Peo v. Ramirez

23CA1325 Peo v Ramirez 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1325
Arapahoe County District Court No. 22CR567
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eder Ramirez,

Defendant-Appellant.

ORDER VACATED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Zack Tennant, Senior Deputy
State Public Defender, Centennial, Colorado, for Defendant-Appellant
¶1 Defendant, Eder Ramirez, appeals the district court’s July 13,

2023, restitution order. We vacate the order.

I. Background

¶2 On February 28, 2023, Ramirez pleaded guilty to menacing.

As part of the plea agreement, Ramirez admitted liability, stipulated

to causation, and agreed to pay restitution for all pecuniary losses

suffered by all victims for all charged counts. The plea agreement

provided that Ramirez stipulated to pay restitution in the

preliminary amount of $5,866. The plea agreement also provided

that “[p]ursuant to . . . [section]18-1.3-603(l)(b), [C.R.S. 2024,]

defendant waives objection to the final amount of restitution being

determined within 91 days following the order of conviction.”

¶3 On March 17, 2023, when the district court accepted the plea,

it said, “[t]he Court will order restitution in the amount of $5,866,

that is a preliminary amount. And that there’s no objection then to

a final amount of restitution being determined within 91 days from

today’s date. The People would have 45 days to file. Defense would

have 15 days for any objection.”

¶4 On May 13, 2023, Ramirez filed a pro se motion requesting

that the district court remove the $5,866 in restitution and other

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fees, arguing that the restitution and fees were not related to the

offense of menacing. The district court denied the motion, stating

that Ramirez entered into a plea agreement in which he agreed to

pay the amount of restitution ordered.

¶5 On May 26, 2023, the prosecutor filed an amended motion

seeking $6,766 in restitution and stated that he believed additional

restitution was forthcoming but did not have the specific

information regarding the amount but that the final amount shall

be determined within ninety-one days, citing section

18-1.3-603(1)(b). The prosecutor’s motion also requested an order

that Ramirez was obligated to pay restitution covering the actual

costs of specific future treatment of the victim, relying on section

18-1.3-603(1)(c). On June 7, 2023, Ramirez objected to the

additional amount and the costs of future treatment and requested

that the court order discovery regarding the source of the additional

$900. On June 13, 2023, the prosecution objected, and the court

ordered the parties to contact the clerk to set a status conference to

discuss restitution.

¶6 On July 10, 2023, at the status conference, with respect to the

additional $900 requested, the district court ordered the

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prosecution to provide the court with the dates that the treatment

took place so the court could determine if it constituted future

treatment. Ramirez objected pursuant to People v. Weeks, 2021 CO

75, contending that the ninety-one-day deadline had expired

without the court finding good cause to extend the deadline. The

court replied that if the dates were for future treatment, then it

would fall under a different subsection of the restitution statute

than Weeks addressed and would allow for entry of restitution

beyond ninety-one days. The prosecution then filed a list of dates,

which were all before March 2023.

¶7 On July 13, 2023 — 118 days after the district court accepted

the plea — the court granted the People’s amended motion for

restitution, ordering Ramirez to pay $6,766 and ruling that Ramirez

would be “obligated to pay restitution covering the actual costs of

specific future treatment of the victim(s) as described in the motion

for restitution, which are recoverable pursuant to . . .

[section] 18-1.3-603(1)(c).”

¶8 This appeal followed.

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II. Analysis

¶9 Ramirez does not contest the original stipulated amount of

restitution that the court ordered at the sentencing hearing.

Rather, he contends that, because more than ninety-one days had

passed since sentencing and the court had not made a timely good

cause finding to extend that deadline, the district court lacked

authority to enter the July 13, 2023, restitution order. We agree.

A. Standard of Review and Applicable Law

¶ 10 We review questions of statutory construction de novo.

Weeks, ¶ 24. We also interpret plea agreements de novo, looking to

the plain language and resolving any ambiguity in favor of the

defendant. See People v. Roddy, 2021 CO 74, ¶ 24. And we review

de novo whether a claim is waived. People v. Garcia, 2024 CO 41M,

¶ 29.

¶ 11 When sentencing a defendant following a conviction, the

district court must address restitution. § 18-1.3-603(1). One

permissible method of doing so is to order that the defendant is

obligated to pay restitution but defer determination of the final

amount of restitution. § 18-1.3-603(1)(b). Where, as here, the

court enters a subsection (1)(b) order preliminarily requiring a

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partial amount of restitution but deferring the final amount of

restitution, “the court must determine the final amount of

restitution within ninety-one days of the judgment of conviction or

within whatever expanded time period the court has established

upon a finding of good cause.” Weeks, ¶ 36. When the district

court takes this approach, the court must determine the final

amount of restitution within ninety-one days unless it finds good

cause to extend that deadline. § 18-1.3-603(1)(b). Generally,

absent a good cause finding, the court loses its authority to order

restitution if it does not do so by the deadline. Weeks, ¶¶ 7, 45.

