The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY July 25, 2019
2019COA111
No. 17CA0775, People v. Hernandez — Criminal Law — Sentencing — Restitution; Criminal Procedure — Presence of Defendant; Constitutional Law — Due Process
In this appeal of a restitution order, a division of the court of
appeals concludes that a defendant has a right to be present at a
restitution hearing. And based on the particular facts presented,
the trial court plainly erred by holding the restitution hearing in
Hernandez’s absence, despite his attorney’s attempted but
ineffective waiver of his presence. COLORADO COURT OF APPEALS 2019COA111
Court of Appeals No. 17CA0775 Weld County District Court No. 14CR2052 Honorable Thomas J. Quammen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joey Ray Hernandez,
Defendant-Appellant.
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE WEBB Furman and Brown, JJ., concur
Announced July 25, 2019
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 In this appeal of a restitution order, defendant, Joey Ray
Hernandez, presents a novel question in Colorado — does a
defendant have a right to be present at a restitution hearing? We
conclude that the answer is “yes.” Turning to the particular facts
presented, next we conclude that the trial court plainly erred by
holding the restitution hearing in Hernandez’s absence, despite his
attorney’s attempted but ineffective waiver of his presence. So, the
restitution order must be vacated and the case remanded for
further proceedings. But if on remand the trial court determines
that Hernandez had authorized his attorney to waive his presence,
a new restitution hearing need not be held.
I. Background
¶2 A jury convicted Hernandez of first degree assault for having
stabbed the victim. The trial court imposed a sentence to the
custody of the Department of Corrections and gave the prosecutor
sixty days to file a notice of restitution. The prosecutor timely
sought restitution of $2518.82 to compensate the Crime Victim
Compensation Fund.
¶3 Defense counsel filed a general objection. But neither counsel
nor Hernandez appeared at two scheduled status conferences.
1 Counsel did not respond to the trial court’s direction to file a
clarification of his objection. Nor did counsel request the court to
perform an in camera review of any information related to the claim.
¶4 Eventually, defense counsel — but not Hernandez — appeared
at the restitution hearing. Counsel explained, “I was going to writ
him here. I didn’t do that. But given all the circumstances in this
case, I’m prepared to proceed to [sic] restitution hearing without his
presence.” The court did not reply to this statement and the
hearing went forward.
¶5 The prosecutor called the Crime Victim Compensation
Coordinator for the Nineteenth Judicial District as the sole witness.
The coordinator described how the Crime Victim Compensation
Board (CVCB) evaluates restitution applications. Where medical
expenses are involved, the review includes looking at the nature of
the services provided in light of the offense and at the dates of those
services compared to the date of the offense. Next, the coordinator
identified the victim’s application. Then she explained that the
process for determining proximate cause of the medical expenses
had been followed in this case. Defense counsel neither cross-
examined her nor presented any evidence.
2 ¶6 The trial court found that the prosecutor had proved by a
preponderance of the evidence that the medical expenses described
in the restitution notice had been proximately caused by
Hernandez’s criminal conduct. The court awarded the amount
requested.
II. Issues Presented, Preservation, and Standard of Review
¶7 Hernandez raises three contentions.
• Despite the statements of defense counsel, the trial court erred
by proceeding with the restitution hearing in his absence.
• Applying the post-assault amendment to section 18-1.3-603,
C.R.S. 2018, which lessens the prosecution’s burden of
proving causation, violated the Ex Post Facto Clauses of the
United States and Colorado Constitutions.
• Applying section 18-1.3-603(10) also violated Hernandez’s due
process rights by creating a rebuttable presumption of
causation that he cannot overcome because of limitations on
information held by a CVCB.
¶8 The Attorney General asserts that Hernandez waived the first
contention and challenges preservation of the second and third
contentions. Hernandez disputes waiver, concedes that he did not
3 preserve the first or second contentions, and argues that he
preserved the third contention. In any event, he urges us to
exercise our discretion and take up his statutory contentions in the
interest of judicial economy.
