April 9, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Robert Roletto, Defendant-Appellant
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
o Defendant failed to prove " an inability to pay."
o Defendant had violated the probation condition that
required him to pay restitution.
making those findings, the court revoked defendant's
probation and resentenced him to another probationary term.
[¶8] Defendant now appeals, contending that
the court (1) applied an incorrect legal standard in
determining whether he was able to pay restitution; and (2)
improperly relied on information it read in the newspaper to
find that he was able to pay. We reject these contentions.
[¶9] We review de novo whether the district
court applied the correct legal standard. See
People v. Shifrin, 2014 COA 14, ¶ 130, 342 P.3d
[¶10] In People v. Romero, 192
Colo. 106, 108, 559 P.2d 1101, 1102 (1976), the Colorado
Supreme Court stated that, before revoking probation based on
a failure to pay restitution, a court must make a finding
that a probationer has the present ability to pay the ordered
restitution, as measured at the time of the revocation
hearing. It further held that the present ability to pay
contemplates " that (1) a job for which the probationer
is qualified is available; (2) the job would produce an
income adequate to meet his obligations; and (3) the
probationer unjustifiably refuses to take it."
[¶11] Here, the court did not make express
findings on these three enumerated factors. As a result,
defendant contends that the court applied the wrong legal
standard when determining that he was able to pay
restitution. We conclude that the court was not required to
determine defendant's ability to pay based exclusively on
the three factors that he highlights.
Ability to Pay Restitution
[¶12] Noting that due process and equal
protection principles " converge" in cases
involving indigent defendants in the criminal justice system,
in Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct.
2064, 76 L.Ed.2d 221 (1983), the United States Supreme Court
discussed the constitutional concerns raised by revoking a
defendant's probation based on his or her failure to pay
restitution. The Court held " that in revocation
proceedings for failure to pay a fine or restitution, a
sentencing court must inquire into the reasons for the
failure to pay." Id. at 672. Thus, a court may
revoke probation and sentence the defendant to imprisonment
if the defendant has " willfully refused to pay or
failed to make sufficient bona fide efforts legally to
acquire the resources to pay." Id. But if the
defendant " could not pay despite sufficient bona fide
efforts to acquire the resources to do so, the court must
consider alternate measures of punishment other than
[¶13] In People v. Silcott, 177
Colo. 451, 454, 494 P.2d 835, 837 (1972), the Colorado
Supreme Court held that a trial court must find that the
defendant had the ability to pay child support before
revoking his or her probation for failing to pay. A few years
later, the Romero court essentially adopted the
Silcott requirements for use in general probation
revocation proceedings. Romero, 192 Colo. at 108,
559 P.2d at 1102. The court again cited these three "
factors" in Strickland v. People, 197 Colo.
488, 489, 594 P.2d 578, 579 (1979).
[¶14] Following Silcott, Romero,
and Strickland, the Colorado General Assembly
amended the predecessor to what is now section 16-11-206(3),
C.R.S. 2014, which governs probation revocation hearings. Ch.
187, sec. 5, § 16-11-206(3), 1983 Colo. Sess. Laws
664-65. Under this 1983 amendment, " the prosecution has
the burden of establishing by a preponderance of the evidence
the violation of a condition of probation" and when the
prosecution asserts that a probationer has violated a
condition of probation that requires him or her to pay
restitution, " evidence of failure to pay shall
constitute prima facie evidence of a violation."
Current Legal Standard
[¶15] The supreme court has neither cited
nor expressly abandoned the three Romero factors
following the 1983 statutory amendment. It has, however,
analyzed a similar 1983 amendment to Colorado's deferred
sentencing statute. See People v. Afentul,
773 P.2d 1081 (Colo. 1989).
[¶16] In Afentul, the court
outlined the procedure for determining whether a defendant
has violated a deferral condition that he or she must pay
restitution. Id. at 1085. It stated that the
prosecution bears the burden to prove that the defendant did
not pay restitution as the court ordered, and evidence that
the defendant did not pay constitutes prima facie evidence
that he or she has violated the condition. Id. If
the prosecution presents this prima facie evidence, the
burden shifts to the defendant to prove by a preponderance of
the evidence that he or she was financially unable to pay.
[¶17] Section 16-11-206(3) prescribes the
same procedure as that set forth in Afentul, in
which the court interpreted language similar to the relevant
portion of section 16-11-206(3). Cf. People v.
