The People of the State of Colorado v. Jonathan D. Roddy
No. 17CA2267
Colorado Court of Appeals
April 23, 2020
2020COA72
JUDGE TERRY; Yun, J.; Tow, J.
Boulder County District Court No. 15CR1874; Honorable Maria E. Berkenkotter, 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
April 23, 2020
2020COA72
No. 17CA2267, People v. Roddy — Criminal Law — Sentencing — Restitution — Assessment of Restitution
Distinguishing People v. Weeks, 2020 COA 44, a division of the court of appeals holds that, because the prosecution presented its restitution request ninety days after defendant‘s conviction entered, seeking hundreds of thousands of dollars in attorney billings, good cause existed to extend the period for determining restitution so that the defendant would have the opportunity to object to the restitution request and the court would have the opportunity to review and rule on the award.
The special concurrence highlights the ambiguities in the wording of
COLORADO COURT OF APPEALS
2020COA72
Court of Appeals No. 17CA2267
Boulder County District Court No. 15CR1874
Honorable Maria E. Berkenkotter, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jonathan D. Roddy,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TERRY
Yun, J., concurs
Tow, J., specially concurs
Announced April 23, 2020
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan, & Foreman P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver, Colorado, for Defendant-Appellant
I. Background
¶ 2 Defendant‘s guilty plea was a result of a complicated series of events involving the victim, who was his ex-wife. The following allegations were made by the prosecution.
¶ 3 Defendant and the victim share a child and were divorced in 2003. Since 2009, defendant and the victim had been engaged in litigation regarding parenting time, decision-making authority, and child support.
¶ 4 In a motion to temporarily restrict parenting time, filed in 2014, defendant included photographs of the inside and outside of the victim‘s home. Suspicious that the photos had been shot from inside her home, the victim hired a forensic photographer to investigate the location from which the photographs had been taken. The investigator concluded that the photos had been shot from inside the house. It was then apparent that defendant had entered the house without the victim‘s permission, in violation of a court order, while she was out of town in November 2014.
¶ 5 The victim also discovered that defendant and his wife were using the victim‘s son‘s iPad to access the victim‘s personal emails and digital files that were stored in Apple‘s “iCloud” storage system. Defendant‘s wife had downloaded many of the victim‘s documents from the son‘s computer, including her email communications with her attorney regarding the domestic relations litigation. The emails also included the victim‘s communications with her financial advisors, accountants, family, and friends. Defendant and his wife intended to use the data they obtained against the victim in the domestic relations case.
¶ 6 The victim became involved in protracted litigation with defendant and his wife to retrieve her data. She tried to obtain permanent protection orders against dеfendant and his wife, and the parties entered into a settlement agreement in which defendant and his wife represented and warranted that they had returned all of the data, that they did not have any copies of the data, and that they would no longer use the data. Shortly thereafter, the victim alleged that defendant and his wife were continuing to use the victim‘s data in violation of the agreement. The parties then became involved in an arbitration proceeding for breach of the settlement agreement, and a contempt proceeding related to the domestic relations case.
¶ 7 Defendant and his wife were each charged in separate cases with one count of stalking and one count of computer crime. After defendant pleaded guilty in this case to
II. Withdrawn Guilty Plea
¶ 8 As an initial matter, the People contend that defendant waived his right to appeal the restitution order because, as part of the deferred judgment, he successfully withdrew his guilty plea and obtained dismissal of the criminal charge against him, and payment of restitution was a condition of that deferred judgment. We disagree with the People‘s contention.
¶ 9
¶ 10 Furthermore, the terms of the plea agreement did not indicate that defendant waived his right to appeal all non-jurisdictional issues related to the restitution order. The plea agreement, according to the People, simply stated that defendant had sufficient income or assets to pay all restitution ordered by the court, and that failure to comply would be a violation of the plea agreement. Those terms do not address, much less waive, defendant‘s appellate rights to the restitution order.
