People v. Le
| Decision Date | 17 March 2022 |
| Docket Number | Court of Appeals No. 19CA1997 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Ton Thai LE, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Daniel A. Pietragallo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
Springer and Steinberg, P.C., Harvey A. Steinberg, Craig L. Pankratz, Denver, Colorado, for Defendant-Appellee
Opinion by JUDGE FOX
¶ 1 In this criminal tax evasion case, the People appeal the trial court's order denying their motion for payment of restitution to the Colorado Department of Revenue (Department). Defendant, Ton Thai Le, who pleaded guilty to evading Colorado's marijuana excise tax, maintains that restitution is not an appropriate remedy by which the Department can collect unpaid marijuana excise taxes. The trial court agreed, finding as a matter of law that the Department could not recover such taxes on behalf of Coloradans under Colorado's Restitution Act, sections 18-1.3-601 to - 603, C.R.S. 2021.
¶ 2 On appeal, we are asked to address a question that the trial court left unresolved: Can the Department be considered a "victim" under the Restitution Act such that the agency itself — as opposed to the public at large — is entitled to restitution for the unpaid taxes? We conclude that it can. Thus, we reverse the trial court's order and remand for further proceedings.
¶ 3 Le was among thirty-one codefendants indicted on numerous felony charges stemming from their roles as high-ranking members of a Colorado-based drug trafficking organization that illegally cultivated and distributed marijuana between 2014 and 2016.
¶ 4 Le pleaded guilty to, among other offenses, evasion of taxes administered by the Department in violation of section 39-21-118(1), C.R.S. 2021, a class 5 felony. As part of his negotiated plea agreement, Le agreed to be sentenced to between sixteen and thirty-two years in the custody of the Department of Corrections on one count of violating the Colorado Organized Crime Control Act, section 18-17-104, C.R.S. 2021. That sentence, however, was suspended, and Le further agreed to a term of eight years of probation for all remaining counts, which would run concurrently.
¶ 5 Le's plea agreement required him to "pay restitution jointly and severally with any co-defendants."
¶ 6 The People filed a motion requesting restitution be made by Le and two of his co-defendants — Linh Ngoc Tran and Jonathan Tieu.1 Therein, the People sought payment to the Department of unpaid marijuana excise taxes. Le and his co-defendants objected, arguing that the Restitution Act does not authorize such restitution.
¶ 7 The court held an initial hearing on the matter. At the outset, Tieu requested a continuance. In the subsequent discussion, the parties and the court framed the People's restitution request as raising two distinct issues: (1) as a matter of law, whether the Department can recover unpaid excise taxes as restitution; and (2) if so, whether the People had met their burden of proving the amount owed in restitution.
¶ 8 The People indicated that they intended to present testimony of a Department agent at the continued evidentiary hearing. They also asked if "the Court want[s] the bank records at this point or if you want me to hold off until we go to the second phase." The court responded, "Let's hold off." It stated that it first intended to issue an order addressing the threshold legal question based on the parties’ briefs. Then, if it was necessary, the court would allow the People to present further evidence in support of their motion.
¶ 9 On September 12, 2019, the court issued an order denying the People's motion for restitution, finding that the Department could not recover unpaid marijuana excise taxes on behalf of Colorado's taxpayers. The court's analysis flowed from an allegation in the People's motion that "[t]he State of Colorado and its taxpayers, by and through the [Department], are the victims of the Defendants’ conduct and criminal scheme." It considered whether the Restitution Act permitted the Department to collect restitution on behalf of "society" — "the victim in this case." But the court did not address or analyze whether the Department could be entitled to restitution as a "victim" in its own right under the Restitution Act.
¶ 10 In denying the People's motion, the court ultimately concluded that "a specific legislative pronouncement is required for the People to successfully obtain restitution" under the circumstances, and absent such pronouncement, "the People cannot recover the restitution sought."
