The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 8, 2020

No. 19CA0014, People v. Rice — Criminal Law — Sentencing — Restitution — Assessment of Restitution

A division of the court of appeals adopts the reasoning from

People v. Weeks,

, which determined that the district

court must order a specific amount of restitution within ninety-one

days of sentencing. But the division departs from Weeks by holding

that a district court may impose restitution after that time based on

an implied finding of good cause that is supported by the record. COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0014 Pueblo County District Court No. 16CR2628 Honorable Thomas B. Flesher, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Allen Rice,

Defendant-Appellant.

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

Division I Opinion by JUDGE JOHNSON Dailey and Davidson*, JJ., concur

Announced October 8, 2020

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶1 Defendant Brian Allen Rice (Rice) challenges the district

court’s order of restitution on grounds that (1) it was entered more

than ninety-one days after his conviction without a showing of good

cause and (2) he did not proximately cause the harm to the victim’s

vehicle. We affirm in part, reverse in part, and remand the case

with instructions to modify the amount of restitution awarded.

I. Background

¶2 On August 7, 2018, Rice pled guilty to one count of first

degree aggravated motor vehicle theft, display of unlawful license

plates, under section 18-4-409(2)(h), (3)(a), C.R.S. 2019. He was

also charged with two counts of the same, based on other

aggravating factors: retaining possession for more than twenty-four

hours and causing five hundred dollars or more in property

damage. See § 18-4-409(2)(a), (e). But those additional charges

were dismissed as part of Rice’s plea agreement. The district court

entered a restitution order in the amount of $3056.82 on November

14, 2018, ninety-nine days after Rice’s sentence.

1 II. Deadline to Determine Restitution Under Section 18-1.3-603(1)(b)

¶3 No one disputes that the district court held the restitution

hearing ninety-three days from entry of Rice’s sentence and issued

a restitution order ninety-nine days after entry of his sentence. We

conclude that a district court must enter restitution within

ninety-one days from sentencing, but that implied good cause to

extend that deadline was shown in this case.

A. Standard of Review

¶4 The interpretation of the restitution statute is a question of

law that we review de novo. People v. Ortiz,

, ¶ 15.

The issue of whether good cause exists to extend the ninety-one-day

deadline to determine restitution under section 18-1.3-603(1)(b),

C.R.S. 2019, is one we review for an abuse of discretion. People v.

Harman,

(Colo. App. 2004). A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or when it misconstrues or misapplies the law. People v.

Weeks,

.

2 B. Analysis

¶5 Restitution is part of the district court’s sentencing function in

criminal cases. People v. Vasseur,

. Under the

Colorado restitution statute, if a district court decides at sentencing

to defer its decision regarding the appropriate amount of restitution,

“the specific amount of restitution shall be determined within the

ninety-one days immediately following the order of conviction,

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

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

¶6 At Rice’s sentencing, the district court left open the specific

amount of restitution for ninety-one days. Rice argues that under

People v. Turecek,

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

requires a court to enter a restitution order within this time frame.

We agree.1

1 Subsequent to the entry of the order on appeal in Turecek, the time periods in the statute were amended from ninety to ninety-one days. Ch. 208, sec. 112, § 18-1.3-603,

-67.

3 1. Ninety-One Day Deadline

¶7 Divisions of this court have recently disagreed over whether

the court or the prosecutor “determine[s]” restitution under section

18-1.3-603(1)(b) and (2).

¶8 Weeks, ¶¶ 12-13, held that section 18-1.3-603(1)(b)’s language

of “determin[ing]” restitution refers to the district court’s obligation

to order a specific amount within ninety-one days, unless good

cause is shown. Because the record in that case contained no

explanation of good cause as to an eleven-month delay from

conviction to entry of the restitution order, Weeks vacated the

restitution order.

