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 May 2, 2019
2019COA62
No. 16CA0446, People v. Perez — Criminal Law — Sentencing — Restitution
A division of the court of appeals considers whether the trial
court erred in ordering restitution more than ninety-one days after
sentencing and what, if any, explicit findings the trial court must
make to do so. The division concludes that, based on the facts of
this case, the lack of explicit findings was not plain error. The
special concurrence explains why this case illustrates what appears
to the author to be a pattern of inattentiveness by the prosecution,
defense counsel, and trial courts regarding the procedures
established in the restitution statutes. It also points out two
ambiguities in those statutes that the General Assembly may wish
to address. COLORADO COURT OF APPEALS 2019COA62
Court of Appeals No. 16CA0446 Adams County District Court No. 12CR1963 Honorable Robert W. Kiesnowski, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rafael Perez,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE TOW Berger, J., concurs Taubman, J., specially concurs
Announced May 2, 2019
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey Svehla, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Rafael Perez, appeals the trial court’s order of
restitution. We affirm.
I. Background
¶2 In June 2012, Perez hosted a wedding at his ranch. An
argument ensued among some of the wedding guests. “A bunch of
guys” started kicking one of the wedding guests, Jose Rodriguez,
and then Perez broke a beer bottle on his face. Rodriguez had to be
transported to the hospital via helicopter for medical treatment.
¶3 Perez was charged with and convicted of second degree assault
with a deadly weapon. On December 2, 2013, the trial court
sentenced Perez to five years in the custody of the Department of
Corrections. A division of this court affirmed his conviction. People
v. Perez, (Colo. App. No. 14CA0326, Mar. 2, 2017) (not published
pursuant to C.A.R. 35(e)).
¶4 At sentencing, the trial court reserved a determination of
restitution for ninety days. On March 6, 2014, ninety-four days
after the order of conviction, the prosecution moved for an
extension of time to request restitution. In its motion, the
prosecution cited extensive and complex medical bills, a lost wages
form received from the victim the previous day, and “substantial
1 and possible ongoing medical claims from Crime Victim
Compensation” as reasons for a requested extension. Perez did not
object to this request, and the trial court granted the motion.
¶5 The prosecution filed its motion to impose restitution with
supporting documentation on May 12, 2014. The trial court then
held multiple hearings on the issue of restitution. At a restitution
hearing in January 2015, the trial court determined that an in
camera review of the records of the Crime Victim Compensation
Board (CVCB) was necessary to address Perez’s proximate
causation concerns.
¶6 After the trial court conducted an in camera review of the
CVCB’s records, the trial court issued an order of restitution on
March 16, 2015, finding that proximate cause had been established
and ordering restitution in the amount of $17,060 to be paid to the
CVCB. It also ordered restitution in the amount of $2546 to be paid
to Rodriguez for lost wages.
II. Analysis
¶7 Perez now appeals the restitution order on procedural and
substantive grounds.
2 A. Standard of Review
¶8 Generally, a trial court has broad discretion to determine a
restitution order’s terms and conditions. People v. Rivera, 250 P.3d
1272, 1274 (Colo. App. 2010). We will reverse only if the trial court
abused its discretion. Id. An abuse of discretion occurs when the
trial court’s decision is manifestly arbitrary, unreasonable, or
unfair, or the court misinterprets or misapplies the law. See People
v. Henson, 2013 COA 36, ¶ 9. To the extent this appeal requires us
to consider the trial court’s interpretation of the restitution statutes,
we review such legal issues de novo. People v. Ortiz, 2016 COA 58,
¶ 15.
B. Good Cause and Extenuating Circumstances
¶9 Perez first argues that the trial court erred in ordering
restitution more than ninety-one days after sentencing absent a
showing of good cause. Perez also argues that the trial court failed
to find extenuating circumstances for granting the prosecution
additional time to provide the information necessary to determine
restitution. We discern no reversible error.
3 1. Preservation
¶ 10 Perez contends that this issue was preserved. In support, he
cites to People v. Melendez, 102 P.3d 315 (Colo. 2004), as providing
that preservation only requires an opportunity for the trial court to
make findings and draw conclusions related to the relevant issue.
