Opinion
Court of Appeals No. 14CA2022
07-07-2016
The People of the State of Colorado, Plaintiff-Appellee, v. Robin Jay Clifton, Defendant-Appellant.
Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Robin Jay Clifton, Pro Se
Mesa County District Court No. 06CR98
Honorable Valerie J. Robison, Judge ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS Division V
Opinion by JUDGE ROMÁN
Bernard and Berger, JJ., concur Opinion Modified and Petition for Rehearing DENIED
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Robin Jay Clifton, Pro Se ¶ 1 Defendant, Robin Jay Clifton, appeals the district court's order denying his postconviction motion. We affirm in part, reverse in part, and remand with directions.
I. Background
¶ 2 The People accused Clifton of stealing a log splitter from a business (the victim). Clifton pled guilty in 2007 to attempted theft and three habitual criminal counts. The district court's sentencing order required Clifton to pay $1073 in restitution to the victim. The record does not contain a transcript of the sentencing hearing. ¶ 3 In 2014, Clifton filed a postconviction motion asserting that the court's sentence is illegal. He argued that the court should not have sentenced him without receiving a presentence investigation report (PSIR) and a victim impact statement, and should not have ordered restitution without holding a hearing. He also argued that the court should not have ordered him to pay restitution to the victim because an insurer had reimbursed the victim for its loss. The People urged the court to deny Clifton's claims. The People asserted that they had "no information that the victim in this case was insured." ¶ 4 The court denied Clifton's motion in a written order, citing "the reasons set out in the People's response." The court's order does not contain a factual finding about whether the victim received compensation from an insurer.
II. Discussion
¶ 5 We first conclude that Clifton is time barred from raising three of his claims: that the court erred by (1) sentencing him without a PSIR, (2) sentencing him without a victim impact statement, and (3) ordering restitution without holding a hearing. We then turn to Clifton's claim that the court erred by ordering him to pay restitution to the victim based on a loss for which an insurer had reimbursed the victim. After determining that this claim is not time barred, we conclude that the restitution statutes do not permit a court to order restitution to the victim under those circumstances. But the appellate record does not allow us to determine whether Clifton proved that an insurer had reimbursed the victim before the court entered its restitution order. As a result, we remand the case for the district court to make that determination.
A. Law
1. Crim. P. 35(a)
¶ 6 "The court may correct a sentence that was not authorized by law . . . at any time and may correct a sentence imposed in an illegal manner within," as relevant here, 126 days after sentencing. Crim. P. 35(a), (b). ¶ 7 A sentence is not authorized by law — that is, illegal — if it is inconsistent with the statutory scheme outlined by the legislature. See People v. Wenzinger, 155 P.3d 415, 418 (Colo. App. 2006); see also People v. Hard, 2014 COA 132, ¶ 46 (using the term "illegal"). A sentence is imposed in an illegal manner, by contrast, if the court ignores essential procedural rights or statutory considerations when imposing the sentence. See People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010).
2. Standard of Review
¶ 8 We review de novo a district court's decision to deny a defendant's motion for postconviction relief without a hearing. People v. Chipman, 2015 COA 142, ¶ 26. We also review de novo whether a sentence is legal. Hard, ¶ 46. ¶ 9 We may affirm the district court's order on any grounds that the record supports, even if the district court did not rely on those same grounds. People v. Glover, 2015 COA 16, ¶ 22.
B. Analysis
1. PSIR and Victim Impact Statement
¶ 10 Clifton argues that the court erred by sentencing him without a PSIR and a victim impact statement. We agree with the People that these claims are time barred. ¶ 11 After a defendant pleads guilty to a felony, the probation department must "make an investigation and written report to the court before the imposition of sentence." § 16-11-102(1)(a)(I), C.R.S. 2015. The report must include a victim impact statement. Id. ¶ 12 We agree with the People that Clifton's arguments raise claims that his sentence was imposed in an illegal manner. The requirements that the court receive a PSIR and a victim impact statement before sentencing are procedural rights or statutory considerations. See Bowerman, 258 P.3d at 316. As such Clifton is time barred from pursuing challenges to the manner in which the court imposed its sentence because he did not raise them for several years after sentencing. See Crim. P. 35(a), (b). ¶ 13 We recognize that Clifton framed this argument as a due process claim in his district court motion. But he has not cited any authority suggesting that defendants hold a constitutional due process right to have a PSIR and a victim impact statement completed before sentencing. Nor are we aware of any such authority. In any event, framing this claim as constitutional would not allow Clifton to raise it, as he attempted, more than six years after sentencing. Crim. P. 35(c) provides the mechanism for challenging a sentence as unconstitutional. See Crim. P. 35(c)(2)(I); People v. Collier, 151 P.3d 668, 670 (Colo. App. 2006). And, absent an exception, the deadline for Clifton to raise Crim. P. 35(c) claims passed three years after sentencing. See § 16-5-402(1), C.R.S. 2015.
