Peo v. Thieman

23CA1920 Peo v Thieman 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1920
Douglas County District Court No. 22CR524
Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Wilson Thieman,

Defendant-Appellant.

ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE MOULTRIE
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 2, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

John T. Carlson, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Timothy Wilson Thieman, appeals the district

court’s restitution order. We vacate the restitution order and

remand with directions.

I. Background

¶2 In May 2022, Thieman and a codefendant burglarized a

convenience store and stole numerous items including cash, lottery

tickets, alcoholic beverages, nicotine and tobacco products, and

other miscellaneous items. The manager of the convenience store

provided the police with a printed inventory list of the stolen lottery

tickets, a summary of the amount of stolen cash, and an estimate of

the cost of the other stolen items.

¶3 On October 27, 2022, Thieman’s defense counsel filed a plea

agreement signed by Thieman, his defense counsel, and the

prosecutor, in which Thieman agreed to plead guilty to burglary and

theft involving $20,000 or more but less than $100,000.

¶4 About two weeks before the plea agreement was filed, the

prosecution filed a “Motion for Joint and Several Restitution” (first

restitution motion) seeking restitution in the amount of $10,825.14

for losses related to the nicotine and tobacco products. Thieman

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filed an objection to the first restitution motion and requested a

hearing.

¶5 As relevant here, the plea agreement contained the following

terms:

Defendant is obligated to pay restitution as
defined in C.R.S. [section] 18-1.3-602. The
defendant admits to liability, stipulates to
causation, and agrees to pay restitution for all
pecuniary losses suffered by all victims for all
charged counts, even those dismissed as part
of this plea agreement. Pursuant to C.R.S.
[section] 18-1.3-603(1)(b), defendant stipulates
to pay restitution in the preliminary amount of
$10,825.14 and the defendant waives objection
to the court entering a preliminary order that
the defendant is obligated to pay restitution
including the stipulated amount and waives
objection to the final amount of restitution
being determined within 91 days following the
order of conviction.

¶6 On October 28, 2022, the district court held an arraignment

hearing at which Thieman entered his guilty plea and the court

entered a judgment of conviction and sentence. However, during

the hearing, Thieman’s defense counsel clarified that, despite the

language in the plea agreement, Thieman was not stipulating to the

amount of restitution. Defense counsel indicated that the inclusion

of the stipulation language was an oversight, and he noted that he

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had already filed a written objection to the amount of restitution.

The prosecutor indicated she was aware that Thieman was

objecting to the amount of restitution and that she was “fine” with

setting a hearing on the amount of restitution. The district court

entered an order requiring Thieman to pay restitution but noted

that the amount was disputed and set the matter for a hearing.

¶7 On December 5, 2022, the district court held an evidentiary

hearing on the first restitution motion. During the prosecutor’s

direct examination of one of the convenience store employees,

Thieman’s defense counsel and his codefendant’s defense counsel

each realized that the prosecution was seeking restitution for losses

in addition to the nicotine and tobacco products that were identified

in the first restitution motion. Both defense counsel objected to the

court considering restitution for losses other than the items

identified in the first restitution motion because they didn’t have

notice of the additional request for restitution. Defense counsel

argued that the prosecutor had an obligation under section

18-1.3-603, C.R.S. 2024, to provide them with information about

any additional losses for which restitution was sought before the

order of conviction.

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¶8 The prosecutor argued that the purpose of a restitution

hearing is to allow the court to determine all restitution in a case,

not just “the restitution that . . . has been claimed at this point.”

The prosecutor also argued that “[a]ll of the items that were stolen

from the store [were] clearly outlined in discovery” and information

about the items was “admissible for the purposes of [a restitution]

hearing for the Court to determine whether restitution is the

amount that’s [been requested] or, in fact, whether restitution is

actually more than what has been [requested].”

¶9 The district court resolved the dispute by limiting the hearing

to the items previously disclosed in the first restitution motion but

authorizing the prosecution to file a supplemental motion for the

other items, which would be subject to a future hearing if anyone

objected to a supplemental restitution request. At the conclusion of

the hearing, the district court took the first restitution motion

under advisement.

¶ 10 After the restitution hearing concluded, the prosecutor filed an

“Amended Motion for Joint and Several Restitution” (second

restitution motion) that requested restitution in the amount of

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$22,011.20. Thieman objected to the amount of restitution and

requested a second hearing.

¶ 11 On September 26, 2023, the district court entered a final order

of restitution (restitution order) that found Thieman and his

codefendant jointly and severally liable to pay restitution in the

total amount of $22,011.20. This appeal followed.

