Peo v. Roberson

• Court: Colorado Court of Appeals
• Decided: July 9, 2026
• Docket: 21CA1713
• Status: Unpublished

Opinion

21CA1713 Peo v Roberson 07-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1713 Weld County District Court No. 17CR1903 Honorable Julie C. Hoskins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jessica Jo Roberson,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by JUDGE BROWN Yun and Bernard*, JJ., concur

Prior Opinion Announced July 20, 2023, Reversed in 23SC622

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Jessica Jo Roberson, pleaded guilty to felony

counts of theft and forgery in one case, a misdemeanor count of

criminal mischief in a second case, and a probation violation in a

third case. Roberson appealed the district court’s order awarding

restitution, and we vacated the order. People v. Roberson, 2023

COA 70, ¶¶ 1-3 (Roberson I). The Colorado Supreme Court granted

the People’s petition for writ of certiorari, reversed this division’s

opinion, and remanded the case to this court to address Roberson’s

remaining issues on appeal. People v. Roberson, 2025 CO 30, ¶¶ 1-

2, 18 (Roberson II). We do so now and affirm.

I. Analysis

¶2 Roberson contends that the district court (1) lost authority to

order restitution because the prosecution violated the restitution

statute and (2) erred by ordering more restitution than was

contemplated by her plea agreement. We perceive no reversible

error.

1 A. The Prosecution’s Statutory Deadline

¶3 Roberson contends that the prosecution violated section 18-

1.3-603(2), C.R.S. 2019,1 because the information it needed to

support its restitution request was available before sentencing yet

was not submitted at the sentencing hearing. After considering the

parties’ supplemental briefs, we conclude that any error was

harmless.

1. Generally Applicable Law and Standard of Review

¶4 At the time of Roberson’s sentencing, the version of the

restitution statute in effect required the district court to “base its

order for restitution upon information presented to the court by the

prosecuting attorney.” § 18-1.3-603(2). “[T]he prosecuting attorney

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 supreme court clarified that,

under subsection (2), the prosecution must file “‘the amount’ of the

proposed restitution . . . before the judgment of conviction or, if that

1 The statute has since been amended. Throughout this opinion, we cite the version in effect at the time the district court addressed Roberson’s sentencing and restitution.

2 information isn’t yet available, no later than ninety-one days after

the judgment of conviction.” People v. Weeks, 2021 CO 75, ¶ 6

(quoting § 18-1.3-603(2)). The court may “extend this deadline only

if, before the deadline expires, it expressly finds that there are

extenuating circumstances affecting the prosecution’s ability to

determine the proposed amount of restitution.” Id.; see § 18-1.3-

603(2).

¶5 We review de novo questions of statutory interpretation.

Weeks, ¶ 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.

¶6 We also review de novo whether the trial court had authority

to order restitution. People v. Roddy, 2021 CO 74, ¶ 23.

3 2. Additional Background

¶7 Roberson entered into a plea agreement that provided as

follows: “The parties stipulate to $21,450.00 in restitution for the

benefit of Lee Hagler. Additional restitution will be reserved.”

¶8 The district court held a sentencing hearing on June 25, 2020.

The court ordered restitution, reserved determining the amount,

and set deadlines for the prosecution to submit its restitution

request and for Roberson to object. Defense counsel did not argue

that the prosecution had failed to meet its deadline under section

18-1.3-603(2) or that the court lacked authority to order restitution

as a result. The prosecution filed its initial restitution request

twenty-eight days later, seeking $62,241.28 for Hagler. Defense

counsel objected and requested a hearing.

¶9 After several continuances and several amended notices of

restitution, the court held a restitution hearing on September 14,

2021, at which the prosecution presented evidence supporting the

4 final restitution amount requested. The court ultimately ordered

Roberson to pay $59,870.93 in restitution to Hagler.2

3. Preservation and Waiver

¶ 10 As a threshold matter, we conclude that Roberson’s claim is

cognizable as a Crim. P. 35(a) illegal manner claim that does not

require preservation. See Tennyson v. People, 2025 CO 31, ¶ 7 (the

trial court’s order setting the amount of restitution is not part of the

sentence or judgment of conviction; thus, a challenge to its

timeliness is an illegal manner claim under Crim. P. 35(a)); see also

People v. Martinez Rubier, 2024 COA 67, ¶¶ 22-23 (a defendant’s

challenge to the trial court’s sua sponte order granting the

prosecution an extension of time to file restitution information falls

under Crim. P. 35(a) and does not require preservation). And

Roberson’s appeal is a timely illegal manner claim. See Crim. P.

