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

No. 17CA2267, People v. Roddy — Criminal Law — Sentencing

— Restitution — Assessment of Restitution

Distinguishing People v. Weeks,

, 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 section 18-1.3-603, C.R.S. 2019; disagrees with the

Weeks decision; and would conclude that the ninety-one-day time limit in section 18-1.3-603(1) applies to the prosecution’s

determination of restitution, and not to the court’s authority to

enter a restitution order. COLORADO COURT OF APPEALS

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 ¶1 Defendant, Jonathan D. Roddy, appeals the restitution order

entered against him by the district court. We reverse the restitution

order and remand the case to the district court for further

proceedings.

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

1 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 defendant 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

2 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 an added count of first

degree criminal trespass for the November 2014 incident, he was

given a two-year deferred judgment. About fifteen months after his

deferred judgment was entered, the trial court ordered him to pay

restitution of $688,535 to reimburse the victim’s attorney fees and

investigation costs incurred in connection with defendant’s conduct

in the civil and criminal proceedings. No restitution was sought or

ordered in defendant’s wife’s case following her guilty plea to a

computer crime. Defendant now appeals the court’s restitution

order.

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

3 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 Section 18-1.3-603(4)(a)(I), C.R.S. 2019, states that any order

of restitution is a “final civil judgment in favor of the state and any

victim[,]” and that “any such judgment remains in force until the

restitution is paid in full. The provisions of [sections 16-18.5-104

to -112, C.R.S. 2019,] apply notwithstanding the termination of a

deferred judgment and sentence . . . .” Our supreme court has held

that this provision means that dismissal of a charge upon

completion of a deferred sentence does not deprive the trial court of

authority to enforce a restitution order. Pineda-Liberato v. People,

. Given that restitution can be enforced after

completion of a deferred sentence, and restitution is a separately

appealable order, see Sanoff v. People,

(Colo.

2008), it follows that a defendant does not waive his right to appeal

a restitution order by withdrawing his guilty plea.

¶ 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,

4 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,

, and

Kazadi v. People,

, 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

[section] 18-1.3-102 [effects] a waiver of all non-jurisdictional issues

arising in the context of a deferred judgment and sentence,” and

that defendant cannot take the benefits of the deferred judgment

and sentence, but still obtain appellate review of a restitution order.

We do not read Neuhaus as supporting such an argument. That

case dealt with conditional guilty pleas. The court there said that a

guilty plea “‘represents a break in the chain of events which has

preceded it in the criminal process’ and waives all non-jurisdictional

errors in the defendant’s conviction, including the seizure of

5 evidence.” Neuhaus, ¶ 8 (quoting Tollett v. Henderson,

(1973)). Because the setting of restitution did not

precede the guilty plea, Neuhaus does not support the People’s

argument.

¶ 13 The People next argue that, under Kazadi, defendant was

obligated to seek a withdrawal of his plea agreement under Crim. P.

32(d) before completing his deferred judgment and sentence if he

wanted to preserve his appellate challenge to the restitution order.

We disagree. Kazadi, ¶ 20, noted that the parties had agreed that

“Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty

pleas involving deferred judgments.” Though a defendant may file a

motion to withdraw a guilty plea under Crim. P. 32(d), nothing in

Kazadi requires a defendant to follow that procedure to enable him

to contest a restitution order.

¶ 14 We therefore conclude that defendant’s appeal of his

restitution order is properly before us.

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

6 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 order 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

7 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 to $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. § 18-1.3-603(1). Each such order

shall include one or more of the following:

8 (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.

§ 18-1.3-603(1).

¶ 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.” § 18-1.3-603(3)(a).

¶ 23 Defendant contends that, under Meza v. People,

,

and People v. Turecek,

, 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

9 by the ninety-one-day limit in section 18-1.3-603(1). He also

asserts that the People never argued, and the district court never

found, that good cause existed for extending the time period. The

People counter that the ninety-one-day period limits only the time

within which the prosecution must present its restitution request.

We conclude that the court had authority to enter the restitution

order.

¶ 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,

.

¶ 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 conclude 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,

(same); Turecek, ¶ 13 (same).

