         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
                                                                April 23, 2020

                                   2020COA72

No. 17CA2267, People v. Roddy — Criminal Law — Sentencing

— Restitution — Assessment of Restitution

     Distinguishing People v. Weeks, 2020 COA 44, a division of the

court of appeals holds that, because the prosecution presented its

restitution request ninety days after defendant’s conviction entered,

seeking hundreds of thousands of dollars in attorney billings, good

cause existed to extend the period for determining restitution so

that the defendant would have the opportunity to object to the

restitution request and the court would have the opportunity to

review and rule on the award.

     The special concurrence highlights the ambiguities in the

wording of section 18-1.3-603, C.R.S. 2019; disagrees with the

Weeks decision; and would conclude that the ninety-one-day time
limit in section 18-1.3-603(1) applies to the prosecution’s

determination of restitution, and not to the court’s authority to

enter a restitution order.
COLORADO COURT OF APPEALS                                        2020COA72


Court of Appeals No. 17CA2267
Boulder County District Court No. 15CR1874
Honorable Maria E. Berkenkotter, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan D. Roddy,

Defendant-Appellant.


                       ORDER REVERSED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division II
                          Opinion by JUDGE TERRY
                              Yun, J., concurs
                          Tow, J., specially concurs

                           Announced April 23, 2020


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

Haddon, Morgan, & Foreman P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver,
Colorado, for Defendant-Appellant
¶1    Defendant, Jonathan D. Roddy, appeals the restitution order

 entered against him by the district court. We reverse the restitution

 order and remand the case to the district court for further

 proceedings.

                           I.   Background

¶2    Defendant’s guilty plea was a result of a complicated series of

 events involving the victim, who was his ex-wife. The following

 allegations were made by the prosecution.

¶3    Defendant and the victim share a child and were divorced in

 2003. Since 2009, defendant and the victim had been engaged in

 litigation regarding parenting time, decision-making authority, and

 child support.

¶4    In a motion to temporarily restrict parenting time, filed in

 2014, defendant included photographs of the inside and outside of

 the victim’s home. Suspicious that the photos had been shot from

 inside her home, the victim hired a forensic photographer to

 investigate the location from which the photographs had been

 taken. The investigator concluded that the photos had been shot

 from inside the house. It was then apparent that defendant had




                                   1
 entered the house without the victim’s permission, in violation of a

 court order, while she was out of town in November 2014.

¶5    The victim also discovered that defendant and his wife were

 using the victim’s son’s iPad to access the victim’s personal emails

 and digital files that were stored in Apple’s “iCloud” storage system.

 Defendant’s wife had downloaded many of the victim’s documents

 from the son’s computer, including her email communications with

 her attorney regarding the domestic relations litigation. The emails

 also included the victim’s communications with her financial

 advisors, accountants, family, and friends. Defendant and his wife

 intended to use the data they obtained against the victim in the

 domestic relations case.

¶6    The victim became involved in protracted litigation with

 defendant and his wife to retrieve her data. She tried to obtain

 permanent protection orders against defendant and his wife, and

 the parties entered into a settlement agreement in which defendant

 and his wife represented and warranted that they had returned all

 of the data, that they did not have any copies of the data, and that

 they would no longer use the data. Shortly thereafter, the victim

 alleged that defendant and his wife were continuing to use the


                                   2
 victim’s data in violation of the agreement. The parties then

 became involved in an arbitration proceeding for breach of the

 settlement agreement, and a contempt proceeding related to the

 domestic relations case.

¶7    Defendant and his wife were each charged in separate cases

 with one count of stalking and one count of computer crime. After

 defendant pleaded guilty in this case to an added count of first

 degree criminal trespass for the November 2014 incident, he was

 given a two-year deferred judgment. About fifteen months after his

 deferred judgment was entered, the trial court ordered him to pay

 restitution of $688,535 to reimburse the victim’s attorney fees and

 investigation costs incurred in connection with defendant’s conduct

 in the civil and criminal proceedings. No restitution was sought or

 ordered in defendant’s wife’s case following her guilty plea to a

 computer crime. Defendant now appeals the court’s restitution

 order.

                      II.   Withdrawn Guilty Plea

¶8    As an initial matter, the People contend that defendant waived

 his right to appeal the restitution order because, as part of the

 deferred judgment, he successfully withdrew his guilty plea and


                                    3
  obtained dismissal of the criminal charge against him, and payment

  of restitution was a condition of that deferred judgment. We

  disagree with the People’s contention.

¶9     Section 18-1.3-603(4)(a)(I), C.R.S. 2019, states that any order

  of restitution is a “final civil judgment in favor of the state and any

  victim[,]” and that “any such judgment remains in force until the

  restitution is paid in full. The provisions of [sections 16-18.5-104

  to -112, C.R.S. 2019,] apply notwithstanding the termination of a

  deferred judgment and sentence . . . .” Our supreme court has held

  that this provision means that dismissal of a charge upon

  completion of a deferred sentence does not deprive the trial court of

  authority to enforce a restitution order. Pineda-Liberato v. People,

  2017 CO 95, ¶¶ 32-33. Given that restitution can be enforced after

  completion of a deferred sentence, and restitution is a separately

  appealable order, see Sanoff v. People, 187 P.3d 576, 578 (Colo.