¶ 11 We are also not persuaded by the People‘s contention that our supreme court‘s opinions in Neuhaus v. People, 2012 CO 65, and Kazadi v. People, 2012 CO 73, warrant a different result. Both cases are distinguishable.
¶ 12 Relying on Neuhaus, the People argue that “a defendant‘s motion to withdraw his guilty plea and dismiss the case pursuant to [
¶ 13 The People next argue that, under Kazadi, defendant was obligated to seek a withdrawal of his plea agreement under
III. Timeliness of Restitution Order
¶ 15 Defendant contends that the trial court did not have authority to enter the restitution order against him because it was entered more than ninety-one days after entry of his deferred sentence. We disagree.
A. Procedural Background
¶ 16 Defendant entered his guilty plea on July 20, 2016, and the court reserved restitution for ninety-one days. The People filed a motion for restitution within the ninety-one-day period, requesting that the court order restitution of $390,613.90, which represented the legal fees and disbursements that the victim made to two different law firms.
¶ 17 Defendant filed an objection to the restitution amount and requested that the court ordеr the People to set forth a good faith basis for the requested restitution. The People filed their response in which they requested time to confer with the victim‘s civil attorney and with defendant‘s counsel, and the court granted this request.
¶ 18 After the parties met, the People filed a motion in February 2017 informing the court that the victim‘s civil attorney was concerned about releasing unredacted invoices because of the attorney-client privilege, and that the civil attorney would like to have a restitution hearing after resolution of the civil arbitration hearing, which was scheduled for June 2017. Defendant filed a motion to dismiss the People‘s restitution request based on the delay, and the court ordered a restitution hearing to resolve these issues.
¶ 19 In July 2017, before the restitution hearing, the People moved to amend the restitution request tо $827,236.22, explaining that the increase resulted from the victim‘s ongoing civil litigation with defendant. The People later filed affidavits supporting a reduced restitution amount of $688,535.12. The reduced amount accounted for attorney fees and costs that the victim had received in the contempt litigation. The People provided defendant‘s counsel with redacted billing records to preserve the victim‘s attorney-client privilege.
¶ 20 After a two-day hearing, the court ordered defendant to pay restitution of $688,535.12.
B. Analysis
¶ 21 Every order of conviction for a felony shall include consideration of restitution.
(a) An order of a specific amount of restitution be paid by the defendant;
(b) An order that the defendant is obligated to pay restitution, but that 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;
(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or
(d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.
¶ 22 An order for restitution may also be increased if “additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court.”
¶ 23 Defendant contends that, under Meza v. People, 2018 CO 23, and People v. Turecek, 2012 COA 59, the court lacked authority to enter its October 20, 2017, restitution order because it did so after its statutory authority expired. He argues that the court was bound by the ninety-one-day limit in
¶ 24 A division of this court recently addressed this issue and held that a district court is obligated to order a specific amount of restitution within ninety-one days, unless good cause exists to extend that deadline. People v. Weeks, 2020 COA 44, ¶¶ 13-15.
¶ 25 Assuming, without deciding, that the statutory ninety-one-day time limit applies to the period within which the court must enter an order for a specific amount of restitution, we conсlude that the district court here had authority to enter an order for restitution after the ninety-one-day deadline because good cause existed to extend the time period. See Meza, ¶¶ 13-14 (referring to a court‘s findings within ninety-one days but recognizing statutory extension of that time “for good cause“); Weeks, ¶ 20 (same); People v. Knoeppchen, 2019 COA 34, ¶ 20 (same); Turecek, ¶ 13 (same).