10 ¶ 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 § 18-1.3-

603(1)(b) (empowering court to rely on a showing of good cause to

extend the time period by which the restitution amount “shall be

determined”); see also Knoeppchen, ¶¶ 25-26 (noting that nothing in

the restitution statute explicitly requires the court to make a finding

of good cause, the statute merely requires good cause to be shown,

and the statute does not dictate when a showing or finding of good

cause must be made).

¶ 27 Furthermore, the record supports that there was good cause

to extend the time under section 18-1.3-601(1)(b). See

Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,

(Colo. App. 2011) (“[W]e may affirm a trial court’s

ruling on any grounds that are supported by the record.”). As the

court found, the victim sought attorney fees and costs incurred as a

result of the charged conduct, and she continued to incur and pay

ongoing fees and costs. The prosecution filed an initial request for

11 restitution ninety days after the deferred judgment was entered, as

permitted by statute. In a case where such a high amount of

restitution was sought based on complex facts, the prosecution’s

timing was not surprising.

¶ 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 section 18-1.3-603(2), that in itself could

constitute ‘good cause’ for the trial court to extend its restitution

ruling beyond the ninety-one-day deadline . . . .”).

¶ 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

12 prosecution did not determine a specific amount of restitution

within then-applicable ninety day period, 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 § 18-1.3-603(3)(a) (permitting

increase in the amount of restitution for additional losses “not

known to the judge or the prosecutor at the time the order of

restitution was entered”); Meza, ¶¶ 13-14 (noting statutory

requirement to determine restitution within ninety-one days or

longer if good cause is shown).

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.

13 ¶ 31 Restitution is defined as “any pecuniary loss suffered by a

victim.” § 18-1.3-602(3)(a), C.R.S. 2019. Restitution includes

losses or injuries proximately caused by an offender’s conduct and

that can be reasonably calculated and recompensed in money. Id.

The prosecution bears the burden of establishing the restitution

amount by a preponderance of the evidence. See § 18-1.3-603(2);

People v. Martinez,

. “In the context of

restitution, proximate cause is 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. Sieck,

.

¶ 32 Proximate cause can be found where the victim incurs

expenses to avoid or mitigate the consequences of a specific and

ongoing 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.,

(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,

. The court based its decision on

14 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,

. 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 uncharged 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).

15 ¶ 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 defendant 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 for the losses caused by the conduct to

which he pleaded guilty. See Sosa, ¶ 28; Cowen, ¶ 19. We

therefore remand to the district court to determine which of the

16 losses that were presented by the prosecution at the restitution

hearing were proximately caused by defendant’s trespass onto the

victim’s property, and to issue a new restitution order accordingly.

The prosecution may not introduce any evidence that was not

previously presented to the court.

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, and 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.

17 ¶ 41 The attorney-client privilege operates to protect

communications between attorneys and clients relating to legal

advice, § 13-90-107(1)(b), C.R.S. 2019; Wesp v. Everson,

(Colo. 2001).

¶ 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,

, 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,

(9th Cir.

1992) (“time records which also reveal the motive of the client in

seeking representation, litigation strategy, or the specific nature of

the services provided, such as researching particular areas of law,

fall within the [attorney-client] privilege.”); Levy v. Senate of

Pennsylvania,

(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).

18 ¶ 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,

(Colo. 1989) (recognizing that attorney-client privilege may

be waived if, “by words or conduct, [the privilege holder] has

expressly or impliedly 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. § 13-90-

107(1)(b); Wesp,

; Gordon v. Boyles,

(Colo. 2000); see also Lanari v. People,

(Colo. 1992) (“[T]he privilege applies only to statements made in

circumstances giving rise to a reasonable expectation that the

statements will be treated as confidential.”). “[I]f a communication

19 to which the privilege has previously attached is subsequently

disclosed to a third party, then the protection afforded by the

privilege is impliedly waived.” Wesp,

. Thus, the

privilege does not apply to billing records that have been so

disclosed.