35(a), (b).

2 In People v. Roberson, 2023 COA 70, ¶ 8 (Roberson I), we

incorrectly stated the final restitution amount was $60,633.94. Following the restitution hearing, the district court entered a final written order for restitution in the amount of $59,870.93, as stated in People v. Roberson, 2025 CO 30, ¶ 8 (Roberson II).

5 ¶ 11 In addition, although a defendant may waive a claim that the

prosecution failed to comply with its deadline under section 18-1.3-

603(2), see Johnson v. People, 2025 CO 29, ¶ 25, we are not

persuaded that Roberson waived her claim.

¶ 12 We review de novo whether a party waived a right. Richardson

v. People, 2020 CO 46, ¶ 21. Waiver is the intentional

relinquishment of a known right or privilege. Forgette v. People,

2023 CO 4, ¶ 28. For statutory rights, a waiver “must be voluntary,

but need not be knowing and intelligent.” Finney v. People, 2014

CO 38, ¶ 16. A waiver may be explicit, as when a defendant

“expressly abandons an existing right or privilege,” or it may be

implied, as when a defendant “engages in conduct that manifests

an intent to relinquish a right or privilege or acts inconsistently

with its assertion.” Forgette, ¶ 28.

¶ 13 The People argue that Roberson waived her right to challenge

the prosecution’s deadline based on her plea agreement, which

provided that “[a]dditional restitution will be reserved.” The People

also point to defense counsel’s acknowledgment at the providency

hearing that “there are additional restitutions being reserved for the

[prosecution] at trial with the [c]ourt.” But nothing in Roberson’s

6 plea agreement or her counsel’s representations set a deadline for

the prosecution to submit the restitution information or otherwise

excused its compliance with its statutory deadline. And neither the

plea agreement nor counsel’s representations acknowledged that

the restitution information was unavailable to the prosecution at

sentencing. See Martinez Rubier, ¶¶ 32-33 (the defendant did not

waive his right to challenge the prosecution’s failure to timely

submit restitution information when the plea agreement did not set

out a specific deadline or otherwise exempt the prosecution from its

statutory obligation). Accordingly, we conclude that Roberson did

not intentionally relinquish her right to challenge the restitution

order on the basis that the prosecution failed to comply with its

statutory deadline. See Forgette, ¶ 28. We turn next to the merits

of Roberson’s contention.

4. Any Error by the Court in Not Requiring the Prosecution to Comply with its Statutory Deadline Was Harmless

¶ 14 The restitution statute clearly requires the prosecution to

present information supporting its requested restitution amount

“prior to the order of conviction.” § 18-1.3-603(2). Only if such

7 information “is not available” at that time may the prosecution

delay submission for up to ninety-one days. Id.

¶ 15 It is undisputed that the prosecution submitted its restitution

request twenty-eight days after Roberson’s sentencing. If the

supporting information was available to the prosecution at or before

the sentencing hearing, the prosecution violated section 18-1.3-

603(2) by failing to present it at that time.3 But if the information

was not available to the prosecution at or before the sentencing

hearing, the prosecution did not violate the statute, even in the

absence of extenuating circumstances. See Weeks, ¶ 21 n.7 (“[T]he

prosecution doesn’t need the court’s permission to submit the

information in support of a motion for restitution within ninety-one

days of the judgment of conviction, so long as that information isn’t

3 In People v. Brassill, 2024 COA 19, ¶ 30 (cert. granted in part Aug.

04, 2025), a division of this court held that the restitution statute “requires the prosecution to use reasonable diligence to obtain restitution information and present it at or before sentencing.” Whether the defendant may challenge a restitution order based on the prosecution’s failure to use reasonable diligence to gather restitution information before sentencing is a question currently pending before the supreme court on certiorari review of Brassill. See Brassill v. People, (Colo. No. 24SC196, Aug. 04, 2025) (unpublished order). Given our disposition, we need not weigh in on this question.