¶ 26 The court found that good cause had been shown to allow the People to file their amended restitution requests because the victim continued to incur and pay attorney fees. Given this good cause finding, the court must necessarily have found good cause to likewise extend its own determination of restitution. See
¶ 27 Furthermore, the record supports that there was good cause to extend the time under
¶ 28 After expiration of the ninety-one-day statutory period, defendant filed a “Motion to Compel People to Set Forth Good Faith Basis for Pecuniary Loss Pursuant to C.R.S. 18-1.3-601 et seq. and Objection to Restitution.” Had the court ordered restitution within ninety-one days, it would have provided defendant an inadequate opportunity to lodge objections — a situation that would have been grossly unfair to defendant, especially given the size and complexity of the restitution demand. See Weeks, ¶ 20 (“[I]f the prosecution needs the full ninety-one days (or more) to complete its request for restitution under
¶ 29 We conclude that the court did not err in finding good cause, and, thus, the court had authority to enter the order. That good cause finding renders this case distinguishable from Turecek and Meza, cited by defendant. See Turecek, ¶¶ 14-15 (because prosecution did not determine a specific amount of restitution within then-applicable ninety day pеriod, prosecution‘s initial restitution request was merely an estimate, and record did not establish that good cause existed for prosecution‘s delay in determining restitution, district court erred in imposing restitution as requested by prosecution); see also
IV. Proximate Cause
¶ 30 Defendant next argues that the court erred in concluding that his unlawful conduct proximately caused the victim‘s losses because he pleaded guilty only to the physical trespass of her home and did not plead guilty to any computer crimes. Because we agree with defendant‘s contention to the extent the restitution amounts were unrelated to the physical trespass, we reverse the restitution order and remand for the district court to award restitution only for the losses proximately caused by his conduct.
¶ 31 Restitution is defined as “any pecuniary loss suffered by a victim.”
¶ 32 Proximate cause can be found where the victim incurs expenses to avoid or mitigate the consequences of a specific and оngoing threat related to the offender‘s unlawful conduct, rather than merely to mitigate against a general feeling of insecurity. Martinez, ¶¶ 35-38; People in Interest of D.W., 232 P.3d 182, 185 (Colo. App. 2009).
¶ 33 Our supreme court recently held that conduct underlying an acquitted charge cannot serve as the basis for a restitution order. Cowen v. People, 2018 CO 96, ¶ 24. The court based its decision on an interpretation of the restitution statutes and concluded that the statutes limit restitution liability “to individuals found guilty of causing injury or property loss that resulted in suffering or hardship to victims harmed by their misconduct.” Id. at ¶ 19.
¶ 34 A division of this court extended Cowen to hold that procedural due process does not allow a court to order a defendant to pay restitution based on losses caused by uncharged conduct. People v. Sosa, 2019 COA 182, ¶¶ 26-27. The division also addressed dismissed charges and reasoned:
Unlike uncharged conduct, a dismissed charge is based on conduct for which an individual has been criminally charged. But like unchаrged conduct, when a charged count is dismissed, an individual cannot be found guilty of (or plead guilty to) that crime. She cannot be deemed an “offender” as to the dismissed count, the conduct underlying the dismissed count cannot be deemed the “conduct of an offender,” and no person can be considered a victim as to that conduct. And she retains the presumption of innocence as to the dismissed count. Thus . . . no court may order restitution for losses proximately caused by conduct underlying a dismissed charge. Due process so requires.
Id. at ¶ 28 (citations omitted).
¶ 35 The division noted that its decision does not prevent the prosecution and the defense from entering into a plea agreement that allows the dismissed counts to be considered for restitution purposes. Id. at ¶ 29. We agree with the Sosa division‘s reasoning and see no reason to depart from it.
¶ 36 Here, the deferred judgment agreement did not detail the charges for which defеndant would be required to pay restitution. The agreement merely said that “defendant agrees that he has a sufficient amount of income and/or assets to pay all of the restitution and fees ordered by the court.” The record does not indicate whether defendant was aware that he would be liable for restitution for the dismissed charges when he entered his guilty plea. But to the extent the People argue that defendant is responsible to pay these items as a complicitor, we reject that notion, because he did not plead or otherwise admit to being complicit in his wife‘s conduct.
