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 March 12, 2020

No. 16CA2203, People v. Martinez-Chavez — Criminal Law — Sentencing — Restitution

Defendant appeals the trial court’s order imposing restitution

without a hearing. At sentencing, the People reserved restitution;

after sentencing, the People filed a motion for restitution.

Defendant filed a timely objection to the People’s motion for

restitution and requested a hearing. The People responded to

defendant’s objection. The trial court determined that all of the

objections raised in defendant’s response were legal arguments that

the court could resolve without a hearing, so it did. On appeal,

defendant contends that the trial court erred by resolving the

motion for restitution without an in-person hearing.

A division of the court of appeals holds that when restitution is

not addressed at a defendant’s sentencing hearing and is instead reserved at the request of the prosecution, if the defendant timely

objects to the restitution and demands a hearing, then the

defendant is entitled to an in-person hearing on the issue of

restitution. Based on this holding, the division reverses the

restitution order and remands the case for further proceedings,

including a restitution hearing. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA2203 Garfield County District Court No. 14CR56 Honorable Denise K. Lynch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose C. Martinez-Chavez,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VI Opinion by JUDGE WELLING Terry and Berger, JJ., concur

Announced March 12, 2020

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jose C. Martinez-Chavez, appeals the trial court’s

order imposing restitution without a hearing. At sentencing, the

People reserved restitution; after sentencing, the People filed a

motion for restitution. Martinez-Chavez filed a timely objection to

the People’s motion for restitution and requested a hearing. The

People responded to Martinez-Chavez’s objection. The trial court

determined that all of the objections raised in Martinez-Chavez’s

response were legal arguments that the court could resolve without

a hearing, so it did. Martinez-Chavez contends that the trial court

erred by resolving the motion for restitution without an in-person

hearing.

¶2 We agree with Martinez-Chavez that the court should have

held a restitution hearing. We hold that when restitution is not

addressed at a defendant’s sentencing hearing and is instead

reserved at the request of the prosecution, if the defendant timely

objects to the restitution and demands a hearing, then the

defendant is entitled to an in-person hearing on the issue of

restitution. Therefore, we reverse the restitution order and remand

the case for further proceedings, including a restitution hearing.

1 I. Background

¶3 In April 2016, Jose Martinez-Chavez pleaded guilty to one

count of first-degree assault and one count of attempted sexual

assault on a child-victim less than fifteen years of age. The events

underlying his conviction occurred during late 2013 and early

2014, when he was living with his significant other (whom he

assaulted) and engaged in sexual conduct with her seven-year-old

daughter.

¶4 About two months later, Martinez-Chavez was sentenced to

fourteen years in the custody of the Department of Corrections. At

sentencing, the prosecutor indicated he had “forgot[ten]” to address

restitution, telling the court that “there is going to be some[,] likely

crime victim compensation request and counseling.” Based on this

representation, the trial court reserved restitution pursuant to

section 18-1.3-603(1)(b) and (2), C.R.S. 2019, giving the prosecution

ninety-one days to file a motion for restitution.

¶5 Thereafter, the People timely filed a motion for restitution,

seeking a total of $8553.40 in restitution in favor of the Ninth

Judicial District’s Crime Victim Compensation Board (CVCB). The

request broke down, as follows:

2 Category Amount

Medical Expenses $357.50

Mental Health Therapy $3240.00

Rent $3050.00

Utilities $106.25

Food Assistance $300.00

Subtotal $7053.75

Interest $1499.65

Total $8553.40

¶6 Fifteen days later, Martinez-Chavez filed a written objection

and requested a hearing. His objection began:

1. The People filed a Restitution Motion on or about August 23, 2016. In that motion, the prosecution asks for restitution to the Ninth Judicial District Crime Victim Compensation Fund for items that the defendant is not legally responsible for.

2. The defendant demands a hearing on restitution as provided by People v. Martinez,

(Colo. App. 2007).

Martinez-Chavez also objected to the People’s requests for rent,

utilities, and food assistance, contending that he cannot be held

3 responsible for these “loss of support” expenses because he was not

working at the time these expenses were incurred. In addition, he

objected to the date that pre-judgment interest began to accrue, as

well as the post-judgment interest rate that the People requested.

Finally, he requested that the trial court, pursuant to section 24-

4.1-107.5, C.R.S. 2019, conduct an in camera review of the CVCB

records supporting the request for restitution and that the court

disclose those documents to him.

