People v. Nelson

• Decision Date: 25 April 2013
• Docket Number: Court of Appeals No. 11CA1206
• Citation: 369 P.3d 625
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Shannon NELSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

369 P.3d 625

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Shannon NELSON, Defendant–Appellant.

Court of Appeals No. 11CA1206

Colorado Court of Appeals, Div. VI.

Announced April 25, 2013

Rehearing Denied June 6, 2013

John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant–Appellant

Opinion by JUDGE GABRIEL

¶ 1 Defendant, Shannon Nelson, formerly known as Shannon Gonser, appeals from the district court's order denying her motion for a refund of the restitution paid while she was incarcerated in the Department of Corrections (DOC). Addressing an apparent matter of first impression in Colorado, we hold that a defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail to prove on remand the defendant's guilt of the charged crimes beyond a reasonable doubt (e.g., due to a subsequent acquittal or a decision not to retry the defendant). We further conclude, also as a matter of first impression, that such a defendant may seek the refund of restitution from the state in his or her criminal case without having to file a separate proceeding.

¶ 2 Accordingly, we reverse the district court's order and remand for further proceedings.

I. Background

¶ 3 Nelson was charged with forty counts related to the alleged sexual assault and physical abuse of her four children. Following a jury trial, she was convicted on five counts and sentenced to the DOC. The district court also ordered Nelson to pay restitution, court costs, and fees totaling $8192.50, of which $7845 was for restitution.

¶ 4 As pertinent here, the DOC subsequently withheld $681.35 from Nelson's inmate account and applied that sum toward the restitution, fees, and costs. The breakdown contained in Nelson's opening brief indicating how this sum was allocated does not total $681.35, but Nelson asserts that $390.67 of the total amount withheld was applied to the restitution owed.

¶ 5 Nelson appealed her convictions, and a division of this court reversed and remanded for a new trial. People v. Gonser, (Colo. App. No. 06CA1023, Apr. 9, 2009) 2009 WL 952492

(not published pursuant to C.A.R. 35(f) ). At her second trial, Nelson was acquitted of all of the remaining charges.

¶ 6 Thereafter, Nelson moved for a refund of the restitution, fees, and costs that she paid while in the DOC. The district court, however, concluded that it lacked the authority to order such a refund and denied the motion.

¶ 7 Nelson now appeals.

II. Discussion

¶ 8 Nelson contends that the district court erred in concluding that it lacked the authority to order a refund of the restitution, fees, and costs that Nelson paid in connection with a conviction that was overturned when she was acquitted after retrial of all of the remaining charges against her. We agree that the district court erred.

A. Standard of Review

¶ 9 The question of whether the district court had the authority to order a refund of the restitution, fees, and costs that Nelson paid presents a question of law that we review de novo. See People v. Pino, 262 P.3d 938, 940 (Colo.App.2011)

.

B. Refund of Restitution, Fees, and Costs

¶ 10 The General Assembly has expressed its intent that restitution be awarded to crime victims. § 18–1.3–601(2), C.R.S.2012

. Thus, every order of conviction of a felony, among other crimes, shall include consideration of restitution. § 18–1.3–603(1), C.R.S.2012.

¶ 11 When restitution may be awarded, the prosecution must prove the amount of restitution owed by a preponderance of the evidence. People v. Pagan, 165 P.3d 724, 729 (Colo.App.2006)

. Because of the lower burden of proof for restitution than for a conviction, restitution may be awarded in connection with a criminal conviction for related but uncharged conduct. Id. at 731. Similarly, a division of this court has held that when a conviction is abated by operation of law due to the defendant's death, a restitution order issued in connection with that conviction need not also be abated. People v. Daly , ––– P.3d ––––, –––– (Colo. App. No. 10CA0580, June 9, 2011).

¶ 12 As the foregoing authorities make clear, restitution must be tied to a valid conviction, even if the amount is based on uncharged conduct that is related to the conduct on which the conviction was based. See also People v. Brigner, 978 P.2d 163, 164 (Colo.App.1999)

(noting that a defendant may not be ordered to pay restitution for losses that did not result from the conduct that was the basis of his or her criminal conviction). Thus, a division of this court has indicated that when a conviction is reversed and a case is remanded for a new trial, any restitution order imposed in connection with the conviction must be vacated, pending the outcome of the new trial. See People v. Scearce, 87 P.3d 228, 235 (Colo.App.2003) (vacating a restitution order in connection with the reversal of a conviction on appeal).