II. Standard of Review and Applicable Legal Principles

¶ 12 Statutory interpretation is a question of law that we

review de novo. People v. Gallegos, 2013 CO 45, ¶ 7. In construing

a statute, our primary objective is to ascertain and give effect to the

intent of the legislature. People v. Ross, 2021 CO 9, ¶ 23. We

presume the General Assembly intended a just and reasonable

result in enacting a statute. § 2-4-201(1)(c), C.R.S. 2024. To

effectuate legislative intent, we consider the statutory scheme as a

whole, “giving consistent, harmonious, and sensible effect to all of

its parts and avoiding constructions that would render any words or

phrases superfluous or lead to illogical or absurd results.”

Pineda-Liberato v. People, 2017 CO 95, ¶ 22. We also construe

words and phrases in accordance with their plain and ordinary

meanings. Id.

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¶ 13 Although our goal in statutory analysis is to give effect to the

legislature’s intent, see Ross, ¶ 23, we are also bound to follow the

supreme court’s decisions in determining the legislature’s intent,

People v. Kern, 2020 COA 96, ¶ 42.

¶ 14 Section 18-1.3-603(1) requires that all judgments of conviction

contain an order regarding restitution and specifies the four types

of restitution orders a district court can enter. People v. Weeks,

2021 CO 75, ¶ 3. As applicable here, a district court may enter

“[a]n order that the defendant is obligated to pay restitution, but

that 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);

see Weeks, ¶ 3.

¶ 15 In Weeks, the supreme court concluded that section

18-1.3-603(1)(b) establishes a ninety-one-day deadline following

entry of a judgment of conviction within which a district court must

determine the amount of restitution that a defendant must pay.

Weeks, ¶ 4. In other words, subsection (1)(b) authorizes the district

court to “preliminarily require [a] defendant to pay restitution and

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to table the determination of the amount of restitution” to a date

within ninety-one days of the judgment of conviction. Id. at ¶ 34.

The ninety-one-day deadline may be extended only if the district

court expressly finds good cause for extending it before it expires.

Weeks, ¶ 5.

III. Discussion

¶ 16 Thieman asserts that the district court erred by (1) entering a

final order of restitution nearly eleven months after it entered his

judgment of conviction and sentence without making good cause

findings for delaying the ruling beyond the ninety-one-day deadline

contained in section 18-1.3-603(1)(b); (2) failing to hold an

evidentiary hearing on the second restitution motion when he

requested one; (3) allowing the prosecution to supplement the

amount of restitution sought after the judgment of conviction, in

violation of section 18-1.3-603(2)(a); and (4) failing to consider

whether the requested amount of restitution should be set off by

the value of items that remained in police evidence.

¶ 17 The People concede that the restitution order was untimely.

And they concede that the supreme court’s decision in Weeks is

applicable to our consideration of the implications of the untimely

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order. But they urge us to consider the “broader legal tenets”

expressed by federal jurisprudence interpreting the procedures of

the Mandatory Victims’ Restitution Act (MVRA), 18 U.S.C. § 3664;

the purposes of the Victim Rights Act (VRA), sections 24-4.1-300.1

to -305, C.R.S. 2024; and the legislative purposes of restitution and

to interpret Weeks in a way that doesn’t require automatically

vacating restitution orders because of “any statutory 91-day

violation.”

¶ 18 We agree with Thieman that the district court erred when it

issued the restitution order nearly eleven months after the entry of

his judgment of conviction. We also agree with Thieman that,

pursuant to Weeks, the restitution order must be vacated because

it was untimely, notwithstanding the arguments raised by the

People. Because we are vacating the restitution order we decline to

address Thieman’s additional arguments.

A. There Was Only One Restitution Order, and It Was Untimely

¶ 19 The People argue that the “correct analysis [of Weeks]

supports vacating the [second restitution motion] but not [the first

restitution motion].” Thus, the People argue, we should affirm the

restitution order in an amount up to the $10,825.14 requested in

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the first restitution motion. But this argument misses the mark.

Although there were two restitution motions, there was only one

order.