Cunefare, 102 P.3d 302, 306 (Colo. 2004) (" Because
the language of the intimidation statute is substantially
similar to the language we interpret in this case, we hold
that the same principles apply here." ). Like section
16-11-206(3), the deferred sentencing statute at issue in
Afentul provided that evidence of " failure to
pay . . . shall constitute prima facie evidence of a
violation." 773 P.2d at 1084 (internal quotation marks
omitted). The Afentul court relied on the deferred
sentencing statute's " prima facie evidence"
provision to articulate the burden-shifting procedure for
determining a defendant's ability to pay. Id. at
[¶18] Further, the General Assembly added
the " prima facie evidence" provisions to section
16-11-206(3) and the deferred sentencing statute in the same
legislative bill. See Ch. 187, sec. 4, §
16-7-403(2), 1983 Colo. Sess. Laws 664; Ch. 187, sec. 5,
§ 16-11-206(3), 1983 Colo. Sess. Laws 664-65. This leads
us to conclude that the legislature intended the term "
prima facie evidence" to carry the same meaning in both
statutes. Cf. Gen. Elec. Co. v. Niemet, 866
P.2d 1361, 1366 (Colo. 1994) ( " When we interpret
related statutes, it is important that we harmonize their
meanings and interpret their words consistently." ).
[¶19] Therefore, when the prosecution
asserts that a probationer has violated the condition that he
or she must pay restitution, it initially bears the burden to
prove that the probationer has not paid restitution as the
court ordered. § 16-11-206(3); see
Afentul, 773 P.2d at 1085. Evidence that the
probationer did not comply with the court's restitution
order constitutes prima facie evidence that he or she has
violated the condition requiring that he or she do so. §
16-11-206(3); see Afentul, 773 P.2d at
1085. If the prosecution so proves, the burden shifts to the
probationer to prove by a preponderance of the evidence that
he or she was financially unable to make payments when they
became due. See § 16-11-206(3);
Afentul, 773 P.2d at 1085; see also §
16-18.5-105(3)(d)(I), C.R.S. 2014 (court may revoke probation
for failure to pay restitution unless " the defendant
establishes that he or she was unable to make the
[¶20] Whether the probationer has
established that he or she is unable to pay restitution is a
question of fact to be determined by the district court.
See People v. Ickler, 877 P.2d 863, 866
(Colo. 1994). In making that determination, the court may
consider, among other factors:
o Whether the probationer has made an effort to gain
employment or borrow money so that he or she can pay
restitution. See Bearden, 461 U.S. at 668.
o Whether the probationer has access to a job that offers an
income sufficient to meet his or her obligations.
See Romero, 192 Colo. at 108, 559 P.2d at
o Whether the probationer has unjustifiably refused to accept
a job. See id.
o Whether the probationer has unjustifiably quit his or her
job. See Bearden, 461 U.S. at 668.
o Whether the probationer has income, assets, and financial
obligations sufficient to make payments. See
Afentul, 773 P.2d at 1083-86.
o Whether the probationer can provide necessary food and
shelter to the probationer and his or her dependents. See
o Whether the probationer has complied with the probation
department's requests for evidence demonstrating the
probationer's income, assets, or expenses. See
People v. Rivera-Bottzeck, 119 P.3d 546, 549
o Whether a probationer's medical condition(s) impair or
impede the ability to work. See United States v.
Wells, 177 F.3d 603, 611 (7th Cir. 1999) (a
defendant's alleged poor health may be considered when
determining ability to pay).
[¶21] We reject defendant's argument
that a court may revoke probation for failure to pay
restitution only if it finds that (1) a job for which the
probationer is qualified is available; (2) the job would
allow the probationer to meet his or her financial
obligations; and (3) the probationer unjustifiably refuses to
take the job. See Romero, 192 Colo. at 108,
559 P.2d at 1102. Although these factors may be relevant to
the probationer's ability to pay in some cases, they will
not decide that question in every case.
[¶22] Furthermore, following
Romero, the legislature amended section 16-11-206(3)
to add the " prima facie evidence" provision. Ch.
187, sec. 5, § 16-11-206(3), 1983 Colo. Sess. Laws
664-65. And the supreme court has not cited the
Romero factors since that amendment. Significantly,
in Afentul, which was decided after the similar
amendment to the deferred sentencing statute, the court did
not instruct trial courts to use those factors to measure the
defendant's ability to pay in deferred sentence
revocation proceedings. See 773 P.2d at 1083-86. To
reconcile these authorities, we conclude that, after the 1983
amendment, a court is not required to assess the
defendant's ability to pay restitution based exclusively
on the factors identified in Romero.
[¶23] In addition, requiring courts to
assess a defendant's ability to pay based only on
Romero 's factors would be inconsistent with
section 16-11-206(3)'s burden-shifting procedure. Under
section 16-11-206(3), once the prosecution shows that the
defendant has not paid, the burden shifts to the defendant to
show that he or she was unable to pay. It is unlikely that
the defendant would offer evidence that he unjustifiably
refused to accept a job in his or her effort to show an
inability to pay. Indeed, such evidence would hinder, not
help, that effort.
[¶24] We conclude that the district court
applied the correct legal standard here. Once the prosecution
presented evidence that defendant had not complied with the
court's restitution order, the court allowed defendant to
present evidence concerning his ability to pay. Indeed, all
parties agreed that defendant bore the burden to show that he
was unable to pay restitution. At the end of the hearing, the
court found that defendant had not shown that he was unable
to pay his restitution obligation. This procedure was
consistent with Colorado law, as we have outlined it above.
