     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 12, 2020

                                2020COA39

No. 16CA2203, People v. Martinez-Chavez — Criminal Law —
Sentencing — Restitution

     Defendant appeals the trial court’s order imposing restitution

without a hearing. At sentencing, the People reserved restitution;

after sentencing, the People filed a motion for restitution.

Defendant filed a timely objection to the People’s motion for

restitution and requested a hearing. The People responded to

defendant’s objection. The trial court determined that all of the

objections raised in defendant’s response were legal arguments that

the court could resolve without a hearing, so it did. On appeal,

defendant contends that the trial court erred by resolving the

motion for restitution without an in-person hearing.

     A division of the court of appeals holds that when restitution is

not addressed at a defendant’s sentencing hearing and is instead
reserved at the request of the prosecution, if the defendant timely

objects to the restitution and demands a hearing, then the

defendant is entitled to an in-person hearing on the issue of

restitution. Based on this holding, the division reverses the

restitution order and remands the case for further proceedings,

including a restitution hearing.
COLORADO COURT OF APPEALS                                       2020COA39


Court of Appeals No. 16CA2203
Garfield County District Court No. 14CR56
Honorable Denise K. Lynch, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose C. Martinez-Chavez,

Defendant-Appellant.


                       ORDER REVERSED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE WELLING
                         Terry and Berger, JJ., concur

                           Announced March 12, 2020


Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Inga K. Nelson, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Jose C. Martinez-Chavez, appeals the trial court’s

 order imposing restitution without a hearing. At sentencing, the

 People reserved restitution; after sentencing, the People filed a

 motion for restitution. Martinez-Chavez filed a timely objection to

 the People’s motion for restitution and requested a hearing. The

 People responded to Martinez-Chavez’s objection. The trial court

 determined that all of the objections raised in Martinez-Chavez’s

 response were legal arguments that the court could resolve without

 a hearing, so it did. Martinez-Chavez contends that the trial court

 erred by resolving the motion for restitution without an in-person

 hearing.

¶2    We agree with Martinez-Chavez that the court should have

 held a restitution hearing. We hold that when restitution is not

 addressed at a defendant’s sentencing hearing and is instead

 reserved at the request of the prosecution, if the defendant timely

 objects to the restitution and demands a hearing, then the

 defendant is entitled to an in-person hearing on the issue of

 restitution. Therefore, we reverse the restitution order and remand

 the case for further proceedings, including a restitution hearing.




                                    1
                            I.    Background

¶3    In April 2016, Jose Martinez-Chavez pleaded guilty to one

 count of first-degree assault and one count of attempted sexual

 assault on a child-victim less than fifteen years of age. The events

 underlying his conviction occurred during late 2013 and early

 2014, when he was living with his significant other (whom he

 assaulted) and engaged in sexual conduct with her seven-year-old

 daughter.

¶4    About two months later, Martinez-Chavez was sentenced to

 fourteen years in the custody of the Department of Corrections. At

 sentencing, the prosecutor indicated he had “forgot[ten]” to address

 restitution, telling the court that “there is going to be some[,] likely

 crime victim compensation request and counseling.” Based on this

 representation, the trial court reserved restitution pursuant to

 section 18-1.3-603(1)(b) and (2), C.R.S. 2019, giving the prosecution

 ninety-one days to file a motion for restitution.

¶5    Thereafter, the People timely filed a motion for restitution,

 seeking a total of $8553.40 in restitution in favor of the Ninth

 Judicial District’s Crime Victim Compensation Board (CVCB). The

 request broke down, as follows:


                                     2
                  Category                  Amount

                  Medical Expenses          $357.50

                  Mental Health Therapy $3240.00

                  Rent                     $3050.00

                  Utilities                 $106.25

                  Food Assistance           $300.00

                  Subtotal                 $7053.75

                  Interest                 $1499.65

                  Total                    $8553.40



¶6    Fifteen days later, Martinez-Chavez filed a written objection

 and requested a hearing. His objection began:

           1.   The People filed a Restitution Motion on
           or about August 23, 2016. In that motion, the
           prosecution asks for restitution to the Ninth
           Judicial District Crime Victim Compensation
           Fund for items that the defendant is not legally
           responsible for.

