People v. Weeks

• Decision Date: 08 November 2021
• Docket Number: Supreme Court Case No. 20SC340
• Citation: 498 P.3d 142
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Benjamin WEEKS, Respondent
• Court: Colorado Supreme Court

498 P.3d 142

The PEOPLE of the State of Colorado, Petitioner

v. Benjamin WEEKS, Respondent

Supreme Court Case No. 20SC340

Supreme Court of Colorado.

November 8, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado

Attorney for Respondent: Robert P. Borquez, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 Old habits die hard. That certainly seems to be the case when it comes to the manner in which restitution motions are generally submitted and resolved. Over time, the practice that has evolved goes something like this:

On the day of the sentencing hearing, the prosecution informs the court that it has not yet filed a motion for restitution and that it would like to reserve the issue for ninety-one days. Without objection from the defense, the court grants the request and reserves restitution for ninety-one days. The court then provides that, if the prosecution files a timely motion for restitution, the defense may file an objection and ask for an evidentiary hearing. After the sentencing hearing, the mittimus simply reflects that restitution has been reserved for ninety-one days.

¶2 This longstanding practice was followed here. The problem is that it doesn't comport with the current restitution statute, section 18-1.3-603, C.R.S. (2021). In fairness to our colleagues litigating and presiding over criminal cases, section 18-1.3-603 is not a paragon of clarity. It comes as no surprise, then, that divisions of the court of appeals have interpreted the statute differently.¹ Today we strive to provide guidance in this area of the law.

¶3 Save for a very narrow exception not applicable here, section 18-1.3-603(1) requires that all judgments of conviction contain an order regarding restitution.² Section 18-1.3-603(1) sets forth four options — and only four options — related to the types of restitution orders trial courts may enter: (a) an order requiring a specific amount of restitution; (b) an order requiring restitution but indicating that the specific amount will be determined within either ninety-one days of the judgment of conviction or, upon a showing of good cause, an extension of that time period; (c) an order, in addition to or in lieu of a specific amount of restitution, requiring payment of the actual costs of a victim's specific future treatment; and (d) an order finding that there is no restitution because no victim suffered a pecuniary loss. Every judgment of conviction must include one or more of these four types of restitution orders. § 18-1.3-603(1).

¶4 Under subsection (1)(b), the court enters a preliminary order requiring the defendant to pay restitution but notes that the specific amount will be determined later. § 18-1.3-603(1)(b). Subsection (1)(b) contains a deadline: The amount of restitution must be determined within ninety-one days of the judgment of conviction unless good cause exists for extending that time period.

¶5 We now conclude that the deadline in subsection (1)(b) refers to the court's determination of the restitution amount the defendant must pay, not to the prosecution's determination of the proposed amount of restitution. We further conclude that this deadline may be extended only if, before the deadline expires, the court expressly finds good cause for doing so.

¶6 The prosecution is subject to a statutory deadline as well. Under subsection (2), it must file the "information" in support of a motion for restitution —i.e., "the amount" of the proposed restitution—before the judgment of conviction or, if that information isn't yet available, no later than ninety-one days after the judgment of conviction. § 18-1.3-603(2).³ We now conclude that the court may extend this deadline only if, before the deadline expires, it expressly finds that there are extenuating circumstances affecting the prosecution's ability to determine the proposed amount of restitution.

¶7 It follows that neither a request for more time to determine the proposed amount of restitution nor an order granting such a request justifies extending the prosecution's deadline in subsection (2) or the court's deadline in subsection (1)(b). Rather, each deadline requires an express finding —one relating to extenuating circumstances affecting the prosecution's ability to determine the proposed amount of restitution and the other relating to good cause for extending the court's deadline to determine the amount of restitution the defendant must pay.⁴ It also follows that neither a belated request for more time to determine the proposed amount of restitution nor an order granting such a request may act as a defibrillator

to resuscitate an expired deadline.

