Peo v. Seymour

• Court: Colorado Court of Appeals
• Decided: March 5, 2026
• Docket: 24CA1243
• Status: Unpublished

Opinion

24CA1243 Peo v Seymour 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1243 City and County of Denver District Court No. 23CR3781 Honorable Karen L. Brody, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean W. Seymour,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 5, 2026

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

Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Sean W. Seymour, appeals the district court’s

order imposing restitution. We affirm.

I. Background

¶2 The State charged Seymour with class 4 felony theft for

stealing materials from a manufacturing company and selling the

items as scrap metal. Seymour pled guilty to an added count of

class 5 felony theft and the prosecution dismissed the original

charge. As part of the plea agreement, Seymour agreed to pay

restitution. The court reserved the determination of a restitution

amount for ninety-one days and ordered the prosecution to submit

a motion for restitution within forty-nine days.

¶3 Less than forty-nine days later, the prosecution filed a motion

for an order of restitution in the amount of $69,742.09. The court

set the matter for a hearing to be held two weeks before the

ninety-one-day deadline. Before the hearing, the prosecution filed

an unopposed motion to continue the hearing because the

prosecutor, defense counsel, and victim representative were all

unavailable that week. The prosecution asked the court to find

good cause to set the hearing beyond the ninety-one-day deadline

and represented that defense counsel did not oppose that request.

1 The court granted the motion, finding that, “[i]n light of the parties’

and witness scheduling issues, and at the parties’ request, . . . good

cause [existed] for extending the deadline for establishing the

amount of restitution to beyond the [ninety-one-]day period

provided by statute.”

¶4 Before the continued restitution hearing, the prosecution filed

an amended motion for an order of restitution in the reduced

amount of $69,726.55. At the hearing, defense counsel argued,

among other things, that the restitution request should be denied

because, in accordance with the then-recently announced opinion

in People v. Brassill, 2024 COA 19 (cert. granted Aug. 4, 2025), the

prosecution failed to comply with its obligation under the restitution

statute to make the information in support of restitution available

at sentencing. The court disagreed, found that Seymour waived his

challenge to the prosecution’s failure to comply with its statutory

obligation, and entered an order for restitution.

¶5 On appeal, Seymour contends that the district court violated

his right to a timely restitution order because (1) it did not require

the prosecution to present restitution information it had available at

2 sentencing and (2) it impermissibly entered the restitution order

beyond the statutory ninety-one-day deadline. We disagree.

II. Relevant Law

¶6 Every order of conviction shall include consideration of

restitution, which must be reflected in one of the four types of

orders set forth in the restitution statute. People v. Weeks, 2021

CO 75, ¶ 3. At the time Seymour was sentenced, section

18-1.3-603(1)(b), C.R.S. 2023, required a court to enter “[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

restitution amount shall be determined.” See Weeks, ¶ 4.

¶7 The statute further provides that a court’s restitution order

must be based “upon information presented to the court by the

prosecuting attorney.” § 18-1.3-603(2)(a). At the time Seymour was

sentenced, section 18-1.3-603(2)(a) provided that “the 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.”

3 ¶8 The statutory deadlines in subsections (1)(b) and (2)(a) are not

jurisdictional. Babcock v. People, 2025 CO 26, ¶¶ 2, 21-26;

Johnson v. People, 2025 CO 29, ¶¶ 19-20, 25. Thus, defendants

may waive their subsection (1)(b) right to have the court determine

the amount of restitution within ninety-one days of conviction, and

their subsection (2)(a) right to have restitution determined at

sentencing if the amount of restitution is available to the

prosecution prior to that time. Johnson, ¶ 25.

¶9 When the right at issue is statutory, waiver of such right need

only be voluntary. Id. at ¶ 26. “Waiver may be demonstrated

through explicit words or actions, or it may be implied ‘as when a

party engages in conduct that manifests an intent to relinquish a

right or privilege or acts inconsistently with its assertion.’” Id.

(quoting Forgette v. People, 2023 CO 4, ¶ 28). Moreover, “the

actions of counsel are relevant to our analysis as ‘[c]ounsel may

waive a defendant’s statutory rights.’” Id. (quoting Finney v. People,

2014 CO 38, ¶ 16). But, because “[w]aiver extinguishes error and

therefore appellate review,” see id., we indulge every reasonable

presumption against waiver. See Phillips v. People, 2019 CO 72,

¶¶ 18, 21.

4 III. Seymour Waived His Subsection (2)(a) Right to Have the Prosecution Present Restitution Information at Sentencing

¶ 10 We review de novo whether a claim is waived. Johnson, ¶ 26.

And although Seymour did not challenge the timeliness of the

restitution order in the district court, we can review this

substantive Crim. P. 35(a) claim for the first time on appeal. See

Tennyson v. People, 2025 CO 31, ¶ 7 (a claim challenging the

timeliness of the order setting the amount of restitution is a Crim.

P. 35(a) illegal manner claim); see also Fransua v. People, 2019 CO

96, ¶ 13 (there is no preservation requirement for a Rule 35(a)

claim).