B. Plea Agreement Language

¶ 12 The People do not dispute that the July 13, 2023, restitution

order was entered more than ninety-one days after the order of

conviction without the district court making an express and timely

finding of good cause for extending that deadline. But they contend

that, in the plea agreement, Ramirez waived any right to object to

the court’s tardiness. We disagree.

¶ 13 The plea agreement provided that “[p]ursuant to

. . .[section] 18-1.3-603(l)(b), defendant waives objection to the final

amount of restitution being determined within 91 days following the

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order of conviction.” (Emphasis added.) Had the prosecution

intended Ramirez to waive any objection to the amount of

restitution being determined beyond the ninety-one-day period, it

would not have used the word “within” but would have instead used

a word such as beyond or outside. Indeed, section 18-1.3-603(l)(b)

provides that “the specific amount of restitution shall be determined

within the ninety-one days immediately following the order of

conviction” — almost identical language to the plea agreement.

(Emphasis added.) And this subsection has been interpreted as

imposing a deadline on the court, specifically not permitting the

court to act outside the ninety-one days absent an express finding

of good cause. See Weeks, ¶ 4 (noting that subsection (1)(b)

contains the court’s deadline). We see no reason to interpret the

plea agreement language differently.

¶ 14 Nor are we persuaded by the People’s argument that the

second part of the sentence in the plea agreement would be

rendered superfluous if it did not constitute a waiver of the

deadline. The first part of the sentence provided that, pursuant to

section 18-1.3-603(l)(b), Ramirez stipulated to a preliminary

amount of restitution. And the second part of the sentence

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provided that he would not object to the final amount being

determined within ninety-one days. This aligns with the restitution

statute and how it has been interpreted. See Meza v. People, 2018

CO 23, ¶ 14 (holding that nothing in the restitution statute

precludes a court from “making findings at sentencing with regard

to particular victims or losses of which the prosecution is aware,

while reserving until a later date, within ninety-one days, findings

with regard to other victims or losses of which the prosecution is

not yet aware”); see also Weeks, ¶ 36 (“By way of example,

subsection (3)(a) may apply in a situation in which the court has

entered a subsection (1)(b) order preliminarily requiring a partial

amount of restitution but deferring the final amount of

restitution.”); Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008)

(concluding that the restitution statute contemplates the possibility

of a second proceeding within ninety-one days, or longer for good

cause, which would result in a second, final, appealable order).

¶ 15 The People also contend that interpreting the plea agreement

as waiving the deadline would harmonize it with the earlier

provision in the plea agreement that Ramirez agreed to pay

restitution for all pecuniary losses suffered by all victims for all

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charged counts. And that allowing Ramirez to “dodge his obligation

to pay restitution based on a technicality, like the final amount

being determined beyond 91 days of sentencing, undermines his

bargained-for exchange.” But our interpretation of the plea

agreement does not relieve Ramirez of his obligation to pay

restitution for the stipulated amount or any additional amount so

long as the prosecution and court comply with the restitution

statute. Nor does it undermine the bargained-for exchange. Rather

than being required to present a firm restitution amount at the time

of sentencing, the prosecution got more time to request additional

restitution, provided a final amount was entered with ninety-one

days.

¶ 16 Finally, the People argue that interpreting the plea agreement

as waiving the deadline does not yield an absurd or illegal result.

But the plain language of the agreement does not yield an absurd or

illegal result. We see nothing absurd in the parties’ agreement that

the prosecution would have ninety-one days — but no more — to

finalize its request for restitution. Indeed, this reading is consistent

with how the district court characterized the agreement when

accepting the plea.

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C. Ramirez’s Actions

¶ 17 The People also contend that even if the plea agreement did

not waive the ninety-one-day deadline, Ramirez’s actions impliedly

waived or invited any error in the court’s untimeliness in ordering

additional restitution. We disagree.

¶ 18 An “implied waiver occurs when a party’s conduct

demonstrates the intent to relinquish the right or when the party

acts inconsistently with the asserted right.” Garcia, ¶ 29. “In other

words, while counsel’s silence as to an issue typically indicates

neglect supporting forfeiture, in certain circumstances, counsel’s

silence looks more like an intentional choice than a negligent

oversight.” Id. at ¶ 45 (citation omitted). The supreme court has

been willing to infer the intent to waive “when the record

demonstrates that counsel was aware of the grounds for an

objection but failed to raise it.” Id. at ¶ 46. And in certain cases,

the supreme court’s willingness to find an implied waiver is

amplified if there is “a concern that a defendant could intentionally

forego objecting to an error ‘as a strategic parachute to preserve an

avenue of attack on appeal.’” Id. at ¶ 47 (quoting Stackhouse v.

People, 2015 CO 48, ¶ 17).

