People v. Stanley , 405 P.3d 518 ( 2017 )

COLORADO COURT OF APPEALS 2017COA121
Court of Appeals No. 16CA1612
Adams County District Court No. 15CR1433
Honorable Robert W. Kiesnowski, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Steven Robert Paul Stanley,
Defendant-Appellee.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FREYRE
Booras, J., concurs
Webb, J., specially concurs
Announced September 7, 2017
David J. Young, District Attorney, Cameron M. Munier, Senior Deputy District
Attorney, Brighton, Colorado, for Plaintiff-Appellant
Bendinelli Law Firm, PC, Mark G. Mayberry, Westminster, Colorado, for
Defendant-Appellee
¶1 In this prosecution appeal of a restitution setoff, we must
reconcile the dual policy interests underlying the restitution statute,
§ 18-1.3-603, C.R.S. 2016, of fully compensating a victim on the
one hand and of precluding double recovery by the victim on the
other.
¶2 The prosecution asks us to reverse the trial court’s order
awarding the defendant, Steven Robert Paul Stanley, a $25,000
setoff against restitution of $30,000, an amount paid to the victim
by the Crime Victim Compensation Program (CVCP). The setoff
arose from a policy-limits settlement between the victim and
Stanley’s automobile insurance company. Despite uncontroverted
evidence of this settlement, the prosecution argues that Stanley
failed to sufficiently prove entitlement to a setoff because he did not
show that the settlement proceeds were “earmarked” for the same
expenses reimbursed by the CVCP, leaving open the possibility that
the victim used the proceeds for losses not compensated by the
CVCP.
¶3 Because the level of specificity for apportioning urged by the
prosecution would render meeting a defendant’s burden of proving
a setoff under § 18-1.3-603(3) and (8)(c)(I) impractical — and in
1
some cases impossible — we conclude that a defendant sufficiently
meets his or her burden of going forward to invoke the trial court’s
discretion to award a setoff by showing that the settlement
included one or more categories of loss (expenses) paid by the CVCP
and covered by the restitution order.
¶4 Thus, we affirm in part the trial court’s ruling on
apportionment. However, because the victim may have used some
or all of the settlement proceeds for losses not compensated by the
CVCP, we remand the case to permit the prosecution to respond by
showing that the victim used or allocated settlement proceeds for
losses proximately caused by Stanley’s criminal conduct but which
were not paid by the CVCP and covered by the restitution order.
This procedure gives effect to the restitution statute’s legislative
intent “to make full restitution” to victims for their losses. § 18-1.3-
601(1)(b), C.R.S. 2016. If the prosecution makes such a showing,
the trial court should amend its restitution order by reducing the
amount of the setoff.
I. The Restitution Order
¶5 This case arises from a traffic accident that occurred on April
11, 2015. On May 7, 2015, Stanley’s automobile insurer, Geico
2
Indemnity Co. (Geico), entered into a “Release in Full of All Claims”
(the Release) with the victim and her husband. Under the
settlement, Geico paid the victim $25,000 for all claims related to
and stemming from the accident in exchange for a full and final
release of all claims against Stanley and Geico. The Release
released and forever discharged Stanley and Geico
[f]rom any and every claim, demand, right or
cause of action, of whatever kind or nature, on
account of or in any way growing out of any
and all personal injuries and consequences
thereof, including, but not limited to, all
causes of action preserved by the wrongful
death statute applicable, any loss of services
and consortium, any injuries which may exist
but which at this time are unknown and
unanticipated and which may develop at some
time in the future, all unforeseen
developments arising from known injuries, and
any and all property damage resulting or to
result from an accident that occurred on or
about the 11th day of April, 2015 . . . .
¶6 On February 4, 2016, Stanley pleaded guilty to felony
vehicular assault, driving under the influence, and careless driving.
Under the plea agreement, the trial court deferred the entry of
judgment and sentence on the felony for four years, and sentenced
Stanley to four years of concurrent probation on the misdemeanor
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convictions. The court gave the prosecution ninety days to submit
a restitution request.
