Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA2354
Attorneys for Petitioner: Megan A. Ring, Public Defender
Julia Chamberlin, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Cynthia H. Coffman, Attorney
General Katharine Gillespie, Senior Assistant Attorney
General Denver, Colorado
Restitution is "a crucial element of sentencing."
Roberts v. People, 130 P.3d 1005, 1007 (Colo. 2006).
Today we must determine whether Colorado's restitution
statutes authorize a trial court to order a defendant who has
been acquitted of a charge to pay restitution for pecuniary
losses caused by the conduct that formed the basis of that
charge. The trial court answered the question in
the affirmative and ordered Jared Cowen to pay restitution
for losses that resulted from acquitted conduct. A division
of the court of appeals upheld the restitution order in an
unpublished, unanimous decision. We disagree with the
division and reverse.
We hold that Colorado's restitution statutes do not allow
a trial court to impose restitution for pecuniary losses
caused by conduct that formed the basis of a charge of which
the defendant has been acquitted. Even where, as here, the
defendant has been convicted of a separate charge, our
restitution statutes do not permit a trial court to order
restitution for losses suffered as a result of the acquitted
conduct. The People's contrary construction would at once
violate our rules of statutory interpretation and offend the
Fourteenth Amendment's guarantee of procedural due
process. Therefore, we reject it. To the extent that previous
decisions of the court of appeals are in conflict with this
opinion, we now disapprove of them.
Factual and Procedural History
Cowen owned a semi-truck as part of his trucking business.
Because his semi- truck was in need of extensive maintenance,
he took it to a repair shop. To pay the $37, 485.65 bill,
Cowen borrowed $15, 000 from his brother and wrote two checks
from his company's bank account, one for $9, 327.65
("the first check") and the other for $13, 158.00
("the second check"). Cowen admitted at trial that
he knew he did not have sufficient funds to cover the checks
when he wrote them, and his bank records corroborated his
testimony. He explained, however, that he meant to put enough
money in his account to cover the checks. More specifically,
he claimed that he planned to deposit checks that totaled
more than the amount of the first check and that he intended
to obtain a loan from a financing company in the amount of
the second check. But Cowen ultimately failed to add
sufficient funds to his company's account to cover either
Believing it had been paid in full when it received
Cowen's checks, the repair shop released the semi-truck
to him. A few days later, it learned that both of Cowen's
checks had failed to clear and that Cowen had issued a
stop-payment on them. When the repair shop contacted Cowen,
he stated that its work was unsatisfactory.
Cowen was thereafter charged with two counts of fraud by
check-one count for each of the checks. He defended against
the charges by asserting that he did not intend to defraud
the repair shop. The jury convicted Cowen of the charge
related to the first check, but acquitted him of the charge
related to the second check.
The trial court sentenced Cowen to probation for a period of
three years. As part of Cowen's sentence, the People
requested restitution in the amount of $22, 485.65, the total
amount of the two checks. Cowen objected to any restitution
being imposed for pecuniary losses suffered by the repair
shop as a result of the second check because he was acquitted
of the charge involving that check. Following a hearing, the
trial court granted the People's request, finding that
they had proven by a preponderance of the evidence that Cowen
had written both checks knowing he had insufficient funds in
his company's account to cover them. The trial court
acknowledged Cowen's acquittal of the charge related to
the second check, but explained that it was "absolutely
convinced . . ., by far more than a preponderance of the
evidence," that Cowen knew he had failed to secure the
financing company's loan to fund that check.
Cowen appealed, and a division of the court of appeals
affirmed the restitution order. The division concluded that
our restitution statutes define a victim based on a
defendant's conduct, "not the charge of which the
defendant was convicted." People v. Cowen, No.
14CA2354, ¶ 28 (Colo.App. Nov. 23, 2016). Consequently,
reasoned the division, regardless of whether a defendant is
convicted of a charge, "[i]f the underlying conduct
proximately cause[d] [the] victim's loss, restitution is
appropriate." Id. Given the trial court's
finding that Cowen's underlying conduct proximately
caused the repair shop's $22, 485.65 losses, the division
upheld the restitution order. Id. at ¶ 29. This
Cowen avers that Colorado's restitution statutes
authorize the imposition of restitution only for losses
caused by conduct of which a defendant has been
convicted.Alternatively, Cowen maintains that if the
restitution statutes are construed as the People posit, they
will be rendered unconstitutional pursuant to the United
States Supreme Court's recent decision in Nelson v.