The People disagree and argue that Perez failed to preserve this
challenge to the restitution order. We agree with the People.
¶ 11 Before the trial court, Perez raised two challenges regarding
restitution. First, he argued there was insufficient evidence that he,
as opposed to the other assailants, caused the damages. He also
objected to not having been provided access to the CVCB records.
Yet, Perez never challenged either the People’s motion requesting
more time to submit restitution information or the order granting
that request and never objected that there was no showing of good
cause or finding of extenuating circumstances affecting the
prosecution’s ability to determine restitution. As a result, the trial
court was denied the opportunity to make findings and draw
conclusions on this particular issue. Consequently, Perez’s claim is
not preserved.
4 ¶ 12 That being said, we reject the People’s argument that Perez
waived this claim. Waiver is the “intentional relinquishment of a
known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39
(quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). Perez did not intentionally relinquish or abandon his claim
on appeal simply by failing to raise this claim while contesting other
aspects of the restitution order. See id. at ¶ 40 (“The requirement of
an intentional relinquishment of a known right or privilege . . .
distinguishes a waiver from a forfeiture, which is ‘the failure to
make the timely assertion of a right.’” (quoting United States v.
Olano, 507 U.S. 725, 733 (1993))). Because Perez’s claim is not
waived, we address the merits.
¶ 13 We review unpreserved claims for plain error. Id. To be plain,
an error must be obvious and substantial. Hagos v. People, 2012
CO 63, ¶ 14. Reversal is required under this standard only if the
error “so undermines the fundamental fairness of the trial itself as
to cast serious doubt on the reliability of the judgment of
conviction.” Hagos, ¶ 22; see also People v. Tillery, 231 P.3d 36, 48
(Colo. App. 2009) (applying the plain error standard to sentencing),
aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).
5 2. Applicable Law
¶ 14 Every order of conviction for a felony “shall include
consideration of restitution.” § 18-1.3-603(1), C.R.S. 2018. If the
court reserves the determination of restitution, as it is authorized to
do, restitution is to be fixed within ninety-one days after the order
of conviction, unless good cause is shown for extending that time.
§ 18-1.3-603(1)(b). The court must base its restitution order on
information presented by the prosecution. § 18-1.3-603(2). The
prosecution “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.” Id. The court may extend this
deadline “if it finds that there are extenuating circumstances
affecting the [prosecution’s] ability to determine restitution.” Id.
Importantly, the time limits in section 18-1.3-603 are not
jurisdictional. People v. Harman, 97 P.3d 290, 293 (Colo. App.
2004).
3. Application
¶ 15 The question here is whether the trial court erred in awarding
restitution under the circumstances presented. Because restitution
was ultimately awarded more than ninety-one days after the order
6 of conviction, a showing of good cause was required. § 18-1.3-
603(1)(b).
¶ 16 Although the trial court granted the prosecution’s motion for
extension of time to request restitution, the trial court did not
formally find that good cause existed. However, the statute does
not require such an explicit finding. People v. Knoeppchen, 2019
COA 34, ¶ 25. On the other hand, the statute explicitly requires the
trial court to “find[] that there are extenuating circumstances” in
order to grant the prosecution more time to gather and submit the
required documentation. See § 18-1.3-603(2). Because the court
made no such finding explicitly, the court erred.1
¶ 17 However, because the error is not substantial, this case is
distinguishable from People v. Turecek, 2012 COA 59, and reversal
is not warranted. In Turecek, the trial court gave the prosecution
——————————————————————— 1 We acknowledge that there are circumstances in which an appellate court may infer that a trial court made a necessary finding. See, e.g., People v. Kyles, 991 P.2d 810, 819 (Colo. 1999) (inferring that the trial court made credibility findings during its analysis of a postconviction challenge to the voluntariness of a plea). Here, however, we opt not to draw such an inference, since neither the request nor the proposed order submitted by the prosecution references the statute or the extenuating circumstances standard.
