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People v. Johnson.

2023 COA 43. No. 21CA0669. Sentencing—Restitution—Procedural Deadlines—Good Cause to Extend Trial Court’s Deadline—Due Process.

May 25, 2023

Johnson, a loss prevention officer for Walmart, was captured on video stealing cash from registers and electronics. The prosecution initially charged him with third degree burglary and theft of between $2,000 and $5,000, but an investigating officer later determined that the value of the stolen property was higher. The officer later submitted a supplemental report to the prosecution with a recommendation to amend the theft charge, which the prosecutor declined to do. Instead, Johnson pleaded guilty to theft as a class 6 felony and to an added count of theft as a class 1 misdemeanor in exchange for dismissal of the third degree burglary count. As relevant here, Johnson agreed to pay restitution for all counts and cases governed by the plea agreement, including counts and/or cases dismissed as part of the plea agreement, in an amount to be determined within 91 days. The restitution information was not available when Johnson pleaded guilty, so the district court accepted the plea agreement, ordered the prosecutor to provide the restitution amount within 91 days, and gave the defense 60 days to object. The prosecution filed its restitution motion for $11,030.30 on September 8, 2020, the 91st day and the date of conviction, and the district court ordered restitution in that amount on the same day. On October 2, 2020, Johnson objected to the restitution amount and requested a hearing, arguing that the September 8 order did not constitute a final determination under CRS § 18-1.3-603. The court held a hearing on March 23, 2021. It found that Johnson’s objection and request for a hearing, made in accordance with the court’s sentencing order, constituted good cause to conduct a hearing and determine restitution beyond 91 days, and it ordered restitution in the amount requested.

On appeal, Johnson argued that the district court violated the restitution statute by imposing restitution after the 91-day deadline without good cause. The division interpreted the parties’ agreement allowing the prosecutor 91 days to submit restitution information as both a motion for restitution and the parties’ acknowledgment that restitution information was not available before the conviction. Here, the record shows that the restitution information wasn’t available to the prosecution at the time of Johnson’s plea, and the court complied with CRS § 18-1.3-603(1)(b) by accepting the parties’ agreement that the prosecutor would provide a restitution amount within 91 days of the conviction. Further, (1) the prosecutor complied with the plea agreement and CRS § 18-1.3-603(2)(b) by providing the restitution amount on the 91st day; (2) the court complied with CRS § 18-1.3-603(1)(b) by entering the restitution order on the 91st day; and (3) the court’s standing case management order permitting the defense to object to restitution within 30 days, coupled with its order at sentencing granting the defense 60 days to object to the restitution order entered, constituted good cause under CRS § 18-1.3-603(2)(b) to permit entry of a final restitution order beyond 91 days.

Johnson also contended that the court deprived him of due process by ordering restitution in an amount not authorized by his guilty plea because the court lacked authority to order restitution for the dismissed count and uncharged misconduct. However, the plea agreement shows that Johnson specifically agreed to pay restitution for dismissed cases, dismissed counts, and uncharged misconduct. Accordingly, the district court did not err in the amount of restitution ordered.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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