¶9 People v. Perez,

, ¶¶ 18-26, 36, on the other

hand, held that section 18-1.3-603(1)(b) only obligates the district

court to consider restitution as part of the defendant’s judgment of

conviction, but does not necessarily impose a deadline of ninety-one

days on the court. This interpretation, Perez reasons, avoids a

circumstance when the district court must decide restitution within

ninety-one days under subsection (1)(b), and the prosecutor may

take the same full ninety-one days to determine the restitution

amount it will seek under subsection (2).

4 ¶ 10 Although we understand the rationale underlying Perez, we

determine the statutory interpretation in Weeks to be more

persuasive.2 Even though the district court did not enter Rice’s

restitution order within the required ninety-one days from entry of

conviction, as we explain next, we conclude that good cause was

shown to extend the deadline under section 18-1.3-603(1)(b).

2. Good Cause

¶ 11 Section 18-1.3-603(1)(b) permits a court to extend the time

period for determining restitution if “good cause is shown.” Our

reading of this provision is where we depart from Weeks and

2 In agreeing with Weeks, we reject the Attorney General’s argument that the restitution statute does not require a court to “order” restitution within ninety-one days from conviction. This argument is similar to the interpretation in Perez, although that case had yet to be decided when this issue was briefed. We likewise reject the Attorney General’s argument that restitution was entered upon the district court’s initial grant of the prosecutor’s proposed restitution within the ninety-one-day window, and that the court’s subsequent order following Rice’s restitution hearing was merely a modification of that order. See People v. Martinez-Chavez,

(rejecting Attorney General’s argument that written objections to restitution are sufficient and holding that an in-person restitution hearing is necessary to afford the defendant “the opportunity to contest or otherwise challenge” the prosecution’s evidence of restitution owed); People v. Hernandez,

(holding that a restitution hearing is a “critical stage” of the prosecution “at which a defendant has a due process right to be present”).

5 determine that a showing may be implied. We instead adopt the

reasoning of Knoeppchen, ¶ 25, to the extent that division observed

that “nothing in the statute explicitly requires the court to make an

oral or written finding of good cause; rather, the statute merely

requires good cause to be shown.” (Emphasis added.) We

acknowledge that the Weeks majority rejected Knoeppchen’s

analysis of section 18-1.3-603(1)(b) on grounds that such analysis

was dicta, as “the division ultimately determined that the

defendant’s motion to vacate the restitution order was time barred.”

Weeks, ¶ 16.

¶ 12 Regardless, subsection (1)(b) requires a showing of good cause,

not an explicit finding, and we share Knoeppchen’s reluctance to

read additional requirements into the statute when such words are

not there. See People v. Roddy,

(assuming

without deciding that the ninety-one day period applies to court to

determine restitution, district court’s use of “extenuating

circumstances” constituted good cause to enter the order after that

time period because the victim continued to incur and pay

attorney’s fees); see also People v. Rojas,

(“We

may not add or subtract words from [a] statute, but instead read

6 the words and phrases in context, construing them according to the

rules of grammar and common usage.”).

¶ 13 Such a showing under the statute is also, in our view, not

time-restricted. See Knoeppchen, ¶ 26 (finding “no authority . . .

that requires the showing (or finding) of good cause to occur at any

particular time”). We therefore reject Rice’s argument that the

district court needed to affirmatively grant an extension within the

original statutory time period to enter a valid restitution order after

ninety-one days had passed.

¶ 14 With that said, we underscore the requirement that implied

good cause must be shown or demonstrated in the record for us to

uphold a district court’s tardy restitution order. See Harman,

; see also Weeks, ¶ 27 (reversing the district court’s

eleven-month late restitution order where “[t]he trial court’s ruling

did not explain, and the record does not show, what good cause, if

any, existed for that inordinate delay”) (emphasis added). We will

not simply assume good cause exists by virtue of the district court

entering an order following the ninety-one day period. See, e.g.,

Weeks, ¶ 17 (“To the extent that the division in Knoeppchen said

that an order extending a prosecutor’s time to seek restitution

7 always constitutes good cause under section 18-1.3-603(1)(b), we

respectfully decline to follow the decision.”) (emphasis added).

