Peo v. Frasier

23CA1502 Peo v Frasier 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1502
El Paso County District Court No. 17CR6128
Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Corey Jammie Frasier a/k/a Corey Jammie Frazier,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE FOX
J. Jones and Dunn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emma Berry, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Corey Jammie Frasier a/k/a Frazier,1 appeals the

district court’s order revoking his deferred judgment and sentence

(DJS) based on his failure to pay restitution. We reverse the court’s

order and remand to the district court to reinstate the DJS.

I. Background

A. The DJS

¶2 In August 2017, Frazier was allegedly involved in the theft of

marijuana products from a Colorado Springs marijuana dispensary

at which he was a former employee. The prosecution charged

Frazier with two counts each of second degree burglary and

conspiracy to commit second degree burglary and one count of

theft. On October 31, 2018, in a stipulated DJS, Frazier pleaded

guilty to one count of conspiracy to commit second degree burglary

and agreed to complete two years of probation and to comply with

the terms of the DJS. If Frazier successfully completed the DJS, his

guilty plea would be withdrawn and the case dismissed. Failure to

comply with any of the DJS conditions would result in a judgment

1 Frazier’s name was incorrectly spelled with an s in the district

court proceedings.

1
of conviction and sentence for the count to which Frazier pleaded

guilty.

B. The Restitution Order

¶3 The DJS also stated that Frazier would pay “[r]estitution in an

amount to be determined within 91 days.” After accepting Frazier’s

guilty plea, the district court set a sentencing hearing for November

14, 2018. At that hearing, defense counsel asked the court to

impose the stipulated DJS “with the additional conditions that

[Frazier] pay restitution, which I understand the District Attorney

will submit in 91 days.” Later, Frazier said he had questions about

restitution, and his attorney responded, “The court doesn’t have it.

They’re . . . going to submit it in 91 days . . . and then you can have

a hearing about it.” The district court confirmed that Frazier would

have a chance to object and request a hearing. On November 30,

2018, the prosecution requested $54,825.75 in restitution. On

December 11, Frazier’s counsel objected to the proposed amount

based on lack of documentation and requested a hearing.

Apparently at Frazier’s counsel’s request, a hearing was set for

February 6, 2019.

2
¶4 On February 1, 2019, Frazier’s counsel moved to continue the

restitution hearing. On February 25, defense counsel withdrew,

and substitute counsel entered an appearance. In April and June,

defense counsel requested additional continuances. The

prosecution also requested continuances in July and September

2019, and Frazier’s counsel did not object to either. The court held

a restitution hearing in October 2019, but it set a second hearing in

November 2019 to allow the victim to gather additional

documentation.

¶5 After multiple uncontested continuances, the second hearing

was eventually set for August 26, 2020. At the hearing, the parties

told the court that they had stipulated to $45,052.59 in restitution

and would provide a final amount with interest calculations. The

prosecution ultimately requested $48,656.79, Frazier’s counsel did

not object, and the district court ordered that amount on

September 18, 2020.

C. The DJS Revocation Proceedings

¶6 In October 2020, just under a month after the court ordered

restitution, the prosecution moved to revoke Frazier’s DJS, alleging

that he had failed to pay restitution. At a March 2021 hearing, the

3
parties informed the court that they had agreed to extend Frazier’s

DJS by eighteen months “with the same terms and conditions as

before.” The district court agreed to extend the DJS and ordered

Frazier to “make contact with the Finance Department [and] set up

a payment plan” by April 2, 2021. In September 2022, the

prosecution again moved to revoke the DJS, asserting that Frazier

still owed $55,564.45 in restitution and court costs.

¶7 Frazier requested a hearing for the court to determine his

ability to pay the outstanding restitution balance. At the hearing in

July 2023, the district court revoked Frazier’s DJS, entered a

judgment of conviction for one count of conspiracy to commit

second degree burglary, sentenced Frazier to one day of probation,

and converted the restitution order to a civil judgment.

¶8 Frazier now appeals the order revoking his DJS. He first

contends that the court could not revoke his DJS based on failure

to pay restitution because the underlying restitution order was

improper. Frazier also argues that the court erred by revoking his

DJS because (1) the prosecution failed to meet its burden to show

that Frazier was able to pay restitution and (2) the court misapplied

the law by failing to consider whether Frazier could pay restitution

4
without undue hardship to himself or his dependents. Finally,

Frazier argues that the district court improperly revoked his DJS

based on an uncharged violation related to his failure to set up a

payment plan.

