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 Date February 13, 2020

No. 16CA1348, Peo v. Stone— Criminal Law — Sentencing — Restitution — Colorado Crime Victim Compensation Act; Labor and Industry — Workers’ Compensation — Benefits — Permanent Partial Disability

When a court is deciding whether to order a defendant to pay

restitution to a crime victim compensation board, which definition

of victim applies: section 18-1.3-602(4)(a), C.R.S. 2019, the one in

the general restitution statute; or section 24-4.1-102(10), C.R.S.

2019, the one in the crime victim compensation board statute? A

division of the court appeals decides that the latter statute controls.

When a court is deciding whether to order a defendant to pay

restitution to a workers’ compensation insurer, are the insurer’s

payments for permanent partial disability compensation for lost

future earnings, which the restitution statute does not allow? A

division of the court of appeals answers this question “no.” COLORADO COURT OF APPEALS

Court of Appeals No. 16CA1348 Douglas County District Court No. 14CR154 Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Cole Stone,

Defendant-Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by CHIEF JUDGE BERNARD Taubman and Navarro, JJ., concur

Announced February 13, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ryan Cole Stone, appeals the trial court’s

restitution order. We affirm in part, and we reverse in part.

I. Background

¶2 Defendant stole a car, and he led the police on a high-speed

chase around the metro Denver area. In the process, he

commandeered several other cars. Colorado State Patrol troopers

tried to stop defendant using “stop sticks” — sticks with spikes on

them designed to puncture a car’s tires to disable it — on E-470,

but he avoided the stop sticks by swerving around them onto the

road’s shoulder. In doing so, he hit one of the troopers with the car,

causing the trooper serious injuries.

¶3 A jury convicted defendant of attempted manslaughter, first

degree assault, vehicular eluding, criminal mischief, six counts of

leaving the scene of an accident, two counts of robbery, two counts

of child abuse, and three counts of aggravated motor vehicle theft.

We affirm these convictions in a separate appeal. People v. Stone,

.

¶4 Defendant objected to the prosecution’s written restitution

request, and he asked for a hearing. Following the hearing, the trial

court granted most of the prosecution’s request. The court asked

1 the prosecution to submit a proposed written restitution order for

its approval that reflected the amounts that it had orally ordered.

The prosecution submitted, and the trial court signed, a written

restitution order in the amount of $252,027.69.

II. Standard of Review and Legal Principles

¶5 Section 18-1.3-603, C.R.S. 2019, requires convicted offenders

to pay restitution to compensate crime victims for the harm that

they have suffered. “The purpose of restitution is to make the

victim whole, and the Restitution Act is to be ‘liberally construed’ to

accomplish that purpose.” People v. McCann,

(Colo. App. 2005)(quoting § 18-1.3-601(2), C.R.S. 2004). A trial

court must order restitution whenever a defendant’s criminal

conduct causes pecuniary damage to a victim. People v. Reyes,

(Colo. App. 2007).

¶6 The prosecution has the burden of proving restitution by a

preponderance of the evidence. People in Interest of D.W.,

(Colo. App. 2009). Specifically, it must establish “the

amount of restitution owed and, generally, that the defendant’s

conduct was the proximate cause of the victim’s loss.” People v.

Henry,

, ¶ 15.

2 ¶7 Generally, we review a court’s restitution order for an abuse of

discretion. Id. at ¶ 12. But, when the issue is whether there was

sufficient evidence to justify the order, we apply de novo review,

evaluating “whether the evidence, both direct and circumstantial,

when viewed as a whole and in the light most favorable to the

prosecution, establishes by a preponderance of the evidence that

the defendant caused that amount of loss.” People v. Barbre,

; see also People in Interest of A.V.,

,

¶ 32.

¶8 This appeal also requires us to interpret statutes. Our review

is de novo. People v. Jenkins,

.

¶9 When we interpret a statute, we must ascertain and give effect

to the legislature’s intent. Colo. Dep’t of Revenue v. Creager

Mercantile Co.,

. “We construe the entire

statutory scheme to give consistent, harmonious, and sensible

effect to all [of its] parts,” and “[w]e give effect to words and phrases

according to their plain and ordinary meaning[s].” Denver Post

Corp. v. Ritter,

(Colo. 2011). If a statute’s

language is clear, we apply it as written.

