The People of the State of Colorado v. Brian Allen Rice
No. 19CA0014
Colorado Court of Appeals
October 8, 2020
2020COA143
Opinion by JUDGE JOHNSON
Pueblo County District Court No. 16CR2628, Honorable Thomas B. Flesher, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
October 8, 2020
2020COA143
No. 19CA0014, People v. Rice — Criminal Law — Sentencing — Restitution — Assessment of Restitution
A division of the court of appeals adopts the reasoning from People v. Weeks, 2020 COA 44, which determined that the district court must order a specific amount of restitution within ninety-one days of sentencing. But the division departs from Weeks by holding that a district court may impose restitution after that time based on an implied finding of good cause that is supported by the record.
Court of Appeals No. 19CA0014
Pueblo County District Court No. 16CR2628
Honorable Thomas B. Flesher, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Allen Rice,
Defendant-Appellant.
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE JOHNSON
Dailey and Davidson*, JJ., concur
Announced October 8, 2020
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of
I. Background
¶ 2 On August 7, 2018, Rice pled guilty to one count of first degree aggravated motor vehicle theft, display of unlawful license plates, under
II. Deadline to Determine Restitution Under Section 18-1.3-603(1)(b)
¶ 3 No one disputes that the district court held the restitution hearing ninety-three
A. Standard of Review
¶ 4 The interpretation of the restitution statute is a question of law that we review de novo. People v. Ortiz, 2016 COA 58, ¶ 15. The issue of whether good cause exists to extend the ninety-one-day deadline to determine restitution under
B. Analysis
¶ 5 Restitution is part of the district court‘s sentencing function in criminal cases. People v. Vasseur, 2016 COA 107, ¶ 16. Under the Colorado restitution statute, if a district court decides at sentencing to defer its decision regarding the appropriate amount of restitution, “the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined.”
¶ 6 At Rice‘s sentencing, the district court left open the specific amount of restitution for ninety-one days. Rice argues that under People v. Turecek, 2012 COA 59, ¶¶ 13-15,
1. Ninety-One Day Deadline
¶ 7 Divisions of this court have recently disagreed over whether the court or the prosecutor “determine[s]” restitution under
¶ 8 Weeks, ¶¶ 12-13, held that
¶ 9 People v. Perez, 2020 COA 83, ¶¶ 18-26, 36, on the other hand, held that
¶ 10 Although we understand the rationale underlying Perez, we determine the statutory interpretation in Weeks to be more persuasive.2 Even though the district court did not
2. Good Cause
¶ 11
determine that a showing may be implied. We instead adopt the reasoning of Knoeppchen, ¶ 25, to the extent that division observed that “nothing in the statute explicitly requires the court to make an oral or written finding of good cause; rather, the statute merely requires good cause to be shown.” (Emphasis added.) We acknowledge that the Weeks majority rejected Knoeppchen‘s analysis of
¶ 12 Regardless,
the words and phrases in context, construing them according to the rules of grammar and common usage.“).
¶ 13 Such a showing under the statute is also, in our view, not time-restricted. See Knoeppchen, ¶ 26 (finding “no authority . . . that requires the showing (or finding) of good cause to occur at any particular time“). We therefore reject Rice‘s argument that the district court needed to affirmatively grant an extension within the original statutory time period to enter a valid restitution order after ninety-one days had passed.
¶ 14 With that said, we underscore the requirement that implied good cause must be shown or demonstrated in the record for us to uphold a district court‘s tardy restitution order. See Harman, 97 P.3d at 294; see also Weeks, ¶ 27 (reversing the district court‘s eleven-month late restitution order where “[t]he trial court‘s ruling did not explain, and the record does not show, what good cause, if any, existed for that inordinate delay“) (emphasis added). We will not simply assume good cause exists by virtue of the district court entering an order following the ninety-one day period. See, e.g., Weeks, ¶ 17 (“To the extent that the division in Knoeppchen said that an order extending a prosecutor‘s time to seek restitution
always constitutes good cause under
¶ 15 Here, the record reflects that good cause was shown to extend the time period for determining restitution under
- The parties did not agree on the amount of restitution, so the district court left it open for ninety-one days.
- Three days after the conviction entered, the prosecution filed its motion for restitution, seeking $3605.34 payable to the victim for automobile repairs. Six days after the conviction entered, the district court granted the motion before Rice filed his objection.
- Rice filed his objection to the prosecution‘s proposed restitution fifty-two days after his conviction, leaving the district court with less than half of the presumptive ninety-one-day period.