2. Ordering Restitution without a Hearing
¶ 14 Clifton argues that the court erred by imposing restitution without first holding a hearing. As Clifton appears to acknowledge in his opening brief, this claim alleges that the court imposed sentence in an illegal manner by depriving Clifton of his procedural right to a hearing. See Bowerman, 258 P.3d at 316. Because Clifton did not raise this claim for several years after sentencing — and even for years after he claims to have discovered the restitution order in 2011 — it is time barred. See Crim. P. 35(a), (b).
3. The Restitution Order
¶ 15 Clifton argues that the court's sentence is illegal because it requires him to pay restitution to the victim based on a loss for which an insurer had reimbursed the victim. We conclude that this argument is not time barred, and we agree with Clifton that a court may not order a defendant to pay restitution to a victim if an insurer has already fully reimbursed the victim. ¶ 16 Clifton's argument presents an illegal sentence claim: that the restitution statutes do not permit a court to order a defendant to pay restitution to a victim if an insurer has reimbursed the victim for the loss that the defendant caused. Cf. People v. Suttmiller, 240 P.3d 504, 507 (Colo. App. 2010) (concluding that a claim that "our statutes did not authorize restitution for the rental value of an item which the victim never rented" was an illegal sentence claim). ¶ 17 We disagree with the People's argument that Bowerman suggests that this claim, like Clifton's other claims, challenges the manner in which the court imposed its sentence. The defendant in Bowerman challenged a restitution order by arguing that the prosecution did not sufficiently prove that she stole all of the items underlying the restitution order. Bowerman, 258 P.3d at 317. By targeting "the outcome of the fact-finding process," the defendant in Bowerman contended "that the trial court did not comply with one or more of the statutory and procedural considerations governing restitution hearings." Id. Clifton's claim, by contrast, does not challenge the outcome of the fact-finding process; it assumes that the fact-finding process established that the victim had been reimbursed and asserts that, as a result, the restitution statute prevented the court from ordering him to pay restitution to the victim. That is a claim that the restitution order is illegal. See Suttmiller, 240 P.3d at 507. ¶ 18 Because Clifton's claim alleges that the court's sentence is illegal, it is not time barred. See Crim. P. 35(a); Suttmiller, 240 P.3d at 507. We turn, then, to the merits. ¶ 19 The restitution statutes require a district court to include a consideration of restitution in every order of conviction for a felony. § 18-1.3-603(1), C.R.S. 2015. "Restitution" means "any pecuniary loss suffered by a victim" that was "proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." § 18-1.3-602(3)(a), C.R.S. 2015. A "victim," for restitution purposes, is "any person aggrieved by the conduct of an offender," including an insurer who has suffered a loss because of a contractual relationship with someone against whom a crime was committed. § 18-1.3-602(4)(a)(III). One of the purposes of our restitution statutes is to make victims whole to the extent practicable. See People v. Henson, 2013 COA 36, ¶ 23; see also § 18-1.3-601(1)(e), C.R.S. 2015. ¶ 20 We agree with Clifton that if a crime victim receives compensation from an insurer for losses caused by a crime, the restitution statutes do not authorize the court to order the defendant to pay restitution to the crime victim for those same losses. That is because, to the extent the crime victim has been reimbursed, he or she no longer suffers a "pecuniary loss." See § 18-1.3-602(3)(a). And permitting a victim to recoup a loss both from an insurer and from the defendant through restitution would not merely make the victim whole; it would allow the victim to recover twice the amount of his or her loss. ¶ 21 To the extent Clifton argues that his challenge to the court's restitution order implicates the court's jurisdiction, however, we disagree. In our view, Clifton's claim does not present a jurisdictional question, but a question of whether the district court committed a legal error. See People v. Turecek, 2012 COA 59, ¶ 20 (characterizing the question raised by the defendant's restitution claim as "whether the district court erred as a matter of law in awarding restitution under the circumstances presented," and not a