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ADVANCE SHEET HEADNOTE

December 9, 2019

2019 CO 101

No. 16SC979, Williams v. People—Deferred Judgment—Restitution—Ability to Pay—

Statutory Interpretation.

The supreme court considers whether, in a deferred judgment revocation 

proceeding based on a defendant’s failure to pay restitution, the prosecution bears 

the burden of proving that the defendant has the ability to pay restitution. 

The supreme court holds that, when a defendant introduces some evidence 

of 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 

and sentence for failure to pay restitution. 

The supreme court further holds 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).
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2019 CO 101

Supreme Court Case No. 16SC979

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA1959

Petitioner:

Ruth Cheryl Williams,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed

en banc

December 9, 2019

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, Colorado 

JUSTICE HOOD delivered the Opinion of the Court.
2

¶1 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 $500. 

¶2 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 

felony theft. 

¶3 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. 

¶4 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 
3

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).

¶5 Because Williams introduced some evidence of her inability to pay 

restitution, we remand for a new deferred judgment revocation hearing under this 

framework. 

I. Facts and Procedural History

¶6 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. 

¶7 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. 
4

Following a hearing, the court held the complaint in abeyance and granted 

Williams additional time to comply. 

¶8 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. 

¶9 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 restitution.

¶10 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.” 

¶11 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 
5

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.

1 

¶12 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 case.”

¶13 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.

 

1 The court also revoked the deferred judgment based on its finding that Williams 

did not complete any community service hours, but the court of appeals concluded 

that the record did not support that finding. People v. Williams, No. 14CA1959, ¶ 17

(Nov. 10, 2016).
6

¶14 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. 

¶15 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.

¶16 Williams then petitioned this court for certiorari. We agreed to review her 

case.2

 

2 We granted certiorari to review the following issues:

1. Whether the State is required to prove, before the revocation of a 

criminal defendant’s deferred judgment for failure to pay 

restitution, that the defendant was financially able to pay 

restitution and willfully or unreasonably failed to pay restitution 

as this Court’s opinions in Silcott, Romero, and Strickland require. 

2. Whether the evidence was sufficient to sustain the district court’s 

finding that Ms. Williams violated the terms and conditions of her 

deferred judgment. 
7

II. Analysis

¶17 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 for failure to pay. We further conclude that the 

prosecution bears the burden of proving by a preponderance of the evidence that 

the defendant was financially able to pay restitution under the enumerated 

statutory criteria. 

A. Standard of Review

¶18 Whether the prosecution bears the burden of proving a defendant’s ability 

to pay in a deferred judgment revocation proceeding based on the defendant’s

failure to pay restitution is a question of law that we review de novo. See People v. 

Delage, 2018 CO 45, ¶ 5, 418 P.3d 1178, 1179. 
8

¶19 To resolve this issue, we must interpret the foregoing statutes. In 

interpreting statutes, we “endeavor to effectuate the purpose of the legislative 

scheme.” People v. Iannicelli, 2019 CO 80, ¶ 20, 449 P.3d 387, 391. To do so, we look 

to the statute’s plain language, “giving its words and phrases their plain and 

ordinary meanings.” Id. at ¶ 19, 449 P.3d at 391. “We also read the statutory 

scheme as a whole, giving consistent, harmonious, and sensible effect to all of its 

parts and avoiding constructions that would render any words or phrases 

superfluous.” Pineda-Liberato v. People, 2017 CO 95, ¶ 22, 403 P.3d 160, 164. 

B. Deferred Judgments

¶20 A deferred judgment and sentence is an alternative to a traditional guilty 

plea. People v. Widhalm, 642 P.2d 498, 500 (Colo. 1982). It allows a defendant to 

plead guilty but defers entry of the judgment and sentence for a specified period 

of time. Id.; M.T. v. People, 2012 CO 11, ¶ 11, 269 P.3d 1219, 1221. Before the 

defendant enters a guilty plea, the district attorney may enter into a written 

stipulation (to be signed by the defendant, the defendant’s attorney, and the 

district attorney), requiring the defendant to comply with certain conditions 

during the deferral period. § 18-1.3-102(2). The deferred judgment statute 

provides that these conditions “shall be similar in all respects to conditions 

permitted as part of probation.” Id. And during the deferral period, the court may 

place the defendant under the supervision of the probation department. See id. 
9

¶21 If the defendant complies with these conditions, then at the end of the 

deferral period, the court must withdraw the defendant’s guilty plea and dismiss 

with prejudice the charges underlying the deferred judgment. Id. 

