23CA1502 Peo v Frasier 05-21-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1502 El Paso County District Court No. 17CR6128 Honorable Laura N. Findorff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Corey Jammie Frasier a/k/a Corey Jammie Frazier,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE FOX J. Jones and Dunn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emma Berry, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Corey Jammie Frasier a/k/a Frazier,1 appeals the
district court’s order revoking his deferred judgment and sentence
(DJS) based on his failure to pay restitution. We reverse the court’s
order and remand to the district court to reinstate the DJS.
I. Background
A. The DJS
¶2 In August 2017, Frazier was allegedly involved in the theft of
marijuana products from a Colorado Springs marijuana dispensary
at which he was a former employee. The prosecution charged
Frazier with two counts each of second degree burglary and
conspiracy to commit second degree burglary and one count of
theft. On October 31, 2018, in a stipulated DJS, Frazier pleaded
guilty to one count of conspiracy to commit second degree burglary
and agreed to complete two years of probation and to comply with
the terms of the DJS. If Frazier successfully completed the DJS, his
guilty plea would be withdrawn and the case dismissed. Failure to
comply with any of the DJS conditions would result in a judgment
1 Frazier’s name was incorrectly spelled with an s in the district
court proceedings.
1 of conviction and sentence for the count to which Frazier pleaded
guilty.
B. The Restitution Order
¶3 The DJS also stated that Frazier would pay “[r]estitution in an
amount to be determined within 91 days.” After accepting Frazier’s
guilty plea, the district court set a sentencing hearing for November
14, 2018. At that hearing, defense counsel asked the court to
impose the stipulated DJS “with the additional conditions that
[Frazier] pay restitution, which I understand the District Attorney
will submit in 91 days.” Later, Frazier said he had questions about
restitution, and his attorney responded, “The court doesn’t have it.
They’re . . . going to submit it in 91 days . . . and then you can have
a hearing about it.” The district court confirmed that Frazier would
have a chance to object and request a hearing. On November 30,
2018, the prosecution requested $54,825.75 in restitution. On
December 11, Frazier’s counsel objected to the proposed amount
based on lack of documentation and requested a hearing.
Apparently at Frazier’s counsel’s request, a hearing was set for
February 6, 2019.
2 ¶4 On February 1, 2019, Frazier’s counsel moved to continue the
restitution hearing. On February 25, defense counsel withdrew,
and substitute counsel entered an appearance. In April and June,
defense counsel requested additional continuances. The
prosecution also requested continuances in July and September
2019, and Frazier’s counsel did not object to either. The court held
a restitution hearing in October 2019, but it set a second hearing in
November 2019 to allow the victim to gather additional
documentation.
¶5 After multiple uncontested continuances, the second hearing
was eventually set for August 26, 2020. At the hearing, the parties
told the court that they had stipulated to $45,052.59 in restitution
and would provide a final amount with interest calculations. The
prosecution ultimately requested $48,656.79, Frazier’s counsel did
not object, and the district court ordered that amount on
September 18, 2020.
C. The DJS Revocation Proceedings
¶6 In October 2020, just under a month after the court ordered
restitution, the prosecution moved to revoke Frazier’s DJS, alleging
that he had failed to pay restitution. At a March 2021 hearing, the
3 parties informed the court that they had agreed to extend Frazier’s
DJS by eighteen months “with the same terms and conditions as
before.” The district court agreed to extend the DJS and ordered
Frazier to “make contact with the Finance Department [and] set up
a payment plan” by April 2, 2021. In September 2022, the
prosecution again moved to revoke the DJS, asserting that Frazier
still owed $55,564.45 in restitution and court costs.
¶7 Frazier requested a hearing for the court to determine his
ability to pay the outstanding restitution balance. At the hearing in
July 2023, the district court revoked Frazier’s DJS, entered a
judgment of conviction for one count of conspiracy to commit
second degree burglary, sentenced Frazier to one day of probation,
and converted the restitution order to a civil judgment.
¶8 Frazier now appeals the order revoking his DJS. He first
contends that the court could not revoke his DJS based on failure
to pay restitution because the underlying restitution order was
improper. Frazier also argues that the court erred by revoking his
DJS because (1) the prosecution failed to meet its burden to show
that Frazier was able to pay restitution and (2) the court misapplied
the law by failing to consider whether Frazier could pay restitution
4 without undue hardship to himself or his dependents. Finally,
Frazier argues that the district court improperly revoked his DJS
based on an uncharged violation related to his failure to set up a
payment plan.
