22CA0473 Peo v Yeomans 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0473

Boulder County District Court No. 20CR2009

Honorable Ingrid S. Bakke, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Thomas Yeomans,

Defendant-Appellant.

ORDER AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Shann Jeffery, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Christopher Thomas Yeomans, appeals the district

court’s restitution order entered after he pleaded guilty to and was

sentenced for second degree assault. He contends that the district

court erred (1) at sentencing by giving the prosecution ninety-one

days to determine the restitution amount, pursuant to section 18-

1.3-603(1)(b), C.R.S. 2023, and People v. Weeks, 2021 CO 75; and

(2) by ordering restitution before the prosecution had submitted its

written determination of the restitution amount. We affirm and

remand the case for correction of the mittimus.

I. Weeks and the Restitution Statute

¶ 2 Eleven days before Yeomans was sentenced, the supreme

court decided Weeks, in which it interpreted the statutory deadlines

for restitution set forth in section 18-1.3-603. Pursuant to the

statute, every order of conviction must include one of four types of

restitution orders: (a) an order to pay a specific amount; (b) an order

obligating the defendant to pay restitution but deferring the

establishment of the actual amount owed; (c) an order that the

defendant is obligated to pay the actual costs of specific future

treatment for the victim; or (d) a finding that no victim suffered a

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pecuniary loss and thus no restitution is owed. § 18-1.3-603(1)(a)-

(d); Weeks, ¶ 3.

¶ 3 In Weeks, the supreme court held that the ninety-one-day

deadline for determining restitution under section 18-1.3-603(1)(b)

governs a district court’s determination of the amount of restitution,

and that the court lacks authority to impose restitution after that

deadline unless it expressly finds, before the deadline, good cause

for extending it. Weeks, ¶ 5. The supreme court further held that,

under section 18-1.3-603(2), the prosecution must move for

restitution and present the information supporting the proposed

amount of restitution before or at sentencing, if the information is

then available. Id. at ¶¶ 30-31, 40. If the information is not

available at sentencing, the prosecution must submit it within

ninety-one days. Id. And the district court may extend this

deadline if, before the deadline expires, it expressly finds

extenuating circumstances affecting the prosecution’s ability to

determine restitution within ninety-one days. Id. at ¶ 40.

II. Procedural Background

¶ 4 As part of Yeomans’ plea agreement, he agreed to the

prosecution seeking restitution and the district court ordering it.

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¶ 5 At the sentencing hearing on November 19, 2021, the

prosecutor asked the court to order restitution and reserve the

amount for ninety-one days. The court “order[ed] restitution

. . . and the amount [wa]s reserved to be determined within a

91-day period.” Defense counsel did not object. The court issued a

minute order ordering restitution and reserving the amount for

ninety-one days but did not reference restitution on the mittimus.

¶ 6 Twenty days later, on December 9, 2021, the prosecution filed

a motion asking the court to correct the mittimus and find

extenuating circumstances to extend its deadline to determine the

restitution amount past ninety-one days. It requested a three-

month extension because the victim required additional treatment,

as permitted by section 18-1.3-603(1)(c). In turn, it requested an

order finding good cause to extend the ninety-one-day deadline to

order restitution under section 18-1.3-603(1)(b).

¶ 7 Yeomans objected to the requested extension of the deadline.

Attached to Yeomans’ objection were (1) an email chain dated

December 8, 2021, outlining the prosecution’s request for

information from the City of Longmont regarding the victim’s

workers’ compensation expenses and (2) a ledger of those expenses

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totaling $35,385.16. The ledger included payments that were made

on the day of sentencing. And an email from the City indicated that

the victim was “still under treatment” and the City had not closed

the workers’ compensation claim. Yeomans argued that

(1) continuing expenses for the victim should be denied because the

district court’s restitution order at sentencing was made under

section 18-1.3-603(1)(b), not section 18-1.3-603(1)(c), and the

prosecution had not provided sufficient reasons for an extension;

and (2) the prosecution requested information about the victim’s

expenses after sentencing even though that information was

available before then, which barred the court from ordering

restitution under section 18-1.3-603(2).

¶ 8 The prosecution replied, asserting that it was in fact

requesting an extension of its deadline to determine restitution

under section 18-1.3-603(1)(b), not section 18-1.3-603(1)(c). It also

asserted that the amount of restitution was not available at

sentencing because the victim had not healed from surgery and

may require additional treatment, and the City of Longmont had not

yet closed the workers’ compensation claim. Alternatively, the

prosecution asked the district court to order restitution in the

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amount already incurred, $35,385.16, but did not provide any

supporting documentation.