¶7 On May 3, 2016, the prosecution filed a motion to impose
restitution and attached a report from the CVCP. It showed that
the CVCP had paid the victim $30,000, the maximum amount
allowable by statute, for pecuniary losses proximately caused by
Stanley’s criminal conduct. See § 24-4.1-109(2)(b), C.R.S. 2016. It
paid the victim $8048 for lost wages and $21,952 for medical
expenses.1 The report stated that “[e]ach bill received by CVCP is
verified to ensure that it is crime related; that no other funding
source was responsible (insurance) and to verify the most up to
date balance.”
¶8 Believing that the insurance Release and settlement satisfied
his restitution obligation, Stanley never filed an objection to the
prosecution’s motion for restitution. On June 14, 2016, the court
granted the unopposed motion and ordered Stanley to pay the
victim $30,000 in restitution. Later that same day, Stanley filed a
1 The exact date of the CVCP’s payment to the victim is not clear
from the record. The CVCP report contains a notation that it was
printed on “2/9/2016” and was filed with the court on “May 3,
2016.”
4
Motion for Reconsideration of the Restitution Order, explaining his
misunderstanding and requesting a hearing and a setoff. The court
granted Stanley’s hearing request.
¶9 At the hearing, the parties relied on two documents — the
CVCP report evidencing the $30,000 payment and the Release
evidencing the $25,000 settlement. Neither party presented any
other evidence.
¶ 10 The prosecution argued that because the Release constituted
an unapportioned settlement, Stanley bore the burden of proving
that the settlement proceeds were intended to compensate the
victim for the same lost wages and medical expenses compensated
by the CVCP. Specifically, “[the Release] talks in no way about
where this $25,000 is to be allocated. Is it supposed to go to
medical or pay for the damages to the vehicle?” Relying on People v.
Lassek, 122 P.3d 1029 (Colo. App. 2005), the prosecution argued
that the “entire amount could have simply gone to [nonpecuniary
losses not covered by the restitution statute]” and asked the court
to find that Stanley had not met his apportionment burden.
¶ 11 Stanley agreed that he bore the burden of establishing the
existence of a setoff. He asserted that the Release “broadly
5
apportioned” the proceeds through the language stating an intent to
compensate for “any and every claim” for loss of services, as
relevant to wage loss, and for personal injuries and all
consequences of them, as relevant to medical expenses. He
reasoned that the settlement proceeds necessarily included the
medical and lost wages compensation the victim received from the
CVCP. He further argued that the CVCP was remiss in failing to
offset restitution by the settlement amount under § 24-4.1-110(1),
C.R.S. 2016.
¶ 12 The trial court held that $30,000 in restitution was
reasonable, due, and owing. It further held that the Release’s broad
language was “all encompassing and [that] it include[d] every type
of claim imaginable and any type of injury imaginable.” It found the
Release “contemplate[d] payment for the very same categories that
are set forth in the prosecution’s restitution report,” and noted that
these types of releases never apportioned proceeds to specific loss
categories. Therefore, it awarded Stanley a $25,000 setoff against
restitution and ordered him to pay the $5000 net amount.2
2 Stanley does not cross-appeal the court’s findings concerning the
reasonableness of the $30,000 restitution award.
6
II. Analysis
¶ 13 Relying on Lassek and People in Interest of T.R., 860 P.2d 559(Colo. App. 1993), the prosecution urges us to reverse the court’s
order, arguing that the Release is an unapportioned settlement that
does not “earmark” the proceeds for the same expenses
compensated by the CVCP, as required by these cases. While we
acknowledge that Lassek and T.R. could be read to support this
argument, for the reasons described below we conclude that these
cases do not require the level of specificity urged by the
prosecution.3
A. Standard of Review
¶ 14 We review a trial court’s restitution award for an abuse of
discretion. People v. Sieck, 2014 COA 23, ¶ 5. A trial court abuses
its discretion when it misconstrues or misapplies the law, id., or
when its decision fixing the amount of restitution is not supported
by the record, see People v. Rivera, 968 P.2d 1061, 1068 (Colo. App.
1997). “We will not disturb the district court’s determination as to
3 In any event, we are not bound by decisions of other divisions of
this court. People v. Smoots, 2013 COA 152, ¶ 20, aff’d sub nom.
Reyna-Abarca v. People, 2017 CO 15.