¶9 We reject the Attorney General’s waiver assertion but agree
that Hernandez did not preserve the third contention. We exercise
our discretion in the interest of judicial economy, but only to a
point.
¶ 10 Alleged violation of a defendant’s due process right to be
present at all critical stages of a criminal proceeding is a
constitutional question reviewed de novo. People v. Wingfield, 2014
COA 173, ¶ 13. And “Crim. P. 43(a) also requires as much, subject
to a few exceptions.” People v. Janis, 2018 CO 89, ¶ 16 n.2.
¶ 11 Where this due process right has been violated and the error
preserved, reversal is required unless the Attorney General proves
that the error was harmless beyond a reasonable doubt. Zoll v.
People, 2018 CO 70, ¶ 17. If the error is unpreserved — but not
waived — plain error review applies. See Hagos v. People, 2012 CO
63, ¶ 14. Under that test, reversal occurs only if the error was
obvious and so undermined the fundamental fairness of the
4 proceeding that it casts serious doubt on the reliability of the
outcome. Id.
¶ 12 No Colorado case has addressed whether violation of a
defendant’s right to be present under Crim. P. 43 is also reviewed
de novo. However, we discern no reason to apply a different
standard of review to the same right merely because the right is
guaranteed by rule rather than by statute. But reversal for failure
to follow a court rule is subject to the harmless error limitation in
Crim. P. 52(a) rather than to the constitutional harmless error
standard. See Dawson v. People, 30 P.3d 213, 220 (Colo. 2001)
(Crim. P. 11).
¶ 13 The constitutionality of a statute is also subject to de novo
review. See, e.g., Coffman v. Williamson, 2015 CO 35, ¶ 13. The
reviewing court presumes the statute is constitutional. Morris-
Schindler, LLC v. City & Cty. of Denver, 251 P.3d 1076, 1084 (Colo.
App. 2010). And “[i]n both facial and as-applied challenges, the
challenging party must prove that a statute is unconstitutional
beyond a reasonable doubt.” Heotis v. Colo. State Bd. of Educ.,
2019 COA 35, ¶ 17.
5 III. The Law of Restitution
¶ 14 Criminal defendants must “make full restitution to those
harmed by their misconduct.” § 18-1.3-601, C.R.S. 2018.
“‘Restitution’ means any pecuniary loss suffered by a victim and
includes but is not limited to all out-of-pocket expenses . . . .”
§ 18-1.3-602(3)(a), C.R.S. 2018. “The prosecution bears the burden
of proving, by a preponderance of the evidence, the amount of
restitution owed and, generally, that the defendant’s conduct was
the proximate cause of the victim’s loss.” People v. Henry, 2018
COA 48M, ¶ 15.
¶ 15 A CVCB exists in each judicial district. § 24-4.1-103(1), C.R.S.
2018. The restitution statute’s definition of “victim” includes these
boards. § 18-1.3-602(4)(a)(IV). Losses compensable by a CVCB
include “[r]easonable medical and hospital expenses.”
§ 24-4.1-109(1)(a), C.R.S. 2018.
¶ 16 Documents submitted to a CVCB for purposes of receiving
compensation are “confidential” under section 24-4.1-107.5(2),
C.R.S. 2018. As a result, “a defendant generally cannot obtain
access to them.” Henry, ¶ 28.
6 ¶ 17 But in restitution proceedings, section 24-4.1-107.5(3) creates
a two-step process through which a defendant can obtain
information in CVCB records. First, the defendant may make a
request that “is not speculative and is based on an evidentiary
hypothesis that warrants an in camera review.” Id. Second, after
conducting such a review, the court may release information if it
finds that the information:
(a) Is necessary for the defendant to dispute the amount claimed for restitution; and
(b) Will not pose any threat to the safety or welfare of the victim, or any other person whose identity may appear in the board’s records, or violate any other privilege or confidentiality right.
Id.
¶ 18 After a CVCB determines that compensation should be
awarded, it submits a statement to the court administrator, “who
shall remit payment in accordance with the statement of award.”
