Peo v. Kinard

21CA0881 Peo v Kinard 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0881

Mesa County District Court No. 19CR1822

Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Kinard,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE JOHNSON

Schutz, J., concurs

J. Jones, J., concurs in part and dissents in part

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

Announced July 25, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Kevin Kinard (Kinard), appeals the restitution

component of his sentence. He contends that the district court

erred by (1) failing to reject the prosecutor’s untimely request for

restitution and (2) awarding restitution based on the minimum

monetary range associated with the offense to which he pled guilty

in his plea agreement.

¶ 2 We conclude that the prosecutor’s failure to comply with

section 18-1.3-603(2)(a), C.R.S. 2023, did not deprive the court of

the authority to act and that under the circumstances presented,

the prosecutor’s failure does not require that we vacate the award.

And while we conclude that there was sufficient evidence to support

the finding that Kinard stole items from the victim, the court’s

findings as to the corresponding values of the items comprising the

$100,000 restitution award are insufficient for appellate review.

Therefore, we remand the case to the district court so it can detail

and clarify its findings in that regard.

I. Background

¶ 3 Kinard and two other people burglarized the victim’s shop.

The victim claimed that approximately $60,000 in cash, more than

$50,000 in jewelry, and several firearms of varying values had been

2

stolen. The victim’s safe, valued at $3,400, was also destroyed.

And the victim’s shop flooded when Kinard and the others plugged

a sink and turned on the water, resulting in approximately $7,000

in repair expenses.

¶ 4 Kinard was arrested and pled guilty to burglary, theft, and

possession of a weapon by a previous offender and agreed to

sentencing enhancers as a habitual criminal. On February 21,

2021, the district court sentenced Kinard to thirty-six years in the

custody of the Department of Corrections but held open the amount

of restitution to be determined later. As part of the plea agreement,

Kinard agreed to “waive[] the right to challenge or appeal any and

all matters related to this case except those having to do with either

a violation of [the plea] agreement or the imposition of an illegal

sentence.” After an evidentiary hearing, the court imposed

restitution of $100,000.

II. The District Court’s Authority to Order Restitution

¶ 5 Kinard contends his restitution order should be vacated as

untimely because section 18-1.3-603(2)(a) requires the prosecutor

to provide the restitution documentation to the court at the time of

3

sentencing when, as in this case, the prosecutor possessed the

information at that time.

¶ 6 The Attorney General does not dispute that the prosecutor’s

file contained the supporting documentation at the time of

sentencing or that the prosecutor failed to provide it to the court

before sentencing. Thus, the Attorney General concedes error. We

agree, but we conclude that this failure was procedural and did not

deprive the court of authority to impose restitution. We also

conclude that the error was harmless.

A. Standard of Review

¶ 7 Whether the district court complied with the restitution

statute involves statutory interpretation, which is a question of law

that we review de novo. People v. Weeks, 2021 CO 75, ¶ 24.

B. Prosecution Information

¶ 8 Kinard contends that the district court lacked authority to

impose restitution because the prosecutor did not comply with

section 18-1.3-603(2)(a). That provision states, “[t]he court shall

base its order for restitution upon information presented to the

court by the prosecuting attorney, who shall compile such

information through victim impact statements or other means to

4

determine the amount of restitution and the identities of the

victims.” Id. Relevant to this appeal, the provision continues, “the

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.” Id. (emphasis added).

¶ 9 We reject Kinard’s argument that the court necessarily

imposes an illegal sentence if the prosecution fails to comply with

section 18-1.3-603(2)(a).

¶ 10 Recently, a division of this court in People v. Brassill, 2024

COA 19, analyzed portions of section 18-1.3-603(2)(a). There, a

prosecutor did not present to the court any information about

restitution at the sentencing hearing. Brassill, ¶ 4. On appeal, the

Attorney General argued that the prosecutor had “no obligation” to

ascertain the amount of restitution before sentencing. Id. at ¶ 27.

