Peo v. Roberts

19CA1397 Peo v Roberts 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1397

Arapahoe County District Court No. 17CR1773

Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Keith Alfonzo Roberts,

Defendant-Appellant.

ORDER VACATED

Division IV

Opinion by JUDGE J. JONES

Freyre and Tow, JJ., concur

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

Announced November 24, 2021

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Keith Alfonzo Roberts, appeals the district court’s

order imposing restitution. Applying People v. Weeks, 2021 CO 75,

we conclude that the prosecution must move for restitution before

or at the sentencing hearing and that where, as in this case, the

prosecution has the means to determine the amount of restitution

and the identities of the victims before the court enters the order of

conviction, under section 18-1.3-603(2), C.R.S. 2021, the

prosecution must present that information to the court before the

entry of the order of conviction. If the prosecution doesn’t do either

of these things, the right to seek restitution is lost. Because the

prosecution in this case did not file a motion for restitution before

or at the sentencing hearing and had the information supporting an

amount of restitution before the order of conviction was entered,

but did not timely submit it to the court, the court erred by giving

the prosecution an extension of time to submit a request for

restitution. We therefore vacate the restitution order.

I. Background

¶ 2 A jury found Roberts guilty of multiple charges arising from a

high-speed highway chase that ended when Roberts crashed his car

into a pursuing police officer’s patrol car.

2

¶ 3 Shortly before the trial, in January 2018, the City and County

of Denver Risk Management Department submitted to the

prosecution a victim impact statement containing restitution

information. It sought restitution of $24,633.46 to cover injuries to

two police officers and damage to two police cars. The prosecution

didn’t submit a restitution request to the court prior to or at the

sentencing hearing. Nonetheless, at the sentencing hearing, held in

March 2018, the district court concluded, sua sponte, that because

the victims had suffered a pecuniary loss, “the People shall have 91

days from [the date of sentencing] to file a motion for restitution.”

¶ 4 The prosecution filed a motion for restitution within ninety-

one days after the sentencing hearing, seeking $24,633.46 in

restitution, attaching the victim impact statement that had been

submitted to it in January 2018.

¶ 5 Due to an apparent clerical error, the district court didn’t

address the prosecution’s restitution request until October 2018,

when it granted the defense thirty-five days to respond to the

motion. The defense responded, objecting on timeliness grounds,

arguing that (1) the prosecution had failed to timely present the

restitution information that had been made available to it before

3

entry of the order of conviction and (2) more than ninety-one days

had passed since the entry of the order of conviction, and there was

no good cause for the additional delay. The court scheduled a

hearing on the matter for April 2019 that was later rescheduled for

June 2019.

¶ 6 At the hearing, the prosecution amended its restitution

request to $20,580.13 in response to Roberts’ objection to the

inclusion of $4,053.31 for a collection fee.

1

Roberts renewed his

timeliness arguments.

¶ 7 The district court concluded that the prosecution’s restitution

request was timely because the prosecution had filed the motion for

restitution within ninety-one days of the order of conviction. The

court ordered Roberts to pay $20,580.13 in restitution.

II. Discussion

¶ 8 Roberts contends that the district court lacked the authority

to impose restitution because (1) the prosecution possessed the

requisite restitution information two months before the entry of the

order of conviction but didn’t present that information to the court

1

The prosecution’s calculation (subtracting $4,053.31 from

$24,633.46) was off by two cents.

4

before or at the sentencing hearing and (2) the district court

imposed restitution more than ninety-one days after the order of

conviction in the absence of good cause for extending the statutory

ninety-one-day deadline. Because we agree with Roberts’ first

contention, we don’t need to address his second.

2

Accordingly, we

vacate the order of restitution.

A. Standard of Review

¶ 9 Roberts’ contention calls for us to interpret the restitution

statute, section 18-1.3-603. That presents a legal issue that we

review de novo. Weeks, ¶ 24.

B. Applicable Law

¶ 10 The restitution statute provides, in pertinent part, as follows:

(1) Every order of conviction of a felony . . .

shall include consideration of restitution.

Each such order shall include one or more of

the following:

(a) An order of a specific amount of restitution

be paid by the defendant;

(b) An order that the defendant is obligated to

pay restitution, but that the specific amount of

restitution shall be determined within the

ninety-one days immediately following the

2

We observe, however, that Roberts’ second contention would

appear meritorious in light of People v. Weeks, 2021 CO 75.

5

order of conviction, unless good cause is

shown for extending the time period by which

the restitution amount shall be determined;

(c) An order, in addition to or in place of a

specific amount of restitution, that the

defendant pay restitution covering the actual

costs of specific future treatment of any victim

of the crime; or

(d) Contain a specific finding that no victim of

the crime suffered a pecuniary loss and

therefore no order for the payment of

restitution is being entered.

(2) The court shall base its order for restitution

upon information presented to the court by the

prosecuting attorney, who shall compile such

information through victim impact statements

or other means to determine the amount of

restitution and the identities of the victims.

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.

§ 18-1.3-603 (emphasis added). The result in this case turns on

our interpretation of the italicized portion of the statute.

¶ 11 Our goal in interpreting any statute is to ascertain and give

effect to the General Assembly’s intent. People v. Vidauri, 2021 CO

25, ¶ 11. To do so, we look first to the statute’s language. Mosley

6

v. People, 2017 CO 20, ¶ 16. But we don’t consider the statute’s

words or phrases in isolation. Rather, we consider the relevant

statutory text as a whole, interpreting it in a way that gives

consistent, harmonious, and sensible effect to all its parts. Id. If,

after doing all this, we conclude that the “statute is clear and

unambiguous, we give effect to its plain meaning and look no

further.” Cowen v. People, 2018 CO 96, ¶ 12; see § 2-4-203, C.R.S.

2021.

C. Analysis

¶ 12 The supreme court in Weeks largely did our work for us. In

that case, the court held, among other things, that (1) the

prosecution must move for restitution before or during the

sentencing hearing; (2) the prosecution must present the

information supporting the motion (i.e., information supporting a

proposed amount of restitution) before the order of conviction is

entered if it is then available; and (3) if, but only if, that information

is not then available, the prosecution may submit it no later than

ninety-one days after the entry of the order of conviction. Weeks,

¶¶ 30-31, 40. Any failure to comply with these deadlines means the

court may not award restitution. See id. at ¶¶ 7, 45; see also Meza

7

v. People, 2018 CO 23, ¶ 11 (“[T]he statute as a whole necessarily

implies that . . . a postponement will be permitted only if the

required information is not available before entry of judgment.”

(citing Fierro v. People, 206 P.3d 460, 461 (Colo. 2009))).

¶ 13 As now relevant, under Weeks, the prosecution in this case

was required to move for restitution before or at sentencing. It

didn’t. It is also undisputed that the prosecution had the means to

determine the amount of restitution and identify the victims before

the entry of the order of conviction. The restitution statute

therefore required it to present that information to the court before

then. It didn’t. Because the prosecution didn’t comply with these

statutory deadlines, it lost the opportunity to seek restitution.

¶ 14 The People argue, however, that the district court has the

discretion to grant additional time for the prosecution to seek

restitution in these circumstances, even if the prosecution isn’t

entitled to more time, because (1) the court has the inherent power

to manage its docket and (2) the court isn’t deprived of the ability to

award restitution even if the prosecution misses a deadline. These

arguments are foreclosed by Weeks.

8

III. Conclusion

¶ 15 The restitution order is vacated.

JUDGE FREYRE and JUDGE TOW concur.