2019 COA 111
Colo. Ct. App.2019Background
- Defendant Joey Ray Hernandez was convicted of first-degree assault (stab wound) and sentenced to DOC; prosecutor later sought restitution of $2,518.82 to reimburse the Crime Victim Compensation Board (CVCB).
- Defense counsel filed a general objection but neither Hernandez nor counsel appeared at two status conferences and counsel failed to request in camera review of CVCB records.
- At the scheduled restitution hearing, defense counsel (without Hernandez present) told the court he was "prepared to proceed" without his client; the court proceeded, heard only CVCB testimony, and awarded the requested restitution.
- The restitution award relied on CVCB records and the statutory process the CVCB follows to evaluate medical claims; defense counsel did not cross-examine or present evidence.
- On appeal the Court of Appeals held (1) a defendant has a right to be present at restitution hearings (Crim. P. 43 and due process), (2) counsel cannot unilaterally waive that right for a felony defendant, and (3) the trial court plainly erred in proceeding without Hernandez, so the restitution order was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant has a right to be present at a restitution hearing | Restitution is part of sentencing but proceeding without defendant can be harmless in specific facts | Restitution is a critical stage of sentencing; defendant must be present | Held: Yes — restitution hearing is a critical stage; defendant has a right to be present under due process and Crim. P. 43 |
| Whether defense counsel may waive defendant’s presence | Court may proceed when counsel does not object; counsel invited proceeding | Counsel cannot waive a felony defendant’s presence absent defendant’s authorization | Held: Counsel cannot unilaterally waive the defendant’s right to be present |
| Whether proceeding in Hernandez’s absence was plain error | Attorney General: any error was harmless; trial court’s use of evidence was proper | Hernandez: error was obvious and undermined fairness because his presence might have produced factual rebuttal | Held: Plain error occurred; vacated restitution and remanded for new hearing unless court finds client authorized waiver |
| Whether section 18-1.3-603(10) (CVCB-payment presumption) raises ex post facto or due process problems | AG: trial court properly relied on evidence; statute valid | Hernandez: statute lowers prosecution’s burden (ex post facto) and creates unrebuttable presumption because CVCB records are confidential | Held: Court declined to resolve ex post facto issue now; facial due process challenge rejected (statute not unconstitutional in all applications); as-applied challenges reserved for remand |
Key Cases Cited
- People v. White, 870 P.2d 424 (Colo. 1994) (due process right to be present at critical stages)
- Penney v. People, 360 P.2d 671 (Colo. 1961) (counsel cannot waive defendant’s presence in felony proceedings)
- People v. Luu, 983 P.2d 15 (Colo. App. 1998) (sentencing is a critical stage; presence required)
- People v. Munsey, 232 P.3d 113 (Colo. App. 2009) (harmlessness when defendant’s absence would have been useless)
- People v. Rosales, 134 P.3d 429 (Colo. App. 2005) (restitution requires proof defendant proximately caused pecuniary loss)