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People v. Oliver

Court of Appeals of Colorado, Third Division

December 15, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Rollin Michael Oliver, Defendant-Appellant.

         City and County of Denver District Court No. 12CR2735 Honorable J. Eric Elliff, Judge


          Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant



         ¶ 1 Defendant, Rollin Michael Oliver, appeals the district court's order reaffirming its award of restitution and denying his Crim. P. 35(a) motion to correct that award as an allegedly illegal sentence. Specifically, Oliver appeals the portion of his sentence ordering him to pay $365, 565.07 in restitution to the Risk Management Department of the City and County of Denver (the Department). Oliver contends his sentence was not authorized by law because the Department was not a victim for restitution purposes and because, even if the Department was a victim, the bulk of the restitution amount awarded included "loss of future earnings, " a type of loss explicitly excluded from the statutory definition of restitution. We disagree and affirm.

         I. Background and Procedural History

         ¶ 2 In June 2012, Oliver and a friend were confronted by a group of men at a City Park "Jazz in the Park" event. One of the men in the group punched Oliver's friend. During the altercation, Oliver pulled a gun and fired it in the direction of the group. One of the shots struck a Denver Police officer who was in the vicinity. The officer sustained a bullet wound to the head, and she was pronounced dead at the hospital.

         ¶ 3 Police arrested Oliver several hours later, and he was charged with first degree extreme indifference murder. Oliver later pleaded guilty to second degree murder in exchange for dismissal of the first degree murder count and a sentencing range of sixteen to twenty-six years. The district court sentenced Oliver to twenty-six years in the custody of the Department of Corrections.

         ¶ 4 The prosecution timely filed a demand for restitution naming the Department as a victim and attached documentation from the Department showing its claimed losses. The prosecution alleged that the Department paid $12, 469.42 in medical costs for the officer and $33, 219.75 in "survivor benefits" to the officer's dependent minor daughter. It further alleged that the Department owed a balance of $319, 875.90 to the officer's minor daughter in "survivor benefits" that were required to be paid to her in the future. In sum, the prosecution stated that the Department would pay a total of $365, 565.07 as a result of Oliver's murder of the officer, and it requested an award of restitution in that amount. The district court agreed and ordered Oliver to pay restitution to the Department in the amount of $365, 565.07 as part of his sentence.

         ¶ 5 Several months later, Oliver filed a written objection to the restitution order. Oliver's objection asserted that the Department was not a "victim" for restitution purposes and, therefore, the restitution imposed by the district court was not legal. The district court ordered the prosecution to respond to the objection and specifically address whether Oliver's objection was timely. The prosecution did not respond, and the district court set the matter for a hearing.

         A. Restitution Hearing

         ¶ 6 At the outset of the September 2014 hearing, the court determined that Oliver's objection was timely because his argument challenged the legality of his restitution sentence, which could be challenged at any time under Crim. P. 35(a). The court then allowed testimony and arguments to proceed.

         ¶ 7 Oliver called Kelly Hopper as his sole witness. Hopper was an employee of the Department in the Workers' Compensation Unit, and specifically, within the subrogation division. She testified that her job was to determine if the Department could recoup any of the funds it expended on benefit payouts through subrogation of a third party. She testified that seeking restitution in a criminal action against a defendant who committed a crime causing the Department's financial loss is one way the Department attempts to recoup such losses.

         ¶ 8 Hopper explained that the City and County of Denver self-insures its workers' compensation benefits for all employees of the City and County of Denver, including the Denver Police Department (DPD). According to her testimony, the Department, an agency of the City and County of Denver, manages workers' compensation claims and benefits for all employees of the City and County of Denver instead of a private workers' compensation insurance company. Hopper repeatedly testified that the Department acted as the workers' compensation insurance company for the DPD and the City and County of Denver as a whole.

         ¶ 9 Hopper further testified that death benefit payouts under the Workers' Compensation Act of Colorado (the Act), §§ 8-40-101 to 8-47-209, C.R.S. 2016, are fixed by a statutory formula using the deceased worker's average weekly wage. Specific to this case, she stated that the Department had made and would continue to make required payments to the deceased officer's minor daughter using this formula, regardless of any subrogation or restitution determination.

         ¶ 10 At the conclusion of Hopper's testimony, Oliver's counsel argued that the Department was not a victim under the applicable restitution statute because, under Colorado law, a government agency such as the Department could not be a victim for restitution purposes unless certain conditions were met, and those conditions were not present in this case. Counsel did not argue that it was improper to include the death benefits in the restitution amount because the officer's average weekly wage was used to calculate the death benefits owed to the minor daughter. As pertinent here, the prosecution argued that the Department was a victim for purposes of restitution because it was an insurer that suffered a pecuniary loss as a result of Oliver's murder of the officer. Oliver responded by arguing that the Department could not be considered an insurer because there was no evidence of a contract between the deceased officer and the Department.