The division disagreed, concluding that “the restitution statute

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.” Id. at ¶ 30. It further reasoned that

“it would be contradictory for the legislature to impose this

affirmative obligation without a corresponding expectation that the

5

prosecution act with reasonable diligence to fulfill it.” Id.; see also

Weeks, ¶ 44, n.14 (“We reiterate that, by the time of the sentencing

hearing, the prosecution should know whether it is seeking

restitution, even if the information related to the proposed amount

isn’t yet available.”).

¶ 11 Although the Brassill division determined that the prosecutor

had not exercised reasonable diligence to obtain the restitution

information before sentencing, it also concluded that the court’s

failure to recognize that violation was harmless. Brassill, ¶¶ 45, 56-

62. It reasoned that the restitution order was entered within the

ninetieth day, so the case was distinguishable from Weeks, and that

the defendant had not alleged any prejudice, such as witnesses’

faded memories or loss of evidence. Id. at ¶¶ 56-57. Therefore, the

restitution order was affirmed.

¶ 12 Similarly, in People v. Babcock, 2023 COA 49, ¶¶ 7-11 (cert.

granted Apr. 8, 2024), a division of this court addressed whether

the ninety-one-day deadline in the restitution statute was

jurisdictional. If so, a defendant could raise a challenge to a

restitution order at any time. Id. In rejecting this argument,

Babcock concluded that Weeks’ use of the word “authority” does not

6

equate to “jurisdiction.” Id. at ¶ 10. Instead, the division relied on

People v. Turecek, 2012 COA 59, ¶ 20, overruled in part by Weeks,

2021 CO 75, which said, “To say that a court lacks authority to

order belated restitution does not use ‘authority’ in a jurisdictional

sense, but only in the same sense in which a court lacks ‘authority’

to impose a sentence above the statutory maximum.” Id. at ¶ 20

(quoting Dolan v. United States, 560 U.S. 605, 626 (2010) (Roberts,

C.J., dissenting)).

¶ 13 We find Babcock and Brassill persuasive. We therefore hold

that a court does not lose jurisdiction or authority to impose

restitution when the prosecution fails to comply with section 18-

1.3-603(2)(a). Our conclusion in this regard is supported by at least

three other reasons.

¶ 14 First, when a court acquires jurisdiction over a matter,

generally, “a later failure to follow statutory requirements does not

divest the court of subject matter jurisdiction. Such a failure to

follow the statute would amount to an erroneous decision not

affecting jurisdiction.” People in Interest of N.D.V., 224 P.3d 410,

414 (Colo. App. 2009) (quoting People in Interest of Clinton, 762 P.2d

1381, 1386 (Colo. 1988)).

7

¶ 15 Second, holding that the court lacks authority would be

contrary to Sanoff v. People, 187 P.3d 576 (Colo. 2008). There, the

supreme court interpreted section 18-1.3-603(1)(b) to mean that,

“by specifying that an order of conviction need only include a

determination whether the defendant is obligated to pay restitution,

without designation of the amount, the General Assembly has made

clear its intent that the amount of the defendant’s liability no longer

be a required component of a final judgment of conviction.” Sanoff,

187 P.3d at 578 (emphasis added).

¶ 16 We acknowledge that the district court in this case held open

restitution for ninety-one days, which Weeks said is contrary to the

statute. Section 18-1.3-603(1)(b) only authorizes a court to defer

determination of the amount of restitution; it does not “authorize

the court to address the issue of restitution in a judgment of

conviction by entering an order deferring that issue in its entirety.”

Weeks, ¶ 30. But this case is not like Weeks.