  2008), it follows that a defendant does not waive his right to appeal

  a restitution order by withdrawing his guilty plea.

¶ 10   Furthermore, the terms of the plea agreement did not indicate

  that defendant waived his right to appeal all non-jurisdictional

  issues related to the restitution order. The plea agreement,


                                     4
  according to the People, simply stated that defendant had sufficient

  income or assets to pay all restitution ordered by the court, and

  that failure to comply would be a violation of the plea agreement.

  Those terms do not address, much less waive, defendant’s appellate

  rights to the restitution order.

¶ 11   We are also not persuaded by the People’s contention that our

  supreme court’s opinions in Neuhaus v. People, 2012 CO 65, and

  Kazadi v. People, 2012 CO 73, warrant a different result. Both

  cases are distinguishable.

¶ 12   Relying on Neuhaus, the People argue that “a defendant’s

  motion to withdraw his guilty plea and dismiss the case pursuant to

  [section] 18-1.3-102 [effects] a waiver of all non-jurisdictional issues

  arising in the context of a deferred judgment and sentence,” and

  that defendant cannot take the benefits of the deferred judgment

  and sentence, but still obtain appellate review of a restitution order.

  We do not read Neuhaus as supporting such an argument. That

  case dealt with conditional guilty pleas. The court there said that a

  guilty plea “‘represents a break in the chain of events which has

  preceded it in the criminal process’ and waives all non-jurisdictional

  errors in the defendant’s conviction, including the seizure of


                                     5
  evidence.” Neuhaus, ¶ 8 (quoting Tollett v. Henderson, 411 U.S.

  258, 266-67 (1973)). Because the setting of restitution did not

  precede the guilty plea, Neuhaus does not support the People’s

  argument.

¶ 13   The People next argue that, under Kazadi, defendant was

  obligated to seek a withdrawal of his plea agreement under Crim. P.

  32(d) before completing his deferred judgment and sentence if he

  wanted to preserve his appellate challenge to the restitution order.

  We disagree. Kazadi, ¶ 20, noted that the parties had agreed that

  “Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty

  pleas involving deferred judgments.” Though a defendant may file a

  motion to withdraw a guilty plea under Crim. P. 32(d), nothing in

  Kazadi requires a defendant to follow that procedure to enable him

  to contest a restitution order.

¶ 14   We therefore conclude that defendant’s appeal of his

  restitution order is properly before us.

                  III.   Timeliness of Restitution Order

¶ 15   Defendant contends that the trial court did not have authority

  to enter the restitution order against him because it was entered




                                     6
  more than ninety-one days after entry of his deferred sentence. We

  disagree.

                         A.   Procedural Background

¶ 16   Defendant entered his guilty plea on July 20, 2016, and the

  court reserved restitution for ninety-one days. The People filed a

  motion for restitution within the ninety-one-day period, requesting

  that the court order restitution of $390,613.90, which represented

  the legal fees and disbursements that the victim made to two

  different law firms.

¶ 17   Defendant filed an objection to the restitution amount and

  requested that the court order the People to set forth a good faith

  basis for the requested restitution. The People filed their response

  in which they requested time to confer with the victim’s civil

  attorney and with defendant’s counsel, and the court granted this

  request.

¶ 18   After the parties met, the People filed a motion in February

  2017 informing the court that the victim’s civil attorney was

  concerned about releasing unredacted invoices because of the

  attorney-client privilege, and that the civil attorney would like to

  have a restitution hearing after resolution of the civil arbitration


                                     7
  hearing, which was scheduled for June 2017. Defendant filed a

  motion to dismiss the People’s restitution request based on the

  delay, and the court ordered a restitution hearing to resolve these

  issues.

¶ 19   In July 2017, before the restitution hearing, the People moved

  to amend the restitution request to $827,236.22, explaining that

  the increase resulted from the victim’s ongoing civil litigation with

  defendant. The People later filed affidavits supporting a reduced

  restitution amount of $688,535.12. The reduced amount

  accounted for attorney fees and costs that the victim had received

  in the contempt litigation. The People provided defendant’s counsel

  with redacted billing records to preserve the victim’s attorney-client

  privilege.

¶ 20   After a two-day hearing, the court ordered defendant to pay

  restitution of $688,535.12.

                                B.   Analysis

¶ 21   Every order of conviction for a felony shall include

  consideration of restitution. § 18-1.3-603(1). Each such order

  shall include one or more of the following:




                                     8
               (a) An order of a specific amount of
                   restitution be paid by the defendant;
               (b) An 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;
               (c) An order, in addition to or in place of a
                   specific amount of restitution, that the
                   defendant pay restitution covering the
                   actual costs of specific future treatment
                   of any victim of the crime; or
               (d) Contain a specific finding that no victim
                   of the crime suffered a pecuniary loss and
                   therefore no order for the payment of
                   restitution is being entered.