¶7 Two days later, the People filed a response, arguing that

Martinez-Chavez’s specific objections should be denied and that his

request for an in camera review of the CVCB’s documents should be

quashed.

¶8 The court denied most of Martinez-Chavez’s objections, but

agreed that food assistance was not covered under the Crime Victim

Compensation Act (CVC Act) and that interest should accrue only

from the date the CVCB paid the respective claim. The trial court

also denied Martinez-Chavez’s request for an in camera review of

the CVCB records, finding that he did not satisfy his burden of

providing a non-speculative evidentiary hypothesis for obtaining

such records. Finally, the trial court found that Martinez-Chavez’s

4 objection did not warrant a hearing because his “objections are

legal objections which the Court can rule on without a hearing” and

that a “hearing would not assist the Court in determining the issues

before it.” Based on these findings, the trial court entered a

restitution order in favor of the CVCB in the amount of $6753.75.

The restitution order reflected the denial of the $300 payment for

food assistance and the denial of pre-judgment interest.

II. Analysis

¶9 Martinez-Chavez raises three issues on appeal. First, he

contends that the trial court reversibly erred when it denied his

request for a hearing on restitution. Second, he contends that the

2015 amendments to the CVC Act and restitution statutory

scheme — creating a presumption that payments made by a CVCB

were proximately caused by a defendant’s conduct while further

limiting access to those records — are unconstitutional. Third, he

contends that the prosecution failed to prove by a preponderance of

the evidence that he was the proximate cause of the losses

underlying the restitution award.

¶ 10 We agree with Martinez-Chavez’s first contention: he was

entitled to the hearing he requested. Because we resolve this

5 appeal on the basis of the erroneous denial of a hearing, we reverse

and remand this case for a restitution hearing without reaching the

other two issues.

A. Legal Principles

¶ 11 Criminal defendants must “make full restitution to those

harmed by their misconduct.” § 18-1.3-601, C.R.S. 2019.

¶ 12 Each judicial district has a CVCB. § 24-4.1-103(1), C.R.S.

2019. A CVCB is responsible for making compensation awards to

crime victims and to the relatives of crime victims for losses

proximately caused by a criminal act. §§ 24-4.1-102(10), -108,

C.R.S. 2019. Compensable losses include, among other things,

medical expenses, mental health counseling, and loss of support to

dependents. § 24-4.1-109(1)(a), (f), (g), C.R.S. 2019.

¶ 13 If a CVCB awards compensation to a victim or other qualifying

person, the CVCB is eligible to seek and obtain restitution from a

defendant in his or her criminal proceeding. See § 18-1.3-

602(4)(a)(IV), C.R.S. 2019 (defining “victim” to include “[a]ny victim

compensation board that has paid a victim compensation claim”);

see also People v. Rivera,

(Colo. App. 2010)

(“The restitution statute provides that restitution may be ordered to

6 any victim compensation board that has paid a victim

compensation claim.”). Pursuant to a 2015 amendment to the CVC

Act, the statute further provides that “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); see also Ch. 60, sec. 6,

§ 18-1.3-603,

; People v. Henry,

, ¶ 1.

¶ 14 In a restitution proceeding, the prosecution bears the burden

of proving by a preponderance of the evidence not only the victim’s

losses, but also that the victim’s losses were proximately caused by

the defendant’s criminal conduct. See People v. Randolph,

(Colo. App. 1992); see also People v. Vasseur,

.

B. Right to a Restitution Hearing

¶ 15 Martinez-Chavez contends that the trial court improperly

denied his request for a hearing on restitution. We agree and

conclude that the trial court erred by entering its restitution order

without first conducting the requested hearing.

7 1. Martinez Chavez Was Entitled to a Hearing Before Restitution Was Imposed

¶ 16 Restitution is an aspect of sentencing. See, e.g., Vasseur, ¶ 16

(“Restitution is part of the district court’s sentencing function in

criminal cases.”). Indeed, a sentence is illegal if a sentencing court

fails to address restitution. See, e.g., People v. Hernandez,

; People v. Barbre,

(“[U]nder the

statutory scheme, every order of conviction of a felony,

misdemeanor, petty offense, or traffic misdemeanor offense ‘shall’

include an order imposing restitution based on the victim’s

pecuniary loss proximately caused by the defendant’s conduct.”)

(quoting §§ 18-1.3-602(3)(a), -603(1), C.R.S. 2019).

¶ 17 The trial court denied Martinez-Chavez’s request for a hearing

on the basis that his objections were “legal objections which the

Court can rule on without a hearing” and that a “hearing would not

assist the Court in determining the issues before it.”