7 ninety days to file a notice of restitution. Id. at ¶ 4. Instead,
approximately nine months later, the prosecution filed a motion to
impose restitution without explaining its delay or showing good
cause for the delay. Id. at ¶ 5. The trial court then ordered the
defendant to pay restitution without a finding of good cause. Id. at
¶ 6.
¶ 18 Here, in contrast, the prosecution requested an extension of
time to request restitution and provided reasons supporting that
request. Although the trial court did not make an explicit finding of
extenuating circumstances, the prosecution’s request cited
extensive and complex medical bills, a lost wages form received
from the victim the previous day, and “substantial and possible
ongoing medical claims from Crime Victim Compensation” as
reasons for a requested extension. These assertions were sufficient
for a finding of extenuating circumstances to have been made.
Therefore, the trial court’s failure to make such an explicit finding
was not a substantial error because it does not cast serious doubt
on the reliability of the restitution order.
¶ 19 Perez argues that the prosecution’s basis for seeking more
time was unpersuasive, given that all the documentation predated
8 sentencing, and so no extenuating circumstances could have
existed. However, because Perez failed to raise this issue before the
trial court, there is no record that establishes when the prosecution
received the documentation. Thus, again, the reliability of the
judgment is not undermined.
C. Disclosure of CVCB Records
¶ 20 Perez also argues that the trial court erred in relying on, but
not fully disclosing, otherwise confidential CVCB records in
determining proximate cause for the purpose of restitution. We
disagree.
1. Preservation
¶ 21 Perez contends that this issue was preserved by requests
made for documents related to the CVCB’s payments to the victim.
The People disagree. We agree with Perez that this issue was
preserved.
9 2. Applicable Law
¶ 22 A compensation board’s records relating to a crime victim’s
claims are confidential. § 24-4.1-107.5(2), C.R.S. 2014.2 “Any such
materials shall not be discoverable unless the court conducts an in
camera review of the materials sought to be discovered and
determines that the materials sought are necessary for the
resolution of an issue then pending before the court.” Id.
¶ 23 In accordance with section 24-4.1-107.5(3), Perez asserted
that the CVCB records were necessary for the resolution of an issue
pending before the trial court, that he was not the proximate cause
of some of the victim’s injuries because “several people were kicking
the victim in an assault,” and that this issue warranted an in
camera review of the CVCB’s records by the trial court. The trial
court then “reviewed in camera the victim’s compensation
program’s file and all non-privileged billing information was
provided to defense counsel.”
——————————————————————— 2 This section of the crime victim compensation act was amended in
its entirety, effective March 30, 2015. The prior version is applicable here.
10 ¶ 24 Perez now asserts that the trial court erred in “not disclosing
to Perez all materials related to the CVCB’s payment to the victim.”
(Emphasis added.) However, Perez’s argument is contrary to what
was required under the statute at the time. The statute provided
that confidential information contained within the file was
discoverable if it was necessary to resolve an issue pending before
the court. Id. Yet, nothing in the statute suggested that this
exception abrogated other established privileges that had attached
to the information. See People v. Turley, 870 P.2d 498, 502 (Colo.
App. 1993) (finding that no exception to the physician-patient
privilege exists in Colorado). Here, the court stated in its order that
it provided defense counsel with all non-privileged information from
the CVCB’s records. Because the statute in effect at the time did
not require that the trial court disclose otherwise privileged
information to the defendant in violation of the victim’s privilege
rights,3 we perceive no error.
——————————————————————— 3 The statute as amended in 2015 clarifies that the court may not
release information contained in the records if it will violate privilege. § 24-4.1-107.5, C.R.S. 2018.
11 D. Due Process Violation
¶ 25 Lastly, Perez argues that the trial court’s failure to disclose
confidential information from the CVCB’s records violated his right
to due process. We disagree.
¶ 26 Perez also contends that this issue was preserved. The People
disagree and argue that Perez failed to preserve this challenge to the
restitution order. Perez never invoked the protections of due
process in his arguments in the trial court. Therefore, we review
this claim for plain error. Rediger, ¶ 40.