¶9 We first conclude that Frazier waived his challenges to the
restitution order. We next conclude that the evidence was
insufficient to establish that Frazier was able to pay restitution.
Therefore, we do not reach his other arguments and reverse the
court’s order revoking his DJS.
II. Frazier Waived His Challenges to the Restitution Order
¶ 10 Frazier first argues that the district court could not revoke the
DJS based on his failure to pay restitution because the underlying
restitution order was improper. Specifically, he contends that the
prosecution failed to use reasonable diligence to present restitution
information before the court entered the DJS. He also argues that
the court lacked authority to impose restitution because it issued
the order well after the statutory deadline. The People contend that
Frazier waived these challenges, and we agree.
5 A. Standard of Review and Applicable Law
¶ 11 We review de novo whether a claim is waived. Babcock v.
People, 2025 CO 26, ¶ 28.
¶ 12 Nearly every order of conviction must include one of four types
of restitution orders. See § 18-1.3-603(1)(a)-(d), C.R.S. 2020.2 One
such order includes “[a]n 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
deadline. § 18-1.3-603(1)(b). Additionally, the prosecution must
present information on the requested amount of restitution “prior to
the order of conviction or within ninety-one days, if it is not
available prior to the order of conviction.” § 18-1.3-603(2). Like the
court’s deadline, the prosecution’s deadline may be extended if
2 When the order here was issued in 2020, district courts could
defer imposing a specific amount of restitution for ninety-one days after an order of conviction, and the prosecution had ninety-one days to submit restitution information if it was not available before an order of conviction was entered. § 18-1.3-603(1)(b), (2), C.R.S. 2020. In 2025, the legislature amended both deadlines. Ch. 307, sec. 1, § 18-1.3-603(1)(b), (2)(a), 2025 Colo. Sess. Laws 1606-07. All citations to section 18-1.3-603 in this opinion are to the 2020 version.
6 “extenuating circumstances affect[] the prosecuting attorney’s
ability to determine restitution.” Id.
¶ 13 The Colorado Supreme Court recently determined that both
deadlines can be waived. E.g., Johnson v. People, 2025 CO 29,
¶ 19. In Johnson, the court held that Johnson waived his right to
have the prosecution present restitution information at or before
sentencing because (1) the plea agreement stated that the
prosecution would “act in good faith to provide correct information
establishing the amount of restitution within [ninety-one] days of
sentencing,” and (2) the stipulated DJS provided that Johnson
would pay “[r]estitution in an amount to be determined within
[ninety-one] days.” Id. at ¶¶ 27-30 (second alteration in original).
¶ 14 The court also held that “Johnson waived his claim that the
court lost authority to impose restitution because it did not make a
final determination of the amount of restitution within ninety-one
days or make an express finding of good cause to extend that time.”
Id. at ¶ 31. The court explained that Johnson’s attorney did not
object when the court set deadlines beyond ninety-one days and
requested a hearing after the deadline. Id.; see also Babcock, ¶¶ 10,
30 (holding that Babcock waived the right to have restitution
7 determined within ninety-one days by requesting a hearing after the
deadline); People v. Roberson, 2025 CO 30, ¶ 17 (holding that
Roberson waived the statutory deadline by “fail[ing] to object to a
hearing outside the statutory deadline and subsequent repeated
requests for continuances — all without any mention of the ninety-
one-day deadline”).
B. Application
¶ 15 Here, the language in the plea agreement and DJS mirrored
the language in Johnson. See Johnson, ¶ 28. At the sentencing
hearing, Frazier’s attorney also explicitly agreed to the prosecution
submitting restitution information within ninety-one days of that
hearing and later reiterated this to Frazier, adding that the
prosecution did not yet have the information. Therefore, regardless
of whether the ninety-one days started on October 31, 2018 (as
Frazier argues), or at the November 14, 2018, sentencing hearing,
Frazier waived his right to have the prosecution submit restitution
information at or before either date. See id. at ¶ 30; see also
McCulley v. People, 2020 CO 40, ¶ 13 (explaining that — for
purposes of a deferred judgment — acceptance of the guilty plea
constitutes a conviction).