  § 18-1.3-603(1).

¶ 22   An order for restitution may also be increased if “additional

  victims or additional losses not known to the judge or the

  prosecutor at the time the order of restitution was entered are later

  discovered and the final amount of restitution due has not been set

  by the court.” § 18-1.3-603(3)(a).

¶ 23   Defendant contends that, under Meza v. People, 2018 CO 23,

  and People v. Turecek, 2012 COA 59, the court lacked authority to

  enter its October 20, 2017, restitution order because it did so after

  its statutory authority expired. He argues that the court was bound


                                       9
  by the ninety-one-day limit in section 18-1.3-603(1). He also

  asserts that the People never argued, and the district court never

  found, that good cause existed for extending the time period. The

  People counter that the ninety-one-day period limits only the time

  within which the prosecution must present its restitution request.

  We conclude that the court had authority to enter the restitution

  order.

¶ 24   A division of this court recently addressed this issue and held

  that a district court is obligated to order a specific amount of

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

  extend that deadline. People v. Weeks, 2020 COA 44, ¶¶ 13-15.

¶ 25   Assuming, without deciding, that the statutory ninety-one-day

  time limit applies to the period within which the court must enter an

  order for a specific amount of restitution, we conclude that the

  district court here had authority to enter an order for restitution

  after the ninety-one-day deadline because good cause existed to

  extend the time period. See Meza, ¶¶ 13-14 (referring to a court’s

  findings within ninety-one days but recognizing statutory extension

  of that time “for good cause”); Weeks, ¶ 20 (same); People v.

  Knoeppchen, 2019 COA 34, ¶ 20 (same); Turecek, ¶ 13 (same).


                                    10
¶ 26   The court found that good cause had been shown to allow the

  People to file their amended restitution requests because the victim

  continued to incur and pay attorney fees. Given this good cause

  finding, the court must necessarily have found good cause to

  likewise extend its own determination of restitution. See § 18-1.3-

  603(1)(b) (empowering court to rely on a showing of good cause to

  extend the time period by which the restitution amount “shall be

  determined”); see also Knoeppchen, ¶¶ 25-26 (noting that nothing in

  the restitution statute explicitly requires the court to make a finding

  of good cause, the statute merely requires good cause to be shown,

  and the statute does not dictate when a showing or finding of good

  cause must be made).

¶ 27   Furthermore, the record supports that there was good cause

  to extend the time under section 18-1.3-601(1)(b). See

  Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist.,

  271 P.3d 587, 589 (Colo. App. 2011) (“[W]e may affirm a trial court’s

  ruling on any grounds that are supported by the record.”). As the

  court found, the victim sought attorney fees and costs incurred as a

  result of the charged conduct, and she continued to incur and pay

  ongoing fees and costs. The prosecution filed an initial request for


                                    11
  restitution ninety days after the deferred judgment was entered, as

  permitted by statute. In a case where such a high amount of

  restitution was sought based on complex facts, the prosecution’s

  timing was not surprising.

¶ 28   After expiration of the ninety-one-day statutory period,

  defendant filed a “Motion to Compel People to Set Forth Good Faith

  Basis for Pecuniary Loss Pursuant to C.R.S. 18-1.3-601 et seq. and

  Objection to Restitution.” Had the court ordered restitution within

  ninety-one days, it would have provided defendant an inadequate

  opportunity to lodge objections — a situation that would have been

  grossly unfair to defendant, especially given the size and complexity

  of the restitution demand. See Weeks, ¶ 20 (“[I]f 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 . . . .”).

¶ 29   We conclude that the court did not err in finding good cause,

  and, thus, the court had authority to enter the order. That good

  cause finding renders this case distinguishable from Turecek and

  Meza, cited by defendant. See Turecek, ¶¶ 14-15 (because


                                     12
  prosecution did not determine a specific amount of restitution

  within then-applicable ninety day period, prosecution’s initial

  restitution request was merely an estimate, and record did not

  establish that good cause existed for prosecution’s delay in

  determining restitution, district court erred in imposing restitution

  as requested by prosecution); see also § 18-1.3-603(3)(a) (permitting

  increase in the amount of restitution for additional losses “not

  known to the judge or the prosecutor at the time the order of

  restitution was entered”); Meza, ¶¶ 13-14 (noting statutory

  requirement to determine restitution within ninety-one days or

  longer if good cause is shown).

                         IV.   Proximate Cause

¶ 30   Defendant next argues that the court erred in concluding that

  his unlawful conduct proximately caused the victim’s losses

  because he pleaded guilty only to the physical trespass of her home

  and did not plead guilty to any computer crimes. Because we agree

  with defendant’s contention to the extent the restitution amounts

  were unrelated to the physical trespass, we reverse the restitution

  order and remand for the district court to award restitution only for

  the losses proximately caused by his conduct.


                                    13
¶ 31   Restitution is defined as “any pecuniary loss suffered by a

  victim.” § 18-1.3-602(3)(a), C.R.S. 2019. Restitution includes

  losses or injuries proximately caused by an offender’s conduct and

  that can be reasonably calculated and recompensed in money. Id.