¶ 11 In his written plea agreement, Seymour “agree[d] to stipulate

to liability and pay restitution for all charged counts, including

counts dismissed as part of this plea resolution.” The plea

agreement included additional stipulated concessions: “Plea to

added count 2 - F5 Theft (08A1F) (agg range 2-6) + open + SL/RR

(amount TBD).” The plea documents do not define the notation

“SL/RR (amount TBD).” The court explained in its restitution order,

however, that when the parties have agreed to allow the amount of

restitution to be determined within ninety-one days, it is common

5 practice in Courtroom 5A to use the abbreviation “RR:” to denote

“restitution reserved.” This explanation is consistent with the

parties’ discussion of the plea terms at the providency and

sentencing hearings.

¶ 12 At the providency hearing, defense counsel informed the

district court that, consistent with the above stipulated

concessions, the plea terms included “a plea to theft as a Class 5

felony with an open sentence, two to six years, but probation is also

an available sentence to the [c]ourt, stipulation to liability and

restitution . . . although the amount to be determined.” The court

also advised Seymour that he was agreeing to pay “for any

monetary loss that the victim suffered with restitution reserved and

the amount to be determined within [ninety-one] days.” Seymour

indicated that he understood and agreed to the plea disposition,

confirming it was “how [he] wish[ed] to proceed.” Seymour further

agreed that he understood the plea and the plea documents and

that he did not have any remaining questions. The court accepted

his guilty plea as entered knowingly, intelligently, and voluntarily.

¶ 13 Along with the written plea agreement, the prosecution filed a

victim impact statement, which reflected a loss to the victim of

6 about $25,000 in “Total Stolen Raw Goods.” And the victim’s

representative added, “[w]e can easily substantiate more than

$75,000 worth of stolen product without getting into most of the

assembly work, engineering, overhead, etc.”

¶ 14 At the sentencing hearing, the court confirmed with defense

counsel the terms of the plea agreement:

THE COURT: Okay. We are here today for a sentencing hearing, right, which we set over. There was a . . . plea to added Count 2, Class 5 felony, aggravated range of two to six years open sentence, stipulation liability and restitution, a reserved amount to be determined, right --

[Defense counsel]: Yes.

¶ 15 The court later asked the prosecutor about the status of

restitution:

THE COURT: And is there restitution, [prosecutor]? Or what --

[Prosecutor]: At this time --

THE COURT: How does that work?

[Prosecutor]: -- we know of $25,000. It – I think it’s going to be more than that, so I would ask to reserve it. I think the [c]ourt has a [v]ictim [i]mpact [s]tatement with that $25,000 amount in -- but we need to do a worksheet and figure out how much the assembly cost would be and things like that.

7 When imposing sentence, the court stated, “I’m going to let the

People reserve establishing the amount of restitution for [ninety-

one] days and ask that they file a motion within [forty-nine days]

and confer with [defense] counsel. And if there’s any objection, we

will come back and have a hearing on that.”

¶ 16 Based on this record, we conclude that Seymour validly

waived his subsection (2)(a) right to have the prosecution present

restitution information at sentencing. He did so through the

stipulated plea concessions — namely, “RR (amount TBD),” which

means “the parties have agreed that establishing the amount of

restitution will be reserved for ninety-one days”; and through

defense counsel’s and Seymour’s conduct and representations at

the providency and sentencing hearings — namely, by agreeing to

reservation of the restitution amount determination, and by

declining to object to the court’s order giving the prosecution forty-

nine days to submit its restitution request, which was obviously

inconsistent with subsection (2)(a). See Johnson, ¶¶ 7-8, 19, 28-30;

People v. Fregosi, 2024 COA 6, ¶¶ 16-21; Forgette, ¶ 34.

8 IV. The Court Did Not Violate Subsection (1)(b)

¶ 17 Seymour also argues that the district court violated its duties

under the statute when it impermissibly entered the restitution

order beyond the ninety-one-day deadline. He asserts that his

silence on the prosecution’s unopposed motion for a continuance of

the restitution hearing was insufficient to waive his subsection

(1)(b) right to have restitution determined within ninety-one days of

sentencing. His argument is misplaced. The court extended the

restitution amount determination beyond the ninety-one-day

deadline based on a finding, before the deadline expired, that good

cause existed to extend the time period — not, as Seymour asserts,

based on a waiver of his subsection (1)(b) right. Seymour provides

no authority to support a conclusion that a court cannot make a

good cause finding without a defendant’s agreement, nor does he

argue that the good cause finding here was error. See Weeks, ¶¶ 4-

5 (a court can extend the subsection (1)(b) deadline only if, before

the deadline expires, the court expressly finds good cause for doing

so).

¶ 18 In sum, we conclude that the district court did not err by

entering an order setting a restitution amount because Seymour

9 validly waived his subsection (2)(a) right to have the prosecution

present restitution information at sentencing; the court properly

entered a subsection (1)(b) order at sentencing that reserved the

determination of the restitution amount for ninety-one days; and

the court made an express, timely good cause finding to extend the

determination of the restitution amount beyond the ninety-one-day

deadline.

V. Disposition

¶ 19 The restitution order is affirmed.

JUDGE JOHNSON and JUDGE GOMEZ concur.