SUMMARY
A
division of the court of appeals concludes that, when the
Colorado Supreme Court held in People v. Weeks, 2021
CO 75, that a sentencing court loses the authority to impose
restitution after ninety-one days absent an express finding
of good cause, it did not mean that the court loses subject
matter jurisdiction. Thus, the division holds that because
the deadline is not jurisdictional, a defendant waives any
challenge to the timeliness of the restitution award by
requesting a hearing on restitution outside the
ninety-one-day period.
2
Adams
County District Court No. 19CR2947 Honorable Kristan K.
Wheeler, Judge
Taubman [*]
and Berger [*]
, JJ., concur.
OPINION
TOW
JUDGE
3
¶
1 Defendant, Zachary Eugene Babcock, appeals the trial
court's restitution order, asserting that the trial court
lacked authority to enter a restitution order more than
ninety-one days after sentencing without a timely and express
finding of good cause to extend that deadline. The People
contend that Babcock waived his right to challenge the
timeliness of the restitution order by requesting a hearing
date outside the ninety-one-day period before the expiration
of that deadline. Answering a question not addressed by the
Colorado Supreme Court in People v. Weeks, 2021 CO
75, ¶ 24, we conclude that a defendant can waive the
right to have restitution determined within the statutory
time constraints and that Babcock did so by requesting a
hearing outside the ninety-one-day period. We therefore
address Babcock's challenge to the sufficiency of the
evidence to support the restitution award and conclude the
evidence was sufficient. Accordingly, we affirm the
restitution order.
I.
Background
¶
2 On December 19, 2019, Babcock pleaded guilty to child abuse
resulting in serious bodily injury as part of a deferred
judgment and sentence agreement. When the court accepted the
plea, it reserved
4
restitution for ninety-one days. Eighty-two days later, on
March 10, 2020, the prosecution filed its motion to impose
restitution with supporting documentation, requesting
$12,258.83 in restitution for medical bills. On March 18,
2020 - ninety days after the court accepted the plea -
defense counsel objected to the restitution request and asked
that a restitution hearing be set in June - which would fall
outside the ninety-one-day period - because of "the
current pandemic the world is facing." The next day, the
trial court set the hearing for June 11, 2020. Thereafter,
the June hearing was continued because of COVID-19.
Ultimately, the hearing was held on August 14, 2020, and the
trial court imposed $12,258.83 in restitution.
II.
Timeliness
A.
Standard of Review and Applicable Law
¶
3 This appeal calls for us to interpret the restitution
statute, section 18-1.3-603, C.R.S. 2022. That presents a
legal issue that we review de novo. Weeks, ¶
24.
¶
4 Every order of conviction for a felony "shall include
consideration of restitution," which must take one or
more of four prescribed forms: (1) an order to pay a specific
amount; (2) an order
5
that the defendant is obligated to pay restitution, but
deferring the establishment of the actual amount owed; (3) an
order that the defendant is obligated to pay the actual costs
of specific future treatment for the victim; or (4) a finding
that no victim suffered a pecuniary loss and thus no
restitution is owed. § 18-1.3-603(1). If the court
reserves the determination of restitution, the statute
provides that the 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." § 18-1.3-603(1)(b). For
purposes of the restitution statute, an order of conviction
for a felony includes the court's acceptance of a plea of
guilty. People v. Roddy, 2021 CO 74, ¶¶
18-21 (treating the acceptance of a deferred judgment and
sentence agreement as an "order of conviction" for
purposes of the statutory restitution deadlines); see
also § 18-1.3-602(2), C.R.S. 2022.
¶
5 The ninety-one-day "deadline in subsection (1)(b)
refers to the court's determination of the restitution
amount the defendant must pay, not to the prosecution's
determination of the proposed amount of restitution."
Weeks, ¶ 5. And "this deadline may be
extended
6
only if, before the deadline expires, the court expressly
finds good cause for doing so." Id. If the
court fails to comply with this deadline, it loses the
authority to award restitution. See id. at
¶¶ 7, 45.
B.
Analysis
¶
6 The People contend that (1) the restitution statute's
ninety-one-day deadline is not jurisdictional, and (2)
Babcock waived "any timeliness challenge to the
determination of restitution outside the ninety-one-day
deadline by expressly requesting that the court set a . . .
hearing for restitution more than three months after
expiration of the ninety-one[-]day deadline." We agree
with both contentions.
1.
Authority
¶
7 We agree with the People that the restitution statute's
ninety-one-day deadline is not jurisdictional.
