SUMMARY

April 23, 2020

2020COA72

No. 17CA2267, People v. Roddy — Criminal Law — Sentencing 

— Restitution — Assessment of Restitution

Distinguishing People v. Weeks, 2020 COA 44, a division of the 

court of appeals holds that, because the prosecution presented its 

restitution request ninety days after defendant’s conviction entered, 

seeking hundreds of thousands of dollars in attorney billings, good 

cause existed to extend the period for determining restitution so 

that the defendant would have the opportunity to object to the 

restitution request and the court would have the opportunity to 

review and rule on the award. 

The special concurrence highlights the ambiguities in the 

wording of section 18-1.3-603, C.R.S. 2019; disagrees with the 

Weeks decision; and would conclude that the ninety-one-day time 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
limit in section 18-1.3-603(1) applies to the prosecution’s 

determination of restitution, and not to the court’s authority to 

enter a restitution order.
COLORADO COURT OF APPEALS 2020COA72

Court of Appeals No. 17CA2267

Boulder County District Court No. 15CR1874

Honorable Maria E. Berkenkotter, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan D. Roddy,

Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE TERRY

Yun, J., concurs

Tow, J., specially concurs

Announced April 23, 2020

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan, & Foreman P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver, 

Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Jonathan D. Roddy, appeals the restitution order 

entered against him by the district court. We reverse the restitution 

order and remand the case to the district court for further 

proceedings.

I. Background

¶ 2 Defendant’s guilty plea was a result of a complicated series of 

events involving the victim, who was his ex-wife. The following 

allegations were made by the prosecution.

¶ 3 Defendant and the victim share a child and were divorced in 

2003. Since 2009, defendant and the victim had been engaged in 

litigation regarding parenting time, decision-making authority, and 

child support. 

¶ 4 In a motion to temporarily restrict parenting time, filed in 

2014, defendant included photographs of the inside and outside of 

the victim’s home. Suspicious that the photos had been shot from 

inside her home, the victim hired a forensic photographer to 

investigate the location from which the photographs had been 

taken. The investigator concluded that the photos had been shot 

from inside the house. It was then apparent that defendant had
2

entered the house without the victim’s permission, in violation of a 

court order, while she was out of town in November 2014. 

¶ 5 The victim also discovered that defendant and his wife were 

using the victim’s son’s iPad to access the victim’s personal emails 

and digital files that were stored in Apple’s “iCloud” storage system. 

Defendant’s wife had downloaded many of the victim’s documents 

from the son’s computer, including her email communications with 

her attorney regarding the domestic relations litigation. The emails 

also included the victim’s communications with her financial 

advisors, accountants, family, and friends. Defendant and his wife 

intended to use the data they obtained against the victim in the 

domestic relations case. 

¶ 6 The victim became involved in protracted litigation with 

defendant and his wife to retrieve her data. She tried to obtain 

permanent protection orders against defendant and his wife, and 

the parties entered into a settlement agreement in which defendant 

and his wife represented and warranted that they had returned all 

of the data, that they did not have any copies of the data, and that 

they would no longer use the data. Shortly thereafter, the victim

alleged that defendant and his wife were continuing to use the
3

victim’s data in violation of the agreement. The parties then 

became involved in an arbitration proceeding for breach of the 

settlement agreement, and a contempt proceeding related to the 

domestic relations case. 

¶ 7 Defendant and his wife were each charged in separate cases

with one count of stalking and one count of computer crime. After 

defendant pleaded guilty in this case to an added count of first 

degree criminal trespass for the November 2014 incident, he was 

given a two-year deferred judgment. About fifteen months after his 

deferred judgment was entered, the trial court ordered him to pay 

restitution of $688,535 to reimburse the victim’s attorney fees and 

investigation costs incurred in connection with defendant’s conduct 

in the civil and criminal proceedings. No restitution was sought or 

ordered in defendant’s wife’s case following her guilty plea to a 

computer crime. Defendant now appeals the court’s restitution 

order. 

II. Withdrawn Guilty Plea

¶ 8 As an initial matter, the People contend that defendant waived 

his right to appeal the restitution order because, as part of the 

deferred judgment, he successfully withdrew his guilty plea and 
4

obtained dismissal of the criminal charge against him, and payment 

of restitution was a condition of that deferred judgment. We 

disagree with the People’s contention.

¶ 9 Section 18-1.3-603(4)(a)(I), C.R.S. 2019, states that any order 

of restitution is a “final civil judgment in favor of the state and any 

victim[,]” and that “any such judgment remains in force until the 

restitution is paid in full. The provisions of [sections 16-18.5-104 

to -112, C.R.S. 2019,] apply notwithstanding the termination of a 

deferred judgment and sentence . . . .” Our supreme court has held 

that this provision means that dismissal of a charge upon 

completion of a deferred sentence does not deprive the trial court of 

authority to enforce a restitution order. Pineda-Liberato v. People, 

2017 CO 95, ¶¶ 32-33. Given that restitution can be enforced after 

completion of a deferred sentence, and restitution is a separately 

appealable order, see Sanoff v. People, 187 P.3d 576, 578 (Colo. 