Colorado, U.S., 137 S.Ct. 1249 (2017). Under
Nelson, Cowen argues, restitution related to the
second check is barred because he retains the presumption of
innocence as to the charge premised on that check.
The People disagree and urge us to conclude that restitution
may be awarded under our statutory scheme even if the
defendant is acquitted of the crime charged. All that is
required, assert the People, is a post-trial finding from the
trial court by a preponderance of the evidence that the
victim was aggrieved by the defendant's conduct and that
such conduct was the proximate cause of the alleged pecuniary
losses. The People acknowledge the holding in
Nelson, but contend that it is inapplicable because
Cowen was convicted of at least one charge. This conviction,
they claim, divests Cowen of the presumption of innocence as
to any charge in this case.
We begin by setting forth the standard of review that
controls Cowen's appeal. Next, we discuss our rules
governing statutory interpretation and apply those rules to
our restitution statutes. We pivot from our interpretation to
analyze the People's contrasting construction.
Specifically, we consider whether the People's reading of
the pertinent statutory provisions is in accord with our
rules of statutory interpretation and whether it runs afoul
of the right to procedural due process under the Fourteenth
Amendment. We end by addressing the merits of Cowen's
argument that the court of appeals erred in holding that the
trial court was authorized to order him to pay restitution
for the second check.
Standard of Review
We review questions of statutory construction de novo.
Pineda-Liberato v. People, 2017 CO 95, ¶ 21,
403 P.3d 160, 164. Questions of law are likewise reviewed de
novo, People v. Porter, 2015 CO 34, ¶ 8, 348
P.3d 922, 924, and we agree with the parties that whether a
trial court has authority to impose restitution for losses
suffered as a result of acquitted conduct is a question of
Rules of Statutory Interpretation
When interpreting a statute, "our primary purpose is to
ascertain and give effect to the General Assembly's
intent." Pineda-Liberato, ¶ 22, 403 P.3d
at 164. The starting point in this endeavor is to examine the
plain meaning of the statutory language. Marsh v.
People, 2017 CO 10M, ¶ 20, 389 P.3d 100, 105. The
plain meaning rule is the cardinal rule in the realm of
statutory interpretation; as the United States Supreme Court
observed in Connecticut National Bank v. Germain,
"a court should always turn first" to the plain
meaning rule "before all other[ ]" rules because
"courts must presume that a legislature says in a
statute what it means and means in a statute what it says
there." 503 U.S. 249, 253-54 (1992). Consequently, if
the language in a statute is clear and unambiguous, we give
effect to its plain meaning and look no further. Lewis v.
Taylor, 2016 CO 48, ¶ 20, 375 P.3d 1205, 1209. In
such a situation, the "first canon is also the
last" and the "judicial inquiry is complete."
Germain, 503 U.S. at 254 (quoting Rubin v.
United States, 449 U.S. 424, 430 (1981)). Only if the
statutory language is susceptible to more than one reasonable
interpretation and is therefore ambiguous may we resort to
extrinsic aids of construction to address the ambiguity and
decide which reasonable interpretation to accept based on the
legislature's intent. Lewis, ¶ 20, 375 P.3d
In applying the plain meaning of statutory language, we must
"give consistent effect to all parts of [the] statute,
and construe each provision in harmony with the overall
statutory design." Larrieu v. Best Buy Stores,
L.P., 2013 CO 38, ¶ 12, 303 P.3d 558, 560-61.
Relatedly, our construction must avoid or resolve potential
conflicts and give effect to all legislative acts, if
possible. People v. Stellabotte, 2018 CO 66, ¶
32, 421 P.3d 174, 180.
"In the absence of . . . a definition, we construe a
statutory term in accordance with its ordinary or natural
meaning." FDIC v. Meyer, 510 U.S. 471, 476
(1994); see also Roup v. Commercial Research, LLC,
2015 CO 38, ¶ 8, 349 P.3d 273, 276 ("When a statute
does not define a term, we assume that the General Assembly
intended to give the term its usual and ordinary
meaning."). This approach honors our preference for the
commonly accepted meaning of statutory terms over
"strained or forced interpretation[s]."
Roup, ¶ 8, 349 P.3d at 275. When determining
the plain and ordinary meaning of words, we may consider a
definition in a recognized dictionary. See, e.g., People
v. Hunter, 2013 CO 48, ¶ 10, 307 P.3d ...