           2.    The defendant demands a hearing on
           restitution as provided by People v. Martinez,
           16 P.3d 223 (Colo. App. 2007).

 Martinez-Chavez also objected to the People’s requests for rent,

 utilities, and food assistance, contending that he cannot be held


                                    3
 responsible for these “loss of support” expenses because he was not

 working at the time these expenses were incurred. In addition, he

 objected to the date that pre-judgment interest began to accrue, as

 well as the post-judgment interest rate that the People requested.

 Finally, he requested that the trial court, pursuant to section 24-

 4.1-107.5, C.R.S. 2019, conduct an in camera review of the CVCB

 records supporting the request for restitution and that the court

 disclose those documents to him.

¶7    Two days later, the People filed a response, arguing that

 Martinez-Chavez’s specific objections should be denied and that his

 request for an in camera review of the CVCB’s documents should be

 quashed.

¶8    The court denied most of Martinez-Chavez’s objections, but

 agreed that food assistance was not covered under the Crime Victim

 Compensation Act (CVC Act) and that interest should accrue only

 from the date the CVCB paid the respective claim. The trial court

 also denied Martinez-Chavez’s request for an in camera review of

 the CVCB records, finding that he did not satisfy his burden of

 providing a non-speculative evidentiary hypothesis for obtaining

 such records. Finally, the trial court found that Martinez-Chavez’s


                                    4
  objection did not warrant a hearing because his “objections are

  legal objections which the Court can rule on without a hearing” and

  that a “hearing would not assist the Court in determining the issues

  before it.” Based on these findings, the trial court entered a

  restitution order in favor of the CVCB in the amount of $6753.75.

  The restitution order reflected the denial of the $300 payment for

  food assistance and the denial of pre-judgment interest.

                              II.   Analysis

¶9     Martinez-Chavez raises three issues on appeal. First, he

  contends that the trial court reversibly erred when it denied his

  request for a hearing on restitution. Second, he contends that the

  2015 amendments to the CVC Act and restitution statutory

  scheme — creating a presumption that payments made by a CVCB

  were proximately caused by a defendant’s conduct while further

  limiting access to those records — are unconstitutional. Third, he

  contends that the prosecution failed to prove by a preponderance of

  the evidence that he was the proximate cause of the losses

  underlying the restitution award.

¶ 10   We agree with Martinez-Chavez’s first contention: he was

  entitled to the hearing he requested. Because we resolve this


                                      5
  appeal on the basis of the erroneous denial of a hearing, we reverse

  and remand this case for a restitution hearing without reaching the

  other two issues.

                          A.    Legal Principles

¶ 11   Criminal defendants must “make full restitution to those

  harmed by their misconduct.” § 18-1.3-601, C.R.S. 2019.

¶ 12   Each judicial district has a CVCB. § 24-4.1-103(1), C.R.S.

  2019. A CVCB is responsible for making compensation awards to

  crime victims and to the relatives of crime victims for losses

  proximately caused by a criminal act. §§ 24-4.1-102(10), -108,

  C.R.S. 2019. Compensable losses include, among other things,

  medical expenses, mental health counseling, and loss of support to

  dependents. § 24-4.1-109(1)(a), (f), (g), C.R.S. 2019.