3 III. Restitution to the Crime Victim Compensation Board

¶ 10 Defendant contends that the trial court erroneously ordered

restitution to the Crime Victim Compensation Board, which we

shall call “the board.”

¶ 11 In Colorado, each judicial district has its own “crime victim

compensation board.” § 24-4.1-103(1), C.R.S. 2019. To be eligible

for compensation, a person must apply to the board. § 24-4.1-

105(1).

¶ 12 The board made two payments that are pertinent to this

appeal. First, the board paid a claim to the trooper’s brother for his

travel expenses to come to Colorado. Second, the board paid a

claim to the trooper’s girlfriend for her lost wages.

¶ 13 Defendant asserts that the trial court erred by awarding

restitution to the board for the payments to the brother and to the

girlfriend for two reasons: (1) they were not “victims” under the

restitution statute; and, (2) even if they were, the prosecution did

not prove that defendant’s conduct proximately caused their losses.

We disagree with both contentions for the following reasons.

4 A. Victim

¶ 14 Defendant first contends that the trial court could not order

restitution to the board because neither the brother nor the

girlfriend met the definition of a victim in the restitution statute.

We are not persuaded.

¶ 15 Under the restitution statute, a “victim” is “any person

aggrieved by the conduct of an offender.” § 18-1.3-602(4)(a), C.R.S.

2019. As is pertinent to this appeal, the restitution statute allows

compensation to a “sibling” or a “significant other,” as that term is

defined in section 24-4.1-302(4), C.R.S. 2019, of a victim, if the

victim is “deceased or incapacitated.” § 18-1.3-602(4)(a)(V).

Defendant asserts that, because the trooper was not “deceased or

incapacitated,” the definitions of “sibling” and “significant other” are

inapplicable to the brother and girlfriend.

¶ 16 But the restitution statute also provides that “victim” means

“[a]ny victim compensation board that has paid a victim

compensation claim.” § 18-1.3-602(4)(a)(IV). In this case, the board

paid for the brother’s travel expenses and the girlfriend’s lost wages.

So, under that statute, the board was the victim. See id.; see also

5 People v. Bohn,

, superseded by statute as

stated in Henry,

.

¶ 17 There are three reasons why we are not persuaded that the

person whom the board reimburses must also meet one of the

definitions in section 18-1.3-602(4)(a) for the trial court to award

restitution to the board.

¶ 18 First, the plain language of section 18-1.3-602(4)(a) does not

go that far. It begins by stating that the word “‘[v]ictim’ means any

person aggrieved by the conduct of an offender and includes but is

not limited to the following . . . .”

(emphasis added).

¶ 19 Second, when looking at the statutes that govern crime victim

compensation boards, we see that a victim includes “any person

who is a relative of a primary victim.” § 24-4.1-102(10)(a)(III),

C.R.S. 2019. A “primary victim” is “[a]ny person against whom a

compensable crime is perpetrated or attempted.” § 24-4.1-

102(10)(a)(I). A “[r]elative” includes a “brother” or “any person who

has a family-type relationship with a victim.” § 24-4.1-102(9).

¶ 20 When reading these statutes together, our first obligation is to

harmonize the definitions of “victim” in section 18-1.3-602(4)(a) and

in section 24-4.1-102(9) and (10). § 2-4-205, C.R.S. 2019. We can

6 do so by concluding that (1) the specific definition of “victim” in

section 24-4.1-102(9) applies to crime victim compensation board

decisions and to trial court decisions awarding restitution to such

boards; while (2) the definition of “victim” found in section 18-1.3-

602(4)(a) applies to all other trial court decisions to award

compensation.

¶ 21 But, third, even if we were to conclude that these two statutes

conflict, we would reach the same result because “[a] primary rule

of statutory construction is that a specific statute prevails over

general legislation.” People v. Weller,

(Colo.