  The prosecution bears the burden of establishing the restitution

  amount by a preponderance of the evidence. See § 18-1.3-603(2);

  People v. Martinez, 2015 COA 37, ¶ 30. “In the context of

  restitution, proximate cause is a cause which in natural and

  probable sequence produced the claimed injury and without which

  the claimed injury would not have been sustained.” People v. Sieck,

  2014 COA 23, ¶ 6.

¶ 32   Proximate cause can be found where the victim incurs

  expenses to avoid or mitigate the consequences of a specific and

  ongoing threat related to the offender’s unlawful conduct, rather

  than merely to mitigate against a general feeling of insecurity.

  Martinez, ¶¶ 35-38; People in Interest of D.W., 232 P.3d 182, 185

  (Colo. App. 2009).

¶ 33   Our supreme court recently held that conduct underlying an

  acquitted charge cannot serve as the basis for a restitution order.

  Cowen v. People, 2018 CO 96, ¶ 24. The court based its decision on


                                    14
  an interpretation of the restitution statutes and concluded that the

  statutes limit restitution liability “to individuals found guilty of

  causing injury or property loss that resulted in suffering or

  hardship to victims harmed by their misconduct.” Id. at ¶ 19.

¶ 34   A division of this court extended Cowen to hold that

  procedural due process does not allow a court to order a defendant

  to pay restitution based on losses caused by uncharged conduct.

  People v. Sosa, 2019 COA 182, ¶¶ 26-27. The division also

  addressed dismissed charges and reasoned:

             Unlike uncharged conduct, a dismissed charge
             is based on conduct for which an individual
             has been criminally charged. But like
             uncharged conduct, when a charged count is
             dismissed, an individual cannot be found
             guilty of (or plead guilty to) that crime. She
             cannot be deemed an “offender” as to the
             dismissed count, the conduct underlying the
             dismissed count cannot be deemed the
             “conduct of an offender,” and no person can be
             considered a victim as to that conduct. And
             she retains the presumption of innocence as to
             the dismissed count. Thus . . . no court may
             order restitution for losses proximately caused
             by conduct underlying a dismissed charge.
             Due process so requires.

  Id. at ¶ 28 (citations omitted).




                                      15
¶ 35   The division noted that its decision does not prevent the

  prosecution and the defense from entering into a plea agreement

  that allows the dismissed counts to be considered for restitution

  purposes. Id. at ¶ 29. We agree with the Sosa division’s reasoning

  and see no reason to depart from it.

¶ 36   Here, the deferred judgment agreement did not detail the

  charges for which defendant would be required to pay restitution.

  The agreement merely said that “defendant agrees that he has a

  sufficient amount of income and/or assets to pay all of the

  restitution and fees ordered by the court.” The record does not

  indicate whether defendant was aware that he would be liable for

  restitution for the dismissed charges when he entered his guilty

  plea. But to the extent the People argue that defendant is

  responsible to pay these items as a complicitor, we reject that

  notion, because he did not plead or otherwise admit to being

  complicit in his wife’s conduct.

¶ 37   We conclude that under these circumstances, defendant is

  only liable for restitution for the losses caused by the conduct to

  which he pleaded guilty. See Sosa, ¶ 28; Cowen, ¶ 19. We

  therefore remand to the district court to determine which of the


                                     16
  losses that were presented by the prosecution at the restitution

  hearing were proximately caused by defendant’s trespass onto the

  victim’s property, and to issue a new restitution order accordingly.

  The prosecution may not introduce any evidence that was not

  previously presented to the court.

                      V.   Attorney-Client Privilege

¶ 38   Defendant next contends that the trial court erred in

  concluding that the attorney-client privilege applied to the victim’s

  attorney billing records. He further contends that, if the privilege

  did apply, the victim waived it by placing the records at issue. We

  agree in part.

¶ 39   We note that our holding — that restitution may not be

  ordered with respect to conduct for which defendant was not

  convicted or did not agree to be responsible in a guilty plea —

  renders the court’s previous restitution award obsolete, and to the

  extent some of the billing records relate only to conduct for which

  he was not convicted, those records are irrelevant.

¶ 40   To the extent the prosecution continues to seek restitution, we

  provide the following guidance to the court on remand.




                                    17
¶ 41   The attorney-client privilege operates to protect

  communications between attorneys and clients relating to legal

  advice, § 13-90-107(1)(b), C.R.S. 2019; Wesp v. Everson, 33 P.3d

  191, 196 (Colo. 2001).

¶ 42   Any descriptions of the tasks performed by counsel that may

  be contained in the bills could be attorney-client privileged

  information. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 402-

  03 (4th Cir. 1999) (billing records that reveal specific research or

  litigation strategy would be entitled to protection from disclosure);

  Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir.

  1992) (“time records which also reveal the motive of the client in

  seeking representation, litigation strategy, or the specific nature of

  the services provided, such as researching particular areas of law,

  fall within the [attorney-client] privilege.”); Levy v. Senate of

  Pennsylvania, 65 A.3d 361, 373 (Pa. 2013) (billing records that

  contain descriptions of legal services that address the client’s

  motive for seeking counsel, legal advice, strategy, or other

  confidential communications are undeniably protected under the

  attorney client privilege).




