd results. Id. at ¶¶ 25–26.

B. The Restitution Statute

¶ 11 Under section 18-1.3-603(1), every judgment of conviction must include one 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.

¶ 12 After Roberson was sentenced and restitution was imposed, the Colorado Supreme Court unequivocally held that a trial court (1) must determine the amount of restitution within ninety-one days of the judgment of conviction; and (2) may extend that ninety-one-day deadline only if, before the deadline expires, it makes an express finding of good cause to do so. Weeks II , ¶¶ 4–5. Neither an implicit finding of good cause nor one made after the expiration of the ninety-one-day deadline can support an untimely restitution order. See id. Absent an express finding of good cause made before the deadline, a trial court lacks authority to enter a restitution order beyond the deadline. Id. at ¶ 45.

C. The District Court Lacked Authority to Determine Restitution

¶ 13 At sentencing, the district court ordered restitution but reserved determination of the amount. Thus, under section 18-1.3-603(1)(b), the court had until September 24, 2020, to determine restitution or make an express finding of good cause to extend the deadline. See Weeks II , ¶¶ 4–5.

¶ 14 The court initially entered a timely restitution order on August 10. But after defense counsel filed an objection the following day—still forty-four days before the ninety-one-day deadline—the court reconsidered the restitution order. At the status conference held two days later, defense counsel asked for more information from the prosecution to determine how the restitution amount was calculated. But defense counsel did not represent that she needed more than the forty-two days remaining within the statutory timeframe to review the materials, nor did she ask the court to hold the restitution hearing after September 24. Instead, the court simply set the next status conference for October 2, eight days beyond the statutory deadline.

¶ 15 Weeks II , ¶ 7, explicitly held that section 18-1.3-603(1)(b) "requires an express finding ... relating to good cause for extending the court's deadline to determine the amount of restitution the defendant must pay." Although the court explained that "substance controls over form," and "talismanic incantations" are not necessary, we see no express finding of any reason to extend the deadline in the record before us. See id. at ¶ 7 n.4.

¶ 16 Notably, at sentencing, the court acknowledged that it had ninety-one days to order restitution when it set the deadline for the defense to object to the prosecution's request. However, at the August status conference following defense counsel's objection, the court did not mention the deadline before setting the next status conference eight days beyond it. True, the court suggested that the prosecution would need "sufficient time" to provide materials to defense counsel substantiating its restitution request. But at that time, more than a month remained within the statutory ninety-one-day period. The record is devoid of any indication that the prosecution required more than the time remaining within the statutory period to provide the requested information or that the defense needed more time to review it.

¶ 17 Furthermore, after defense counsel argued at the final restitution hearing that the court lacked authority to enter the restitution order beyond the statutory deadline, the court made a belated finding that it had good cause for not entering a timely order based on defense counsel's objection to the restitution request. The court's belated good cause finding confirms that it had not made an express good cause finding before the final restitution hearing. And although a defendant's objection to restitution may constitute good cause, see id. at ¶ 44, the court's belated good cause finding could not "act as a defibrillator to resuscitate an...