     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 19, 2020
                                2020COA44

No. 19CA0255, People v. Weeks — Criminal Law — Sentencing
— Restitution — Assessment of Restitution

     A division of the court of appeals considers whether a trial

court may order restitution more than ninety-one days after a

defendant’s conviction without a finding of good cause or

extenuating circumstances for delaying its ruling, aside from the

prosecution’s request for additional time to seek restitution. Based

on the plain language of section 18-1.3-603, C.R.S. 2019, the

majority holds that courts must order restitution within ninety-one

days or make a sufficient finding of “good cause” or “extenuating

circumstances” to extend the statutory deadline. The mere fact that

the prosecution sought additional time to request restitution does

not automatically amount to good cause or extenuating

circumstances.
     The dissent would affirm, concluding that when a court

extends the time for the prosecutor to seek restitution, that

extension implicitly constitutes good cause for the trial court to

decide the motion outside of the prescribed ninety-one-day period.
COLORADO COURT OF APPEALS                                          2020COA44


Court of Appeals No. 19CA0255
Garfield County District Court No. 17CR75
Honorable James B. Boyd, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Benjamin Weeks,

Defendant-Appellant.


                               ORDER VACATED

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                               Fox, J., concurs
                             Berger, J., dissents

                          Announced March 19, 2020


Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1    Under the Colorado restitution statute, if a district court

 decides at sentencing to defer its decision regarding the appropriate

 amount of restitution, “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), C.R.S. 2019.

¶2    Defendant, Benjamin Weeks, appeals the trial court’s

 restitution order, contending that the court erred by ordering

 restitution more than eleven months after sentencing without good

 cause for delaying its ruling. We agree. We therefore reverse the

 order and remand for further proceedings.

                           I.   Background

¶3    A jury found Weeks guilty of two counts of aggravated robbery

 and two counts of menacing based on his robbery of a gas

 station/convenience store.

¶4    At the sentencing hearing on February 13, 2018, the

 prosecutor requested that restitution remain open. The trial court

 granted the request:




                                    1
           I will leave restitution open for 91 days. If a
           motion is filed, any response should be filed
           within 28 days and any reply within seven. If
           anyone wants a hearing, the request needs to
           be made in the pleadings. If no request is
           made, I’ll rule on the pleadings.

¶5    Nine days later, the prosecution filed a motion requesting

 $524.19 in restitution — $506.54 for the money Weeks stole during

 the robbery and $17.65 in prejudgment interest. The prosecution

 asked the court to order the $524.19 as an “interim amount”

 because it was still investigating additional possible bases for

 restitution. The prosecution did not request a restitution hearing.

¶6    Twenty-three days later, Weeks filed an objection to the

 restitution motion. He argued, among other things, that the

 victim’s sole loss was the $506.54 in stolen money and that the

 court should not hold restitution open indefinitely based on the

 prosecution’s claim that it may learn of additional losses in the

 future. Weeks also did not request a restitution hearing.

¶7    Nothing happened on the restitution issue for the next

 seven-and-a-half months. In late October 2018, Weeks filed a

 motion for a status conference based on the pending restitution

 motion and a pending motion for return of property.



                                    2
¶8     At a status conference in November 2018, the court set a

  hearing on the pending motions for December 2018. At the

  December 2018 hearing, the prosecution clarified that it was

  seeking restitution only for the originally requested amount of

  $524.19. In response, Weeks argued, among other things, that the

  trial court no longer had authority to order restitution because the

  ninety-one-day deadline in section 18-1.3-603(1)(b) had expired.

  The court took the matter under advisement.

¶9     Following the hearing, Weeks filed a brief presenting further

  argument on the ninety-one-day deadline issue.

