Thе PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rollin Michael OLIVER, Defendant-Appellant.
Court of Appeals No. 14CA2127
Colorado Court of Appeals, Div. III.
Announced December 15, 2016
As Modified on Denial of Rehearing January 12, 2017
2016 COA 180M | 1168
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Rollin Michael Oliver, appeals the district court‘s order reaffirming its award of restitution and denying his Crim. P. 35(a) motion to correct that award as an allegedly illegal sentence. Specifically, Oliver appeals the portion of his sentence ordering him to pay $365,565.07 in restitution to the
I. Background and Procedural History
¶ 2 In June 2012, Oliver and a friend were confronted by a group of men at a City Park “Jazz in the Park” event. One of the men in the group punched Oliver‘s friend. During the altercation, Oliver pulled a gun and fired it in the direction of the group. One of the shots struck a Denver Police officer who was in the vicinity. The officer sustained a bullet wound to the head, and she was pronounced dead at the hospital.
¶ 3 Police arrested Oliver several hours later, and he was charged with first degree extreme indifference murder. Oliver later pleaded guilty to second degree murder in exchange for dismissal of the first degree murder count and a sentencing range of sixteen to twenty-six years. The district court sentenced Oliver to twenty-six years in the custody of the Department of Corrections.
¶ 4 The prosecution timely filed a demand for restitution naming the Department as a victim and attached documentation from the Department showing its claimed losses. The prosecution alleged that the Department paid $12,469.42 in medical costs for the officer and $33,219.75 in “survivor benefits” to the officer‘s dependent minor daughter. It further alleged that the Department owed a balance of $319,875.90 to the officer‘s minor daughter in “survivor benefits” that were required to be paid to her in the future. In sum, the prosecution stated that the Dеpartment would pay a total of $365,565.07 as a result of Oliver‘s murder of the officer, and it requested an award of restitution in that amount. The district court agreed and ordered Oliver to pay restitution to the Department in the amount of $365,565.07 as part of his sentence.
¶ 5 Several months later, Oliver filed a written objection to the restitution order. Oliver‘s objection asserted that the Department was not a “victim” for restitution purposes and, therefore, the restitution imposed by the district court was not legal. The district court ordered the prosecution to respond to the objection and specifically address whether Oliver‘s objection was timely. The prosecution did not respond, and the district court set the matter for a hearing.
A. Restitution Hearing
¶ 6 At the outset of the September 2014 hearing, the court dеtermined that Oliver‘s objection was timely because his argument challenged the legality of his restitution sentence, which could be challenged at any time under Crim. P. 35(a). The court then allowed testimony and arguments to proceed.
¶ 7 Oliver called Kelly Hopper as his sole witness. Hopper was an employee of the Department in the Workers’ Compensation Unit, and specifically, within the subrogation division. She testified that her job was to determine if the Department could recoup any of the funds it expended on benefit payouts through subrogation of a third party. She testified that seeking restitution in a criminal action against a defendant who committed a crime causing the Department‘s financial loss is one way the Department attempts to recoup such losses.
¶ 8 Hоpper explained that the City and County of Denver self-insures its workers’ compensation benefits for all employees of the City and County of Denver, including the Denver Police Department (DPD). According to her testimony, the Department, an agency of the City and County of Denver, manages workers’ compensation claims and benefits for all employees of the City and County of Denver instead of a private workers’ compensation insurance company. Hopper repeatedly testified that the Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole.
¶ 9 Hopper further testified that death benefit payouts under the Workers’ Compensation Act of Colorado (the Act),
¶ 10 At the conclusion of Hopper‘s testimony, Oliver‘s counsel argued that the Department was not a victim under the applicable restitution statute because, under Colorado law, a government agency such as the Department could not be a victim for restitution purposes unless certain conditions were met, and those conditions were not present in this case. Counsel did not argue that it was improper to include the death benefits in the restitution amount because thе officer‘s average weekly wage was used to calculate the death benefits owed to the minor daughter. As pertinent here, the prosecution argued that the Department was a victim for purposes of restitution because it was an insurer that suffered a pecuniary loss as a result of Oliver‘s murder of the officer. Oliver responded by arguing that the Department could not be considered an insurer because there was no evidence of a contract between the deceased officer and the Department.
B. The District Court‘s Findings and Ruling
¶ 11 The court found that
¶ 12 Thus, the court reaffirmed its previous restitution award of $365,565.07 and denied Oliver‘s Crim. P. 35(a) objection to that award. This appeal followed.