¶ 13   If a CVCB awards compensation to a victim or other qualifying

  person, the CVCB is eligible to seek and obtain restitution from a

  defendant in his or her criminal proceeding. See § 18-1.3-

  602(4)(a)(IV), C.R.S. 2019 (defining “victim” to include “[a]ny victim

  compensation board that has paid a victim compensation claim”);

  see also People v. Rivera, 250 P.3d 1272, 1275 (Colo. App. 2010)

  (“The restitution statute provides that restitution may be ordered to


                                     6
  any victim compensation board that has paid a victim

  compensation claim.”). Pursuant to a 2015 amendment to the CVC

  Act, the statute further provides that “the amount of assistance

  provided and requested by the crime victim compensation board is

  presumed to be a direct result of the defendant’s criminal conduct

  and must be considered by the court in determining the amount of

  restitution ordered.” § 18-1.3-603(10)(a); see also Ch. 60, sec. 6,

  § 18-1.3-603, 2015 Colo. Sess. Laws 147; People v. Henry, 2018

  COA 48M, ¶ 1.

¶ 14   In a restitution proceeding, the 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. See People v. Randolph, 852 P.2d

  1282, 1284 (Colo. App. 1992); see also People v. Vasseur, 2016 COA

  107, ¶ 15.

                   B.   Right to a Restitution Hearing

¶ 15   Martinez-Chavez contends that the trial court improperly

  denied his request for a hearing on restitution. We agree and

  conclude that the trial court erred by entering its restitution order

  without first conducting the requested hearing.


                                     7
  1.    Martinez Chavez Was Entitled to a Hearing Before Restitution
                             Was Imposed

¶ 16   Restitution is an aspect of sentencing. See, e.g., Vasseur, ¶ 16

  (“Restitution is part of the district court’s sentencing function in

  criminal cases.”). Indeed, a sentence is illegal if a sentencing court

  fails to address restitution. See, e.g., People v. Hernandez, 2019

  COA 111, ¶ 22; People v. Barbre, 2018 COA 123, ¶ 20 (“[U]nder the

  statutory scheme, every order of conviction of a felony,

  misdemeanor, petty offense, or traffic misdemeanor offense ‘shall’

  include an order imposing restitution based on the victim’s

  pecuniary loss proximately caused by the defendant’s conduct.”)

  (quoting §§ 18-1.3-602(3)(a), -603(1), C.R.S. 2019).

¶ 17   The trial court denied Martinez-Chavez’s request for a hearing

  on the basis that his objections were “legal objections which the

  Court can rule on without a hearing” and that a “hearing would not

  assist the Court in determining the issues before it.”

¶ 18   Over the last two decades, however, divisions of this court

  have repeatedly noted that a defendant is entitled to a restitution

  hearing when one is requested. See, e.g., Vasseur, ¶ 15 (“When the

  prosecution presents its evidence at a hearing, a defendant must



                                     8
  have the opportunity to contest the amount of the victim’s loss and

  its causal link to the crime.”); Rivera, 250 P.3d at 1275 (“A court

  may not order restitution without a hearing at which the

  prosecution must prove the amount of the victim’s loss and its

  causal link to the defendant’s conduct, and at which the defendant

  may contest those matters.”); People v. Martinez, 166 P.3d 223, 225

  (Colo. App. 2007) (“We therefore conclude that a court may not

  order restitution without a hearing when the prosecution must

  prove the amount of the victim’s loss and its causal link to the

  defendant, and when defense counsel is present and prepared to

  contest those matters.”); People v. Mata, 56 P.3d 1169, 1176 (Colo.

  App. 2002) (“Here, the court did not determine a restitution amount

  at the sentencing hearing, but a month later simply entered an

  order specifying the amount. Thus, defendant had no opportunity

  to controvert the victim’s claimed monetary damages.”); People v.

  McGraw, 30 P.3d 835, 839 (Colo. App. 2001) (“We conclude,

  however, that defendant had a right to a hearing to contest the

  amount of restitution imposed.”).

¶ 19   The Attorney General points out that none of these decisions

  directly address whether a defendant is entitled to an in-person


                                      9
  hearing when his objection and request for a hearing only raise

  legal arguments in opposition to restitution. True as that may be,

  the Attorney General does not bring a single case to our attention

  where a restitution order has stood where a trial court denied a

  defendant a requested hearing. Nor does the Attorney General cite

  any authority for the proposition that a written objection is an

  adequate substitute for a hearing when the defendant has

  requested such a hearing.

