People v. Weeks

• Decision Date: 19 March 2020
• Docket Number: Court of Appeals No. 19CA0255
• Citation: 490 P.3d 672
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Benjamin WEEKS, Defendant-Appellant.

490 P.3d 672

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

v.Benjamin WEEKS, Defendant-Appellant.

Court of Appeals No. 19CA0255

Colorado Court of Appeals, Division VII.

Announced March 19, 2020

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 Under the Colorado restitution statute, if a district court decides at sentencing to defer its decision regarding the appropriate amount of restitution, "the specific amount of restitution shall be determined within the ninety-one 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." § 18-1.3-603(1)(b), C.R.S. 2019.

¶ 2 Defendant, Benjamin Weeks, appeals the trial court's restitution order, contending that the court erred by ordering restitution more than eleven months after sentencing without good cause for delaying its ruling. We agree. We therefore reverse the order and remand for further proceedings.

I. Background

¶ 3 A jury found Weeks guilty of two counts of aggravated robbery and two counts of menacing based on his robbery of a gas station/convenience store.

¶ 4 At the sentencing hearing on February 13, 2018, the prosecutor requested that restitution remain open. The trial court granted the request:

I will leave restitution open for 91 days. If a motion is filed, any response should be filed within 28 days and any reply within seven. If anyone wants a hearing, the request needs to be made in the pleadings. If no request is made, I'll rule on the pleadings.

¶ 5 Nine days later, the prosecution filed a motion requesting $524.19 in restitution — $506.54 for the money Weeks stole during the robbery and $17.65 in prejudgment interest. The prosecution asked the court to order the $524.19 as an "interim amount" because it was still investigating additional possible bases for restitution. The prosecution did not request a restitution hearing.

¶ 6 Twenty-three days later, Weeks filed an objection to the restitution motion. He argued, among other things, that the victim's sole loss was the $506.54 in stolen money and that the court should not hold restitution open indefinitely based on the prosecution's claim that it may learn of additional losses in the future. Weeks also did not request a restitution hearing.

¶ 7 Nothing happened on the restitution issue for the next seven-and-a-half months. In late October 2018, Weeks filed a motion for a status conference based on the pending restitution motion and a pending motion for return of property.

¶ 8 At a status conference in November 2018, the court set a hearing on the pending motions for December 2018. At the December 2018 hearing, the prosecution clarified that it was seeking restitution only for the originally requested amount of $524.19. In response, Weeks argued, among other things, that the trial court no longer had authority to order restitution because the ninety-one-day deadline in section 18-1.3-603(1)(b) had expired. The court took the matter under advisement.

¶ 9 Following the hearing, Weeks filed a brief presenting further argument on the ninety-one-day deadline issue.

¶ 10 In January 2019, more than eleven months after sentencing, the court issued an order granting the $524.19 in restitution. In a separate written order, the court explained why it was rejecting Weeks's argument that it no longer had the authority to order restitution based on the ninety-one-day deadline in section 18-1.3-603(1)(b) :

Applying the time frame in the statute requires the consideration of good cause. There is some tension in the statute about the 91-day time frame. Subsection (1)(b) of § 18-1.3-603 provides restitution "shall be determined" within 91 days. However, subsection 2 authorizes the Court to allow the People 91 days to submit information in support of a specific restitution amount. For the Court to lose the ability to fix an amount on the same day the People could file restitution information would deprive a defendant of any opportunity to respond to the information, deprive both parties of any opportunity to request a hearing and deprive the Court of any ability to consider the information beyond the moments between the filing of the information and the end of the day. To address these potential concerns, the Court in this case entered its usual order when allowing the People time to file restitution information. The Court imposed on the People the 91-day deadline imposed by the statute followed by time for a response from the Defendant and a reply by the People with the opportunity to request a hearing. Although the briefing was sooner completed in this case, the Court, at the time of sentencing, authorized more than 91 days to complete the determination of restitution. No objections were made to this procedure.

With respect to good cause for a longer time frame, Defendant is correct the Court has not uttered the term "good cause" to extend the time for restitution beyond 91 days. However, the Court concludes the Court's briefing and hearing procedure created at the time of sentencing necessarily and implicitly established good cause for restitution to be determined beyond the 91-day period.