II. The Department Was a “Victim”
¶ 13 We first address and reject Oliver‘s contention that the Department was not a “victim” for purposes of restitution.
¶ 14 In support of this contention, Oliver argues that the district court imposed an illegal sentence by making a restitution award to the Department for three reasons: (1) because the court considered and relied on statutory language not in effect at the time Oliver committed his crime in determining that the Department was a “victim“; (2) because, under the statute in effect at the time of Oliver‘s crime, the Department was not a direct “victim” of Oliver‘s crime; and (3) because the Department was not a “victim” under
¶ 15 As an initial matter, we agree with Oliver that the district court erred in considering language from
A. Preservation and Standard of Review
¶ 16 Oliver preserved his argument that the restitution order was not authorized by law because the Department was not a “victim” by his written objection to restitution and his arguments at the restitution hearing. “An illegal sentence is one that is not authorized by law, meaning that it is inconsistent with the sentencing scheme established by the legislature.” People v. Jenkins, 2013 COA 76, ¶ 11, 305 P.3d 420. We review the legality of a sentence de novo. People in Interest of J.S.R., 2014 COA 98, ¶ 12, 338 P.3d 1088.
¶ 17 Oliver‘s arguments involve a question of statutory interpretation, which is also an issue we review de novo. Jenkins, ¶ 12. More specifically, “[w]hether the sentencing court interpreted the statutory sentencing scheme correctly is a question of statutory interpretation that we review de novo.” People v. Rice, 2015 COA 168, ¶ 10, 378 P.3d 791. As with any statute, our primary task is to give effect to the General Assembly‘s intent by first looking to the statute‘s plain language. E.g., Candelaria v. People, 2013 CO 47, ¶ 12, 303 P.3d 1202. “To discern the General Assembly‘s intent, we look to the plain language of the statute, and where that language is clear and unambiguous, we engage in no further statutory analysis.” Rice, ¶ 11.
B. Applicable Law
1. Restitution Statutes
¶ 18 Every judgment of conviction for a felony offense must include an order of restitution to be paid by the defendant.
¶ 19 In the 2011 version of the restitution definitions, the General Assembly defined a “victim” of an offender‘s conduct for restitution purposes as follows:
(4)(a) “Victim” means any person aggrieved by the conduct of an offender and includes but is not limited to the following:
(I) Any person against whom any felony, misdemeanor, petty, or traffic misdemeanor offense has been perpetrated or attempted;
(II) Any person harmed by an offender‘s criminal conduct in the course of a scheme, conspiracy, or pattern of criminal аctivity;
(III) Any person who has suffered losses because of a contractual relationship with, including but not limited to an insurer, . . . for a person described in subparagraph (I) or (II) of this paragraph (a). . . .
¶ 20 The word “person” is defined as “any individual, corporation, government or governmental subdivision or agency, business trust, . . . limited liability company, partnership, association, or other legal entity.”
2. Colorado Workers’ Compensation Act
¶ 21 The Act provides the exclusive remedy to a covered employee for injuries sustained while the employee is performing services arising in the course of his or her employment. Ferris v. Bakery, Confectionery & Tobacco Union, Local 26, 867 P.2d 38, 42 (Colo. App. 1993). Under the Act,
“[e]mployer” means: . . . The state, and every county, city, town, and irrigation, drainage, and school district and all other
taxing districts therein, and all public institutions and administrative boards thereof without regard to the number of persons in the service of any such public employer. All such public employers shall be at all times subject to the compensation provisions of articles 40 to 47 of this title.
¶ 22 The nature of the Act‘s exclusive remedy creatеs a framework whereby workers’ compensation is an agreement by employers to provide benefits to employees, regardless of fault, and in exchange for assuming that burden, the employer is immunized from claims for tortious injuries to its employees.
¶ 23 Employers subject to the Act, including agencies like the DPD, are required to secure insurance for all employees in one of four ways:
(a) By insuring and keeping insured the payment of such compensation in the Pinnacol Assurance fund;
(b) By insuring and keeping insured the payment of such compensation with any stock or mutual corporation authorized to transact the business of workers’ compensation insurance in this state. If insurance is effected in such stock or mutual corporation, the employer or insurer shall forthwith file with the division, in form prescribed by it, a notice specifying the name of the insured and the insurer, the business and place of business of the insured, the effective and termination dates of the policy, and, when requested, a copy of the contract or policy of insurance.
(c) By procuring a self-insurance рermit from the executive director as provided in section 8-44-201, except for public entity pools as described in section 8-44-204(3), which shall procure self-insurance certificates of authority from the commissioner of insurance as provided in section 8-44-204;
(d) By procuring a self-insurance certificate of authority from the commissioner of insurance as provided in section 8-44-205.
