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 March 12, 2020
2020COA39
No. 16CA2203, People v. Martinez-Chavez — Criminal Law — Sentencing — Restitution
Defendant appeals the trial court’s order imposing restitution
without a hearing. At sentencing, the People reserved restitution;
after sentencing, the People filed a motion for restitution.
Defendant filed a timely objection to the People’s motion for
restitution and requested a hearing. The People responded to
defendant’s objection. The trial court determined that all of the
objections raised in defendant’s response were legal arguments that
the court could resolve without a hearing, so it did. On appeal,
defendant contends that the trial court erred by resolving the
motion for restitution without an in-person hearing.
A division of the court of appeals holds that when restitution is
not addressed at a defendant’s sentencing hearing and is instead reserved at the request of the prosecution, if the defendant timely
objects to the restitution and demands a hearing, then the
defendant is entitled to an in-person hearing on the issue of
restitution. Based on this holding, the division reverses the
restitution order and remands the case for further proceedings,
including a restitution hearing. COLORADO COURT OF APPEALS 2020COA39
Court of Appeals No. 16CA2203 Garfield County District Court No. 14CR56 Honorable Denise K. Lynch, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jose C. Martinez-Chavez,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Terry and Berger, JJ., concur
Announced March 12, 2020
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jose C. Martinez-Chavez, appeals the trial court’s
order imposing restitution without a hearing. At sentencing, the
People reserved restitution; after sentencing, the People filed a
motion for restitution. Martinez-Chavez filed a timely objection to
the People’s motion for restitution and requested a hearing. The
People responded to Martinez-Chavez’s objection. The trial court
determined that all of the objections raised in Martinez-Chavez’s
response were legal arguments that the court could resolve without
a hearing, so it did. Martinez-Chavez contends that the trial court
erred by resolving the motion for restitution without an in-person
hearing.
¶2 We agree with Martinez-Chavez that the court should have
held a restitution hearing. We hold that when restitution is not
addressed at a defendant’s sentencing hearing and is instead
reserved at the request of the prosecution, if the defendant timely
defendant is entitled to an in-person hearing on the issue of
restitution. Therefore, we reverse the restitution order and remand
the case for further proceedings, including a restitution hearing.
1 I. Background
¶3 In April 2016, Jose Martinez-Chavez pleaded guilty to one
count of first-degree assault and one count of attempted sexual
assault on a child-victim less than fifteen years of age. The events
underlying his conviction occurred during late 2013 and early
2014, when he was living with his significant other (whom he
assaulted) and engaged in sexual conduct with her seven-year-old
daughter.
¶4 About two months later, Martinez-Chavez was sentenced to
fourteen years in the custody of the Department of Corrections. At
sentencing, the prosecutor indicated he had “forgot[ten]” to address
restitution, telling the court that “there is going to be some[,] likely
crime victim compensation request and counseling.” Based on this
representation, the trial court reserved restitution pursuant to
section 18-1.3-603(1)(b) and (2), C.R.S. 2019, giving the prosecution
ninety-one days to file a motion for restitution.
¶5 Thereafter, the People timely filed a motion for restitution,
seeking a total of $8553.40 in restitution in favor of the Ninth
Judicial District’s Crime Victim Compensation Board (CVCB). The
request broke down, as follows:
2 Category Amount
Medical Expenses $357.50
Mental Health Therapy $3240.00
Rent $3050.00
Utilities $106.25
Food Assistance $300.00
Subtotal $7053.75
Interest $1499.65
Total $8553.40
¶6 Fifteen days later, Martinez-Chavez filed a written objection
and requested a hearing. His objection began:
1. The People filed a Restitution Motion on or about August 23, 2016. In that motion, the prosecution asks for restitution to the Ninth Judicial District Crime Victim Compensation Fund for items that the defendant is not legally responsible for.
2. The defendant demands a hearing on restitution as provided by People v. Martinez, 16 P.3d 223 (Colo. App. 2007).
Martinez-Chavez also objected to the People’s requests for rent,
utilities, and food assistance, contending that he cannot be held
3 responsible for these “loss of support” expenses because he was not
working at the time these expenses were incurred. In addition, he
objected to the date that pre-judgment interest began to accrue, as
well as the post-judgment interest rate that the People requested.
Finally, he requested that the trial court, pursuant to section 24-
4.1-107.5, C.R.S. 2019, conduct an in camera review of the CVCB
records supporting the request for restitution and that the court
disclose those documents to him.
¶7 Two days later, the People filed a response, arguing that
Martinez-Chavez’s specific objections should be denied and that his
request for an in camera review of the CVCB’s documents should be
quashed.