II. Standard of Review

¶ 11 The proper interpretation of the restitution statute is a question of law that we review de novo. People v. Perez , 2019 COA 62, ¶ 8, 490 P.3d 447, 450. However, the issue of whether good cause exists to extend the ninety-one-day deadline to determine restitution under section 18-1.3-603(1)(b) is reviewed for an abuse of discretion. See People v. McCann , 122 P.3d 1085, 1088 (Colo. App. 2005) ; People v. Harman , 97 P.3d 290, 294 (Colo. App. 2004). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when it misconstrues or misapplies the law. People in Interest of D.L.C. , 2019 COA 135, ¶ 6, 461 P.3d 588, 589.

III. Analysis

A. The Time Limit for "Determining" Restitution Under Section 18-1.3-603(1)(b)

¶ 12 The People appear to suggest that the ninety-one-day deadline for "determining" restitution under section 18-1.3-603(1)(b) may refer not to a district court's obligation to "determine" the appropriate amount of restitution to order , but instead to the prosecution's obligation to "determine" the appropriate amount of restitution to request.

¶ 13 We disagree. Colorado case law indicates that the "determin[ation]" of restitution under section 18-1.3-603(1)(b) refers to the district court's obligation to order a specific amount of restitution within ninety-one days, unless good cause exists to extend that deadline. See People v. Belibi , 2018 CO 24, ¶ 7, 415 P.3d 301, 302 (explaining that section 18-1.3-603(1)(b) requires that "the specific amount of restitution be set within ninety-one days") (emphasis added); Meza v. People , 2018 CO 23, ¶ 14, 415 P.3d 303, 308 (holding that section 18-1.3-603(1)(b) allows a district court to "reserv[e] until a later date, within ninety-one days, findings with regard to other victims or losses of which the prosecution is not yet aware") (emphasis added); Perez , ¶¶ 14-15, 461 P.3d at 451 ("If the court reserves the determination of restitution, as it is authorized to do, restitution is to be fixed within ninety-one days after the order of conviction, unless good cause is shown for extending that time.... Because restitution was ultimately awarded more than ninety-one days after the order of conviction, a showing of good cause was required.") (emphasis added). Further, in Sanoff v. People , 187 P.3d 576 (Colo. 2008), the supreme court equated a trial court's jurisdiction "to set an amount of restitution" with the court's jurisdiction "to determine the amount of restitution." Id . at 579 (emphasis added). It is no coincidence that, in discussing the trial court's jurisdiction, the supreme court paraphrased section 18-1.3-603(1)(b) ’s reference to "the restitution amount shall be determined."

¶ 14 Adopting the People's interpretation would render section 18-1.3-603(1)(b) superfluous of the language in section 18-1.3-603(2) giving the prosecution ninety-one days to present information in support of its restitution request. (We discuss that provision further below.) Instead, those two statutory provisions refer to distinct obligations. See Harman , 97 P.3d at 294 ("[T]he restitution act contains standards both for the late provision of the restitution amount to the court by the prosecutor (‘extenuating circumstances’), § 18-1.3-603(2), and for the late determination of the restitution amount (‘good cause’), § 18-1.3-603(1)(b).... [W]e do not determine whether ‘extenuating circumstances’ are comparable to ‘good cause.’ However, a reasonable reading of the statute is that extenuating circumstances affecting the prosecutor's ability to calculate the amount of restitution may be a factor in finding good cause for the late determination."); see also Perez , ¶ 16, 461 P.3d at 451 (same).

¶ 15 Thus, reading "determined" in section 18-1.3-603(1)(b) to mean "determined by the prosecuting attorney" would subject prosecutors to conflicting standards for obtaining extensions of time to submit the information supporting the requested amount of restitution. Under section 18-1.3-603(1)(b), the prosecuting attorney would need to show "good cause" to obtain an extension of the "time period by which the restitution amount shall be determined," while under section 18-1.3-603(2), the same prosecutor would need to demonstrate "extenuating circumstances affecting the prosecuting attorney's ability to determine restitution." Although section 18-1.3-603 is unclear, the general assembly surely did not intend to impose two different tests on prosecuting attorneys to obtain the same relief.

¶ 16 We respectfully disagree with the dissent that People v. Knoeppchen, ...