2008), it follows that a defendant does not waive his right to appeal 

a restitution order by withdrawing his guilty plea.

¶ 10 Furthermore, the terms of the plea agreement did not indicate 

that defendant waived his right to appeal all non-jurisdictional 

issues related to the restitution order. The plea agreement, 
5

according to the People, simply stated that defendant had sufficient 

income or assets to pay all restitution ordered by the court, and 

that failure to comply would be a violation of the plea agreement.

Those terms do not address, much less waive, defendant’s appellate 

rights to the restitution order. 

¶ 11 We are also not persuaded by the People’s contention that our 

supreme court’s opinions in Neuhaus v. People, 2012 CO 65, and 

Kazadi v. People, 2012 CO 73, warrant a different result. Both 

cases are distinguishable. 

¶ 12 Relying on Neuhaus, the People argue that “a defendant’s 

motion to withdraw his guilty plea and dismiss the case pursuant to 

[section] 18-1.3-102 [effects] a waiver of all non-jurisdictional issues 

arising in the context of a deferred judgment and sentence,” and 

that defendant cannot take the benefits of the deferred judgment 

and sentence, but still obtain appellate review of a restitution order. 

We do not read Neuhaus as supporting such an argument. That 

case dealt with conditional guilty pleas. The court there said that a 

guilty plea “‘represents a break in the chain of events which has 

preceded it in the criminal process’ and waives all non-jurisdictional 

errors in the defendant’s conviction, including the seizure of 
6

evidence.” Neuhaus, ¶ 8 (quoting Tollett v. Henderson, 411 U.S. 

258, 266-67 (1973)). Because the setting of restitution did not 

precede the guilty plea, Neuhaus does not support the People’s

argument.

¶ 13 The People next argue that, under Kazadi, defendant was 

obligated to seek a withdrawal of his plea agreement under Crim. P. 

32(d) before completing his deferred judgment and sentence if he 

wanted to preserve his appellate challenge to the restitution order. 

We disagree. Kazadi, ¶ 20, noted that the parties had agreed that 

“Crim. P. 32(d) is an appropriate vehicle for withdrawal of guilty 

pleas involving deferred judgments.” Though a defendant may file a 

motion to withdraw a guilty plea under Crim. P. 32(d), nothing in 

Kazadi requires a defendant to follow that procedure to enable him 

to contest a restitution order.

¶ 14 We therefore conclude that defendant’s appeal of his

restitution order is properly before us.

III. Timeliness of Restitution Order

¶ 15 Defendant contends that the trial court did not have authority 

to enter the restitution order against him because it was entered 
7

more than ninety-one days after entry of his deferred sentence. We 

disagree.

A. Procedural Background

¶ 16 Defendant entered his guilty plea on July 20, 2016, and the 

court reserved restitution for ninety-one days. The People filed a 

motion for restitution within the ninety-one-day period, requesting 

that the court order restitution of $390,613.90, which represented

the legal fees and disbursements that the victim made to two 

different law firms. 

¶ 17 Defendant filed an objection to the restitution amount and

requested that the court order the People to set forth a good faith 

basis for the requested restitution. The People filed their response 

in which they requested time to confer with the victim’s civil 

attorney and with defendant’s counsel, and the court granted this 

request. 

¶ 18 After the parties met, the People filed a motion in February 

2017 informing the court that the victim’s civil attorney was 

concerned about releasing unredacted invoices because of the 

attorney-client privilege, and that the civil attorney would like to 

have a restitution hearing after resolution of the civil arbitration 
8

hearing, which was scheduled for June 2017. Defendant filed a 

motion to dismiss the People’s restitution request based on the 

delay, and the court ordered a restitution hearing to resolve these

issues. 

¶ 19 In July 2017, before the restitution hearing, the People moved 

to amend the restitution request to $827,236.22, explaining that 

the increase resulted from the victim’s ongoing civil litigation with 

defendant. The People later filed affidavits supporting a reduced

restitution amount of $688,535.12. The reduced amount 

accounted for attorney fees and costs that the victim had received

in the contempt litigation. The People provided defendant’s counsel 

with redacted billing records to preserve the victim’s attorney-client 

privilege. 

¶ 20 After a two-day hearing, the court ordered defendant to pay 

restitution of $688,535.12. 

B. Analysis

¶ 21 Every order of conviction for a felony shall include 

consideration of restitution. § 18-1.3-603(1). Each such order 

shall include one or more of the following:
9

(a)An order of a specific amount of 

restitution be paid by the defendant;

(b)An order that the defendant is obligated 

to pay restitution, but that the specific 

amount of restitution shall be determined 

within the ninety-one days immediately 

following the order of conviction, unless 

good cause is shown for extending the 

time period by which the restitution 

amount shall be determined;

(c)An order, in addition to or in place of a 

specific amount of restitution, that the 

defendant pay restitution covering the 

actual costs of specific future treatment 

of any victim of the crime; or

(d)Contain a specific finding that no victim 

of the crime suffered a pecuniary loss and 

therefore no order for the payment of 

restitution is being entered.

§ 18-1.3-603(1). 