¶ 20   As a threshold matter, the premise of the Attorney General’s

  argument — that Martinez-Chavez only asserted legal objections —

  is belied by the record. In his objection, Martinez-Chavez began by

  asserting that “the prosecution asks for restitution . . . for items

  that the defendant is not legally responsible for.” This is an

  indication that he is disputing causation — a mixed question of law

  and fact, not a purely legal question, that the prosecution bears the

  burden to prove. See, e.g., Randolph, 852 P.2d at 1284. And the

  People’s motion for restitution alone falls short of meeting that

  burden. Specifically, assuming, without deciding, that section 18-

  1.3-603(10) applies in this case, to be entitled to the presumption

  that the amount paid by a CVCB is the “direct result of the


                                     10
  defendant’s criminal conduct,” the prosecution must provide either

  “[a] list of the amount of money paid to each provider” or “[i]f the

  identity or location of a provider would pose a threat to the safety or

  welfare of the victim, summary data reflecting what total payments

  were made for” by category. §§ 18-1.3-603(10)(a), (b)(i)-(ii)

  (emphasis added). In their motion for restitution, the People did not

  provide a list of providers nor did they even argue that disclosure of

  such a list would pose a threat to the safety or welfare of any victim.

  And if subsection 603(10) does not apply, then the motion alone

  falls further short of establishing causation. See, e.g., People v.

  Bohn, 2015 COA 178, ¶ 18 (“However, the fact of payment by a

  CVCB is not determinative of whether restitution should be

  ordered.”), superseded by statute as recognized in Henry, ¶ 20.

¶ 21   Furthermore, we disagree with the proposition that a written

  objection to a motion for restitution is an adequate substitute for an

  evidentiary hearing for three reasons.

¶ 22   First, the function of a hearing is broader than what is

  afforded by an opportunity to file a written objection alone.

  “Generally, a hearing contemplates the right to be present, to put

  forth one’s contentions, and to support those contentions by


                                     11
  evidence and argument.” People v. Duke, 36 P.3d 149, 152 (Colo.

  App. 2001) (citing Westar Holdings Partnership v. Reece, 991 P.2d

  328 (Colo. App. 1999)). Just as the People would be able to present

  additional evidence beyond what is included in their motion, such

  as additional documents or testimony, so too can the defendant at a

  hearing provide additional evidence or argument in opposition to

  restitution beyond that which was included within the four corners

  of his written objection.

¶ 23   Second, because restitution is part of sentencing, there is a

  strong presumption in favor of the defendant being afforded the

  opportunity to be heard in person if requested, not simply in a

  writing filed by counsel. Indeed, a division of this court has

  recently concluded that “sentencing — including imposition of

  restitution — is a critical stage at which a defendant has a due

  process right to be present.” Hernandez, ¶ 24 (emphasis added);

  see also id. at ¶ 23 (collecting cases from other jurisdictions where

  courts have concluded that restitution hearings are a critical stage).

¶ 24   Third, it would be anomalous to conclude that a defendant has

  an absolute right to be heard on the issue of restitution when it is




                                    12
  addressed at sentencing, see, e.g., § 16-11-102(5), 1 but has a more

  limited right to be heard when restitution is reserved at the People’s

  request. Simply put, it makes little sense that a delay at the

  request of the prosecution could impair a defendant’s right to be

  heard.

¶ 25   Accordingly, we conclude that when restitution is reserved at

  the prosecution’s request and the defendant objects to the request

  and demands a hearing, he is entitled to such a hearing. At the

  hearing, the prosecution must carry its burden and the defendant

  may contest the request or otherwise test the prosecution’s

  evidence. Here, the trial court erred by denying Martinez-Chavez

  his properly requested hearing.