¶8 Ideally, a request for an extension of the prosecution's deadline should be made and resolved before or during the sentencing hearing.⁵ And, if the court needs to extend its own deadline (including as a result of extending the prosecution's deadline or because it anticipates briefing, a hearing, or both to resolve a motion for restitution), it should ideally make a finding of good cause no later than the sentencing hearing. Following the sentencing hearing, the prosecution may still request and receive an extension of its deadline and the court may still extend its own deadline, but the court must be mindful that it has to enter one or more of the four types of restitution orders listed in subsection (1) at the sentencing hearing. Nowhere does section 18-1.3-603 permit the prosecution to request or the court to order that the issue of restitution (not just the amount of restitution) remain open for any period of time after the judgment of conviction enters. Thus, at a sentencing hearing, the trial court judge should be prepared to put in place a plan that enforces the prosecution's deadline in subsection (2) and adheres to the court's deadline in subsection (1)(b).

¶9 Lastly, when the court enters a preliminary restitution order pursuant to subsection (1)(b) at a sentencing hearing, the mittimus should reflect that restitution has been ordered but that the amount will be determined later (either within ninety-one days or within whatever expanded timeframe the court has established based on a finding of good cause). Then, when the court subsequently determines the amount of restitution (assuming it does so in a timely fashion), the mittimus should be updated accordingly. Of course, if the prosecution fails to timely submit the proposed amount of restitution or if the court ultimately orders no restitution (including after considering the merits of the restitution motion), the mittimus should be updated to reflect that no restitution is required.

¶10 The court of appeals in this case read section 18-1.3-603 in general harmony with our interpretation. Accordingly, we affirm its judgment and remand for further proceedings consistent with this opinion. On remand, the division should return the case to the trial court with instructions to amend the mittimus to reflect that no restitution is required.

I. Facts and Procedural History

¶11 Benjamin Weeks robbed a convenience store with a deadly weapon. A jury of his peers found him guilty of two counts of aggravated robbery and two counts of felony menacing. At his sentencing hearing, which was held approximately a month later, the prosecutor asked that the issue of restitution "remain open." Notably, the prosecutor informed the court that he'd determined he would be seeking restitution but hadn't filed a motion yet. He promised to follow up with a written motion within ninety-one days.⁶ Defense counsel indicated that he would address restitution "when there's a motion filed." The court granted the prosecutor's request, reserved the issue of restitution for ninety-one days, and set a briefing schedule:

I will leave restitution open for ninety-one days. If a motion is filed, any response should be filed within twenty-eight 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.

¶12 Nine days later, the prosecutor filed a motion requesting that the court enter an "interim amount" of restitution of $524.19 —the amount stolen during the robbery ($506.54) plus prejudgment interest ($17.65). The prosecutor informed the court that he was still investigating whether there were grounds to seek additional restitution.

¶13 Twenty-three days later, Weeks filed a response in which he argued that the convenience store's losses were limited to the $506.54 taken during the robbery and that restitution should not remain an open issue indefinitely. Neither party requested a hearing, and the court did not immediately act on the matter.

¶14 A little over eight months after the sentencing hearing, Weeks filed a motion seeking a hearing on the issue of restitution. The court granted the request and held a hearing two months later. At that hearing, the prosecutor informed the court that he was seeking restitution in the amount of $524.19. Weeks countered that the court no longer had authority to require him to pay restitution because the ninety-one-day deadline in subsection (1)(b) had expired. The court took the matter under advisement.

¶15 Nearly a year after the sentencing hearing, the court issued an order granting the prosecutor's motion for $524.19 in restitution. In a separate order, the court rejected Weeks's contention that it had lost authority to require him to pay restitution. It's this order that serves as the centerpiece of the proceedings before us.

¶16 The trial court sensed "some tension" between the deadline in subsection (2), which it understood as requiring the prosecution to submit a restitution motion no later than ninety-one days after the judgment of conviction, and the deadline in subsection (1)(b), which it understood as requiring a resolution of any restitution motion within ninety-one days of the judgment of conviction. Having...