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the proper amount of restitution if it is supported by the record.”
People v. Bohn, 2015 COA 178, ¶ 8.
¶ 15 We review and interpret statutes de novo. People v.
Padilla-Lopez, 2012 CO 49, ¶ 7. When construing statutes, we aim
to ascertain and give effect to the intent of the General Assembly.
Id. We accord words and phrases their plain and ordinary
meanings. Id. “Where the language is clear, it is not necessary to
resort to other tools of statutory construction.” Goodman v.
Heritage Builders, Inc., 2017 CO 13, ¶ 7.
B. Applicable Law
¶ 16 As part of “[e]very order of conviction,” a trial court must order
a defendant to pay restitution if the defendant’s conduct caused
pecuniary loss to a victim. § 18-1.3-603(1); People v. Reyes, 166
P.3d 301, 302 (Colo. App. 2007). Restitution means “any pecuniary
loss suffered by a victim . . . 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. 2016. The General Assembly
has declared restitution to be a mechanism for rehabilitating
offenders, deterring future criminality, and reducing the financial
burden on and compensating victims and their families for their
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losses. § 18-1.3-601(1)(c)-(g). The restitution statute must be
liberally construed to accomplish these goals. § 18-1.3-601(2).
¶ 17 The court bases its restitution order on information provided
by the prosecuting attorney. § 18-1.3-603(2). The prosecution
bears the burden of proving the amount owed by a preponderance
of the evidence, People v. Smith, 181 P.3d 324, 328 (Colo. App.
2007), while the defendant bears the burden of proving any setoff.
Lassek, 122 P.3d at 1035.
¶ 18 Compensable losses are defined in §§ 24-4.1-109(1) and (1.5),
and include the following:
(a) Reasonable medical and hospital expenses
and expenses incurred for dentures,
eyeglasses, hearing aids, or other prosthetic or
medically necessary devices;
(b) Loss of earnings;
(c) Outpatient care;
(d) Homemaker and home health services;
(e) Burial expenses;
(f) Loss of support to dependents;
(g) Mental health counseling;
(h) Household support; except that household
support is only available to a dependent when:
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(I) The offender is accused of committing the
criminally injurious conduct that is the basis
of the dependent’s claim under this article;
(II) As a result of the criminal event, the
offender vacated any home the offender shared
with the dependent; and
(III) The dependent provides verification of
dependency on the offender at the time of the
criminal event.
(1.5)(a) Losses compensable under this part 1
resulting from property damage include:
(I)(A) Repair or replacement of property
damaged as a result of a compensable crime;
or
(B) Payment of the deductible amount on a
residential insurance policy;
(II) Any modification to the victim’s residence
that is necessary to ensure victim safety; and
(III) The rekeying of a motor vehicle or other
lock that is necessary to ensure the victim’s
safety.
Compensable losses do not include
(a) Pain and suffering or property damage
other than residential property damage or
rekeying a lock pursuant to subparagraph (III)
of paragraph (a) of subsection (1.5) of this
section; or
(b) Aggregate damages to the victim or to the
dependents of a victim exceeding thirty
thousand dollars.
10
§ 24-4.1-109(2).
¶ 19 Additionally, if a crime victim compensation board provides
assistance to a victim, “the amount of assistance provided and
requested by the crime victim compensation board is presumed to
be a direct result of the defendant’s criminal conduct and must be
considered by the court in determining the amount of restitution
ordered.” § 18-1.3-603(10)(a). The amount of assistance provided
may be established by either (1) a list of the amount of money paid
to each provider; or (2) a summary data reflecting what total
payments were made for medical and dental expenses, funeral or
burial expenses, mental health counseling, wage or support losses,
or other expenses, if the identity or location would pose a threat to
the safety or welfare of the victim. § 18-1.3-603(10)(b)(II).
¶ 20 The restitution statute also furthers a second interest — that
of avoiding double recovery. As pertinent here, a trial court may
decrease a restitution award if the defendant has otherwise
compensated the victim or victims for “the pecuniary losses
suffered.”4 § 18-1.3-603(3)(b)(II). Indeed, “[a]ny amount paid to a
4 The General Assembly has defined restitution as
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victim under an order of restitution shall be set off against any
amount later recovered as compensatory damages by such victim in
any federal or state civil proceeding.” § 18-1.3-603(6); People v.
