Peo v. Lowe

• Court: Colorado Court of Appeals
• Decided: March 27, 2025
• Docket: 23CA1182
• Status: Unpublished

Opinion

23CA1182 Peo v Lowe 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1182 Douglas County District Court No. 22CR808 Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cory Jon Lowe,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

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

Cynthia A. Harvey, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Cory Jon Lowe, appeals the restitution order

entered following his guilty plea and convictions for second degree

aggravated motor vehicle theft and possession of a schedule III, IV,

or V controlled substance. We affirm.

I. Background

¶2 The police arrested Lowe after finding him in possession of a

stolen car. During a search of the car and Lowe’s person, the police

found methamphetamine and a pipe in the car’s center console and

a prescription bottle with pills thought to be fentanyl in Lowe’s coat

pocket. The prosecution charged Lowe with one count each of

second degree aggravated motor vehicle theft, a class 6 felony, and

possession of fentanyl in violation of section 18-18-403.5(2.5)(a)(I),

C.R.S. 2024, a class 4 drug felony.

¶3 Lowe ultimately pleaded guilty to the aggravated motor vehicle

theft count and an added count of possession of a schedule III, IV,

or V controlled substance (a class 1 drug misdemeanor), and

stipulated to concurrent Department of Corrections sentences of

thirty and eighteen months. In exchange, the prosecution

dismissed the possession of fentanyl charge, at least in part

1 because the pills found in Lowe’s pocket turned out not to be

fentanyl.

¶4 As relevant here, the plea agreement also included the

following language: “The defendant admits to liability, stipulates to

causation, and agrees to pay restitution for all pecuniary losses

suffered by all victims for all charged counts, even those dismissed

as part of this plea agreement,” and “restitution is ordered in the

amount of $18,099.39.”

¶5 At the providency hearing, despite the plea agreement

including a specific amount for restitution, defense counsel told the

court that Lowe was contesting the amount and asked for a hearing

on that issue. The court accepted Lowe’s guilty plea and imposed

the stipulated sentences. The court reiterated that, as part of the

plea, Lowe was “stipulating to pay restitution for all pecuniary

losses suffered by all of the victims in all of the counts even if

they’ve been dismissed as part of the plea agreement.” The court

then noted that the prosecution was requesting the restitution

amount listed in the paperwork and, because Lowe was disputing

the amount, the court ordered a hearing to determine the amount.

2 ¶6 At the restitution hearing, the owner of the car (victim) and a

claims specialist for the victim’s insurance company testified. The

claims specialist testified that drug testing of the recovered car

indicated the presence of fentanyl and methamphetamine. Based

on that testing, the insurance company determined that the car was

unsafe and therefore a total loss; the insurance company paid the

victim $15,909.39, the full value of the car as determined by a

vehicle evaluation report, less the victim’s $500 deductible. The

victim testified that fentanyl and methamphetamine were not

present in the car when it was stolen.

¶7 Based on this testimony, the court found that the car had to

be destroyed because of the presence of fentanyl and/or

methamphetamine and that the insurance company suffered

$17,599.39 in damages (the amount paid to the victim, plus the

costs for testing the car). The court noted that Lowe’s guilty plea to

a class 1 drug misdemeanor would account for some of the

damages. It further found that the “record is clear about what Mr.

Lowe pled guilty to and about why the car had to be destroyed” and

that “the car was recovered from Mr. Lowe, and the damages that

were present were present when it was recovered.” Based on those

3 findings the court ordered Lowe to pay $18,099.39 in restitution,

which included the insurance company’s out-of-pocket losses and

the victim’s deductible.

II. Discussion

¶8 Lowe contends that the district court erred by imposing

restitution for the full value of the car because the prosecution did

not present any evidence that he introduced the fentanyl or

methamphetamine into the car, and, therefore, it failed to prove

that he proximately caused the damages. We disagree.

A. Standard of Review and Applicable Law

¶9 Restitution is “any pecuniary loss suffered by a victim . . .

proximately caused by an offender’s conduct.” § 18-1.3-602(3)(a),

C.R.S. 2024. In the context of restitution, proximate cause is a

cause which in natural and probable sequence produced the

claimed loss and without which the claimed loss would not have

been sustained. People v. Dyson, 2021 COA 57, ¶ 13. A court

generally may not order restitution for “losses proximately caused

by conduct that forms the basis of only [a] dismissed charge.”

People v. Roddy, 2021 CO 74, ¶ 28. However, the prosecution and

defendant my enter into an agreement that “extends the scope of

4 the restitution order” obligating a defendant to pay for restitution

based on conduct related to dismissed charges. Id.

¶ 10 We review the scope of the parties’ obligations under a plea

agreement de novo, applying an objective standard of

reasonableness to the agreement’s plain language. Roddy, ¶ 24.