§ 24-4.1-108(3), C.R.S. 2018. Then under section
18-1.3-603(10)(a), “[i]f, as a result of the defendant’s conduct,” a
CVCB has “provided assistance to or on behalf of a victim,” a trial
court must “presume[]” that the amount of the assistance that the
7 CVCB paid out was “a direct result of the defendant’s criminal
conduct,” which the court “must . . . consider[] . . . in determining
the amount of restitution ordered.”
IV. The Trial Court Plainly Erred by Proceeding with the Restitution Hearing in Hernandez’s Absence
¶ 19 First, we consider whether a restitution hearing is a
proceeding at which a defendant has a right to be present. Because
we conclude that it is, we next consider whether counsel can
unilaterally waive a defendant’s presence. We conclude that
counsel cannot do so. Last, because Hernandez did not preserve
this issue, we consider whether the trial court committed plain
error by proceeding in Hernandez’s absence. We conclude that
because plain error occurred, the restitution order must be vacated.
A. The Restitution Hearing Is a Proceeding at which a Defendant Has a Right to be Present
¶ 20 Everyone would agree that as a matter of due process, both
the United States and Colorado Constitutions “guarantee the right
of a criminal defendant to be present at all critical stages of the
prosecution.” People v. White, 870 P.2d 424, 458 (Colo. 1994).
Still, because not every step in a criminal proceeding is a critical
stage, “[t]he right to be present is not absolute.” Id.
8 ¶ 21 Rather, a “critical stage of criminal proceedings is one where
there exists more than a minimal risk that the absence of the
defendant might impair his or her right to a fair trial.” People v.
Cardenas, 2015 COA 94M, ¶ 22. In other words, “due process does
not require the defendant’s presence when it would be useless or
only slightly beneficial.” People v. Isom, 140 P.3d 100, 104 (Colo.
App. 2005).
¶ 22 In Colorado, “[s]entencing is a critical stage of a criminal
proceeding.” People v. Luu, 983 P.2d 15, 19 (Colo. App. 1998). And
“[r]estitution is part of the district court’s sentencing function in
criminal cases.” People v. Vasseur, 2016 COA 107, ¶ 16. Indeed, “a
sentence is illegal if the court fails to consider restitution,” and “a
restitution order is appealable in accordance with ‘the statutory
procedures applicable to the appellate review of a felony sentence.’”
Id. (citation omitted).
¶ 23 In other jurisdictions, restitution hearings are a critical stage.
See, e.g., L.W. v. State, 163 So. 3d 598, 600 (Fla. Dist. Ct. App.
2015) (right to be present); Gibson v. State, 737 S.E.2d 728, 730
(Ga. Ct. App. 2013) (same); State v. Ball, 293 P.3d 816 (Kan. Ct.
App. 2013) (same); State v. Rodriguez, 889 N.W.2d 332, 334 (Minn.
9 Ct. App. 2017) (same); cf. State v. Alspach, 554 N.W.2d 882, 884
(Iowa 1996) (right to counsel); State v. Jamieson, 414 P.3d 559, 567
(Utah Ct. App. 2017) (same), cert. granted, 421 P.3d 439 (Utah May
9, 2018) (No. 2018140). While the Attorney General challenges the
rationale in some of these cases, he cites no directly contrary
authority. Nor have we found any.
¶ 24 But does the “useless or only slightly beneficial” test serve to
limit the “critical stage” analysis or only to identify case-specific
circumstances where a defendant’s absence at a critical stage is
harmless? In our view, sentencing — including imposition of
restitution — is a critical stage at which a defendant has a due
process right to be present. Still, if particular facts show that the
defendant’s presence would be useless or only slightly beneficial,
proceeding in the defendant’s absence will be harmless beyond a
reasonable doubt. See People v. Munsey, 232 P.3d 113, 120 (Colo.
App. 2009) (“The record in this case shows that defendant’s
presence [when the court responded to a jury question] would have
been useless, rendering any constitutional error harmless beyond a
reasonable doubt.”). But our inquiry does not end here.