¶ 20 In the restitution order, the district court found that it had

“entered an Order on [the prosecution’s] Motion for Joint and

Several Restitution in the amount of $10,825.14” on October 10,

2022. This finding is clearly erroneous. October 10, 2022, was the

date that the prosecution filed the first restitution motion. Recall

that Thieman objected to that motion, and the district court held an

evidentiary hearing and took ruling on that motion under

advisement. The People have not identified in the record — nor

have we found — any order setting an amount of restitution other

than the September 2023 restitution order obligating Thieman to

pay $22,011.20. The People concede that the restitution order was

untimely and the district court did not make a finding of good cause

to extend entry of the order setting the amount of restitution owed

beyond the ninety-one-day deadline contained in section

18-1.3-603(1)(b).

¶ 21 However, the People urge us to interpret the supreme court’s

decision in Weeks in a way that doesn’t require us to vacate the

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restitution order despite its procedural deficiencies. But, as we

discuss next, we aren’t persuaded that considering Weeks in

conjunction with “broader legal tenets” compels a result other than

vacating the untimely restitution order.

B. Consideration of Broader Legal Tenets Does Not Compel a
Result Besides Vacating the Restitution Order

¶ 22 Essentially, the People argue that because restitution is the

right of the victim, an untimely restitution determination should

only carry consequences that negatively impact a victim “when the

delay prejudices a substantial right that in fact belongs to the

defendant.” And they argue Thieman wasn’t prejudiced by the

untimely restitution order because (1) he either stipulated to pay

restitution in an amount up $10,825.14, as evidenced by the plea

agreement, or (2) he received adequate due process with respect to

that amount of restitution because the district court held an

evidentiary hearing with respect to that amount and, therefore, the

court’s issuance of an untimely restitution order amounted to

harmless error. We disagree.

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1. Thieman Did Not Waive or Forfeit His Right to Timely
Determination of the Amount of Restitution

¶ 23 The People, quoting Harrow v. Department of Defense, 601

U.S. 480, 483-84 (2024), assert that, unless a statute clearly

conveys procedural requirements as jurisdictional, “a court will not

enforce a procedural rule against a non-complying party if his

opponent has forfeited or waived an objection.” Under this logic,

when a restitution order is entered beyond the ninety-one-day

deadline without express good cause findings, the non-complying

“party” is the district court. But the district court is not a party to a

criminal case, and the defendant is not the district court’s opponent

in an appeal. See People v. Justice, 2023 CO 9, ¶ 32 (“[T]he People

and the defendant are the parties in criminal cases.”). And we

reject the People’s apparent insinuation that, because the plea

agreement “suggested a stipulation” to the amount of restitution

owed, Thieman waived or forfeited the right to have the court

comply with its statutory deadline to enter the restitution order

within ninety-one days.

¶ 24 Waiver is the intentional relinquishment of a known right;

forfeiture is the failure to timely assert a right. People v. Rediger,

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2018 CO 32, ¶ 40. The record belies any assertion that Thieman,

by entering into the plea agreement, waived his right to contest the

amount of restitution. The record is clear that — despite the

language on the face of the written plea agreement — the parties

and the court understood that Thieman was contesting the amount

of restitution. See Craig v. People, 986 P.2d 951, 961 (Colo. 1999)

(noting that interpretation of a plea agreement is subject to de novo

review and, because the defendant’s due process rights are at issue,

we may consider extrinsic evidence, including oral statements and

“evidence relating to the circumstances of the government’s dealings

with the defendant” to aid in our interpretation) (citation omitted).

¶ 25 Despite the stipulation language in the plea agreement,

Thieman, through counsel, indicated he was disputing the amount

of restitution and requested a hearing on that issue. The

prosecution acquiesced to Thieman’s request, and the court

appropriately set the matter for hearing.

¶ 26 Likewise, Thieman did not forfeit his right to contest the

amount of restitution because he timely objected to and requested

evidentiary hearings with respect to both restitution motions.

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2. The District Court’s Error in Issuing an Untimely Restitution
Order Was Not Harmless

¶ 27 Alternative to their assertion that Thieman waived or forfeited

any objection he had to the amount of restitution, the People assert

that because the court held an evidentiary hearing with respect to

the first restitution motion, a restitution award reflective of the

amount requested in that motion would not prejudice Thieman. In

essence, they argue that we are not required to vacate the untimely

restitution order because the district court’s procedural error was

harmless since it did not “prejudice[] a substantial right that in fact

belongs to the defendant.”

¶ 28 In support of this contention, the People reference the MVRA,

the legislative purposes of restitution, the VRA, and several United

States Supreme Court cases. The MVRA contains a similar

statutory timeframe for determining the amount of restitution as

that set forth in section 18-1.3-603(1)(b). Compare 18 U.S.C.