         B. The District Court's Findings and Ruling

         ¶ 11 The court found that section 18-1.3-602(3)(d) and (4)(a)(VI), C.R.S. 2013, explicitly contemplated government agencies expending funds for providing medical benefits, health benefits, or nonmedical support services directly related to the condition of the victim and specifically included such agencies in the definitions of restitution and victim. The court specifically cited and relied on language from the 2013 amendments to section 18-1.3-602 and concluded the Department was a victim and, therefore, entitled to the restitution requested. The district court, citing section 18-1.3-602(3)(d), (4)(a)(VI), C.R.S. 2013, also specifically found that the Department was an insurer: "[U]nder the statute, the statute specifically contemplates an insurer, including a public insurer like the [Department]. . . . And so I think under the statute, the [Department] is entitled to restitution." The court did not expressly discuss or rely on section 18-1.3-602(4)(a)(III), C.R.S. 2013, in its ruling.

         ¶ 12 Thus, the court reaffirmed its previous restitution award of $365, 565.07 and denied Oliver's Crim. P. 35(a) objection to that award. This appeal followed.

         II. The Department Was a "Victim"

         ¶ 13 We first address and reject Oliver's contention that the Department was not a "victim" for purposes of restitution.

         ¶ 14 In support of this contention, Oliver argues that the district court imposed an illegal sentence by making a restitution award to the Department for three reasons: (1) because the court considered and relied on statutory language not in effect at the time Oliver committed his crime in determining that the Department was a "victim"; (2) because, under the statute in effect at the time of Oliver's crime, the Department was not a direct "victim" of Oliver's crime; and (3) because the Department was not a "victim" under section 18-1.3-602(4)(a)(III), C.R.S. 2011, as there was no evidence of a written contract between the Department and the deceased officer. We consider each of these arguments and, for the reasons below, conclude that the Department, as an insurer, was a victim under section 18-1.3-602(4)(a)(III), C.R.S. 2011.[1]

         ¶ 15 As an initial matter, we agree with Oliver that the district court erred in considering language from section 18-1.3-602(3)(d), (4)(a)(VI), C.R.S. 2013, in making its restitution award. The court relied on the 2013 version of the statute, which included amended language specifically dealing with public or government agency insurers as victims for purposes of restitution. Ch. 272, sec. 7, § 18-1.3-602(3)(d), (4)(a)(VI), 2013 Colo. Sess. Laws 1429 (capital letters indicating new material). However, this amended language applied only to crimes committed on or after July 1, 2013, and, therefore, did not apply to Oliver's crime, which he committed in June 2012. Id. sec. 19, 2013 Colo. Sess. Laws at 1433. Nevertheless, because we conclude that the Department was a victim under section 18-1.3-602(4)(a)(III), C.R.S. 2011, the district court's reliance on the 2013 version of various other provisions of the statute does not compel reversal of the court's restitution ruling. See People v. Manyik, 2016 COA 42, ¶ 69 (stating that we may affirm a district court's decision on alternative grounds supported by the record).

         A. Preservation and Standard of Review

         ¶ 16 Oliver preserved his argument that the restitution order was not authorized by law because the Department was not a "victim" by his written objection to restitution and his arguments at the restitution hearing. "An illegal sentence is one that is not authorized by law, meaning that it is inconsistent with the sentencing scheme established by the legislature." People v. Jenkins, 2013 COA 76, ¶ 11. We review the legality of a sentence de novo. People in Interest of J.S.R., 2014 COA 98, ¶ 12.

         ¶ 17 Oliver's arguments involve a question of statutory interpretation, which is also an issue we review de novo. Jenkins, ¶ 12. More specifically, "[w]hether the sentencing court interpreted the statutory sentencing scheme correctly is a question of statutory interpretation that we review de novo." People v. Rice, 2015 COA 168, ¶ 10. As with any statute, our primary task is to give effect to the General Assembly's intent by first looking to the statute's plain language. E.g., Candelaria v. People, 2013 CO 47, ¶ 12. "To discern the General Assembly's intent, we look to the plain language of the statute, and where that language is clear and unambiguous, we engage in no further statutory analysis." Rice, ¶ 11.

         B. Applicable Law

         1. Restitution Statutes

         ¶ 18 Every judgment of conviction for a felony offense must include an order of restitution to be paid by the defendant. § 18-1.3-603(1), C.R.S. 2016.

         ¶ 19 In the 2011 version of the restitution definitions, the General Assembly defined a "victim" of an offender's conduct for restitution purposes as follows:

(4)(a) "Victim" means any person aggrieved by the conduct of an offender and includes but is not limited to the following:
(I) Any person against whom any felony, misdemeanor, petty, or traffic misdemeanor offense has been perpetrated or attempted;
(II) Any person harmed by an offender's criminal conduct in the course of a scheme, conspiracy, or pattern of criminal activity;
(III) Any person who has suffered losses because of a contractual relationship with, including but not limited to an insurer, . . . for a person described in subparagraph ...

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