¶ 15 Here, the record reflects that good cause was shown to extend

the time period for determining restitution under section 18-1.3-

603(1)(b). The timeline of filings, actions, and hearings that

followed Rice’s conviction reflects a trial court that was proactively

attending to the unresolved restitution issue, but ultimately missed

the ninety-one-day deadline by mere days due to docket scheduling.

 The parties did not agree on the amount of restitution, so the

district court left it open for ninety-one days.

 Three days after the conviction entered, the prosecution filed

its motion for restitution, seeking $3605.34 payable to the

victim for automobile repairs. Six days after the conviction

entered, the district court granted the motion before Rice filed

his objection.

 Rice filed his objection to the prosecution’s proposed

restitution fifty-two days after his conviction, leaving the

district court with less than half of the presumptive

ninety-one-day period.

8  Four business days after Rice’s objection, the district court

placed the matter on its upcoming setting docket.

 At the setting hearing, the court attempted to expedite the

restitution issue by inquiring whether counsel “could talk and

maybe reach an agreement.”

 When this attempt was unsuccessful, the court was left with

fifteen days to schedule a restitution hearing, preside over the

hearing, and enter a restitution order.

 The court held the restitution hearing two days past the

presumptive deadline and, after taking the matter under

advisement, entered its final order eight days late.

Such a procedural history constitutes a showing of implied good

cause.

¶ 16 The district court kept up with the filings in this case and

repeatedly took action; it did not let the issue of restitution languish

unresolved for months. Cf. id. at ¶¶ 6-8, 10, 28 (reversing

restitution order where more than seven months elapsed without

the district court acting on the defendant’s filed objection). Given

the circumstances in this case, we will not vacate an order of

restitution where, despite the documented reasonable efforts of the

9 court, “the press of other business precludes the court from

determining the amount within the ninety-one-day window.” See

Perez, ¶ 59 (Yun, J., concurring in part and dissenting in part).

III. Restitution Award

¶ 17 Rice contends that the prosecutor failed to prove by a

preponderance of the evidence that he proximately caused the

damage to the victim’s vehicle. We agree in part but direct the

district court to order a modified restitution amount of $500.

A. Waiver Argument

¶ 18 As an initial matter, we disagree with the Attorney General’s

argument that Rice waived his right to challenge the finding that he

caused all the damages reflected in the restitution order.

¶ 19 Rice signed a plea agreement which stated that “[t]he

defendant will be ordered to pay restitution to the victim(s) of

his/her conduct” and that “[d]ismissed counts will be considered

for sentencing and restitution purposes.” He verbally acknowledged

this requirement at sentencing and stipulated to a factual basis for

his plea.

¶ 20 From these acknowledgments alone, we do not view Rice to

have waived the right to challenge causation of the victim’s

10 damages for restitution purposes. See People In Interest of A.V.,

, ¶ 16 (noting that “simply stipulating to a factual

basis may be insufficient to waive causation where the issue of

causation is not specifically identified or discussed”). The general

acknowledgments contained in Rice’s plea agreement and

sentencing statements differ considerably from the specific types of

admissions that have characterized scenarios where a court found

such a waiver. See, e.g., McCarty v. People,

(Colo. 1994) (concluding that the defendant could not disavow

restitution obligation where she agreed to restitution amount “on

several occasions without objection and while represented by and in

the presence of counsel”); A.V., ¶ 18 (concluding the defendant

waived his argument challenging causation of restitution where

defense counsel conceded exact amount of restitution owed and

requested that the court order that amount).

¶ 21 We decline to conclude Rice waived his right to challenge

causation and will consider his sufficiency challenge.

11 B. Standard of Review and Applicable Law

¶ 22 We review the sufficiency of the evidence to support a

restitution award de novo.3 People v. Barbre,

;

see also People v. Jaeb,

, ¶ 48 (concluding that

defendant’s claim “that the prosecution failed to prove that he

caused the damage” is “a sufficiency determination that should be

reviewed de novo”); Ortiz, ¶ 26 (same). In doing so, we evaluate

“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.” Barbre, ¶ 25.