1984); see also § 2-4-205, C.R.S. 2019. And the definition of

“victim” in section 24-4.1-102(9) is more specific than the definition

in section 18-1.3-602(4)(a) because it deals with only one part of the

universe of restitution cases: awards made by crime victim

compensation boards. So defendant’s assertion — the board could

not compensate the brother or the girlfriend because they were not

victims for the purposes of the general restitution statute under

section 18-1.3-602(4)(a) — is rebuffed by the express language of

the statute that governed the board’s decisions in this case.

7 B. Proximate Cause

¶ 22 The prosecution must prove, by a preponderance of the

evidence, that the defendant proximately caused the victim’s loss.

People v. Henson,

. This legal principle brings us

to defendant’s second contention.

¶ 23 In 2015, the General Assembly amended the restitution

statute to address cases in which a compensation board seeks

reimbursement for assistance provided to a victim. See Henry,

¶ 16. “A crime victim may seek compensation from a compensation

board [and,] [i]f the board pays such a claim, a court may order the

defendant to reimburse the board for the amount of assistance that

it paid to the victim.”

(citation omitted).

¶ 24 Under this statute, “the amount of assistance provided and

requested by the crime victim compensation board is presumed to

be a direct result of the defendant’s criminal conduct and must be

considered by the court in determining the amount of restitution

ordered.” § 18-1.3-603(10)(a). This statute creates a rebuttable

presumption that the prosecution has satisfied its burden of

proving “that the defendant’s conduct was the proximate cause of

the victim’s loss.” Henry, ¶ 18. So, “[o]nce a compensation board

8 has established that it paid a victim a set amount, the defendant

has the burden of introducing evidence to show that the amount

paid was not the direct result of his criminal conduct.” Id. at ¶ 19.

¶ 25 Although the division decided Henry before the prosecution

filed its answer brief and defendant filed his reply brief, neither

party mentions it. We will nonetheless assume, without deciding,

that the amended statute does not apply in the present case

because defendant committed the underlying crimes before the

legislature amended the statute. See Ch. 60, sec. 6, § 18-1.3-603,

; see also People v. Stellabotte,

(noting that a statute that is silent on whether it applies

prospectively or retroactively is presumed to apply prospectively

unless an exception applies).

¶ 26 We therefore apply Bohn, ¶ 19, which provided that “where a

[victim compensation board] has paid a victim compensation claim,

the prosecution still must show by a preponderance of the evidence

that . . . the underlying loss was proximately caused by the

defendant.” For our purposes, “[p]roximate cause . . . is defined as

a cause which in natural and probable sequence produced the

claimed injury and without which the claimed injury would not

9 have been sustained.” People v. Rivera,

(Colo.

App. 2010). When the underlying loss is attenuated from the crime,

“the trial court must carefully consider whether proximate cause

exists.”

¶ 27 In other words, the prosecution in this case needed to show

that defendant’s conduct “proximately caused” (1) the brother’s

travel expenses; and (2) the girlfriend’s lost wages. We conclude, for

the following reasons, that the prosecution provided sufficient

evidence to prove that defendant caused the brother’s travel

expenses and the girlfriend’s lost wages.

1. The Brother’s Travel Expenses

¶ 28 The trooper said that his mother and his brother came to

Colorado to visit him before his fifth surgery. He told the court that

“they were there to support [him] and be there physically for [him].”

He added that they would not have visited him but for his surgery.

He said that his mother and his brother rented a car to transport

him “to and from the medical facility and home.” The board’s

director testified that the board reimbursed the mother and the

brother for their travel expenses.

10 ¶ 29 Defense counsel declined to question either the trooper or the

board’s director.

¶ 30 The trial court found that the mother and the brother came to

Colorado to “help [the trooper] in [his] recovery.” But the court also

noted that it had not heard any evidence “related to what the

mother or the brother did for [the trooper] with respect to the

surgery.” The trial court then raised a concern: “they were both

here at the same time providing . . . the same type of service.”

¶ 31 So the court decided that it would only award the restitution

request for the board’s payments to one of the two; it chose, at

random, the brother. Relying on People v. Lassek,

(Colo. 2005), the court decided that “there’s enough of a connection

made . . . that the relative would not have had to come out here to

provide assistance to [the trooper] but for the fact that [he had]

suffered injury at the hands of the defendant.”