¶ 24 In at least one instance, a division of this court has concluded that a victim‘s workers’ compensation insurer was entitled to recover claimed losses as restitution. People v. Rogers, 20 P.3d 1238, 1239-40 (Colo. App. 2000) (holding that in a vehicular assault of a construction flag worker, workers’ compensation insurеr was a victim and the district court properly imposed restitution for the amount of medical benefits paid by the employer‘s workers’ compensation insurer).2 The insurer in that case was the Colorado Compensation Insurance Authority, id. which, after July 2002, became Pinnacol As- surance3
C. Analysis
¶ 25 Oliver argues that a government agency such as the Department is not entitled to restitution of funds expended in performing the tasks it was statutorily created and mandated to perform. The People argue that the Department is not simply a governmental agency in this instance, but is instead an insurer under
¶ 26 To begin, the Department qualifies as a “person” under subsection (III) because the definitiоn of “person” in
¶ 27 Subsection (III) further requires that the person‘s losses be suffered because of a “contractual relationship” with a person against whom the crime was committed, specifically listing an insurer as an example.
¶ 28 Oliver does not dispute that the officer was employed by the DPD and was working in that capacity at the time he shot her. The DPD, therefore, was responsible under thе Act for paying the officer‘s medical expenses incurred while performing her duties and any other workers’ compensation benefits arising from the shooting, including death benefits to her dependents. E.g.,
¶ 29 Thus, the record here demonstrates a layered contractual relationship under which the employees of the DPD (and their dependents) are the ultimate intended beneficiaries. The DPD pays premiums to, and contracts with, the Department for managing and paying workers’ compensation benefits; the Department, in return, is contractually obligated to pay valid workers’ compensation claims for all employees of the DPD, including the deceased officer here. Although the Department does not have a separate signed written contract with each DPD employee, it is contractually obligated to pay DPD employees’ claims directly to those employees, their dependents, or any service providers used by the employees for their work-related injuries.
¶ 30 The record shows that the Department, as an insurer, had an express contract with the DPD, as an employer, to manage and pay workers’ compensation claims under the Act.4 Nevertheless, the deceased officer and her dependents were the intended or third-party beneficiaries of the contract between the employer and the employer‘s insurer. Black‘s Law Dictionary (Black‘s) defines an “intended beneficiary” as “[a] third-party beneficiary who is intended to benefit from a contract and thus acquires rights under the contract as well as the ability to
¶ 31 Hopper‘s testimony at the restitution hearing and documentary evidence introduced by the prosecution made clear that the City and County of Denver is self-insured for workers’ compensation purposes, and that the Department serves as the City‘s insurer for claims under the Act. For example, Hopper testified as fоllows:
- Defense Counsel: “And can you tell the Court exactly what is the [Department] and how does it function as an insurance company?”
Hopper: “The City and County of Denver self-insures its workmen‘s [sic] compensation benefits for all employees of the City and County of Denver, and [the Department] is the office that manages all of that.” - Defense Counsel: “Would it be fair to say that . . . [the Department] is the insurance company that insures each city agency‘s workers’ compensation benefits obligations since 1981?”
Hopper: “Yes, that is correct.” - Prosecutor: “Is it safe to say that the [Department] is the city‘s insurance company?“.
Hopper: “Oh, yes, sir.”
Hopper also testified that the Department is supervised by the Division of Workers’ Compensation of the State of Colorado and that the Division monitors the Department the samе as it would monitor private insurance companies providing workers’ compensation insurance (e.g., Pinnacol). She further testified that the Department is required to abide by the same requirements as private insurance companies, and the Department collects premiums just like such other insurance companies.
¶ 32 There is no dispute that an insurer can be a victim for purposes of restitution under
¶ 33 We decline to interpret the restitution statutes to allow restitution to private workers’ compensation insurers, as in Rogers, while denying restitution to government agencies that act as insurers in every way under the Act. See
¶ 34 We also reject Oliver‘s argument that the contractual relationship element of subsection (III) of
¶ 35 Although the term “contractual relationship” is not defined in the stat- ute,
¶ 36 The definition of the word “relationship” that is most applicable in a сontract context is “[t]he nature of the association between two or more people; esp., a legally recognized association that makes a difference in the participants’ legal rights and duties of care.” Id. at 1479. Thus, a “contractual relationship” is an agreement that creates legally enforceable obligations and a legally recognized association between the parties that changes their legal rights and duties of care.