¶9 We first conclude that Frazier waived his challenges to the

restitution order. We next conclude that the evidence was

insufficient to establish that Frazier was able to pay restitution.

Therefore, we do not reach his other arguments and reverse the

court’s order revoking his DJS.

II. Frazier Waived His Challenges to the Restitution Order

¶ 10 Frazier first argues that the district court could not revoke the

DJS based on his failure to pay restitution because the underlying

restitution order was improper. Specifically, he contends that the

prosecution failed to use reasonable diligence to present restitution

information before the court entered the DJS. He also argues that

the court lacked authority to impose restitution because it issued

the order well after the statutory deadline. The People contend that

Frazier waived these challenges, and we agree.

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A. Standard of Review and Applicable Law

¶ 11 We review de novo whether a claim is waived. Babcock v.

People, 2025 CO 26, ¶ 28.

¶ 12 Nearly every order of conviction must include one of four types

of restitution orders. See § 18-1.3-603(1)(a)-(d), C.R.S. 2020.2 One

such order includes “[a]n 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

order of conviction, unless good cause is shown for extending” the

deadline. § 18-1.3-603(1)(b). Additionally, the prosecution must

present information on the requested amount of restitution “prior to

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

available prior to the order of conviction.” § 18-1.3-603(2). Like the

court’s deadline, the prosecution’s deadline may be extended if

2 When the order here was issued in 2020, district courts could

defer imposing a specific amount of restitution for ninety-one days
after an order of conviction, and the prosecution had ninety-one
days to submit restitution information if it was not available before
an order of conviction was entered. § 18-1.3-603(1)(b), (2), C.R.S.
2020. In 2025, the legislature amended both deadlines. Ch. 307,
sec. 1, § 18-1.3-603(1)(b), (2)(a), 2025 Colo. Sess. Laws 1606-07.
All citations to section 18-1.3-603 in this opinion are to the 2020
version.

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“extenuating circumstances affect[] the prosecuting attorney’s

ability to determine restitution.” Id.

¶ 13 The Colorado Supreme Court recently determined that both

deadlines can be waived. E.g., Johnson v. People, 2025 CO 29,

¶ 19. In Johnson, the court held that Johnson waived his right to

have the prosecution present restitution information at or before

sentencing because (1) the plea agreement stated that the

prosecution would “act in good faith to provide correct information

establishing the amount of restitution within [ninety-one] days of

sentencing,” and (2) the stipulated DJS provided that Johnson

would pay “[r]estitution in an amount to be determined within

[ninety-one] days.” Id. at ¶¶ 27-30 (second alteration in original).

¶ 14 The court also held that “Johnson waived his claim that the

court lost authority to impose restitution because it did not make a

final determination of the amount of restitution within ninety-one

days or make an express finding of good cause to extend that time.”

Id. at ¶ 31. The court explained that Johnson’s attorney did not

object when the court set deadlines beyond ninety-one days and

requested a hearing after the deadline. Id.; see also Babcock, ¶¶ 10,

30 (holding that Babcock waived the right to have restitution

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determined within ninety-one days by requesting a hearing after the

deadline); People v. Roberson, 2025 CO 30, ¶ 17 (holding that

Roberson waived the statutory deadline by “fail[ing] to object to a

hearing outside the statutory deadline and subsequent repeated

requests for continuances — all without any mention of the ninety-

one-day deadline”).

B. Application

¶ 15 Here, the language in the plea agreement and DJS mirrored

the language in Johnson. See Johnson, ¶ 28. At the sentencing

hearing, Frazier’s attorney also explicitly agreed to the prosecution

submitting restitution information within ninety-one days of that

hearing and later reiterated this to Frazier, adding that the

prosecution did not yet have the information. Therefore, regardless

of whether the ninety-one days started on October 31, 2018 (as

Frazier argues), or at the November 14, 2018, sentencing hearing,

Frazier waived his right to have the prosecution submit restitution

information at or before either date. See id. at ¶ 30; see also

McCulley v. People, 2020 CO 40, ¶ 13 (explaining that — for

purposes of a deferred judgment — acceptance of the guilty plea

constitutes a conviction).