-
Four business days after Rice‘s objection, the district court placed the matter on its upcoming setting docket. - At the setting hearing, the court attempted to expedite the restitution issue by inquiring whether counsel “could talk and maybe reach an agreement.”
- When this attempt was unsuccessful, the court was left with fifteen days to schedule a restitution hearing, preside over the hearing, and enter a restitution order.
- The court held the restitution hearing two days past the presumptive deadline and, after taking the matter under advisement, entered its final order eight days late.
Such a procedural history constitutes a showing of implied good cause.
¶ 16 The district court kept up with the filings in this case and repeatedly took action; it did not let the issue of restitution languish unresolved for months. Cf. id. at ¶¶ 6-8, 10, 28 (reversing restitution order where more than seven months elapsed without the district court acting on the defendant‘s filed objection). Given the circumstances in this case, we will not vacate an order of restitution where, despite the documented reasonable efforts of the
court, “the press of other business precludes the court from determining the amount within the ninety-one-day window.” See Perez, ¶ 59 (Yun, J., concurring in part and dissenting in part).
III. Restitution Award
¶ 17 Rice contends that the prosecutor failed to prove by a preponderance of the evidence that he proximately caused the damage to the victim‘s vehicle. We agree in part but direct the district court to order a modified restitution amount of $500.
A. Waiver Argument
¶ 18 As an initial matter, we disagree with the Attorney General‘s argument that Rice waived his right to challenge the finding that he caused all the damages reflected in the restitution order.
¶ 19 Rice signed a plea agreement which stated that “[t]he defendant will be ordered to pay restitution to the victim(s) of his/her conduct” and that “[d]ismissed counts will be considered for sentencing and restitution purposes.” He verbally acknowledged this requirement at sentencing and stipulated to a factual basis for his plea.
¶ 20 From these acknowledgments alone, we do not view Rice to have waived the right to challenge causation of the victim‘s
damages for restitution purposes. See People In Interest of A.V., 2018 COA 138M, ¶ 16 (noting that “simply stipulating to a factual basis may be insufficient to waive causation where the issue of causation is not specifically identified or discussed“). The general acknowledgments contained in Rice‘s plea agreement and sentencing statements differ considerably from the specific types of admissions that have characterized scenarios where a court found such a waiver. See, e.g., McCarty v. People, 874 P.2d 394, 400-01 (Colo. 1994) (concluding that the defendant could not disavow restitution obligation where she agreed to restitution amount “on several occasions without objection and while represented by and in the presence of counsel“); A.V., ¶ 18 (concluding the defendant waived his argument challenging causation of restitution where defense counsel conceded exact amount of restitution owed and requested that the court order that amount).
¶ 21 We decline to conclude Rice waived his right to challenge causation and will consider his sufficiency challenge.
B. Standard of Review and Applicable Law
¶ 22 We review the sufficiency of the evidence to support a restitution award de novo.3 People v. Barbre, 2018 COA 123, ¶ 25;
¶ 23 The General Assembly defines restitution as “any pecuniary loss suffered by a victim,” including “losses or injuries proximately caused by an offender‘s conduct and that can be reasonably
calculated and recompensed in money.”
¶ 24 Proximate cause in the context of restitution is defined as a cause which in natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained. People v. Rivera, 250 P.3d 1272, 1274 (Colo. App. 2010).
C. Sufficiency of the Evidence
¶ 25 Rice argues that the prosecution failed to satisfy its burden in proving by a preponderance of the evidence that he proximately caused $3056.82 in damages to the victim‘s vehicle. We agree, except as discussed below, with respect to consideration of the dismissed criminal charge.
¶ 26 In a restitution proceeding, “more than speculation is required in order for a defendant to be ordered to bear responsibility for the victim‘s loss.” People v. Randolph, 852 P.2d 1282, 1284 (Colo. App.
1992). We view the district court‘s conclusion that Rice proximately caused $3056.82 of the victim‘s losses to be speculative.
¶ 27 At the restitution hearing, the court heard evidence concerning the dollar value of damages to the victim‘s vehicle, including testimony from the victim and an itemized list of repair estimates from an auto body shop dated approximately a month from the vehicle‘s recovery. The victim testified the instrument panel, center console, ignition, heating system, front hood, back seat, and bumper were damaged.