¶ 22 An order for restitution may also be 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.” § 18-1.3-603(3)(a). 

¶ 23 Defendant contends that, under Meza v. People, 2018 CO 23, 

and People v. Turecek, 2012 COA 59, the court lacked authority to 

enter its October 20, 2017, restitution order because it did so after 

its statutory authority expired. He argues that the court was bound 
10

by the ninety-one-day limit in section 18-1.3-603(1). He also 

asserts that the People never argued, and the district court never 

found, that good cause existed for extending the time period. The 

People counter that the ninety-one-day period limits only the time 

within which the prosecution must present its restitution request. 

We conclude that the court had authority to enter the restitution 

order.

¶ 24 A division of this court recently addressed this issue and held 

that a district court is obligated to order a specific amount of 

restitution within ninety-one days, unless good cause exists to 

extend that deadline. People v. Weeks, 2020 COA 44, ¶¶ 13-15. 

¶ 25 Assuming, without deciding, that the statutory ninety-one-day 

time limit applies to the period within which the court must enter an 

order for a specific amount of restitution, we conclude that the 

district court here had authority to enter an order for restitution 

after the ninety-one-day deadline because good cause existed to 

extend the time period. See Meza, ¶¶ 13-14 (referring to a court’s 

findings within ninety-one days but recognizing statutory extension 

of that time “for good cause”); Weeks, ¶ 20 (same); People v. 

Knoeppchen, 2019 COA 34, ¶ 20 (same); Turecek, ¶ 13 (same).
11

¶ 26 The court found that good cause had been shown to allow the 

People to file their amended restitution requests because the victim 

continued to incur and pay attorney fees. Given this good cause 

finding, the court must necessarily have found good cause to 

likewise extend its own determination of restitution. See § 18-1.3-

603(1)(b) (empowering court to rely on a showing of good cause to 

extend the time period by which the restitution amount “shall be 

determined”); see also Knoeppchen, ¶¶ 25-26 (noting that nothing in 

the restitution statute explicitly requires the court to make a finding 

of good cause, the statute merely requires good cause to be shown,

and the statute does not dictate when a showing or finding of good 

cause must be made).

¶ 27 Furthermore, the record supports that there was good cause

to extend the time under section 18-1.3-601(1)(b). See

Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist., 

271 P.3d 587, 589 (Colo. App. 2011) (“[W]e may affirm a trial court’s 

ruling on any grounds that are supported by the record.”). As the 

court found, the victim sought attorney fees and costs incurred as a 

result of the charged conduct, and she continued to incur and pay 

ongoing fees and costs. The prosecution filed an initial request for 
12

restitution ninety days after the deferred judgment was entered, as 

permitted by statute. In a case where such a high amount of 

restitution was sought based on complex facts, the prosecution’s 

timing was not surprising.

¶ 28 After expiration of the ninety-one-day statutory period, 

defendant filed a “Motion to Compel People to Set Forth Good Faith 

Basis for Pecuniary Loss Pursuant to C.R.S. 18-1.3-601 et seq. and 

Objection to Restitution.” Had the court ordered restitution within

ninety-one days, it would have provided defendant an inadequate 

opportunity to lodge objections — a situation that would have been 

grossly unfair to defendant, especially given the size and complexity 

of the restitution demand. See Weeks, ¶ 20 (“[I]f the prosecution 

needs the full ninety-one days (or more) to complete its request for 

restitution under section 18-1.3-603(2), that in itself could 

constitute ‘good cause’ for the trial court to extend its restitution 

ruling beyond the ninety-one-day deadline . . . .”). 

¶ 29 We conclude that the court did not err in finding good cause,

and, thus, the court had authority to enter the order. That good 

cause finding renders this case distinguishable from Turecek and 

Meza, cited by defendant. See Turecek, ¶¶ 14-15 (because 
13

prosecution did not determine a specific amount of restitution 

within then-applicable ninety day period, prosecution’s initial 

restitution request was merely an estimate, and record did not 

establish that good cause existed for prosecution’s delay in 

determining restitution, district court erred in imposing restitution

as requested by prosecution); see also § 18-1.3-603(3)(a) (permitting 

increase in the amount of restitution for additional losses “not 

known to the judge or the prosecutor at the time the order of 

restitution was entered”); Meza, ¶¶ 13-14 (noting statutory 

requirement to determine restitution within ninety-one days or 

longer if good cause is shown). 

IV. Proximate Cause

¶ 30 Defendant next argues that the court erred in concluding that 

his unlawful conduct proximately caused the victim’s losses 

because he pleaded guilty only to the physical trespass of her home 

and did not plead guilty to any computer crimes. Because we agree 

with defendant’s contention to the extent the restitution amounts 

were unrelated to the physical trespass, we reverse the restitution 

order and remand for the district court to award restitution only for 

the losses proximately caused by his conduct. 
14

¶ 31 Restitution is defined as “any pecuniary loss suffered by a 

victim.” § 18-1.3-602(3)(a), C.R.S. 2019. Restitution includes 

losses or injuries proximately caused by an offender’s conduct and 

that can be reasonably calculated and recompensed in money. Id. 