¶ 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) attorney-client privilege is claimed as to those descriptions, the

prosecution must produce redacted copies of the subject bills to the

defense. If the defense objects to the redactions, and the

prosecution declines to produce additional information from the

victim about the redactions, the district court must examine those

task descriptions in camera to determine whether they are subject

to the attorney-client privilege. See

(“No blanket

privilege for all attorney-client communications exists. Rather, the

privilege must be claimed with respect to each specific

communication and, in deciding whether the privilege attaches, a

trial court must examine each communication independently.”); see

20 also People v. Madera,

(Colo. 2005) (privilege is

waived only to the extent necessary to give opponent a fair

opportunity to defend against it).

¶ 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 due 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

21 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.

22 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 address 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. § 18-1.3-603(1),

C.R.S. 2019. The second of these options — deferment — requires

that the amount of restitution “shall be determined within the

ninety-one days immediately following the order of conviction,

23 unless good cause is shown for extending the time period by which

the restitution amount shall be determined.” § 18-1.3-603(1)(b)

(emphasis added).

¶ 51 Notably, this subsection of the statute does not explicitly

identify who is “determining” the amount for purposes of this

deadline. But the next 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.

§ 18-1.3-603(2). Thus, at least for purposes of this paragraph, it is

clear that the prosecutor “determines” the amount of restitution

and the identities of the victims.

¶ 52 Despite this language, our appellate courts have routinely

stated, or at least assumed, that the determination of restitution

24 referenced in section 18-1.3-603(1)(b) is a different act than the

determination of restitution referenced in section 18-1.3-603(2).

Recently, for example, a division of this court explicitly held that the

earlier paragraph places the onus of determining the amount of

restitution within ninety-one days on the sentencing court. People

v. Weeks,

.

¶ 53 Several other divisions have at least assumed that to be the

case. In People v. Harman,

(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.”

¶ 54 In People v. Turecek,

, 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

25 conviction and provides an exception only if good cause to extend

that time period is shown.”1

¶ 55 And in People v. Knoeppchen,

, 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.

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,

1 Subsequent to the entry of the order on appeal in People v. Turecek,

, the time periods in the statute were amended from ninety to ninety-one days. Ch. 208, sec. 112, § 18- 1.3-603,

-67. 2 I acknowledge that I was the author of the division’s opinion in

People v. Knoeppchen,

. Since noting what at the time I viewed as an apparent inconsistency in the statute, however, I have come to the conclusion, for reasons set forth in this special concurrence, that this perceived inconsistency was actually an indication that the prevailing interpretation of the statute was incorrect.

26 Harman, Turecek, and Knoeppchen reflecting at least an assumption

that the deadline in section 18-1.3-601(1)(b) applies to the court.

¶ 57 For example, in Sanoff v. People,

(Colo.

2008), the court explained that this provision, originally enacted in

2000, altered the statutory process for establishing criminal

restitution. Before this enactment, the amount of restitution had to

be fixed at the time of sentencing and included on the mittimus.

The new statute, though still requiring that the order of conviction

include some consideration of restitution, authorized the sentencing

court to “postpone a determination of the specific amount of

restitution.”

¶ 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,

; Meza v.

People,

. 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. Notably, this language was qualified

27 with the phrase “[a]s we described more fully in Meza v. People,

, ___ P.3d ___, also reported today by this court.”

¶ 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 also 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

28 defendant.” Id. at ¶ 11. This language is difficult to reconcile with

an interpretation of the ninety-one-day deadline in section 18-1.3-

603(1)(b) as applying to the sentencing court.

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 appeal was pending.

Sanoff,

. 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 section 18-1.3-603(1)(b)

establishes a deadline by which the court must fix the amount of

restitution was dictum. As such, this language does not

29 conclusively resolve the interplay between section 18-1.3-603(1)(b)

and 18-1.3-603(2).3 Moreover, I believe the dicta in these opinions

reflect an illogical reading of the statute. For similar reasons, I

respectfully disagree with the division’s holding in Weeks, and with

the assumptions and observations made in the other cases

discussed above.

¶ 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 meaning

was intended.” Everhart v. People,

,

,

1078 (1913); see also Berthold v. Indus. Claim Appeals Office,

, ¶ 35.

¶ 63 As noted, both subsection (1)(b) and subsection (2) of the

statute refer to “determining” restitution. The latter, two separate

times, explicitly places the obligation to determine restitution on the

3 To the extent this language was not dicta, I urge the supreme court to take a fresh view of its interpretation of the restitution statute. The lack of clarity in this area has resulted in a significant increase in appellate claims involving the sentencing court’s authority and jurisdiction to enter restitution orders outside the ninety-one-day period.