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¶ 19 The People contend that both circumstances are present here.

¶ 20 First, they contend that Ramirez requested discovery nine

days before the ninety-one-day deadline, did not request that the

court set a restitution hearing before the deadline, did not demand

that discovery be provided before the deadline, did not assert his

right to have the final amount ordered before the deadline, and

objected a month after the deadline expired.

¶ 21 The People ignore that the prosecution (1) waited seventy days

to file their amended motion for restitution seeking the additional

$900 — twenty-five days after the court’s deadline to file such

information — and (2) requested an additional order for restitution

for future treatment. Ramirez lodged his objection and request for

discovery just nine days later. Six days after that, the prosecution

objected to Ramirez’s request for discovery of records from the

crime victim compensation board, and that same day both parties

asked the clerk to set the matter for a status conference to discuss

restitution and if a restitution hearing would be necessary.

Significantly, at no point before the ninety-one-day deadline did the

prosecution request that the district court make a finding that

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Ramirez’s objection and request for discovery provided good cause

to go beyond that deadline.

¶ 22 Ramirez also objected pursuant to Weeks at the first court

proceeding after the deadline had expired without the court making

a good cause finding to extend it. Had Ramirez objected prior to the

expiration of the deadline it would have been premature. In other

words, it cannot be said that Ramirez was aware of the grounds for

an objection but failed to raise it.

¶ 23 This is therefore a markedly different situation than the ones

in the cases that the People rely on where the information giving

rise to a possible objection was known to the defendant at the time

and the defendant did not object. See Richardson v. People, 2020

CO 46, ¶ 26 (concluding that defendant waived his right to

challenge a juror where the defendant conceded that defense

counsel did not challenge the juror who he knew was the judge’s

wife during voir dire); Stackhouse, ¶ 2 (discerning a waiver of public

trial claim where defense counsel was aware of the courtroom’s

closure and the reasons for the closure but did not object at that

time or at any other point during the trial); People in Interest of A.G.,

262 P.3d 646, 652 (Colo. 2011) (concluding that mother was aware

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of the relationship from the beginning of the case and waited a year

and a half, until after an adverse ruling, to seek to disqualify the

judge); Garcia, ¶¶ 33-43 (concluding that seven different events and

circumstances led to the inference that the defendant’s attorneys

were aware that the judge was statutorily disqualified and failed to

move to disqualify her).

¶ 24 Next, the People contend that Ramirez’s failure to object was

strategic and not a mere oversight. Assuming, without deciding,

that this concern would apply in this context, we nevertheless

conclude that Ramirez’s silence before expiration of the deadline

was not strategic because, again, until the deadline expired there

was nothing for Ramirez to object to and the court could have made

a good cause finding to extend the deadline. Ramirez also had a

right to object to and request discovery on the additional $900 and

to object to an order for future treatment, neither of which were

stipulated to in the plea agreement. Nor is there any indication in

the record that Ramirez specifically requested a status conference

date (or restitution hearing date) beyond the ninety-one-day period.

Cf. People v. Babcock, 2023 COA 49, ¶13 (concluding that the

defendant waived his right to have to restitution determined within

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ninety-one-days when defense counsel requested a hearing outside

the ninety-one-day period) (cert. granted Apr. 8, 2024).

¶ 25 Finally, the People contend that even if Ramirez did not waive

the deadline, he invited any error by injecting a discovery dispute

right before the expiration of the ninety-one-day deadline, “which all

but guaranteed” that the final amount of restitution would be

determined beyond that deadline. Again, at the very least, the court

could have made a good cause finding (and the prosecution

certainly could have requested one) to extend the deadline given the

discovery dispute. Thus, there was no guarantee that the court

would lose authority to order additional restitution and as a result

we conclude that Ramirez did not inject any error into the case.

¶ 26 In sum, the district court’s order that Ramirez pay additional

restitution — including the subsection (1)(c) order to pay the actual

costs of specific future treatment — was entered beyond the ninety-

one-day deadline without an express finding of good cause to

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extend the deadline. Accordingly, the court lacked authority to

enter the additional order.1 See Weeks, ¶¶ 7, 45.

D. Stipulated Amount of Restitution

¶ 27 We emphasize that our decision does not disturb the district

court’s original restitution order. As noted, at sentencing, the court

ordered that Ramirez pay restitution in the amount of $5,866.

Ramirez agreed to pay that amount, the court had authority to

enter that order, and Ramirez does not challenge that order on

appeal.

III. Disposition

¶ 28 The July 13, 2023, restitution order is vacated.

JUDGE PAWAR and JUDGE SCHUTZ concur.

1 Because we reach this conclusion, we do not need to address

Ramirez’s argument that an order to pay the actual costs of a
specified future treatment pursuant to section 18-1.3-603(1)(c),
C.R.S. 2024, can only be entered on the initial sentencing date.

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