                                      18
¶ 43   To the extent the victim or her counsel disclosed the billing

  records with task descriptions to the prosecution, or to the

  prosecution’s expert witness who opined on their reasonableness,

  and those billing records are still in issue with respect to

  restitution, any attorney-client privilege was waived as to those

  records. See Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d

  533, 543 (Colo. 1989) (recognizing that attorney-client privilege may

  be waived if, “by words or conduct, [the privilege holder] has

  expressly or impliedly forsaken his claim of confidentiality” with

  respect to the information in question).

¶ 44   We see no basis to conclude that the prosecution or its expert

  could be in privity with the victim for purposes of the attorney-client

  privilege. The privilege extends only to matters communicated by or

  to an attorney’s client in the course of gaining counsel, advice, or

  direction with respect to the client’s rights or obligations. § 13-90-

  107(1)(b); Wesp, 33 P.3d at 196; Gordon v. Boyles, 9 P.3d 1106,

  1123 (Colo. 2000); see also Lanari v. People, 827 P.2d 495, 499

  (Colo. 1992) (“[T]he privilege applies only to statements made in

  circumstances giving rise to a reasonable expectation that the

  statements will be treated as confidential.”). “[I]f a communication


                                    19
  to which the privilege has previously attached is subsequently

  disclosed to a third party, then the protection afforded by the

  privilege is impliedly waived.” Wesp, 33 P.3d at 198. Thus, the

  privilege does not apply to billing records that have been so

  disclosed.

¶ 45   To the extent (1) the prosecution, on remand, continues to

  seek restitution for the victim’s attorney fees, (2) the attorney task

  descriptions in the applicable billing records have not been

  previously disclosed to the prosecution or the expert witness, and

  (3) attorney-client privilege is claimed as to those descriptions, the

  prosecution must produce redacted copies of the subject bills to the

  defense. If the defense objects to the redactions, and the

  prosecution declines to produce additional information from the

  victim about the redactions, the district court must examine those

  task descriptions in camera to determine whether they are subject

  to the attorney-client privilege. See id. at 197-98 (“No blanket

  privilege for all attorney-client communications exists. Rather, the

  privilege must be claimed with respect to each specific

  communication and, in deciding whether the privilege attaches, a

  trial court must examine each communication independently.”); see


                                     20
  also People v. Madera, 112 P.3d 688, 691 (Colo. 2005) (privilege is

  waived only to the extent necessary to give opponent a fair

  opportunity to defend against it).

¶ 46     If the court, after in camera review, determines that any

  particular attorney fee item is likely subject to payment as

  restitution, it should order the prosecution to provide the defense

  with at least some description of the task performed by counsel, so

  that defendant has a fair opportunity to review and challenge the

  propriety of ordering him to pay it as restitution.

                    VI.   Due Process and Public Policy

¶ 47     Defendant contends that multiple alleged errors violated his

  right to due process and contravened public policy.

        Defendant contends that it was fundamentally unfair for the

         court to enter an order based on amounts that were unclear

         and were constantly revised. Because we are reversing the

         court’s order and remanding for further consideration of

         restitution, we need not address this contention.

        Defendant next contends that the prosecution abdicated its

         constitutional and statutory responsibility to independently

         determine whether restitution is proper by relying on the


                                       21
         victim’s civil attorney’s representations. We disagree. The

         prosecution is statutorily required to compile all information

         pertaining to restitution “through victim impact statements or

         other means.” § 18-1.3-603(2). We see no error in the

         prosecution’s reliance on assistance from the victim’s counsel

         in determining her losses.

        Defendant also argues that he should have been provided with

         the email communications between the prosecution and the

         victim’s civil attorney because they would have shed light on

         the basis of the restitution request and on whether the

         prosecution independently determined that restitution was

         proper. To the extent this issue remains relevant on remand,

         given our rulings, the district court must determine whether

         and to what extent such disclosure should be granted.

                              VII. Conclusion

¶ 48     The restitution order is reversed and the case is remanded to

  the district court for further proceedings.

         JUDGE YUN concurs.

         JUDGE TOW specially concurs.




                                      22
       JUDGE TOW, specially concurring.

¶ 49   I agree that the district court had jurisdiction to order

  restitution in this case and that Jonathan D. Roddy can only be

  ordered to pay restitution for pecuniary losses that were

  proximately caused by the conduct to which he pleaded guilty.

  However, I write separately to address the need for clarification or

  re-assessment of the restitution statute by both the Colorado

  Supreme Court and the legislature.