¶8 The court denied most of Martinez-Chavez’s objections, but
agreed that food assistance was not covered under the Crime Victim
Compensation Act (CVC Act) and that interest should accrue only
from the date the CVCB paid the respective claim. The trial court
also denied Martinez-Chavez’s request for an in camera review of
the CVCB records, finding that he did not satisfy his burden of
providing a non-speculative evidentiary hypothesis for obtaining
such records. Finally, the trial court found that Martinez-Chavez’s
4 objection did not warrant a hearing because his “objections are
legal objections which the Court can rule on without a hearing” and
that a “hearing would not assist the Court in determining the issues
before it.” Based on these findings, the trial court entered a
restitution order in favor of the CVCB in the amount of $6753.75.
The restitution order reflected the denial of the $300 payment for
food assistance and the denial of pre-judgment interest.
II. Analysis
¶9 Martinez-Chavez raises three issues on appeal. First, he
contends that the trial court reversibly erred when it denied his
request for a hearing on restitution. Second, he contends that the
2015 amendments to the CVC Act and restitution statutory
scheme — creating a presumption that payments made by a CVCB
were proximately caused by a defendant’s conduct while further
limiting access to those records — are unconstitutional. Third, he
contends that the prosecution failed to prove by a preponderance of
the evidence that he was the proximate cause of the losses
underlying the restitution award.
¶ 10 We agree with Martinez-Chavez’s first contention: he was
entitled to the hearing he requested. Because we resolve this
5 appeal on the basis of the erroneous denial of a hearing, we reverse
and remand this case for a restitution hearing without reaching the
other two issues.
A. Legal Principles
¶ 11 Criminal defendants must “make full restitution to those
harmed by their misconduct.” § 18-1.3-601, C.R.S. 2019.
¶ 12 Each judicial district has a CVCB. § 24-4.1-103(1), C.R.S.
2019. A CVCB is responsible for making compensation awards to
crime victims and to the relatives of crime victims for losses
proximately caused by a criminal act. §§ 24-4.1-102(10), -108,
C.R.S. 2019. Compensable losses include, among other things,
medical expenses, mental health counseling, and loss of support to
dependents. § 24-4.1-109(1)(a), (f), (g), C.R.S. 2019.
¶ 13 If a CVCB awards compensation to a victim or other qualifying
person, the CVCB is eligible to seek and obtain restitution from a
defendant in his or her criminal proceeding. See § 18-1.3-
602(4)(a)(IV), C.R.S. 2019 (defining “victim” to include “[a]ny victim
compensation board that has paid a victim compensation claim”);
see also People v. Rivera, 250 P.3d 1272, 1275 (Colo. App. 2010)
(“The restitution statute provides that restitution may be ordered to
6 any victim compensation board that has paid a victim
compensation claim.”). Pursuant to a 2015 amendment to the CVC
Act, the statute further provides that “the amount of assistance
provided and requested by the crime victim compensation board is
presumed to be a direct result of the defendant’s criminal conduct
and must be considered by the court in determining the amount of
restitution ordered.” § 18-1.3-603(10)(a); see also Ch. 60, sec. 6,
§ 18-1.3-603, 2015 Colo. Sess. Laws 147; People v. Henry, 2018
COA 48M, ¶ 1.
¶ 14 In a restitution proceeding, the prosecution bears the burden
of proving by a preponderance of the evidence not only the victim’s
losses, but also that the victim’s losses were proximately caused by
the defendant’s criminal conduct. See People v. Randolph, 852 P.2d
1282, 1284 (Colo. App. 1992); see also People v. Vasseur, 2016 COA
107, ¶ 15.
B. Right to a Restitution Hearing
¶ 15 Martinez-Chavez contends that the trial court improperly
denied his request for a hearing on restitution. We agree and
conclude that the trial court erred by entering its restitution order
without first conducting the requested hearing.
7 1. Martinez Chavez Was Entitled to a Hearing Before Restitution Was Imposed
¶ 16 Restitution is an aspect of sentencing. See, e.g., Vasseur, ¶ 16
(“Restitution is part of the district court’s sentencing function in
criminal cases.”). Indeed, a sentence is illegal if a sentencing court
fails to address restitution. See, e.g., People v. Hernandez, 2019
COA 111, ¶ 22; People v. Barbre, 2018 COA 123, ¶ 20 (“[U]nder the
statutory scheme, every order of conviction of a felony,
misdemeanor, petty offense, or traffic misdemeanor offense ‘shall’
include an order imposing restitution based on the victim’s
pecuniary loss proximately caused by the defendant’s conduct.”)
(quoting §§ 18-1.3-602(3)(a), -603(1), C.R.S. 2019).