¶22 But, if the defendant violates “any condition regulating the conduct of the 

defendant,” the court “shall enter judgment and impose sentence upon the guilty 

plea.” Id.; People v. Wilder, 687 P.2d 451, 453 (Colo. 1984) (“[A] trial court does not 

have discretion in revoking a deferred judgment once it finds that the defendant 

has violated the terms of a deferred judgment and sentence.”).3 

¶23 In the event of an alleged violation, the district attorney or a probation 

officer must apply for entry of the judgment of conviction and sentence, and the 

court must hold a hearing regarding the application. § 18-1.3-102(2). At this 

hearing, “[t]he burden of proof . . . shall be by a preponderance of the evidence.” 

Id. When one of the stipulated conditions is a restitution payment, “evidence of 

failure to pay the restitution shall constitute prima facie evidence of a violation.” 

Id. 

¶24 Of significance here, “the procedural safeguards required in a revocation of 

probation hearing shall apply.” Id. 

 

3 The deferred judgment statute provides an exception to this rule, but it is 

inapplicable here. See § 18-1.3-102(2). 
10

C. Revocation of Probation Hearings and Statutory Due 

Process Protections Regarding Failure to Pay

¶25 In a revocation of probation hearing, “the prosecution has the burden of 

establishing by a preponderance of the evidence the violation of a condition of 

probation.” § 16-11-206(3). And, like deferred judgment revocation proceedings, 

when “the alleged violation of a condition is the probationer’s failure to pay . . . 

restitution . . . , evidence of the failure to pay shall constitute prima facie evidence 

of a violation.” Id. “If probation is revoked, the court may then impose any 

sentence or grant any probation . . . which might originally have been imposed or 

granted.” § 16-11-206(5). 

¶26 But before a court may revoke probation for failure to pay, section 

18-1.3-702(3) provides additional procedural protections. Under section 

18-1.3-702(3), “[i]ncarceration for failure to pay is prohibited absent provision of 

the following procedural protections.” A court “shall not find the defendant in 

contempt of court, nor impose a suspended sentence, nor revoke probation, nor 

order the defendant to jail for failure to pay unless” it has made “findings on the 

record, after providing notice to the defendant and a hearing,” 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) (emphasis added); see also Crim. P. 32(g) (“When 
11

a defendant fails to pay a monetary amount imposed by the court, the court shall 

follow the procedures set forth in section 18-1.3-702(3).”).

4 

¶27 This statutory procedure helps to ensure that probationers receive the due 

process protections to which they are entitled under the Fourteenth Amendment

to the U.S. Constitution. The U.S. Supreme Court declared in Bearden v. Georgia, 

461 U.S. 660, 672–73 (1983), that depriving a probationer of her conditional 

freedom “simply because, through no fault of [her] own,” she cannot pay 

restitution is “contrary to the fundamental fairness required by the Fourteenth 

Amendment.” For this reason, the Court held that “in revocation proceedings for 

failure to pay a fine or restitution, a sentencing court must inquire into the reasons 

for the failure to pay.” Id. at 672. Thus, “[i]f the probationer willfully refused to 

pay or failed to make sufficient bona fide efforts legally to acquire the resources to 

 

4 Section 18-1.3-702(4) further describes when a defendant or her dependents are 

“considered to suffer undue hardship” and enumerates factors the court “shall 

consider” in “determining whether a defendant is able to comply with an order to 

pay a monetary amount without undue hardship.” But because the General 

Assembly added section 18-1.3-702(4) in 2016, and the court held Williams’s 

revocation hearing on July 25, 2014, the court was not required to consider these 

factors when finding that Williams had the ability to pay. See Ch. 343, sec. 2, 

§ 18-1.3-702, 2016 Colo. Sess. Laws 1394, 1397 (noting this act applies to hearings 

for failure to make monetary payments conducted on or after June 10, 2016). 
12

pay, the court may revoke probation and sentence the defendant to 

imprisonment.” Id. 