8 ¶ 16 To the extent that Frazier also contends that the court lost
authority to impose restitution after section 18-1.3-603(1)(b)’s
ninety-one-day deadline, we similarly conclude that he waived this
claim. Frazier argues that the timeline began to run on October 31,
2018, when the court initially granted the DJS, so he contends that
the statutory deadline was January 30, 2019. However, Frazier’s
counsel first asked to set a hearing for February 6, 2019, and then
requested a continuance on February 1, 2019, with no mention of
the deadline. See Roberson, ¶ 17. And even if the timeline began at
the November 14, 2018, sentencing hearing with a deadline of
February 13, 2019, Frazier requested and accepted multiple
continuances well after that date.
¶ 17 Although Frazier argues that the delays were attributable to
the prosecution’s failure to provide supporting information, defense
counsel requested the first continuance because counsel needed
more time to “evaluate the prosecution’s submitted restitution
[o]rder.” The motion did not raise a lack of supporting information.
Similarly, in April 2019, substitute counsel asked for a continuance
to review discovery but did not assert that the prosecution failed to
exercise reasonable diligence to provide restitution information.
9 And defense counsel repeatedly requested and accepted hearings
beyond the statutory deadline without ever invoking the
prosecution’s or the court’s deadlines. See Roberson, ¶ 17;
Babcock, ¶ 30; Johnson, ¶ 31.
¶ 18 Finally, although Frazier frames his argument about the
restitution order as a basis for invalidating the district court’s order
revoking the DJS, he is effectively challenging the propriety of the
restitution order itself. A defendant must file a notice of appeal
within forty-nine days of the “entry of the judgment or order
appealed from.” C.A.R. 4(b)(1). Although this deadline can be
extended for excusable neglect, C.A.R. 4(b)(3), or good cause, C.A.R.
26(c), Frazier did not request an extension. And the deadline to
appeal the September 2020 restitution order had long passed by the
time Frazier filed his August 2023 notice of appeal. Accordingly, to
the extent that Frazier separately appeals the restitution order, that
appeal is untimely. But even if we construe Frazier’s challenge to
the restitution order as timely, we conclude that he waived the
deadlines in subsections (1)(b) and (2) of section 18-1.3-603.
Therefore, we reject Frazier’s argument that the court’s order
revoking the DJS was based on an invalid restitution order.
10 III. The District Court Improperly Revoked Frazier’s DJS
A. Standard of Review and Applicable Law
¶ 19 A defendant’s ability to pay restitution is a question of fact.
People v. Roletto, 2015 COA 41, ¶ 20. We defer to the district
court’s factual findings unless they lack record support. Brooks v.
People, 2019 CO 75M, ¶ 6. Similarly, we defer to the court’s
credibility findings that enjoy record support. People v. Davis, 2019
CO 84, ¶ 18. However, we review de novo whether the court applied
the correct legal standard. Roletto, ¶ 10. When addressing a
sufficiency challenge, we also review de novo whether the
prosecution met its burden of proof. Martinez v. People, 2015 CO
16, ¶ 22. We consider “whether the relevant evidence, both direct
and circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to
support” the court’s conclusion. Id. (citation omitted).
¶ 20 The same procedural protections that apply in probation
revocation proceedings also generally apply to DJS revocation
proceedings. Williams v. People, 2019 CO 101, ¶ 24; see § 18-1.3-
102(2), C.R.S. 2025. An important protection includes ensuring
that defendants receive due process and are not penalized for their
11 indigency. See Williams, ¶ 27. Thus, a court cannot revoke a
deferred judgment based on a defendant’s failure to pay restitution
without making certain findings regarding the defendant’s ability to
pay. Id. at ¶ 4.
¶ 21 First, the prosecution must show that the defendant failed to
pay court-ordered restitution. Id. at ¶ 42. But if the defendant
introduces “some evidence of [his] inability to pay restitution,” the
burden shifts to the prosecution to prove — by a preponderance of
the evidence — that the defendant (1) “has the ability to comply
with the court’s order to pay a monetary amount due without
undue hardship to the defendant or the defendant’s dependents”
and (2) “has not made a good-faith effort to comply with the order.”
Id. at ¶¶ 4, 40, 43-44 (quoting § 18-1.3-702(3)(c), C.R.S. 2025).
Before revoking a DJS, the district court must make these findings
on the record. Id. at ¶ 43. Additionally, the court must determine
that “the defendant had the ability to pay at the time the payments
12 should have been made.”3 Strickland v. People, 594 P.2d 578, 579
(Colo. 1979).