¶ 37 For all the reasons described above, the relationship among the three parties—the DPD, the Department, and the deceased officer—meets that definition. The DPD contracted for the Department‘s services as evidenced by the insurance premiums it paid to the Department and thе certificate showing that, since 1981, the DPD has chosen to be self-insured through the Department for workers’ compensation benefits. In return, the Department agreed to manage and pay all workers’ compensation claims and benefits for the DPD‘s employees and their dependents. Under the agreement, therefore, the the deceased officer and her dependents were third-party beneficiaries of the contract between the DPD and the Department. As third-party beneficiaries, the officer and her dependents had legally enforceable rights under that contract and, therefore, had a contractual relationship with the Department. See Villa Sierra Condo. Ass‘n, 878 P.2d at 166.
¶ 38 Further, because we conclude that the Department was acting as an insurer with a contraсtual relationship with the deceased officer, we reject Oliver‘s reliance on People v. Padilla-Lopez, 2012 CO 49, 279 P.3d 651, and People v. McCarthy, 2012 COA 133, 292 P.3d 1090, for the proposition that the Department was not entitled to restitution in its capacity as a government agency. In Padilla-Lopez, the supreme court held that expenses incurred by a government agency are not typically eligible for recovery under the restitution statutes absent an express legislative provision authorizing them or unless the underlying criminal statute encompasses the agency as a primary victim. ¶ 14 (citing Dubois, 211 P.3d at 45-47). The court concluded that the term “victim” in the restitution definitions did not include government agencies that expended funds allocated to them in order to fulfill their public function. Id. at ¶ 18. There, the court ultimately concluded that the El Paso County Department of Human Services (DHS) was not entitled to restitution for funds it expended on services for the child victims of the defendant‘s crimes because the underlying crime of child abuse did not name DHS as a victim and there was no statutory authorization making DHS a victim for restitution purposes. Id. at ¶ 20. Rather, DHS expended the funds as a result of its statutory duty to do so, and the agency was not entitled to recover its ordinary operating expenses performing its public function. Id.
¶ 40 McCarthy is similarly inapplicable. In that case, a division of this court concluded that the Department of Health Care Policy and Finance was not entitled to restitution for Medicaid payments it made to a direct victim of the defendant‘s crimes because (1) the agency was merely expending funds to perform its statutorily mandated function, and (2) it was not an insurer contemplated under subsection (III) because there was no evidence before the court indicating a prior contractual relationship between the agency and the victim. McCarthy, ¶¶ 20, 24-26. Here, by contrast, there is evidence of a prior contractual relationship between the officer and the Department. Oliver does not dispute that the officer was employed by the DPD prior to and at the time of the shooting. And, as discussed above, the Department was an insurer that contracted with the DPD to manage and pay all claims for workers’ compensation benefits to DPD employees and their dependents. Therefore, the deceased officer and her minor child were intended beneficiaries of that insurance agreement, as evidenced by the resulting coverage by the Department of the officer‘s medical claims and death benefits claims.
¶ 41 In sum, we conclude the record is more than sufficient to show that the Department was acting as an insurer with a contractual relationship with the deceased officer when it paid out medical benefits to the officer‘s medical provider and death benefits to the officer‘s minor daughter. The district court, therefore, did not err in concluding that the Department was a victim of Oliver‘s crime for purposes of restitution.
III. Death Benefits are not Loss of Future Earnings
¶ 42 In the alternative, Oliver contends that, even if the Department is a victim under
A. Preservation and Standard of Review
¶ 43 Oliver‘s arguments in the district court focused solely on the Department‘s status as a restitution “victim“; he did not argue that the restitution award was improper because it included “loss of future earnings.” Accordingly, the People assert that we should review Oliver‘s argument regarding “loss of future earnings” for plain error. Because we conclude that, as a matter of law, the district court did not err, we need not decide whether plain error applies here. In determining whether the district court erred, we must engage in statutory interpretation, a legal issue that we review de novo. Jenkins, ¶ 12.
¶ 44 For the reasons discussed below, we discern no error.
B. Applicable Law
1. Restitution
¶ 45 At the time Oliver shot the officer, the General Assembly defined “restitution” as
any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by
law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses or injuries proximately caused by an offender‘s conduct and that can be reasonably calculated and recompensed in money. “Restitution” does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages.
2. Colorado Workers’ Compensation Act Benefits
¶ 46 Under the Act, employees and their dependents are entitled to several kinds of benefits, including medical, disability, and death benefits.