¶ 18 Over the last two decades, however, divisions of this court

have repeatedly noted that a defendant is entitled to a restitution

hearing when one is requested. See, e.g., Vasseur, ¶ 15 (“When the

prosecution presents its evidence at a hearing, a defendant must

8 have the opportunity to contest the amount of the victim’s loss and

its causal link to the crime.”); Rivera,

(“A court

may not order restitution without a hearing at which the

prosecution must prove the amount of the victim’s loss and its

causal link to the defendant’s conduct, and at which the defendant

may contest those matters.”); People v. Martinez,

(Colo. App. 2007) (“We therefore conclude that a court may not

order restitution without a hearing when the prosecution must

prove the amount of the victim’s loss and its causal link to the

defendant, and when defense counsel is present and prepared to

contest those matters.”); People v. Mata,

(Colo.

App. 2002) (“Here, the court did not determine a restitution amount

at the sentencing hearing, but a month later simply entered an

order specifying the amount. Thus, defendant had no opportunity

to controvert the victim’s claimed monetary damages.”); People v.

McGraw,

(Colo. App. 2001) (“We conclude,

however, that defendant had a right to a hearing to contest the

amount of restitution imposed.”).

¶ 19 The Attorney General points out that none of these decisions

directly address whether a defendant is entitled to an in-person

9 hearing when his objection and request for a hearing only raise

legal arguments in opposition to restitution. True as that may be,

the Attorney General does not bring a single case to our attention

where a restitution order has stood where a trial court denied a

defendant a requested hearing. Nor does the Attorney General cite

any authority for the proposition that a written objection is an

adequate substitute for a hearing when the defendant has

requested such a hearing.

¶ 20 As a threshold matter, the premise of the Attorney General’s

argument — that Martinez-Chavez only asserted legal objections —

is belied by the record. In his objection, Martinez-Chavez began by

asserting that “the prosecution asks for restitution . . . for items

that the defendant is not legally responsible for.” This is an

indication that he is disputing causation — a mixed question of law

and fact, not a purely legal question, that the prosecution bears the

burden to prove. See, e.g., Randolph,

. And the

People’s motion for restitution alone falls short of meeting that

burden. Specifically, assuming, without deciding, that section 18-

1.3-603(10) applies in this case, to be entitled to the presumption

that the amount paid by a CVCB is the “direct result of the

10 defendant’s criminal conduct,” the prosecution must provide either

“[a] list of the amount of money paid to each provider” or “[i]f the

identity or location of a provider would pose a threat to the safety or

welfare of the victim, summary data reflecting what total payments

were made for” by category. §§ 18-1.3-603(10)(a), (b)(i)-(ii)

(emphasis added). In their motion for restitution, the People did not

provide a list of providers nor did they even argue that disclosure of

such a list would pose a threat to the safety or welfare of any victim.

And if subsection 603(10) does not apply, then the motion alone

falls further short of establishing causation. See, e.g., People v.

Bohn,

(“However, the fact of payment by a

CVCB is not determinative of whether restitution should be

ordered.”), superseded by statute as recognized in Henry, ¶ 20.

¶ 21 Furthermore, we disagree with the proposition that a written

objection to a motion for restitution is an adequate substitute for an

evidentiary hearing for three reasons.

¶ 22 First, the function of a hearing is broader than what is

afforded by an opportunity to file a written objection alone.

“Generally, a hearing contemplates the right to be present, to put

forth one’s contentions, and to support those contentions by

11 evidence and argument.” People v. Duke,

(Colo.

App. 2001) (citing Westar Holdings Partnership v. Reece,

(Colo. App. 1999)). Just as the People would be able to present

additional evidence beyond what is included in their motion, such

as additional documents or testimony, so too can the defendant at a

hearing provide additional evidence or argument in opposition to

restitution beyond that which was included within the four corners

of his written objection.

¶ 23 Second, because restitution is part of sentencing, there is a

strong presumption in favor of the defendant being afforded the

opportunity to be heard in person if requested, not simply in a

writing filed by counsel. Indeed, a division of this court has

recently concluded that “sentencing — including imposition of

restitution — is a critical stage at which a defendant has a due

process right to be present.” Hernandez, ¶ 24 (emphasis added);

see also id. at ¶ 23 (collecting cases from other jurisdictions where

courts have concluded that restitution hearings are a critical stage).