                 I.   The Process of Reserving Restitution

                           A. The Historical View

¶ 50   As the majority notes, there are four proper ways for a

  sentencing court to address restitution at the time of sentencing: (1)

  order a specific amount; (2) order that the defendant is obligated to

  pay restitution, but defer establishing the actual amount; (3) order

  that the defendant is obligated to pay the actual costs of specific

  future treatment for the victim; or (4) find that no victim suffered a

  pecuniary loss and thus no restitution is owed. § 18-1.3-603(1),

  C.R.S. 2019. The second of these options — deferment — requires

  that the amount of restitution “shall be determined within the

  ninety-one days immediately following the order of conviction,


                                    23
  unless good cause is shown for extending the time period by which

  the restitution amount shall be determined.” § 18-1.3-603(1)(b)

  (emphasis added).

¶ 51   Notably, this subsection of the statute does not explicitly

  identify who is “determining” the amount for purposes of this

  deadline. But the next subsection of the statute references how,

  and by whom, restitution is “determined”:

             The 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 determine the amount of
             restitution and the identities of the victims.
             Further, 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.
             The court may extend this date if it finds that
             there are extenuating circumstances affecting
             the prosecuting attorney’s ability to determine
             restitution.

  § 18-1.3-603(2). Thus, at least for purposes of this paragraph, it is

  clear that the prosecutor “determines” the amount of restitution

  and the identities of the victims.

¶ 52   Despite this language, our appellate courts have routinely

  stated, or at least assumed, that the determination of restitution



                                       24
  referenced in section 18-1.3-603(1)(b) is a different act than the

  determination of restitution referenced in section 18-1.3-603(2).

  Recently, for example, a division of this court explicitly held that the

  earlier paragraph places the onus of determining the amount of

  restitution within ninety-one days on the sentencing court. People

  v. Weeks, 2020 COA 44, ¶ 13.

¶ 53   Several other divisions have at least assumed that to be the

  case. In People v. Harman, 97 P.3d 290, 293 (Colo. App. 2004), a

  division of this court rejected a claim that the ninety-one-day

  provision was jurisdictional. In doing so, the division observed that

  “[t]he General Assembly set forth separate standards for accepting

  the late presentation of restitution information by the prosecutor

  and for the late determination of the restitution amount.” Id.

¶ 54   In People v. Turecek, 2012 COA 59, ¶ 13, a division of this

  court held that the statute “mandates the determination of the

  specific amount of restitution within ninety days of the order of




                                    25
  conviction and provides an exception only if good cause to extend

  that time period is shown.”1

¶ 55   And in People v. Knoeppchen, 2019 COA 34, ¶ 19, the division

  stated that when the determination of restitution has been reserved,

  “the statute requires the amount of restitution to be established

  within ninety-one days.” However, in a footnote, the division

  observed that making the deadline for the prosecution to provide

  the court with restitution information the same as the deadline for

  the court to set the amount of restitution creates an inconsistency

  such that the sentencing court in many, if not most, situations

  would not be able to rule by the ninety-first day. Id. at ¶ 19 n.4.2

¶ 56   Our supreme court has never been directly asked to resolve

  this question, but has made observations similar to those in Weeks,



  1 Subsequent to the entry of the order on appeal in People v.
  Turecek, 2012 COA 59, the time periods in the statute were
  amended from ninety to ninety-one days. Ch. 208, sec. 112, § 18-
  1.3-603, 2012 Colo. Sess. Laws 866-67.
  2 I acknowledge that I was the author of the division’s opinion in

  People v. Knoeppchen, 2019 COA 34. Since noting what at the time
  I viewed as an apparent inconsistency in the statute, however, I
  have come to the conclusion, for reasons set forth in this special
  concurrence, that this perceived inconsistency was actually an
  indication that the prevailing interpretation of the statute was
  incorrect.

                                    26
  Harman, Turecek, and Knoeppchen reflecting at least an assumption

  that the deadline in section 18-1.3-601(1)(b) applies to the court.

¶ 57   For example, in Sanoff v. People, 187 P.3d 576, 578 (Colo.

  2008), the court explained that this provision, originally enacted in

  2000, altered the statutory process for establishing criminal

  restitution. Before this enactment, the amount of restitution had to

  be fixed at the time of sentencing and included on the mittimus. Id.

  The new statute, though still requiring that the order of conviction

  include some consideration of restitution, authorized the sentencing

  court to “postpone a determination of the specific amount of

  restitution.” Id.

¶ 58   The supreme court again addressed this scheme in two

  companion cases involving the sentencing court’s ability to modify

  restitution once ordered. People v. Belibi, 2018 CO 24; Meza v.

