Peo v. Johnson

22CA1130 Peo v Johnson 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1130

El Paso County District Court No. 21CR6963

Honorable Frances R. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jaimer Jonique Johnson,

Defendant-Appellant.

ORDER AFFIRMED

Division A

Opinion by JUSTICE MARTINEZ*

Román, C.J., and Richman*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 15, 2024

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Defendant, Jaimer Jonique Johnson, appeals the district

court’s restitution order. We affirm.

I. Background

¶ 2 On December 7, 2020, Johnson stole a television, EBT card,

DVDs, and approximately $80 in cash, and the next day, pawned

the television and the DVDs at a local pawn shop. The prosecution

charged him with one count each of pawnbroker act violation and

theft.

¶ 3 On March 31, 2022, as part of a plea agreement, Johnson

pleaded guilty to pawnbroker act violation and agreed to pay all

court-ordered restitution, including restitution for dismissed

counts. As relevant here, the plea agreement provided that the

prosecution would “submit the proposed amount [of restitution]

within 42 days of sentencing.”

¶ 4 At the combined plea and sentencing hearing, the district

court accepted the plea agreement, dismissed the theft count, and

sentenced Johnson to twelve months of unsupervised probation.

¶ 5 Addressing restitution, the prosecutor requested that the

district court “leave restitution open for 42 days.” She added, “[t]his

is a fairly new case, so I think we should have a number very soon

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if there is any restitution that is being requested.” Johnson’s

counsel disagreed that this was a “new” case and objected to leaving

restitution open for forty-two days, citing People v. Weeks, 2021 CO

75. Based on the prosecutor’s “motion to reserve restitution today

for the 42 days,” the district court found “good cause to not set the

amount of restitution today.” The court instructed the parties that

it would “set [restitution] no later than 42 days, [by] enter[ing] the

order for restitution or [entertain a] request for an extension of

time” so long as “it’s in accordance with applicable law.”

¶ 6 Defense counsel then asked the prosecutor “to give individual

circumstances for why restitution in this case could not have been

provided,” pointing out, “[i]t appears they have documentation” and

“[t]his case has been pending for almost a year and a half.” The

prosecutor refused, stating, “I don’t think that I need to be standing

here telling the defense everything that I have done in a case or

everything that we have related to restitution. We are just waiting

for the final amount.” The district court responded, “Okay. Your

record is made” and concluded the hearing.

¶ 7 Thirty-three days later, the prosecution filed a restitution

request for $71.40 to the pawn shop and $81.60 to the victim of the

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theft. Defense counsel filed a written objection the following day

arguing that, under Weeks and section 18-1.3-603(2), C.R.S. 2023,

the district court lost authority to enter the restitution order.

Defense counsel argued the court “no longer ha[d] the authority” to

enter the restitution order because the prosecution had not filed the

“‘information’ in support of a motion for restitution before the

judgment of conviction” and the court did not find “extenuating

circumstances affecting the prosecution’s ability to determine the

proposed amount of restitution.”

¶ 8 Fifty-four days after sentencing, the district court granted the

prosecution’s request for restitution in a written order. The court

noted that the prosecution’s request for restitution was filed

“thirty-three (33) days after the date the plea was entered” and

“[t]his procedure is well within the timelines set forth in the

statute.” Further, the court rejected defense counsel’s assertion

that it needed to find “extenuating circumstances” to extend the

prosecution’s deadline to submit the information supporting its

request for restitution.

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II. Discussion

¶ 9 Johnson asserts that the prosecution failed to satisfy its

statutory obligation under section 18-1.3-603(2)(a) by establishing

the unavailability of restitution information so that the district

court could defer the final determination of restitution. As a result,

Johnson asserts, the district court erred by granting the prosecutor

an additional forty-two days to submit restitution information. We

are not persuaded.

A. Standard of Review

¶ 10 Questions of statutory interpretation and whether a court has

authority to order a defendant to pay restitution are legal questions

that we review de novo. Weeks, ¶ 24; People v. Roddy, 2021 CO 74,

¶ 23. Additionally, “district courts have the inherent authority to

manage their dockets through scheduling orders.” People v. Owens,

2014 CO 58, ¶ 16.

B. Analysis

¶ 11 Every order of conviction “shall include consideration of

restitution.” § 18-1.3-603(1). To determine restitution, the district

court “shall base its order for restitution upon information

presented to the court by the prosecuting attorney” and the

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prosecuting attorney “shall present this information to the court

prior to the order of conviction or within ninety-one days, if it is not

available prior to the order of conviction.” § 18-1.3-603(2)(a).

¶ 12 Section 18-1.3-603(2)(a) “requires the prosecution to exercise

reasonable diligence to determine the amount of restitution and

present it to the court at or before the sentencing hearing.” People

v. Brassill, 2024 COA 19, ¶ 30; see People v. Martinez Rubier, 2024

COA 67, ¶ 38; see also § 18-1.3-603(2)(a). If the prosecution does

not meet this requirement, however, the district court does not

automatically lose authority to enter restitution. See Brassill,

¶¶ 56-61; see also Martinez Rubier, ¶¶ 46-47.

¶ 13 Instead, it may not be an abuse of the district court’s

discretion to establish a procedure to resolve restitution and accept

a late restitution motion — so long as restitution is resolved within

the ninety-one-day deadline. See Brassill, ¶¶ 56-61 (describing

denial of a restitution request as a “severe sanction” and permitting

the district court to accept a late restitution motion and order

restitution ninety days after the sentencing hearing).

¶ 14 The record is unclear as to whether the information

supporting the restitution request was available to the prosecutor at

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the time of the sentencing hearing or whether the prosecutor had

made any effort to obtain these figures. At the hearing, the

prosecutor refused to provide any specifics, stating only, “we should

have a number very soon if there is any restitution that is being

requested” and “[w]e are just waiting on the final amount.”

¶ 15 We conclude that the prosecutor failed to comply with her

obligations under section 18-1.3-603(2)(a) by not showing that she

exercised the required diligence to have restitution information

ready ahead of the sentencing hearing, see Brassill, ¶ 30. We

recognize that the district court did not acknowledge the

prosecutor’s failure. However, as in Brassill, the district court

resolved the issue of restitution by “invok[ing] the statutory option

of declaring restitution open while setting forth a procedure to

ensure that it could resolve restitution within the ninety-one-day

period.” Id. at ¶ 60. In fact, the procedure the district court

adopted was consistent with the plea agreement. Under these

circumstances, we cannot say the district court abused its

discretion, see Brassill, ¶ 60. Because the issue of restitution was

resolved within section 18-1.3-603(1)(b)’s deadline, the court had

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not lost its authority to address restitution. See id. Therefore, we

decline to vacate Johnson’s restitution order.

III. Disposition

¶ 16 The restitution order is affirmed.

CHIEF JUDGE ROMÁN and JUDGE RICHMAN concur.