8 available before the judgment of conviction”; rather, “[i]t’s

the extension of that ninety-one-day period that requires a request”

and a finding of extenuating circumstances.).

¶ 16 Roberson argues that the prosecution had the information well

before sentencing based on testimony at the restitution hearing that

the victim’s office manager had calculated the amount in March or

April 2017 after Roberson was fired. The People do not dispute this

evidence but seem to argue that the prosecution had ninety-one

days to submit the request regardless of when it received the

information. As explained, we reject the People’s interpretation of

the statute. But because this issue was not raised at the

sentencing hearing, the record does not clearly establish when the

prosecution actually obtained the restitution information. Even so,

at least one division of this court has held that it is error for a trial

court, as here, to sua sponte grant the prosecution an extension of

time to submit restitution information without a request for an

extension and a showing that the information was unavailable

before the order of conviction. See Martinez Rubier, ¶ 41.

¶ 17 But even assuming the district court erred by allowing the

prosecution to submit its restitution request after sentencing, we

9 conclude that any error was harmless because Roberson has not

shown prejudice. See Crim. P. 52(a) (“Any error, defect, irregularity,

or variance which does not affect substantial rights shall be

disregarded.”). The Colorado Supreme Court has yet to decide

whether harmless error review applies to violations of the

prosecution’s subsection (2) deadline, but at least one division of

this court applied harmless error review, see Martinez Rubier, ¶ 48,

and we agree with that division’s approach.

¶ 18 Unlike Snow v. People, 2025 CO 32, the district court here

entered one of the enumerated restitution orders at sentencing — it

ordered restitution, reserving the amount to be determined later.

See § 18-1.3-603(1)(b) (the court may order that the defendant is

obligated to pay restitution but that the specific amount of

restitution will be determined within ninety-one days). As a result,

and because Roberson waived her right to object to the court’s entry

of a restitution order beyond the ninety-one-day deadline, the court

retained authority to enter the restitution order. Roberson II, ¶¶ 17-

18; see Martinez Rubier, ¶¶ 46-47 (concluding that the trial court

“never lost the authority to enter the restitution order, even though

it erred by granting the prosecutor an unrequested extension of

10 time to submit the restitution information”); cf. Weeks, ¶ 47

(vacating restitution order when the court lacked authority to enter

it beyond the statutory ninety-one-day deadline). And because the

court never lost the authority to order restitution, vacatur is not

automatic. See Martinez Rubier, ¶ 46; see also People v. Brassill,

2024 COA 19, ¶¶ 58-62 (declining to automatically vacate a

restitution order despite the prosecution’s failure to comply with the

restitution statute and instead concluding that the trial court did

not abuse its discretion by declining to deny restitution as a

sanction for noncompliance) (cert granted in part Aug. 04, 2025).

¶ 19 Instead, we are persuaded by the division’s analysis in

Martinez Rubier, ¶¶ 42-48, that we review the alleged error for

harmlessness. See People v. Dominguez, 2021 COA 76, ¶ 12

(reviewing an illegal manner claim for harmless error). “In weighing

whether a trial court’s violation of a statutory deadline requires

reversal of the defendant’s conviction, we consider the gravity of the

court’s deviation from the statutory provisions, ‘including a

consideration of due process concerns,’ and any prejudice to the

defendant caused by the deviation.” Martinez Rubier, ¶ 48 (quoting

People in Interest of Lynch, 783 P.2d 848, 852 (Colo. 1989)).

11 ¶ 20 Here, the prosecution submitted the restitution information

twenty-eight days after sentencing. Roberson then requested

several continuances, delaying resolution of restitution far beyond

the ninety-one-day statutory deadline. See § 18-1.3-603(1)(a).

Indeed, Roberson had more than 400 days to review and challenge

the requested restitution. See Roberson II, ¶ 16. The prosecution

also filed several amended restitution notices, ultimately reducing

the amount of restitution requested. And in the end, the district

court ordered less restitution than the original request.