¶28 Recently, this court adopted Bearden’s holding for probation revocation 

proceedings based on a defendant’s financial inability to comply with a 

nonpayment condition of probation. Sharrow v. People, 2019 CO 25, ¶ 26, 438 P.3d 

730, 737. In Sharrow, the defendant claimed that he left his residence and failed to 

complete treatment—in violation of probation—because he was unable to pay for

rent and treatment. Id. at ¶ 11, 438 P.3d at 733–34. Applying Bearden, we held that 

“the trial court cannot revoke probation and impose imprisonment without first 

determining whether [the probationer] failed to comply with probation willfully 

or failed to make sufficient bona fide efforts to acquire resources to comply with 

probation.” Id. at ¶ 6, 438 P.3d at 733. But we declined to adopt Bearden in the 

payment condition context because we recognized that Colorado law already 

addresses this issue in Crim. P. 32 and section 18-1.3-702. Id. at ¶ 6 n.1, 438 P.3d at 

732 n.1.

¶29 Indeed, section 18-1.3-702 affords probationers greater procedural 

protection than Bearden: Under Bearden, a court may still revoke probation and 

imprison a probationer who cannot pay despite a good-faith effort to do so if 

“alternate measures [of punishment] are not adequate to meet the State’s 

interests.” 461 U.S. at 672. In contrast, section 18-1.3-702(3)(c) prohibits a court 
13

from revoking probation and incarcerating a probationer for failure to pay, unless 

it finds on the record that the probationer had the ability to pay without undue 

hardship and did not make a good-faith effort to pay. 

¶30 We now consider whether these statutory procedural safeguards apply in

deferred judgment revocation proceedings for failure to pay restitution. 

D. Statutory Due Process Protections for Probation 

Revocation, Based on Failure to Pay, Extend to Deferred 

Judgment Revocations at the Time of Revocation

¶31 Because “the procedural safeguards required in a revocation of probation 

hearing shall apply” in a deferred judgment revocation hearing, § 18-1.3-102(2), 

we look to the procedural safeguards required before a court may revoke 

probation for failure to pay restitution. 

¶32 Like the deferred judgment statute, the probation revocation hearing statute 

provides that “[w]hen, in a revocation hearing, the alleged violation of a condition 

is the probationer’s failure to pay . . . restitution . . . , evidence of the failure to pay 

shall constitute prima facie evidence of a violation.” Compare § 16-11-206(3), with

§ 18-1.3-102(2) (“evidence of failure to pay the restitution shall constitute prima 

facie evidence of a violation”). 

¶33 But before a court may revoke probation for failure to pay, section 

18-1.3-702(3)(c) requires the court to make additional findings. Recall that under 

this provision, the court “shall not . . . revoke probation . . . for failure to pay unless 
14

the court has made findings on the record, after providing notice to the defendant 

and a hearing,” 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). 

¶34 While section 18-1.3-702(3) requires these ability-to-pay findings before a 

court may incarcerate a probationer for failure to pay, we conclude this procedural 

protection comes into play before a court may revoke probation for failure to pay. 

¶35 We come to this conclusion for several reasons. First, the plain language of 

subsection 18-1.3-702(3)(c) requires these findings before a court may “revoke 

probation” for failure to pay. And, of course, a court must first revoke probation 

before incarcerating a probationer: “If probation is revoked, the court may then

impose any sentence or grant any probation . . . which might originally have been 

imposed or granted.” § 16-11-206(5) (emphases added); see People ex rel. 

Gallagher v. Dist. Court, 591 P.2d 1015, 1017 (Colo. 1978) (“In a probation revocation 

hearing, the concern is whether the alternatives to incarceration which have been 

made available to a defendant remain viable.”). To interpret section 

18-1.3-702(3)(c) as requiring ability-to-pay findings only immediately before 

incarcerating a probationer for failure to pay would render the language 

prohibiting a court from revoking probation absent these findings meaningless.
15

This we may not do. See Pineda-Liberato, ¶ 39, 403 P.3d at 166 (“We cannot, 

however, interpret statutory provisions so as to render any of their words or 

phrases meaningless or superfluous.”). 