  People, 2018 CO 23. In Belibi, the court stated that “the current

  statutory scheme permits a criminal court, under certain

  circumstances, to order a defendant obligated to pay restitution and

  yet order that the specific amount of restitution be set within

  ninety-one days.” Belibi, ¶ 7. Notably, this language was qualified




                                    27
  with the phrase “[a]s we described more fully in Meza v. People,

  2018 CO 23, ___ P.3d ___, also reported today by this court.” Id.

¶ 59   In Meza, however, the court was not as direct. In fact, the

  court seemed to use different nomenclature to refer to the

  sentencing court’s act of establishing a restitution amount. For

  example, the court observed that the 2000 legislation “altered

  existing law by relieving the sentencing court of its obligation to set

  the amount of restitution at the time of sentencing.” Meza, ¶ 10

  (emphasis added). Similarly, in discussing how a court might be

  faced with altering a non-final restitution amount, the court stated,

  “[t]he statutory scheme therefore allows for specific amounts of

  restitution to be determined and ordered at sentencing, without

  their necessarily representing the ‘final amount’ to be set by the

  court.” Id. at ¶ 15 (emphasis added). In other words, Meza appears

  to recognize the difference between the determination of the amount

  of restitution and the trial court’s act of setting or ordering that

  amount. Indeed, the court also stated that “the statutory scheme

  does not explicitly limit the circumstances under which a

  sentencing court may postpone until after conviction a final

  determination of the specific amount of restitution owed by the


                                     28
  defendant.” Id. at ¶ 11. This language is difficult to reconcile with

  an interpretation of the ninety-one-day deadline in section 18-1.3-

  603(1)(b) as applying to the sentencing court.

                        B. A Different Interpretation

¶ 60   Significantly, the issue of whether this particular ninety-one-

  day deadline applied to the sentencing court’s act of entering an

  order imposing restitution or merely to the prosecution’s act of

  providing restitution information to the sentencing court was not

  before the supreme court in Sanoff, Belibi, or Meza. In Sanoff, the

  issue was solely whether the filing of a direct appeal of a judgment

  of conviction divested the sentencing court of jurisdiction to order a

  specific amount of restitution while the appeal was pending.

  Sanoff, 187 P.3d at 577. In Belibi and Meza, the issue was not

  whether the sentencing court ruled (or was required to rule) within

  ninety-one days, but rather whether it could change the amount of

  restitution previously ordered. Belibi, ¶ 2; Meza, ¶ 2.

¶ 61   Thus, in my view, the language in each of these cases

  appearing to state that the time period in section 18-1.3-603(1)(b)

  establishes a deadline by which the court must fix the amount of

  restitution was dictum. As such, this language does not


                                    29
  conclusively resolve the interplay between section 18-1.3-603(1)(b)

  and 18-1.3-603(2).3 Moreover, I believe the dicta in these opinions

  reflect an illogical reading of the statute. For similar reasons, I

  respectfully disagree with the division’s holding in Weeks, and with

  the assumptions and observations made in the other cases

  discussed above.

¶ 62   The first reason for my disagreement is rooted in the canon of

  statutory interpretation that counsels us to “ascribe the same

  meaning to the same words occurring in different parts of the same

  statute, unless it clearly appears therefrom that a different meaning

  was intended.” Everhart v. People, 54 Colo. 272, 276, 130 P. 1076,

  1078 (1913); see also Berthold v. Indus. Claim Appeals Office, 2017

  COA 145, ¶ 35.

¶ 63   As noted, both subsection (1)(b) and subsection (2) of the

  statute refer to “determining” restitution. The latter, two separate

  times, explicitly places the obligation to determine restitution on the


  3 To the extent this language was not dicta, I urge the supreme
  court to take a fresh view of its interpretation of the restitution
  statute. The lack of clarity in this area has resulted in a significant
  increase in appellate claims involving the sentencing court’s
  authority and jurisdiction to enter restitution orders outside the
  ninety-one-day period.

                                     30
  prosecuting attorney. First, it provides that the prosecuting

  attorney “shall compile such information through victim impact

  statements or other means to determine the amount of restitution

  and the identities of the victims.” § 18-1.3-603(2) (emphasis

  added). Then it states that the court may extend the deadline for

  submitting the information “if it finds that there are extenuating

  circumstances affecting the prosecuting attorney’s ability to

  determine restitution.” Id. (emphasis added).

¶ 64   To the contrary, subsection (1)(b) does not impose the duty to

  determine restitution upon the court. Rather, it provides one way

  in which the court may discharge its obligation to address

  restitution in the judgment of conviction, that being to enter an

  order that restitution is owed “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).

¶ 65   The word “determine” should be given the same meaning

  throughout the statute — i.e., the process of identifying the amount




                                    31
  of restitution and the victims to which it is owed.4 There is nothing

  in the statute to suggest the legislature intended otherwise. Indeed,

  as noted in Knoeppchen, to read the provisions as if one refers to

  the prosecutor’s gathering of the information to present to the court

  and the other refers to the sentencing court’s ultimate resolution of

  the request based on that information would set up a frequent

  conflict in that the court would often be left with little to no time to

  rule without giving the defendant an opportunity to respond to the

  request. It would seem odd for the legislature to provide for a “good

  cause” extension when the need for such an extension would

  appear to be the rule and not the exception.5

¶ 66   Significantly, within this same statute, the legislature used a

  different term than “determine” when referring to the sentencing



  4 Of course, the ultimate act of fixing the amount owed falls to the
  court, after providing the defendant with an opportunity to
  challenge the prosecuting attorney’s “determination” of the amount
  and holding the prosecution to its burden of proving the accuracy of
  its determination by a preponderance of the evidence. See People v.
  Martinez, 166 P.3d 223 (Colo. App. 2007).
  5 To the extent the historical interpretation continues to hold sway,

  the legislature may wish to address this structure to avoid trial
  courts being put in an unworkable situation or feeling forced to rule
  quickly, potentially at the expense of the defendant’s opportunity to
  be heard on the issue.

