County District Court No. 15CR1433 Honorable Robert W.
Kiesnowski, Jr., Judge
J. Young, District Attorney, Cameron M. Munier, Senior Deputy
District Attorney, Brighton, Colorado, for
Bendinelli Law Firm, PC, Mark G. Mayberry, Westminster,
Colorado, for Defendant-Appellee
ORDER AFFIRMED AND CASE REMANDED WITH
1 In this prosecution appeal of a restitution setoff, we must
reconcile the dual policy interests underlying the
restitution statute, § 18-1.3-603, C.R.S. 2016, of fully
compensating a victim on the one hand and of precluding
double recovery by the victim on the other.
2 The prosecution asks us to reverse the trial court's
order awarding the defendant, Steven Robert Paul Stanley, a
$25, 000 setoff against restitution of $30, 000, an amount
paid to the victim by the Crime Victim Compensation Program
(CVCP). The setoff arose from a policy-limits settlement
between the victim and Stanley's automobile insurance
company. Despite uncontroverted evidence of this settlement,
the prosecution argues that Stanley failed to sufficiently
prove entitlement to a setoff because he did not show that
the settlement proceeds were "earmarked" for the
same expenses reimbursed by the CVCP, leaving open the
possibility that the victim used the proceeds for losses not
compensated by the CVCP.
3 Because the level of specificity for apportioning urged by
the prosecution would render meeting a defendant's burden
of proving a setoff under § 18-1.3-603(3) and (8)(c)(I)
impractical - and in some cases impossible - we conclude that
a defendant sufficiently meets his or her burden of going
forward to invoke the trial court's discretion to award a
setoff by showing that the settlement included one or more
categories of loss (expenses) paid by the CVCP and covered by
the restitution order.
4 Thus, we affirm in part the trial court's ruling on
apportionment. However, because the victim may have used some
or all of the settlement proceeds for losses not compensated
by the CVCP, we remand the case to permit the prosecution to
respond by showing that the victim used or allocated
settlement proceeds for losses proximately caused by
Stanley's criminal conduct but which were not paid by the
CVCP and covered by the restitution order. This procedure
gives effect to the restitution statute's legislative
intent "to make full restitution" to victims for
their losses. § 18-1.3-601(1)(b), C.R.S. 2016. If the
prosecution makes such a showing, the trial court should
amend its restitution order by reducing the amount of the
5 This case arises from a traffic accident that occurred on
April 11, 2015. On May 7, 2015, Stanley's automobile
insurer, Geico Indemnity Co. (Geico), entered into a
"Release in Full of All Claims" (the Release) with
the victim and her husband. Under the settlement, Geico paid
the victim $25, 000 for all claims related to and stemming
from the accident in exchange for a full and final release of
all claims against Stanley and Geico. The Release released
and forever discharged Stanley and Geico
[f]rom any and every claim, demand, right or cause of action,
of whatever kind or nature, on account of or in any way
growing out of any and all personal injuries and consequences
thereof, including, but not limited to, all causes of action
preserved by the wrongful death statute applicable, any loss
of services and consortium, any injuries which may exist but
which at this time are unknown and unanticipated and which
may develop at some time in the future, all unforeseen
developments arising from known injuries, and any and all
property damage resulting or to result from an accident that
occurred on or about the 11th day of April, 2015 . . . .
6 On February 4, 2016, Stanley pleaded guilty to felony
vehicular assault, driving under the influence, and careless
driving. Under the plea agreement, the trial court deferred
the entry of judgment and sentence on the felony for four
years, and sentenced Stanley to four years of concurrent
probation on the misdemeanor convictions. The court gave the
prosecution ninety days to submit a restitution request.
7 On May 3, 2016, the prosecution filed a motion to impose
restitution and attached a report from the CVCP. It showed
that the CVCP had paid the victim $30, 000, the maximum
amount allowable by statute, for pecuniary losses proximately
caused by Stanley's criminal conduct. See §
24-4.1-109(2)(b), C.R.S. 2016. It paid the victim $8048 for
lost wages and $21, 952 for medical expenses. The report stated
that "[e]ach bill received by CVCP is verified to ensure
that it is crime related; that no other funding source was
responsible (insurance) and to verify the most up to date
8 Believing that the insurance Release and settlement
satisfied his restitution obligation, Stanley never filed an
objection to the prosecution's motion for restitution. On
June 14, 2016, the court granted the unopposed motion and
ordered Stanley to pay the victim $30, 000 in restitution.