¶ 37 We conclude that under these circumstances, defendant is only liable for restitution
V. Attorney-Client Privilege
¶ 38 Defendant next contends that the trial court erred in concluding that the attorney-client privilege applied to the victim‘s attorney billing records. He further contends that, if the privilege did apply, the victim waived it by placing the records at issue. We agree in part.
¶ 39 We note that our holding — that restitution may not be ordered with respect to conduct for which defendant was not convicted or did not agree to be responsible in a guilty plea — renders the court‘s previous restitution award obsolete, аnd to the extent some of the billing records relate only to conduct for which he was not convicted, those records are irrelevant.
¶ 40 To the extent the prosecution continues to seek restitution, we provide the following guidance to the court on remand.
¶ 41 The attorney-client privilege operates to protect communications between attorneys and clients relating to legal advice,
¶ 42 Any descriptions of the tasks performed by counsel that may be contained in the bills could be attorney-client privileged information. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 402-03 (4th Cir. 1999) (billing records that reveal specific research or litigation strategy would be entitled to protection from disclosure); Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature оf the services provided, such as researching particular areas of law, fall within the [attorney-client] privilege.“); Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013) (billing records that contain descriptions of legal services that address the client‘s motive for seeking counsel, legal advice, strategy, or other confidential communications are undeniably protected under the attorney client privilege).
¶ 43 To the extent the victim or her counsel disclosed the billing records with task descriptions to the prosecution, or to the prosecution‘s expert witness who opined on their reasonableness, and those billing records are still in issue with respect to restitution, any attorney-client privilege was waived as to those records. See Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 543 (Colo. 1989) (recognizing that attorney-client privilege may be waived if, “by words or conduct, [the privilege holder] has expressly or imрliedly forsaken his claim of confidentiality” with respect to the information in question).
¶ 44 We see no basis to conclude that the prosecution or its expert could be in privity with the victim for purposes of the attorney-client privilege. The privilege extends only to matters communicated by or to an attorney‘s client in the course of gaining counsel, advice, or direction with respect to the client‘s rights or obligations.
¶ 45 To the extent (1) the prosecution, on remand, continues to seek restitution for the victim‘s attorney fees, (2) the attorney task descriptions in the applicable billing records have not been previously disclosed to the prosecution or the expert witness, and (3)
¶ 46 If the court, after in camera review, determines that any particular attorney fee item is likely subject to payment as restitution, it should order the prosecution to provide the defense with at least some description of the task performed by counsel, so that defendant has a fair opportunity to review and challenge the propriety of ordering him to pay it as restitution.
VI. Due Process and Public Policy
¶ 47 Defendant contends that multiple alleged errors violated his right to duе process and contravened public policy.
- Defendant contends that it was fundamentally unfair for the court to enter an order based on amounts that were unclear and were constantly revised. Because we are reversing the court‘s order and remanding for further consideration of restitution, we need not address this contention.
- Defendant next contends that the prosecution abdicated its constitutional and statutory responsibility to independently determine whether restitution is proper by relying on the victim‘s civil attorney‘s representations. We disagree. The prosecution is statutorily required to compile all information pertaining to restitution “through victim impact statements or other means.”
§ 18-1.3-603(2) . We see no error in the prosecution‘s reliance on assistance from the victim‘s counsel in determining her losses. - Defendant also argues that he should have been provided with the email communications between the prosecution and the victim‘s civil attorney because they would have shed light on the basis of the restitution request and on whether the prosecution independently determined that restitution was proper. To the extent this issue remains relevant on remand, given our rulings, the district court must determine whether and to what extent such disclosure should be granted.
VII. Conclusion
¶ 48 The restitution order is reversed and the case is remanded to the district court for further proceedings.
JUDGE YUN concurs.
JUDGE TOW specially concurs.
JUDGE TOW, specially concurring.
¶ 49 I agree that the district court had jurisdiction to order restitution in this case and that Jonathan D. Roddy can only be ordered to pay restitution for pecuniary losses that were proximately caused by the conduct to which he pleaded guilty. However, I write separately to аddress the need for clarification or re-assessment of the restitution statute by both the Colorado Supreme Court and the legislature.
