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People v. Roletto

Court of Appeals of Colorado, Second Division

April 9, 2015

The People of the State of Colorado, Plaintiff-Appellee,
v.
Robert Roletto, Defendant-Appellant

          Mesa County District Court No. 10CR686. Honorable Thomas M. Deister, Judge.

         Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Douglas K. Wilson, Colorado State Public Defender, Megan Marlatt, Deputy State Public Defender, Grand Junction, Colorado, for Defendant-Appellant.

         Dunn, J., concurs. Graham, J., specially concurs.

          OPINION

         CASEBOLT, JUDGE.

          [¶1] Defendant, Robert Roletto, appeals the district court's order revoking his probation based on his failure to pay restitution. We affirm.

         I. Background

          [¶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

         provided 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 denied.

          [¶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 ...

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