¶ 17 The trial court denied Martinez-Chavez’s request for a hearing
on the basis that his objections were “legal objections which the
Court can rule on without a hearing” and that a “hearing would not
assist the Court in determining the issues before it.”
¶ 18 Over the last two decades, however, divisions of this court
have repeatedly noted that a defendant is entitled to a restitution
hearing when one is requested. See, e.g., Vasseur, ¶ 15 (“When the
prosecution presents its evidence at a hearing, a defendant must
8 have the opportunity to contest the amount of the victim’s loss and
its causal link to the crime.”); Rivera, 250 P.3d at 1275 (“A court
may not order restitution without a hearing at which the
prosecution must prove the amount of the victim’s loss and its
causal link to the defendant’s conduct, and at which the defendant
may contest those matters.”); People v. Martinez, 166 P.3d 223, 225
(Colo. App. 2007) (“We therefore conclude that a court may not
order restitution without a hearing when the prosecution must
prove the amount of the victim’s loss and its causal link to the
defendant, and when defense counsel is present and prepared to
contest those matters.”); People v. Mata, 56 P.3d 1169, 1176 (Colo.
App. 2002) (“Here, the court did not determine a restitution amount
at the sentencing hearing, but a month later simply entered an
order specifying the amount. Thus, defendant had no opportunity
to controvert the victim’s claimed monetary damages.”); People v.
McGraw, 30 P.3d 835, 839 (Colo. App. 2001) (“We conclude,
however, that defendant had a right to a hearing to contest the
amount of restitution imposed.”).
¶ 19 The Attorney General points out that none of these decisions
directly address whether a defendant is entitled to an in-person
9 hearing when his objection and request for a hearing only raise
legal arguments in opposition to restitution. True as that may be,
the Attorney General does not bring a single case to our attention
where a restitution order has stood where a trial court denied a
defendant a requested hearing. Nor does the Attorney General cite
any authority for the proposition that a written objection is an
adequate substitute for a hearing when the defendant has
requested such a hearing.
¶ 20 As a threshold matter, the premise of the Attorney General’s
argument — that Martinez-Chavez only asserted legal objections —
is belied by the record. In his objection, Martinez-Chavez began by
asserting that “the prosecution asks for restitution . . . for items
that the defendant is not legally responsible for.” This is an
indication that he is disputing causation — a mixed question of law
and fact, not a purely legal question, that the prosecution bears the
burden to prove. See, e.g., Randolph, 852 P.2d at 1284. And the
People’s motion for restitution alone falls short of meeting that
burden. Specifically, assuming, without deciding, that section 18-
1.3-603(10) applies in this case, to be entitled to the presumption
that the amount paid by a CVCB is the “direct result of the
10 defendant’s criminal conduct,” the prosecution must provide either
“[a] list of the amount of money paid to each provider” or “[i]f the
identity or location of a provider would pose a threat to the safety or
welfare of the victim, summary data reflecting what total payments
were made for” by category. §§ 18-1.3-603(10)(a), (b)(i)-(ii)
(emphasis added). In their motion for restitution, the People did not
provide a list of providers nor did they even argue that disclosure of
such a list would pose a threat to the safety or welfare of any victim.
And if subsection 603(10) does not apply, then the motion alone
falls further short of establishing causation. See, e.g., People v.
Bohn, 2015 COA 178, ¶ 18 (“However, the fact of payment by a
CVCB is not determinative of whether restitution should be
ordered.”), superseded by statute as recognized in Henry, ¶ 20.
¶ 21 Furthermore, we disagree with the proposition that a written
objection to a motion for restitution is an adequate substitute for an
evidentiary hearing for three reasons.
¶ 22 First, the function of a hearing is broader than what is
afforded by an opportunity to file a written objection alone.
“Generally, a hearing contemplates the right to be present, to put
forth one’s contentions, and to support those contentions by
11 evidence and argument.” People v. Duke, 36 P.3d 149, 152 (Colo.
App. 2001) (citing Westar Holdings Partnership v. Reece, 991 P.2d
328 (Colo. App. 1999)). Just as the People would be able to present
additional evidence beyond what is included in their motion, such
as additional documents or testimony, so too can the defendant at a
hearing provide additional evidence or argument in opposition to
restitution beyond that which was included within the four corners
of his written objection.
¶ 23 Second, because restitution is part of sentencing, there is a
strong presumption in favor of the defendant being afforded the
opportunity to be heard in person if requested, not simply in a
writing filed by counsel. Indeed, a division of this court has
recently concluded that “sentencing — including imposition of
restitution — is a critical stage at which a defendant has a due
process right to be present.” Hernandez, ¶ 24 (emphasis added);
see also id. at ¶ 23 (collecting cases from other jurisdictions where
courts have concluded that restitution hearings are a critical stage).