8
¶ 16 To the extent that Frazier also contends that the court lost

authority to impose restitution after section 18-1.3-603(1)(b)’s

ninety-one-day deadline, we similarly conclude that he waived this

claim. Frazier argues that the timeline began to run on October 31,

2018, when the court initially granted the DJS, so he contends that

the statutory deadline was January 30, 2019. However, Frazier’s

counsel first asked to set a hearing for February 6, 2019, and then

requested a continuance on February 1, 2019, with no mention of

the deadline. See Roberson, ¶ 17. And even if the timeline began at

the November 14, 2018, sentencing hearing with a deadline of

February 13, 2019, Frazier requested and accepted multiple

continuances well after that date.

¶ 17 Although Frazier argues that the delays were attributable to

the prosecution’s failure to provide supporting information, defense

counsel requested the first continuance because counsel needed

more time to “evaluate the prosecution’s submitted restitution

[o]rder.” The motion did not raise a lack of supporting information.

Similarly, in April 2019, substitute counsel asked for a continuance

to review discovery but did not assert that the prosecution failed to

exercise reasonable diligence to provide restitution information.

9
And defense counsel repeatedly requested and accepted hearings

beyond the statutory deadline without ever invoking the

prosecution’s or the court’s deadlines. See Roberson, ¶ 17;

Babcock, ¶ 30; Johnson, ¶ 31.

¶ 18 Finally, although Frazier frames his argument about the

restitution order as a basis for invalidating the district court’s order

revoking the DJS, he is effectively challenging the propriety of the

restitution order itself. A defendant must file a notice of appeal

within forty-nine days of the “entry of the judgment or order

appealed from.” C.A.R. 4(b)(1). Although this deadline can be

extended for excusable neglect, C.A.R. 4(b)(3), or good cause, C.A.R.

26(c), Frazier did not request an extension. And the deadline to

appeal the September 2020 restitution order had long passed by the

time Frazier filed his August 2023 notice of appeal. Accordingly, to

the extent that Frazier separately appeals the restitution order, that

appeal is untimely. But even if we construe Frazier’s challenge to

the restitution order as timely, we conclude that he waived the

deadlines in subsections (1)(b) and (2) of section 18-1.3-603.

Therefore, we reject Frazier’s argument that the court’s order

revoking the DJS was based on an invalid restitution order.

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III. The District Court Improperly Revoked Frazier’s DJS

A. Standard of Review and Applicable Law

¶ 19 A defendant’s ability to pay restitution is a question of fact.

People v. Roletto, 2015 COA 41, ¶ 20. We defer to the district

court’s factual findings unless they lack record support. Brooks v.

People, 2019 CO 75M, ¶ 6. Similarly, we defer to the court’s

credibility findings that enjoy record support. People v. Davis, 2019

CO 84, ¶ 18. However, we review de novo whether the court applied

the correct legal standard. Roletto, ¶ 10. When addressing a

sufficiency challenge, we also review de novo whether the

prosecution met its burden of proof. Martinez v. People, 2015 CO

16, ¶ 22. We consider “whether the relevant evidence, both direct

and circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to

support” the court’s conclusion. Id. (citation omitted).

¶ 20 The same procedural protections that apply in probation

revocation proceedings also generally apply to DJS revocation

proceedings. Williams v. People, 2019 CO 101, ¶ 24; see § 18-1.3-

102(2), C.R.S. 2025. An important protection includes ensuring

that defendants receive due process and are not penalized for their

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indigency. See Williams, ¶ 27. Thus, a court cannot revoke a

deferred judgment based on a defendant’s failure to pay restitution

without making certain findings regarding the defendant’s ability to

pay. Id. at ¶ 4.

¶ 21 First, the prosecution must show that the defendant failed to

pay court-ordered restitution. Id. at ¶ 42. But if the defendant

introduces “some evidence of [his] inability to pay restitution,” the

burden shifts to the prosecution to prove — by a preponderance of

the evidence — that the defendant (1) “has the ability to comply

with the court’s order to pay a monetary amount due without

undue hardship to the defendant or the defendant’s dependents”

and (2) “has not made a good-faith effort to comply with the order.”

Id. at ¶¶ 4, 40, 43-44 (quoting § 18-1.3-702(3)(c), C.R.S. 2025).

Before revoking a DJS, the district court must make these findings

on the record. Id. at ¶ 43. Additionally, the court must determine

that “the defendant had the ability to pay at the time the payments

12
should have been made.”3 Strickland v. People, 594 P.2d 578, 579

(Colo. 1979).