¶
8 Subject matter jurisdiction "concerns the court's
authority to deal with the class of cases in which
it renders judgment, not its authority to enter a particular
judgment within that class." People in Interest of
J.W. v. C.O., 2017 CO 105, ¶ 24; see also Minto
v. Lambert, 870 P.2d 572, 575 (Colo.App. 1993) (noting
that there is
7
often "confusion about subject matter jurisdiction
because of a blurring of the distinction between the
appropriate exercise of power and the absence of
power"). But not all mandatory statutory time limits are
jurisdictional. See, e.g., People v.
McMurtry, 122 P.3d 237, 241-42 (Colo. 2005) (holding
that the statutory right to a speedy trial within six months
of pleading not guilty is not jurisdictional). When the
legislature intends to impose a limit on the court's
jurisdiction, it must do so explicitly. Wood v.
People, 255 P.3d 1136, 1140 (Colo. 2011). A
jurisdictional defect cannot be waived, but a
nonjurisdictional deadline can be. Id.; see also
People v. Sprinkle, 2021 CO 60, ¶ 17.
¶
9 In Weeks, the supreme court stated that a trial
court loses "authority" to order restitution more
than ninety-one days after sentencing absent an express good
cause finding to extend the deadline. Weeks, ¶
45. Notably absent from Weeks - and from the
statutory provision itself - is the use of the word
"jurisdiction."
¶
10 In People v. Turecek, 2012 COA 59, ¶¶
20, 25, overruled in part by Weeks, 2021 CO 75, a
division of this court determined that the statutory deadline
for imposing restitution is not jurisdictional.
8
To say that a court lacks authority to order belated
restitution does not use "authority" in a
jurisdictional sense, but only in the same sense in which a
court lacks "authority" to impose a sentence above
the statutory maximum. Such action is an error of law,
reversible on appeal, but it is not jurisdictional.
Id. at ¶ 20 (quoting Dolan v. United
States, 560 U.S. 605, 626 (2010) (Roberts, C.J.,
dissenting)). Although in Weeks the supreme court
overruled Turecek, the court did so only "[t]o
the extent that [it was] inconsistent with"
Weeks. Weeks, ¶ 47 n.16. We read
nothing in Weeks that would be inconsistent with
Turecek's jurisdictional analysis. Indeed, the
fact that the discussion in Weeks is restricted to a
sentencing court's authority - rather than its
jurisdiction - indicates that the supreme court did not
intend to abandon its long adhered-to distinction between the
two.
¶
11 We thus conclude that Weeks did not overrule
Turecek's jurisdictional analysis. The
ninety-one-day period remains a nonjurisdictional deadline
and, as such, it can be waived. We therefore turn to the
People's contention that Babcock waived his right to have
restitution determined within ninety-one days by requesting a
hearing date outside the ninety-one days.
9
2.
Waiver
¶
12 "Constitutional and statutory rights can be waived or
forfeited." Richardson v. People, 2020 CO 46,
¶ 24. With respect to either a constitutional right or a
statutory right, waiver is "the intentional
relinquishment of a known right or privilege."
Id. (quoting People v. Rediger, 2018 CO 32,
¶ 39).
¶
13 Defense counsel requested a hearing outside the
ninety-one-day period before Weeks was decided. But
at the time, the restitution statute stated, as it does now,
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." § 18-1.3-603(1)(b), C.R.S.
2019. And before defense counsel requested that the hearing
be set outside the ninety-one-day period, at least one
published decision by a division of this court resolved the
timeliness issue largely as the supreme court did later in
Weeks. See Turecek, ¶ 25 (holding that
the deadline applies to the court's determination of
restitution and reversing the order); see also People v.
Perez, 2020 COA 83, ¶¶ 18-27 (discussing the
historical view that the deadline in section
10
18-1.3-603(1)(b) applies to the court), overruled in part
by Weeks, 2021 CO 75, cert. granted, judgment
vacated, and case remanded, (Colo. No. 20SC559, Dec. 6,
2021) (unpublished order). Therefore, at the time defense
counsel requested that a restitution hearing be set outside
the ninety-one-day period, he was asking the trial court to
act outside the timeframe proscribed by statute and case law.
By doing so, he intentionally relinquished a known
right.[1] See Rediger, ¶ 39.