The prosecution bears the burden of establishing the restitution 

amount by a preponderance of the evidence. See § 18-1.3-603(2);

People v. Martinez, 2015 COA 37, ¶ 30. “In the context of 

restitution, proximate cause is a cause which in natural and 

probable sequence produced the claimed injury and without which 

the claimed injury would not have been sustained.” People v. Sieck, 

2014 COA 23, ¶ 6. 

¶ 32 Proximate cause can be found where the victim incurs 

expenses to avoid or mitigate the consequences of a specific and 

ongoing threat related to the offender’s unlawful conduct, rather 

than merely to mitigate against a general feeling of insecurity. 

Martinez, ¶¶ 35-38; People in Interest of D.W., 232 P.3d 182, 185 

(Colo. App. 2009).

¶ 33 Our supreme court recently held that conduct underlying an 

acquitted charge cannot serve as the basis for a restitution order. 

Cowen v. People, 2018 CO 96, ¶ 24. The court based its decision on 
15

an interpretation of the restitution statutes and concluded that the 

statutes limit restitution liability “to individuals found guilty of 

causing injury or property loss that resulted in suffering or 

hardship to victims harmed by their misconduct.” Id. at ¶ 19.

¶ 34 A division of this court extended Cowen to hold that 

procedural due process does not allow a court to order a defendant 

to pay restitution based on losses caused by uncharged conduct. 

People v. Sosa, 2019 COA 182, ¶¶ 26-27. The division also 

addressed dismissed charges and reasoned:

Unlike uncharged conduct, a dismissed charge 

is based on conduct for which an individual 

has been criminally charged. But like 

uncharged conduct, when a charged count is 

dismissed, an individual cannot be found 

guilty of (or plead guilty to) that crime. She 

cannot be deemed an “offender” as to the 

dismissed count, the conduct underlying the 

dismissed count cannot be deemed the 

“conduct of an offender,” and no person can be 

considered a victim as to that conduct. And 

she retains the presumption of innocence as to 

the dismissed count. Thus . . . no court may 

order restitution for losses proximately caused 

by conduct underlying a dismissed charge. 

Due process so requires. 

Id. at ¶ 28 (citations omitted). 
16

¶ 35 The division noted that its decision does not prevent the 

prosecution and the defense from entering into a plea agreement 

that allows the dismissed counts to be considered for restitution 

purposes. Id. at ¶ 29. We agree with the Sosa division’s reasoning 

and see no reason to depart from it. 

¶ 36 Here, the deferred judgment agreement did not detail the 

charges for which defendant would be required to pay restitution. 

The agreement merely said that “defendant agrees that he has a 

sufficient amount of income and/or assets to pay all of the 

restitution and fees ordered by the court.” The record does not 

indicate whether defendant was aware that he would be liable for 

restitution for the dismissed charges when he entered his guilty 

plea. But to the extent the People argue that defendant is 

responsible to pay these items as a complicitor, we reject that 

notion, because he did not plead or otherwise admit to being 

complicit in his wife’s conduct. 

¶ 37 We conclude that under these circumstances, defendant is 

only liable for restitution for the losses caused by the conduct to 

which he pleaded guilty. See Sosa, ¶ 28; Cowen, ¶ 19. We 

therefore remand to the district court to determine which of the 
17

losses that were presented by the prosecution at the restitution

hearing were proximately caused by defendant’s trespass onto the 

victim’s property, and to issue a new restitution order accordingly. 

The prosecution may not introduce any evidence that was not 

previously presented to the court. 

V. Attorney-Client Privilege

¶ 38 Defendant next contends that the trial court erred in 

concluding that the attorney-client privilege applied to the victim’s 

attorney billing records. He further contends that, if the privilege 

did apply, the victim waived it by placing the records at issue. We 

agree in part.

¶ 39 We note that our holding — that restitution may not be 

ordered with respect to conduct for which defendant was not 

convicted or did not agree to be responsible in a guilty plea —

renders the court’s previous restitution award obsolete, and to the 

extent some of the billing records relate only to conduct for which 

he was not convicted, those records are irrelevant.

¶ 40 To the extent the prosecution continues to seek restitution, we 

provide the following guidance to the court on remand.
18

¶ 41 The attorney-client privilege operates to protect 

communications between attorneys and clients relating to legal 

advice, § 13-90-107(1)(b), C.R.S. 2019; Wesp v. Everson, 33 P.3d 

191, 196 (Colo. 2001).

¶ 42 Any descriptions of the tasks performed by counsel that may 

be contained in the bills could be attorney-client privileged 

information. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 402-

03 (4th Cir. 1999) (billing records that reveal specific research or 

litigation strategy would be entitled to protection from disclosure);

Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 

1992) (“time records which also reveal the motive of the client in 

seeking representation, litigation strategy, or the specific nature of 

the services provided, such as researching particular areas of law, 

fall within the [attorney-client] privilege.”); Levy v. Senate of 

Pennsylvania, 65 A.3d 361, 373 (Pa. 2013) (billing records that 

contain descriptions of legal services that address the client’s 

motive for seeking counsel, legal advice, strategy, or other 

confidential communications are undeniably protected under the 

attorney client privilege). 
19

¶ 43 To the extent the victim or her counsel disclosed the billing 

records with task descriptions to the prosecution, or to the 

prosecution’s expert witness who opined on their reasonableness, 

and those billing records are still in issue with respect to 

restitution, any attorney-client privilege was waived as to those 

records. See Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 

533, 543 (Colo. 1989) (recognizing that attorney-client privilege may 

be waived if, “by words or conduct, [the privilege holder] has 

expressly or impliedly forsaken his claim of confidentiality” with 

respect to the information in question). 

