23CA0251 Peo v Gonzalez 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0251 Arapahoe County District Court No. 15CR289 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marlo Gonzalez,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE LUM Pawar and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 24, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Marlo Gonzalez, appeals the district court’s order
denying his motion to waive a $3,000 statutory drug offender
surcharge. We affirm.
I. Background
¶2 In 2017, Gonzalez pleaded guilty to possession of a controlled
substance with intent to distribute, a level 2 drug felony. See § 18-
18-405(1), (2)(b)(I)(B), C.R.S. 2024. The court sentenced him to
seven years in the custody of the Department of Corrections. At
sentencing, the court ordered Gonzalez to pay a statutory drug
offender surcharge of $3,000.
¶3 Gonzalez moved to waive the surcharge, and the court held a
hearing regarding his ability to pay.
¶4 At the hearing, Gonzalez testified that he was not able to pay
the surcharge and testified as follows regarding his income and
expenses:
• Gonzalez’s bank account showed a balance of $50 at the time
of the hearing. He had no savings account, property, or
vehicles.
• Gonzalez earned up to $13 per month through his job in
prison.
1 • Other than the $100 they deposited into his account
approximately twice a year, Gonzalez’s family members weren’t
able to assist him financially.
• Gonzalez owed about $15,000 in vehicle loan payments and
an additional $15,000 in child support.
¶5 On cross-examination, the People elicited the following
information from Gonzalez about his income, education level, and
expectations for work after his release:
• Gonzalez had a GED and had taken various skills and college-
level academic courses in prison.
• Before his incarceration, Gonzalez earned $5,200 per month
(or $62,400 annually) working in construction. At the time of
the hearing, Gonzalez had been out of the construction
industry for seven years.
• Upon his release, Gonzalez expected he would earn $15 per
hour (or $31,200 annually) “to start” working in carpentry.
¶6 The court denied Gonzalez’s motion to waive the surcharge
because it could not find, based on the evidence, that Gonzalez was
unable to pay. In determining that Gonzalez had a future ability to
pay the surcharge, the court considered Gonzalez’s “employability
2 and potential prospects,” along with the “expenses of children, car
payments, rent and board, and other general expenses.”
¶7 Gonzalez appeals.
II. Drug Offender Surcharge
¶8 Gonzalez contends that the district court reversibly erred
when it imposed the drug offender surcharge because clear and
convincing evidence established that he was unable to pay. We
disagree.
A. Standard of Review and Applicable Law
¶9 Section 18-19-103(1)(b), C.R.S. 2024, requires a defendant
convicted of a level 2 drug felony to pay a $3,000 surcharge. § 18-
18-405(1), (2)(b)(I)(B); see Yeadon v. People, 2020 CO 38, ¶ 1 (drug
offender surcharge is statutorily mandated when the court
sentences the offender).
¶ 10 “Although the surcharge is mandatory, the court may ‘waive
any portion of the surcharge’ if ‘the court first finds that the drug
offender is financially unable to pay any portion of said surcharge.’”
People v. DeBorde, 2016 COA 185, ¶ 22 (quoting § 18-19-103(6)(a)).
Courts consider the offender’s present and future ability to pay in
determining whether a drug offender can pay the surcharge. Id. at
3 ¶ 28. Indigency is not dispositive of a defendant’s financial ability
to pay. People v. Griffiths, 251 P.3d 462, 468 (Colo. App. 2010).
¶ 11 The defendant challenging the surcharge has the burden of
proving by clear and convincing evidence that they are unable to
pay any portion of it. Id. at 467. “Whether a defendant has the
financial ability to pay a statutorily mandated surcharge is a factual
question reviewed for clear error.” Id. If the trial court’s findings
are supported by the record, we will not disturb them on appeal.
Id.
B. Analysis
¶ 12 Gonzalez argues that the district court erred by finding that he
had the ability to pay the surcharge because he demonstrated
otherwise by clear and convincing evidence. He argues that he
showed enough evidence of his future inability to pay through his
testimony that he (1) lacked savings; (2) wouldn’t be able to return
to his former construction work after his release and would instead
have to work a lower paying carpentry job; (3) didn’t have a job
lined up for after his release; (4) no longer had his truck; and (5)
had substantial debts.