I. The Process of Reserving Restitution
A. The Historical View
¶ 50 As the majority notes, there are four proper ways for a sentencing court to address restitution at the time of sentencing: (1) order a specific amount; (2) order that the defendant is obligated to pay restitution, but defer establishing the actual amount; (3) order that the defendant is obligated to pay the actual costs of specific future treatment for the victim; or (4) find that no victim suffered a pecuniary loss and thus no restitution is owed.
¶ 51 Notably, this subsection of the statute does not explicitly identify who is “determining” the amount for purposes of this deadline. But the nеxt subsection of the statute references how, and by whom, restitution is “determined“:
The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney‘s ability to determine restitution.
¶ 52 Despite this language, our appellate courts have routinely stated, or at least assumed, that the determination of restitution referenced in
¶ 53 Several other divisions have at least assumed that to be the case. In People v. Harman, 97 P.3d 290, 293 (Colo. App. 2004), a division of this court rejected a claim that the ninety-one-day provision was jurisdictional. In doing so, the division observed that “[t]he General Assembly set forth separate standards for accepting the late presentation of restitution information by the prosecutor and for the late determination of the restitution amount.” Id.
¶ 54 In People v. Turecek, 2012 COA 59, ¶ 13, a division of this court held that the statute “mandates the determination of the specific amount of restitution within ninety days of the order of conviction and provides an exception only if good cause to extend that time period is shown.”1
¶ 55 And in People v. Knoeppchen, 2019 COA 34, ¶ 19, the division stated that when the determination of restitution has been reserved, “the statute requires the amount of restitution to be established within ninety-one days.” However, in a footnote, the division observed that making the deadline for the prosecution to provide the court with restitution information the same as the deadline for the court to set the amount of restitution creates an inconsistency such that the sentencing court in many, if not most, situations would not be able to rule by the ninety-first day. Id. at ¶ 19 n.4.2
¶ 56 Our supreme court has never been directly asked to resolve this question, but has made observations similar to those in Weeks,
Harman, Turecek, and Knoeppchen reflecting at least an assumption that the deadline in
¶ 57 For example, in Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008), the court exрlained that this provision, originally enacted in 2000, altered the statutory process for establishing criminal restitution. Before this enactment, the amount of restitution had to
¶ 58 The supreme court again addressed this scheme in two companion cases involving the sentencing court‘s ability to modify restitution once ordered. People v. Belibi, 2018 CO 24; Meza v. People, 2018 CO 23. In Belibi, the court stated that “the current statutory scheme permits a criminal court, under certain circumstances, to order a defendant obligated to pay restitution and yet order that the specific amount of restitution be set within ninety-one days.” Belibi, ¶ 7. Notаbly, this language was qualified with the phrase “[a]s we described more fully in Meza v. People, 2018 CO 23, ___ P.3d ___, also reported today by this court.” Id.
¶ 59 In Meza, however, the court was not as direct. In fact, the court seemed to use different nomenclature to refer to the sentencing court‘s act of establishing a restitution amount. For example, the court observed that the 2000 legislation “altered existing law by relieving the sentencing court of its obligation to set the amount of restitution at the time of sentencing.” Meza, ¶ 10 (emphasis added). Similarly, in discussing how a court might be faced with altering a non-final restitution amount, the court stated, “[t]he statutory scheme therefore allows for specific amounts of restitution to be determined and ordered at sentencing, without their necessarily representing the ‘final amount’ to be set by the court.” Id. at ¶ 15 (emphasis added). In other words, Meza appears to recognize the difference between the determination of the amount of restitution and the trial court‘s act of setting or ordering that amount. Indeed, the court аlso stated that “the statutory scheme does not explicitly limit the circumstances under which a sentencing court may postpone until after conviction a final determination of the specific amount of restitution owed by the defendant.” Id. at ¶ 11. This language is difficult to reconcile with an interpretation of the ninety-one-day deadline in
B. A Different Interpretation
¶ 60 Significantly, the issue of whether this particular ninety-one-day deadline applied to the sentencing court‘s act of entering an order imposing restitution or merely to the prosecution‘s act of providing restitution information to the sentencing court was not before the supreme court in Sanoff, Belibi, or Meza. In Sanoff, the issue was solely whether the filing of a direct appeal of a judgment of conviction divested the sentencing court of jurisdiction to order a specific amount of restitution while the appeаl was pending. Sanoff, 187 P.3d at 577. In Belibi and Meza, the issue was not whether the sentencing court ruled (or was required to rule) within ninety-one days, but rather whether it could change the amount of restitution previously ordered. Belibi, ¶ 2; Meza, ¶ 2.