¶ 24 Third, it would be anomalous to conclude that a defendant has
an absolute right to be heard on the issue of restitution when it is
12 addressed at sentencing, see, e.g., § 16-11-102(5), 1 but has a more
limited right to be heard when restitution is reserved at the People’s
request. Simply put, it makes little sense that a delay at the
request of the prosecution could impair a defendant’s right to be
heard.
¶ 25 Accordingly, we conclude that when restitution is reserved at
the prosecution’s request and the defendant objects to the request
and demands a hearing, he is entitled to such a hearing. At the
hearing, the prosecution must carry its burden and the defendant
may contest the request or otherwise test the prosecution’s
evidence. Here, the trial court erred by denying Martinez-Chavez
his properly requested hearing.
1 See also People v. Johnson, 780 P.2d 504, 508 (Colo. 1989) (“At the sentencing hearing the defendant must be given the opportunity to controvert the victim’s claimed monetary damages.”); People v. Mata, 56 P.3d 1169, 1176 (Colo. App. 2002) (“Under that statutory scheme, the defendant is to be given the opportunity, at the sentencing hearing, to controvert the victim’s claimed monetary damages.”). The Attorney General does not dispute that Martinez- Chavez would have had the right to be heard had restitution been requested at the time of sentencing.
13 ¶ 26 But this does not end our analysis. If the denial of the
restitution hearing was harmless, then reversal is not required. So
that is where we turn next.
2. The Deprivation of a Restitution Hearing Was Not Harmless
¶ 27 “[W]e review nonconstitutional trial errors that were preserved
by objection for harmless error.” Hagos v. People, 2012 CO 63,
¶ 12. Under this standard, we reverse if the error affected the
substantial rights of the parties or “affected the fairness of the trial
proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.
1986)).
¶ 28 We don’t need to look any further than the parties’ briefing on
appeal to conclude that the denial of a hearing was not harmless.
Martinez-Chavez’s second issue on appeal is that the 2015
amendments to the CVC Act and restitution statutory scheme are
unconstitutional. The People argue that Martinez-Chavez’s
contention in this regard may only be reviewed for plain error (if at
all) because he didn’t raise this argument before the trial court.
Perhaps the reason it wasn’t presented to the trial court is that
Martinez-Chavez was denied his requested hearing. To put a
sharper point on it, it strikes us as dissonant to contend, on the
14 one hand, that the denial of a hearing was harmless, and to argue,
on the other hand, that the other issues raised on appeal may only
be reviewed for plain error because they were not presented to the
trial court.
¶ 29 Moreover, as discussed before, the prosecution did not present
the information contemplated by section 18-1.3-603(10) to the trial
court in support of its restitution request. 2 A hearing would have
both afforded the People an opportunity to present such evidence,
and Martinez-Chavez the opportunity to contest or otherwise
challenge such evidence.
¶ 30 Simply put, at the restitution hearing, Martinez-Chavez could
have, for example:
2 In his opening brief, Martinez-Chavez contends that the “prosecution objected to a hearing and thus chose not to present evidence establishing that Mr. Martinez-Chavez owed the claimed restitution.” That contention is not supported by the record. While it is true that the prosecution responded to each of the particularized contentions raised in Martinez-Chavez’s written objection, the prosecution did not object to the court conducting a restitution hearing. Instead, the court acted on its own, and not at the specific urging of the prosecution, in opting to resolve the issue of restitution without a hearing.
15 • challenged the constitutionality of the 2015 amendments
to the CVC Act and restitution statutory scheme (as he
does on appeal);
• offered a non-speculative evidentiary hypothesis for the
in camera review and production of some or all of the
CVCB records;
• presented evidence to contest his liability for loss of
support;
• held the prosecution to its burden to prove causation; or
• contested the sufficiency of the prosecution’s evidence.
¶ 31 Accordingly, we conclude that the erroneous denial of
Martinez-Chavez’s request for a hearing was not harmless.
C. Remaining Claims
¶ 32 Because we are remanding the case to the trial court to
conduct a restitution hearing, we decline to address Martinez-
Chavez’s remaining claims, including the challenge to the
constitutionality of the 2015 amendments to the CVC Act and
restitution statutory scheme. Hernandez, ¶¶ 44-56 (declining to
consider similar argument on appeal when the case was remanded
to the trial court for a new restitution hearing).
16 III. Conclusion
¶ 33 For the reasons set forth above, the restitution order is
reversed, and the case is remanded for further proceedings,
including a hearing on the request for restitution.
JUDGE TERRY and JUDGE BERGER concur.