     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
                                                             August 20, 2020

                               2020COA124

No. 17CA0822, People v. Johnson — Criminal Law —
Sentencing — Restitution — Abatement Ab Initio;
Constitutional Law — Due Process

     In light of Nelson v. Colorado, 581 U.S. ___, ___, 137 S. Ct.

1249, 1257-58 (2017), and People v. Cowen, 2018 CO 96, a division

of the court of appeals revisits the holding in People v. Daly,

313 P.3d 571, 578 (Colo. App. 2011), that the doctrine of abatement

ab initio does not apply to restitution orders. The division

concludes that when a defendant dies while his direct appeal is

pending, as in this case, the doctrine of abatement ab initio

extinguishes everything associated with the case — including the

restitution order — and leaves the defendant as if he had never

been indicted or convicted.
     Accordingly, the division remands the case to the district court

with instructions to abate the defendant’s criminal conviction;

dismiss the charges against him; vacate any orders concerning

costs, fees, and fines; and vacate the restitution order.
COLORADO COURT OF APPEALS                                        2020COA124


Court of Appeals No. 17CA0822
Logan County District Court No. 15CR306
Honorable Charles M. Hobbs, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eddie Wayne Johnson,

Defendant-Appellant.


                              MOTION GRANTED

                                 Division A
                           Opinion by JUDGE YUN
                         Román and Tow, JJ., concur

                         Announced August 20, 2020


Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Eddie Wayne Johnson was convicted of multiple counts of

 securities fraud and theft and adjudicated a habitual criminal. The

 district court sentenced him to a total of forty-eight years in prison

 and ordered him to pay approximately $220,000 in costs, fees, and

 restitution. Johnson timely appealed. Before the appeal could be

 resolved, however, Johnson died.

¶2    Johnson’s counsel filed a motion notifying this court of

 Johnson’s death and requesting the abatement ab initio of all the

 proceedings against him, including his convictions and the

 restitution order. The People object. They concede that the “penal

 aspects” of the judgment of conviction (i.e., Johnson’s sentence and

 “non-restitution fees, fines, or costs”) should be abated. But they

 argue that, under People v. Daly, 313 P.3d 571, 578 (Colo. App.

 2011), and section 18-1.3-603, C.R.S. 2019, the restitution order

 should not be abated because it is a civil judgment that survives

 Johnson’s death.

¶3    Daly was decided in 2011. Subsequent legal authority from

 this and other jurisdictions requires us to reexamine the scope of

 the doctrine of abatement ab initio. We now hold that, when a

 defendant dies while his criminal conviction is pending on direct


                                    1
 appeal, the doctrine of abatement ab initio extinguishes a

 restitution order entered as part of his sentence. We therefore agree

 with Johnson’s counsel that the order of restitution must be

 abated.

       I.    Abatement Ab Initio Extends to Restitution Orders

¶4    For over a century, Colorado has recognized the common law

 doctrine of abatement ab initio. See Overland Cotton Mill v. People,

 32 Colo. 263, 265, 75 P. 924, 925 (1904). Under this doctrine,

 when a defendant dies while his criminal conviction is pending on

 direct appeal, his death “abates not only the appeal but also all

 proceedings had in the prosecution from its inception.” People v.

 Griffin, 2014 CO 48, ¶ 4 (quoting Crooker v. United States, 325 F.2d

 318, 320 (8th Cir. 1963)). “[T]he appeal does not just disappear,

 and the case is not merely dismissed. Instead, everything

 associated with the case is extinguished, leaving the defendant as if

 he had never been indicted or convicted.” Id. (quoting United

 States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004)).

¶5    The doctrine of abatement ab initio rests on two principles. Id.

 at ¶ 5. The first is finality: “an appeal is an integral part of our

 system of adjudicating guilt or innocence and defendants who die


                                     2
 before the conclusion of their appellate review have not obtained a

 final adjudication of guilt or innocence.” Id. (quoting People v.

 Valdez, 911 P.2d 703, 704 (Colo. App. 1996)). The second is

 punishment: the primary purpose of the criminal justice system is

 to punish offenders, and a defendant’s death “renders enforcement

 of the punishment impossible.” Id. at ¶ 6.