                                     32
  court’s act of establishing the final amount of restitution. In

  particular, the statute provides that if additional victims or losses

  are later discovered, the sentencing court may increase the amount

  of restitution provided that “the final amount of restitution due has

  not been set by the court.” § 18-1.3-603(3)(a) (emphasis added).

  Thus, while the sentencing court “sets” the final amount of

  restitution, it does so based on the prosecutor’s “determination.”

  But only the latter must be accomplished (absent a showing of good

  cause or extenuating circumstances as applicable) within

  ninety-one days.

¶ 67   Moreover, contrary to the division’s view in Weeks, this

  construction does not “render section 18-1.3-603(1)(b) superfluous

  of the language in section 18-1.3-603(2).” Weeks, ¶ 14. The two

  provisions serve different purposes. The first paragraph requires

  the court to expressly include consideration of restitution in the

  judgment of conviction. It is important to remember that this

  paragraph never says “the court shall determine restitution within

  ninety-one days.” Rather, it merely says that, when a court is

  deferring restitution, the order of conviction must include specific




                                    33
  language, i.e., that restitution shall be determined within that time

  frame (or some other time frame upon a showing of good cause).

¶ 68   The second paragraph explains how the amount of restitution

  (if any) is arrived at. Note that the process by which the

  prosecuting attorney determines the restitution and the identity of

  the victims, as set forth in subsection (2), applies whether the court

  is deferring restitution, ordering restitution on the day of

  sentencing, ordering restitution for a particular future treatment, or

  finding that no restitution is owed.

¶ 69   Nor is it either a superfluity or an inconsistency that the

  legislature established two different standards to obtain an

  extension of the ninety-one-day deadline, because the assessment

  addresses the need for additional time at two different points in the

  process. The first provision allows the court to determine at the

  time it enters the order of conviction that there is good cause for

  granting an initial period of deferral longer than ninety-one days.

  The second provision allows for an additional deferment period, but

  to warrant this additional time requires a different showing —

  “extenuating circumstances.” § 18-1.3-603(2). At these two

  different points on the timeline, both the reasons underlying the


                                    34
  need for additional time and the impact of additional delay on

  defendants and victims may be different. Accordingly, it is not

  unusual that the legislature chose to impose different standards for

  the two requests. Consequently, this view of the statute actually

  avoids making any of the language superfluous. See People v. Null,

  233 P.3d 670, 679 (Colo. 2010) (Appellate courts “avoid

  interpretations that would render any words or phrases superfluous

  or would lead to illogical or absurd results.”)

¶ 70   Moreover, this interpretation differs from the historically held

  view of the statute in that it avoids the nearly unworkable conflict

  created when the two ninety-one-day provisions are read to apply to

  different acts (the prosecution’s provision of the information and the

  court’s ultimate decision imposing restitution). Also, the historical

  view increases the possibility that a victim loses the right to

  restitution, and a defendant avoids responsibility to pay it, merely

  because a trial court does not act within the relatively short time

  period. Instead, by reading the statute as imposing deadlines by

  which the prosecution must act, but granting the court the

  flexibility to adjust those deadlines, this construction serves the

  purposes of the statute, which include imposing restitution as “a


                                     35
  mechanism for the rehabilitation of offenders,” deterring “future

  criminality,” ensuring full restitution for victims of crime in the

  most expeditious manner, and “aid[ing] the offender in reintegration

  as a productive member of society.” See § 18-1.3-601(1)(c), (1)(d),

  (1)(g)(I), (2), C.R.S. 2019. This statutory construction is thus more

  consistent than the historical view with the legislative mandate that

  the restitution statute “be liberally construed to accomplish” these

  purposes. § 18-1.3-601(2).

¶ 71   Under this interpretation, having reserved restitution for

  ninety-one days,6 the court could extend the initial deadline based

  on “extenuating circumstances affecting the prosecuting attorney’s

  ability to determine restitution.” § 18-1.3-603(2). Such

  circumstances are more than sufficiently shown by the fact that the

  claimed restitution was based on expenses arising out of ongoing

  legal battles allegedly caused by Roddy’s conduct, and thus were a



  6 I note that at the time of the plea the prosecution made no
  representation that restitution information was “not available prior
  to the order of conviction.” § 18-1.3-603(2), C.R.S. 2019. However,
  because Roddy does not challenge the sentencing court’s initial
  decision to reserve restitution, neither I nor the majority need
  address that issue.


                                     36
continually moving target.7 Thus, I agree, albeit for reasons

different than the majority, that the sentencing court had the

authority to enter a restitution order outside of the ninety-one-day

window.




7 The fact that the majority holds — and I agree — that most if not
all of these legal expenses were ultimately not chargeable to Roddy
does not impact whether the circumstances interfering with the
prosecutor’s ability to gather the information to support the
restitution claim were sufficiently extenuating to warrant the
deadline extension.

                                 37