¶ 21 Notably, Roberson does not identify any prejudice resulting

from the prosecution’s twenty-eight-day delay in submitting

restitution information. She argues only that “[o]rdering a

defendant to pay restitution when the court had no authority to do

so is inherently prejudicial.” But, as discussed, the court retained

authority to enter the restitution order. Cf. People v. Mickey, 2023

COA 106, ¶¶ 7-8 (a trial court’s entry of a restitution order without

authority cannot be harmless). On this record, we perceive no

reversible error.

12 B. The Plea Agreement

¶ 22 Roberson contends that the district court erred by ordering

$59,870.93 in restitution for two reasons: (1) the plea agreement

limited the amount of restitution that could be awarded, and (2) the

order erroneously includes amounts related to dismissed counts.

Neither contention is persuasive.

1. Standard of Review

¶ 23 Both of Roberson’s arguments require that we interpret her

plea agreement. We do so de novo, “focus[ing] on the meaning a

reasonable person would have attached to the agreement at the

time the agreement was entered into.” People v. Antonio-Antimo, 29

P.3d 298, 303 (Colo. 2000); see Roddy, ¶ 24; Craig v. People, 986

P.2d 951, 960 (Colo. 1999). This is an objective standard, not one

based on the defendant’s subjective understanding. Craig, 986

P.2d at 960-61. Our task is not to rewrite the plea agreement “but

to interpret it consistently with the reasonable intent of the parties

in light of the defendant’s right to be treated fairly by the

government.” Id.

13 2. Additional Background

¶ 24 The prosecution charged Roberson with one count of theft of

between twenty and one hundred thousand dollars, as well as four

counts of forgery — one for each check forged under her former

employer’s name. Roberson ultimately agreed to plead guilty to

count two — forgery of a check on or about December 22, 2016 —

and an added count of theft of between one and twenty thousand

dollars in exchange for the dismissal of the other four counts.

¶ 25 Recall that Roberson’s plea agreement provided as follows:

“The parties stipulate to $21,450.00 in restitution for the benefit of

Lee Hagler. Additional restitution will be reserved.” The plea

agreement also provided that “[r]estitution and costs of prosecution

as to all originally filed and pled counts will be as ordered by the

court.” And during the providency hearing, Roberson’s privately

retained attorney clarified, “We are stipulated to restitution as of

this date in the amount of $21,450, and there are additional

restitutions being reserved for the [prosecution] at trial with the

[c]ourt.”

¶ 26 At her sentencing hearing, Roberson was represented by the

public defender. In her statement to the district court, Roberson

14 accepted “100 percent responsibility for everything that [she had]

done” and said she “most definitely want[ed] to repay the victims.”

The public defender advocated for a sentence that would allow

Roberson “back into the community sooner so that she can start

making those payments towards restitution and start doing what

she can do at this point to make the victims whole again.”

¶ 27 At an August 2020 status conference regarding restitution, the

public defender noted that the plea agreement stipulated to a

specific amount of restitution payable to Hagler. She explained that

she interpreted the “additional restitution” language “to mean

additional affected parties,” not more restitution for Hagler.4 But

she acknowledged that she did not represent Roberson during plea

negotiations and lacked access to the plea communications between

Roberson’s former counsel and the prosecution. The court ordered

the prosecution to provide those communications.

¶ 28 At the restitution hearing, the public defender objected to a

restitution order exceeding $21,450 and moved to enforce the plea

agreement. She asked Roberson what she understood about

4 Roberson does not advance this interpretation on appeal.

15 “approximately how much money in restitution [she] would be

ordered to pay in connection with the plea agreement.” Roberson

responded, “Twenty-one to twenty-two thousand.” The prosecutor

admitted she could not locate or provide the plea negotiation

communications but nonetheless disagreed with Roberson’s

interpretation based on the plea agreement’s plain language.

¶ 29 The district court determined that Roberson’s interpretation of

the plea agreement was not reasonable “based upon how the plea

agreement is written.” The court explained that when there is a

stipulated amount of restitution, it is typically “spelled out a little

bit more specifically in the plea agreement,” and such an agreement

would not “have the language that restitution is reserved.” The

court authorized Roberson to file a motion to reconsider if the

public defender was able to obtain new information or evidence. No

such motion was ever filed.

