People v. Alicia Andrea Martinez

     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.


                                                                 SUMMARY
                                                          December 15, 2022

                               

No. 21CA0883, Peo v Martinez — Criminal Law — Probation —
Restitution — Payment Schedule — Monitoring, Default,
Penalties — Extend Period of Probation — Reduction or
Increase for Good Cause Shown

     A division of the court of appeals addresses two issues

concerning the extension of a defendant’s probation where the

defendant has made regular restitution payments pursuant to a

payment schedule established under section 16-18.5-104(4)(a)(I),

C.R.S. 2022, but still has not paid the full amount of restitution.

The division first concludes that section 16-18.5-105(3)(d)(III),

C.R.S. 2022, does not authorize an extension of probation where a

defendant has made all the payments required under a payment

schedule, simply because the restitution hasn’t been fully paid.

The division also concludes that the circumstances of the case do
not establish “good cause” to extend probation under section

18-1.3-204(4)(a), C.R.S. 2022.

     Accordingly, the division reverses the trial court’s order

extending the defendant’s probation and remands the case with

directions to terminate the defendant’s probation.
COLORADO COURT OF APPEALS                                      

Court of Appeals No. 21CA0883
El Paso County District Court No. 16CR1482
Honorable David A. Gilbert, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alicia Andrea Martinez,

Defendant-Appellant.


                          ORDER REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                   Division VII
                           Opinion by JUDGE GOMEZ
                          Harris and Pawar, JJ., concur

                          Announced December 15, 2022


Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Andrea Alicia Martinez appeals the trial court’s order

 extending her probation based on her failure to pay the full amount

 of restitution by the end of her probationary period. Because of

 Martinez’s indigence, a collections investigator had assessed her

 ability to pay restitution and put her on a payment schedule under

 section 16-18.5-104(4)(a)(I), C.R.S. 2022. Although Martinez made

 all of the required payments, at the end of her initial four-year

 probationary period, the balance of her restitution judgment had

 gone up — not down — because her payments hadn’t offset the

 accrued interest. Consequently, the trial court extended her

 probation for another five years, indicating that at the end of that

 term, it would review her progress toward paying off her restitution.

¶2    Resolving Martinez’s appeal requires us to address two novel

 issues concerning a court’s authority to extend probation for failure

 to pay the full amount of restitution. We first conclude that section

 16-18.5-105(3)(d)(III), C.R.S. 2022, does not authorize an extension

 of probation where a defendant has made all the payments required

 under a payment schedule established under section 16-18.5-

 104(4)(a)(I), simply because the restitution hasn’t been fully paid.

 We also conclude that the circumstances of this case do not


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 establish “good cause” to extend probation under section 18-1.3-

 204(4)(a), C.R.S. 2022.

¶3    Accordingly, we reverse the order and remand the case with

 directions to terminate Martinez’s probation.

                           I.   Background

¶4    In 2016, Martinez pleaded guilty to one count of vehicular

 assault. She was sentenced to four years of supervised probation

 and ordered to pay $150,553.07 in restitution.

¶5    Because Martinez couldn’t pay the full amount of restitution at

 that time, a collections investigator assessed her ability to pay and

 established a payment schedule under section 16-18.5-104(4)(a)(I).

 Initially, the schedule, which was approved by the court, required

 her to pay $50 per month. That amount was later increased to

 $100 per month. Over the course of her probationary period,

 Martinez satisfied her monthly payment obligation every month

 except for two months, in which she initially missed payments after

 losing her job but then later repaid the amounts owed, bringing her

 into compliance with her payment schedule.

¶6    About a month before the expiration of Martinez’s term of

 probation, her probation officer filed a complaint to revoke her


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 probation. The only allegation in support of revocation was that she

 hadn’t yet paid the full amount of restitution. The probation officer

 recommended that Martinez’s probation be revoked and reinstated

 for ten years of unsupervised probation so that she could continue

 to make payments toward restitution, which by then, with accrued

 interest, totaled $188,296.66.