¶ 44 We see no basis to conclude that the prosecution or its expert 

could be in privity with the victim for purposes of the attorney-client 

privilege. The privilege extends only to matters communicated by or 

to an attorney’s client in the course of gaining counsel, advice, or 

direction with respect to the client’s rights or obligations. § 13-90-

107(1)(b); Wesp, 33 P.3d at 196; Gordon v. Boyles, 9 P.3d 1106, 

1123 (Colo. 2000); see also Lanari v. People, 827 P.2d 495, 499 

(Colo. 1992) (“[T]he privilege applies only to statements made in 

circumstances giving rise to a reasonable expectation that the 

statements will be treated as confidential.”). “[I]f a communication 
20

to which the privilege has previously attached is subsequently 

disclosed to a third party, then the protection afforded by the 

privilege is impliedly waived.” Wesp, 33 P.3d at 198. Thus, the 

privilege does not apply to billing records that have been so 

disclosed.

¶ 45 To the extent (1) the prosecution, on remand, continues to 

seek restitution for the victim’s attorney fees, (2) the attorney task 

descriptions in the applicable billing records have not been 

previously disclosed to the prosecution or the expert witness, and 

(3) attorney-client privilege is claimed as to those descriptions, the

prosecution must produce redacted copies of the subject bills to the 

defense. If the defense objects to the redactions, and the 

prosecution declines to produce additional information from the 

victim about the redactions, the district court must examine those 

task descriptions in camera to determine whether they are subject 

to the attorney-client privilege. See id. at 197-98 (“No blanket 

privilege for all attorney-client communications exists. Rather, the 

privilege must be claimed with respect to each specific 

communication and, in deciding whether the privilege attaches, a 

trial court must examine each communication independently.”); see 
21

also People v. Madera, 112 P.3d 688, 691 (Colo. 2005) (privilege is 

waived only to the extent necessary to give opponent a fair 

opportunity to defend against it).

¶ 46 If the court, after in camera review, determines that any 

particular attorney fee item is likely subject to payment as 

restitution, it should order the prosecution to provide the defense 

with at least some description of the task performed by counsel, so 

that defendant has a fair opportunity to review and challenge the 

propriety of ordering him to pay it as restitution.

VI. Due Process and Public Policy

¶ 47 Defendant contends that multiple alleged errors violated his 

right to due process and contravened public policy. 

 Defendant contends that it was fundamentally unfair for the 

court to enter an order based on amounts that were unclear 

and were constantly revised. Because we are reversing the 

court’s order and remanding for further consideration of 

restitution, we need not address this contention. 

 Defendant next contends that the prosecution abdicated its 

constitutional and statutory responsibility to independently 

determine whether restitution is proper by relying on the 
22

victim’s civil attorney’s representations. We disagree. The 

prosecution is statutorily required to compile all information 

pertaining to restitution “through victim impact statements or 

other means.” § 18-1.3-603(2). We see no error in the 

prosecution’s reliance on assistance from the victim’s counsel 

in determining her losses.

 Defendant also argues that he should have been provided with 

the email communications between the prosecution and the 

victim’s civil attorney because they would have shed light on 

the basis of the restitution request and on whether the 

prosecution independently determined that restitution was 

proper. To the extent this issue remains relevant on remand, 

given our rulings, the district court must determine whether 

and to what extent such disclosure should be granted. 

VII. Conclusion

¶ 48 The restitution order is reversed and the case is remanded to 

the district court for further proceedings.

JUDGE YUN concurs. 

JUDGE TOW specially concurs.
23

JUDGE TOW, specially concurring.

¶ 49 I agree that the district court had jurisdiction to order 

restitution in this case and that Jonathan D. Roddy can only be 

ordered to pay restitution for pecuniary losses that were 

proximately caused by the conduct to which he pleaded guilty. 

However, I write separately to address the need for clarification or 

re-assessment of the restitution statute by both the Colorado 

Supreme Court and the legislature. 

I. The Process of Reserving Restitution

A. The Historical View

¶ 50 As the majority notes, there are four proper ways for a 

sentencing court to address restitution at the time of sentencing: (1) 

order a specific amount; (2) order that the defendant is obligated to 

pay restitution, but defer establishing the actual amount; (3) order 

that the defendant is obligated to pay the actual costs of specific 

future treatment for the victim; or (4) find that no victim suffered a

pecuniary loss and thus no restitution is owed. § 18-1.3-603(1), 

C.R.S. 2019. The second of these options — deferment — requires 

that the amount of restitution “shall be determined within the 

ninety-one days immediately following the order of conviction, 
24

unless good cause is shown for extending the time period by which 

the restitution amount shall be determined.” § 18-1.3-603(1)(b) 

(emphasis added). 