¶6    Colorado precedent applying the doctrine of abatement ab

 initio makes clear that, when a defendant dies during the pendency

 of his direct appeal, his conviction and sentence, including fines,

 must be vacated and the indictment dismissed. See, e.g.,

 Crowley v. People, 122 Colo. 466, 467-68, 223 P.2d 387, 388 (1950)

 (ordering an end to “the punishment imposed by the justice of the

 peace,” which included a fine); People v. Lipira, 621 P.2d 1389,

 1390 (Colo. App. 1980) (directing the district court “to set aside the

 judgment of conviction and dismiss the indictment”). It is less

 clear, however, whether the defendant’s death abates a restitution

 order.

¶7    A division of this court addressed that question in Daly,

 313 P.3d at 578, ultimately concluding that the doctrine of

 abatement ab initio “does not apply to civil judgments created by


                                    3
 restitution orders.” The division reached this conclusion based, in

 large part, on its interpretation of section 18-1.3-603(4)(a)(I), which

 states that a restitution order is “a final civil judgment in favor of

 the state and any victim” that “remains in force until the restitution

 is paid in full,” “[n]otwithstanding any other civil or criminal statute

 or rule.” See Daly, 313 P.3d at 576-77. According to the Daly

 division, the legislature intended this statute to create a civil

 judgment that survives a defendant’s death and to which the

 doctrine of abatement ab initio does not apply. Id. at 578.

 Subsequent decisions, in our view, have called this reasoning into

 question.

¶8    In Nelson v. Colorado, 581 U.S. ___, ___, 137 S. Ct. 1249,

 1257-58 (2017), the defendants, both of whom had their convictions

 reversed on appeal, challenged the constitutionality of Colorado’s

 Compensation for Certain Exonerated Persons Act, §§ 13-65-101

 to -103, C.R.S. 2019, under which “a defendant must prove her

 innocence by clear and convincing evidence to obtain the refund of

 costs, fees, and restitution paid pursuant to an invalid conviction.”

 Nelson, 581 U.S. at ___, 137 S. Ct. at 1255. Applying the

 procedural due process test from Mathews v. Eldridge, 424 U.S. 319


                                     4
 (1976), the United States Supreme Court held that, “[w]hen a

 criminal conviction is invalidated by a reviewing court and no retrial

 will occur, the State [is] obliged to refund fees, court costs, and

 restitution exacted from the defendant[s] upon, and as a

 consequence of, the conviction.” Nelson, 581 U.S. at ___, 137 S. Ct.

 at 1252. Once the convictions have been “erased” and the

 defendants’ presumption of innocence “restored,” the Court

 explained, “Colorado has no interest in withholding from [them]

 money to which the State currently has zero claim of right.” Id. at

 ___, ___, 137 S. Ct. at 1255, 1257. In other words, “Colorado may

 not presume a person, adjudged guilty of no crime, nonetheless

 guilty enough for monetary exactions.” Id. at ___, 137 S. Ct. at

 1256.

¶9    The Colorado Supreme Court “[e]xtend[ed] the teachings of

 Nelson” in People v. Cowen, 2018 CO 96, ¶ 36. There, the Court

 held that procedural due process prohibits ordering restitution “for

 losses resulting from conduct of which a defendant has been

 acquitted and as to which he retains the presumption of

 innocence.” Id. at ¶ 38. A year later, a division of the court of

 appeals took this reasoning a step further, concluding that, to


                                    5
  comport with due process, absent a specific plea agreement in

  which the defendant agrees to pay restitution arising out of

  uncharged or dismissed counts, courts may not order restitution for

  losses caused by conduct for which the defendant has never been

  charged or for losses caused by conduct underlying a dismissed

  charge. People v. Sosa, 2019 COA 182, ¶¶ 26-29.

¶ 10   The federal circuit courts, meanwhile, are split on whether the

  doctrine of abatement ab initio applies to restitution orders. The

  Third and Sixth Circuits have limited the doctrine of abatement ab

  initio to the appeal, the conviction, and any fines, allowing

  restitution orders to remain in effect even when the defendant dies

  during the pendency of his direct appeal. See United States v.

  Christopher, 273 F.3d 294, 299 (3d Cir. 2001); United States v.

  Johnson, 937 F.2d 609 (6th Cir. 1991) (unpublished table decision).