¶ 22 Although Strickland was decided before section 18-1.3-702

was enacted, we conclude that Strickland’s logic remains sound.

Requiring ability-to-pay findings is squarely rooted in ensuring due

process for indigent defendants. Williams, ¶ 27. Indeed, section

18-1.3-702 is titled, “Monetary payments — due process required.”

Courts have long expressed due process concerns about imposing

punishment on a criminal defendant “‘simply because, through no

fault of [his] own,’ [he] cannot pay restitution.” Id. (quoting Bearden

v. Georgia, 461 U.S. 660, 672-73 (1983)). These protections would

have little meaning if, for example, courts could revoke a DJS

because a defendant could pay some amount of restitution at the

3 Relying on People v. Romero, 559 P.2d 1101, 1102 (Colo. 1976), a

division of this court held that ability to pay is measured “at the
time of the revocation hearing.” People v. Roletto, 2015 COA 41,
¶ 10. However, the supreme court has clarified Romero, explaining
that the particular factual situation there “evoked [the] language . .
. requiring a finding of ability to pay at the time of the hearing.”
Strickland v. People, 594 P.2d 578, 579-80 (Colo. 1979). And the
court emphasized that ability to pay must also be measured “at the
time the payments should have been made.” Id. at 579; accord
People v. Gore, 774 P.2d 877, 879 (Colo. 1989).

13
time of the revocation hearing but could not pay restitution that

was due from the time it was imposed until the hearing.

B. Additional Facts

¶ 23 At the July12, 2023, ability-to-pay hearing, the prosecution

established that Frazier had an outstanding restitution balance of

approximately $59,000. This was sufficient to show that he failed

to pay restitution. See Williams, ¶ 42. The burden then shifted to

Frazier to rebut that evidence by “introducing some evidence of [his]

inability to pay.” Id. at ¶ 43.

¶ 24 Defense counsel presented records showing that Frazier made

$39,951.20 from 2018 until the beginning of 2023. Regarding his

work history, Frazier testified that he worked the first half of 2018,

but he was shot in July 2018 and lost his job due to absences and

physical limitations. He worked during the last three quarters of

2019 as a driver delivering oxygen tanks but left because he could

not meet the job’s physical demands. During the first half of 2020,

he worked as a driver for a construction company.

¶ 25 It is unclear why he left that job, but he was unemployed for

the rest of 2020, all of 2021, and the first three quarters of 2022.

Frazier also testified that he was shot in the head in April 2021, and

14
his biological mother died in June 2021. However, Frazier testified

that he was continuously seeking employment when he was

unemployed. After moving to Texas in October 2022, Frazier was

employed from the end of 2022 until the revocation hearing in July

2023. At the time of the July 2023 hearing, he had been working

as a driver for AAA since March 28, 2023. Frazier testified that he

did not graduate from high school, obtain a GED, attend any

college, or have any specialized training.

¶ 26 Defense counsel then elicited that Frazier lived with his

adoptive mother from 2018 until 2022, but he sometimes stayed on

people’s couches or with his biological mother. Frazier also testified

that he gave his adoptive mother approximately $500 to $600 per

week to cover her expenses and gave approximately $200 to $300

per month to support a child believed to be his (although Frazier

was not on the child’s birth certificate). At the time of the hearing,

Frazier testified that he lived with his girlfriend and the couple’s

unborn child and that he was paying for half of their expenses,

including around $2,000 per month for rent. He also paid $100 per

month for his cell phone bill. Finally, Frazier testified that he did

not have any significant assets or a personal vehicle.

15
¶ 27 On cross-examination, the prosecutor questioned Frazier at

length about whether he was aware of his restitution obligation and

intended to pay it. Frazier testified that his attorneys instructed

him not to pay restitution because they intended to appeal. Frazier

admitted he paid $443 in restitution in June 2021 but testified that

he believed he was paying court costs.

¶ 28 The prosecution then elicited that Frazier knew of the first

COVID-19 stimulus payment that the federal government issued

but did not apply for the payment because he thought he was

ineligible. He testified that he was unaware of the second and third

stimulus payments. Frazier also testified that he did not apply for

unemployment benefits when he was unemployed from 2020 to

2022, but the prosecutor did not ask why he left his job. See

Debalco Enters., Inc. v. Indus. Claim Appeals Off., 32 P.3d 621, 623

(Colo. App. 2001) (entitlement to unemployment benefits “depends

upon the reason for the separation from that employment”). Next,

the prosecutor elicited that Frazier applied for food stamps, but it is

unclear if he ever received them.