§ 3664(d)(5) (“If the victim’s losses are not ascertainable by . . . [ten]

days [before] sentencing, the [prosecution] shall so inform the court,

and the court shall set a date for the final determination of the

victim’s losses, not to exceed [ninety] days after sentencing.”), with

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§ 18-1.3-603(1)(b) (“Every order of conviction . . . shall include

consideration of restitution . . . . [T]he specific amount of

restitution shall be determined within the ninety-one days

immediately following the order of conviction, unless good cause is

shown . . . .”). The General Assembly’s declaration with respect to

the statutes governing restitution says that those statutes should

be construed liberally. § 18-1.3-601(2), C.R.S. 2024. And the VRA

guarantees a crime victim’s right to have the court determine the

amount, if any, of restitution they should receive from a person

convicted of committing a crime against them. § 24-4.1-302.5(1)(h),

C.R.S. 2024.

¶ 29 Furthermore, under the VRA “[a] defendant or person accused

or convicted of a crime against the victim shall have no standing to

object to any failure to comply with [the VRA].” § 24-4.1-303(16),

C.R.S. 2024. And the VRA guarantees that any “affected person” —

other than a defendant or person accused or convicted of a crime

against a victim — “may enforce compliance with [the VRA] by

notifying the crime victim services advisory board . . . of any

noncompliance with [the VRA].” § 24-4.1-303(17).

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¶ 30 The People assert that reading section 18-1.3-603(1)(b)’s

ninety-one-day deadline in conjunction with these “broader legal

tenets” leaves “no reasoned doubt” that the ninety-one-day deadline

“seeks speed primarily to help the victims of crime and only

secondarily, if at all, to help the defendant.” And, the People argue,

because the statutory deadline implicates a right of the victim, a

court’s failure to follow the deadline doesn’t require us to vacate an

untimely restitution order unless “the belatedness [of the restitution

order], taken together with the procedure, was of a nature that the

defendant’s right to finality was substantially impaired.”

¶ 31 In addition to Harrow, the People reference Dolan v. United

States, 560 U.S. 605, 611 (2010) (concluding that the statutory

deadline for a court to determine restitution “seeks speed by

creating a time-related directive that is legally enforceable” but

doesn’t prevent a court from taking action if the deadline is missed),

and McIntosh v. United States, 601 U.S. 330, 333 (2024) (holding

that the failure to enter a preliminary forfeiture order before

sentencing doesn’t bar a court from ordering forfeiture at

sentencing, subject to harmless error principles on appellate

review), to buttress this argument.

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¶ 32 It is undeniable that a victim is negatively impacted by a

court’s failure to abide by the statutory deadline set forth in section

18-1.3-603(1)(b). There is undoubtedly some prejudice to a victim

when a court delays in determining the amount of restitution to

which they are entitled. And there is most certainly prejudice to a

victim when an untimely restitution order is vacated. But, even

accepting as true that the statutory deadline is primarily intended

to help victims of crimes and only secondarily to help a defendant,

we can’t simply ignore a defendant’s due process right to finality

and fairness. See Betterman v. Montana, 578 U.S. 437, 448 (2016)

(noting that a defendant retains a due process interest in a

sentencing proceeding that is fundamentally fair); see also

§ 24-4.1-301, C.R.S. 2024 (noting that the purpose of the Victim

Rights Act is to “assure that all victims of . . . crimes are honored

and protected . . . in a manner no less vigorous than the protection

afforded criminal defendants”).

¶ 33 And other divisions of this court have considered — and

rejected — similar arguments that a district court’s violation of

section 18-1.3-603(1)(b)’s statutory deadline is harmless error. See

People v. Roberson, 2023 COA 70, ¶ 32 (noting that the supreme

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court did not conduct a harmless error analysis in Weeks and that

we are bound by that precedent) (cert. granted Apr. 8, 2024); accord

People v. Mickey, 2023 COA 106, ¶ 6 (further stating that “a

harmless error analysis would be futile when reviewing a restitution

order entered without authority”). We agree with those divisions.

¶ 34 Thus, notwithstanding the additional legal tenets asserted by

the People, we conclude that the district court’s untimely restitution

order must be vacated pursuant to Weeks. And because we vacate

the restitution order, we need not address Thieman’s other

contentions. See People v. Sanders, 2023 CO 62, ¶ 19 (declining to

address issues unnecessary to the disposition of the appeal).

IV. Disposition

¶ 35 The district court’s restitution order is vacated. The case is

remanded to the district court with directions to amend the

mittimus accordingly.

JUDGE WELLING and JUDGE BROWN concur.

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