¶36 Second, section 18-1.3-702(3)(c) enumerates four specific scenarios before 

which a court must make these ability-to-pay findings on the record: (1) finding a 

defendant in contempt of court; (2) imposing a suspended sentence; (3) revoking 

probation; and (4) ordering a defendant to jail. And, the first three scenarios echo

the preceding subsection, § 18-1.3-702(3)(b): 

[I]f the defendant failed to pay a monetary amount due and the record 

indicates that the defendant has willfully failed to pay that monetary 

amount, the court, when appropriate, may consider a motion to 

impose part or all of a suspended sentence, may consider a motion to 

revoke probation, or may institute proceedings for contempt of court. 

Together with subsection 18-1.3-702(3)(c), this provision evinces the legislature’s 

intent that a court make the ability-to-pay findings before granting these motions 

or finding a defendant in contempt of court.5 See Allen v. Charnes, 674 P.2d 378, 

 

5 To the extent these provisions are ambiguous, we may consider the statute’s 

legislative history. Iannicelli, ¶ 21, 449 P.3d at 391–92. The bill summary from the 

Senate Judiciary Committee similarly states that “if the defendant fails to pay, the 

court may consider a motion to impose part or all of a suspended sentence, revoke 

probation, or institute proceedings for contempt of court. The court may not take 

any of these actions unless it has made findings on the record, after providing notice 

to the defendant and a hearing, that the defendant has not made a good faith effort 
16

381 (Colo. 1984) (A subsection must be read and considered in the context of the 

broader statutory section as a whole.); Kirkmeyer v. Dep’t of Local Affairs, 313 P.3d 

562, 568 (Colo. App. 2011) (A court may look to “the placement and interaction of 

subsections within the statutory framework.”). 

¶37 Third, section 18-1.3-702(3) (“Incarceration for failure to pay is prohibited 

. . . .”) is readily harmonized with subsection 18-1.3-702(3)(c) (“The court shall not 

. . . revoke probation . . . for failure to pay . . . .”). People v. Cross, 127 P.3d 71, 73 

(Colo. 2006) (When interpreting statutes, we must “harmonize potentially 

conflicting provisions.”); People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986) (“If 

separate clauses within a statute may be reconciled by one construction but would 

conflict under a different interpretation, the construction which results in harmony 

rather than inconsistency should be adopted.”). Read together, these provisions 

prevent a court from incarcerating a probationer for failure to pay unless the court 

makes the ability-to-pay findings before revoking probation for failure to pay. 

¶38 Accordingly, a court must make the ability-to-pay findings under section 

18-1.3-702(3)(c) before revoking probation for failure to pay, not before 

subsequently incarcerating a probationer for failure to pay.

 

to comply with the order.” Final Bill Summary for H.B. 14-1061, S. Judiciary 

Comm., 69th Gen. Assemb., 2nd Sess. (Apr. 16, 2014) (emphasis added). 
17

¶39 Because these ability-to-pay findings are procedural protections for 

probationers facing revocation of probation for failure to pay, see § 18-1.3-702(3), 

and “the procedural safeguards required in a revocation of probation hearing shall 

apply” in a deferred judgment revocation hearing, § 18-1.3-102(2), these findings 

apply in deferred judgment revocation proceedings for failure to pay restitution. 

Accord Strickland v. People, 594 P.2d 578, 579 (Colo. 1979) (holding—in the deferred 

judgment context—that before a court may revoke probation for failure to pay 

restitution, it must find the defendant had the ability to pay). 

E. The Prosecution Has the Burden to Prove a Defendant’s 

Ability to Pay Restitution When the Defendant Presents 

Some Evidence of Inability to Pay

¶40 Harmonizing the ability-to-pay findings required by section 18-1.3-702(3)(c) 

with the plain language of the deferred judgment statute, we conclude that when 

a defendant introduces some evidence of her inability to pay, the prosecution has 

the burden of proving the defendant’s ability to pay before a court may revoke a 

deferred judgment for failure to pay restitution. 

