People v. Gregory

          El Paso County District Court No. 15CR2254 Honorable G. David Miller, Judge

          Philip J. Weiser, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado; Daniel H. May, District Attorney, Tanya A. Karimi, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant

          Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee

          OPINION

          MARTINEZ JUSTICE ^[*]

         ¶ 1 Defendant, Marshal Douglas Gregory, and the People each appeal the restitution order entered by the district court. We decide that the court's authority to decrease restitution does not carry with it the same limitations placed on its authority to increase restitution previously ordered. We also conclude that the comprehensive settlement agreement in this case - which was intended to cover all liabilities and indemnified defendant for any further losses - meets defendant's burden of going forward to show that he compensated the victims for the same categories of losses for which restitution could be imposed. Thus, we reverse and remand for further proceedings.

         I. Background

         ¶ 2 In September 2014, defendant, who was seventeen years old at the time, drove while intoxicated and crashed his vehicle, killing two passengers (B.B. and R.P.) and seriously injuring a third (J.C.). Defendant pleaded guilty, as an adult, to two counts of vehicular homicide. On October 11, 2015, defendant's insurance company settled with the two deceased victims' families and the living victim. Each of the deceased victims' families received $500, 000 and, in exchange, released defendant, his parents, and his insurance company from all claims stemming from the incident.

         ¶ 3 On October 16, 2015, the court sentenced defendant to a twelve-year suspended prison sentence, conditioned on completion of four years in the Youthful Offender System. During sentencing, the court reserved restitution for ninety-one days. On January 6, 2016, the prosecution requested restitution of $15, 513.43. The requested restitution consisted of (1) $3307.33 to R.P.'s family for travel expenses and psychologist fees for R.P.'s brother; and (2) $5542 and $6664.10 to the Crime Victim Compensation Program (CVCP) for payments made to B.B.'s and R.P.'s families, respectively, for funeral expenses.

         ¶ 4 On May 27, 2016, following a restitution hearing, the court entered a restitution order for the entire amount requested by the prosecution. The order stated that defendant had thirty days to object to the amount of restitution before the order became final. Defendant filed an objection on June 8, 2016 - within the allotted thirty days - arguing that the court should "reconsider" its order. The court issued an amended restitution order on July 11, 2016, in which it removed the payment that was to be made directly to R.P.'s family, reasoning that it was set off by the settlement agreement. The court maintained that defendant was liable to the CVCP, as the fund was not a party to the settlement agreements.

         ¶ 5 Defendant now appeals the amended restitution order, arguing that the court erred by denying him a setoff for the CVCP payments. The People filed a cross-appeal in which they argue that (1) the court did not have authority to change its May 27, 2016, restitution order; and (2) the court erred by granting defendant a setoff for the payment to R.P.'s family.

         II. The Court's Authority to Amend the Restitution Order

         ¶ 6 As a threshold matter, the People contend that the district court did not have authority to change its May 27, 2016, order. We disagree.

         A. Applicable Law

         ¶ 7 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, ¶ 7.

         ¶ 8 The district court must consider restitution in every order of conviction it enters in a felony case. § 18-1.3-603(1), C.R.S. 2019. Pursuant to section 18-1.3-603(1), an order of conviction must contain: (a) an order specifying the amount of restitution; (b) an order that the defendant must pay restitution but that the specific amount is to be determined within ninety-one days from the order of conviction, or longer for good cause; (c) an order, in addition to a specific amount of restitution, that the defendant cover the cost of a victim's specific future treatment; or (d) a finding that no victim of the crime suffered a pecuniary loss and that restitution is not required. § 18-1.3-603(1).

         ¶ 9 Section 18-1.3-603(3) also states:

         Any order for restitution may be:

(a) Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court; or

(b) Decreased:

(I) With the consent of the prosecuting attorney and the victim or victims to whom the ...