Peo v. McClearen

19CA1882 Peo v McClearen 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1882

Teller County District Court No. 17CR116

Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Lee McClearen,

Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE KUHN

Dailey, J., concurs

Dunn, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Kevin Lee McClearen, appeals the trial court’s

restitution order. We reverse and remand with instructions.

I. Background

¶ 2

At trial, the jury found McClearen guilty of five domestic

violence offenses: stalking, harassment, and three counts of

violation of a protection order.1 The court sentenced McClearen to

an aggregate term of eight years in the custody of the Department of

Corrections. At the sentencing hearing, the prosecution asked to

reserve the issue of restitution for ninety-one days. The trial court

granted the request.

¶ 3

Ninety days later, the prosecution filed a proposed order titled

“Restitution Payout Order/Judgment,” which contained a

restitution request. The prosecution asked for $271.89 payable to

the victim, N.C., but did not provide any additional information,

such as a factual basis, supporting documentation, or description

of the loss allegedly suffered by N.C.

1 McClearen’s direct appeal of the conviction is pending before this

court in case number 18CA2058.

2

¶ 4

The proposed order included a “Notice to Defendant,” which

read:

If you object to the restitution amount, you

may request a hearing before this Court by

contacting the Division Clerk within 30 days to

set a hearing date. Failure to request a timely

hearing will result in a final order for the full

amount of restitution requested, and the order

will not be subject to review.

¶ 5

The parties don’t dispute that the request was never served on

McClearen, trial counsel, or appellate counsel (who had been

appointed following the judgment of conviction but before the

prosecution submitted the restitution request). The restitution

request included a signed certificate of service, but the People note

that the e-filing system doesn’t show that service occurred.

¶ 6

Thirty-two days later — and 122 days after the judgment of

conviction entered — the court granted the prosecution’s request

without a hearing and with no explanation or findings.

¶ 7

At the time the restitution order entered, McClearen was

serving his prison sentence. The court mailed the order to

McClearen’s Florissant address, but it was returned as

undeliverable and stamped with the notation “Moved Left No

Address/Unable to Forward/Return to Sender.” The court didn’t

3

serve the order on either trial or appellate defense counsel, and

McClearen’s appellate attorney states that she only discovered the

restitution order while working on the direct appeal.

II. Analysis

¶ 8

McClearen contends that the trial court erred when, without

notice to him or his counsel, it ordered restitution more than

ninety-one days after the judgment of conviction without a showing

of good cause. He also contends that the prosecution presented

insufficient evidence to support the restitution award.

¶ 9

We conclude that McClearen’s due process rights were violated

when he didn’t receive notice of the prosecution’s restitution

request or the court’s order. We reverse the restitution order on

that basis. Because we reverse the order, and because McClearen

will have the opportunity to challenge any subsequent request for

restitution, we don’t address the sufficiency issue.

A. Notice

¶ 10

The parties agree that McClearen didn’t receive notice of the

prosecution’s restitution request or the court’s order. Due process

requires notice and an opportunity to be heard. People v. Pourat,

100 P.3d 503, 505 (Colo. App. 2004). When restitution is reserved

4

at the prosecution’s request, a defendant is entitled to object to the

request and to a hearing if he requests one. People v. Martinez-

Chavez, 2020 COA 39, ¶ 25. Because McClearen didn’t receive

notice and didn’t have the opportunity to contest the request, his

due process rights were violated and the restitution order must be

reversed.

B. Restitution Deadline

¶ 11

Next, we turn to McClearen’s contention that the court

improperly issued the restitution order beyond the statutory

deadline.

¶ 12

“The proper interpretation of the restitution statute is a

question of law that we review de novo.” People v. Weeks, 2020

COA 44, ¶ 11 (cert. granted Oct. 12, 2020). We review whether good

cause exists to extend the statutory deadline to determine

restitution for an abuse of discretion. Id. A court abuses its

discretion if its decision is manifestly arbitrary, unreasonable, or

unfair or if it misconstrues or misapplies the law. Id.

¶ 13

We treat this issue as preserved because McClearen had no

opportunity to object to the prosecution’s request or the court’s

order due to lack of notice. See Crim. P. 51 (“[I]f a party has no

5

opportunity to object to a ruling or order, the absence of an

objection does not therefore prejudice him.”); see Zoll v. People,

2018 CO 70, ¶ 71.

¶ 14

Restitution is part of the trial court’s sentencing function.

Martinez-Chavez, ¶ 16. A sentence is illegal if the sentencing court

fails to address restitution. Id.

¶ 15

Under section 18-1.3-603(1)(b), C.R.S. 2021, “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 that time period.

Under section 18-1.3-603(2),

[t]he court shall base its order for restitution

upon information presented to the court by the

prosecuting attorney . . . . Further, the

prosecuting attorney shall present this

information to the court prior to the order of

conviction or within ninety-one days, if it is not

available prior to the order of conviction. The

court may extend this date if it finds that there

are extenuating circumstances affecting the

prosecuting attorney’s ability to determine

restitution.