¶41 Although the deferred judgment statute does not specify which party bears 

the burden of proof, it notes that “the procedural safeguards required in a 

revocation of probation hearing shall apply.” § 18-1.3-102(2). And, the revocation 

of probation hearing statute specifies that “the prosecution has the burden of 

establishing by a preponderance of the evidence the violation of a condition of 
18

probation.” § 16-11-206(3). Thus, the prosecution bears the burden of proof in a 

deferred judgment revocation hearing. 

¶42 As the moving party, the prosecution bears the initial burden of producing 

evidence that the defendant failed to pay the restitution payment ordered by the 

court. Afentul, 773 P.2d at 1085. The plain language of the deferred judgment 

statute instructs that this evidence constitutes “prima facie evidence” of a violation 

of the deferred judgment. § 18-1.3-102(2). And upon a violation “the court shall 

enter judgment and impose sentence.” Id.; Wilder, 687 P.2d at 453 (Once a court

“finds that the defendant has violated the terms of a deferred judgment and 

sentence,” it “does not have discretion in revoking a deferred judgment.”). This 

court has interpreted the phrase “prima facie evidence” in the deferred judgment 

statute as “evidence which, if not rebutted or contradicted, will sustain the entry 

of a judgment of conviction and the imposition of sentence.” Afentul, 773 P.2d at 

1084. Thus, under the deferred judgment statute, unrebutted evidence of failure 

to pay restitution is sufficient to enter the judgment.

¶43 But if the defendant rebuts the prosecution’s prima facie evidence of failure 

to pay restitution by introducing some evidence of her inability to pay, thus 

placing her ability to pay at issue, the court may not revoke the deferred judgment

for failure to pay unless it makes the following findings on the record: (1) “the 

defendant has the ability to comply with the court’s order to pay a monetary 
19

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); see § 18-1.3-102(2). 

¶44 Because a court may not revoke the deferred judgment for failure to pay 

unless it makes these affirmative ability-to-pay findings on the record, and the 

prosecution bears the burden of proof in a deferred judgment revocation hearing, 

it follows that the prosecution also bears the burden as to these findings.

6 Cf. 

 

6 We recognize the concern that placing the burden to prove ability to pay on the 

prosecution might require the prosecution to investigate the defendant’s financial 

situation, which could demand significant time and resources. But, as we 

recognized in Sharrow, a “probation officer should be very familiar with the 

probationer’s financial situation.” ¶ 48, 438 P.3d at 741. Accordingly, “[w]e expect 

that a probation officer will be able to testify about the defendant’s needs, financial 

means, and requests for financial assistance . . . and any efforts the defendant may 

have made toward obtaining employment.” Id., 438 P.3d at 741–42. Indeed, 

Williams’s probation officer testified that she and a collections investigator 

determined Williams’s ability to pay “based on the information that the defendant 

provide[d].” She also testified that Williams had to attend “regular reviews . . . to 

evaluate her ability to pay restitution,” and that her ability to pay was “reevaluated on a regular basis.” And, to the extent that information provided by the 

defendant is incomplete or unreliable, the prosecution may call the defendant as a 

witness to testify regarding her ability to pay. See Byrd v. People, 58 P.3d 50, 56–57 

(Colo. 2002) (“While a probationer retains her Fifth Amendment privilege to refuse 

to answer incriminatory questions, the prosecution may call her as a witness at a 

revocation hearing.”). Indeed, it is generally incumbent on the defendant to raise 

and explain her inability to pay. § 18-1.3-702(2)(a) (“If at any time the defendant 

is unable to pay the monetary amount due, the defendant must contact the court’s 

designated official or appear before the court to explain why he or she is unable to 
20

Sharrow, ¶¶ 44–49, 438 P.3d at 741–42 (noting that when a defendant asserts a 

financial inability to comply with a nonpayment condition of probation, the 

burden of proof remains on the prosecution); CRE 301 (In civil cases, while the 

burden of production may shift, “the burden of proof . . . remains throughout the 

trial upon the party on whom it was originally cast.”). As the moving party, the 

prosecution bears the risk of nonpersuasion—in the sense that the court will deny 

its application to revoke the deferred judgment—if it does not produce sufficient 

evidence to support the required ability-to-pay findings by a preponderance of the 

evidence.7 

 

pay the monetary amount.”). Thus, requiring the prosecution to produce evidence 

of and prove a defendant’s ability to pay is not unreasonably burdensome.

