People v. In the Interest of J.C

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
February 22, 2018

2018COA24

No. 16CA1643, People v. Joslin — Criminal Procedure —
Postconviction Remedies — Restitution — Interest

A division of the court of appeals considers whether a

defendant is entitled to postconviction relief under Crim. P. 35(c)

based on either the district court or his counsel (or both) not

informing the defendant that he would be required to pay interest

on unpaid restitution. The division concludes that interest on

unpaid restitution is a collateral consequence of a plea and that

neither the district court nor defendant’s counsel had a duty to

advise defendant of this possibility. Thus, the division affirms the

district court’s order denying defendant’s postconviction motion

without a hearing.
COLORADO COURT OF APPEALS 2018COA24

Court of Appeals No. 16CA1643
Mesa County District Court Nos. 09CR1694 & 13CR1449
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Joslin,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE FURMAN
Fox and Ashby, JJ., concur

Announced February 22, 2018

Cynthia H. Coffman, Attorney General, Marissa R. Miller, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Matthew Joslin, Pro Se
¶1 In two separate cases, Matthew Joslin, defendant, accepted

the benefit of a plea bargain. In 2009, he was charged with six sex

offenses but pleaded guilty to only two. He was sentenced to

probation and ordered to pay over $8000 in fees. He was not

ordered to pay restitution. In 2013, Joslin faced thirty new charges,

twenty-one of which were class 3 felonies, but he pleaded guilty to

only four. He was sentenced to ninety-two years to life in the

custody of the Department of Corrections and ordered to pay over

$14,000 in fees and $1520 in restitution.

¶2 When Joslin did not pay the restitution within a year, he was

charged interest on that unpaid restitution pursuant to section

18-1.3-603(4)(b), C.R.S. 2014. He then filed two nearly identical

Crim. P. 35(c) motions, alleging that in each case he was never told

that he would be charged interest on unpaid restitution. He

claimed that he would never have pleaded guilty if he had known he

would have to pay interest. The district court denied the motions

without a hearing.

¶3 On appeal, Joslin essentially contends that he is entitled to

postconviction relief because either the district court or his counsel

(or both) was required to tell him that he would be required to pay

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interest on unpaid restitution — and neither did. Central to

addressing Joslin’s contentions is the premise that defendants

must be advised of the direct, but not collateral, consequences of a

plea. People v. Campbell, 174 P.3d 860, 864 (Colo. App. 2007); see

also Crim. P. 11(b)(4); People v. Birdsong, 958 P.2d 1124, 1128

(Colo. 1998). We conclude that interest on unpaid restitution is a

collateral consequence of a plea and that neither the district court

nor Joslin’s counsel had a duty to advise Joslin of this possibility.

Thus, we affirm the district court’s order denying Joslin’s

postconviction motion without a hearing.

I. Denial of Crim. P. 35(c) Motions

¶4 A district court may deny a Crim. P. 35(c) motion without a

hearing if the allegations are bare and conclusory; the allegations,

even if true, do not warrant relief; or the record refutes the claims.

People v. Duran, 2015 COA 141, ¶ 9; see also Ardolino v. People, 69

P.3d 73, 77 (Colo. 2003). In other words, to warrant a hearing on a

Crim. P. 35(c) motion, a defendant must allege facts that, if true,

entitle the defendant to postconviction relief. Crim. P. 35(c)(3)(IV);

see also White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo. 1988).

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¶5 We review the district court’s summary denial of a Crim. P.

35(c) motion de novo. People v. Lopez, 2015 COA 45, ¶ 68.

¶6 In his Crim. P. 35(c) motions, Joslin alleged that neither the

district court nor his counsel told him that he would be required to

pay interest on unpaid restitution. Taking these facts as true, if

either the district court or Joslin’s counsel had a duty to advise him

of the interest provision, Joslin would be entitled to a hearing on his

motions. We first address the district court’s duty, then defense

counsel’s duty.

II. The District Court’s Duty

¶7 A district court has a duty to ensure that a defendant is

advised of the direct, but not collateral, consequences of the plea.

Campbell, 174 P.3d at 864; see also Crim. P. 11(b). Direct

consequences are those that have a definite, immediate, and largely

automatic effect on the range of possible punishment. Campbell,

174 P.3d at 864. In contrast, collateral consequences are

contingent on a future event or action taken by some individual

other than the sentencing court. Id.

¶8 Joslin contends that being charged interest on unpaid

restitution is a direct consequence of his plea. We disagree. It is

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true that interest on unpaid restitution is largely automatic.

Section 18-1.3-603(4)(b), C.R.S. 2014, states that “[a]ny order for

restitution . . . shall also be deemed to order that: (I) The defendant

owes interest from the date of the entry of the order at the rate of

twelve percent per annum[.]”

¶9 But, such interest is neither definite nor immediate. Rather,

application of the statutory interest rate is contingent on whether a

defendant pays his or her restitution obligation within a year. This

contingency is a future action beyond the control of the sentencing

court. See Campbell, 174 P.3d at 864. As such, we conclude

interest on unpaid restitution is a collateral consequence.

¶ 10 Thus, we conclude the district court did not have a duty to

advise Joslin of the possibility that he might have to pay interest on

the restitution.

III. Defense Counsel’s Duty

¶ 11 Defense counsel may nonetheless have a duty to advise a

client of collateral consequences where defense counsel has reason

to believe that the issue is highly significant to his or her client’s

decision to plead guilty. See People v. Garcia, 815 P.2d 937, 942-43

(Colo. 1991) (holding that defendant sufficiently alleged deficient

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performance where counsel knew of defendant’s desire that any

guilty plea not preclude a civil claim and counsel erroneously

advised that plea would not bar such a claim).

¶ 12 But, here, Joslin did not assert either in his postconviction

motion or on appeal that his counsel in either case had any reason

to believe that the financial consequences of his plea were highly

significant to his decision to plead guilty.

¶ 13 Nothing in the record shows that Joslin had ever expressed

monetary concerns to his counsel in either case. And, the

circumstances of both cases indicate that his counsel had no

reason to believe paying interest on unpaid restitution would be

important to Joslin.

¶ 14 In the 2009 case, there was no reason for Joslin’s counsel to

discuss the interest provision because Joslin was not ordered to pay

restitution.

¶ 15 In the 2013 case, the circumstances of Joslin’s case indicate

that paying interest on unpaid restitution would be the least of his

worries. Joslin was willing to plead guilty to four sex offenses, two

of which were class 3 felonies. Each of those class 3 felonies

exposed him to a fine between $3000 and $750,000, not to mention

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extensive prison sentences. § 18-1.3-401(1)(a)(III)(A), C.R.S. 2017.

Because Joslin was willing to accept the risk of the court imposing

such fines, his counsel had no reason to believe that paying interest

on the comparatively small amount of restitution would be highly

significant to Joslin.

¶ 16 Thus, we conclude that Joslin’s counsel did not have a duty to

advise Joslin of the possibility that he might have to pay interest on

the restitution.

¶ 17 Because neither the district court nor Joslin’s counsel had a

duty to advise Joslin of the interest provision, his postconviction

allegations, even if true, do not warrant relief. See White, 766 P.2d

at 635. Therefore, the district court did not err in denying Joslin’s

motion without a hearing.

IV. Conclusion

¶ 18 We affirm the order.

JUDGE FOX and JUDGE ASHBY concur.

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