Similarly, fees and costs imposed on a defendant must be tied to a valid conviction. See § 13–32–105, C.R.S.2012

(providing for a docket fee and surcharge to be assessed and collected from a defendant upon his or her conviction); § 16–18–101(1), C.R.S.2012 (providing that the costs in a criminal case shall be paid by the state when the defendant is acquitted); § 24–4.1–119(1)(a), C.R.S.2012 (providing for, among other things, costs to be levied against a defendant on each criminal action resulting in a felony conviction); § 24–4.2–104(1)(a)(I), C.R.S.2012 (providing for, among other things, a surcharge to be levied against a defendant on each criminal action resulting in a felony conviction).

¶ 14 Applying these principles here mandates that the restitution, fees, and costs imposed on Nelson in connection with her overturned conviction be vacated, because there is no valid conviction to which any such restitution, fees, and costs may be tied. The question thus becomes whether Nelson is entitled to seek, and the district court is authorized to award, a refund of the restitution, fees, and costs that Nelson has already paid.

¶ 15 With respect to the fees and costs, our supreme court has held that when a conviction is vacated, the parties should be "placed in status quo by refund to the defendant of the sums paid as fine and costs." Toland v. Strohl, 147 Colo. 577, 586, 364 P.2d 588, 593 (1961)

; cf. People v. Noel, 134 P.3d 484, 487 (Colo.App.2005) (distinguishing Toland on the ground that it did not involve probation supervision fees and concluding that, because the purpose of probation is primarily rehabilitative, and because the defendant could have benefited from the services that she received and paid for, the district court did not err in denying the defendant's motion for a refund of the probation supervision fee). The People cite no authority contrary to Toland, and we are aware of none.

¶ 16 Accordingly, we conclude that Nelson was entitled to seek, and the district court was authorized to award, a refund of the fees and costs that Nelson paid in connection with her now overturned conviction.

¶ 17 With respect to restitution, although no published Colorado appellate decisions appear to have addressed the question of whether a defendant in Nelson's position may seek a refund of the restitution previously paid, courts in other jurisdictions have done so. For example, in Telink, Inc. v. United States, 24 F.3d 42, 46 (9th Cir.1994)

, the court rejected the argument that a petitioner who had filed a successful writ of error from a judgment was required to file a Tucker Act claim to recover fines or restitution stemming from a wrongful conviction. Rather, on the facts before it, which involved only fines and not restitution, the court agreed that the recovery of wrongly paid fines is incident to the vacating and setting aside of a wrongful conviction. Id. at 46–47. Thus, the court held that if the defendants were to prevail in setting aside their convictions, then the wrongly paid fines would be "automatically refunded" without requiring a civil action. Id. at 47.

¶ 18 Similarly, in United States v. Beckner, 16 F.Supp.2d 677, 679 (M.D.La.1998)

, the court rejected the government's argument that because it had already disbursed the restitution funds, it should not be required to repay the defendant, observing, "The government offers neither logic nor authority to support this argument." The court thus held, "[T]his court has jurisdiction to carry out its obligation to completely vacate all aspects of the erroneous [judgment] issued by it." Id.

¶ 19 Finally, in United States v. Venneri, 782 F.Supp. 1091, 1093 (D.Md.1991)

, the court observed, as pertinent here, that there is always a means for a person to recoup his or her losses when the loss takes the form of a monetary fine. The court added, "The interests of justice make it imperative that the petitioner receive a refund of his restitution." Id. The court then proceeded to hold that the wrongfully convicted defendant was entitled to recover from a third party the restitution paid to that third party as a consequence of the defendant's unconstitutional conviction. Id. at 1094. In so holding, the court stated, " [P] rinciples of justice require no less than a full refund of that money." Id. at 1094–95 ; see alsoUnited States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973)

("We can see no reason why a person who has paid a fine pursuant to an unconstitutional statute should be required to resort to a multiplicity of actions in order to obtain reimbursement of money to which he is entitled. Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines."). But see United States v. Hayes, 385 F.3d 1226, 1228–30 (9th Cir.2004) (concluding that a defendant was not entitled to...