¶ 16

Currently, divisions of this court are split on whether it is the

trial court or the prosecutor who must “determine” restitution

6

under section 18-1.3-603(1)(b) and (2).2 Compare People v. Rice,

2020 COA 143, ¶¶ 7-11 (concluding that, absent a showing of good

cause to extend that time period, ninety-one days is the deadline for

the trial court to order restitution), and Weeks, ¶¶ 12-22 (same),

with People v. Perez, 2020 COA 83, ¶¶ 15-37 (concluding that

ninety-one days is the deadline for the prosecution to determine

and request the appropriate amount of restitution).

¶ 17

We conclude that Rice and Weeks provide the more persuasive

statutory analysis. Therefore, the trial court was responsible for

ordering the specific amount of restitution to be paid within

ninety-one days after the judgment of conviction absent a showing

of good cause for extending the deadline.

¶ 18

Section 18-1.3-603(1)(b) permits the trial court to extend the

time period beyond ninety-one days when “good cause is shown.”

Because “nothing in the statute explicitly requires the court to

make an oral or written finding,” a showing of good cause may be

2 The supreme court has granted certiorari on this issue in two

cases: People v. Weeks, (Colo. No. 20SC340, Oct. 12, 2020)

(unpublished order); and People v. Roddy, (Colo. No. 20SC491, Nov.

16, 2020) (unpublished order).

7

implied from the record. Rice, ¶ 11 (quoting People v. Knoeppchen,

2019 COA 34, ¶ 25). But given the unique facts of this case, the

record does not contain sufficient information for us to make a

conclusion whether good cause existed. We conclude that it is

appropriate for the district court to determine whether the facts of

this case constitute good cause under the circumstances.3 If the

district court finds that good cause existed, it should conduct

further proceedings to determine restitution consistent with the

statute and this opinion.

III. Conclusion

¶ 19

The restitution order is reversed and this matter is remanded

for the district court to determine whether good cause existed to

3 While we are mindful of the party presentation principle issues

raised in the partial dissent, we respectfully take a different view of

the arguments in crafting the appropriate remedy. While not

labeled as such, the People essentially argue good cause. In

arguing that if we interpreted the statute the way we did, a “‘good

cause’ extension would consistently become the rule rather than

the exception,” the People implied that this case too would qualify

for a “good cause” extension. The People also state that the record

suggests good reasons why the court waited beyond the ninety-one-

day period to enter the order. Further, both parties agree that, as

an alternative to vacating the order, remand for further proceedings

is an appropriate remedy for this case.

8

extend the ninety-one-day period within which the specific amount

of restitution must have been determined and any other

proceedings consistent with this opinion.

JUDGE DAILEY concurs.

JUDGE DUNN concurs in part and dissents in part.

9

JUDGE DUNN, concurring in part and dissenting in part.

¶ 20

Because the restitution order was entered after the ninety-one-

day deadline set forth in section 18-1.3-603(1)(b), C.R.S. 2021, I

agree with the majority that the trial court didn’t have statutory

authority to enter it. See People v. Weeks, 2020 COA 44, ¶¶ 13, 29

(cert. granted Oct. 12, 2020). Thus, like the majority, I disagree

with People v. Perez, 2020 COA 83, which holds that the trial court

doesn’t have to determine restitution within ninety-one days. But

with respect, I think that under the circumstances here the order

should be vacated, not reversed.

¶ 21

The majority reverses the restitution order and remands it to

the district court “to determine whether the facts of this case

constitute good cause under the circumstances.” Supra ¶ 18. But

the People didn’t ask us to do that. Rather, they argue exclusively

— and at some length — that Perez correctly interpreted the

restitution statute and that “the trial court’s entry of restitution

more than ninety-one days after the sentence was consistent with

the statute, and it was not error.”

¶ 22

And “[a]s a general rule, ‘[o]ur adversary system is designed

around the premise that the parties know what is best for them[]

10

and are responsible for advancing the facts and arguments entitling

them to relief.’” Compos v. People, 2021 CO 19, ¶ 35 (quoting

Greenlaw v. United States, 554 U.S. 237, 243-44 (2008)); see also

Rodriguez v. IBP, Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (“This

court will not make arguments for [a party] that he did not make

himself.”).

¶ 23

That’s not to say reversal would never be appropriate where a

restitution order entered after ninety-one days. Had the People

argued that, in the event we declined to follow Perez, we should

reverse the order and remand for a determination as to whether

good cause supported the late restitution order, I would consider

that argument. But they didn’t; so I wouldn’t. See, e.g., Compos,

¶ 35; see also Galvan v. People, 2020 CO 82, ¶ 45 (The party

presentation principle “relies on the parties to frame the issues to

be decided and assigns to courts the role of neutral arbiters of the

matters raised.”).

¶ 24

For that reason, I would vacate the restitution order. See

Weeks, ¶ 11.