¶ 10   In January 2019, more than eleven months after sentencing,

  the court issued an order granting the $524.19 in restitution. In a

  separate written order, the court explained why it was rejecting

  Weeks’s argument that it no longer had the authority to order

  restitution based on the ninety-one-day deadline in section

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

            Applying the time frame in the statute requires
            the consideration of good cause. There is
            some tension in the statute about the 91-day
            time frame. Subsection (1)(b) of § 18-1.3-603
            provides restitution “shall be determined”
            within 91 days. However, subsection 2
            authorizes the Court to allow the People 91


                                    3
days to submit information in support of a
specific restitution amount. For the Court to
lose the ability to fix an amount on the same
day the People could file restitution
information would deprive a defendant of any
opportunity to respond to the information,
deprive both parties of any opportunity to
request a hearing and deprive the Court of any
ability to consider the information beyond the
moments between the filing of the information
and the end of the day. To address these
potential concerns, the Court in this case
entered its usual order when allowing the
People time to file restitution information. The
Court imposed on the People the 91-day
deadline imposed by the statute followed by
time for a response from the Defendant and a
reply by the People with the opportunity to
request a hearing. Although the briefing was
sooner completed in this case, the Court, at
the time of sentencing, authorized more than
91 days to complete the determination of
restitution. No objections were made to this
procedure.

With respect to good cause for a longer time
frame, Defendant is correct the Court has not
uttered the term “good cause” to extend the
time for restitution beyond 91 days. However,
the Court concludes the Court’s briefing and
hearing procedure created at the time of
sentencing necessarily and implicitly
established good cause for restitution to be
determined beyond the 91-day period.




                       4
                             II.   Standard of Review

¶ 11        The proper interpretation of the restitution statute is a

  question of law that we review de novo. People v. Perez,

  2019 COA 62, ¶ 8, ___ P.3d ___, ___. However, the issue of whether

  good cause exists to extend the ninety-one-day deadline to

  determine restitution under section 18-1.3-603(1)(b) is reviewed for

  an abuse of discretion. See People v. McCann, 122 P.3d 1085, 1088

  (Colo. App. 2005); People v. Harman, 97 P.3d 290, 294 (Colo. App.

  2004). A court abuses its discretion when its decision is manifestly

  arbitrary, unreasonable, or unfair, or when it misconstrues or

  misapplies the law. People in Interest of D.L.C., 2019 COA 135, ¶ 6,

  ___ P.3d ___, ___.

                                   III.   Analysis

       A.    The Time Limit for “Determining” Restitution Under Section
                                  18-1.3-603(1)(b)

¶ 12        The People appear to suggest that the ninety-one-day deadline

  for “determining” restitution under section 18-1.3-603(1)(b) may

  refer not to a district court’s obligation to “determine” the

  appropriate amount of restitution to order, but instead to the




                                          5
  prosecution’s obligation to “determine” the appropriate amount of

  restitution to request.

¶ 13   We disagree. Colorado case law indicates that the

  “determin[ation]” of restitution under section 18-1.3-603(1)(b) refers

  to the district court’s obligation to order a specific amount of

  restitution within ninety-one days, unless good cause exists to

  extend that deadline. See People v. Belibi, 2018 CO 24, ¶ 7,

  415 P.3d 301, 302 (explaining that section 18-1.3-603(1)(b) requires

  that “the specific amount of restitution be set within ninety-one

  days”) (emphasis added); Meza v. People, 2018 CO 23, ¶ 14,

  415 P.3d 303, 308 (holding that section 18-1.3-603(1)(b) allows a

  district court to “reserv[e] until a later date, within ninety-one days,

  findings with regard to other victims or losses of which the

  prosecution is not yet aware”) (emphasis added); Perez, ¶¶ 14-15,

  ___ P.3d at ___ (“If the court reserves the determination of

  restitution, as it is authorized to do, restitution is to be fixed within

  ninety-one days after the order of conviction, unless good cause is

  shown for extending that time. . . . Because restitution was

  ultimately awarded more than ninety-one days after the order of

  conviction, a showing of good cause was required.”) (emphasis


                                      6
  added). Further, in Sanoff v. People, 187 P.3d 576 (Colo. 2008), the

  supreme court equated a trial court’s jurisdiction “to set an amount

  of restitution” with the court’s jurisdiction “to determine the amount

  of restitution.” Id. at 579 (emphasis added). It is no coincidence

  that, in discussing the trial court’s jurisdiction, the supreme court

  paraphrased section 18-1.3-603(1)(b)’s reference to “the restitution

  amount shall be determined.”