3. The Plea Agreement Did Not Limit the Amount of Restitution

¶ 30 Roberson contends that the prosecution stipulated to “cap her

restitution liability at $21,450,” that she detrimentally relied on

that promise, and that the promise must be specifically enforced.

We disagree.

16 ¶ 31 It is true that, when a defendant detrimentally relies on a

promise made by the prosecution in a plea agreement, due process

requires enforcement of that promise. People v. Macrander, 756

P.2d 356, 359 (Colo. 1988). But we cannot conclude, based on the

plain language of the plea and counsel’s contemporaneous

representations, that the prosecution promised to limit Roberson’s

restitution obligation to $21,450. See Antonio-Antimo, 29 P.3d at

303; Craig, 986 P.2d at 960-61.

¶ 32 We acknowledge that the plea agreement provides a stipulated

amount of restitution for the benefit of Hagler. But it also clearly

contemplates “[a]dditional restitution,” including restitution on all

original counts. See People v. Romero, 745 P.2d 1003, 1010 (Colo.

1987) (to defer to a defendant’s interpretation, there must be “a

reasonable foundation in the document itself and” the surrounding

circumstances). Those original counts included a count of theft of

between twenty and one hundred thousand dollars and four counts

of forgery. And as the supreme court explained, “At the time of

sentencing, the victim had determined the value of certain elements

of these offenses but told the prosecution he needed more time to go

17 through records to determine what other losses might be directly

attributable to Roberson’s conduct.” Roberson II, ¶ 3.

¶ 33 Moreover, counsel’s representations at the providency hearing

demonstrate his understanding that the prosecution intended to

seek more restitution than what was set forth in the plea

agreement. Roberson did not object to or express confusion about

this during her plea colloquy with the court.

¶ 34 Given these circumstances, we conclude that the plea

agreement cannot reasonably be interpreted as limiting the amount

of restitution to $21,450.00. See Antonio-Antimo, 29 P.3d at 303;

Craig, 986 P.2d at 960. Thus, we conclude that the district court

did not err by ordering restitution greater than $21,450.

4. The Plea Agreement Authorizes Restitution Based on Dismissed Charges

¶ 35 Roberson next contends that the restitution order should be

reduced to $27,500, which she claims is the maximum permitted

based on the charges to which she pleaded guilty. We disagree.

¶ 36 Generally, a court may not award restitution for losses

proximately caused by conduct underlying a dismissed charge.

Roddy, ¶ 28. “That said, the prosecution and the defendant may

18 strike a plea agreement that extends the scope of the restitution

order to include uncharged conduct or dismissed counts.” Id. In

such cases, “a defendant may receive the benefit of avoiding trial,

pleading guilty to fewer or different offenses, and receiving a

reduced sentence in exchange for making full restitution to those

harmed by her conduct.” People v. Sosa, 2019 COA 182, ¶ 30.

“And when a defendant agrees to make restitution for losses

stemming from uncharged conduct or dismissed counts, she is

bound by that agreement.” Id.

¶ 37 Roberson pleaded guilty to one count of forgery involving a

$7,500 check and one count of theft of between one and twenty

thousand dollars. She contends that $27,500 is the maximum

restitution permitted for these charges. But Roberson’s argument

overlooks the language of the plea agreement indicating that

“[r]estitution and costs of prosecution as to all originally filed and

pled counts will be as ordered by the [c]ourt.”

¶ 38 Roberson is bound by her agreement to make restitution for

losses stemming from all original counts, Sosa, ¶ 30, and her

potential restitution exposure on the original counts far exceeds the

19 restitution ordered.5 Accordingly, we conclude that the district

court did not err by ordering restitution greater than $27,500.

II. Disposition

¶ 39 We affirm the district court’s restitution order.

JUDGE YUN and JUDGE BERNARD concur.

5 Roberson argues, for the first time in her reply brief, that the plea

agreement is ambiguous because it does not specifically reference “dismissed” counts. Although we could decline to consider this argument, see People v. Owens, 2024 CO 10, ¶ 24 (“[I]t is well-settled that an appellate court will not consider arguments raised for the first time in a reply brief . . . .”), we are not persuaded by it. The plea agreement clearly contemplates restitution for “all originally filed” counts, including those that were dismissed.