Peo v. Rodriguez

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 23CA0250
• Status: Unpublished

Opinion

23CA0250 Peo v Rodriguez 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0250 Arapahoe County District Court No. 21CR1325 Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Rodriguez,

Defendant-Appellant.

ORDER VACATED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

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

Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant Joshua Rodriguez appeals the district court’s order

imposing $8,314.80 in restitution costs. We vacate the order and

remand for the district court to correct the mittimus accordingly.

I. Background

¶2 Rodriguez was charged with sixteen counts in connection with

a June 2021 police pursuit of a stolen car in Littleton, Colorado. In

September 2021, as part of a plea agreement, he pleaded guilty to

Count 1, second degree assault with a deadly weapon.1 § 18-3-

203(1)(b), C.R.S. 2024. In exchange, the State dismissed the

remaining counts. The plea agreement stated: “Restitution:

reserved (defendant admits liability, stipulates causation).” At

Rodriguez’s arraignment, the district court accepted the plea and

set a sentencing hearing, noting that restitution was reserved.

¶3 In November 2021, at the State’s request, the court entered an

order obligating Rodriguez to pay restitution, “the specific amount

of which shall be determined within 91 days following the order of

1 We agree that Rodriguez did not, as the State suggests, plead

guilty to second degree assault on a peace officer. He was originally charged with second degree assault under section 18-3-203(1)(c), C.R.S. 2024, which is specific to peace officers. The amended charging document and plea agreement cite section 18-3-203(1)(b), which is not specific to peace officers, as the basis for this count.

1 conviction.” The order also directed the State to “present

information to determine the amount of restitution . . . within 87

days of th[e] order.” On February 3, 2022, the State requested

$25,531.76 in restitution.

¶4 At the February 18, 2022, sentencing hearing, the court

entered a judgment of conviction and sentenced Rodriguez to seven

years in the Department of Corrections’ custody. The court then

said, “Restitution is hereby ordered.” Defense counsel immediately

objected to the requested amount of restitution and the court

responded:

Understood. The Court will order restitution today, pursuant to statute. The amount listed here is $25,531.76. Defense has launched an objection. Court will set for a hearing . . . to hear the parties out as it relates to the amount, but the — for the record, the restitution has been ordered.

¶5 The post-sentencing mittimus stated: “Restitution: $25531.76

pending hearing. PD objects to amount of restitution and motions

to set for hearing.” The court scheduled a restitution hearing for

March 29, 2022. During the March hearing, the court heard

evidence and argument about the factual and legal bases for the

proposed restitution amount. At the hearing’s conclusion, the court

2 did not order restitution but noted that it would issue “an order

relatively soon,” advising the parties to “look for a written order

from me. . . . If not, we’ll just set a review and your client can come

back, but I don’t think we’ll need that. This will be a relatively

quick order. It won’t take long, I promise.”

¶6 Three months later, the court had not yet ordered restitution.

So, on June 30, 2022, Rodriguez requested a ruling. The court did

not respond. On November 16, 2022, Rodriguez again requested a

ruling, this time arguing that the court could not impose restitution

because the ninety-one-day statutory period had lapsed. See § 18-

1.3-603(1)(b), C.R.S. 2024.

¶7 On December 30, 2022, more than ten months (315 days)

after sentencing, the district court issued an order imposing

$8,314.80 in restitution. The court noted that, based on the

evidence presented at the restitution hearing, it was partially

granting Rodriguez’s request to reduce the requested amount. The

order did not address Rodriguez’s statutory objection to restitution

or the reason for the delay. However, the court stated that it

“ordered restitution in the amount of $25,531.76” at sentencing. It

then described the March hearing at which it “took testimony from

3 witnesses and heard argument regarding whether to maintain the

amount of restitution ordered, reduce said amount, or deny

affording any restitution in any amount.”

¶8 On appeal, Rodriguez contends that the district court lacked

authority to order restitution because it did so more than ninety-

one days after the judgment of conviction without finding good

cause to extend the deadline. See § 18-1.3-603(1)(b). Alternatively,

if we conclude that the court had authority to order restitution,

Rodriguez argues that the court erred by imposing restitution for

property damage related to a dismissed charge. See § 18-1.3-

603(11). Because we conclude that the court lacked authority to

impose restitution, we vacate the restitution order and remand to

the district court to amend the mittimus to reflect that Rodriguez

owes no restitution.

II. The District Court Lacked Authority to Impose Restitution

A. Preservation and Standard of Review

¶9 The State argues that this issue was not preserved because

Rodriguez did not raise it until his second request for a restitution

ruling. Arguing that the objection was untimely, the State cites

People v. McNeely, 222 P.3d 370, 374 (Colo. App. 2009), overruled in

4 part by Gibbons v. People, 2014 CO 67. Rodriguez asserts that he

preserved the argument in his second request for a ruling or,

alternatively, that preservation is not required in this instance. We

conclude that the issue was preserved.