¶ 14   Adopting the People’s interpretation would render section

  18-1.3-603(1)(b) superfluous of the language in section

  18-1.3-603(2) giving the prosecution ninety-one days to present

  information in support of its restitution request. (We discuss that

  provision further below.) Instead, those two statutory provisions

  refer to distinct obligations. See Harman, 97 P.3d at 294 (“[T]he

  restitution act contains standards both for the late provision of the

  restitution amount to the court by the prosecutor (‘extenuating

  circumstances’), § 18-1.3-603(2), and for the late determination of

  the restitution amount (‘good cause’), § 18-1.3-603(1)(b). . . . [W]e

  do not determine whether ‘extenuating circumstances’ are

  comparable to ‘good cause.’ However, a reasonable reading of the

  statute is that extenuating circumstances affecting the prosecutor’s


                                     7
  ability to calculate the amount of restitution may be a factor in

  finding good cause for the late determination.”); see also Perez,

  ¶ 16, ___ P.3d at ___ (same).

¶ 15   Thus, reading “determined” in section 18-1.3-603(1)(b) to

  mean “determined by the prosecuting attorney” would subject

  prosecutors to conflicting standards for obtaining extensions of time

  to submit the information supporting the requested amount of

  restitution. Under section 18-1.3-603(1)(b), the prosecuting

  attorney would need to show “good cause” to obtain an extension of

  the “time period by which the restitution amount shall be

  determined,” while under section 18-1.3-603(2), the same

  prosecutor would need to demonstrate “extenuating circumstances

  affecting the prosecuting attorney’s ability to determine

  restitution.” Although section 18-1.3-603 is unclear, the general

  assembly surely did not intend to impose two different tests on

  prosecuting attorneys to obtain the same relief.

¶ 16   We respectfully disagree with the dissent that People v.

  Knoeppchen, 2019 COA 34, ¶ 27, ___ P.3d ___, ___, stands for the

  proposition that every extension of time for a prosecutor’s deadline

  to present information regarding restitution automatically


                                    8
  constitutes good cause to extend the court’s deadline to determine

  restitution. The analysis of section 18-1.3-603(1)(b) in Knoeppchen

  was dicta because the division ultimately determined that the

  defendant’s motion to vacate the restitution order was time barred.

  Id. at ¶ 28, ___ P.3d at ___.

¶ 17   To the extent that the division in Knoeppchen said that an

  order extending a prosecutor’s time to seek restitution always

  constitutes good cause under section 18-1.3-603(1)(b), we

  respectfully decline to follow the decision. People v. Smoots,

  2013 COA 152, ¶ 20, 396 P.3d 53, 57 (“We are not obligated to

  follow the precedent established by another division, even though

  we give such decisions considerable deference.”), aff’d sub nom.

  Reyna-Abarca v. People, 2017 CO 15, ¶ 20, 390 P.3d 816. Such an

  analysis would do more than merely interpret

  section 18-1.3-603(1)(b); it would rewrite the statute.

¶ 18   We also part ways with the dissent’s assertion that our

  reasoning is irreconcilable with the line of cases holding that a

  sentence is illegal when it does not address restitution. If this were

  correct, then the ninety-one-day deadline in section

  18-1.3-603(1)(b) would be meaningless and trial courts would have


                                    9
  no time limit to determine restitution prior to any appeal. See

  People v. Turecek, 2012 COA 59, ¶ 23, 280 P.3d 73, 77 (holding that

  the court will not interpret the restitution statute to render its

  deadlines meaningless).

¶ 19   The ninety-one-day deadline does not apply to determinations

  of restitution following an appeal and remand. See McCann,

  122 P.3d at 1088 (noting that the trial court may conclude on

  remand that, upon the pre-appeal deadline for the People’s

  restitution motion, there was no evidence from which the court

  could conclude that the victim had suffered a pecuniary loss). Our

  decision does not mean that a trial court would be required to enter

  a restitution award of zero if this court remanded the case after

  determining that the trial court had entered an illegal sentence by

  disregarding restitution. See People v. Rockne, 2012 COA 198,

  ¶ 18, 315 P.3d 172, 177 (“[W]e interpret the restitution statute as

  applying its [ninety-one] day period of limitation only to efforts to

  procure an initial order of restitution.”).