4 ¶ 13 We perceive no clear error because the district court’s findings
regarding Gonzalez’s future financial capacity are supported by the
record. See id. Gonzalez’s testimony supports the court’s findings
that he had a GED, prior experience in construction work earning
about $62,500 annually, prospects in the carpentry field (albeit at
an initially lower pay than what he previously earned in
construction), and an intent to find employment after completion of
his sentence. See People v. Archuleta-Ferales, 2014 COA 178, ¶ 14
(stating that the trial court may consider a defendant’s historical
income and future employment prospects in determining their
financial capacity to pay the surcharge); People v. McIntier, 134 P.3d
467, 471 (Colo. App. 2005) (noting that the trial court, in its role as
fact finder, has the “function in a criminal case to consider and
determine what weight should be given to all parts of the evidence
and to resolve conflicts”). Based on these findings, the court
reasoned that Gonzalez could potentially earn around $62,500 per
year. And even if Gonzalez couldn’t earn that much immediately
upon his release from prison, the $3,000 surcharge represented
only about 10% of the annual salary Gonzalez expected to earn in a
lower paying carpentry position.
5 ¶ 14 We reject Gonzalez’s argument that the court improperly
speculated about his earning ability following his release from
custody. The court’s consideration of Gonzalez’s former salary and
determination that he had the potential to earn the same amount of
money in the future wasn’t improper “speculat[ion] on future
increases or decreases in income.” Archuleta-Ferales, ¶ 14. To the
contrary, the court was permitted to “consider [Gonzalez’s]
historical . . . income, as well as [his] reasonable prospects for
future employment . .
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23CA0251 Peo v Gonzalez 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0251 Arapahoe County District Court No. 15CR289 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marlo Gonzalez,
Defendant-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE LUM Pawar and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 24, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Marlo Gonzalez, appeals the district court’s order
denying his motion to waive a $3,000 statutory drug offender
surcharge. We affirm.
I. Background
¶2 In 2017, Gonzalez pleaded guilty to possession of a controlled
substance with intent to distribute, a level 2 drug felony. See § 18-
18-405(1), (2)(b)(I)(B), C.R.S. 2024. The court sentenced him to
seven years in the custody of the Department of Corrections. At
sentencing, the court ordered Gonzalez to pay a statutory drug
offender surcharge of $3,000.
¶3 Gonzalez moved to waive the surcharge, and the court held a
hearing regarding his ability to pay.
¶4 At the hearing, Gonzalez testified that he was not able to pay
the surcharge and testified as follows regarding his income and
expenses:
• Gonzalez’s bank account showed a balance of $50 at the time
of the hearing. He had no savings account, property, or
vehicles.
• Gonzalez earned up to $13 per month through his job in
prison.
1 • Other than the $100 they deposited into his account
approximately twice a year, Gonzalez’s family members weren’t
able to assist him financially.
• Gonzalez owed about $15,000 in vehicle loan payments and
an additional $15,000 in child support.
¶5 On cross-examination, the People elicited the following
information from Gonzalez about his income, education level, and
expectations for work after his release:
• Gonzalez had a GED and had taken various skills and college-
level academic courses in prison.
• Before his incarceration, Gonzalez earned $5,200 per month
(or $62,400 annually) working in construction. At the time of
the hearing, Gonzalez had been out of the construction
industry for seven years.
• Upon his release, Gonzalez expected he would earn $15 per
hour (or $31,200 annually) “to start” working in carpentry.
¶6 The court denied Gonzalez’s motion to waive the surcharge
because it could not find, based on the evidence, that Gonzalez was
unable to pay. In determining that Gonzalez had a future ability to
pay the surcharge, the court considered Gonzalez’s “employability
2 and potential prospects,” along with the “expenses of children, car
payments, rent and board, and other general expenses.”
¶7 Gonzalez appeals.
II. Drug Offender Surcharge
¶8 Gonzalez contends that the district court reversibly erred
when it imposed the drug offender surcharge because clear and
convincing evidence established that he was unable to pay. We
disagree.
A. Standard of Review and Applicable Law
¶9 Section 18-19-103(1)(b), C.R.S. 2024, requires a defendant
convicted of a level 2 drug felony to pay a $3,000 surcharge. § 18-
18-405(1), (2)(b)(I)(B); see Yeadon v. People, 2020 CO 38, ¶ 1 (drug
offender surcharge is statutorily mandated when the court
sentences the offender).
¶ 10 “Although the surcharge is mandatory, the court may ‘waive
any portion of the surcharge’ if ‘the court first finds that the drug
offender is financially unable to pay any portion of said surcharge.’”