¶ 22 Although Strickland was decided before section 18-1.3-702
was enacted, we conclude that Strickland’s logic remains sound.
Requiring ability-to-pay findings is squarely rooted in ensuring due
process for indigent defendants. Williams, ¶ 27. Indeed, section
18-1.3-702 is titled, “Monetary payments — due process required.”
Courts have long expressed due process concerns about imposing
punishment on a criminal defendant “‘simply because, through no
fault of [his] own,’ [he] cannot pay restitution.” Id. (quoting Bearden
v. Georgia, 461 U.S. 660, 672-73 (1983)). These protections would
have little meaning if, for example, courts could revoke a DJS
because a defendant could pay some amount of restitution at the
3 Relying on People v. Romero, 559 P.2d 1101, 1102 (Colo. 1976), a
division of this court held that ability to pay is measured “at the time of the revocation hearing.” People v. Roletto, 2015 COA 41, ¶ 10. However, the supreme court has clarified Romero, explaining that the particular factual situation there “evoked [the] language . . . requiring a finding of ability to pay at the time of the hearing.” Strickland v. People, 594 P.2d 578, 579-80 (Colo. 1979). And the court emphasized that ability to pay must also be measured “at the time the payments should have been made.” Id. at 579; accord People v. Gore, 774 P.2d 877, 879 (Colo. 1989).
13 time of the revocation hearing but could not pay restitution that
was due from the time it was imposed until the hearing.
B. Additional Facts
¶ 23 At the July12, 2023, ability-to-pay hearing, the prosecution
established that Frazier had an outstanding restitution balance of
approximately $59,000. This was sufficient to show that he failed
to pay restitution. See Williams, ¶ 42. The burden then shifted to
Frazier to rebut that evidence by “introducing some evidence of [his]
inability to pay.” Id. at ¶ 43.
¶ 24 Defense counsel presented records showing that Frazier made
$39,951.20 from 2018 until the beginning of 2023. Regarding his
work history, Frazier testified that he worked the first half of 2018,
but he was shot in July 2018 and lost his job due to absences and
physical limitations. He worked during the last three quarters of
2019 as a driver delivering oxygen tanks but left because he could
not meet the job’s physical demands. During the first half of 2020,
he worked as a driver for a construction company.
¶ 25 It is unclear why he left that job, but he was unemployed for
the rest of 2020, all of 2021, and the first three quarters of 2022.
Frazier also testified that he was shot in the head in April 2021, and
14 his biological mother died in June 2021. However, Frazier testified
that he was continuously seeking employment when he was
unemployed. After moving to Texas in October 2022, Frazier was
employed from the end of 2022 until the revocation hearing in July
2023. At the time of the July 2023 hearing, he had been working
as a driver for AAA since March 28, 2023. Frazier testified that he
did not graduate from high school, obtain a GED, attend any
college, or have any specialized training.
¶ 26 Defense counsel then elicited that Frazier lived with his
adoptive mother from 2018 until 2022, but he sometimes stayed on
people’s couches or with his biological mother. Frazier also testified
that he gave his adoptive mother approximately $500 to $600 per
week to cover her expenses and gave approximately $200 to $300
per month to support a child believed to be his (although Frazier
was not on the child’s birth certificate). At the time of the hearing,
Frazier testified that he lived with his girlfriend and the couple’s
unborn child and that he was paying for half of their expenses,
including around $2,000 per month for rent. He also paid $100 per
month for his cell phone bill. Finally, Frazier testified that he did
not have any significant assets or a personal vehicle.
15 ¶ 27 On cross-examination, the prosecutor questioned Frazier at
length about whether he was aware of his restitution obligation and
intended to pay it. Frazier testified that his attorneys instructed
him not to pay restitution because they intended to appeal. Frazier
admitted he paid $443 in restitution in June 2021 but testified that
he believed he was paying court costs.
¶ 28 The prosecution then elicited that Frazier knew of the first
COVID-19 stimulus payment that the federal government issued
but did not apply for the payment because he thought he was
ineligible. He testified that he was unaware of the second and third
stimulus payments. Frazier also testified that he did not apply for
unemployment benefits when he was unemployed from 2020 to
2022, but the prosecutor did not ask why he left his job. See
Debalco Enters., Inc. v. Indus. Claim Appeals Off., 32 P.3d 621, 623
(Colo. App. 2001) (entitlement to unemployment benefits “depends
upon the reason for the separation from that employment”). Next,
the prosecutor elicited that Frazier applied for food stamps, but it is
unclear if he ever received them.