¶ 32 In Lassek, the division affirmed a trial court’s restitution

award that included the victim’s parent’s travel to a “memorial

service at which the victim was honored along with other[s] . . . who

had died that year” because “[t]he parents’ attendance at a

memorial service was a natural and probable consequence that

11 would not have occurred without defendant’s actions.”

.

But defendant submits that the trial court misapplied Lassek

because the victim’s parents in that case were clearly “victims”

under the restitution statute. But the issue in Lassek was not

whether the parents were victims under the statute. The issue was,

instead, whether attending a memorial service could be properly

attributed to the defendant’s conduct. At any rate, defendant’s

submission is foreclosed by our conclusion in Part III.A that the

brother and the girlfriend were victims for the purposes of section

18-1.3-602(4)(a)(IV).

¶ 33 Defendant also asserts that, “because the court could not find

that [the trooper] needed help and that his brother and mother

provided it, [the court] had no basis to order restitution to either of

them.” We disagree because defendant misconstrues the trial

court’s findings. The court determined that the prosecution had

proved that the underlying losses — mother’s and brother’s travel

expenses — were proximately caused by defendant’s conduct. In

other words, the mother’s and the brother’s travel expenses were “a

natural and probable consequence that would not have occurred

without defendant’s actions.” Lassek,

. The only

12 reason the court did not award restitution to them both is because

it could not determine whether the trooper needed them both to be

there.

¶ 34 We therefore conclude that the prosecution presented

sufficient evidence to show by a preponderance of the evidence that

defendant proximately caused the brother’s travel expenses. See

City of Littleton v. Indus. Claim Appeals Office,

, ¶ 38

(noting that the preponderance-of-the-evidence standard does not

require a particularly high degree of proof).

2. The Girlfriend’s Lost Wages

¶ 35 The trooper described also described the girlfriend as his

“partner,” and, according to documents in the record, she lived with

him. He told the court that she worked full time as the director of a

preschool, but that she had to take time off to help him recover

from his injuries. He said that she would not have taken time off

work but for his injuries. She took time off during the initial two

weeks that he was in the hospital, and then again after he got out of

the hospital, so that she could transport him to other medical

facilities. The prosecution also submitted pay stubs showing the

amount of time that the girlfriend missed work at the preschool.

13 ¶ 36 The trial court concluded that the prosecution had presented

sufficient evidence to prove that the girlfriend had “provided a

service to [the trooper] immediately after the injury occurred and

that she then suffered a loss in wages as a result of that.”

¶ 37 Defendant contends that the prosecution did not establish

that his conduct had proximately caused the girlfriend’s lost wages

because the trooper’s testimony “did not differentiate between the

time [the girlfriend] spent providing moral versus physical support.”

Defendant believes this distinction is important because “moral

support” does not “necessarily occur during working hours.”

¶ 38 We are not persuaded because defendant does not submit that

the girlfriend’s lost wages were not proximately caused by his

conduct. He simply asserts that some of the support that the

girlfriend gave defendant may have occurred during nonworking

hours. This assertion is irrelevant. The prosecution showed that

the girlfriend took time off work to help the trooper, which “was a

natural and probable consequence that would not have occurred

without defendant’s actions.” Lassek,

. We

therefore conclude, that the prosecution presented sufficient

evidence to show by a preponderance of the evidence that defendant

14 proximately caused the girlfriend’s lost wages. See City of Littleton,

¶ 38.

IV. Restitution to the Workers’ Compensation Administrator

¶ 39 Defendant contends that the trial court erroneously ordered

restitution for the trooper’s “permanent partial disability.” He adds

that permanent partial disability benefits constitute a “loss of future

earnings,” which are not compensable under the restitution statute.

(We note that this challenge only concerns about $26,000 of the

amount that the court ordered him to pay to the administrator;

defendant does not contest the rest of it, which totals more than

$200,000.)

A. Additional Background

¶ 40 The state of Colorado insures itself for workers’ compensation

claims, which means that the state has set aside funds to provide

benefits for its workers who experience on-the-job injuries. It has

contracted with a third-party administrator called Broadspire,

which we shall call “the administrator,” to manage these claims. So

state employees’ workers’ compensation benefits are paid by the

administrator. When a state employee is injured, the administrator

assigns a claims adjuster to investigate the injury and to determine

15 whether the claim is compensable under the workers’ compensation

statute.