¶ 23 The General Assembly defines restitution as “any pecuniary

loss suffered by a victim,” including “losses or injuries proximately

caused by an offender’s conduct and that can be reasonably

3 We disagree with the Attorney General that under People v. Henry,

, ¶ 12, we review a restitution order for abuse of discretion. While this may be true for certain aspects of a restitution order, Rice’s contention that the prosecution failed to prove proximate cause represents a sufficiency of the evidence challenge. See People v. Ortiz,

(“True, setting the terms and conditions of restitution involves discretionary calls. But defendant challenges the sufficiency of the evidence.”) (citations omitted).

12 calculated and recompensed in money.” § 18-1.3-602(3)(a), C.R.S

2019. The prosecution bears the burden of proving by a

preponderance of the evidence both the amount of restitution owed

and that the victim’s losses were proximately caused by the

defendant. Vasseur, ¶ 15.

¶ 24 Proximate cause in the context of restitution is defined as a

cause which in natural and probable sequence produced the

claimed injury and without which the claimed injury would not

have been sustained. People v. Rivera,

(Colo.

App. 2010).

C. Sufficiency of the Evidence

¶ 25 Rice argues that the prosecution failed to satisfy its burden in

proving by a preponderance of the evidence that he proximately

caused $3056.82 in damages to the victim’s vehicle. We agree,

except as discussed below, with respect to consideration of the

dismissed criminal charge.

¶ 26 In a restitution proceeding, “more than speculation is required

in order for a defendant to be ordered to bear responsibility for the

victim’s loss.” People v. Randolph,

(Colo. App.

13 1992). We view the district court’s conclusion that Rice proximately

caused $3056.82 of the victim’s losses to be speculative.

¶ 27 At the restitution hearing, the court heard evidence concerning

the dollar value of damages to the victim’s vehicle, including

testimony from the victim and an itemized list of repair estimates

from an auto body shop dated approximately a month from the

vehicle’s recovery. The victim testified the instrument panel, center

console, ignition, heating system, front hood, back seat, and

bumper were damaged.

¶ 28 But the prosecution did not present evidence at the hearing —

and the record contains insufficient evidence — that Rice more

likely than not proximately caused these damages. Whereas the

victim testified at the restitution hearing that the car had been

stolen for almost a year before it was recovered, the police reports

and sentencing transcript both reflect Rice’s own account that he

had only purchased the car weeks before, “got a deal that was too

good to be true,” and “did not follow the proper channels to ensure

the vehicle was not stolen.”

¶ 29 This purported gap of time — indeed a substantial period —

between when the car was stolen and when Rice claims to have

14 obtained possession is problematic in determining whether, and to

what extent, Rice proximately caused the damages that the district

court awarded. Other divisions of this court have vacated

restitution orders involving shorter lengths of time in which the

prosecution failed to prove proximate cause for damage due to the

defendant’s mere possession. See, e.g., People in Interest of D.I.,

, ¶ 24 (vacating restitution order for damages to

stolen car when the defendant’s possession did not establish

damage to and initial theft of the vehicle two days earlier);

Randolph,

(reversing restitution order for personal

property taken from stolen car where the defendant was not

involved with the initial theft).

¶ 30 Rice’s statements are not dispositive as to what happened in

this case. But it was not Rice’s burden to prove that he did not

proximately cause $3056.82 in damages to the car; it was the

prosecution’s burden to prove that he did.

¶ 31 The only evidence that Rice was involved with the initial theft

is that the car was parked at his residence when it was recovered

nearly a year later. Such evidence is insufficient to establish Rice’s

involvement with the initial theft, and, by extension, his continuous

15 possession of the car over the course of the year it was presumably

damaged.