  As the Third Circuit explained, restitution is “an equitable

  remedy . . . intended to reimburse a person wronged by the actions

  of another,” and “[t]o absolve the estate from refunding the fruits of

  the wrongdoing would grant an undeserved windfall” to the

  defendant. Christopher, 273 F.3d at 299.




                                     6
¶ 11   But the majority of federal circuit courts have held that the

  doctrine of abatement ab initio applies to restitution orders. See

  United States v. Coddington, 802 F. App’x 373, 375-76 (10th Cir.

  2020); United States v. Ajrawat, 738 F. App’x 136, 139 (4th Cir.

  2018); United States v. Brooks, 872 F.3d 78, 89 (2d Cir. 2017);

  United States v. Volpendesto, 755 F.3d 448, 454 (7th Cir. 2014);

  United States v. Rich, 603 F.3d 722, 729 (9th Cir. 2010); Estate of

  Parsons, 367 F.3d at 415; United States v. Logal, 106 F.3d 1547,

  1552 (11th Cir. 1997). This majority has grown since the United

  States Supreme Court decided Nelson. See, e.g., Ajrawat, 738 F.

  App’x at 139 (overruling an earlier decision and explaining that,

  “[i]n light of Nelson, we can no longer say that an order of

  restitution is an exception to” the doctrine of abatement ab initio).

  As the Ninth Circuit explained,

             [t]he Restitution Order must be abated
             because “the defendant is no longer a
             wrongdoer” once his conviction has abated.
             Just as it is inappropriate to impose
             restitution on a living individual who was
             never indicted or convicted, so it is
             inappropriate to impose restitution on the
             estate of a deceased individual who, in the
             eyes of the law, was never indicted or
             convicted. Abatement ab initio means what it
             says.


                                     7
  Rich, 603 F.3d at 729 (citation omitted).

¶ 12   This precedent — binding authority from the Colorado

  Supreme Court in Cowen and the United States Supreme Court in

  Nelson, as well as persuasive authority from the majority of federal

  circuit courts — convinces us that, when a defendant dies during

  the pendency of his direct appeal, the doctrine of abatement ab

  initio operates to extinguish not only his conviction but “everything

  associated with the case,” including any restitution order. Griffin,

  ¶ 4 (quoting Estate of Parsons, 367 F.3d at 413). Abatement, which

  “leav[es] the defendant as if he had never been indicted or

  convicted,” is thus legally indistinguishable from reversal. Id.

  (quoting Estate of Parsons, 367 F.3d at 413). In either case, the

  conviction is erased and the presumption of innocence restored.

  See Nelson, 581 U.S. at ___, 137 S. Ct. at 1255; Cowen, ¶ 38. We

  therefore respectfully disagree with Daly and conclude that

  restitution orders are subject to abatement ab initio. See People v.

  Smoots, 2013 COA 152, ¶ 20 (stating that one division is not

  obligated to follow another division’s precedent), aff’d sub nom.

  Reyna-Abarca v. People, 2017 CO 15.




                                    8
                II.   Section 18-1.3-603 Does Not Modify
                      the Abatement Ab Initio Doctrine

¶ 13   We are not persuaded otherwise by the People’s contention

  that the restitution statute, § 18-1.3-603, modifies the common law

  doctrine of abatement ab initio.

¶ 14   The People point specifically to section 18-1.3-603(4)(a)(I) and

  (II). Subparagraph (I) states that “[a]ny order for restitution entered

  pursuant to this section is a final civil judgment in favor of the state

  and any victim. Notwithstanding any other civil or criminal statute

  or rule, any such judgment remains in force until the restitution is

  paid in full.” Subparagraph (II), in turn, states,

             [n]otwithstanding the provisions of
             subparagraph (I) of this paragraph (a), two
             years after the presentation of the defendant’s
             original death certificate to the clerk of the
             court or the court collections investigator, the
             court may terminate the remaining balance of
             the judgment and order for restitution if,
             following notice by the clerk of the court or the
             court collections investigator to the district
             attorney, the district attorney does not object
             and there is no evidence of a continuing source
             of income of the defendant to pay restitution.

  According to the People, “[t]hese provisions unambiguously

  contemplate that a defendant’s restitution obligations continue even

  after his death.”


                                     9
¶ 15   We generally construe statutes to be consistent with the

  common law. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).