¶ 41 There are three types of benefits under the workers’

compensation statute: medical, disability, and death. See generally

§§ 8-42-101 to -125, C.R.S. 2019. The claims adjuster in this case

determined that the trooper was entitled to both medical and

disability benefits, but, for the purposes of this appeal, we are only

concerned with the disability benefits.

¶ 42 There are two general types of disability benefits: temporary

and permanent. See City of Thornton v. Replogle,

(Colo. 1995). When the prosecution filed its request for restitution

in January 2016, the accompanying documents only included

payments made by the administrator for temporary disability

benefits. The prosecution amended its request in April 2016, but it

did not modify the restitution requested for the administrator.

¶ 43 In June 2016, the trial court held the restitution hearing. On

the morning of the hearing, the prosecutor notified the court that

the trooper “was provided updated ongoing benefits that were paid

[by the administrator] so th[e] amount [requested] has changed.”

The prosecutor told the court that he “could deal with this through

16 testimony” and that he had given “a copy to counsel of the updated

information this morning.” Defendant objected to the increased

request “on the basis of lack of notice.” The trial court “noted” the

objection, and it chose to proceed with the hearing.

¶ 44 The claims adjuster testified at the hearing. During her

testimony, the prosecutor offered two exhibits, which reflected the

increased amount of restitution to be paid to the administrator.

Defendant objected to the exhibits and to the increased amounts

contained within them “based on lack of notice.” In response, the

prosecutor explained that he had discovered that “the amounts we

had were a little old” and that he had received updated documents

on the morning of the hearing. He then conceded that, if the court

wanted to limit the amount of restitution to the previous filing

because “there needs to be more notice,” he would file an amended

request. The prosecutor also told the court that the increased

restitution amounts fell “under the rubric of future medical

expenses.” The prosecutor did not mention any new restitution

requests for permanent partial disability.

17 ¶ 45 The trial court overruled defendant’s objection based on lack

of notice, and it admitted the evidence because the objection dealt

only with “a discovery issue.”

¶ 46 During her testimony, the claims adjuster discussed the

differences between the original request submitted in January 2016

and the updated request produced on the morning of the hearing.

As is pertinent to this appeal, the claims adjuster noted that the

updated request included payment for permanent partial disability.

¶ 47 At the end of the hearing, the trial court awarded restitution to

the administrator for its payment to the trooper of permanent

partial disability benefits.

B. Permanent Partial Disability Benefits

¶ 48 Defendant submits that the trial court could not order

restitution to the administrator for its payment to the trooper of

permanent partial disability benefits because it was a “loss of future

earnings,” which section 18-1.3-602(3)(a) of the restitution statute

does not allow. We conclude, for the following reasons, that the

permanent partial disability benefits paid to the trooper were not a

loss of future earnings under the restitution statute.

18 ¶ 49 We begin with some background concerning workers’

compensation disability benefits. To explain the permanent

disability benefits at issue in this case, we need to start with a

description of temporary benefits.

¶ 50 Temporary benefits compensate an employee for lost wages

during the employee’s recovery from a work-related injury. §§ 8-42-

105 to -106, C.R.S. 2019. Temporary total disability benefits

compensate an employee for lost wages after an injury when he or

she is unable to go back to work. § 8-42-105. When an employee

is able to return to work, but still not at full capacity, temporary

partial disability benefits compensate an employee for partial lost

wages. § 8-42-106. Generally, temporary benefits are available

until the employee reaches maximum medical improvement, which

occurs “when the underlying condition has stabilized to the extent

that no further medical treatment will improve the condition.” Allee

v. Contractors, Inc.,

(Colo. 1989).

¶ 51 After the employee reaches maximum medical improvement,

he or she may be entitled to receive “permanent partial disability”

benefits. § 8-42-107, C.R.S. 2019. There are two types: scheduled

19 benefits and whole person benefits. Both types are calculated

based on a statutory formula. See § 8-42-107(2), (8)(d).