10 ¶ 25 Under Crim. P. 43, entitled “Presence of the Defendant,” the
defendant “shall be present . . . at the imposition of sentence.”
Although no Colorado case has applied this rule to a restitution
hearing, a closer look shows that a restitution hearing is a
component of sentencing at which the defendant must be present.
Specifically, paragraph (e)(2) extends the option of presence “by the
use of an interactive audiovisual device” to “(VI) Restitution
hearings.”
¶ 26 Like the constitutional right to be present, however, the right
to be present under Crim. P. 43 is not absolute. “For instance, a
defendant need not be present at a conference or argument on a
question of law.” People v. Gallegos, 226 P.3d 1112, 1120 (Colo.
App. 2009) (citing Crim. P. 43(c)(2)). While Crim. P. 43(c) identifies
“situations” in which a defendant’s presence is not required,
restitution proceedings are not among those listed.
B. Defense Counsel Could Not Waive Hernandez’s Presence
¶ 27 The trial court may have chosen to proceed in Hernandez’s
absence because defense counsel not only failed to object to
proceeding, but invited the court to do so. In a felony proceeding,
however, a defendant’s right to be present “cannot be waived by
11 counsel.” Penney v. People, 146 Colo. 95, 101, 360 P.2d 671, 673
(1961); accord Wingfield, ¶ 19 (“[D]efense counsel cannot waive a
defendant’s right to presence at critical stages of criminal
proceedings.”). Nor is this a situation where Hernandez was
initially present and then voluntarily absented himself from the
restitution hearing. See Crim. P. 43(b)(1). To the contrary, the
record does not show that Hernandez even knew of the restitution
hearing, much less that he authorized his counsel to waive his
presence.
¶ 28 The Attorney General does not argue otherwise. Instead, he
requests only that if we set aside the restitution order, the trial
court hear evidence and make a finding on counsel’s authorization.
See Janis, ¶ 17 (“A defendant may waive her right to be present
either expressly or through her conduct.”). We accede to this
request in formulating the scope of the remand.
¶ 29 In short, Hernandez “is entitled to plain error review because
his claim was merely forfeited and not validly waived.” People v.
Mumford, 275 P.3d 667, 672 (Colo. App. 2010), aff’d, 2012 CO 2.
12 C. The Error Was Plain
¶ 30 Next we consider whether the error was obvious and, if so,
whether it cast serious doubt on the reliability of the restitution
award.
¶ 31 Under the plain error standard, “the defendant bears the
burden to establish that an error occurred, and that at the time the
error arose, it was so clear cut and so obvious that a trial judge
should have been able to avoid it without benefit of objection.”
People v. Conyac, 2014 COA 8M, ¶ 54. “An error is obvious if it
contravenes either a clear statutory command, a well-settled legal
principle, or Colorado case law.” People in Interest of T.C.C., 2017
COA 138, ¶ 15.
¶ 32 Colorado case law has not addressed whether a defendant has
a constitutional or statutory right to be present when restitution is
imposed. See, e.g., People v. Howard-Walker, 2017 COA 81M, ¶ 57
(Any error was not obvious because “no Colorado case has directly
addressed the distinction between lay and expert testimony with
respect to whether a gun depicted in a video is real or fake.”), rev’d
on other grounds, 2019 CO 69. The handful of out-of-state cases
cited above hardly establishes “a well-settled legal principle.” But
13 while no statute recognizes a defendant’s right to be present, recall
that Crim. P. 43 does so.
¶ 33 No Colorado case has applied the “clear statutory command”
aspect of obviousness to a court rule. Cf. People v. Smalley, 2015
COA 140, ¶ 85 (“The error was obvious because the court’s
obligation to afford a defendant an opportunity to speak at
sentencing was well-settled under Colorado statutes, court rules,
and case law.”) (emphasis added). However, because we cannot
discern a principled basis on which to afford court rules less weight
than statutes in determining obviousness, we conclude that the
error was obvious.