  Although the General Assembly may modify or abrogate common

  law, we can recognize such changes only when they are clearly

  expressed. Id. Thus, “[s]tatutes in derogation of the common law

  must be strictly construed, so that if the legislature wishes to

  abrogate rights that would otherwise be available under the

  common law, it must manifest its intent either expressly or by clear

  implication.” Id. (quoting Vaughan v. McMinn, 945 P.2d 404, 408

  (Colo. 1997)). Applying this principle, we conclude that neither

  subparagraph (I) nor subparagraph (II) of section 18-1.3-603(4)(a)

  clearly modifies the doctrine of abatement ab initio to exclude

  restitution orders.

¶ 16   First, that a restitution order is “a final civil judgment” under

  section 18-1.3-603(4)(a)(I) does not necessarily save it from the

  operation of the doctrine of abatement ab initio. Section

  18-1.3-603(1) expressly ties a restitution order to a conviction, but

  a defendant’s death during the pendency of his appeal abates his

  conviction and “leav[es] the defendant as if he had never been

  indicted or convicted.” Griffin, ¶ 4 (quoting Estate of Parsons,


                                    10
  367 F.3d at 413). And a defendant who has not been convicted

  retains the presumption of innocence and cannot be ordered to pay

  restitution. Nelson, 581 U.S. at ___, 137 S. Ct. at 1257-58; Cowen,

  ¶ 38; Sosa, ¶¶ 26-28.

¶ 17   Nor are we persuaded by the legislature’s inclusion, in section

  18-1.3-603(4)(a)(I), of the phrase, “Notwithstanding any other civil

  or criminal statute or rule, any such judgment remains in force

  until the restitution is paid in full.” That phrase does not explicitly

  or by clear implication abrogate the common law doctrine of

  abatement ab initio, which is neither a statute nor a rule. Vigil,

  103 P.3d at 327.

¶ 18   Second, applying the doctrine of abatement ab initio to

  restitution orders would not, as the People contend, “render the

  express term of section [18-1.3-]603(4)(a)(II) a nullity.” That

  provision addresses what happens when a defendant dies before

  paying restitution in full, but it does not address the specific

  situation in which a defendant dies during the pendency of his direct

  appeal. When that happens, as discussed above, no valid

  conviction exists and, therefore, due process prevents the state from




                                     11
  collecting restitution. Nelson, 581 U.S. at ___, 137 S. Ct. at

  1257-58; Cowen, ¶ 38; Sosa, ¶¶ 26-28.

¶ 19   We recognize that our conclusion could lead to unjust results

  for crime victims, who will not be able to receive restitution

  payments from the estates of defendants who die during the

  pendency of their direct appeals. But such outcomes are an

  inevitable consequence of the doctrine of abatement ab initio. The

  legislature or the Colorado Supreme Court may, of course, avoid

  such outcomes by abolishing or abrogating the doctrine altogether,

  as other jurisdictions have. See, e.g., State v. Reed, 456 P.3d 453,

  456, 458-59 (Ariz. 2020) (recognizing the Arizona legislature’s

  abolition of the doctrine of abatement ab initio); State v. Al Mutory,

  581 S.W.3d 741, 750 (Tenn. 2019) (judicially abrogating the

  doctrine of abatement ab initio “because it is obsolete, its continued

  application would do more harm than good, and it is inconsistent

  with the current public policy of this State”). Until then, however,

  we are bound by the decisions of the Colorado Supreme Court and

  the United States Supreme Court. See Nelson, 581 U.S. at ___;

  137 S. Ct. at 1257-58; Cowen, ¶ 38.




                                     12
                        III.   Remand Instructions

¶ 20   The case is remanded to the district court with directions to

  abate the criminal conviction; dismiss the charges against Johnson;

  vacate any orders concerning costs, fees, and fines; and vacate the

  restitution order.

¶ 21   After the district court completes the abatement proceedings,

  Johnson’s counsel shall immediately forward a copy of the district

  court’s order to this court. The district court shall construe entry of

  the abatement order as recertification of the matter on appeal.

  Thereafter, this court will dismiss the appeal.

¶ 22   If this matter is not concluded within thirty-five days from the

  date of this order, Johnson’s counsel shall notify this court in

  writing of the status of the district court proceedings. Johnson’s

  counsel shall file status reports every thirty-five days until the

  district court completes the abatement proceedings.

       JUDGE ROMÁN and JUDGE TOW concur.




                                     13