¶ 11 The People do not challenge the propriety of the trial court's analysis that the Department could not collect restitution on behalf of the People of Colorado for unpaid marijuana excise taxes. In fact, they explicitly renounce any such argument. Instead, they raise a slightly distinct contention apparently not considered by the trial court: that the Department itself can be considered a "victim" under the Restitution Act and is thus entitled to restitution. Accordingly, they argue, the trial court erred by determining that the Department could not be awarded restitution for the unpaid taxes. We agree and thus reverse the trial court's order and remand for further proceedings.
¶ 12 As the trial court pointed out, the People specifically alleged in paragraph thirty-five of their motion that "[t]he State of Colorado and its taxpayers, by and through the [Department], are the victims of the Defendants’ conduct and criminal scheme." Le argues that, based on this allegation, the trial court's failure to address whether the Department itself could be considered a "victim" was an error invited by the People. Thus, he argues, the People cannot now raise the issue on appeal. See People v. Zapata , 779 P.2d 1307, 1309 (Colo. 1989) (); see also People v. Rediger , 2018 CO 32, ¶ 34, 416 P.3d 893 ().
¶ 13 However, in examining the totality of the People's request for restitution, including the entirety of their motion, attached exhibits, and proposed order, it is apparent that the People identified the Department as a victim and suggested it was entitled to restitution. For example, in paragraph thirty-six of their motion, they describe the unpaid taxes as a "pecuniary loss" that was "suffered" specifically by "the [Department]." And in paragraph thirty, in referencing the Restitution Act's definition of "victim," they added that "[a] government department is a ‘person’ for purposes of the restitution statute." Moreover, they drafted the following proposed order for the court: "The court, having reviewed the People's Motion for Restitution, orders that the Defendants ... pay restitution ... to the [Department]."
¶ 14 Accordingly, the trial court's omission of this issue was not invited by the People, and the issue was preserved for our review.
¶ 15 "[B]ecause in restitution cases[ ] the statutory scheme no longer allows for abuse of discretion as the default standard of review, the appropriate standard of review necessarily will depend on which of a wide variety of restitution issues district courts decide and we are asked to review." People v. Barbre , 2018 COA 123, ¶ 24, 429 P.3d 95. Where the sole issue on appeal is the proper interpretation of the Restitution Act, we review the trial court's restitution order de novo. Id. at ¶ 23 (); see also Dubois v. People , 211 P.3d 41, 43 (Colo. 2009).
¶ 16 "In construing a statute, we aim to effectuate the General Assembly's intent." People v. Weeks , 2021 CO 75, ¶ 25, 498 P.3d 142. "Our first step in this endeavor is to inspect ‘the language of the statute, giving its words and phrases their plain and ordinary meaning.’ " Id. (quoting McCulley v. People , 2020 CO 40, ¶ 10, 463 P.3d 254 ). "When the language of a statute is clear and unambiguous, we give effect to its plain and ordinary meaning ‘and look no further.’ " Id. at ¶ 27 (quoting Cowen v. People , 2018 CO 96, ¶ 12, 431 P.3d 215 ). "If, however, the statutory language is susceptible of more than one reasonable interpretation and is thus ambiguous, we may resort to extrinsic aids of construction to address the ambiguity and decide which reasonable interpretation to accept based on the legislature's intent." Id.
¶ 17 Moreover, in interpreting the Restitution Act in particular, we must favor a liberal construction so as "to serve the General Assembly's goals of rehabilitating offenders, deterring future criminality, and compensating victims." People v. Steinbeck , 186 P.3d 54, 60 (Colo. App. 2007).
¶ 18 The marijuana excise tax statutes, sections 39-28.8-301 to - 308, C.R.S. 2021, establish a fifteen percent tax on marijuana sales between "retail marijuana business licensees." § 39-28.8-302(1)(a)(I), C.R.S. 2021. Specifically, the tax is imposed "at the time when the retail marijuana cultivation facility first sells or transfers unprocessed retail marijuana ... to a retail marijuana product manufacturing facility or a retail marijuana store." Id.
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