2. Applicable Law
¶ 27 Due process is satisfied in a restitution hearing when the
defendant receives notice of the factual basis for the order and an
opportunity to contest that basis. United States v. Battles, 745 F.3d
436, 461 (10th Cir. 2014); see also 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.”). However, in a different context, a
division of this court has held that a defendant’s constitutional
12 right to due process does not override a claim of privilege. See
People v. Zapata, 2016 COA 75M, ¶ 30 (holding that the defendant
was not entitled to discovery or an in camera review of statements
protected by the psychologist-patient privilege), aff’d, 2018 CO 82.
Because no published case law clearly supports Perez’s right to
obtain privileged documents, the trial court’s decision not to provide
them, even if error, could not have been obvious.
III. Conclusion
¶ 28 The restitution order is affirmed.
JUDGE BERGER concurs.
JUDGE TAUBMAN specially concurs.
13 JUDGE TAUBMAN, specially concurring.
¶ 29 Although I agree with the majority’s analysis and conclusion, I
write separately to explain why this case illustrates inattentiveness
by the prosecutor, defense counsel, and the trial court regarding
the applicable restitution statutes. I also write to point out two
ambiguities in those statutes which the General Assembly may wish
to address.
¶ 30 To facilitate understanding of my comments, I restate some of
the applicable law contained in the majority opinion. First, every
order of conviction for a felony “shall include consideration of
restitution.” § 18-1.3-603(1), C.R.S. 2018. Second, if the trial court
reserves its determination of restitution, restitution must be fixed
within ninety-one days after the order of conviction, unless good
cause is shown for extending that period. § 18-1.3-603(1)(b).
Third, the trial court may extend the ninety-one day period “[i]f it
finds that there are extenuating circumstances affecting the
prosecution’s ability to determine restitution.” § 18-1.3-603(2).
14 II. Inattentiveness to Statutory Provisions
A. Prosecution
¶ 31 As the majority notes, the time limits in section 18-1.3-603 are
not jurisdictional. People v. Harman, 97 P.3d 290, 293 (Colo. App.
2004). Nevertheless, even though the trial court reserved the
determination of restitution for ninety days, the People did not move
for an extension of time to request restitution until ninety-four days
after the order of conviction, March 6, 2014.
¶ 32 When they did, the People did not invoke the statutory terms
of “good cause” or “extenuating circumstances.” Instead they
asserted: “Due to extensive and complex medical bills as well as the
lost wages form received from victim [J.R.] on March 5, 2014;
substantial and possible ongoing claims from crime victim
compensation, the People request an additional [ninety] days to
accumulate all proper documentation.” This statement did not
explain why the People could not have considered the medical bills
in the ninety-day period; why they were complex (Perez says they
were not); and what efforts, if any, the People made to obtain the
victim’s lost wages form within the ninety-day period.
15 ¶ 33 Further, section 18-1.3-603(2) provides that the prosecution
shall present restitution information to the court before the order of
conviction or within ninety-one days, if it is not available before the
order of conviction. Accordingly, the People had an obligation to
show why the information supporting their restitution request was
not available before the order of conviction. Indeed, such a showing
is a prerequisite to the trial court determining that extenuating
circumstances affect the prosecutor’s ability to determine
restitution before the order of conviction.
¶ 34 Finally, as noted, the People did not explicitly assert that the
court should extend the deadline for presenting restitution
information because extenuating circumstances affected their
ability to determine the amount of restitution. See § 18-1.3-603(2).
B. Defense Counsel
¶ 35 As the majority notes, the trial court erred in not explicitly
finding that there were extenuating circumstances to grant the
prosecution additional time to get and submit required
documentation to support its restitution request. However, defense
counsel did not assert that the trial court erred in this regard,
thereby making it more difficult for Perez to litigate this issue on
16 appeal. Similarly, defense counsel did not assert in the trial court
that it should have found that no good cause existed to grant the
People’s request for additional time to submit its documentation for
each restitution request. Although a division has held in People v.
