Colorado's second-highest court on Wednesday once again reminded prosecutors and trial judges to pay attention to the deadlines for crime victim restitution in state law, the latest in a series of decisions cracking down on deviations from the restitution process.
In Colorado, when a convicted defendant is required to pay financial restitution, prosecutors typically must provide the requested amount by the time of sentencing or within 91 days of sentencing. Judges must also impose the restitution amount within 91 days of sentencing. If judges need to extend either deadline, they must find good cause exists.
In a major decision, People v. Weeks, the state Supreme Court ruled in November 2021 that judges' historical process of awarding compensation to crime victims did not comply with Colorado law. The justices noted a lackadaisical approach had taken hold in the trial courts that neglected the clear deadlines and procedural requirements. Consequently, if trial judges fail to follow the law, they lose authority to issue a restitution order.
Although the Court of Appeals has issued multiple rulings focusing on what it looks like for a judge to find good cause to extend a deadline, the court has recently begun interpreting the other component: prosecutors' obligation to provide restitution details by sentencing — or, if not available by then, within 91 days.
On July 3, a three-judge appellate panel determined a Phillips County judge was wrong to give the prosecution extra time after sentencing to file a restitution request, even though the prosecutor had the final dollar figure in hand well in advance.
"Prosecutors, defense counsel, and judges alike must remain mindful of the General Assembly’s declaration that '(a)n effective criminal justice system requires timely restitution to victims of crime'," wrote Judge Lino S. Lipinsky de Orlov.
In the underlying case, Eredelio Martinez Rubier pleaded guilty to criminal mischief and District Court Judge Justin B. Haenlein sentenced him to nine months in jail on Sept. 20, 2022. Unprompted, Haenlein gave the prosecution 28 days to file its request for crime victim restitution.
On Sept. 30, elected District Attorney Travis Sides filed a request for $1,179 related to a motor vehicle theft. He attached an email from Progressive insurance company citing that figure, but dated July 7 — more than two months before the sentencing hearing.
Martinez Rubier did not appear at a restitution hearing in December, so Haenlein rescheduled it for January 2023. Martinez Rubier did not appear at the rescheduled hearing, prompting Haenlein to order restitution in his absence.
Martinez Rubier appealed, arguing the prosecution did not comply with state law by withholding the restitution information it already had at the time of sentencing. While his appeal was pending, the Court of Appeals issued an opinion in People v. Brassill warning prosecutors of their obligation to calculate restitution by sentencing, and only seeking more time if they need it.
"The current flood of litigation over these issues will largely be avoided," wrote Judge Timothy J. Schutz, "if the prosecution fulfills its obligation to use diligent efforts to gather and present the information necessary to resolve restitution at the sentencing hearing, coupled with the court’s establishment of case management practices that ensure such obligations are fulfilled."
Senior Assistant Attorney General Brock J. Swanson, who represented the government in both cases, argued if the prosecution does not show up at sentencing with a dollar amount, it is fair to infer the district attorney's office does not yet have it.
"I also think the prosecution will reasonably, in the ordinary course, follow its duties," he said at oral arguments.
"It hasn’t historically. That’s the whole point of the Weeks decision," interjected Schutz, who also sat on the panel hearing Martinez Rubier's appeal. "'It,' being the prosecution, hasn’t followed it historically."
The Court of Appeals ultimately concluded Haenlein was wrong to give the district attorney extra time beyond sentencing to file restitution, without any request for an extension or evidence the prosecution did not already have its dollar figure. The panel also rejected Swanson's argument that Martinez Rubier's plea agreement separately authorized 91 days for the prosecution to submit its amount.
"The plea agreement does not say what (the government claims) it says," Lipinsky noted.
However, because Haenlein issued his order within the 91-day deadline, as the law required, the court agreed Haenlein still had the power to impose restitution regardless of whether the prosecution withheld information at sentencing.
At the same time, the panel directed that a new restitution hearing take place. Defendants have the right to be present at their restitution hearing and it was unclear whether Martinez Rubier's failure to appear stemmed from his own knowing decision to not be present.
The Supreme Court has recently agreed to hear multiple appeals that could potentially water down its 3-year-old decision in Weeks.
The case is People v. Martinez Rubier.
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