¶ 28 But the prosecution did not present evidence at the hearing — and the record contains insufficient evidence — that Rice more likely than not proximately caused these damages. Whereas the victim testified at the restitution hearing that the car had been stolen for almost a year before it was recovered, the police reports and sentencing transcript both reflect Rice‘s own account that he had only purchased the car weeks before, “got a deal that was too good to be true,” and “did not follow the proper channels to ensure the vehicle was not stolen.”
¶ 29 This purported gap of time — indeed a substantial period — between when the car was stolen and when Rice claims to have
obtained possession is problematic in determining whether, and to what extent, Rice proximately caused the damages that the district court awarded. Other divisions of this court have vacated restitution orders involving shorter lengths of time in which the prosecution failed to prove proximate cause for damage due to the defendant‘s mere possession. See, e.g., People in Interest of D.I., 2015 COA 136, ¶ 24 (vacating restitution order for damages to stolen car when the defendant‘s possession did not establish damage to and initial theft of the vehicle two days earlier); Randolph, 852 P.2d at 1284 (reversing restitution order for personal property taken from stolen car where the defendant was not involved with the initial theft).
¶ 30 Rice‘s statements are not dispositive as to what happened in this case. But it was not Rice‘s burden to prove that he did not proximately cause $3056.82 in damages to the car; it was the prosecution‘s burden to prove that he did.
¶ 31 The only evidence that Rice was involved with the initial theft is that the car
possession of the car over the course of the year it was presumably damaged.
¶ 32 Assuming Rice‘s account to be true that he only possessed the car for a short time, it is certainly possible that he caused part, or all, of the $3056.82 in damages in the intervening weeks between when he obtained possession and when the vehicle was recovered upon his arrest. But we find no evidence in the record — and none was presented at the restitution hearing — of when these damages were sustained. Therefore, regardless of when Rice took possession the stolen car, the evidence is insufficient to show that he proximately caused this amount of damages.
¶ 33 The Attorney General argues that D.I. and Randolph are distinguishable, as Rice pled guilty to first degree aggravated automobile theft, while those cases involved the lesser offenses of second degree motor vehicle theft and theft by receiving, respectively. We disagree that the severity of the offense is a distinguishing factor, however, as one can be convicted of aggravated motor vehicle theft in the first degree without having committed the initial theft and causing all of the attendant damages. See
vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and: [engages in any listed behaviors].“)
¶ 34 We therefore reverse the district court‘s restitution order of $3056.82, as the prosecution did not sufficiently prove Rice to have proximately caused the entirety of the damages.
¶ 35 We note, however, that Rice signed a plea agreement stating that “[d]ismissed counts will be considered for sentencing and restitution purposes.” (Emphasis added.) We now turn to whether consideration of the dismissed charge warrants entry of a modified restitution award.
D. Consideration of Dismissed Charge
¶ 36 One dismissed count with which Rice was charged was first degree aggravated motor vehicle theft (causing five hundred dollars or more in property damage). See
the course of obtaining control over or in the exercise of control of the motor vehicle.” Id.
¶ 37 We acknowledge that restitution may not be awarded for criminal conduct of which the defendant was acquitted, see Cowen v. People, 2018 CO 96, ¶ 24, or for conduct with which the defendant was never criminally charged, People v. Sosa, 2019 COA 182, ¶ 1.
¶ 38 But here, the plea agreement mandates the consideration that Rice caused a minimum of five hundred dollars of damage. Although the prosecution did not sufficiently prove Rice proximately caused specific damages above this minimum amount, awarding restitution in the modified amount of $500 gives effect to the terms of Rice‘s plea agreement. See People v. Antonio-Antimo, 29 P.3d 298, 303 (Colo. 2000) (“Plea agreements are contractual in nature.“); People v. Johnson, 999 P.2d 825, 829 (Colo. 2000) (“Determination of the parties’ obligations under a plea agreement is a question of law we review de novo.“); see also Sosa, ¶ 29 (acknowledging that the prosecution and defense may “enter[] into a plea agreement pursuant to which dismissed or uncharged counts will be considered for purposes of restitution“).
¶ 39 Aside from Rice‘s plea agreement, which explicitly contemplates a restitution award covering dismissed charges, such an award is further bolstered by the record. The district court‘s ordered restitution of $3056.82 was a reduction from the prosecution‘s original proposed amount of $3605.34. This reduction was based on Rice‘s filed objection that the amount of restitution was “excessive” because he did not cause the damage to the front bumper.
IV. Conclusion
¶ 41 The district court‘s restitution order is affirmed in part and reversed in part, and the case is remanded with instructions to award restitution in the modified amount of $500.
JUDGE DAILEY and JUDGE DAVIDSON concur.