Maxich, 971 P.2d 268, 269 (Colo. App. 1998); see also § 18-1.3-
603(8)(c)(I) (a court may not award restitution to a victim
concerning a pecuniary loss for which the victim has received or is
entitled to receive benefits or reimbursement under a policy of
insurance or other indemnity agreement).
¶ 21 When a victim receives compensation from a civil settlement
against a defendant, the defendant may request a setoff against
any pecuniary loss suffered by a victim and
includes but is not limited to all out-of-pocket
expenses, interest, loss of use of money,
anticipated future expenses, rewards paid by
victims, money advanced by law enforcement
agencies, money advanced by a governmental
agency for a service animal, adjustment
expenses, and other losses or injuries
proximately caused by an offender’s conduct
and that can be reasonably calculated and
recompensed in money. “Restitution” does not
include damages for physical or mental pain
and suffering, loss of consortium, loss of
enjoyment of life, loss of future earnings, or
punitive damages.
§ 18-1.3-602(3)(a), C.R.S. 2016.
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restitution “to the extent of any money actually paid to the victim
for the same damages.” Lassek, 122 P.3d at 1034. Moreover,
“[w]here a civil claim precedes the restitution proceeding, the court
must first determine the total amount of the victim’s pecuniary
damages subject to restitution and then subtract ‘any proceeds
attributable to those damages received by the victim’ from the civil
claim.” Id. at 1034-35 (quoting People v. Acosta, 860 P.2d 1376,
1382 (Colo. App. 1993)).
¶ 22 Still, for purposes of a setoff, the court cannot allocate
proceeds from an unapportioned civil settlement agreement without
“specific evidence that the settlement included particular categories
of loss.” Lassek, 122 P.3d at 1035. This is so because, in civil
cases, victims may recover both pecuniary losses covered by the
restitution statute and other damages specifically excluded under
the restitution statute, such as loss of future earnings and
nonresidential property damages, as well as nonpecuniary damages
for pain and suffering, inconvenience, or impairment of the quality
of life. See id.; see also § 13-21-102.5, C.R.S. 2016; § 18-1.3-
602(3)(a); § 24-4.1-109(2).
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¶ 23 When applying a setoff, the trial court must make specific
findings on the apportionment of actual damages for which the
defendant compensated the victim and set off that amount against
any restitution ordered. T.R., 860 P.2d at 564. Thus, in the
absence of evidence demonstrating that a civil settlement was
intended to be allocated in a particular way, a trial court need not
set off any amounts from that settlement against the ordered
restitution. Lassek, 122 P.3d at 1035.
C. Application
¶ 24 We begin with T.R. and Lassek, which we find informative but
distinguishable from this case. In T.R., the victim’s estate and
surviving spouse brought a civil action against T.R. that was
defended by T.R.’s automobile liability insurer. T.R., 860 P.2d at
564. The parties reached a settlement for the policy limit of
$100,000 in exchange for a waiver of any further claims against
T.R. Id. The settlement agreement did not designate the proceeds
as being for any particular purpose. Id. Even so, the juvenile court
apportioned some of the settlement proceeds to expenses incurred
by the victim’s estate as a restitution setoff. Id. A division of this
court reversed T.R.’s convictions on unrelated grounds and
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instructed that if restitution were to arise on remand, the trial court
should “make specific findings on the apportionment of actual
damages that the victim’s estate was compensated for under the
civil settlement agreement and to set off that amount against any
restitution ordered.” Id.
¶ 25 Similarly, in Lassek, the defendant pleaded guilty to charges
related to a fatal traffic accident. Lassek, 122 P.3d at 1031. The
trial court ordered restitution that included costs for burial
expenses and travel and lodging expenses incurred by the victim’s
parents in attending the memorial service. Id. at 1034. Lassek
sought a $50,000 setoff against restitution based on a settlement
payment made by his automobile insurer to the victim’s family as
part of a “Covenant Not to Execute” signed by the victim’s parents.