¶7    At a hearing on the revocation complaint, the trial court heard

 testimony from Martinez, her probation officer, her father, and her

 sister. At the end of the hearing, the court found that Martinez had

 made the required payments toward her restitution obligation but

 had failed to pay the total amount of restitution owed. The court

 also found that Martinez had the ability to continue making

 payments but not the ability to pay the full remaining amount of

 restitution. Under these circumstances, the court concluded, the

 “right thing to do” was to extend the probation period under section

 16-18.5-105(3)(d)(III). Without revoking Martinez’s probation, the

 court extended it for five years, unsupervised, conditioned solely on

 continued payment of restitution. The court indicated that it would

 set the matter for review again after that five-year period.




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                              II.   Discussion

¶8      Martinez contends that the trial court lacked authority to

  extend her probation under section 16-18.5-105(3)(d)(III). She

  further contends that section 18-1.3-204(4)(a) does not provide a

  basis for the court’s extension. We agree with both contentions.

                         A.    Standard of Review

¶9      We review de novo issues of statutory interpretation and

  whether a trial court applied the correct legal standard. People v.

  Rainey, 

, ¶ 14; People v. Roletto, 

.

       B.   Authority to Extend Under Section 16-18.5-105(3)(d)(III)

¶ 10    Martinez first contends that the trial court lacked authority to

  extend her probation under section 16-18.5-105(3)(d) because she

  hadn’t failed to make a payment under her payment schedule and

  because the statutory procedures weren’t followed. We agree.

¶ 11    When a defendant fails to make payments under a restitution

  payment schedule, section 16-18.5-105(3)(d) allows the collections

  investigator to request that the court issue a notice to show cause

  as to why the required payments weren’t made. The statute further

  provides that the court may extend the period of probation upon a

  finding that the defendant has failed to pay, unless the defendant


                                      4
  establishes that they were unable to make the payments.

  § 16-18.5-105(3)(d)(III).

¶ 12   At the probation revocation hearing, the trial court relied on

  section 16-18.5-105(3)(d)(III) to extend Martinez’s probation. The

  court reasoned that Martinez failed to pay the full amount of

  restitution and had the ability to continue making payments,

  although not the ability to pay off the entire amount still owed.

  Therefore, the court concluded that section 16-18.5-105(3)(d)(III)

  applied to authorize the extension of her probation.

¶ 13   But section 16-18.5-105(3) governs in circumstances when a

  defendant “fails to make a payment of restitution,” not when a

  defendant fails to pay the full amount of restitution ordered.

  § 16-18.5-105(3) (emphasis added). And here, the parties agree, as

  do we, that Martinez hadn’t failed to make a scheduled payment.

  (Although the record reflects that she had previously missed two

  payments when she lost her job, she’d repaid those amounts before

  the date of the revocation complaint.)

¶ 14   Furthermore, section 16-18.5-105(3) outlines the procedures

  for a collections investigator to follow at least seven days after a

  defendant fails to make a scheduled payment. See People v. Reyes,


                                     5
  

 (Colo. App. 2008). Here, however, there is no

  evidence that a collections investigator was involved at the time

  Martinez missed the two earlier payments or ever requested the

  court to issue a notice to show cause for any alleged failure to make

  a restitution payment within seven days of the due date. Rather,

  the record establishes that, as of the time of the probation

  revocation hearing, Martinez hadn’t failed to make any required

  payments and was current on her monthly obligations.

¶ 15   Therefore, section 16-18.5-105(3)(d)(III) is inapplicable, both

  because Martinez hadn’t failed to make a scheduled payment at the

  time her probation period was extended and because its notice

  procedures weren’t followed. Accordingly, the trial court erred by

  extending Martinez’s probation on this basis.

        C.   Authority to Extend Under Section 18-1.3-204(4)(a)

¶ 16   Martinez also contends that section 18-1.3-204(4)(a) cannot

  provide a basis for the trial court’s extension of her probation

  because there was no good cause for such an extension under the

  facts of this case. Again, we agree.