¶ 9 On February 7, 2022, eighty days after sentencing, the district

court issued an order for restitution in the amount of $35,385.16.

The court made the following findings:

(1) There were no extenuating circumstances asserted by the

prosecution to warrant an extension of the

ninety-one-day deadline. It also was not appropriate to

extend the deadline because the restitution amount was

“easily ascertainable.” The court reasoned that “e-mail

exchanges between the City of Longmont and the District

Attorney’s Office confirm [the restitution] information was

only sought by the People after sentencing and was

provided to the District Attorney’s Office within hours of

request.” Nonetheless, the court overruled Yeomans’

objection because, “although the amount of restitution

was ascertainable at sentencing,” Yeomans did not

contemporaneously object at sentencing to the court

granting the prosecution ninety-one days to determine a

restitution amount.

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(2) The prosecution could not now request a restitution

order under section 18-1.3-603(1)(c), despite the victim’s

ongoing treatment, when at sentencing it had requested

an order under section 18-1.3-603(1)(b).

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(3) No good cause existed to extend the court’s deadline for

ordering restitution beyond the statutory ninety-one-day

period because the factual circumstances of the case did

not support such a finding.

(4) The omission of restitution from the mittimus had been a

typographical error, and the final judgment would be

“amended to reflect the order announced in open court.”

¶ 10 Three days later, the prosecution filed a notice specifying that

it was requesting $35,385.16 in restitution and specifying the

victim’s name “for inclusion in the record, as the Court ha[d]

already ordered restitution.” The notice relied on the

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The People argue that the district court erred by holding that the

prosecution could not request restitution for ongoing expenses

under section 18-1.3-603(1)(c), C.R.S. 2023. Because the People

did not cross-appeal this issue, it is not properly before us. See

Koinis v. Colo. Dep’t of Pub. Safety, 97 P.3d 193, 197 (Colo. App.

2003) (“An appellee must file a cross-appeal in order to raise a

contention that, if successful, would increase its rights under the

judgment or order being reviewed.”).

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documentation submitted by Yeomans in his objection to the

prosecution’s motion.

III. Discussion

A. Preservation and Standard of Review

¶ 11 The parties dispute the preservation of Yeomans’ arguments.

But the parties agree, as do we, that his claims are properly before

us because they would be cognizable under Crim. P. 35(a), for

which there is no preservation requirement. See Fransua v. People,

2019 CO 96, ¶ 13 (there is no preservation requirement for claims

that can be raised in a postconviction motion under Crim. P. 35(a));

People v. Perez, 2020 COA 83, ¶ 14 (claims concerning the

timeliness of restitution orders are cognizable under Crim. P. 35(a)),

overruled on other grounds by People v. Weeks, 2021 CO 75, ¶ 47

n.16, cert. granted, judgment vacated on other grounds, and case

remanded, (Colo. No. 20SC559, Dec. 6, 2021) (unpublished order).

¶ 12 Because Yeomans’ arguments depend on the court’s

interpretation of the restitution statutes, we review them de novo.

See Weeks, ¶ 24.

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B. Timeliness of the Prosecution’s Restitution Request

¶ 13 Yeomans asserts that the district court erroneously granted

the prosecution a ninety-one-day extension to determine the

restitution amount because the information was readily available at

sentencing and there was “no evidence that the information was

unavailable.” We conclude that any error was harmless.

1. Waiver

¶ 14 At the outset, we reject the People’s argument that Yeomans

waived this issue. The People rely on People v. Fregosi, 2024 COA

6, to assert that Yeomans waived this issue because he agreed to

pay restitution in the plea agreement and failed to object to the

prosecution’s request to reserve the amount of restitution for

ninety-one days at sentencing. However, Fregosi is distinguishable.

In Fregosi, the defendant agreed “to pay restitution, and ‘[t]he

People reserve[]d restitution’ in the plea agreement.” Id. at ¶ 19.

And at sentencing, after the prosecution asked for a ninety-one-day

extension to determine the appropriate amount of restitution, the

district court asked defense counsel if he had any objection, to

which defense counsel said, “No, Judge.” Id. at ¶ 4.