                                      10
       B.   The Tension Between the Ninety-One-Day Deadlines in
               Subsections (1)(b) and (2) of Section 18-1.3-603

¶ 20    The trial court’s written order raised a good question: How can

  a district court be expected to order restitution within ninety-one

  days under section 18-1.3-603(1)(b) if the prosecution needs the full

  ninety-one days under section 18-1.3-603(2) to submit the

  information supporting its restitution request? Our answer is that

  if the prosecution needs the full ninety-one days (or more) to

  complete its request for restitution under section 18-1.3-603(2),

  that in itself could constitute “good cause” for the trial court to

  extend its restitution ruling beyond the ninety-one-day deadline

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

¶ 21    But a district court’s finding of good cause must rest on the

  specific facts of the case and not merely on the General Assembly’s

  decision to set the same deadline for a district court’s determination

  of the amount of restitution and the prosecuting attorney’s

  presentation of the information supporting its restitution request.

  “[I]f the language in a statute is clear and unambiguous, we give

  effect to its plain meaning and look no further.” Cowen v. People,

  2018 CO 96, ¶ 12, 431 P.3d 215, 218.



                                     11
¶ 22   The practical problem that the trial court identified requires a

  legislative, and not a judicial, fix. It is not our role to blue-pencil

  inartfully drafted sections of the Colorado Revised Statutes. See

  Ray v. People, 2019 COA 24, ¶ 13, 456 P.3d 54, 57 (“We may not

  add or subtract words from a statute.”).

                       C.    Application to this Case

¶ 23   Weeks was sentenced on February 13, 2018. The prosecution

  requested its interim amount of restitution just nine days later.

  Weeks filed his objection twenty-three days later. The prosecution

  did not file a reply brief by the March 24 deadline. Neither party

  requested a restitution hearing. That left the trial court fifty-two

  days to rule on the filings before the ninety-one-day deadline on

  May 15, 2018. Regardless of the briefing schedule the court had

  previously set, the briefing was complete long before the

  ninety-one-day deadline.

¶ 24   So the next question is whether “good cause” existed to extend

  the ninety-one-day deadline under section 18-1.3-603(1)(b). In its

  ruling in January 2019, the trial court found good cause based on

  the “briefing and hearing procedure created at the time of




                                      12
  sentencing.” The trial court’s briefing and hearing procedure

  created at the time of sentencing was as follows:

            I will leave restitution open for 91 days. If a
            motion is filed, any response should be filed
            within 28 days and any reply within seven. If
            anyone wants a hearing, the request needs to
            be made in the pleadings. If no request is
            made, I’ll rule on the pleadings.

¶ 25   The court’s statement that it would “leave restitution open for

  91 days” could be construed as referring to the ninety-one-day

  deadline to order restitution under section 18-1.3-603(1)(b). But

  regardless, assuming (as the trial court later found) that the court’s

  statement gave the prosecution ninety-one days to file its restitution

  motion, the prosecution’s motion would have been due by May 15,

  2018; Weeks’s response would have been due no later than June

  12, 2018; and the prosecution’s reply would have been due no later

  than June 19, 2018.

¶ 26   Significantly, there is no dispute that the trial court possessed

  sufficient information to fix the amount of restitution at $524.19

  before the deadline set forth in section 18-1.3-603(1)(b). Nor is

  there disagreement that the court could have left “restitution open”




                                    13
  for less than ninety-one days so that it could have met section

  18-1.3-603(1)(b)’s deadline without a finding of “good cause.”

¶ 27   After the completion of that briefing schedule on June 19,

  2018, more than four months passed until Weeks alerted the court

  in late October 2018 that it had still not determined restitution.

  And more than seven months passed from June 19, 2018, until the

  trial court ordered restitution in January 2019. The trial court’s

  ruling did not explain, and the record does not show, what good

  cause, if any, existed for that inordinate delay. See People v. Gillett,

  629 P.2d 613, 618 n.9 (Colo. 1981) (“Good cause generally means a

  substantial reason amounting in law to a legal excuse for failing to

  perform an act required by law.”). We will not infer the existence of

  good cause in the absence of such an explanation. See Harriman v.