Later that same day, Stanley filed a Motion for
Reconsideration of the Restitution Order, explaining his
misunderstanding and requesting a hearing and a setoff. The
court granted Stanley's hearing request.
9 At the hearing, the parties relied on two documents - the
CVCP report evidencing the $30, 000 payment and the Release
evidencing the $25, 000 settlement. Neither party presented
any other evidence.
10 The prosecution argued that because the Release
constituted an unapportioned settlement, Stanley bore the
burden of proving that the settlement proceeds were intended
to compensate the victim for the same lost wages and medical
expenses compensated by the CVCP. Specifically, "[the
Release] talks in no way about where this $25, 000 is to be
allocated. Is it supposed to go to medical or pay for the
damages to the vehicle?" Relying on People v.
Lassek, 122 P.3d 1029 (Colo.App. 2005), the prosecution
argued that the "entire amount could have simply gone to
[nonpecuniary losses not covered by the restitution
statute]" and asked the court to find that Stanley had
not met his apportionment burden.
11 Stanley agreed that he bore the burden of establishing the
existence of a setoff. He asserted that the Release
"broadly apportioned" the proceeds through the
language stating an intent to compensate for "any and
every claim" for loss of services, as relevant to wage
loss, and for personal injuries and all consequences of them,
as relevant to medical expenses. He reasoned that the
settlement proceeds necessarily included the medical and lost
wages compensation the victim received from the CVCP. He
further argued that the CVCP was remiss in failing to offset
restitution by the settlement amount under §
24-4.1-110(1), C.R.S. 2016.
12 The trial court held that $30, 000 in restitution was
reasonable, due, and owing. It further held that the
Release's broad language was "all encompassing and
[that] it include[d] every type of claim imaginable and any
type of injury imaginable." It found the Release
"contemplate[d] payment for the very same categories
that are set forth in the prosecution's restitution
report, " and noted that these types of releases never
apportioned proceeds to specific loss categories. Therefore,
it awarded Stanley a $25, 000 setoff against restitution and
ordered him to pay the $5000 net amount.
13 Relying on Lassek and People in Interest of
T.R., 860 P.2d 559 (Colo.App. 1993), the prosecution
urges us to reverse the court's order, arguing that the
Release is an unapportioned settlement that does not
"earmark" the proceeds for the same expenses
compensated by the CVCP, as required by these cases. While we
acknowledge that Lassek and T.R. could be
read to support this argument, for the reasons described
below we conclude that these cases do not require the level
of specificity urged by the prosecution.
Standard of Review
14 We review a trial court's restitution award for an
abuse of discretion. People v. Sieck, 2014 COA 23,
¶ 5. A trial court abuses its discretion when it
misconstrues or misapplies the law, id., or when its
decision fixing the amount of restitution is not supported by
the record, see People v. Rivera, 968 P.2d 1061,
1068 (Colo.App. 1997). "We will not disturb the district
court's determination as to the proper amount of
restitution if it is supported by the record."
People v. Bohn, 2015 COA 178, ¶ 8.
15 We review and interpret statutes de novo. People v.
Padilla-Lopez, 2012 CO 49, ¶ 7. When construing
statutes, we aim to ascertain and give effect to the intent
of the General Assembly. Id. We accord words and
phrases their plain and ordinary meanings. Id.
"Where the language is clear, it is not necessary to
resort to other tools of statutory construction."
Goodman v. Heritage Builders, Inc., 2017 CO 13,
16 As part of "[e]very order of conviction, " a
trial court must order a defendant to pay restitution if the
defendant's conduct caused pecuniary loss to a victim.
§ 18-1.3-603(1); People v. Reyes, 166 P.3d 301,
302 (Colo.App. 2007). Restitution means "any pecuniary
loss suffered by a victim . . . proximately caused by an
offender's conduct and that can be reasonably calculated
and recompensed in money." § 18-1.3-602(3)(a),
C.R.S. 2016. The General Assembly has declared restitution to
be a mechanism for rehabilitating offenders, deterring future
criminality, and reducing the financial burden on and
compensating victims and their families for their losses.
§ 18-1.3-601(1)(c)-(g). The restitution statute must be
liberally construed to accomplish these goals. §
17 The court bases its restitution order on information
provided by the prosecuting attorney. § 18-1.3-603(2).
The prosecution bears the burden of proving the amount owed
by a preponderance of the evidence, People v. Smith,
181 P.3d 324, 328 (Colo.App. 2007), while the ...