¶ 17 The district court in Weeks had not considered whether the

defendant might be liable for restitution, whereas in this case, there

was extensive discussion about potential restitution liability: the

prosecutor even provided a verbal estimate to the court. In

8

addition, the court acknowledged that the plea agreement contained

a stipulation for Kinard to pay restitution, recognized its obligation

to resolve restitution within ninety-one days, and set the restitution

hearing so that the amount of restitution could be resolved within

ninety-one days. In other words, the court entered a judgment of

conviction and it “considered” restitution by determining that

Kinard would be liable for restitution, with the amount to be

determined later. Thus, Kinard’s judgment of conviction complies

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

1

¶ 18 Finally, Kinard’s reliance on Meza v. People, 2018 CO 23, is

misplaced. In that case, the district court had entered a judgment

of conviction with a restitution amount imposed but later sought to

amend the order by increasing the amount of restitution. The

supreme court held that the court’s action was improper. Meza

1

We note that the mittimus in this case does not comply with

People v. Weeks, 2021 CO 75, ¶ 44, as it does not reflect that

restitution was ordered but that the specific amount would be

determined at a later date. The substance of the parties’

discussions at the sentencing hearing, however, is not accurately

reflected on the mittimus. Therefore, on remand, the district court

should amend the mittimus to reflect that restitution liability was

considered. See People v. Wood, 2019 CO 7, ¶¶ 4-5 (authorizing

amendment to mittimus under Crim. P. 36 when sentencing

hearing and mittimus do not reflect the same information).

9

reasoned that postponing a determination of the restitution amount

“will be permitted only if the required information is not available

before entry of judgment.” Id. at ¶ 11; see also § 18-1.3-603(2)(a).

¶ 19 Kinard argues that this language suggests a jurisdictional bar.

We disagree.

¶ 20 In Meza, the supreme court also said that, even though the

prosecutor must provide the restitution information within a

specified period of time,

[i]t is the court which is statutorily empowered

to finalize a judgment of conviction by finding

no injury, by ordering a specific amount of

restitution, or by ordering a postponement of

the determination of the amount of restitution

for ninety-one days or until the actual costs of

specific future treatment become known.

Meza, ¶ 18.

¶ 21 We read Meza to say that a prosecutor cannot later seek

additional restitution once a final restitution order is imposed. But

here, an amount of restitution had not yet been imposed when the

court entered its restitution order. Therefore, Meza is inapposite.

¶ 22 Because the prosecutor violated section 18-1.3-603(2)(a), and

the court-imposed restitution anyway, error occurred. But we

conclude the error is procedural and did not deprive the district

10

court of the authority to act on restitution. For an error of this

type, we must decide whether the error was harmless. See Brassill,

¶ 56 (“[A]ny error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded.” (quoting Crim. P.

52(a))).

C. Harmless Error

¶ 23 We conclude for three reasons that the error was harmless.

¶ 24 First, Kinard presents no argument that he was prejudiced by

virtue of the prosecution’s late filing. And we observe that defense

counsel was aware of the amount of restitution that the People were

seeking before the sentencing hearing and at the sentencing

hearing. The parties had discussed setting a restitution hearing

because Kinard contested some of the amounts.

¶ 25 Second, the restitution proceedings were completed within the

ninety-one-day timeframe set by section 18-1.3-603(1)(b). In other

words, this is not a situation akin to Weeks.

¶ 26 The prosecution provided the restitution information to the

court ten days after the judgment of conviction was entered on

March 5, 2021, and asked for additional time due to extenuating

circumstances on March 17, 2021, given the mistaken format of the

11

information. The restitution hearing was scheduled on May 13,

2021, before the ninety-first day after Kinard’s sentencing, as

required by section 18-1.3-603(1)(b).

2

And the court’s order

imposing restitution was issued just four days after the restitution

hearing on May 17, 2022, eighty-five days after the entry of the

judgment of conviction.

¶ 27 Finally, denying the victim restitution based on this record

would be patently unfair, as the prosecutor provided the proposed

restitution amount to the defendant in an email well in advance of

the sentencing hearing.

¶ 28 Because we conclude that the error was harmless, we turn to

Kinard’s challenges to the restitution amount.

III. Restitution Award

¶ 29 Kinard contends that the court erred by awarding $100,000 in

restitution because (1) the amount of claimed restitution was not

supported by corroborating evidence, and (2) his guilty plea did not

amount to an admission that the victim’s stolen property had a

2

The restitution hearing was originally scheduled for May 10, 2021.

The later May 13, 2021 date was eighty-one days after Kinard’s

sentencing date.