Id. at 1035. But the Covenant “did not identify any particular
losses covered by the payment.” Id.¶ 26 The trial court concluded it could not make a setoff because it
could not determine the amount of the settlement proceeds which
compensated the parents for the burial and travel expenses. Id. A
division of this court affirmed the trial court’s order, ruling the
settlement proceeds “unapportioned” because the Covenant did not
15
identify any expenses covered by the restitution order. Id. It
further concluded that the defendant bore the burden of
establishing apportionment. Id.¶ 27 In contrast to both of these cases, where the settlement
agreements did not identify particular categories of losses, the plain
language of the Release identifies “any and every claim, demand,
right or cause of action . . . any and all personal injuries and
consequences thereof . . . any loss of services . . . and any and all
property damage resulting or to result from an accident” as
encompassed within the settlement. (Emphasis added.) A
settlement agreement is a contract. See H. W. Houston Constr. Co.
v. Dist. Court, 632 P.2d 563, 565 (Colo. 1981). The primary goal of
contract interpretation is to give effect to the intent of the
parties. Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376
(Colo. 2000). We discern the parties’ intent by looking to the plain
and generally accepted meaning of the contractual
language. Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692,
697 (Colo. 2009). The meaning of a contract is found by examining
the entire instrument and not by viewing clauses or phrases in
isolation. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.
16
¶ 28 We conclude, therefore, that “personal injuries and the
consequences thereof” include both physical and emotional harm
arising from the costs of treatment for bodily injury (here, medical
expenses for the victim’s injuries), and also from the several types of
nonpecuniary damages recoverable by the victim in a civil claim
based on those physical injuries, such as pain and suffering,
inconvenience, and emotional distress. See Lassek, 122 P.3d at
1035. Similarly, we conclude that “loss of services” includes
the lost wages compensated by the CVCP. For these reasons, we
agree with the trial court that Stanley met his burden of going
forward with evidence that the Release identified “particular losses
covered by the [CVCP] payment.” Id.¶ 29 This conclusion does not end our analysis, however, because
as argued by the prosecution, and as recognized by the division in
Lassek, the victim “could allocate the entire settlement to
noneconomic [i.e. noncompensable] damages.” Id. Indeed, the
language “any and every claim, demand, right or cause of action”
and “property damage” is broad enough to include noncompensable
losses, such as automobile damage, and pain and suffering related
to the victim’s physical injuries.
17
¶ 30 How then does a trial court give effect to § 18-1.3-603(3)(II)
and the underlying policy of preventing double recovery expressed
in § 18-1.3-603(6) while simultaneously giving effect to the statute’s
policy of making the victim whole? None of our cases has answered
this question.
¶ 31 We are guided by a related statute from the Colorado Crime
Victim Compensation Act (Act).5 Section 24-4.1-110 of this Act,
titled “Recovery from collateral source,” provides as follows:
(1) The board shall deduct from compensation
it awards under this part 1 any payments
received by the applicant from the offender
or from a person on behalf of the offender,
from the United States or any state, or any
subdivision or agency thereof, from a
private source, or from an emergency award
under this part 1 for injury or death
compensable under this part 1, excluding
death or pension benefits.
(2) If compensation is awarded under this part
1 and the person receiving it also receives a
collateral sum under subsection (1) of this
section which has not been deducted from
it, he shall refund to the board the lesser of
5 Similar to the restitution statute, the General Assembly intended
this Act “to provide protection and assistance to victims and
members of the immediate families of such victims by declaring and
implementing the rights of such persons and by lessening the
financial burden placed upon such victims due to the commission
of crimes.” § 24-4.1-101, C.R.S. 2016.
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the sums or the amount of compensation
paid to him under this part 1 unless the
aggregate of both sums does not exceed his
losses. The fund shall be the payor of last
resort.
(3) If a defendant is ordered to pay restitution
under article 18.5 of title 16, C.R.S., to a
person who has received compensation
awarded under this part 1, an amount
equal to the compensation awarded shall be
transmitted from such restitution to the
board for allocation to the fund.