¶ 51 Notably, this subsection of the statute does not explicitly 

identify who is “determining” the amount for purposes of this 

deadline. But the next subsection of the statute references how, 

and by whom, restitution is “determined”:

The court shall base its order for restitution 

upon information presented to the court by the 

prosecuting attorney, who shall compile such 

information through victim impact statements 

or other means to determine the amount of 

restitution and the identities of the victims. 

Further, the prosecuting attorney shall present 

this information to the court prior to the order 

of conviction or within ninety-one days, if it is 

not available prior to the order of conviction. 

The court may extend this date if it finds that 

there are extenuating circumstances affecting 

the prosecuting attorney’s ability to determine 

restitution.

§ 18-1.3-603(2). Thus, at least for purposes of this paragraph, it is 

clear that the prosecutor “determines” the amount of restitution 

and the identities of the victims. 

¶ 52 Despite this language, our appellate courts have routinely 

stated, or at least assumed, that the determination of restitution 
25

referenced in section 18-1.3-603(1)(b) is a different act than the 

determination of restitution referenced in section 18-1.3-603(2). 

Recently, for example, a division of this court explicitly held that the 

earlier paragraph places the onus of determining the amount of 

restitution within ninety-one days on the sentencing court. People 

v. Weeks, 2020 COA 44, ¶ 13. 

¶ 53 Several other divisions have at least assumed that to be the 

case. In People v. Harman, 97 P.3d 290, 293 (Colo. App. 2004), a 

division of this court rejected a claim that the ninety-one-day 

provision was jurisdictional. In doing so, the division observed that 

“[t]he General Assembly set forth separate standards for accepting 

the late presentation of restitution information by the prosecutor 

and for the late determination of the restitution amount.” Id. 

¶ 54 In People v. Turecek, 2012 COA 59, ¶ 13, a division of this 

court held that the statute “mandates the determination of the 

specific amount of restitution within ninety days of the order of 
26

conviction and provides an exception only if good cause to extend 

that time period is shown.”1 

¶ 55 And in People v. Knoeppchen, 2019 COA 34, ¶ 19, the division 

stated that when the determination of restitution has been reserved, 

“the statute requires the amount of restitution to be established 

within ninety-one days.” However, in a footnote, the division 

observed that making the deadline for the prosecution to provide 

the court with restitution information the same as the deadline for

the court to set the amount of restitution creates an inconsistency 

such that the sentencing court in many, if not most, situations 

would not be able to rule by the ninety-first day. Id. at ¶ 19 n.4.2 

¶ 56 Our supreme court has never been directly asked to resolve 

this question, but has made observations similar to those in Weeks, 

 1 Subsequent to the entry of the order on appeal in People v. 

Turecek, 2012 COA 59, the time periods in the statute were

amended from ninety to ninety-one days. Ch. 208, sec. 112, § 18-

1.3-603, 2012 Colo. Sess. Laws 866-67. 2 I acknowledge that I was the author of the division’s opinion in 

People v. Knoeppchen, 2019 COA 34. Since noting what at the time 

I viewed as an apparent inconsistency in the statute, however, I 

have come to the conclusion, for reasons set forth in this special 

concurrence, that this perceived inconsistency was actually an 

indication that the prevailing interpretation of the statute was 

incorrect. 
27

Harman, Turecek, and Knoeppchen reflecting at least an assumption 

that the deadline in section 18-1.3-601(1)(b) applies to the court. 

¶ 57 For example, in Sanoff v. People, 187 P.3d 576, 578 (Colo. 

2008), the court explained that this provision, originally enacted in 

2000, altered the statutory process for establishing criminal 

restitution. Before this enactment, the amount of restitution had to 

be fixed at the time of sentencing and included on the mittimus. Id. 

The new statute, though still requiring that the order of conviction 

include some consideration of restitution, authorized the sentencing 

court to “postpone a determination of the specific amount of 

restitution.” Id.

¶ 58 The supreme court again addressed this scheme in two 

companion cases involving the sentencing court’s ability to modify 

restitution once ordered. People v. Belibi, 2018 CO 24; Meza v. 