¶ 29 Shifting to Frazier’s living situation, the prosecution elicited
that Frazier did not live in public housing in 2020 or 2021, but
16 Frazier testified that he was periodically homeless during that time.
Frazier also clarified that he did not have a permanent home with
his adoptive mother. He explained, “When I was unemployed I
wasn’t providing, and when I wasn’t providing, . . . I didn’t have
access to my mom’s place. . . . I would have to fend for myself
. . . .” Frazier also explained that while unemployed, he had no
resources or sources of income and occasionally had to beg for
assistance.
¶ 30 Finally, the prosecutor asked about Frazier’s then-current
financial situation and elicited that Frazier did not know how much
he was making or had made at his job at AAA because his girlfriend
handled their finances.
¶ 31 After the prosecution rested, the district court said, “[T]he
issue now is to determine whether or not [Frazier] has established
an inability to pay and whether that inability to pay was the result
of undue hardship that would have affected him or his dependents
and whether or not he made a good faith effort to pay.” Both
attorneys corrected the court and explained that the burden shifted
to the prosecution if Frazier presented some evidence of his inability
to pay. The court said, “Okay,” and agreed that there was some
17 evidence of Frazier’s inability to pay, so the burden shifted to the
prosecution. However, no additional evidence was presented, and
the parties gave their closing arguments.
¶ 32 After closing arguments, the court first summarized Frazier’s
testimony about the money he paid to his adoptive mother, to the
mother of his son, and to his girlfriend. The court then said it did
not find Frazier credible when he testified that his counsel
instructed him not to make restitution payments. Emphasizing
that he continued seeking jobs involving physical labor, the court
also found Frazier not credible when he testified that he struggled
to work physical jobs. It concluded that his current job involved
“moving around, getting under cars, [and] getting them up to his
tow truck,” but Frazier never testified that he was getting under
cars or exerting physical effort. With no explanation, the court also
found Frazier’s lack of knowledge of the stimulus payments
incredible. Finally, the court said, “[S]ince approximately 2021
there has been an effective labor shortage. . . . So to suggest that
he could not find work . . . the Court also does not find credible.”
¶ 33 The court then concluded that Frazier had the ability to
comply with the restitution order and did not make a good faith
18 effort to comply because he failed to set up a payment plan, “which
would give the Court some knowledge as to the amount of money
that he could pay.”
C. Application
¶ 34 Frazier argues that the prosecution failed to meet its burden to
show that he was able to pay, and he argues that the district court
misapplied the applicable burden-shifting framework and
overlooked the undue hardship factor when it made its ability-to-
pay findings. We conclude that the prosecution did not present
sufficient evidence to establish that Frazier was able to pay.
Therefore, we need not reach Frazier’s argument that the court
overlooked the undue hardship factor. However, we conclude that
the court applied the correct burden-shifting framework.
¶ 35 First, the evidence established that Frazier had no income
from when restitution was imposed (September 2020) until the
motion to revoke was filed (September 2022). But the court’s
ability-to-pay finding was partly based on evidence of Frazier’s
income and expenses from before restitution was ordered and after
the motion to revoke was filed. Frazier testified that he was not
supporting his adoptive mother when he was unemployed (i.e., from
19 2020 to 2022), and he had few resources and no income for most of
the time when restitution payments would have been due. Thus,
the court’s reliance on Frazier’s financial situation in 2018, 2019,
and early 2020 — before restitution was ordered — cannot support
a finding that Frazier had the ability to pay once restitution was
ordered. See Brooks, ¶ 6.
¶ 36 Similarly, the court’s finding that Frazier could have found a
job because of a 2021 labor shortage lacks any record support. The
supreme court reversed a probation revocation on nearly identical
grounds in People v. Romero, 559 P.2d 1101, 1102 (Colo. 1976).
There, the district court “took judicial notice that there were jobs
available in the . . . area” and thus concluded that the “defendant
was not truthful when he testified that he had made repeated
attempts to obtain employment.” Id.; see also Strickland, 594 P.2d
at 579-80 (explaining that the Romero court reversed because “there
was nothing in the record to support the [district] court’s findings
that jobs were available”). Here, the district court did not even take
judicial notice of an alleged labor shortage, nor did the prosecution
request judicial notice or present evidence about a labor shortage.