¶ 32 As relevant here, under subsection (1), if the board knows
about a collateral payment to the victim for a compensable damage,
it must deduct that amount before issuing its award. Subsection
(2) requires a person compensated by the CVCP (the victim here) to
refund the CVCP for compensation paid to that person by the
offender or by another on behalf of the offender. That is, if the
victim receives a “collateral sum” after the award has already been
made by the board, then the victim must refund any duplicative
amounts, which necessarily could only be compensable damages.
¶ 33 In order to calculate the amount of any refund owed, a victim
would necessarily need to determine whether the compensation he
or she received from the defendant was used to reimburse the same
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losses and expenses compensated by the CVCP and then to provide
such information to the CVCP. Our General Assembly has deemed
this information “confidential” under § 24-4.1-107.5, C.R.S. 2016,
and, therefore, inaccessible to a defendant except in a narrow
circumstance not applicable here.6
¶ 34 Because the information needed to determine whether the
victim has been fully compensated or has received any double
recovery is known only by the victim, we conclude that once a
defendant has shown that a civil settlement includes the same
categories of losses or expenses as compensated by the CVCP and
awarded as restitution, the defendant has met his or her burden of
going forward, and the prosecution may then rebut the inference
that a double recovery has occurred. The prosecution can do so by
showing that the victim used or allocated the settlement proceeds
for losses proximately caused by the defendant’s criminal conduct
but which were not paid by the CVCP and covered by the restitution
order. In sum, we affirm the trial court’s finding that Stanley met
6 Under § 24-4.1-107.5(3), C.R.S. 2016, a defendant may request an
in camera review to rebut the presumption of causation, but only
based on a defendant’s proffer of a nonspeculative evidentiary
hypothesis.
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his burden of proving a setoff and remand for further proceedings to
allow the prosecution to show that the victim did not receive a
double recovery from the insurance settlement proceeds and the
CVCP payment. The trial court should adjust the restitution order
in accordance with that additional evidence, subject to further
appeal by either party.
¶ 35 Finally, because of our disposition, we need not address
whether the CVCP properly considered the insurance settlement
when compensating the victim for medical expenses and lost wages.
III. Conclusion
¶ 36 The order is affirmed and the case is remanded for further
proceedings consistent with this opinion.
JUDGE BOORAS concurs.
JUDGE WEBB specially concurs.
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JUDGE WEBB, specially concurring.
¶ 37 While I agree with the majority’s disposition, I write separately
to air the possibility of a legislative solution.
¶ 38 On the one hand, a trial court may decrease a restitution
award if a defendant has otherwise compensated a victim for the
“pecuniary losses suffered.” § 18-1.3-603(3)(b)(II), C.R.S. 2016.
But on the other, this phrase does not restrict the decrease based
on overlap between that compensation and either losses
compensable under the restitution statute or any specific item in
the restitution award. Indeed, while section 18-1.3-603(6) applies
to a setoff against a post-restitution civil judgment rather than
against a restitution award, it too does not require any overlap
between the items covered by a restitution award and the items
“recovered as compensatory damages.” The breadth of the latter
section could have significant consequences if the civil judgment
included only noneconomic losses, such as pain and suffering, for
which the restitution award could not have compensated the victim.
¶ 39 At the restitution hearing in this case, the trial court found,
“You’ll never see a release that says X number of dollars goes to
paying the Kaiser bill and X number of dollars goes to paying Auto
22
Nation for repairs nor will you see this is earmarked for or
designated for medical expenses.” This finding raises the dilemma
that, in many cases, the defendant may be unable to meet even the
burden imposed by the majority.
¶ 40 True, the majority avoids this dilemma by focusing on
language in the Release that corresponds to the two categories of
loss identified by the victim compensation board. But that solution
may be unavailable in many cases, just as it was unavailable in
Lassek. And even here, the question is close because while the
release expressly addresses “services,” it is silent as to “medical
expenses.”1
¶ 41 To avoid further uncertainty, the General Assembly may wish
to consider amending section 18-1.3-603(3)(b)(II) to clarify exactly
what must be proven, and by whom, to invoke the trial court’s
discretion to order a setoff under section 18-1.3-603(3), where a
civil settlement predates a restitution hearing.
1 This dilemma may be unique to settlements, because if a victim
recovers a civil judgment, the jury may have apportioned damages
among categories such as economic and noneconomic loss.
23