Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1959.
Attorneys for Petitioner: Megan A. Ring, Public Defender
Kamela Maktabi, Deputy Public Defender Denver, Colorado.
Attorneys for Respondent: Philip J. Weiser, Attorney General
Megan C. Rasband, Assistant Attorney General Denver,
Ruth Cheryl Williams allegedly stole $10, 000 from her
employer. She pled guilty to felony theft in exchange for a
four-year deferred judgment and sentence. The district court
placed her on probation for the deferral period and required
that she pay $10, 000 in restitution. Roughly three years
into her deferred sentence, Williams had only paid about
Based on that failure to pay, the district attorney moved to
impose judgment and sentence. The district court concluded
that Williams had violated the restitution order, so it
revoked the deferred judgment and entered a conviction for
Williams appealed, contending that the prosecution failed to
meet its burden to prove that she had the financial ability
to pay restitution. Applying this court's precedent, a
division of the court of appeals concluded that the
prosecution had no such burden. Instead, if Williams wanted
to avoid becoming a convicted felon, she had to
prove that she couldn't pay.
We reverse and hold that when a defendant introduces some
evidence of her inability to pay restitution, a district
court must make the ability-to-pay findings under section
18-1.3-702(3)(c), C.R.S. (2019), before revoking a deferred
judgment for failure to pay. We further hold that the
prosecution bears the burden of proving by a preponderance of
the evidence that (1) "the defendant has the ability to
comply with the court's order to pay a monetary amount
due without undue hardship to the defendant or the
defendant's dependents," and (2) "the defendant
has not made a good-faith effort to comply with the
order." § 18-1.3-702(3)(c).
Because Williams introduced some evidence of her inability to
pay restitution, we remand for a new deferred judgment
revocation hearing under this framework.
Facts and Procedural History
After Williams allegedly stole $10, 000 from her employer,
the state charged her with felony theft under section
18-4-401, C.R.S. (2019), and later added misdemeanor criminal
possession of a financial device under section 18-5-903,
C.R.S. (2019). As part of a plea agreement, she pled guilty
to both charges. As to the felony theft count, the court
placed her on a four-year deferred judgment and sentence to
be supervised by the probation department. As to the
misdemeanor count, the court imposed judgment and sentenced
her to two years of probation, to be served concurrently with
the deferred judgment. The agreement required Williams to pay
$10, 000 in restitution to her employer, and the probation
department established a monthly payment schedule.
Two years later, the probation department filed a complaint
alleging that Williams had not made a single restitution
payment. It recommended that the district court enter
judgment on the theft count. Williams denied these
allegations. Following a hearing, the court held the
complaint in abeyance and granted Williams additional time to
Williams subsequently missed several restitution payments.
Because she had paid no more than $534 total toward
restitution, the probation department again recommended that
the court revoke the deferred judgment. It also alleged that
Williams missed several scheduled appointments with her
probation officer, did not search for employment in
compliance with the department's instructions, and had
not completed a community service requirement. The district
attorney filed a motion to the same effect.
At the revocation hearing, Williams's probation officer
testified that Williams had indeed missed multiple payments
but acknowledged that Williams: (1) was searching for a job;
(2) had an overdue home energy bill of about $3, 000 and also
owed about $8, 000 to a credit union; and (3) had purportedly
been trying to sell her personal belongings to pay
Defense counsel argued that "there [had] not been any
showing by the District Attorney that Ms. Williams did, in
fact, have the ability to pay."
Citing this court's decision in People v.
Afentul, 773 P.2d 1081, 1085 (Colo. 1989) (holding that
after the prosecution presents evidence of a defendant's
failure to pay restitution, the burden then shifts to the
defendant to prove that she was financially unable to pay
restitution), the district court disagreed that the
prosecution had the burden to prove ability to pay. Because
Williams "never took any action to indicate that . . .
she was unable to pay," was not disabled, and had a car,
the court found by a preponderance of the evidence that
Williams had the ability to pay. The court concluded that
Williams had failed to comply with the restitution order,
revoked the deferred judgment and sentence, and entered a
judgment of conviction for felony theft.
After a hearing, the court sentenced Williams to four years
of probation. It also imposed, but suspended, a ninety-day
jail sentence on the condition that Williams participate in a
workforce program and receive a mental health evaluation
within the next six months. The court had previously informed
Williams that unless she found work, she would be
"sentenced to Community Corrections or prison [i]n this
Williams appealed, challenging the theft conviction. She
contended that the prosecution had the burden to prove she
had the financial ability to pay restitution and that
insufficient evidence supported the district court's
finding that she had the ability to pay.
A division of the court of appeals disagreed with Williams.
Relying on our decision in Afentul, the division
unanimously held that the record supported the district
court's finding that Williams had the ability to pay.
People v. Williams, No. 14CA1959, ¶ 11 (Nov.
10, 2016). It reasoned that "Williams simply failed to
present evidence providing a complete picture of her
financial circumstances," and the district court judge
"could have only guessed" whether Williams had any
other sources of income, assets, or financial obligations.
Id. at ¶ 13.
The division also rejected Williams's argument that the
prosecution had the burden to prove she had the ability to
pay. Id. at ¶ 14. Again relying on
Afentul, the division reasoned that the burden
shifted to Williams to prove she was unable to make the
restitution payments. Id.
Williams then petitioned this court for certiorari. We agreed
to review her case.
After identifying the standard of review, we discuss the
statutes governing deferred judgment revocation proceedings,
§ 18-1.3-102, C.R.S. (2019), probation revocation
hearings, § 16-11-206, C.R.S. (2019), and due process
protections for defendants ordered to pay restitution, §
18-1.3-702. We then address whether the prosecution must
prove that a defendant is financially able to pay restitution
before a court may revoke a deferred judgment for failure to
pay restitution. In answering this question, we look to
sections 18-1.3-102(2), 16-11-206(3), and 18-1.3-702(3)(c).
Harmonizing these provisions, we conclude that when a
defendant introduces some evidence of her inability to pay
restitution, a district court must make the ability-to-pay
findings under section 18-1.3-702(3)(c) before revoking a
deferred judgment ...