  Cabela’s Inc., 2016 COA 43, ¶ 77, 371 P.3d 758, 767 (holding that

  appellate courts may not engage in factfinding).

¶ 28   Thus, we must reverse under the circumstances and the plain

  language of section 18-1.3-603(1)(b).

¶ 29   In so ruling, we recognize that the prosecution’s initial motion

  for an “interim amount” of restitution left open the possibility that it

  might later request additional restitution. However, the trial court’s


                                     14
  decision regarding good cause under section 18-1.3-603(1)(b) was

  silent on whether the prosecution needed more time to investigate

  additional bases for restitution. And the prosecution never

  requested any additional restitution. Under the circumstances, the

  district court could have ordered the interim amount of restitution

  within the ninety-one-day period under section 18-1.3-603(1)(b),

  while specifically reserving its right to order additional restitution

  beyond the ninety-one-day period if the prosecution made a

  sufficient showing of “good cause” under section 18-1.3-603(1)(b) or

  “extenuating circumstances” under section 18-1.3-603(2). See

  Meza, ¶¶ 9-16, 415 P.3d at 306-09 (a district court may order a

  specific amount of restitution while specifically reserving its right to

  determine at a later time the final amount of restitution). The court

  did not do so.

                             IV.   Conclusion

¶ 30   The restitution order is vacated.

       JUDGE FOX concurs.

       JUDGE BERGER dissents.




                                     15
       JUDGE BERGER, dissenting.

¶ 31   I agree with my colleagues that courts are not roving

  commissions to fix defective statutes. Indeed, I recently authored

  two decisions for divisions of this court that refused to rewrite

  statutes to correct perceived legislative errors. People v. Ramirez,

  2018 COA 129; Ray v. People, 2019 COA 24.

¶ 32   In the first, the division rejected the dissent’s attempt to

  rewrite a criminal statute, criminalizing conduct that almost

  everyone would agree should be criminalized but was not. Ramirez,

  ¶¶ 30–32 (“While the result mandated by the statutory language

  likely is undesirable to almost everyone, that does not give us a

  license to improve or rewrite the statute.”). A variety of constraints

  counseled against a judicial rewrite and required us to vacate the

  conviction.

¶ 33   In the second case, the plain language of a statute required

  reports of court orders of mental health commitments to be

  reported to government agencies to prevent those persons from

  purchasing firearms. Ray, ¶ 3. But the statute only authorized

  reports of mental health commitments that were made by court

  orders. Id. at ¶ 20. The plain language of the statute simply did


                                    16
  not encompass reports other than by court order, so the statute

  had to be applied as written — even though, in all likelihood, the

  legislature intended otherwise. Id. at ¶ 23.

¶ 34    This case is different. The differences convince me that the

  majority is wrong. I therefore respectfully dissent.

   I.    The Restitution Statute Should be Liberally and Reasonably
              Construed to Accomplish its Legislative Objective

¶ 35    We are tasked with liberally construing the restitution statute

  to accomplish the legislative objective of compensating crime

  victims for the losses they suffered. People v. McCann,

  122 P.3d 1085, 1087 (Colo. App. 2005). Thus, divisions of this

  court have concluded that the ninety-one-day period is not a

  jurisdictional bar to entry of a restitution order. People v. Harman,

  97 P.3d 290, 293 (Colo. App. 2004). District courts have not only

  “the authority, but the obligation, to order restitution.” People v.

  Knoeppchen, 2019 COA 34, ¶ 21.

¶ 36    There is a reasonable way to read the statute to accomplish

  the legislative objective: when a court extends the time for the

  prosecutor to seek restitution, that extension implicitly constitutes

  good cause for the trial court to decide the motion outside of the



                                    17
  prescribed ninety-one-day period. The majority asserts that the

  trial court did not adequately explain why it delayed entering the

  order.