¶ 52 Section 18-1.3-602(3)(a) of the restitution statute prohibits an

award of restitution for “loss of future earnings.” That phrase is not

defined by statute, but a division of this court interpreted it to mean

“earnings not expected to be received by the victim after restitution

is imposed.” People v. Bryant,

(Colo. App.

2005). Defendant cites to several Colorado appellate court

decisions describing permanent partial disability benefits as

compensation for “a loss of future earnings capacity.” See, e.g.,

Hussion v. Indus. Claims Appeals Office,

(Colo.

App. 1999). He therefore asserts that loss of future earnings in the

restitution context is the functional equivalent of a loss of future

earning capacity in the workers’ compensation context. We are not

persuaded.

¶ 53 Despite defendant’s contention, the workers’ compensation

case law is clear: permanent partial disability benefits do not

compensate an employee for “actual wage loss that has already

occurred or may occur in the future.” Bus. Ins. Co. v. BFI Waste

Sys. of N. Am., Inc.,

(Colo. 2001)(emphasis

20 added). Rather, it compensates an employee for a permanent

impairment, which impacts the employee’s present and future

ability to compete in the labor market.

(“The workers’

compensation system operates on the assumption that the future

earning capacity of a partially disabled worker will be less than that

of a non-disabled worker.”).

¶ 54 And an employee who continues to earn the same — or even

more — after reaching maximum medical improvement may still be

entitled to permanent partial disability payments. Vail Assocs., Inc.

v. West,

(Colo. 1984). This proposition is true

because the employee’s entitlement to benefits “must be based

upon his employability in the open labor market and not merely

ascertained in the limited context of his future employability with

his present employer.” Hobbs v. Indus. Claim Appeals Office,

(Colo. App. 1990)(citation omitted).

¶ 55 Defendant relies on a single conclusion in People v. Oliver,

, to support his position. In Oliver, the division

noted that, even though death benefits are calculated using the

employee’s average weekly wage, they are “independent of wage

benefits because they are owed to the employee’s dependents and

21 not to the employee herself.”

. True, the disability

benefits in this case are distinguishable from the death benefits in

Oliver for that reason. But, for the following reasons, we conclude

that Oliver supports our conclusion that permanent partial

disability benefits are compensable under the restitution statute.

¶ 56 In Oliver, ¶ 50, the division concluded that death benefits were

“out-of-pocket expenses” and “anticipated future expenses” of the

workers’ compensation administrator in that case, which were both

allowable restitution under the definition of “restitution” in section

18-1.3-602(3)(a). In other words, the division determined that the

administrator was a victim who had suffered a pecuniary loss

proximately caused by the defendant that could “be reasonably

calculated in money because it was a monetary payout entirely

determined by a statutory formula.”

So the administrator’s

payout was “just like any other insurance policy payout.”

.

¶ 57 In this case, disability payments are likewise an insurance

policy payout. See id.; see also § 18-1.3-602(3)(a); People v.

Lunsford,

(Colo. App. 2001)(noting that an

insurer’s payout to the victim for “future wage loss” was not

22 relevant to whether the insurer’s “expenditures were actual

pecuniary damages”). And the payments were “reasonably

calculated in money because [they were] a monetary payout entirely

determined by a statutory formula.” Oliver, ¶ 50; see § 8-42-107(2),

(8)(d). As the division concluded in Oliver, ¶ 52, “[t]he method by

which this benefit is calculated is simply not relevant to the

question whether [the administrator], as an insurer, can recover

through restitution money it paid” to the trooper.

C. Notice

¶ 58 Defendant asserts that we should remand this case to the trial

court for a new hearing because he had no notice of the

prosecution’s request for restitution to the administrator for

permanent partial disability benefits. Although we agree that he

was entitled to notice, we conclude that this error was harmless.

¶ 59 “[A] defendant is entitled to adequate notice of the claimed

amount of damages and the amount of restitution which the court

is asked to impose.” People v. Valdez,

(Colo.

App. 1996).

