County District Court No. 10CR686. Honorable Thomas M.
H. Coffman, Attorney General, Jillian J. Price, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Megan Marlatt,
Deputy State Public Defender, Grand Junction, Colorado, for
J., concurs. Graham, J., specially concurs.
[¶1] Defendant, Robert Roletto, appeals the
district court's order revoking his probation based on
his failure to pay restitution. We affirm.
[¶2] Defendant pleaded guilty to defrauding
a secured creditor and second degree perjury. The court
sentenced him to probation for five years. A condition of his
probation required him to pay restitution on a monthly basis.
[¶3] Roughly two and one-half years into
defendant's sentence, the probation department filed a
probation revocation complaint against him, asserting that he
had failed to pay restitution.
[¶4] At the hearing on the complaint, the
parties did not dispute the amount of restitution defendant
had paid. Defendant had made several restitution payments
during the first eight months of his sentence, but had failed
to make any payments during the two years preceding the
hearing. The disputed issue was whether he was financially
able to pay restitution.
[¶5] Defendant testified that he had worked
as a caregiver for his mother during the time he had made
payments. His mother died, however, about seven months into
his sentence, which terminated his source of income. Since
his mother had died, he had lived in a trailer on a
friend's property. Although he did not pay rent, he
helped the friend with chores such as vacuuming, mowing the
lawn, and feeding the dogs.
[¶6] Defendant testified that his only
income since his mother died had been food stamps and $160
that he had received for selling some property. He stated
that he could not work for the following reasons:
o He suffered from chronic pancreatitis, and the narcotic
pain medications he took for that condition impaired his
equilibrium and balance. As a result, he could not safely
continue his career driving trucks. Other businesses had
" scratched" him because of his medications.
o He could not work consistently for long periods because his
pain varied unpredictably. Sometimes it prevented him from
doing anything but lying down. He testified that people would
not pay him to do chores if he could not complete the jobs in
a timely manner.
o His criminal record would deter people from hiring him.
According to his probation case manager, defendant had not
any " documentation to support his claim that he could
not work." When asked if he had looked for a job,
defendant testified that he had " tried everywhere from
Wal-Mart, City Market," and the " butchers'
program at Safeway." He planned to start a lawn-mowing
business the following spring. He had applied for Social
Security disability benefits, but his application had been
[¶7] At the conclusion of the hearing, the
court made the following findings:
o No doctor had said that defendant could not work.
o Defendant offered no " proof that he [had] applied
anywhere to try and secure a job."
o Defendant expressed " a defeatist attitude, without
actually going out and looking for work."
o Without " independent proof" that defendant could
not work, it " [could not] find that he's unable to