¶ 61 Thus, in my view, the language in each of these cases appearing to state that the time period in
¶ 62 The first reason for my disagreement is rooted in the canon of statutory interpretation that counsels us to “ascribe the same meaning to the same words occurring in different parts of the same statute, unless it clearly appears therefrom that a different
¶ 63 As noted, both
prosecuting attorney. First, it provides that the prosecuting attorney “shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims.”
¶ 64 To the contrary,
¶ 65 The word “determine” should be given the same meaning throughout the statute — i.e., the process of identifying the amount of restitution and the victims to which it is owed.4 There is nothing in the statute to suggest the legislature intended otherwise. Indeed, as noted in Knoeppchen, to read the provisions as if one refers to the prosecutor‘s gathering of the information to present to the court and the other refers to the sentencing court‘s ultimate resolution of the request based on that information would set up a frequent conflict in that the court would often be left with little to no time to rule without giving the defendant an opportunity to respond to the request. It would seem odd for the legislature to provide for a “good cause” extension when the need for such an extension would appear to be the rule and not the exception.5
¶ 66 Significantly, within this same statute, the legislature used a different term than “determine” when referring to the sentencing
court‘s act of establishing the final amount of restitution. In particular, the statute provides that if additional victims or losses are later discovered, the sentencing court may increase the amount of restitution provided that “the final amount of restitution due has not been set by the court.”
¶ 67 Moreover, contrary to the division‘s view in Weeks, this construction does not “render
¶ 68 The second paragraph explains how the amount of restitution (if any) is arrived at. Note that the process by which the prosecuting
¶ 69 Nor is it either a superfluity or an inconsistency that the legislature established two different standards to obtain an extension of the ninety-one-day deadline, because the assessment addresses the need for additional time at two different points in the process. The first provision allows the court to determine at the time it enters the order of conviction that there is good cause for granting an initial period of deferral longer than ninety-one days. The second provision allows for an additional deferment period, but to warrant this additional time requires a different showing — “extenuating circumstances.”
¶ 70 Moreover, this interpretation differs from the historically held view of the statute in that it avoids the nearly unworkable conflict created when the two ninety-one-day provisions are read to apply to different acts (the prosecution‘s provision of the information and the court‘s ultimate decision imposing restitution). Also, the historical view increases the possibility that a victim loses the right to restitution, and a defendant avoids responsibility to pay it, merely because a trial court does not aсt within the relatively short time period. Instead, by reading the statute as imposing deadlines by which the prosecution must act, but granting the court the flexibility to adjust those deadlines, this construction serves the purposes of the statute, which include imposing restitution as “a mechanism for the rehabilitation of offenders,” deterring “future criminality,” ensuring full restitution for victims of crime in the most expeditious manner, and “aid[ing] the offender in reintegration as a productive member of society.” See
¶ 71 Under this interpretation, having reserved restitution for ninety-one days,6 the court could extend the initial deadline based on “extenuating circumstances affecting the prosecuting attorney‘s ability to determine restitution.”
continually moving target.7 Thus, I agree, albeit for reasons different than the majority, that the sentencing court had the authority to enter a restitution order outside of the ninety-one-day window.