30 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.” § 18-1.3-603(2) (emphasis

added). Then it states that the court may extend the deadline for

submitting the information “if it finds that there are extenuating

circumstances affecting the prosecuting attorney’s ability to

determine restitution.” Id. (emphasis added).

¶ 64 To the contrary, subsection (1)(b) does not impose the duty to

determine restitution upon the court. Rather, it provides one way

in which the court may discharge its obligation to address

restitution in the judgment of conviction, that being to enter an

order that restitution is owed “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.” § 18-1.3-603(1)(b).

¶ 65 The word “determine” should be given the same meaning

throughout the statute — i.e., the process of identifying the amount

31 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

4 Of course, the ultimate act of fixing the amount owed falls to the court, after providing the defendant with an opportunity to challenge the prosecuting attorney’s “determination” of the amount and holding the prosecution to its burden of proving the accuracy of its determination by a preponderance of the evidence. See People v. Martinez,

(Colo. App. 2007). 5 To the extent the historical interpretation continues to hold sway,

the legislature may wish to address this structure to avoid trial courts being put in an unworkable situation or feeling forced to rule quickly, potentially at the expense of the defendant’s opportunity to be heard on the issue.

32 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.” § 18-1.3-603(3)(a) (emphasis added).

Thus, while the sentencing court “sets” the final amount of

restitution, it does so based on the prosecutor’s “determination.”

But only the latter must be accomplished (absent a showing of good

cause or extenuating circumstances as applicable) within

ninety-one days.

¶ 67 Moreover, contrary to the division’s view in Weeks, this

construction does not “render section 18-1.3-603(1)(b) superfluous

of the language in section 18-1.3-603(2).” Weeks, ¶ 14. The two

provisions serve different purposes. The first paragraph requires

the court to expressly include consideration of restitution in the

judgment of conviction. It is important to remember that this

paragraph never says “the court shall determine restitution within

ninety-one days.” Rather, it merely says that, when a court is

deferring restitution, the order of conviction must include specific

33 language, i.e., that restitution shall be determined within that time

frame (or some other time frame upon a showing of good cause).

¶ 68 The second paragraph explains how the amount of restitution

(if any) is arrived at. Note that the process by which the

prosecuting attorney determines the restitution and the identity of

the victims, as set forth in subsection (2), applies whether the court

is deferring restitution, ordering restitution on the day of

sentencing, ordering restitution for a particular future treatment, or

finding that no restitution is owed.

¶ 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.” § 18-1.3-603(2). At these two

different points on the timeline, both the reasons underlying the

34 need for additional time and the impact of additional delay on

defendants and victims may be different. Accordingly, it is not

unusual that the legislature chose to impose different standards for

the two requests. Consequently, this view of the statute actually

avoids making any of the language superfluous. See People v. Null,

(Colo. 2010) (Appellate courts “avoid

interpretations that would render any words or phrases superfluous

or would lead to illogical or absurd results.”)

¶ 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 act 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

35 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 § 18-1.3-601(1)(c), (1)(d),

(1)(g)(I), (2), C.R.S. 2019. This statutory construction is thus more

consistent than the historical view with the legislative mandate that

the restitution statute “be liberally construed to accomplish” these

purposes. § 18-1.3-601(2).

¶ 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.” § 18-1.3-603(2). Such

circumstances are more than sufficiently shown by the fact that the

claimed restitution was based on expenses arising out of ongoing

legal battles allegedly caused by Roddy’s conduct, and thus were a

6 I note that at the time of the plea the prosecution made no representation that restitution information was “not available prior to the order of conviction.” § 18-1.3-603(2), C.R.S. 2019. However, because Roddy does not challenge the sentencing court’s initial decision to reserve restitution, neither I nor the majority need address that issue.

36 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.

7 The fact that the majority holds — and I agree — that most if not all of these legal expenses were ultimately not chargeable to Roddy does not impact whether the circumstances interfering with the prosecutor’s ability to gather the information to support the restitution claim were sufficiently extenuating to warrant the deadline extension.

37