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value of at least $100,000. We disagree with Kinard on his first

contention, but we agree with him that his admission was not

sufficient evidence of the amount. As to the second issue, we

remand the restitution order to the district court so that it can

make findings of fact sufficient for appellate review.

A. Additional Facts

¶ 30 At the restitution hearing, the prosecution requested $162,300

in restitution. The only witness to testify was the victim, who

estimated the values of items Kinard had stolen or damaged: cash

and property in his safe (e.g., firearms and jewelry); damage to the

safe itself; and property damage to the premises. The court issued

a written restitution order following the hearing.

¶ 31 In the order, the district court voiced concerns regarding the

lack of corroborating evidence establishing the restitution amount,

noting that there was “nothing preventing [a victim] from alleging

any amount of cash being taken” without corroboration. The court,

however, relied on language from the plea agreement and Kinard’s

plea to theft in an amount between $100,000 and $1,000,000 as

the corroborating evidence to determine the restitution amount,

stating, “[A] plea of guilty constitutes a judicial admission of the

13

offense and to its elements.” It concluded that “since the defendant

admitted to taking at least $100,000 in the theft, the court is

ordering that [Kinard] pay restitution in the amount of $100,000 to

the victim.”

B. Standard of Review and Applicable Law

¶ 32 Both parties agree that Kinard challenges the sufficiency of the

evidence. We agree but provide an explanation for employing the

following standard of review for a sufficiency claim considering the

supreme court’s recent opinion in Martinez v. People, 2024 CO 6M.

¶ 33 “[T]he prosecution bears the burden of proving by a

preponderance of the evidence not only the victim’s losses, but also

that the victim’s losses were proximately caused by the defendant’s

criminal conduct.” People v. Dyson, 2021 COA 57, ¶ 12 (quoting

People v. Martinez-Chavez, 2020 COA 39, ¶ 14). “Proximate cause

in the context of restitution is defined as a cause which in natural

and probable sequence produced the claimed injury and without

which the claimed injury would not have been sustained.” Id. at

¶ 13.

¶ 34 Historically, some divisions of this court reviewed de novo a

district court’s conclusion that a defendant’s conduct proximately

14

caused the victim’s losses because they reasoned that they were

reviewing whether the prosecution had met its burden of proof by a

preponderance of the evidence. Martinez, ¶ 22, n.2. But there is a

difference between a defendant’s challenge to a restitution award

based on sufficiency of the evidence and a defendant’s challenge to

a district court’s finding of proximate cause.

¶ 35 Sufficiency of the evidence is “concerned [with] the quantum of

evidence (i.e., was there proof by a preponderance of the evidence[)]”

that the defendant caused the victim’s injuries or losses. Id. at

¶ 22; see also People v. Barbre, 2018 COA 123, ¶ 25 (a defendant’s

challenge to whether the prosecution proved by a preponderance of

the evidence the amount of the claimed losses is a challenge to the

sufficiency of the evidence; it does not turn on the court’s

interpretation of the evidence); Babcock, ¶¶ 17-18, 30-31.

¶ 36 Both of Kinard’s challenges to his restitution award concern

the prosecution’s failure to present the quantum of evidence

necessary to prove by a preponderance of the evidence the victim’s

losses, not whether the prosecution proved that Kinard’s actions

were the proximate cause of the victim’s injury.

15

¶ 37 Under a sufficiency of the evidence challenge, we must

determine “whether the evidence, both direct and circumstantial,

when viewed as a whole and in the light most favorable to the

prosecution, establishes by a preponderance of the evidence that

the defendant caused that amount of loss.” Barbre, ¶ 25. We must

“draw every inference fairly deducible from the evidence in favor of

the [district] court’s decision,” and “[w]e will not disturb a district

court’s findings and conclusions if the record supports them, even

though reasonable people might arrive at different conclusions

based on the same facts.” Dyson, ¶ 15 (quoting People in Interest of

S.G.L., 214 P.3d 580, 583 (Colo. App. 2009)).