People v. DeBorde, 2016 COA 185, ¶ 22 (quoting § 18-19-103(6)(a)).
Courts consider the offender’s present and future ability to pay in
determining whether a drug offender can pay the surcharge. Id. at
3 ¶ 28. Indigency is not dispositive of a defendant’s financial ability
to pay. People v. Griffiths, 251 P.3d 462, 468 (Colo. App. 2010).
¶ 11 The defendant challenging the surcharge has the burden of
proving by clear and convincing evidence that they are unable to
pay any portion of it. Id. at 467. “Whether a defendant has the
financial ability to pay a statutorily mandated surcharge is a factual
question reviewed for clear error.” Id. If the trial court’s findings
are supported by the record, we will not disturb them on appeal.
Id.
B. Analysis
¶ 12 Gonzalez argues that the district court erred by finding that he
had the ability to pay the surcharge because he demonstrated
otherwise by clear and convincing evidence. He argues that he
showed enough evidence of his future inability to pay through his
testimony that he (1) lacked savings; (2) wouldn’t be able to return
to his former construction work after his release and would instead
have to work a lower paying carpentry job; (3) didn’t have a job
lined up for after his release; (4) no longer had his truck; and (5)
had substantial debts.
4 ¶ 13 We perceive no clear error because the district court’s findings
regarding Gonzalez’s future financial capacity are supported by the
record. See id. Gonzalez’s testimony supports the court’s findings
that he had a GED, prior experience in construction work earning
about $62,500 annually, prospects in the carpentry field (albeit at
an initially lower pay than what he previously earned in
construction), and an intent to find employment after completion of
his sentence. See People v. Archuleta-Ferales, 2014 COA 178, ¶ 14
(stating that the trial court may consider a defendant’s historical
income and future employment prospects in determining their
financial capacity to pay the surcharge); People v. McIntier, 134 P.3d
467, 471 (Colo. App. 2005) (noting that the trial court, in its role as
fact finder, has the “function in a criminal case to consider and
determine what weight should be given to all parts of the evidence
and to resolve conflicts”). Based on these findings, the court
reasoned that Gonzalez could potentially earn around $62,500 per
year. And even if Gonzalez couldn’t earn that much immediately
upon his release from prison, the $3,000 surcharge represented
only about 10% of the annual salary Gonzalez expected to earn in a
lower paying carpentry position.
5 ¶ 14 We reject Gonzalez’s argument that the court improperly
speculated about his earning ability following his release from
custody. The court’s consideration of Gonzalez’s former salary and
determination that he had the potential to earn the same amount of
money in the future wasn’t improper “speculat[ion] on future
increases or decreases in income.” Archuleta-Ferales, ¶ 14. To the
contrary, the court was permitted to “consider [Gonzalez’s]
historical . . . income, as well as [his] reasonable prospects for
future employment . . . in determining [his] ability to pay the
surcharge.” Id. Moreover, Gonzalez testified that he expected he
would “eventually” be able earn as much as he had previously.
¶ 15 We aren’t persuaded otherwise by Gonzalez’s argument that
the court erred by (1) finding that he had “six to seven years” of
work experience in construction and (2) speculating about the
strong state of Colorado’s construction market. Even if these
findings lack record support, any error is harmless because other
evidence in the record supports the court’s conclusion about
Gonzalez’s future earning capacity and ability to pay the surcharge.
¶ 16 Finally, Gonzalez contends that reversal is warranted because
the court didn’t consider evidence of his $30,000 debt stemming
6 from child support arrears and car payments. We again perceive no
error. The district court stated that it “considered [Gonzalez’s]
employability and potential prospects and weigh[ed] this against his
anticipated expenses of children, car payments, rent and board,
and other general expenses.” And we may presume that the court
considered all the evidence presented in this case. In re Marriage of
Hatton, 160 P.3d 326, 329-30 (Colo. App. 2007). Moreover, the
district court stated that Gonzalez could “make payments” on the
surcharge and imposed no deadline for him pay the surcharge in
full. Griffiths, 251 P.3d at 468 (affirming a trial court’s imposition
of a statutory surcharge where defendant was indigent and there
was no “due date” for payment).
¶ 17 In sum, because the record supports the district court’s
determination that Gonzalez had not met his burden of proving his
inability to pay the surcharge by clear and convincing evidence, we
won’t disturb it. Id. at 467.
III. Disposition
¶ 18 The order is affirmed.
JUDGE PAWAR and JUSTICE MARTINEZ concur.