People, 2018 CO 23. In Belibi, the court stated that “the current 

statutory scheme permits a criminal court, under certain 

circumstances, to order a defendant obligated to pay restitution and 

yet order that the specific amount of restitution be set within 

ninety-one days.” Belibi, ¶ 7. Notably, this language was qualified 
28

with the phrase “[a]s we described more fully in Meza v. People, 

2018 CO 23, ___ P.3d ___, also reported today by this court.” Id.

¶ 59 In Meza, however, the court was not as direct. In fact, the 

court seemed to use different nomenclature to refer to the 

sentencing court’s act of establishing a restitution amount. For 

example, the court observed that the 2000 legislation “altered 

existing law by relieving the sentencing court of its obligation to set

the amount of restitution at the time of sentencing.” Meza, ¶ 10 

(emphasis added). Similarly, in discussing how a court might be 

faced with altering a non-final restitution amount, the court stated, 

“[t]he statutory scheme therefore allows for specific amounts of 

restitution to be determined and ordered at sentencing, without 

their necessarily representing the ‘final amount’ to be set by the 

court.” Id. at ¶ 15 (emphasis added). In other words, Meza appears 

to recognize the difference between the determination of the amount 

of restitution and the trial court’s act of setting or ordering that 

amount. Indeed, the court also stated that “the statutory scheme 

does not explicitly limit the circumstances under which a 

sentencing court may postpone until after conviction a final 

determination of the specific amount of restitution owed by the 
29

defendant.” Id. at ¶ 11. This language is difficult to reconcile with 

an interpretation of the ninety-one-day deadline in section 18-1.3-

603(1)(b) as applying to the sentencing court. 

B. A Different Interpretation

¶ 60 Significantly, the issue of whether this particular ninety-oneday deadline applied to the sentencing court’s act of entering an 

order imposing restitution or merely to the prosecution’s act of 

providing restitution information to the sentencing court was not 

before the supreme court in Sanoff, Belibi, or Meza. In Sanoff, the 

issue was solely whether the filing of a direct appeal of a judgment 

of conviction divested the sentencing court of jurisdiction to order a 

specific amount of restitution while the appeal was pending. 

Sanoff, 187 P.3d at 577. In Belibi and Meza, the issue was not 

whether the sentencing court ruled (or was required to rule) within 

ninety-one days, but rather whether it could change the amount of 

restitution previously ordered. Belibi, ¶ 2; Meza, ¶ 2.

¶ 61 Thus, in my view, the language in each of these cases 

appearing to state that the time period in section 18-1.3-603(1)(b) 

establishes a deadline by which the court must fix the amount of 

restitution was dictum. As such, this language does not 
30

conclusively resolve the interplay between section 18-1.3-603(1)(b) 

and 18-1.3-603(2).3 Moreover, I believe the dicta in these opinions

reflect an illogical reading of the statute. For similar reasons, I 

respectfully disagree with the division’s holding in Weeks, and with 

the assumptions and observations made in the other cases 

discussed above. 

¶ 62 The first reason for my disagreement is rooted in the canon of 

statutory interpretation that counsels us to “ascribe the same 

meaning to the same words occurring in different parts of the same 

statute, unless it clearly appears therefrom that a different meaning 

was intended.” Everhart v. People, 54 Colo. 272, 276, 130 P. 1076, 

1078 (1913); see also Berthold v. Indus. Claim Appeals Office, 2017 

COA 145, ¶ 35. 

¶ 63 As noted, both subsection (1)(b) and subsection (2) of the 

statute refer to “determining” restitution. The latter, two separate 

times, explicitly places the obligation to determine restitution on the 

 3 To the extent this language was not dicta, I urge the supreme 

court to take a fresh view of its interpretation of the restitution 

statute. The lack of clarity in this area has resulted in a significant 

increase in appellate claims involving the sentencing court’s 

authority and jurisdiction to enter restitution orders outside the 

ninety-one-day period.
31

prosecuting attorney. First, it provides that the prosecuting 

attorney “shall compile such information through victim impact 

statements or other means to determine the amount of restitution 

and the identities of the victims.” § 18-1.3-603(2) (emphasis 

added). Then it states that the court may extend the deadline for 

submitting the information “if it finds that there are extenuating 

circumstances affecting the prosecuting attorney’s ability to 

determine restitution.” Id. (emphasis added). 

¶ 64 To the contrary, subsection (1)(b) does not impose the duty to 

determine restitution upon the court. Rather, it provides one way 

in which the court may discharge its obligation to address 

restitution in the judgment of conviction, that being to enter an 

order that restitution is owed “but that the specific amount of 

restitution shall be determined within the ninety-one days 

immediately following the order of conviction, unless good cause is 

shown for extending the time period by which the restitution 

amount shall be determined.” § 18-1.3-603(1)(b).

¶ 65 The word “determine” should be given the same meaning 

throughout the statute — i.e., the process of identifying the amount 
32

of restitution and the victims to which it is owed.4 There is nothing 

in the statute to suggest the legislature intended otherwise. Indeed, 

as noted in Knoeppchen, to read the provisions as if one refers to 

the prosecutor’s gathering of the information to present to the court 

and the other refers to the sentencing court’s ultimate resolution of 

the request based on that information would set up a frequent 

conflict in that the court would often be left with little to no time to 

rule without giving the defendant an opportunity to respond to the 

request. It would seem odd for the legislature to provide for a “good 

cause” extension when the need for such an extension would 

appear to be the rule and not the exception.5 

¶ 66 Significantly, within this same statute, the legislature used a 

different term than “determine” when referring to the sentencing 

 4 Of course, the ultimate act of fixing the amount owed falls to the 

court, after providing the defendant with an opportunity to 

challenge the prosecuting attorney’s “determination” of the amount

and holding the prosecution to its burden of proving the accuracy of 

its determination by a preponderance of the evidence. See People v. 

Martinez, 166 P.3d 223 (Colo. App. 2007). 