¶
14 Finally, to the extent Babcock contends that he also had a
right to have the trial court make an express finding of good
cause to extend the deadline within the original ninety-one
days, and he did not waive that right, we disagree. The
requirement that the trial court make an express finding of
good cause to extend the deadline within the original
ninety-one days is a "statutory procedure outlined in
Weeks" that allows the trial court to retain
its authority to impose restitution beyond the original
ninety-one-day period. See People v. Tennyson, 2023
COA 2, ¶¶ 2, 25-29. It is not a defendant's
right.
11
¶
15 Accordingly, we conclude that Babcock waived his challenge
to the timeliness of the restitution order, and we therefore
do not address the merits of that challenge. See
Rediger, ¶ 40 (stating that waiver
"extinguishes error, and therefore appellate
review").
III.
Sufficiency of the Evidence
¶
16 We disagree with Babcock's contention that
insufficient evidence supported the restitution award for the
medical bills because the People failed to prove (1) that his
conduct proximately caused the losses incurred and (2) the
amount of restitution.
A.
Standard of Review
¶
17 Both parties agree that we review de novo Babcock's
sufficiency challenge to the restitution order, including his
challenge to the court's determination that Babcock
proximately caused the losses incurred. See People v.
Barbre, 2018 COA 123, ¶ 25 ("[T]he appropriate
standard is to review de novo whether the evidence . . .
establishes by a preponderance of the evidence that the
defendant caused that amount of loss."). We note,
however, that the appropriate standard of review is far from
clear. See People v. Moss, 2022 COA 92, ¶ 11
(pointing out the different standards of review used in
reviewing sufficiency challenges to restitution
12
orders); People v. Martinez, 2022 COA 28, ¶ 14
(applying the abuse of discretion standard of review in
reviewing the district court's determination that the
defendant's action proximately caused the victim's
losses) (cert. granted Oct. 24, 2022);
Martinez, ¶ 60 (J. Jones, J., specially
concurring) (reasoning that proximate cause for restitution
purposes is a question of fact and as such should be reviewed
for clear error). But because the parties do not raise this
issue, and because our outcome would be the same under any of
these approaches, we do not delve into the differences that
may exist among these standards. See Moss, ¶
11.
¶
18 Electing to apply the standard invoked by both parties, we
review the record de novo to determine whether the evidence
was sufficient in both quantity and quality to support a
restitution award. Barbre, ¶ 25; Dempsey v.
People, 117 P.3d 800, 807 (Colo. 2005). In doing so, we
evaluate "whether the evidence, both direct and
circumstantial, when 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." Barbre, ¶ 25. "As with a
sufficiency challenge to a conviction, however, '[w]e
will not disturb a district court's findings and
conclusions if the
13
record supports them, even though reasonable people might
arrive at different conclusions based on the same
facts.'" Moss, ¶ 11 (quoting
People v. Dyson, 2021 COA 57, ¶ 15).
"Thus, our de novo determination is whether the
prosecution presented sufficient evidence to convince a
reasonable fact finder by a preponderance of the evidence of
the amount of restitution owed." Id.
B.
Applicable Law
¶
19 Individuals convicted of criminal behavior must "make
full restitution to those harmed by their misconduct."
§ 18-1.3-601(1)(b), C.R.S. 2022. Restitution "means
any pecuniary loss suffered by a victim . . . proximately
caused by an offender's conduct . . . that can be
reasonably calculated and recompensed in money." §
18-1.3-602(3)(a). "Proximate cause in the context of
restitution is defined as a cause which in natural and
probable sequence produced the claimed injury and without
which the claimed injury would not have been sustained."
People v. Rivera, 250 P.3d 1272, 1274 (Colo.App.
2010). The prosecution must prove by a preponderance of the
evidence that the defendant's conduct proximately caused
the victim's loss and the amount of that loss. People
v. Henry, 2018 COA 48M, ¶ 15.
14
C.
Analysis
1.
Proximate Cause
¶
20 We disagree with Babcock's contention that the People
failed to prove by a preponderance of the evidence that he
proximately caused I.B.'s injuries, which resulted in the
medical bills.
¶
21 Babcock said that I.B., then two years old, threw a
tantrum because she did not want to go to bed, and in the
process, she launched herself from his arms and hit her chin
on the bed's railing. I.B. was sluggish the following
morning and was throwing up by the afternoon. Babcock later
found I.B. unconscious on the floor and shook her to wake her
up.
¶
22 At the restitution hearing, Babcock testified that he was
anxious and was not as gentle as he could have been in
shaking I.B. when he found her unconscious. The evidence
presented at the restitution hearing showed that Babcock was
taking care of I.B. by himself around the time she exhibited
symptoms.
