23CA0678 Peo v Burden 09-18-2025 COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0678 Jefferson County District Court No. 22CR1765 Honorable Christopher C. Zenisek, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Jordon Christopher Burden, Defendant-Appellant.

ORDER VACATED AND CASE REMANDED WITH DIRECTIONS Division III Opinion by JUDGE DUNN Tow and Berger*, JJ., concur Prior Opinion Announced January 30, 2025, Vacated in 25SC101 NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, 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. 2025.

¶1 Defendant, Jordon Christopher Burden, appealed the district court’s restitution order, contending that the court lacked authority to enter restitution beyond the statutory deadline. This division agreed and vacated the restitution order. People v. Burden, (Colo. App. No. 23CA0678, Jan. 30, 2025) (not published pursuant to C.A.R. 35(e)) (Burden I).

¶2 The supreme court, however, vacated Burden I and remanded the case to us for reconsideration in light of its decision in People v. Roberson, 2025 CO 30, which, under the circumstances presented there, concluded that the defendant had implicitly waived the right to have restitution determined within the statutory deadline.

¶3 Having considered Roberson and the parties’ supplemental briefs, we conclude that the record before us doesn’t support an implicit waiver. Accordingly, the untimely restitution order must be vacated.

I. Background ¶4 On September 26, 2022, Burden pleaded guilty to felony theft and agreed to pay restitution for all losses proximately caused by his conduct. Nothing in the plea agreement, however, addressed the timing of restitution. After entry of the plea, the court

sentenced Burden to one year in prison, ordered restitution, and granted the prosecution ninety-one days “to identify the amount.”1 ¶5 On November 10 — forty-five days after sentencing — the prosecution filed a motion requesting restitution.2 A few days later, the court ordered defense counsel to file any objection to restitution within twenty-one days.

¶6 On November 30 — sixty-five days after sentencing — Burden objected to the restitution amount and requested a hearing.

¶7 On December 14 — seventy-nine days after sentencing — the court issued an order stating “[a] hearing may be set” and identified its setting hours. But for reasons the record doesn’t explain, the

restitution hearing was not set until February 8, 2023 — 135 days after the sentencing hearing.

¶8 On the day of the scheduled February 8 restitution hearing, Burden was not released from prison apparently because the prosecution failed to prepare a writ to transport Burden to the hearing.3 The parties agreed to reset the hearing with the prosecution pledging to “make sure to writ for the next hearing.”

¶9 The restitution hearing was ultimately held on March 8 — 163 days after sentencing. That same day, the district court entered its restitution order.

II. Analysis ¶ 10 As directed, we start with Roberson. There, the supreme court concluded that the defendant had voluntarily waived the right to have restitution imposed within the ninety-one-day statutory deadline where defense counsel requested additional time to prepare for the restitution hearing, the court then proposed a hearing date that fell beyond the statutory deadline, and defense counsel “agreed to that date.” Roberson, ¶ 7. After the statutory

deadline had expired, defense counsel requested additional continuances. Id. at ¶ 8.

¶ 11 Contending that the record here “clearly aligns with” that in Roberson, the People argue that “Burden implicitly waived his statutory right to challenge the timeliness of the restitution order” because his defense counsel’s actions “were inconsistent with the right he’s now asserting on appeal.” We aren’t convinced.

A. Legal Principles and Standard of Review ¶ 12 When — as here — the right at issue is a statutory right, waiver “must be voluntary, but need not be knowing and intelligent.” Id. at ¶ 13 (citation omitted).4 A waiver may be express or implied. See id. An implied waiver requires conduct by a party or counsel “that manifests an intent to relinquish a right or

privilege” or actions that are “inconsistent with its assertion.”5 Id. (citation omitted); see also Phillips v. People, 2019 CO 72, ¶ 21 (noting that implied waivers require unequivocal conduct that clearly manifests an intent to relinquish the right). The “mere failure to raise an issue” does not suffice. Phillips, ¶ 21.

¶ 13 The remedy for an untimely restitution order is vacatur. Snow v. People, 2025 CO 32, ¶ 4.

B. Burden Did Not Implicitly Waive His Statutory Right to a Timely Restitution Order ¶ 14 This case isn’t like Roberson. Nowhere in the record did Burden or defense counsel agree to a restitution hearing date beyond the statutory deadline. Cf. Roberson, ¶ 7; see also People v. Babcock, 2025 CO 26, ¶ 30 (concluding that defense counsel’s

request to set the restitution hearing after the statutory deadline would expire “manifest[ed] an intent to relinquish” the defendant’s right to have restitution determined within the statutory deadline (alteration in original)). And while the People assert — without citation to the record — that “defense counsel was an active participant in the ongoing scheduling of the restitution proceedings,” they identify no actions or conduct by Burden or his counsel “that manifest[ed] an intent to relinquish” Burden’s statutory right to a timely restitution order. See Roberson, ¶ 13.

¶ 15 To the contrary, the record shows only that Burden timely objected to the requested restitution and asked the court to set a hearing. What happened next is unknown. All we know is that the restitution hearing was set after the statutory deadline expired. We don’t know if defense counsel objected to the proposed hearing date. And we see nothing in Roberson that suggests we should presume a manifestation of the intent to relinquish a statutory right from a silent record. Such a presumption from silence would be inconsistent with the supreme court’s admonishment that “[w]e ‘do not presume acquiescence in the loss of’ a defendant’s rights and therefore ‘indulge every reasonable presumption against waiver.’”

People v. Garcia, 2024 CO 41M, ¶ 29 (quoting People v. Rediger, 2018 CO 32, ¶ 39).

¶ 16 To the extent the People argue that defense counsel manifested an intent to waive the statutory deadline by not objecting to untimeliness at the February 8 restitution hearing, we don’t see how that matters. After all, the statutory deadline had already expired by February 8 and — unlike Roberson — nothing in the record shows that Burden or his counsel had waived the deadline before February 8. The People don’t explain how Burden’s failure to point out that the court no longer had authority to impose restitution could revive and then waive a statutory deadline that had already expired. See People v. Weeks, 2021 CO 75, ¶ 45.6 ¶ 17 Under the circumstances here, we can’t agree that the record demonstrates that Burden or defense counsel implicitly waived the

right to a timely restitution order through either words or conduct.

Because the restitution order was untimely, it must be vacated.

Snow, ¶ 4.

III. Disposition ¶ 18 The restitution order is vacated, and the case is remanded for amendment of the mittimus to reflect that no restitution is owed.

JUDGE TOW and JUDGE BERGER concur.