Knoeppchen, 2019 COA 34, ¶ 25, ___ P.3d ___, ____, that no such
explicit finding is required, certainly defense counsel’s position
would have been stronger had he expressly asked the trial court to
make a good cause determination.
¶ 36 Thus, without a trial court determination of either good cause
or extenuating circumstances, little information in the record
indicates that reversal is appropriate.
C. The Trial Court
¶ 37 As noted above, the trial court did not make an express
finding of either good cause or extenuating circumstances.
Although the good cause statute does not explicitly require such
documentation by the trial court, the statute unequivocally requires
a trial court to find extenuating circumstances to grant the
prosecution more time to gather and submit the required
documentation. Thus, even without a request by defense counsel
17 or the prosecution, the trial court should have realized that it was
required to make a finding of extenuating circumstances.
¶ 38 In addition, in Meza v. People, 2018 CO 23, ¶ 14, 415 P.3d
303, 308, the supreme court recognized that the trial court is
authorized, but is not required, to make a finding regarding
particular victims or losses of which the prosecution is aware, while
reserving until a later date a finding with regard to other victims or
losses. It seems clear that, under the circumstances presented, the
prosecution had sufficient information to timely present to the court
documentation regarding most of the victim’s medical expenses.
Also, it appears that the prosecution could have determined the
amount of the victim’s wage losses before the entry of the order of
conviction. Thus, the trial court could have inquired of the
prosecution whether it had sufficient information regarding some
hospital bills and the victim’s wage losses before it entered the
judgment of conviction.
III. Statutory Ambiguities
¶ 39 I note two statutory ambiguities where amended legislation
might be helpful. First, the statutory language discussed above
does not make clear what, if any, differences there are between
18 “good cause” and “extenuating circumstances.” Although those
terms are similar, we presume that the General Assembly intended
different meanings for these terms. People v. J.J.H., 17 P.3d 159,
162 (Colo. 2001). For example, if the prosecutor had stated that he
was busy litigating other cases and therefore needed more time to
gather and submit restitution information, that explanation might
have constituted “good cause” but may well have fallen short of
constituting “extenuating circumstances.” Similarly, while not
obtaining the victim’s wage loss form until the day before the filing
of a request for additional time may have constituted “good cause,”
such requests may not have constituted “extenuating
circumstances” if no earlier request had been made to the victim for
his wage loss form. Accordingly, the General Assembly may wish to
revisit these two terms so that they are the same, or, if they are
different, to explain how they are different.
¶ 40 Specifically, the General Assembly may wish to clarify section
18-1.3-603(1)(b) to require the prosecution to make a showing of
good cause before the trial court determines that the prosecution
may be accorded additional time to present restitution information.
Such clarification may be helpful because the Knoeppchen, ¶ 26,
19 ___ P.3d at ___, division held that a good cause determination may
be made at a later date. Nevertheless, it makes sense to require the
prosecution to submit its good cause explanation before the trial
court grants it additional time to present its restitution information
to the court.
¶ 41 Finally, I note that in imposing any time limit for the
submission of restitution information, the General Assembly may
wish to balance the interest in making a victim whole, on the one
hand, against requiring the prosecution to promptly submit
restitution information to the court before memories fade and
evidence becomes stale, on the other. In any event, the General
Assembly should recognize that a relatively small percentage of
restitution assessed is actually collected. In fiscal year 2014
through fiscal year 2018, the following percentages of state-wide
restitution assessed were paid as of August 27, 2018 — 18.6, 22.2,
16.1, 14.4, and 10.9. Colorado Judicial Branch, Annual Statistical
Report: Fiscal Year 2018, at 115, 119 (2018). These statistics
suggest that while making victims whole is a laudable goal, it will
not often be achieved. This is likely to be the case whether trial
20 courts frequently or seldom grant prosecution requests for
additional time to submit restitution information.
¶ 42 Notwithstanding these statistics, however, prosecutors,
defense counsel, and trial courts should be attentive to the
statutory requirements for prosecutors to obtain additional time to
submit restitution information to the trial courts.