¶
23 I.B. was taken to a medical center by ambulance the
evening Babcock shook her. She had a brain bleed and was
airlifted to a children's hospital.
15
¶
24 Dr. Daniel Lindburg treated I.B. and concluded I.B.'s
injuries - a subdural hematoma and retinal hemorrhaging -
were inconsistent with Babcock's account that I.B. had
fallen. Although Dr. Lindburg could not place the cause of
the injuries within an exact timeframe, he said that vomiting
is a symptom of a head injury and loss of consciousness is a
significant event likely following an abuse incident. Dr.
Lindburg said that I.B.'s injuries were caused by abuse.
He explained that it is possible that there were multiple
incidents of abuse or one incident.
¶
25 A police officer interviewing Babcock told him that
I.B.'s injuries were caused by I.B. being shaken, but it
is unclear why the police officer thought that. And while Dr.
Lindburg said that I.B. would have started showing symptoms
almost immediately after being shaken, or soon thereafter,
this statement appears to be in response to the
police officer's theory that shaking was the cause of her
injuries - not the predicate for that theory. Indeed, I.B.
was already showing symptoms of abuse - vomiting and loss of
consciousness - before Babcock shook her.
¶
26 In other words, nothing in the record of the restitution
hearing indicates that Dr. Lindburg thought that I.B.'s
injuries stemmed
16
solely from Babcock shaking her when he found her
unconscious. Rather, Dr. Lindburg's opinion was that
I.B.'s head injuries were inconsistent with Babcock's
account and were instead caused by one or more incidents of
abuse. And Babcock was the only person taking care of I.B.
when she started exhibiting symptoms of having been abused.
¶
27 Thus, based on the evidence presented, the prosecution
provided sufficient evidence to enable the trial court to
find by a preponderance of the evidence that Babcock's
conduct proximately caused I.B.'s need for the medical
treatment referenced in the medical bills.
2.
Restitution Amount
¶
28 Babcock also contends that the People did not prove the
amount of restitution by a preponderance of the evidence. The
People contend that Babcock waived his challenge to the
amount of restitution because at the restitution hearing,
defense counsel said, "I believe it's clear that the
dispute here is proximate cause. It is not the amount of
money . . . which was tendered in the Prosecution's
restitution exhibit, which, I believe is approximately twelve
thousand dollars." In other words, Babcock acknowledged
at
17
the hearing that the evidence of the amount of
restitution was sufficient. Whether this was a waiver or a
concession, he cannot now be heard to make the exact opposite
argument.
¶
29 But even if we assume the challenge is properly before us,
we agree with the People that they proved the amount of
restitution by a preponderance of the evidence.
¶
30 The prosecutor submitted documents showing the amount paid
for I.B.'s medical bills through March 9, 2020, totaling
$12,258.83.[2] The bills showed the date of service,
medical provider, claim type, diagnosis code, diagnosis
description, billed amount, and amount paid.
¶
31 No record evidence from the restitution hearing calls into
question the accuracy of these amounts.[3] The trial court
was
18
therefore justified in relying on the medical bills in
determining the amount of restitution. See People v.
Welliver, 2012 COA 44, ¶ 6 (concluding that the
court was justified in relying on the presentence report to
determine the amount of restitution when the defendant did
not object to the amount).
IV.
Disposition
¶
32 The restitution order is affirmed.
JUDGE
TAUBMAN and JUDGE BERGER concur.
---------
Notes:
[*]Sitting by assignment of the
Chief Justice under provisions of Colo. Const. art. VI,
§ 5(3), and § 24-51-1105, C.R.S. 2022.
[1] The People do not argue that this was
an invited error.
[2] Babcock's contention that the
prosecution only sought restitution for medical bills through
March 9, 2019, based on the prosecutor's mistake in
saying "2019" at the hearing, is unavailing given
the written request the prosecutor submitted before the
hearing, which sought restitution for medical bills through
March 9, 2020, and the supporting medical bills, which
contained dates in 2020.
[3] To the extent Babcock contends that
the People were required to have doctors and employees from
the agency that paid I.B.'s medical bills testify, we
disagree. The rules of evidence are not applicable at
restitution hearings, and the court is permitted to rely on
hearsay and documentary evidence. People v. Vasseur,
2016 COA 107, ¶¶ 20-21; see also People in
Interest of A.V., 2018 COA 138M, ¶ 35 ("[T]he
prosecution may rely solely on documentary evidence to meet
its burden."). And Babcock never objected to the
prosecutor proceeding this way.