¶ 34 “The defendant must also establish that the error was so grave
that it undermined the fundamental fairness of the trial itself . . . as
to cast serious doubt on the reliability of the conviction.” Conyac,
¶ 54. In deciding whether Hernandez has met this burden, three
considerations tilt the field in his favor.
¶ 35 First, the threshold is low. See, e.g., Wingfield, ¶ 18 (“Due
process does not require the defendant’s presence when his or her
presence would be useless.”). Second, where a defendant was
absent — and here, through no fault of his own — determining
14 what the defendant’s presence could have added will often be
difficult. See People v. Safety Nat’l Cas. Corp., 366 P.3d 57, 62 (Cal.
2016) (“[T]he issue often involves determining whether the
defendant’s absence from a proceeding constitutes a denial or
violation of due process.”). And third, a defendant’s presence at
sentencing “serves to advance the right of the accused to be
informed directly of his sentence and to advance society’s interest in
the appearance of fairness.” Luu, 983 P.2d at 19.
¶ 36 According to Hernandez, his presence at the hearing would
have been useful because he and the victim were acquaintances in
Fort Lupton, which is a small town, and he “could have provided
defense counsel with critical information disputing the nature and
extent of [the victim’s] injury.” See Zoll, ¶ 27 (noting the absence of
any need “for Zoll to provide feedback to his counsel about any
matter” as a 911 tape was replayed for the jury). Still, on the
present record, what information Hernandez possessed is unknown
and, more importantly, unknowable.
¶ 37 The Attorney General responds that because Hernandez lacks
medical expertise, he could not have opined on either the extent of
the victim’s injuries or the need for treatment. Also, the Attorney
15 General continues, albeit without record citations, Hernandez “was
not present when the victim was taken to the emergency room or
during any subsequent examinations or treatment.”
¶ 38 Yet, even if all that the Attorney General says is true,
Hernandez bonded out December 15, 2014 — thirty days after the
charged offense — and reimbursement included undescribed
medical services rendered on March 12 and 19, 2015 — four
months after the stabbing. So, at least in theory, had Hernandez
been present at the hearing, he could have prompted his counsel to
ask the coordinator whether she was aware that the victim had
been physically active and appeared healthy between December 15
and March 12. And if she denied such knowledge, he could have
testified to his observations of the victim.
¶ 39 Either way, the need for ongoing treatment, the nature of
which is not disclosed, could have been undercut. For this reason,
the Attorney General’s reliance on People v. Rosales, 134 P.3d 429,
433 (Colo. App. 2005) (“Here, defendant has never asserted that no
victim suffered any pecuniary loss . . . .”), is misplaced.
¶ 40 Instead, because restitution had not yet been addressed, the
hearing was like imposing a new sentence based on new evidence.
16 See People v. Nelson, 9 P.3d 1177, 1178 (Colo. App. 2000) (“[W]hen
the court imposes a new sentence,” the defendant must be
present.). By the same token, it was unlike a court merely
announcing its decision, based on evidence received earlier when
the defendant was present. See Luu, 983 P.2d at 19 (“[D]efendant
was present at both his sentencing and resentencing hearings,
when the information relied upon by the court for its sentencing
decision was presented.”). In other words, while a defendant’s
presence may not be beneficial “at a conference or argument on a
question of law,” Gallegos, 226 P.3d at 1120, the proximate cause
issue to be resolved at the restitution hearing raised a question of
fact. See Wagner v. Planned Parenthood Fed’n of Am., Inc., 2019
COA 26, ¶ 27 (“[P]roximate cause is typically a question of
fact . . . .”) (citation omitted).
¶ 41 In sum, we conclude that the restitution award must be
vacated as plain error.
D. The Attorney General Has Not Shown that Hernandez’s Absence Was Harmless Beyond a Reasonable Doubt
¶ 42 Having resolved the plain error question in Hernandez’s favor,
how we could in the next breath conclude that his absence was
17 harmless beyond a reasonable doubt is at best unclear. Be that as
it may, because the Attorney General argues that the error was
harmless beyond a reasonable doubt, we address it briefly.