  1 See also People v. Johnson, 780 P.2d 504, 508 (Colo. 1989) (“At
  the sentencing hearing the defendant must be given the opportunity
  to controvert the victim’s claimed monetary damages.”); People v.
  Mata, 56 P.3d 1169, 1176 (Colo. App. 2002) (“Under that statutory
  scheme, the defendant is to be given the opportunity, at the
  sentencing hearing, to controvert the victim’s claimed monetary
  damages.”). The Attorney General does not dispute that Martinez-
  Chavez would have had the right to be heard had restitution been
  requested at the time of sentencing.

                                    13
¶ 26        But this does not end our analysis. If the denial of the

  restitution hearing was harmless, then reversal is not required. So

  that is where we turn next.

       2.    The Deprivation of a Restitution Hearing Was Not Harmless

¶ 27        “[W]e review nonconstitutional trial errors that were preserved

  by objection for harmless error.” Hagos v. People, 2012 CO 63,

  ¶ 12. Under this standard, we reverse if the error affected the

  substantial rights of the parties or “affected the fairness of the trial

  proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

  1986)).

¶ 28        We don’t need to look any further than the parties’ briefing on

  appeal to conclude that the denial of a hearing was not harmless.

  Martinez-Chavez’s second issue on appeal is that the 2015

  amendments to the CVC Act and restitution statutory scheme are

  unconstitutional. The People argue that Martinez-Chavez’s

  contention in this regard may only be reviewed for plain error (if at

  all) because he didn’t raise this argument before the trial court.

  Perhaps the reason it wasn’t presented to the trial court is that

  Martinez-Chavez was denied his requested hearing. To put a

  sharper point on it, it strikes us as dissonant to contend, on the


                                        14
  one hand, that the denial of a hearing was harmless, and to argue,

  on the other hand, that the other issues raised on appeal may only

  be reviewed for plain error because they were not presented to the

  trial court.

¶ 29   Moreover, as discussed before, the prosecution did not present

  the information contemplated by section 18-1.3-603(10) to the trial

  court in support of its restitution request. 2 A hearing would have

  both afforded the People an opportunity to present such evidence,

  and Martinez-Chavez the opportunity to contest or otherwise

  challenge such evidence.

¶ 30   Simply put, at the restitution hearing, Martinez-Chavez could

  have, for example:




  2 In his opening brief, Martinez-Chavez contends that the
  “prosecution objected to a hearing and thus chose not to present
  evidence establishing that Mr. Martinez-Chavez owed the claimed
  restitution.” That contention is not supported by the record. While
  it is true that the prosecution responded to each of the
  particularized contentions raised in Martinez-Chavez’s written
  objection, the prosecution did not object to the court conducting a
  restitution hearing. Instead, the court acted on its own, and not at
  the specific urging of the prosecution, in opting to resolve the issue
  of restitution without a hearing.

                                    15
       •     challenged the constitutionality of the 2015 amendments

             to the CVC Act and restitution statutory scheme (as he

             does on appeal);

       •     offered a non-speculative evidentiary hypothesis for the

             in camera review and production of some or all of the

             CVCB records;

       •     presented evidence to contest his liability for loss of

             support;

       •     held the prosecution to its burden to prove causation; or

       •     contested the sufficiency of the prosecution’s evidence.

¶ 31   Accordingly, we conclude that the erroneous denial of

  Martinez-Chavez’s request for a hearing was not harmless.

                         C.     Remaining Claims

¶ 32   Because we are remanding the case to the trial court to

  conduct a restitution hearing, we decline to address Martinez-

  Chavez’s remaining claims, including the challenge to the

  constitutionality of the 2015 amendments to the CVC Act and

  restitution statutory scheme. Hernandez, ¶¶ 44-56 (declining to

  consider similar argument on appeal when the case was remanded

  to the trial court for a new restitution hearing).

                                     16
                            III.   Conclusion

¶ 33   For the reasons set forth above, the restitution order is

  reversed, and the case is remanded for further proceedings,

  including a hearing on the request for restitution.

       JUDGE TERRY and JUDGE BERGER concur.




                                    17