¶ 24 Third, it would be anomalous to conclude that a defendant has

an absolute right to be heard on the issue of restitution when it is

12 addressed at sentencing, see, e.g., § 16-11-102(5), 1 but has a more

limited right to be heard when restitution is reserved at the People’s

request. Simply put, it makes little sense that a delay at the

request of the prosecution could impair a defendant’s right to be

heard.

¶ 25 Accordingly, we conclude that when restitution is reserved at

the prosecution’s request and the defendant objects to the request

and demands a hearing, he is entitled to such a hearing. At the

hearing, the prosecution must carry its burden and the defendant

may contest the request or otherwise test the prosecution’s

evidence. Here, the trial court erred by denying Martinez-Chavez

his properly requested hearing.

1 See also People v. Johnson,

(Colo. 1989) (“At the sentencing hearing the defendant must be given the opportunity to controvert the victim’s claimed monetary damages.”); People v. Mata,

(Colo. App. 2002) (“Under that statutory scheme, the defendant is to be given the opportunity, at the sentencing hearing, to controvert the victim’s claimed monetary damages.”). The Attorney General does not dispute that Martinez- Chavez would have had the right to be heard had restitution been requested at the time of sentencing.

13 ¶ 26 But this does not end our analysis. If the denial of the

restitution hearing was harmless, then reversal is not required. So

that is where we turn next.

2. The Deprivation of a Restitution Hearing Was Not Harmless

¶ 27 “[W]e review nonconstitutional trial errors that were preserved

by objection for harmless error.” Hagos v. People,

,

¶ 12. Under this standard, we reverse if the error affected the

substantial rights of the parties or “affected the fairness of the trial

proceedings.” Id. (quoting Tevlin v. People,

(Colo.

1986)).

¶ 28 We don’t need to look any further than the parties’ briefing on

appeal to conclude that the denial of a hearing was not harmless.

Martinez-Chavez’s second issue on appeal is that the 2015

amendments to the CVC Act and restitution statutory scheme are

unconstitutional. The People argue that Martinez-Chavez’s

contention in this regard may only be reviewed for plain error (if at

all) because he didn’t raise this argument before the trial court.

Perhaps the reason it wasn’t presented to the trial court is that

Martinez-Chavez was denied his requested hearing. To put a

sharper point on it, it strikes us as dissonant to contend, on the

14 one hand, that the denial of a hearing was harmless, and to argue,

on the other hand, that the other issues raised on appeal may only

be reviewed for plain error because they were not presented to the

trial court.

¶ 29 Moreover, as discussed before, the prosecution did not present

the information contemplated by section 18-1.3-603(10) to the trial

court in support of its restitution request. 2 A hearing would have

both afforded the People an opportunity to present such evidence,

and Martinez-Chavez the opportunity to contest or otherwise

challenge such evidence.

¶ 30 Simply put, at the restitution hearing, Martinez-Chavez could

have, for example:

2 In his opening brief, Martinez-Chavez contends that the “prosecution objected to a hearing and thus chose not to present evidence establishing that Mr. Martinez-Chavez owed the claimed restitution.” That contention is not supported by the record. While it is true that the prosecution responded to each of the particularized contentions raised in Martinez-Chavez’s written objection, the prosecution did not object to the court conducting a restitution hearing. Instead, the court acted on its own, and not at the specific urging of the prosecution, in opting to resolve the issue of restitution without a hearing.

15 • challenged the constitutionality of the 2015 amendments

to the CVC Act and restitution statutory scheme (as he

does on appeal);

• offered a non-speculative evidentiary hypothesis for the

in camera review and production of some or all of the

CVCB records;

• presented evidence to contest his liability for loss of

support;

• held the prosecution to its burden to prove causation; or

• contested the sufficiency of the prosecution’s evidence.

¶ 31 Accordingly, we conclude that the erroneous denial of

Martinez-Chavez’s request for a hearing was not harmless.

C. Remaining Claims

¶ 32 Because we are remanding the case to the trial court to

conduct a restitution hearing, we decline to address Martinez-

Chavez’s remaining claims, including the challenge to the

constitutionality of the 2015 amendments to the CVC Act and

restitution statutory scheme. Hernandez, ¶¶ 44-56 (declining to

consider similar argument on appeal when the case was remanded

to the trial court for a new restitution hearing).

16 III. Conclusion

¶ 33 For the reasons set forth above, the restitution order is

reversed, and the case is remanded for further proceedings,

including a hearing on the request for restitution.

JUDGE TERRY and JUDGE BERGER concur.

17