2020 COA 72
Colo. Ct. App.2020Background
- Victim (defendant's ex-wife) alleged defendant trespassed into her home in Nov. 2014, took photographs, and her iCloud/emails were accessed by defendant’s wife; civil and criminal litigation followed.
- Defendant pleaded guilty to added count of first-degree criminal trespass and received a two-year deferred judgment; no restitution in wife’s case.
- Prosecutor initially filed a restitution request within the 91‑day reservation window seeking ~$390k in attorney fees; later amended requests and affidavits pushed the claimed amount to ~$688k (after further amendments up to ~$827k).
- District court held a two-day restitution hearing, found good cause to extend the 91‑day period, and ordered $688,535.12 restitution ~15 months after the deferred judgment.
- On appeal Roddy challenged (1) court’s authority to order restitution after 91 days, (2) whether the losses were proximately caused by the conduct to which he pleaded guilty, (3) privilege/waiver issues over attorney billing records, and (4) whether he waived appellate review by withdrawing his plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness: Whether a restitution order entered >91 days after conviction is void unless court found good cause to extend | People: 91‑day limit governs prosecutor’s submission timing; court may rely on prosecutor’s good‑cause showing to extend | Roddy: 91‑day limit binds the court; no timely good‑cause finding, so order was unauthorized | Court: Court had authority because good cause existed to extend the period; order reversed on other grounds (proximate cause) but timeliness upheld here. |
| Appealability after withdrawn plea: Whether withdrawing plea (deferred judgment dismissed) waived appeal of restitution | People: By withdrawing plea and obtaining dismissal, defendant waived non‑jurisdictional challenges to restitution | Roddy: Withdrawal did not waive appeal rights; restitution is separately appealable and enforceable after deferred judgment | Court: Defendant retained right to appeal the restitution order; withdrawal did not bar review. |
| Proximate cause / scope: Whether restitution may include losses unrelated to the trespass (e.g., attorney fees for alleged computer crimes) | People: Restitution may cover attorney fees and investigative costs tied to victim’s losses arising from defendant’s overall misconduct | Roddy: He only pleaded to trespass; restitution must be limited to pecuniary losses proximately caused by that admitted conduct | Court: Restitution must be limited to losses proximately caused by conduct to which defendant pleaded guilty; remanded to identify allowable items. |
| Attorney‑client privilege & waiver: Whether victim’s counsel billing records (task descriptions) are privileged or waived and what must be produced | People: Produced redacted bills; reliance on victim’s counsel was proper; prosecution may use counsel’s input | Roddy: Billing task descriptions are privileged and must be disclosed for meaningful challenge or in camera review | Court: Task descriptions can be privileged; where already disclosed to prosecution or its expert privilege waived; otherwise court must conduct in camera review and require appropriate redactions or limited disclosure on remand. |
Key Cases Cited
- Sanoff v. People, 187 P.3d 576 (Colo. 2008) (describing statutory scheme permitting postponement of restitution amount at sentencing)
- Wesp v. Everson, 33 P.3d 191 (Colo. 2001) (attorney‑client privilege elements and limits)
- Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533 (Colo. 1989) (privilege may be waived by disclosure)
- Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999) (billing records revealing litigation strategy may be privileged)
- Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127 (9th Cir. 1992) (time records revealing motive or strategy fall within privilege)
- Levy v. Senate of Pennsylvania, 65 A.3d 361 (Pa. 2013) (billing descriptions that reveal strategy or motive are protected)
- Lanari v. People, 827 P.2d 495 (Colo. 1992) (privilege applies where reasonable expectation of confidentiality exists)
- Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000) (attorney‑client privilege principles)
- People v. Madera, 112 P.3d 688 (Colo. 2005) (privilege waived only to extent necessary to allow fair opportunity to defend)
- Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Rec. Dist., 271 P.3d 587 (Colo. App. 2011) (appellate court may affirm on any record‑supported ground)