People v. Roddy
| Decision Date | 23 April 2020 |
| Docket Number | Court of Appeals No. 17CA2267 |
| Court | Colorado Court of Appeals |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jonathan D. RODDY, Defendant-Appellant. |
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan, & Foreman P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE TERRY
¶ 1 Defendant, Jonathan D. Roddy, appeals the restitution order entered against him by the district court. We reverse the restitution order and remand the case to the district court for further proceedings.
¶ 2 Defendant's guilty plea was a result of a complicated series of events involving the victim, who was his ex-wife. The following allegations were made by the prosecution.
¶ 3 Defendant and the victim share a child and were divorced in 2003. Since 2009, defendant and the victim had been engaged in litigation regarding parenting time, decision-making authority, and child support.
¶ 4 In a motion to temporarily restrict parenting time, filed in 2014, defendant included photographs of the inside and outside of the victim's home. Suspicious that the photos had been shot from inside her home, the victim hired a forensic photographer to investigate the location from which the photographs had been taken. The investigator concluded that the photos had been shot from inside the house. It was then apparent that defendant had entered the house without the victim's permission, in violation of a court order, while she was out of town in November 2014.
¶ 5 The victim also discovered that defendant and his wife were using the victim's son's iPad to access the victim's personal emails and digital files that were stored in Apple's "iCloud" storage system. Defendant's wife had downloaded many of the victim's documents from the son's computer, including her email communications with her attorney regarding the domestic relations litigation. The emails also included the victim's communications with her financial advisors, accountants, family, and friends. Defendant and his wife intended to use the data they obtained against the victim in the domestic relations case.
¶ 6 The victim became involved in protracted litigation with defendant and his wife to retrieve her data. She tried to obtain permanent protection orders against defendant and his wife, and the parties entered into a settlement agreement in which defendant and his wife represented and warranted that they had returned all of the data, that they did not have any copies of the data, and that they would no longer use the data. Shortly thereafter, the victim alleged that defendant and his wife were continuing to use the victim's data in violation of the agreement. The parties then became involved in an arbitration proceeding for breach of the settlement agreement, and a contempt proceeding related to the domestic relations case.
¶ 7 Defendant and his wife were each charged in separate cases with one count of stalking and one count of computer crime. After defendant pleaded guilty in this case to an added count of first degree criminal trespass for the November 2014 incident, he was given a two-year deferred judgment. About fifteen months after his deferred judgment was entered, the trial court ordered him to pay restitution of $688,535 to reimburse the victim's attorney fees and investigation costs incurred in connection with defendant's conduct in the civil and criminal proceedings. No restitution was sought or ordered in defendant's wife's case following her guilty plea to a computer crime. Defendant now appeals the court's restitution order.
¶ 8 As an initial matter, the People contend that defendant waived his right to appeal the restitution order because, as part of the deferred judgment, he successfully withdrew his guilty plea and obtained dismissal of the criminal charge against him, and payment of restitution was a condition of that deferred judgment. We disagree with the People's contention.
¶ 9 Section 18-1.3-603(4)(a)(I), C.R.S. 2019, states that any order of restitution is a "final civil judgment in favor of the state and any victim[,]" and that Our supreme court has held that this provision means that dismissal of a charge upon completion of a deferred sentence does not deprive the trial court of authority to enforce a restitution order. Pineda-Liberato v. People , 2017 CO 95, ¶¶ 32-33, 403 P.3d 160. Given that restitution can be enforced after completion of a deferred sentence, and restitution is a separately appealable order, see Sanoff v. People , 187 P.3d 576, 578 (Colo. 2008), it follows that a defendant does not waive his right to appeal a restitution order by withdrawing his guilty plea.
¶ 10 Furthermore, the terms of the plea agreement did not indicate that defendant waived his right to appeal all non-jurisdictional issues related to the restitution order. The plea agreement, according to the People, simply stated that defendant had sufficient income or assets to pay all restitution ordered by the court, and that failure to comply would be a violation of the plea agreement. Those terms do not address, much less waive, defendant's appellate rights to the restitution order.