¶ 43 This argument misses the mark in two ways. First, under
constitutional harmless error review,
the classic formulation for applying the harmless beyond a reasonable doubt test to improperly admitted evidence — see, e.g., People v. Frye, 2014 COA 141, ¶ 15 (considering whether the improperly admitted evidence contributed to the verdict, not whether the same verdict would probably have resulted regardless of the tainted evidence) — [is not] as easy to apply where evidence has been improperly excluded.
People v. Dunham, 2016 COA 73, ¶ 64. Second, proceeding without
Hernandez present raises a problem like that noted in Dunham —
who knows what he might have said? And third, the Attorney
General’s burden — harmless beyond a reasonable doubt — is a
“high bar.” People v. Godinez, 2018 COA 170M, ¶ 84.
¶ 44 In the end, we conclude that the restitution order must be
vacated and the case remanded. On remand, the trial court must
hold a hearing, with Hernandez present. At that hearing, the court
must first determine whether Hernandez authorized his counsel to
18 waive his presence at the earlier hearing. If the court so concludes,
it shall reinstate the restitution award, subject to addressing any
statutory issues that Hernandez may raise, as discussed below. If
the court concludes otherwise, it shall proceed to hear both parties’
evidence concerning restitution and make findings, again subject to
any statutory issues that Hernandez may raise.
V. We Decline to Address Whether Application of Section 18-1.3-603(10) Constitutes an Ex Post Facto Violation
¶ 45 The assault occurred on November 16, 2014. By the time of
the restitution hearing in 2017, the General Assembly had amended
the restitution statute by adding subsection (10) to section
18-1.3-603. Ch. 60, sec. 6, § 18-1.3-603, 2015 Colo. Sess. Laws
147. Recall, this subsection creates a rebuttable presumption that
assistance provided by a CVCB to or for the benefit of a victim was
the “result of the defendant’s conduct.” In contrast, before this
amendment, “a compensation board’s payment did not, by itself,
establish its right to restitution. [A] trial court was still required to
determine whether the amount paid was proximately caused by the
defendant’s criminal conduct.” Henry, ¶ 20.
19 ¶ 46 Hernandez contends that because the new statutory
presumption reduces the prosecution’s burden in proving
restitution, applying it to him violated the ex post facto prohibition
in article I, section 10 of the United States Constitution and article
II, section 11 of the Colorado Constitution. But the parties’
disagreement on exactly what the trial court did at the end of the
restitution hearing clouds this issue. According to Hernandez, the
court applied subsection (10). According to the Attorney General,
the court appropriately exercised its discretion based on the
evidence presented.
¶ 47 Two factors confound resolving this disagreement. On the one
hand, the court did not refer to subsection (10) at all. On the other
hand, and perhaps for this reason, Hernandez did not argue ex post
facto below. Because we decline to address the merits of this issue,
we need not consider the consequences of Hernandez’s failure to
have preserved it.
¶ 48 Either way, because we have vacated the restitution order, on
remand Hernandez can raise, and if he does so the trial court must
address, the applicability of subsection (10). But instead of waiting,
should we resolve the ex post facto question now?
20 ¶ 49 True, as Hernandez points out, a division of this court has
exercised its discretion and addressed an unpreserved ex post facto
challenge to “promote efficiency and judicial economy.” People v.
DeWitt, 275 P.3d 728, 730 (Colo. App. 2011). He argues that we
should do so because “[a]ll of the facts necessary for resolution of
the constitutional challenge here are undisputed and appear in the
record before us.” Wood v. Beatrice Foods Co., 813 P.2d 821, 822
(Colo. App. 1991).
¶ 50 We decline his invitation for two reasons. First, “under the
doctrine of constitutional avoidance, we address constitutional
issues only if necessary.” People v. Valdez, 2017 COA 41, ¶ 6
(collecting cases). Second, probing the depths of ex post facto law
would not necessarily promote judicial economy.