¶ 29 Shifting to Frazier’s living situation, the prosecution elicited

that Frazier did not live in public housing in 2020 or 2021, but

16
Frazier testified that he was periodically homeless during that time.

Frazier also clarified that he did not have a permanent home with

his adoptive mother. He explained, “When I was unemployed I

wasn’t providing, and when I wasn’t providing, . . . I didn’t have

access to my mom’s place. . . . I would have to fend for myself

. . . .” Frazier also explained that while unemployed, he had no

resources or sources of income and occasionally had to beg for

assistance.

¶ 30 Finally, the prosecutor asked about Frazier’s then-current

financial situation and elicited that Frazier did not know how much

he was making or had made at his job at AAA because his girlfriend

handled their finances.

¶ 31 After the prosecution rested, the district court said, “[T]he

issue now is to determine whether or not [Frazier] has established

an inability to pay and whether that inability to pay was the result

of undue hardship that would have affected him or his dependents

and whether or not he made a good faith effort to pay.” Both

attorneys corrected the court and explained that the burden shifted

to the prosecution if Frazier presented some evidence of his inability

to pay. The court said, “Okay,” and agreed that there was some

17
evidence of Frazier’s inability to pay, so the burden shifted to the

prosecution. However, no additional evidence was presented, and

the parties gave their closing arguments.

¶ 32 After closing arguments, the court first summarized Frazier’s

testimony about the money he paid to his adoptive mother, to the

mother of his son, and to his girlfriend. The court then said it did

not find Frazier credible when he testified that his counsel

instructed him not to make restitution payments. Emphasizing

that he continued seeking jobs involving physical labor, the court

also found Frazier not credible when he testified that he struggled

to work physical jobs. It concluded that his current job involved

“moving around, getting under cars, [and] getting them up to his

tow truck,” but Frazier never testified that he was getting under

cars or exerting physical effort. With no explanation, the court also

found Frazier’s lack of knowledge of the stimulus payments

incredible. Finally, the court said, “[S]ince approximately 2021

there has been an effective labor shortage. . . . So to suggest that

he could not find work . . . the Court also does not find credible.”

¶ 33 The court then concluded that Frazier had the ability to

comply with the restitution order and did not make a good faith

18
effort to comply because he failed to set up a payment plan, “which

would give the Court some knowledge as to the amount of money

that he could pay.”

C. Application

¶ 34 Frazier argues that the prosecution failed to meet its burden to

show that he was able to pay, and he argues that the district court

misapplied the applicable burden-shifting framework and

overlooked the undue hardship factor when it made its ability-to-

pay findings. We conclude that the prosecution did not present

sufficient evidence to establish that Frazier was able to pay.

Therefore, we need not reach Frazier’s argument that the court

overlooked the undue hardship factor. However, we conclude that

the court applied the correct burden-shifting framework.

¶ 35 First, the evidence established that Frazier had no income

from when restitution was imposed (September 2020) until the

motion to revoke was filed (September 2022). But the court’s

ability-to-pay finding was partly based on evidence of Frazier’s

income and expenses from before restitution was ordered and after

the motion to revoke was filed. Frazier testified that he was not

supporting his adoptive mother when he was unemployed (i.e., from

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2020 to 2022), and he had few resources and no income for most of

the time when restitution payments would have been due. Thus,

the court’s reliance on Frazier’s financial situation in 2018, 2019,

and early 2020 — before restitution was ordered — cannot support

a finding that Frazier had the ability to pay once restitution was

ordered. See Brooks, ¶ 6.

¶ 36 Similarly, the court’s finding that Frazier could have found a

job because of a 2021 labor shortage lacks any record support. The

supreme court reversed a probation revocation on nearly identical

grounds in People v. Romero, 559 P.2d 1101, 1102 (Colo. 1976).

There, the district court “took judicial notice that there were jobs

available in the . . . area” and thus concluded that the “defendant

was not truthful when he testified that he had made repeated

attempts to obtain employment.” Id.; see also Strickland, 594 P.2d

at 579-80 (explaining that the Romero court reversed because “there

was nothing in the record to support the [district] court’s findings

that jobs were available”). Here, the district court did not even take

judicial notice of an alleged labor shortage, nor did the prosecution

request judicial notice or present evidence about a labor shortage.