¶ 17   Section 18-1.3-204(4)(a) provides that a court may increase

  the term of probation where (1) “good cause” is shown to extend the


                                     6
  term; (2) notice has been provided to the defendant, the district

  attorney, and the probation officer; and (3) a hearing has been held,

  if the defendant or the district attorney requested one. People v.

  Romero, 

 (Colo. App. 2007).

¶ 18   As an initial matter, we disagree with the People’s contention

  that because the trial court relied solely on section 16-18.5-

  105(3)(d)(III) to extend Martinez’s probation and didn’t consider the

  applicability of section 18-1.3-204(4)(a), we should remand the case

  for the trial court to consider section 18-1.3-204(4)(a). The parties

  do not dispute the trial court’s factual findings that Martinez made

  payments toward her restitution obligation as required but failed to

  pay the total amount of restitution owed and that Martinez had the

  ability to continue making the scheduled payments. Because the

  controlling facts are not in dispute and because the parties

  appropriately addressed the applicability of section 18-1.3-204(4)(a)

  on appeal, we needn’t remand the case to the trial court for further

  findings. See People v. Taylor, 

 (an appellate court

  is essentially in the same position as the trial court when reviewing

  the application of law to undisputed facts).




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¶ 19   Turning to the merits, Martinez completed all of her probation

  conditions, except for paying the full amount of restitution ordered.

  She diligently made payments toward her restitution obligation as

  required under her court-approved payment schedule. But despite

  her regular payments, with the addition of interest, the balance of

  her obligation had increased from $150,553.07 to $188,296.66. As

  Martinez’s probation officer noted, the “restitution interest balance

  exceed[ed] any amount[] [Martinez] [was] able to pay on the

  princip[al].” Indeed, Martinez’s monthly payment of $100 per

  month — the amount the collections investigator found she was

  able to pay — would not even cover the interest, which accrued at a

  rate of eight percent per year. See § 18-1.3-603(4)(b)(I), C.R.S.

  2022. It is therefore unrealistic to expect that, under her current

  circumstances, Martinez would ever be able to pay off the entirety of

  her restitution obligation.

¶ 20   While a sentence to probation is a privilege and not a right,

  see People v. Ickler, 

 (Colo. 1994), it nevertheless

  carries with it certain weighty obligations and consequences. For

  instance, a defendant on probation faces the potential, if probation

  is revoked for any reason, of being resentenced to any term of


                                     8
  incarceration that might have originally been imposed for the

  underlying offense. See § 16-11-206(5), C.R.S. 2022. And a

  defendant on probation faces many collateral consequences, such

  as possible restrictions on employment opportunities,1 travel,

  curfew, use of alcohol, and possession of weapons, as well as

  privacy restrictions, including consenting to searches of their

  residence, vehicle, electronic devices, and other personal effects.2

¶ 21   Considering the continued threat of incarceration and the

  panoply of restrictions that may be imposed upon a defendant on

  probation, we cannot agree that good cause justifies the extension

  of probation under the circumstances of this case. Otherwise, the

  probation of any indigent defendant could be extended repeatedly

  and indefinitely, amounting to the functional equivalent of a lifetime



  1 For instance, persons on probation are ineligible to enlist in any
  military services, see 

(b)(8)(i) (2022); they are
  ineligible to hold any office of honor, trust, or profit or to practice as
  an attorney, see § 18-1.3-401(3), C.R.S. 2022; and they are
  ineligible to apply for a gaming license until ten years after their
  probation ends, see § 44-30-801(2)(c), C.R.S. 2022.
  2 Each of these travel, curfew, alcohol, weapon, and privacy
  restrictions were conditions originally imposed upon Martinez
  during the pendency of her supervised probation sentence. See
  generally § 18-1.3-204, C.R.S. 2022 (listing mandatory and
  discretionary conditions of probation).

                                      9
  sentence to probation, simply because of the defendant’s indigence.

  See Commonwealth v. Henry, 

 (Mass. 2016)

  (holding that a court may not extend a term of probation because of

  an inability to pay restitution and noting that “extending the length

  of a probationary period because of a probationer’s inability to pay

  subjects the probationer to additional punishment solely because of

  his or her poverty”).