C. Analysis

¶ 38 Some of the court’s findings render its restitution award

unclear. The court was concerned with a lack of corroborating

evidence presented by the victim, noting a lack of receipts or

photographs or testimony from others who might have had

knowledge about the stolen items. Therefore, the court said it was

“hesitant to attribute the values [testified to by the victim] to the

property in this case.” But elsewhere in the order, the court also

said it “does not dispute that several items were taken in the

16

burglary/theft.” Based on Kinard’s guilty plea to theft between

$100,000 and $1,000,000, the court imposed $100,000 in

restitution.

1. Sufficient Evidence of Stolen Items

¶ 39 We disagree with Kinard that the prosecution did not prove by

a preponderance of evidence that he stole items from the victim’s

safe. The victim testified at the restitution hearing about items

stolen from his safe. There was no contrary evidence, and the

victim’s testimony was sufficient. Cf. Barbre, ¶ 40 (rejecting the

defendant’s reliance on federal precedent requiring corroborating

evidence to support restitution when Colorado cases hold that a

victim’s impact statement may be sufficient); People v. Ortiz, 2016

COA 58, ¶ 28 (noting that although a victim’s impact statement is

considered hearsay, a district court may rely solely on it to award

restitution). Some of the victim’s testimony was specific about the

items stolen. The victim identified the types of firearms stolen;

described the Rolex watch; and described the way the cash was

bundled (in wrapped stacks of $10,000 in a Ziploc bag),

representing twenty-five to thirty years’ worth of the victim’s

savings. Although it may have been better practice for the

17

prosecutor to marshal corroborating evidence to support the

restitution request, we cannot say that the victim’s testimony was

insufficient to prove that Kinard had stolen items from the victim.

See Dyson, ¶ 15.

2. Restitution Amount

¶ 40 Because the court ordered a blanket restitution amount of

$100,000 without identifying what items (and their corresponding

values) contributed to that figure, we conclude that the district

court’s findings are insufficient for appellate review. See Cronk v.

Bowers, 2023 COA 68M, ¶ 33 (“Of course, the court ‘must

make sufficient findings to permit meaningful appellate review.’”

(quoting Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1211

(Colo. App. 2010))). We also conclude that relying on the minimum

range of an offense does not support the restitution award. A court

must make findings so that we can determine whether the items

stolen, and their corresponding values, align with and are

supported by the evidence presented at the restitution hearing.

¶ 41 We acknowledge that, as part of his plea agreement, Kinard

pled guilty to theft, a class 3 felony, when the “the value of the thing

involved is one hundred thousand dollars or more but less than one

18

million dollars.” § 18-4-401(2)(i), C.R.S. 2023. The result of this

guilty plea means that he admitted to the monetary range as an

element of the offense. See Juhl v. People, 172 P.3d 896, 900 (Colo.

2007) (“A guilty plea acts as a conviction and has the same effect as

a verdict rendered by a jury.” (quoting People v. Gallegos, 950 P.2d

629, 632 (Colo. App. 1997))); People v. Flagg, 18 P.3d 792, 794

(Colo. App. 2000) (“A plea of guilty is the equivalent of admitting all

material facts alleged in the charge.” (quoting United States v.

Powell, 159 F.3d 500, 503 (10th Cir. 1998))).

¶ 42 But because the district court had concerns over the lack of

corroborating evidence to support the monetary amounts of the

items and cash Kinard had stolen, it imposed a restitution amount

based on the monetary minimum of the offense of $100,000. The

dissent suggests that the district court’s conclusion is permissible

because Kinard admitted to stealing at least $100,000 worth of

items and cash from the victim.

¶ 43 But if this were simply the case, then there would be no need

for the court to hold a restitution hearing. The prosecution must

still prove that the “victim’s losses were proximately caused by the

defendant’s criminal conduct.” Dyson, ¶ 12 (quoting Martinez-

19

Chavez, ¶ 14). In other words, Kinard’s conduct caused the

claimed injury as to both the theft of items (which we conclude

above is proved) and the amount. See id. Regardless of whether

Kinard admitted to conduct that caused the victim to suffer a

minimum amount of monetary damage of $100,000, the court’s

findings must still be consistent to support its ruling. Here, the

court’s reasoning is inconsistent.

