2015 COA 41
Colo. Ct. App.2015Background
- Robert Roletto pleaded guilty to defrauding a secured creditor and second-degree perjury and was sentenced to five years probation with a monthly restitution requirement.
- After ~2.5 years, probation filed a revocation complaint for failure to pay restitution; Roletto had made payments in the first eight months but none in the two years before the hearing.
- Roletto testified his income source (caregiving for his mother) ended with her death; since then he lived rent-free on a friend’s property, received food stamps, sold some property for $160, and claimed chronic pancreatitis and narcotic medication side effects limited his ability to work.
- Probation manager testified Roletto provided no medical documentation and little proof of job-search efforts; Roletto said he had applied at several local employers and applied for SSDI but was denied.
- The district court found no doctor had said Roletto could not work, criticized his lack of independent proof of efforts to find employment, concluded he failed to prove inability to pay, revoked probation, and resentenced him to another probationary term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Correct legal standard for ability to pay restitution at revocation | Prosecution: evidence of nonpayment creates prima facie violation; defendant must prove inability to pay by preponderance (statutory burden-shifting) | Roletto: court must apply Romero’s three-factor test (job available, income sufficient, unjustified refusal) exclusively | Court: Affirmed statutory burden-shifting (prima facie proof by prosecution; defendant must prove inability to pay). Romero factors may be relevant but are not exclusive or required post-amendment |
| Use of newspaper remark as evidence / due process | N/A (prosecution did not rely on newspaper as primary proof) | Roletto: trial court’s comment that newspaper reported jobs available constituted hearsay and denied his due process/right to rebut | Court: Remark was a casual observation, not the basis of the ruling; no plain-error shown. Finding of inability to pay was supported by record (lack of medical or job-search proof) |
Key Cases Cited
- Bearden v. Georgia, 461 U.S. 660 (1983) (revocation for nonpayment requires inquiry into reasons and distinguishes willful refusal from inability to pay)
- People v. Romero, 559 P.2d 1101 (Colo. 1976) (articulated three-factor test regarding job availability, adequate income, and unjustified refusal)
- People v. Afentul, 773 P.2d 1081 (Colo. 1989) (interpreting similar statutory "prima facie" language and articulating burden-shifting: prosecution shows nonpayment, defendant must prove inability to pay)
- People v. Loveall, 231 P.3d 408 (Colo. 2010) (hearsay used by prosecution in revocation can raise due-process concerns)