People v. Rockne

• Decision Date: 08 November 2012
• Docket Number: No. 11CA2495.,11CA2495.
• Citation: 315 P.3d 172
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant, v. Erik Sigurdson ROCKNE, Defendant–Appellee.
• Court: Colorado Court of Appeals

315 P.3d 172

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

v.Erik Sigurdson ROCKNE, Defendant–Appellee.

No. 11CA2495.

Colorado Court of Appeals,

Div. III.

Nov. 8, 2012.

Mark D. Hurlbert, District Attorney, Kristine H. Word, Deputy District Attorney, Breckenridge, Colorado, for Plaintiff–Appellant.

Reilly Pozner, LLP, Michael Kotlarczyk, Denver, Colorado, for Defendant–Appellee.

Opinion by Judge DAILEY.

¶ 1 Pursuant to section 16–12–102(1), C.R.S.2012, the People appeal the district court's order denying an award of supplemental restitution to the victim. We vacate the court's order and remand for further proceedings.

I. Background

¶ 2 In 2006, defendant was arrested and charged with attempted second degree murder, first degree assault, sexual assault, intimidating a witness or victim, false imprisonment, and false reporting. Defendant's charges were based on allegations that he had gotten into an altercation with his then girlfriend; kicked her repeatedly in the abdomen, causing, among other things, a ruptured bladder; and, rather than taking her to the hospital for treatment, left her in his home while he went to a bar. While he was gone, the victim managed to crawl up three flights of stairs, find her cell phone, and call a taxi to transport her to the hospital, where she was rushed into emergency surgery and hospitalized for over a week.

¶ 3 In 2008, in exchange for the dismissal of the above-mentioned charges, defendant entered a plea of no contest to a count of criminal mischief and was given a deferred judgment and sentence, conditioned, in part, on an obligation to pay restitution to the victim.

¶ 4 The victim claimed that she was entitled to recoup $78,550 in restitution for medical treatment, psychological counseling, and other associated costs she incurred as a result of defendant's acts. Defendant objected, asserting that the victim's claim was “unsupported and [based on] potentially unrelated restitution requests, inaccurate calculations, and outrageously inflated hospital expenses.”

¶ 5 In August 2008, defendant and the prosecution stipulated to a restitution award of $8,810 to the victim. Because, however, the court recognized the possibility that the victim could incur further expenses for future medical treatment, it “did not make the order of restitution final” but “left the issue open” and put defendant “on notice that restitution could be increased in the future.”

¶ 6 Subsequently, defendant's deferred judgment and sentence were revoked, his judgment of conviction was entered, and he was sentenced, as pertinent here, to six years probation by a second judge. At his December 2009 sentencing hearing, the subject of supplemental restitution for reconstructive surgery for the victim was raised. The prosecutor stated that the victim “has not submitted these bills to me,” “I have not seen any of [the medical bills],” and “I have not seen a letter from [the victim] regarding restitution.” The parties were asked about the “status of restitution,” to which a representative from the probation department and defendant responded that “everything” had been paid. The prosecution, however, interjected, “[s]o the only outstanding issue on restitution [is] ... the possibility of her future medical expenses that had not been [incurred] at that time.”

¶ 7 The prosecutor noted that the first judge in the case had “specifically ... reserve[d] ... the possibility of [the victim's] future medical expenses that had not ... occurred at that time.” The second judge responded that, “I saw that you reserved jurisdiction of course. The Court has jurisdiction to address issues of restitution that may result from someone's continued loss.” When, however, defense counsel inquired whether there was an issue of restitution “before the court at this moment,” the second judge replied, “No. [The court] did not receive anything from [the victim] requesting [restitution] and [the court] would refer her to the District Attorney's Office in order to follow what [the court] consider[s] to be the proper procedure for that.”

¶ 8 In September 2010, and again, in April 2011, the People filed requests for more than $35,000 in supplemental restitution for medical and mental health expenses incurred by the victim. Defendant, however, objected to any additional award, and, in a written order, a third judge denied the People's request for supplemental restitution. In its order, the court found that

• a final amount of restitution had been set, “without reservation,” when defendant was sentenced to probation in December 2009;

• because there was no “reservation of rights or court order” to that effect, the People's “request to increase restitution[,] first made some nine months after imposition of the sentence [in December 2009],” was “improper” under the restitution statute, section 18–1.3–603, C.R.S.2012; and,

• consequently, any increase in restitution, “under the procedural circumstances” of the case, would violate the restitution statute and defendant's double jeopardy rights.

II. Analysis

¶ 9 The People contend that a supplemental restitution award here would not violate either the restitution statute or double jeopardy protections. In support of this contention, they assert that (1) double jeopardy is violated only if the restitution statute does not authorize an increase in restitution; (2) the restitution statute authorizes an increase in restitution when a previous restitution order was not final and neither the prosecutor nor the judge knew about additional losses to the victim; (3) contrary to the court's finding, the December 2009 restitution order was not final; (4) neither the prosecution nor the court knew of the additional expenses; and (5) thus, neither the statute nor defendant's double jeopardy rights would be violated by an increase in defendant's restitution obligation. We conclude that the matter must be remanded for further proceedings.

¶ 10 “Increasing a lawful sentence after it has been imposed and a defendant has begun serving it may, in some circumstances, violate the double jeopardy protection against multiple punishments for the same offense.” People v. Chavez, 32 P.3d 613, 614 (Colo.App.2001). “However, double jeopardy does not bar the imposition of an increased sentence if the defendant lacked a legitimate expectation in the finality in the sentence.” Romero v. People, 179 P.3d 984, 989 (Colo.2007).

¶ 11 Because “[a] defendant can have no legitimate expectation of finality in a sentence that, by statute, is subject to further review and revision,” People v. Castellano, 209 P.3d 1208, 1209 (Colo.App.2009) (quoting Chavez, 32 P.3d at 614), the double jeopardy issue—as well as the statutory authorization issue—turns upon an interpretation and application of the restitution statute.

¶ 12 Before 2000, the law did not permit a court to modify an order of restitution once a legal sentence was imposed and the defendant began serving it. See People v. Shepard, 989 P.2d 183, 187 (Colo.App.1999); see also People v. Wright, 18 P.3d 816, 818 (Colo.App.2000) (same). However, in 2000, the General Assembly amended the restitution statute to give courts greater latitude in awarding restitution. See Ch. 232, sec. 1, § 16–18.5–103, 2000 Colo. Sess. Laws 1032 (relocated in 2002 (Ch. 318, sec. 2, § 18–1.3–603, 2002 Colo. Sess. Laws 1421)).

¶ 13 This version of section 18–1.3–603, which was in effect at the time of defendant's crime, provided, in pertinent part:

(1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution. Each such order shall include one or more of the following:

(a) An order of a specific amount of restitution be paid by the defendant;

(b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety 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;

(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or

(d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.

(2) The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution.

(3) Any order for restitution may be:

(a) Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court....

Ch. 318, sec. 2, § 18–1.3–603, 2002 Colo. Sess. Laws 1421 (2006 statute).¹

¶ 14 Defendant would have us interpret these provisions to require all restitution requests be made within ninety days of an order of conviction (here, December 2009) unless there is

• “[G]ood cause ... for extending the ... period,” (2006 statute, § 18–1.3–603(1)(b));

• “An order, in addition to or in place of a...