7 Guided by this court’s rationale in Strickland, Williams contends that the 

prosecution must also prove that the defendant “unreasonably or willfully failed 

to pay” before a court may revoke a deferred judgment. But, in proving that a 

defendant has the ability to pay and failed to make a good-faith effort to pay, the 

prosecution necessarily establishes that any failure to pay was willful or at least 

unreasonable. See Strickland, 594 P.2d at 579 (“The reason for requiring that ability 

to pay be established . . . is to allow revocation only where the probationer 

unreasonably or willfully fails to comply . . . .”). Because in this context, these 

considerations are two sides of the same coin, it is unnecessary for the prosecution 

to additionally prove that the failure to pay was unreasonable or willful. 
21

F. The General Assembly Abrogated Afentul’s BurdenShifting Procedure

¶45 These mandatory ability-to-pay findings render Afentul’s burden-shifting 

procedure a relic from a bygone statutory era. In Afentul, we concluded that once 

the prosecution presented evidence of the defendant’s failure to pay restitution, 

“the burden then shift[ed] to the defendant to establish by a preponderance of the 

evidence that he was financially unable to make the payments at the time they 

should have been made.” 773 P.2d at 1085. 

¶46 But, following our decision in Afentul, the General Assembly amended the 

monetary payment statute to include section 18-1.3-702(3)(c), which requires a 

court to make additional ability-to-pay findings before revoking probation for 

failure to pay restitution. Ch. 164, sec. 1, § 18-1.3-702, 2014 Colo. Sess. Laws 575, 

576–77.8 Because we conclude that —when a defendant introduces some evidence 

of her inability to pay—a court must also make these ability-to-pay findings before 

revoking a deferred judgment for failure to pay, and the prosecution bears the 

burden of proof regarding these findings, Afentul’s burden-shifting procedure 

does not comport with the current statutory scheme and the procedural 

safeguards it requires before revoking a deferred judgment for failure to pay

 

8 The statute’s effective date was May 9, 2014, 2014 Colo. Sess. Laws at 578, and the 

court held Williams’s revocation hearing on July 25, 2014. 
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restitution. Thus, the legislature has abrogated the burden-shifting described in

Afentul. 

III. Sufficiency of the Evidence

¶47 Williams also contends that the evidence presented at the deferred 

judgment revocation hearing was insufficient to support the court’s finding that 

she had the present ability to pay. She therefore asks us to vacate the theft 

conviction and remand this case for dismissal. But we conclude that a new

deferred judgment revocation hearing is warranted. 

¶48 On cross-examination, Williams’s counsel elicited testimony from 

Williams’s probation officer that Williams had an overdue home energy bill of 

about $3,000 and owed about $8,000 to a credit union and that Williams had told 

the probation officer that she had been trying to sell her belongings to pay 

restitution. Because this was some evidence of Williams’s inability to pay, the 

court had to make the ability-to-pay findings in section 18-1.3-702(3)(c) before 

revoking the deferred judgment for failure to pay restitution. And, the 

prosecution had the burden of proving the facts underlying these findings by a 

preponderance of the evidence. Thus, we remand for a new deferred judgment 

revocation hearing under this framework.

¶49 If the district court finds on the record that Williams had the ability to 

comply with the court’s restitution order without undue hardship and that she did 
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not make a good-faith effort to comply, the court will re-enter the judgment of 

conviction for theft. Conversely, if the prosecution does not meet its burden as to 

either of these findings, the judgment of conviction for felony theft is vacated. 

IV. Conclusion

¶50 We reverse the judgment of the court of appeals and remand with 

instructions to return this case to the district court for a new deferred judgment 

revocation hearing consistent with this opinion.