[¶25] We disagree with defendant's
assertion that the district court here " essentially
made the same ruling" as the trial court had in
Romero, which requires reversal. Unlike the court
here, the trial court in Romero " failed to
make a finding of [the] defendant's ability to make the
payments as of the time of the revocation hearing." 192
Colo. at 108, 559 P.2d at 1102. Consequently, Romero
does not suggest that the district court erred in this case.
The Newspaper Comment
[¶26] While making its findings and ruling,
the court said, " In the newspaper, this morning, I read
that there were jobs available." Defendant argues that
this statement reveals that the court improperly relied on
" hearsay evidence" to find that he had violated
the restitution condition. Because he did not have an
opportunity to review the newspaper, he argues, the court
denied him due process by relying on it to support its
finding. We are not persuaded.
Preservation and Standard of Review
[¶27] Defendant did not object to the
statement that he now challenges, nor did he assert a due
process argument in the district court. His arguments are
therefore unpreserved. People v. Ujaama, 302 P.3d
296, 2012 COA 36, ¶ 37.
[¶28] Colorado case law does not clearly
dictate whether we should address defendant's unpreserved
due process argument. See People v. Allman,
2012 COA 212, ¶ 14, 321 P.3d 557. On the one hand,
People v. Cagle, 751 P.2d 614, 619 (Colo. 1988), and
its progeny state that it " is axiomatic that this court
will not consider constitutional issues raised for the first
time on appeal." See People v.
Devorss, 277 P.3d 829, 834 (Colo.App. 2011) (collecting
cases). On the other hand, despite that assertion, the
supreme court and divisions of this court have chosen to
address unpreserved constitutional arguments. See
id. (collecting cases).
[¶29] Here, because the record affords us
the ability to review defendant's claim, we conclude that
it is appropriate to do so, but under a plain error standard.
See Allman, ¶ 15 & n.4; People
v. Lientz, 2012 COA 118, ¶ 10, 317 P.3d 1215 &
n.1. Plain error occurs when an error (1) is obvious, (2)
prejudices a substantial right, and (3) casts serious doubt
on the judgment's reliability. People v. Friend,
2014 COA 123, ¶ 49.
Relevant Legal Principles
[¶30] Probation revocation proceedings are
different from criminal prosecutions. People v.
Ruch, 2013 COA 96, ¶ 33 ( cert. granted
June 30, 2014). As a result, during such proceedings, the
defendant is not entitled to the full panoply of rights
associated with criminal prosecutions. Id.
[¶31] Even so, due process requires the
court to afford the probationer an opportunity to confront
and cross-examine adverse witnesses, Byrd v. People,
58 P.3d 50, 56 (Colo. 2002), and section 16-11-206(3)
requires the court to afford the defendant " a fair
opportunity to rebut hearsay evidence."
[¶32] Initially, we reject defendant's
contention that the court took " judicial notice"
of the newspaper, which was " the main hearsay
evidence" employed against him. The record reveals that
the comment was an isolated reference within the court's
findings, which fill nearly six pages of transcript. Viewed
in that context, the record does not suggest that the court
used the information as evidence against defendant. Rather,
in our view, the statement was merely a casual observation.
[¶33] Moreover, the parties' dispute did
not center on whether jobs were generally available. Instead,
defendant asserted that his medical condition rendered him
unable to work. And the court's finding that defendant
had not shown that he was unable to work is unrelated to its
comment about the newspaper.
[¶34] People v. Loveall, 231 P.3d
408 (Colo. 2010), on which defendant relies, does not
persuade us that the court violated his due process rights.
In Loveall, unlike in this case, the prosecution
employed hearsay evidence to establish that a violation had
occurred. Id. at 411. Here, in contrast, defendant
conceded that he had not made the necessary payments; hence,
the court's belief that jobs were generally available was
peripheral to the contested issue, and the newspaper was not
used to prove that defendant had violated his probation.
[¶35] To the extent defendant argues that
the record does not support the court's finding that he
was able to pay, we disagree. We will reverse the district
court's factual findings only for clear error.
See Valdez v. People, 966 P.2d 587, 590
[¶36] The court based its ultimate finding
on its determination that defendant did not prove he was
unable to work. In support of that determination, the court
cited the lack of " independent proof," such as a
doctor's recommendation that defendant not work or
materials demonstrating that he had applied for a job but had
not been hired. The record supports those findings.
[¶37] The order is affirmed.
GRAHAM specially concurs.
J., specially concurring.
[¶38] Although I agree with the result
reached by my colleagues in affirming the order of the
district court, I do not agree that we should reach the
unpreserved due process argument. I stand by the long
followed principle that we will not reach unpreserved
constitutional issues raised for the first time on appeal.
See Martinez v. People, 244 P.3d 135, 139
(Colo. 2010) (" As a threshold matter, however,
appellate courts should not reach Colorado Constitutional
arguments raised for the first time on appeal." (citing
with approval People v. Cagle, 751 P.2d 614, 619
(Colo. 1988) (" It is axiomatic that this court will not
consider constitutional issues raised for the first time on