¶ 60 The prosecution asserts that defendant had sufficient notice

because he knew that it was seeking restitution for workers’

23 compensation claims and specifically for restitution to reimburse

the insurer for “temporary partial disability” and “temporary total

disability” benefits paid to the trooper. We are not persuaded

because temporary disability benefits are different from permanent

disability benefits. Compare § 8-42-105 (temporary total disability),

and § 8-42-106 (temporary partial disability), with § 8-42-107

(permanent partial disability), and § 8-42-111, C.R.S. 2019

(permanent total disability). Indeed, the prosecution did not simply

request an increase in restitution for temporary benefits that the

administrator had paid to the trooper; it requested restitution for a

previously undisclosed type of disability benefit. Defendant had no

reason to know that the trooper would be entitled to permanent

disability benefits simply because he had received temporary

benefits.

¶ 61 The prosecution also asserts that, because defendant never

specifically asked for a continuance and did not cross-examine the

claims adjuster, he was not prejudiced by the late disclosure. We

are not aware of any legal authority that requires a defendant to

make a specific request for a continuance or cross-examine a

witness in situations like this one. In fact, the prosecutor

24 suggested that a continuance would be appropriate. And the lack

of cross-examination could be equally as consistent with

defendant’s lack of notice and opportunity to defend as with a

concession that defendant did not want to contest the claims

adjuster’s testimony.

¶ 62 We conclude that the defendant did not have sufficient notice

of the prosecution’s request that the court order him to pay

restitution to the administrator for the permanent partial disability

benefits that it had paid to the trooper. See People in Interest of

J.L.R.,

(Colo. App. 1995). But we conclude,

for the following reasons, that we do not have to remand that part

of the order to the trial court for a new hearing.

¶ 63 Defendant asserts that the trial court entered the award for

permanent partial disability benefits “without adequate notice or an

opportunity to be heard on the brand new category of” permanent

partial disability benefits. But his only contention on appeal

concerning this “brand new category” of benefits is the one that we

have already decided in Part IV.B: whether such benefits were lost

future earnings that fell outside the scope of the restitution statute.

As a result, the court’s error was harmless: we have resolved

25 defendant’s challenge to the order requiring him to pay restitution

to the administrator for the permanent partial disability benefits

that it paid to the trooper, and defendant does not raise any other

challenges to that part of the restitution order.

V. Restitution Order to the Trooper

¶ 64 Defendant contends that the trial court erroneously ordered

him to pay $979.41 to the trooper for the mother’s travel expenses.

We agree.

¶ 65 As discussed above, the prosecution requested restitution to

compensate the trooper’s mother for her travel expenses. The

prosecution’s written restitution request stated that the trooper had

paid for his mother’s travel expenses. The evidence at the hearing,

however, showed that the board had reimbursed the mother’s travel

expenses. But the trial court ultimately denied the prosecution’s

request for the mother’s travel expenses for the reasons noted above

in Part III.B.1.

¶ 66 The court then asked the prosecution to file a proposed order

that would exclude mother’s travel expenses. But the prosecution’s

order, which the court signed, did not do so. As a result, the

26 proposed order erroneously requires defendant to pay the trooper

$979.41 as restitution for those expenses.

¶ 67 Defendant asserts that we should remand this case to the trial

court so it can correct its clerical error under Crim. P. 36, which

provides that “[c]lerical mistakes in judgments [and] orders . . .

arising from oversight or omission may be corrected by the court at

any time.” The prosecution concedes the error, and it agrees that

the proper remedy is to remand the case to the trial court for

correction of the restitution order.

¶ 68 We agree with both the prosecution and defendant, and we

therefore reverse the $979.41 restitution award to the trooper for

the mother’s travel expenses. The trial court shall, on remand,

correct the restitution order by deducting this $979.41 payment to

the trooper.

VI. Conclusion

¶ 69 We affirm the part of the court’s order requiring defendant to

pay restitution to the board and the part of the order requiring

defendant to pay restitution to the administrator for permanent

partial disability benefits that the administrator paid to the trooper.

We reverse the part of the order awarding the trooper $979.41 for

27 his mother’s travel expenses and, on remand, direct the trial court

to deduct that amount from the restitution order.

JUDGE TAUBMAN and JUDGE NAVARRO concur.

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