20 ¶ 37 Next, the court concluded that Frazier had the ability to pay
restitution while simultaneously acknowledging that it did not know
how much Frazier could pay because he had not set up a payment
plan. Rather than supporting a finding that Frazier was able to
pay, the court’s acknowledgment that it could not determine what
Frazier could pay undermined its ability-to-pay finding.
¶ 38 The prosecution’s primary evidence of Frazier’s ability to pay
was its suggestion that Frazier could have found work but did not.
But the prosecutor did not ask Frazier why he left his job before his
period of unemployment, what types of and how many jobs he
applied to, or why he was not offered jobs. The prosecutor also did
not ask whether or how the 2021 shooting affected his ability to
seek work, nor did it ask if the COVID-19 pandemic affected
Frazier’s job search. See Desrosiers v. Governor, 158 N.E.3d 827,
831-32 (Mass. 2020) (explaining that the pandemic caused “high
unemployment, economic hardship, and shuttered businesses”);
K.D.H. v. Cabinet for Health & Fam. Servs., 630 S.W.3d 729, 738
(Ky. Ct. App. 2021) (“[T]he pandemic had far-reaching impacts on
the ability to obtain and/or keep employment.”). Critically, the
prosecutor did not call Frazier’s probation officer to verify or
21 discredit Frazier’s testimony. See Williams, ¶ 44 n.6 (recognizing
that the prosecution may need to investigate a defendant’s financial
situation to meet its burden of proof but explaining that the
probation officer will often be able to provide significant evidence
about a defendant’s financial situation).
¶ 39 Finally, the prosecutor did not ask Frazier if he had any
outstanding debts or present evidence of Frazier’s tax filings, bank
statements, or other evidence showing that he had savings or
resources available to him. And the prosecution presented no
evidence that Frazier would have qualified for unemployment
benefits even if he had sought them. Essentially, the prosecution’s
evidence showed that Frazier was continuously seeking
employment, did not find work, and had no income or resources for
most of the period between the entry of the restitution order and the
revocation hearing. The prosecutor also elicited that Frazier
experienced homelessness at times, sought food stamps, and
occasionally had to beg to survive.
¶ 40 We conclude that this evidence was insufficient to support a
finding that Frazier had the ability to pay restitution for at least
most of the time that it was due. See Martinez, ¶ 22. Although
22 there was evidence that Frazier was employed and able to pay at
least some amount at the time of the hearing, the same cannot be
said for Frazier’s unemployment from the end of 2020 until late
2022. While it is possible that Frazier unreasonably failed to seek
employment available to him, that determination could not be made
from an unsupported assertion about a 2021 labor shortage and a
conclusion that Frazier was able to work physically demanding jobs
despite being shot twice.4
¶ 41 Thus, the prosecution did not meet its burden to show that
Frazier could pay restitution while unemployed. It presented no
evidence that Frazier had income during those times. And it had to
show something more than that Frazier had previously been
employed to establish that he could have been employed but chose
not to be. See id. (emphasizing that the prosecution may need to
investigate a defendant’s financial situation).
4 The court’s finding that Frazier’s testimony about his physical
capabilities was not credible because he continued to seek physical jobs also has minimal record support. Frazier had mostly worked in physical roles, and the district court contradictorily faulted him for not taking work while he was unemployed and also for taking jobs available to him even if they required some physical labor.
23 ¶ 42 Because we conclude that the district court erred by finding
that Frazier had the ability to pay restitution, we need not address
Frazier’s argument that the court also erred by failing to consider
whether he could pay without undue hardship to himself or his
dependents.
¶ 43 However, to the extent that Frazier contends that the court
misapplied the burden-shifting framework, we disagree. Although
the court twice suggested that it was the defense’s burden to prove
the inability-to-pay factors, both attorneys corrected the court and
explained the correct legal standard. Therefore, we presume that
the court understood and applied the proper framework.
Nevertheless, because the evidence was insufficient — even if the
court applied the appropriate burdens — we reverse the court’s
order revoking Frazier’s DJS. See People v. Mortenson, 2023 COA
92, ¶ 32.
IV. Disposition
¶ 44 The court’s order revoking Frazier’s DJS is reversed, and we
remand for the district court to vacate its corresponding entry of
judgment of conviction and to reinstate Frazier’s DJS.
JUDGE J. JONES and JUDGE DUNN concur.