jurisdictional question). ¶ 22 The People do not contend that the restitution statutes allow a court to award restitution to a victim who has already been fully compensated by an insurer. Instead, they highlight that the restitution statutes authorize the court to award restitution to insurers. That is true of course, but it does not respond to Clifton's argument, which challenges the court's authority to award restitution to a crime victim who has been reimbursed by an insurer, not the court's authority to award restitution to an insurer who has reimbursed a crime victim. See § 18-1.3-602(4)(a)(III). ¶ 23 Although we agree with Clifton's legal premise, his factual premise is uncertain on this record. He claims that an insurer fully reimbursed the victim for the loss that he caused. The People appear to dispute that, asserting in the district court that they have no information corroborating Clifton's claim. Neither party points us to a finding from the district court on this factual issue. And our review of the record did not uncover such a finding. Moreover, the record does not contain a transcript of the sentencing hearing. For that reason, we cannot determine whether the parties offered any evidence that the victim had been reimbursed by an insurer or whether the district court made a finding on that point at the sentencing hearing. ¶ 24 To the extent that the People argue that we should presume that the transcript of the sentencing hearing supports the court's restitution order, we disagree. True, the party asserting error must present a record demonstrating that error and, if the appellant fails to provide a complete record, we must presume the trial court proceedings were correct. See People v. Ullery, 984 P.2d 586, 591 (Colo. 1999). But we decline to employ that doctrine here because Clifton identified the transcript of the sentencing hearing in his designation of the record and unsuccessfully sought to supplement the record with "transcripts of any and all hearings." ¶ 25 For these reasons, we conclude that the district court erred by denying Clifton's claim without making a finding about whether the victim had been reimbursed by an insurer for the losses that Clifton caused.
4. Remedy
¶ 26 We reject Clifton's argument that the proper remedy is to vacate the judgment of conviction and the sentence. For one thing, we have not concluded that the court's restitution order is illegal; we have concluded only that the factual premise of Clifton's illegal sentence claim remains unresolved. And, in any event, we are aware of no authority that suggests that vacating the entire judgment and sentence is the appropriate remedy when a sentence is illegal only because of the court's restitution order. Cf. People v. Dunlap, 222 P.3d 364, 369 (Colo. App. 2009) ("[T]he general remedy that flows from a sentence that is illegal because restitution is not fixed is correction of the sentence and amendment of the mittimus."). ¶ 27 Clifton alternatively urges us to remand the case for a hearing in which he could "present further evidence in support of his contentions." We agree with the People that this remedy is unavailable under Crim. P. 35(a). Clifton's claim that the court's restitution order is illegal turns on whether he established that the victim had been reimbursed before the court entered its restitution order. See People v. Lassek, 122 P.3d 1029, 1034-35 (Colo. App. 2005) (concluding that a defendant bears the burden to prove a restitution setoff). If he established before the court ordered restitution that an insurer had fully reimbursed the victim, the restitution order is illegal; if he did not establish that fact before the restitution order, then the order is not inconsistent the with restitution statutes. Crim. P. 35(a) does not, however, authorize Clifton to allege and prove new factual claims bearing on his restitution obligation.
III. Conclusion
¶ 28 The court's order is reversed to the extent that it denied Clifton's claim that the restitution order is illegal because an insurer reimbursed the victim. In all other respects, the order is affirmed. ¶ 29 The case is remanded with directions for the district court to make a finding as to whether Clifton established before the court ordered restitution that an insurer had reimbursed the victim for the loss that Clifton caused. The district court should then employ that finding and the views expressed in this opinion to rule on Clifton's claim that the restitution order is illegal.
JUDGE BERNARD and JUDGE BERGER concur.