¶ 32 Assuming Rice’s account to be true that he only possessed the

car for a short time, it is certainly possible that he caused part, or

all, of the $3056.82 in damages in the intervening weeks between

when he obtained possession and when the vehicle was recovered

upon his arrest. But we find no evidence in the record — and none

was presented at the restitution hearing — of when these damages

were sustained. Therefore, regardless of when Rice took possession

the stolen car, the evidence is insufficient to show that he

proximately caused this amount of damages.

¶ 33 The Attorney General argues that D.I. and Randolph are

distinguishable, as Rice pled guilty to first degree aggravated

automobile theft, while those cases involved the lesser offenses of

second degree motor vehicle theft and theft by receiving,

respectively. We disagree that the severity of the offense is a

distinguishing factor, however, as one can be convicted of

aggravated motor vehicle theft in the first degree without having

committed the initial theft and causing all of the attendant

damages. See § 18-4-409(2) (“A person commits aggravated motor

16 vehicle theft in the first degree if he or she knowingly obtains or

exercises control over the motor vehicle of another without

authorization or by threat or deception and: [engages in any listed

behaviors].”)

¶ 34 We therefore reverse the district court’s restitution order of

$3056.82, as the prosecution did not sufficiently prove Rice to have

proximately caused the entirety of the damages.

¶ 35 We note, however, that Rice signed a plea agreement stating

that “[d]ismissed counts will be considered for sentencing and

restitution purposes.” (Emphasis added.) We now turn to whether

consideration of the dismissed charge warrants entry of a modified

restitution award.

D. Consideration of Dismissed Charge

¶ 36 One dismissed count with which Rice was charged was first

degree aggravated motor vehicle theft (causing five hundred dollars

or more in property damage). See § 18-4-409(2)(e). A person

commits that crime if he or she knowingly obtains or exercises

control over the motor vehicle of another without authorization and

“[c]auses five hundred dollars or more property damage, including

but not limited to property damage to the motor vehicle involved, in

17 the course of obtaining control over or in the exercise of control of

the motor vehicle.” Id.

¶ 37 We acknowledge that restitution may not be awarded for

criminal conduct of which the defendant was acquitted, see Cowen

v. People,

, or for conduct with which the

defendant was never criminally charged, People v. Sosa,

.

¶ 38 But here, the plea agreement mandates the consideration that

Rice caused a minimum of five hundred dollars of damage.

Although the prosecution did not sufficiently prove Rice proximately

caused specific damages above this minimum amount, awarding

restitution in the modified amount of $500 gives effect to the terms

of Rice’s plea agreement. See People v. Antonio-Antimo,

(Colo. 2000) (“Plea agreements are contractual in

nature.”); People v. Johnson,

(Colo. 2000)

(“Determination of the parties’ obligations under a plea agreement is

a question of law we review de novo.”); see also Sosa, ¶ 29

(acknowledging that the prosecution and defense may “enter[] into a

plea agreement pursuant to which dismissed or uncharged counts

will be considered for purposes of restitution”).

18 ¶ 39 Aside from Rice’s plea agreement, which explicitly

contemplates a restitution award covering dismissed charges, such

an award is further bolstered by the record. The district court’s

ordered restitution of $3056.82 was a reduction from the

prosecution’s original proposed amount of $3605.34. This

reduction was based on Rice’s filed objection that the amount of

restitution was “excessive” because he did not cause the damage to

the front bumper.

¶ 40 In other words, the focus of Rice’s challenge to the restitution

award in the underlying case disputed the amount — not the fact —

of restitution owed. Consequently, the record further supports our

imposition of modified restitution of $500 in consideration of the

dismissed count of first degree aggravated motor vehicle theft with a

minimum damage component. See People v. Stone,

(noting that the purpose of imposing restitution against

defendants is to compensate victims, and that “the Restitution Act

is to be ‘liberally construed’ to accomplish that purpose” (quoting

People v. McCann,

(Colo. App. 2005))).

19 IV. Conclusion

¶ 41 The district court’s restitution order is affirmed in part and

reversed in part, and the case is remanded with instructions to

award restitution in the modified amount of $500.

JUDGE DAILEY and JUDGE DAVIDSON concur.

20