¶ 10 Considering an objection to a jury instruction first raised in a

post-trial motion, after the verdict, McNeely held that a party must

object “in time for the trial court to avoid the alleged error” to

preserve the objection for appeal. Id. at 374, 375. Unlike in

McNeely, Rodriguez raised his objection before the court ruled on

restitution. Even if the court did not “avoid the alleged error,” id. at

374, it had “an adequate opportunity to make findings of facts and

conclusions of law on [the] issue” that Rodriguez raised. Forgette v.

People, 2023 CO 4, ¶ 21 (citation omitted).

¶ 11 And Rodriguez could not have argued that the court’s order

was untimely until the deadline had passed. In any event, it is the

court’s duty, not the defendant’s, to heed the statutory deadline.

See People v. Weeks, 2021 CO 75, ¶ 41. That Rodriguez did not

raise the deadline in his first request for a ruling does not change

our analysis. By raising the issue in time for the court to consider

it, he preserved it. See Forgette, ¶ 21.

5 ¶ 12 We review statutory interpretation questions de novo. Weeks,

¶ 24. We also review de novo whether a district court has authority

to impose restitution. People v. Roddy, 2021 CO 74, ¶ 23. If a

court lacks authority to impose restitution, “we must vacate the

restitution order.” People v. Roberson, 2023 COA 70, ¶ 17 (cert.

granted Apr. 8, 2024); accord Weeks, ¶ 47; People v. Mickey, 2023

COA 106, ¶ 6 (noting that harmless error does not apply).

B. Applicable Law

¶ 13 By statute, virtually all judgments of conviction must address

restitution. See § 18-1.3-603(1)(a)-(d). Of the four types of

restitution orders contemplated, we consider the second, “[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 time period by which the

6 restitution amount shall be determined.”2 § 18-1.3-603(1)(b). The

Colorado Supreme Court has explicitly held that district courts lack

authority to order restitution “after the ninety-one-day deadline in

[section 18-1.3-603(1)(b)] expire[s]” unless “the court expressly finds

good cause” to extend the deadline “before the deadline expires.”

Weeks, ¶¶ 5, 40, 45 (emphases added).

¶ 14 If a court does not order restitution at the sentencing hearing,

it “should be prepared to . . . adhere[] to [its] deadline in subsection

(1)(b).” Id. at ¶ 8. Therefore, “when the court enters a preliminary

restitution order . . . at a sentencing hearing, the mittimus should

reflect that restitution has been ordered but that the amount will be

determined . . . within ninety-one days or within” the timeframe

established by the court’s good cause findings. Id. at ¶¶ 8, 9

(emphasis added) (noting that the court should ideally make good

cause finding at or before sentencing).

2 The four types of restitution orders include: (1) ordering a specific

amount of restitution; (2) ordering that restitution is required without immediately determining the amount; (3) ordering that, “in addition to or in place of a specific amount . . . the defendant pay restitution covering the actual costs of specific future treatment of any victim”; and (4) “finding that no victim of the crime suffered a pecuniary loss and therefore” not ordering restitution. § 18-1.3- 603(1)(a)-(d), C.R.S. 2024.

7 ¶ 15 Weeks makes clear that a preliminary restitution order is not

final unless and until the court orders a specific amount of

restitution within the appropriate deadline. See id. Therefore, even

if the mittimus reflects a dollar amount of restitution, this amount

may only be preliminary if, for example, a party requests a hearing

or indicates that it may be seeking additional restitution. See id. at

¶¶ 12, 14, 44 (discussing the prosecutor’s request for “an ‘interim

amount’ of restitution” pending further investigation and, later, the

defendant’s request for a restitution hearing). This aligns with the

general principle that a final judgment or order “ends the particular

action in which it is entered, leaving nothing further for the court

pronouncing it to do in order to completely determine the rights of

the parties involved in the proceeding.” Wilson v. Kennedy, 2020

COA 122, ¶ 7 (quoting Harding Glass Co. v. Jones, 640 P.2d 1123,

1125 n.2 (Colo. 1982)).

C. Analysis

¶ 16 Rodriguez argues that the December 2022 order was the

court’s final restitution order and that because the order exceeded

the statutory deadline, the court lacked authority to impose

restitution at that time. Conversely, the State contends that the

8 district court ordered a specific amount of restitution in February

2022 pursuant to section 18-1.3-603(1)(a), and the December 2022

order merely reduced the amount of restitution under section 18-

1.3-603(3)(b). We agree with Rodriguez.

¶ 17 Here, the court entered what it titled “a judgment of

conviction” on February 18, 2022. The mittimus reflected that the

court had ordered restitution in the amount of $25,531.76,

“pending hearing.” (Emphasis added.) Therefore, the preliminary

restitution order did not end the restitution inquiry and was not

final. See Weeks, ¶ 9. Accordingly, the court had ninety-one days,

or until May 20, 2022, to order restitution or make an express

finding that good cause justified extending the deadline. See id.;

§ 18-1.3-603(1)(b).

