County District Court No. 14CR2052 Honorable Thomas J.
J. Weiser, Attorney General, Frank R. Lawson, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Julia Chamberlin,
Deputy State Public Defender, Denver, Colorado, for
1 In this appeal of a restitution order, defendant, Joey Ray
Hernandez, presents a novel question in Colorado - does a
defendant have a right to be present at a restitution
hearing? We conclude that the answer is "yes."
Turning to the particular facts presented, next we conclude
that the trial court plainly erred by holding the restitution
hearing in Hernandez's absence, despite his
attorney's attempted but ineffective waiver of his
presence. So, the restitution order must be vacated and the
case remanded for further proceedings. But if on remand the
trial court determines that Hernandez had authorized his
attorney to waive his presence, a new restitution hearing
need not be held.
2 A jury convicted Hernandez of first degree assault for
having stabbed the victim. The trial court imposed a sentence
to the custody of the Department of Corrections and gave the
prosecutor sixty days to file a notice of restitution. The
prosecutor timely sought restitution of $2518.82 to
compensate the Crime Victim Compensation Fund.
3 Defense counsel filed a general objection. But neither
counsel nor Hernandez appeared at two scheduled status
conferences. Counsel did not respond to the trial court's
direction to file a clarification of his objection. Nor did
counsel request the court to perform an in camera review of
any information related to the claim.
4 Eventually, defense counsel - but not Hernandez - appeared
at the restitution hearing. Counsel explained, "I was
going to writ him here. I didn't do that. But given all
the circumstances in this case, I'm prepared to proceed
to [sic] restitution hearing without his presence." The
court did not reply to this statement and the hearing went
5 The prosecutor called the Crime Victim Compensation
Coordinator for the Nineteenth Judicial District as the sole
witness. The coordinator described how the Crime Victim
Compensation Board (CVCB) evaluates restitution applications.
Where medical expenses are involved, the review includes
looking at the nature of the services provided in light of
the offense and at the dates of those services compared to
the date of the offense. Next, the coordinator identified the
victim's application. Then she explained that the process
for determining proximate cause of the medical expenses had
been followed in this case. Defense counsel neither
cross-examined her nor presented any evidence.
6 The trial court found that the prosecutor had proved by a
preponderance of the evidence that the medical expenses
described in the restitution notice had been proximately
caused by Hernandez's criminal conduct. The court awarded
the amount requested.
Issues Presented, Preservation, and Standard of Review
7 Hernandez raises three contentions.
• Despite the statements of defense counsel, the trial
court erred by proceeding with the restitution hearing in his
• Applying the post-assault amendment to section
18-1.3-603, C.R.S. 2018, which lessens the prosecution's
burden of proving causation, violated the Ex Post Facto
Clauses of the United States and Colorado Constitutions.
• Applying section 18-1.3-603(10) also violated
Hernandez's due process rights by creating a rebuttable
presumption of causation that he cannot overcome because of
limitations on information held by a CVCB.
8 The Attorney General asserts that Hernandez waived the
first contention and challenges preservation of the second
and third contentions. Hernandez disputes waiver, concedes
that he did not preserve the first or second contentions, and
argues that he preserved the third contention. In any event,
he urges us to exercise our discretion and take up his
statutory contentions in the interest of judicial economy.
9 We reject the Attorney General's waiver assertion but
agree that Hernandez did not preserve the third contention.
We exercise our discretion in the interest of judicial
economy, but only to a point.
10 Alleged violation of a defendant's due process right
to be present at all critical stages of a criminal proceeding
is a constitutional question reviewed de novo. People v.
Wingfield, 2014 COA 173, ¶ 13. And "Crim. P.
43(a) also requires as much, subject to a few
exceptions." People v. Janis, 2018 CO 89,
¶ 16 n.2.
11 Where this due process right has been violated and the
error preserved, reversal is required unless the Attorney
General proves that the error was harmless beyond a
reasonable doubt. Zoll v. People, 2018 CO 70, ¶
17. If the error is unpreserved - but not waived - plain
error review applies. See Hagos v. People, 2012 CO
63, ¶ 14. Under that test, reversal occurs only if the
error was obvious and so undermined the fundamental fairness
of the proceeding that it casts serious doubt on the
reliability of the outcome. Id.
12 No Colorado case has addressed whether violation of a
defendant's right to be present under Crim. P. 43 is also
reviewed de novo. However, we discern no reason to apply a
different standard of review to the same right merely because
the right is guaranteed by rule rather than by statute. But
reversal for failure to follow a court rule is subject to the
harmless error limitation in Crim. P. 52(a) rather than to
the constitutional harmless error standard. See Dawson v.
People, 30 P.3d 213, 220 (Colo. 2001) (Crim. P. 11).
13 The constitutionality of a statute is also subject to de
novo review. See, e.g., Coffman v.
Williamson, 2015 CO 35, ¶ 13. The reviewing court
presumes the statute is constitutional. Morris-Schindler,
LLC v. City & Cty. of Denver, 251 P.3d 1076, 1084
(Colo.App. 2010). And "[i]n both facial and as-applied
challenges, the challenging party must prove that a statute
is unconstitutional beyond a reasonable doubt."
Heotis v. Colo. State Bd. of Educ., 2019 COA 35,
The Law of Restitution
14 Criminal defendants must "make full restitution to
those harmed by their misconduct." § 18-1.3-601,
C.R.S. 2018. "'Restitution' means any pecuniary
loss suffered by a victim and includes but is not limited to
all out-of-pocket expenses . . . ." §
18-1.3-602(3)(a), C.R.S. 2018. "The prosecution bears
the burden of proving, by a preponderance of the evidence,
the amount of restitution owed and, generally, that the
defendant's conduct was the proximate cause of the
victim's loss." People v. Henry, 2018 COA
48M, ¶ 15.
15 A CVCB exists in each judicial district. §
24-4.1-103(1), C.R.S. 2018. The restitution statute's
definition of "victim" includes these boards.
§ 18-1.3-602(4)(a)(IV). Losses compensable by a CVCB
include "[r]easonable medical and ...