¶ 44 For instance, the victim testified that he had $60,000 cash in

the safe and a Rolex watch with a diamond bezel and diamond

wristband valued at $50,000. Did the court accept the total value

for the cash and property? If so, the court could not award

$100,000 as those two categories of property alone added up to

$110,000. Because the court found that Kinard stole items during

the burglary, the court must make findings as to which items were

stolen from the victim and assign values for every stolen item.

¶ 45 We acknowledge that the court already identified this to be

problematic based on the lack of corroborating evidence from the

victim. But it is the function of the district court to make credibility

findings and to weigh the evidence. Carousel Farms Metro. Dist. v.

Woodcrest Homes, Inc., 2019 CO 51, ¶ 19 (“Because appellate

20

courts don’t make findings of fact, trial judges are the only ones

who have the ‘unparalleled opportunity to determine the credibility

of the witnesses and the weight to be afforded the evidence.’”

(quoting M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.

1994))).

¶ 46 Therefore, because the court’s current findings are insufficient

and, in some instances, inconsistent, we vacate the restitution

order and remand the case to the district court to make findings

consistent with this opinion.

3

Either party may exercise their

appellate rights with respect to any future restitution order.

IV. Conclusion

¶ 47 The order is affirmed in part, reversed in part, and the case is

remanded to the district court to conduct further proceedings

consistent with the opinion.

JUDGE SCHUTZ concurs.

JUDGE J. JONES concurs in part and dissents in part.

3

We decline to impose the restitution figure proffered by the

Attorney General because that would require us to engage in

factfinding, which, as an appellate court, is not our function.

21

JUDGE J. JONES, concurring in part and dissenting in part

¶ 48 I concur in the majority’s conclusion that the district court

didn’t lose authority to impose restitution merely because the

prosecution may have failed to comply with section 18-1.3-

603(2)(a), C.R.S. 2023. I also concur in the majority’s conclusion

that there was sufficient evidence that Kinard stole various items

from the victim. But I disagree with the majority’s decision to

remand the case to the district court for further findings on the

amount of restitution and therefore respectfully dissent on that

point.

¶ 49 The district court imposed restitution of $100,000 — the

minimum that Kinard, by virtue of his guilty plea, admitted stealing

from the victim. Kinard pleaded guilty to count two, which charged

him with theft of “cash, firearms, jewelry, and other items listed in

discovery . . . with the value of one hundred thousand dollars or

more but less than one million dollars[,] in violation of” sections 18-

4-401(1), (2)(i), and (6), C.R.S. 2023. By so doing, Kinard (1)

admitted to every element of the offense — including that the total

value of any items stolen was at least $100,000, see Neuhaus v.

People, 2012 CO 65, ¶ 8; People v. Rockwell, 125 P.3d 410, 421

22

(Colo. 2005); and (2) admitted the material facts alleged in the

charge — including that the value of the specified stolen items was

at least $100,000, see People v. Zuniga, 80 P.3d 965, 970 (Colo.

App. 2003) (a guilty plea waives the right to contest such facts);

People v. Flagg, 18 P.3d 792, 794 (Colo. App. 2000).

¶ 50 I don’t see any reason why these admissions can’t — on their

own — support an award of restitution of the statutory bottom of

the range. When a defendant pleads guilty to an offense, he relieves

the prosecution of its burden to prove the statutory elements or the

material facts charged. In my view, there is no reason that

shouldn’t carry over to restitution.

¶ 51 Of course, when the prosecution in a case like this seeks

restitution above the bottom of the statutory range — as the

prosecution did in this case — a hearing will be necessary if the

defendant challenges the amount sought above the statutory

minimum. Such a hearing was held in this case, but the court

awarded only the statutory minimum. Given the binding and

conclusive nature of Kinard’s admissions, there is no need for

factual findings (or additional evidence) supporting the amount

imposed. (In any event, I would conclude that Kinard’s admissions,

23

combined with the victim’s testimony, was sufficient to support an

award of $100,000.)