In case of death, the dependents of the deceased entitled thereto shall receive аs compensation or death benefits sixty-six and two-thirds percent of the deceased employee‘s average weekly wages, not to exceed a maximum of ninety-one percent of the state average weekly wage per week for accidents occurring on or after July 1, 1989, and not less than a minimum of twenty-five percent of the applicable maximum per week.
¶ 47 The Act is to be liberally construed to accomplish its beneficent social and protective purpose. E.g., Claimants in the Death of Hampton v. Dir. of Div. of Labor, 31 Colo.App. 141, 145, 500 P.2d 1186, 1188 (1972). In the context of death benefits, “compensаtion legislation is a system of benefits one of whose independent social objectives is to prevent destitution among dependents of workmen who lose their lives in industrial activity.” Id. (alteration and citation omitted).
¶ 48 Under the Act, death benefits are a responsibility of the employer, and such benefits are “fixed statutory payments [for] what may be regarded, and were so regarded by the legislature, as the appropriate responsibility of an employer, and not what it actually takes to support a child.” U.S. Nat‘l Bank of Denver v. Indus. Comm‘n, 128 Colo. 417, 422, 262 P.2d 731, 733 (1953). The fixed liability and the fixed payments are not a substitute for the actual parents’ support of their children. Id. Thus, death benefits are not intended to be a substitute for a parent‘s lost wages, but instead are a type of insurance policy for the dependents, payable by the employer.
¶ 49 Death benefits and disability benefits are independent of one another because they protect two distinct rights—one is for the benefit of the worker who is insured; the other is for the benefit of his or her dependents. This is commonly referred to as the “rule of independence.” E.g., Hoffman v. Hoffman, 872 P.2d 1367, 1370 (Colo. App. 1994). Similarly, death benefits are also distinct from wage loss benefits and compensate individuals for separate losses. City of Loveland Police Dep‘t v. Indus. Claim Appeals Office, 141 P.3d 943, 954 (Colo. App. 2006).
¶ 50 Contrary to Oliver‘s contention, we conclude, as a matter of first impression, that the death benefits paid and to be paid by the Department were authorized by law as proper restitution because of the following:
- the death benefits are a pecuniary loss;
- the loss was suffered by the Department, a victim of Oliver‘s crime;
- the loss was proximately caused by Oliver‘s crime; and
- the loss can be reasonably calculated in money because it was a monetary payout entirely determined by a statutory formula.
¶ 51 Under the rule of independence, death benefits owed under the Act are independent of wage benefits because they are owed to the employee‘s dependents and not to the employee herself. E.g., City of Loveland Police Dep‘t, 141 P.3d at 954; Hoffman, 872 P.2d at 1370. Because these benefits are independent of any wage benefits required by the Act, and because death benefits are considered the dependents’ rights rather than the employee‘s rights, death benefits cannot be considered the employee‘s lost future wages. Instead, such benefits are simply a type of insurance payout triggered by Oliver‘s criminal conduct.
¶ 52 Moreover, it is clear under Colorado law that the type of death benefits here, those benefiting a minor child, are regarded as an employer‘s responsibility—there is no legal dispute over the amount of benefits because the amount is not intended to be equivalent to what it actually takes to raise and support a child. U.S. Nat‘l Bank of Denver, 128 Colo. at 422, 262 P.2d at 733. Therefore, the average weekly wage of the employee is merely a variable in the statutory formula that is used to calculate the fixed amount of death benefits payable to a deceased employee‘s dependents. The method by which this benefit is calculated is simply not relevant to the question whether the Department, as an insurer, can recover through restitution money it paid (and will continue to pay) to a minor dependent of the deceased officer.
¶ 53 In essence, death benefit payments under the Act are meant to compensate a deceased employee‘s dependents just like any other insurance policy payment. The death benefit payments here are no different from a life insurance policy that pays out a fixed amount. The fact that the payout amount here is determined by a formula based on the “policyholder‘s” wages is a distinction without a difference—the fact remains that an insurer, the Department, was required to pay a death benefit solely because of Oliver‘s conduct.
¶ 54 Accordingly, we conclude the district court did not err in awarding restitution that included the death benefits owed to the deceased officer‘s minor daughter. The payments already made qualified as the Department‘s “out-of-pocket expenses,” and the payments to be made in the future are calculable, fixed “future expenses.” See
IV. Conclusion
¶ 55 The district court‘s order reaffirming its restitution award and denying Oliver‘s Crim. P. 35(a) motion is affirmed.
Davidson * and Plank *, JJ., concur
* Sitting by assignment of the Chief Justice under provisions of