5 To the extent the historical interpretation continues to hold sway, 

the legislature may wish to address this structure to avoid trial 

courts being put in an unworkable situation or feeling forced to rule 

quickly, potentially at the expense of the defendant’s opportunity to 

be heard on the issue.
33

court’s act of establishing the final amount of restitution. In 

particular, the statute provides that if additional victims or losses 

are later discovered, the sentencing court may increase the amount 

of restitution provided that “the final amount of restitution due has 

not been set by the court.” § 18-1.3-603(3)(a) (emphasis added). 

Thus, while the sentencing court “sets” the final amount of 

restitution, it does so based on the prosecutor’s “determination.” 

But only the latter must be accomplished (absent a showing of good 

cause or extenuating circumstances as applicable) within 

ninety-one days. 

¶ 67 Moreover, contrary to the division’s view in Weeks, this 

construction does not “render section 18-1.3-603(1)(b) superfluous 

of the language in section 18-1.3-603(2).” Weeks, ¶ 14. The two 

provisions serve different purposes. The first paragraph requires 

the court to expressly include consideration of restitution in the 

judgment of conviction. It is important to remember that this 

paragraph never says “the court shall determine restitution within 

ninety-one days.” Rather, it merely says that, when a court is 

deferring restitution, the order of conviction must include specific 
34

language, i.e., that restitution shall be determined within that time 

frame (or some other time frame upon a showing of good cause).

¶ 68 The second paragraph explains how the amount of restitution 

(if any) is arrived at. Note that the process by which the 

prosecuting attorney determines the restitution and the identity of 

the victims, as set forth in subsection (2), applies whether the court 

is deferring restitution, ordering restitution on the day of 

sentencing, ordering restitution for a particular future treatment, or 

finding that no restitution is owed. 

¶ 69 Nor is it either a superfluity or an inconsistency that the 

legislature established two different standards to obtain an 

extension of the ninety-one-day deadline, because the assessment 

addresses the need for additional time at two different points in the 

process. The first provision allows the court to determine at the 

time it enters the order of conviction that there is good cause for 

granting an initial period of deferral longer than ninety-one days. 

The second provision allows for an additional deferment period, but 

to warrant this additional time requires a different showing —

“extenuating circumstances.” § 18-1.3-603(2). At these two 

different points on the timeline, both the reasons underlying the 
35

need for additional time and the impact of additional delay on 

defendants and victims may be different. Accordingly, it is not 

unusual that the legislature chose to impose different standards for 

the two requests. Consequently, this view of the statute actually 

avoids making any of the language superfluous. See People v. Null, 

233 P.3d 670, 679 (Colo. 2010) (Appellate courts “avoid 

interpretations that would render any words or phrases superfluous 

or would lead to illogical or absurd results.”) 

¶ 70 Moreover, this interpretation differs from the historically held 

view of the statute in that it avoids the nearly unworkable conflict 

created when the two ninety-one-day provisions are read to apply to 

different acts (the prosecution’s provision of the information and the 

court’s ultimate decision imposing restitution). Also, the historical 

view increases the possibility that a victim loses the right to 

restitution, and a defendant avoids responsibility to pay it, merely 

because a trial court does not act within the relatively short time 

period. Instead, by reading the statute as imposing deadlines by 

which the prosecution must act, but granting the court the 

flexibility to adjust those deadlines, this construction serves the 

purposes of the statute, which include imposing restitution as “a 
36

mechanism for the rehabilitation of offenders,” deterring “future 

criminality,” ensuring full restitution for victims of crime in the 

most expeditious manner, and “aid[ing] the offender in reintegration 

as a productive member of society.” See § 18-1.3-601(1)(c), (1)(d),

(1)(g)(I), (2), C.R.S. 2019. This statutory construction is thus more 

consistent than the historical view with the legislative mandate that 

the restitution statute “be liberally construed to accomplish” these 

purposes. § 18-1.3-601(2). 

¶ 71 Under this interpretation, having reserved restitution for 

ninety-one days,6 the court could extend the initial deadline based 

on “extenuating circumstances affecting the prosecuting attorney’s 

ability to determine restitution.” § 18-1.3-603(2). Such 

circumstances are more than sufficiently shown by the fact that the 

claimed restitution was based on expenses arising out of ongoing 

legal battles allegedly caused by Roddy’s conduct, and thus were a 

 6 I note that at the time of the plea the prosecution made no 

representation that restitution information was “not available prior 

to the order of conviction.” § 18-1.3-603(2), C.R.S. 2019. However, 

because Roddy does not challenge the sentencing court’s initial 

decision to reserve restitution, neither I nor the majority need 

address that issue. 
37

continually moving target.7 Thus, I agree, albeit for reasons 

different than the majority, that the sentencing court had the 

authority to enter a restitution order outside of the ninety-one-day 

window. 

 7 The fact that the majority holds — and I agree — that most if not 

all of these legal expenses were ultimately not chargeable to Roddy 

does not impact whether the circumstances interfering with the 

prosecutor’s ability to gather the information to support the 

restitution claim were sufficiently extenuating to warrant the 

deadline extension.