¶ 22   This is particularly so given that our statutes provide a

  mechanism for the continued payment of restitution as a civil

  judgment after a probation sentence has been completed. See

  § 18-1.3-603(4)(a)(I) (an order of restitution “is a final civil judgment

  in favor of the state and any victim” that “remains in force until the

  restitution is paid in full”); Roberts v. People, 

  (Colo. 2006) (section 18-1.3-603(4)(a) allows for collection of a

  restitution award “without the time and expense necessary to file an

  additional civil action”). Our statutes also provide other

  mechanisms for the enforcement of a restitution judgment. See

  § 16-18.5-107, C.R.S. 2022; Allman v. People, 

, ¶ 35 n.8

  (holding that the trial court couldn’t sentence the defendant to

  imprisonment and probation on different counts in the same case


                                     10
  regardless of the court’s interest in supervising the defendant for an

  extended time to ensure he paid his restitution and noting that

  “[t]he legislature has already provided methods for victims to receive

  their restitution” (citing § 16-18.5-107)).

¶ 23   The People rely on Romero in support of their argument that

  the failure to pay court-ordered restitution in full constitutes good

  cause to extend probation. In Romero, a division of this court

  addressed whether a trial court had jurisdiction to extend a

  defendant’s probation where a joint motion and stipulated order to

  extend probation was filed with the court on the last day of the

  probationary period but wasn’t signed by the court until the

  following day. 

. In its analysis, the division

  referenced the requirements of section 18-1.3-204(4) and noted that

  the fact that the “defendant had not paid court-ordered restitution”

  supplied “good cause under section 16-18.5-105(3)(d)(III) to extend

  his probation.” 

.

¶ 24   But the division in Romero wasn’t faced with the question of

  whether a failure to pay the full amount of restitution before the

  end of the probationary term, when a defendant has diligently made

  payments as required by a payment schedule, should constitute


                                     11
  good cause to extend probation. Rather, in deciding whether the

  execution and filing of the motion and stipulated order to extend

  probation tolled the running of the probationary period, the division

  simply addressed the actions necessary to initiate a proceeding to

  extend probation under the applicable statutes. See 

.

  Nevertheless, to the extent that our analysis conflicts with the

  division’s opinion in Romero, we respectfully decline to follow it.

  See People v. Thomas, 

 (Colo. App. 2008) (one

  division of the court of appeals is not bound by the decision of

  another division).

¶ 25   We are not persuaded otherwise by the People’s argument that

  an offender’s probationary status can act as an incentive to

  continue payments of restitution, thus justifying the extension of

  probation under the circumstances presented here. The threat of

  incarceration, while potentially providing some motivation to

  continue paying restitution, also “may have the perverse effect of

  inducing the probationer to use illegal means to acquire funds to

  pay in order to avoid revocation.” Bearden v. Georgia, 

 (1983). And such a risk is unnecessary because our statutory

  scheme allows for continued payments of restitution to victims after


                                    12
  a defendant’s sentence is complete. See § 18-1.3-603(4)(a)(I); see

  also Huggett v. State, 

 (Wis. 1978) (“If the

  probationer lacks the capacity to pay and has demonstrated a good

  faith effort during probation, failure to make restitution cannot be

  ‘cause’ for extending probation. . . . [T]he criminal justice system

  should not be employed to supplement a civil suit or as a threat to

  coerce the payment of a civil liability or to perform the functions of

  a collection agency.”).

¶ 26   Accordingly, we conclude that the trial court erred when it

  extended Martinez’s probation to compel her to continue to make

  payments toward her restitution obligation.3

                             III.   Conclusion

¶ 27   The order is reversed, and the case is remanded to the trial

  court with directions to terminate Martinez’s probation.

       JUDGE HARRIS and JUDGE PAWAR concur.




  3 Because we agree that the trial court didn’t have good cause to
  extend Martinez’s probation under section 18-1.3-204(4)(a), we
  don’t address Martinez’s alternative argument that she didn’t
  receive sufficient notice as required by statute.

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