¶ 11 We are also not persuaded by the People's contention that our supreme court's opinions in Neuhaus v. People , 2012 CO 65, 289 P.3d 19, and Kazadi v. People , 2012 CO 73, 291 P.3d 16, warrant a different result. Both cases are distinguishable.
¶ 12 Relying on Neuhaus , the People argue that "a defendant's motion to withdraw his guilty plea and dismiss the case pursuant to [section] 18-1.3-102 [effects] a waiver of all non-jurisdictional issues arising in the context of a deferred judgment and sentence," and that defendant cannot take the benefits of the deferred judgment and sentence, but still obtain appellate review of a restitution order. We do not read Neuhaus as supporting such an argument. That case dealt with conditional guilty pleas. The court there said that a guilty plea " ‘represents a break in the chain of events which has preceded it in the criminal process’ and waives all non-jurisdictional errors in the defendant's conviction, including the seizure of evidence." Neuhaus , ¶ 8 (quoting Tollett v. Henderson , 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ). Because the setting of restitution did not precede the guilty plea, Neuhaus does not support the People's argument.
¶ 13 The People next argue that, under Kazadi , defendant was obligated to seek a withdrawal of his plea agreement under Crim. P. 32(d) before completing his deferred judgment and sentence if he wanted to preserve his appellate challenge to the restitution order. We disagree. Kazadi , ¶ 20, noted that the parties had agreed that " Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty pleas involving deferred judgments." Though a defendant may file a motion to withdraw a guilty plea under Crim. P. 32(d), nothing in Kazadi requires a defendant to follow that procedure to enable him to contest a restitution order.
¶ 14 We therefore conclude that defendant's appeal of his restitution order is properly before us.
¶ 15 Defendant contends that the trial court did not have authority to enter the restitution order against him because it was entered more than ninety-one days after entry of his deferred sentence. We disagree.
¶ 16 Defendant entered his guilty plea on July 20, 2016, and the court reserved restitution for ninety-one days. The People filed a motion for restitution within the ninety-one-day period, requesting that the court order restitution of $390,613.90, which represented the legal fees and disbursements that the victim made to two different law firms.
¶ 17 Defendant filed an objection to the restitution amount and requested that the court order the People to set forth a good faith basis for the requested restitution. The People filed their response in which they requested time to confer with the victim's civil attorney and with defendant's counsel, and the court granted this request.
¶ 18 After the parties met, the People filed a motion in February 2017 informing the court that the victim's civil attorney was concerned about releasing unredacted invoices because of the attorney-client privilege, and that the civil attorney would like to have a restitution hearing after resolution of the civil arbitration hearing, which was scheduled for June 2017. Defendant filed a motion to dismiss the People's restitution request based on the delay, and the court ordered a restitution hearing to resolve these issues.
¶ 19 In July 2017, before the restitution hearing, the People moved to amend the restitution request to $827,236.22, explaining that the increase resulted from the victim's ongoing civil litigation with defendant. The People later filed affidavits supporting a reduced restitution amount of $688,535.12. The reduced amount accounted for attorney fees and costs that the victim had received in the contempt litigation. The People provided defendant's counsel with redacted billing records to preserve the victim's attorney-client privilege.
¶ 20 After a two-day hearing, the court ordered defendant to pay restitution of $688,535.12.
¶ 21 Every order of conviction for a felony shall include consideration of restitution. § 18-1.3-603(1). Each such order shall include one or more of the following:
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People v. Roddy
...the district court's decision to enter the order after the ninety-one-day limit had expired. People v. Roddy, 2020 COA 72, ¶ 29, 490 P.3d 755, 760. But the division also limited restitution to only "the losses caused by the conduct to which [Roddy] pleaded guilty." Id. at ¶ 37, 490 P.3d at ......
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People v. Roddy
...the district court's decision to enter the order after the ninety-one-day limit had expired. People v. Roddy, 2020 COA 72, ¶ 29, 490 P.3d 755, 760. But the also limited restitution to only "the losses caused by the conduct to which [Roddy] pleaded guilty." Id. at ¶ 37, 490 P.3d at 761-62. ¶......