¶ 37   People v. Knoeppchen demonstrates why a more detailed

  explanation of good cause is unnecessary. There, the defendant

  argued that the district court failed to make a finding of good cause

  before permitting the prosecution’s late request for restitution. Id.

  at ¶ 22. A division of this court reasoned that “nothing in the

  statute explicitly requires the court to make an oral or written

  finding of good cause; rather, the statute merely requires good

  cause to be shown.” Id. at ¶ 25. The division also concluded that

  the good cause showing need not be made at any particular time. 1

  Id. at ¶ 26.

¶ 38   As Chief Judge James B. Boyd cogently observed in his order

  granting restitution in this case, it is senseless to construe this

  statute to bar restitution when the court delays in entering the


  1 So, under Knoeppchen, a court may find good cause even after the
  entry of an untimely restitution order. People v. Knoeppchen,
  2019 COA 34, ¶ 26. This analysis opens another, less-drastic
  disposition for this case — if the majority is concerned with the trial
  court’s good cause finding, then it should remand to the trial court
  for a better explanation.

                                     18
  order in a case like this. If, as here, a trial court grants the

  prosecutor an additional ninety-one days after the date of

  sentencing to request restitution, isn’t that, at a minimum, good

  cause for the court to decide the matter after the ninety-one-day-

  period expires? “[W]here the prosecution timely provides

  information to the court on or just before the ninety-first day, it will

  usually be impossible for the district court to rule on the restitution

  request within the same period.” Knoeppchen, ¶ 22 n.4. Obviously,

  the court needs time to decide the motion after it is filed and any

  briefing is completed. This is sufficient good cause for delaying an

  entry of restitution under the statute.

       II.   The Majority’s Construction Leads to an Absurd Result

¶ 39    “We presume that the General Assembly intends a just and

  reasonable result when it enacts a statute, and we will not follow a

  statutory construction that defeats the legislative intent or leads to

  an unreasonable or absurd result.” People v. Vinson, 42 P.3d 86,

  87 (Colo. App. 2002).

¶ 40    “Although we must give effect to the statute’s plain and

  ordinary meaning, the General Assembly’s intent and purpose must

  prevail over a literalist interpretation that leads to an absurd


                                     19
  result.” People v. Kailey, 2014 CO 50, ¶ 13 (quoting Lagae v.

  Lackner, 996 P.2d 1281, 1284 (Colo. 2000)). Thus, we may reject

  interpretations of statutes when “the resultant absurdity is ‘so gross

  as to shock the general moral or common sense.’” Dep’t of Transp. v.

  City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008) (quoting

  Crooks v. Harrelson, 282 U.S. 55, 60 (1930)).2

¶ 41   Here, the majority’s decision leads to an absurd result that the

  legislature did not intend.

¶ 42   The majority’s unwarranted prohibition on an implied finding

  of good cause to extend the ninety-one-day period is plainly

  inconsistent with the legislative intent of awarding restitution to

  crime victims. Nothing in the statute prohibits an implied

  extension of the time for ruling on the motion. The legislature

  intended trial judges to decide restitution in a timely fashion; the

  legislature could not have intended that no restitution would enter

  if no decision issued in ninety-one days. Simply put, the majority’s

  disposition prevents a crime victim from receiving restitution that is


  2 And further, the General Assembly has, by statute, told us that
  “[i]n enacting a statute, it is presumed that . . . [a] just and
  reasonable result is intended.” § 2-4-201(1)(c), C.R.S. 2019; see
  also § 2-4-203, C.R.S. 2019.

                                    20
  not only timely requested by the prosecutor, but also conceded by

  the defendant.3

           III.   The Majority’s Construction is Irreconcilable
                         With This Court’s Precedent

¶ 43   The majority’s judgment is also irreconcilable with the line of

  cases from this court that hold that a sentence is illegal when it

  does not address restitution. See, e.g., Knoeppchen, ¶ 18. These

  cases recognize that “in all cases in which a defendant’s criminal

  conduct has caused pecuniary damages to a victim, the trial court

  is required to order the defendant to pay restitution and to fix the

  amount of such restitution as part of the judgment.” McCann,

  122 P.3d at 1087.

¶ 44   These cases remanded to the trial court to address restitution

  and correct the illegal sentence, often years after sentence is

  imposed. People v. Dunlap, 222 P.3d 364, 368 (Colo. App. 2009)

  (“[W]e must remand this case to the trial court for the consideration

  and fixing of restitution under the statute that was applicable at the


  3 A reasonable argument can be made that the defendant waived
  any objection to the entry of the restitution order, but I need not
  reach the doctrine of waiver given the availability of a patently
  reasonable construction of the statute that validates the restitution
  order.