20
¶ 37 Next, the court concluded that Frazier had the ability to pay

restitution while simultaneously acknowledging that it did not know

how much Frazier could pay because he had not set up a payment

plan. Rather than supporting a finding that Frazier was able to

pay, the court’s acknowledgment that it could not determine what

Frazier could pay undermined its ability-to-pay finding.

¶ 38 The prosecution’s primary evidence of Frazier’s ability to pay

was its suggestion that Frazier could have found work but did not.

But the prosecutor did not ask Frazier why he left his job before his

period of unemployment, what types of and how many jobs he

applied to, or why he was not offered jobs. The prosecutor also did

not ask whether or how the 2021 shooting affected his ability to

seek work, nor did it ask if the COVID-19 pandemic affected

Frazier’s job search. See Desrosiers v. Governor, 158 N.E.3d 827,

831-32 (Mass. 2020) (explaining that the pandemic caused “high

unemployment, economic hardship, and shuttered businesses”);

K.D.H. v. Cabinet for Health & Fam. Servs., 630 S.W.3d 729, 738

(Ky. Ct. App. 2021) (“[T]he pandemic had far-reaching impacts on

the ability to obtain and/or keep employment.”). Critically, the

prosecutor did not call Frazier’s probation officer to verify or

21
discredit Frazier’s testimony. See Williams, ¶ 44 n.6 (recognizing

that the prosecution may need to investigate a defendant’s financial

situation to meet its burden of proof but explaining that the

probation officer will often be able to provide significant evidence

about a defendant’s financial situation).

¶ 39 Finally, the prosecutor did not ask Frazier if he had any

outstanding debts or present evidence of Frazier’s tax filings, bank

statements, or other evidence showing that he had savings or

resources available to him. And the prosecution presented no

evidence that Frazier would have qualified for unemployment

benefits even if he had sought them. Essentially, the prosecution’s

evidence showed that Frazier was continuously seeking

employment, did not find work, and had no income or resources for

most of the period between the entry of the restitution order and the

revocation hearing. The prosecutor also elicited that Frazier

experienced homelessness at times, sought food stamps, and

occasionally had to beg to survive.

¶ 40 We conclude that this evidence was insufficient to support a

finding that Frazier had the ability to pay restitution for at least

most of the time that it was due. See Martinez, ¶ 22. Although

22
there was evidence that Frazier was employed and able to pay at

least some amount at the time of the hearing, the same cannot be

said for Frazier’s unemployment from the end of 2020 until late

2022. While it is possible that Frazier unreasonably failed to seek

employment available to him, that determination could not be made

from an unsupported assertion about a 2021 labor shortage and a

conclusion that Frazier was able to work physically demanding jobs

despite being shot twice.4

¶ 41 Thus, the prosecution did not meet its burden to show that

Frazier could pay restitution while unemployed. It presented no

evidence that Frazier had income during those times. And it had to

show something more than that Frazier had previously been

employed to establish that he could have been employed but chose

not to be. See id. (emphasizing that the prosecution may need to

investigate a defendant’s financial situation).

4 The court’s finding that Frazier’s testimony about his physical

capabilities was not credible because he continued to seek physical
jobs also has minimal record support. Frazier had mostly worked
in physical roles, and the district court contradictorily faulted him
for not taking work while he was unemployed and also for taking
jobs available to him even if they required some physical labor.

23
¶ 42 Because we conclude that the district court erred by finding

that Frazier had the ability to pay restitution, we need not address

Frazier’s argument that the court also erred by failing to consider

whether he could pay without undue hardship to himself or his

dependents.

¶ 43 However, to the extent that Frazier contends that the court

misapplied the burden-shifting framework, we disagree. Although

the court twice suggested that it was the defense’s burden to prove

the inability-to-pay factors, both attorneys corrected the court and

explained the correct legal standard. Therefore, we presume that

the court understood and applied the proper framework.

Nevertheless, because the evidence was insufficient — even if the

court applied the appropriate burdens — we reverse the court’s

order revoking Frazier’s DJS. See People v. Mortenson, 2023 COA

92, ¶ 32.

IV. Disposition

¶ 44 The court’s order revoking Frazier’s DJS is reversed, and we

remand for the district court to vacate its corresponding entry of

judgment of conviction and to reinstate Frazier’s DJS.

JUDGE J. JONES and JUDGE DUNN concur.

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