¶ 51 On remand, if the trial court finds that Hernandez authorized
counsel to waive his appearance and reinstates the restitution
award, Hernandez can then raise his ex post facto argument and
ask the court to clarify whether it relied on subsection (10) in
determining proximate cause. Likewise, if the court finds no such
authorization and holds another hearing, Hernandez can also raise
this argument. Either way, the court may moot the ex post facto
21 issue by explaining that it did not — or does not — rely on
subsection (10).
¶ 52 Therefore, we leave the ex post facto question for another day.
VI. We also Decline to Address Whether the Rebuttable Presumption in Section 18-1.3-603(10) Violates Due Process as Applied, but Conclude that this Statute Does not Violate Due Process on its Face
¶ 53 Finally, Hernandez contends that because section
18-1.3-603(10) creates a rebuttable presumption and the
information submitted to the CVCB is confidential, he “cannot
contest the CVCB’s request for restitution,” thus denying him due
process. See Heiner v. Donnan, 285 U.S. 312, 329 (1932) (“[A]
statute creating a presumption which operates to deny a fair
opportunity to rebut it violates the due process clause of the
Fourteenth Amendment.”).
¶ 54 But wait. As discussed in the previous section, we do not
know whether the trial court applied, or whether if it conducts a
new hearing it will apply, the rebuttable presumption in section
18-1.3-603(10). So, for the same reasons we decline to address
Hernandez’s ex post facto contention, should we also decline to
address his due process contention?
22 ¶ 55 Answering this question is more difficult because even if the
trial court did not, and on remand does not, apply section
18-1.3-603(10), Hernandez could still be on the horns of a dilemma:
to obtain an in camera review of information held by the CVCB, he
must present “an evidentiary hypothesis.” § 24-4.1-107.5(3). Yet,
without knowing what information the CVCB has, he says that he
cannot present such a hypothesis.
¶ 56 Unsurprisingly, the Attorney General offers an easy answer —
because Hernandez did not request an in camera review, much less
raise a supposedly related due process problem in the trial court,
we should not address this issue. To the extent that Hernandez
asserts unconstitutionality as applied, the Attorney General is
correct. Hernandez’s failures below resulted in an inadequate
record. And “we cannot determine the constitutionality of an as
applied challenge without a complete record of relevant facts.”
People v. Torres, 224 P.3d 268, 273 (Colo. App. 2009) (collecting
cases).
¶ 57 To the extent that his challenge is facial, however, lack of
preservation is not a fatal flaw. See, e.g., Fuentes-Espinoza v.
People, 2017 CO 98, ¶ 19 (“We have long made clear that we will
23 exercise our discretion to review unpreserved constitutional claims
when we believe that doing so would best serve the goals of
efficiency and judicial economy.”). And because a facial challenge
deals only with the statutory language, the challenge does not
depend on factual development in the record.
¶ 58 Exercising our discretion here might further judicial economy
by saving trial courts from having to revisit this question. And in
any event, the principle that “a facial challenge can only succeed if
the complaining party can show that the law is unconstitutional in
all its applications,” Dallman v. Ritter, 225 P.3d 610, 625 (Colo.
2010), provides a ready answer.
¶ 59 Consider the “Claimant Payment Summary” introduced during
the restitution hearing. It included the names of two payees —
Heather L. Rogers and SCL Health System — along with the
amounts paid and the dates of payments. As to Ms. Rogers, who is
not otherwise identified, because the payment could have been for
anything, forming an “evidentiary hypothesis” might be difficult. In
contrast, as to SCL, knowing that the victim had suffered a knife
wound and that SCL is a health care provider, Hernandez could
have easily formed such an hypothesis: “Defendant needs to
24 discover the nature and dates of the medical services provided to
ascertain the nexus, if any, to the injury sustained.”
¶ 60 In the end, because the statute is not unconstitutional in all
its applications, the facial challenge fails.
VII. Conclusion
¶ 61 The restitution order is vacated, and the case is remanded for
further proceedings consistent with this opinion.
JUDGE FURMAN and JUDGE BROWN concur.