2020 COA 124
Colo. Ct. App.2020Background
- Eddie Wayne Johnson was convicted of securities fraud, theft, and adjudicated a habitual criminal; the district court sentenced him to 48 years and ordered about $220,000 in costs, fees, and restitution.
- Johnson timely appealed; before resolution he died while his direct appeal was pending.
- Defense counsel moved to abate ab initio all proceedings, including the restitution order; the People conceded abatement of penal aspects but argued restitution survives under People v. Daly and § 18-1.3-603.
- The court reconsidered Daly in light of Nelson v. Colorado and People v. Cowen and surveyed federal circuit authority on abatement and restitution.
- The division concluded abatement ab initio extinguishes restitution orders when a defendant dies during a pending direct appeal and remanded with directions to abate the conviction, dismiss charges, and vacate restitution, fines, costs, and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether abatement ab initio extinguishes restitution orders when a defendant dies during a pending direct appeal | Restitution is a final civil judgment under § 18-1.3-603 and survives the defendant's death; Daly supports survival | Abatement ab initio erases the conviction and thus extinguishes restitution; due process bars collection once conviction is invalidated | Abatement ab initio extends to restitution; restitution orders are extinguished when conviction abates on a defendant's death during direct appeal |
| Whether § 18-1.3-603 modifies or overrides abatement ab initio | The statute’s language (restitution is a final civil judgment and remains in force) shows the legislature intended restitution to survive death | The statute does not clearly abrogate the common-law doctrine; Nelson and Cowen mean restitution cannot be enforced once conviction is erased | § 18-1.3-603 does not clearly abrogate abatement ab initio; the statute does not prevent abatement of restitution in this context |
Key Cases Cited
- Nelson v. Colorado, 137 S. Ct. 1249 (U.S. 2017) (when a conviction is invalidated and no retrial will occur, due process requires refund of fees, costs, and restitution)
- People v. Daly, 313 P.3d 571 (Colo. App. 2011) (held restitution orders survive defendant's death; court revisited and disagreed)
- United States v. Rich, 603 F.3d 722 (9th Cir. 2010) (restitution abates with conviction; defendant "no longer a wrongdoer" once conviction erased)
- Estate of Parsons v. U.S., 367 F.3d 409 (5th Cir. 2004) (abatement ab initio extinguishes everything associated with the prosecution)
- United States v. Christopher, 273 F.3d 294 (3d Cir. 2001) (held restitution survives abatement; contrasted with courts that abate restitution)
- Crowley v. People, 223 P.2d 387 (Colo. 1950) (early Colorado precedent ordering vacatur of punishment on abatement)
- People v. Lipira, 621 P.2d 1389 (Colo. App. 1980) (directed setting aside judgment and dismissal on abatement)