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¶ 15 But in the plea agreement here, Yeomans did not agree to the

prosecution reserving the amount of restitution at sentencing; he

merely agreed to pay restitution. And defense counsel did not

affirmatively decline to object to the prosecution’s request for

additional time at sentencing; rather, defense counsel said nothing.

Id. at ¶ 17 (“Waiver is the intentional relinquishment of a known

right or privilege. Although a waiver can be implied, the conduct

must be unequivocal and clearly manifest an intent to relinquish

the claim. The mere failure to raise an issue does not suffice.”)

(citations omitted). We therefore reject the People’s invitation to

find waiver based on Fregosi.

2. Analysis

¶ 16 A division of this court recently decided People v. Brassill,

2024 COA 19, which is instructive here. In Brassill, the division

held that the prosecution must “exercise reasonable diligence to

determine the amount of restitution and present it to the court at or

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before the sentencing hearing.”

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Brassill, ¶ 30. However, the

division also held that the prosecution’s failure to exercise

reasonable diligence does not deprive the district court of the

authority to order restitution if it does so within its ninety-one-day

deadline. Id. at ¶ 58.

¶ 17 Here, the prosecution failed to act with reasonable diligence in

determining the restitution amount because, as the district court

found, the amount was “easily ascertainable” at sentencing but the

prosecution waited until December 8, 2021 (nineteen days after

sentencing) to request it. Yet, the court entered the restitution

order within its ninety-one-day deadline. Because the court

retained its authority to enter restitution within the ninety-one-day

deadline despite the prosecution’s lack of reasonable diligence, any

error in the prosecution’s failure to exercise reasonable diligence in

procuring the restitution information was harmless. See id. at

¶¶ 56-63.

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The People urge us not to follow People v. Brassill, 2024 COA 19,

because diligence is already built into the restitution statute and

the statute on its face does not create a separate reasonable

diligence requirement. But we find the Brassill decision to be

thorough and well-reasoned, and we follow it here.

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¶ 18 Because we resolve this issue on this ground, we need not

address Yeomans’ argument that the district court had a duty to

inquire as to why the prosecution did not have a restitution amount

available at sentencing, or the prosecution’s argument that

Yeomans did not lodge a contemporaneous objection to the section

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

C. The Timing of the District Court’s Restitution Order

¶ 19 Yeomans argues that the district court acted without statutory

authority by entering a restitution order for $35,385.16 because the

prosecution’s reply to its December 9, 2021, motion did not qualify

as a restitution request, and the prosecution’s request filed three

days after the court’s order did not retroactively restore the court’s

authority. We again conclude that any error was harmless.

¶ 20 The prosecution moved for restitution at sentencing when they

told the court they “anticipate restitution in every case” and “would

ask that the Court order that the restitution be ordered in those

cases and then reserve the amount for 91 days, please.” See People

v. Tennyson, 2023 COA 2, ¶ 36 (“We are satisfied that the

prosecutor’s request ‘for restitution’ at the sentencing hearing was

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sufficient to constitute a motion for an order that [the defendant]

pay restitution.”) (cert. granted Sept. 11, 2023).

¶ 21 The prosecution subsequently moved for clarification of

restitution and an extension of its deadline. Yeomans objected and

included a ledger of the victim’s workers’ compensation payments

that the prosecutor had provided to him. The total on the ledger

was $35,385.16. And in the prosecution’s reply, it requested,

“[a]lternatively, if the Court disagrees with the People’s analysis, a[]

final order for restitution in the amount of $35,385.16, the amount

already paid for [the victim’s] injury.” The district court based its

restitution order for $35,385.16 on this information. That the

prosecution filed a formal request for restitution in the same

amount three days later did not prejudice Yeomans. Therefore, any

error created by this procedural irregularity was harmless, and we

decline to vacate Yeomans’ restitution order on this basis. See

Crim. P. 52(a).

IV. Mittimus

¶ 22 Despite the district court’s ruling ordering a specific amount of

restitution, it did not include the amount of restitution on the

mittimus. Accordingly, we remand for the court to amend the

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mittimus to reflect the amount of restitution owed. See People v.

Smith, 121 P.3d 243, 251 (Colo. App. 2005).

V. Disposition

¶ 23 The restitution order is affirmed, and the case is remanded to

the district court to amend the mittimus.

JUDGE GROVE and JUDGE SULLIVAN concur.