¶ 11 When a defendant challenges a restitution order, we review the

district court’s proximate cause determination for clear error, but

review de novo whether the evidence was sufficient to support the

restitution amount. See Martinez v. People, 2024 CO 6M, ¶¶ 3, 19,

32. Evidence is sufficient when the evidence, both direct and

circumstantial, “viewed as a whole and in the light most favorable

to the prosecution, establishes by a preponderance of the evidence

that the defendant caused that amount of loss.” People v. Barbre,

2018 COA 123, ¶ 25.

B. Proximate Cause

¶ 12 As noted above, Lowe’s original charges included aggravated

motor vehicle theft and possession of fentanyl. As a part of the plea

agreement, he admitted to stealing the victim’s car and to

possessing Alprazolam, a schedule III, IV, or V controlled

substance. He also stipulated to causation and agreed to pay

5 restitution for “all pecuniary losses suffered by all victims for all

charged counts, even those dismissed” under the plea agreement.

¶ 13 On appeal, Lowe acknowledges that the plea agreement

included a stipulation to pay for all pecuniary losses, even those

related to dismissed counts. Nevertheless, he argues that the

stipulation is merely boilerplate language and, therefore, should not

be enforced. We disagree.

¶ 14 While the request to plead guilty included boilerplate language

indicating that the prosecution had ninety-one days to submit a

restitution request and advising Lowe that the court would set a

hearing if he objected to the prosecution’s restitution request, the

written plea agreement included terms specific to the parties’ plea

agreement. These details included Lowe’s obligation to pay

restitution, his stipulation to causation, his agreement to pay for all

losses for all charges, even the dismissed charges, and a specific

amount of restitution. Thus, we are not persuaded that the written

plea agreement included boilerplate language regarding Lowe’s

obligation to pay for restitution related to the dismissed counts.

¶ 15 Indeed, at the providency hearing, Lowe’s counsel told the

court that the plea agreement “reads a little bit like this is a

6 stipulated agreement for restitution” and that he had

unsuccessfully tried to have the prosecution change that language.

Nevertheless, he told the court that the parties agreed that the

restitution amount was contested and would need to be resolved at

a hearing. However, counsel did not similarly dispute Lowe’s

liability for restitution based on the dismissed charges.

¶ 16 Further, after the court acknowledged the dispute about the

restitution amount and agreed to set a hearing to address that

issue, as noted above, the court reiterated that Lowe had agreed to

pay restitution for losses attributable to all counts “even if they’ve

been dismissed as part of the plea agreement,” so that wasn’t an

issue to be resolved at the hearing. And Lowe’s counsel did not

dispute the court’s advisement on that issue.

¶ 17 Consequently, we conclude that the plain language of the

agreement obligates Lowe to pay for the damages related to his theft

of and the presence of fentanyl in the victim’s car. And, by signing

the plea agreement, Lowe waived any claim that he did not

proximately cause the insurance company’s and the victim’s

damages as a result of his conduct that formed the bases of those

charges.

7 ¶ 18 The evidence at the restitution hearing established that

fentanyl and methamphetamine were present in the victim’s car

when it was recovered; those drugs were not in the car when Lowe

stole it; and the insurance company determined that the car was

unsalvageable because of the presence of those drugs. We conclude

that the record supports the district court’s determination that the

requested restitution amount was for damages caused by Lowe’s

conduct related to either the charge to which he pleaded guilty, the

dismissed charge, or both. See People v. Aarness, 150 P.3d 1271,

1277 (Colo. 2006) (an appellate court may affirm on any ground

supported by the record).

C. Sufficient Evidence to Support Restitution Amount

¶ 19 To the extent Lowe also contends that the evidence presented

at the restitution hearing was insufficient to support the amount of

restitution ordered, we disagree.

¶ 20 At the restitution hearing, in addition to testifying that the

victim’s car needed to be destroyed because methamphetamine and

fentanyl were found in it, the insurance company’s representative

testified about the valuation report the insurance company used to

establish the value of the victim’s car. Specifically, she testified

8 that the company used a third-party vendor who valued the vehicle

based on the vehicle’s mileage, options, and condition, and the

market conditions at the time when the vehicle was stolen.

Because the valuation was prepared when used cars were in short

supply, she testified that, although the valuation was more than the

J.D. Powers and Kelly Blue Book reports submitted by Lowe, it was

more accurate than those reports because it incorporated specifics

about the vehicle and the market conditions. It also utilized

comparable sales.

¶ 21 Viewing this evidence in the light most favorable to the

prosecution, we conclude that it is substantial and sufficient to

establish that the insurance company’s payout represented the

reasonable value for the victim’s car.

III. Disposition

¶ 22 The restitution order is affirmed.

JUDGE HARRIS and JUDGE GROVE concur.