¶ 18 The fact that the mittimus reflected restitution as a dollar

amount following the February 2022 hearing does not mean that

the court ordered a “specific amount” of restitution pursuant to the

statute when the amount was explicitly described as “pending.” See

§ 18-1.3-603(1)(a), (b); cf. People v. McLain, 2016 COA 74, ¶ 17

(finding finality when there was no indication “that the amount of

restitution was preliminary,” and “the court did not condition the

9 finality of the initial order on any future event”), overruled in part on

other grounds by Weeks, 2021 CO 75. A contrary interpretation

“would risk rendering the court’s deadline in subsection (1)(b)

meaningless,” Weeks, ¶ 42, because courts could enter a

placeholder amount and then determine a final amount after the

deadline.

¶ 19 Additionally, while the district court repeatedly noted that it

had ordered restitution, we interpret this to mean that the court

entered “a preliminary restitution order,” subject to the outcome of

the hearing. Id. at ¶¶ 9, 30, 44 (emphasis added). Therefore, at the

sentencing hearing, the district court anticipated that Rodriguez

would pay restitution. See § 18-1.3-603(1)(b). However, the court

noted that, while “restitution has been ordered,” it would “hear the

parties out as it relates to the amount.” This aligns with the

procedure under section 18-1.3-603(1)(b) in which the court may

“shelve the determination of the amount of restitution after entering

a preliminary order requiring restitution.” Weeks, ¶ 30.

¶ 20 Importantly, at sentencing, the district court did not hear

evidence supporting the amount of restitution or Rodriguez’s

objection to that amount, nor did it make legal or factual findings

10 about restitution. See People v. Malone, 923 P.2d 163, 166 (Colo.

App. 1995) (noting that district courts must make sufficient

findings concerning “the bases for the sentence imposed,” including

restitution). Instead, it heard evidence at the March 2022 hearing

and made findings in the December 2022 order. We therefore reject

the State’s assertion that the court ordered a specific amount of

restitution in February 2022. See § 18-1.3-603(1)(a).

¶ 21 In light of this conclusion, we also reject the State’s argument

that the court’s December 2022 restitution order fell under section

18-1.3-603(3)(b). This provision allows courts to decrease a

restitution order “(I) [w]ith the consent of the prosecuting attorney

and the victim or victims to whom the restitution is owed; or (II) [i]f

the defendant has otherwise compensated the victim or victims for

the pecuniary losses suffered.” Id. The State acknowledges that

“the court did not mention the conditions referenced in” this

section. It also does not argue, nor is there evidence in the record,

that the conditions were otherwise satisfied.

¶ 22 Instead, the State suggests that (1) the court implicitly applied

section 18-1.3-603(3)(b); (2) Rodriguez lacks standing to challenge

procedural violations of this section; and (3) any error in failing to

11 comply with this provision was harmless because the district court

reduced the amount of restitution. The State cites no Colorado

authority, nor are we aware of any, concluding that criminal

defendants lack standing to challenge orders decreasing restitution.

The State’s primary argument is that restitution is a victim’s right,

which criminal defendants lack standing to enforce. This argument

misses the point.

¶ 23 There is no indication that the court implicitly or explicitly

applied section 18-1.3-603(3)(b). Therefore, we need not consider

whether Rodriguez had standing to challenge an order reducing

restitution under this section. Moreover, Rodriguez does not

challenge the district court’s order on this ground; he challenges

the court’s authority to impose any restitution. Weeks and its

progeny make clear that criminal defendants may challenge

restitution orders entered without authority. See, e.g., Mickey, ¶ 7

(noting that restitution imposed without authority affects a

defendant’s substantial rights and is not harmless). Finally,

because the district court did not apply section 18-1.3-603(3)(b), we

12 do not address the State’s argument that any procedural error

under this section was harmless.3

¶ 24 Because section 18-1.3-603(1)(b) governs, the district court

exceeded its statutory deadline when it ordered restitution more

than ten months after entering its judgment of conviction. See

Weeks, ¶¶ 45, 47. The district court also failed to make any

express, timely findings that good cause justified extending the

deadline. See id. at ¶¶ 40, 45. We therefore vacate the restitution

order. See id. at ¶ 47; Roberson, ¶ 17. Given this conclusion, we

need not address Rodriguez’s argument that the court erred by

imposing restitution for losses related to a dismissed charge.

III. Disposition

¶ 25 The restitution order is vacated, and the case is remanded to

the district court to correct the mittimus to reflect that Rodriguez

JUDGE GOMEZ and JUDGE LUM concur.

3 The State suggests that the court’s procedural shortcomings

should not allow Rodriguez to get a “windfall at the victim’s expense.” But People v. Weeks, 2021 CO 75, ¶ 41, accepted the risk that “defendant[s] could avoid paying restitution solely because the court failed to comply with its deadline.”