                                    21
  time defendant was originally sentenced.”); People v. Smith,

  121 P.3d 243, 251 (Colo. App. 2005) (“Because defendant’s

  sentence was illegal, the trial court did not violate defendant’s right

  to be free from double jeopardy when it ordered restitution on

  remand.”).

¶ 45   If the majority’s analysis were correct, the only possible

  disposition in those cases would have been to direct the trial court

  on remand to enter a restitution award of zero. And even this result

  is legally suspect because trial courts can only enter “no order for

  the payment of restitution” when the court makes “a specific finding

  that no victim of the crime suffered a pecuniary loss.”

  § 18-1.3-603(1)(d), C.R.S. 2019; McCann, 122 P.3d at 1087. Here,

  it is undisputed that the victim suffered pecuniary loss that was

  caused by Weeks.

¶ 46   To combat this contradiction with our prior precedent, the

  majority asserts that “[t]he ninety-one-day deadline does not apply

  to determinations of restitution following an appeal and remand.”

  Supra ¶ 19. In support of this assertion, the majority cites People v.

  Rockne, 2012 COA 198, but that case merely held that the statutory

  deadline did not limit the prosecution’s ability to seek additional


                                    22
  restitution after a prior timely award was already entered. Id. at

  ¶ 18. Rockne does not address the situation like those in Dunlap

  and Smith, where an illegal sentence must be corrected because it

  never included a restitution order. But more importantly, because

  the assertion that the ninety-one-day deadline does not apply to

  determining restitution on remand has no statutory basis, it

  seemingly runs afoul of the majority’s own prohibition against

  adding words to statutes. Supra ¶ 22.

¶ 47   The result of the majority opinion is this: When a trial court

  entirely ignores restitution, and the issue is appealed, the error

  must be corrected on remand without regard to the expiration of the

  ninety-one-day period. But when a restitution award is granted on

  a timely filed request, the award must be vacated when the court

  does not expressly find good cause to make its ruling after the

  ninety-one-day period, or when the finding of good cause is cursory.

  That makes no sense.

       IV.   The Majority’s Decision Will Have Harmful Real-World
                                 Consequences

¶ 48   Finally, the majority opinion leaves prosecutors in uncharted

  waters. By the plain terms of the statute, prosecutors fulfill their



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  responsibility to seek restitution by filing a motion either before

  sentencing or, if information is not readily available, within

  ninety-one days of sentencing. § 18-1.3-603(2). But no longer.

  Now, under the majority’s approach, prosecutors must hound trial

  courts to rule on the motion (or to state explicitly why they are not

  doing so) before the ninety-one-day period expires. Does the

  majority opinion mean that, after the ninety-one days, prosecutors

  must timely appeal the implicit denial of their restitution order?

  Seemingly, yes.

¶ 49   The reality is that many district court judges face crushing

  caseloads that inevitably delay the entry of orders. This is good

  enough a reason why we should not be encouraging prosecutors to

  pepper courts with more motions in the lead up to the ninety-one-

  day deadline. This is also good enough reason why neither the

  General Assembly nor the supreme court in its rulemaking capacity

  has placed fixed time limits for the adjudication of various motions

  or other matters by trial courts; the majority’s inflexible

  construction of this statute does exactly that.

¶ 50   In the end, if the majority’s opinion stands, either because the

  General Assembly does not promptly fix the statute, or the supreme


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  court does not intervene, grave harm will be done to crime victims

  — harm that the restitution statute was explicitly intended to

  remedy. And although the restitution award in this case is

  relatively modest, that will not always be the case.

¶ 51   For all these reasons, I would affirm the trial court’s order

  awarding restitution. I respectfully dissent.




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