Peo v. Talmadge

24CA2038 Peo v Talmadge 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA2038 City and County of Denver District Court No. 24CR87 Honorable Nikea T. Bland, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Robert E. Talmadge III, Defendant-Appellant. ORDER AFFIRMED Division II Opinion by JUDGE FOX Yun, J., concurs Johnson, J., specially concurs NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Zoe Bernstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Robert E. Talmadge III, appeals the trial court’s order imposing $276,771.36 in restitution costs. We affirm. I. Background ¶2 While intoxicated, Talmadge crashed a stolen vehicle into a liquor store in Denver, damaging the building and the store’s inventory. The prosecution charged Talmadge with third degree motor vehicle theft, § 18-4-409(4)(a), C.R.S. 2026; second degree motor vehicle theft, § 18-4-409(3); careless driving, § 42-4-1402(1), (2)(a), C.R.S. 2026; driving under the influence, § 42-4-1301(1)(a), C.R.S. 2026; and driving without a valid license, § 42-2-101(1), C.R.S. 2026. ¶3 On February 12, 2024, the parties reached a plea agreement. Talmadge pleaded guilty to one count of driving under the influence, § 42-4-1301(1)(a), and an added count of unauthorized use of a motor vehicle, § 18-4-409.5, C.R.S. 2026. In exchange, the prosecution dismissed the remaining counts. Above Talmadge’s signature, the plea agreement provided, “I agree to pay restitution for all charged counts, including counts dismissed as part of this plea resolution.” 1 ¶4 Before sentencing, the owner of the stolen car submitted documents detailing her damages, car insurance deductible, and restitution request. At the sentencing hearing on February 12, 2024, the prosecution explained that the liquor store had also sustained significant damage, but the amount of damage was still being calculated by the store’s owner.1 Accordingly, the trial court ordered $1,000 in restitution for the car owner and reserved its determination of further restitution amounts for ninety-one days under section 18-1.3-603(1)(b), C.R.S. 2023.2 The court then sentenced Talmadge to sixty days in Denver County Jail, two years of supervised probation, and eighty-four hours of public service. ¶5 On March 5, 2024, the prosecution moved for an additional $299,022.91 in restitution for the liquor store. The motion included the store owner’s victim impact statement, which detailed losses from building repairs, damaged inventory, and cleanup costs, all 1 While the record does not contain transcripts from the sentencing hearing, the court file summarizes the hearing, and we presume the summaries are correct. Cf. People v. Duran, 2015 COA 141, ¶ 12 (it is the appellant’s responsibility to designate the record on appeal, and if the record does not contain a transcript, we presume that the transcript supports the trial court’s findings). 2 We cite to C.R.S. 2023, the version in effect at the time of sentencing. 2  substantiated by documentation. Talmadge objected to the amount and requested a hearing. ¶6 The court held a hearing on April 3, 2024, and was first made aware at that time that the liquor store owner required a Mandarin interpreter. The prosecutor admitted that his office may have known about this need but was unsure whether a request for an interpreter was made in his presence. The prosecutor then requested a continuance due to the store owner’s inability to testify without an interpreter, which the court granted without objection. The court noted that May 13, 2024, would mark ninety-one days since sentencing and rescheduled the hearing for May 10, 2024. ¶7 On May 10, the prosecution requested additional time to calculate restitution. The prosecutor stated that the store owner had provided an amount tallying how much she would receive for selling the lost alcohol — not how much it would cost to replace it — and the owner was working to calculate the latter amount. He further explained that the owner requested compensation for alcohol that other people looted after the crash, but he acknowledged that the owner could not recover those costs. He stated that the owner was now gathering information about the 3  “destroyed boxes full of [alcohol] bottles that the owner could no longer sell.” ¶8 Defense counsel objected to another continuance, noting that thirty-eight days had passed since the previous hearing and that Colorado law requires liquor store owners to keep invoices for alcohol, so the final amount should have been readily available. The prosecutor responded that although the owner had these records, she had provided his office with incorrect calculations. Testifying through an interpreter, the owner explained that “since the cost of liquor has been rising . . . and the seller has been changing,” it was difficult to purchase “the same kind of beer or liquor as before” at a consistent price, complicating the calculation of her actual losses. A friend of the store owner (who assisted with compiling costs) also testified, “[T]o some degree we weren’t sure what we were calculating, but . . . this is just a failing on my part not to get those costs done.” ¶9 Given the language barrier and complications in calculating the liquor store’s losses, the court found good cause to extend the ninety-one-day restitution deadline. The court noted that the store owner’s “reliance on . . . the Mandarin interpreter has added . . . 4  complication[s] to this case,” and the court was not clear that the store owner “actually understood what [the prosecution was] looking for.” Defense counsel objected to the court finding good cause to extend the deadline. The court initially scheduled a hearing for May 23, 2024, but rescheduled it — and extended the deadline further — after the prosecutor tested positive for COVID- 19 and could not find a replacement to appear in court. ¶ 10 The restitution hearing was finally held on September 6, 2024. The store owner requested $276,771.36 in restitution and testified about her losses. The prosecution also introduced thirteen exhibits to support the request. Defense counsel renewed her previous objection from the May 10 hearing and argued that the prosecution had not exercised reasonable diligence in obtaining the restitution information. ¶ 11 On October 8, 2024, the trial court awarded the store owner $276,771.36 in restitution. The court found that Talmadge had waived any claim that the prosecution failed to exercise reasonable diligence to provide an amount at sentencing, and that extenuating circumstances justified extending the ninety-one-day deadline. The court further noted that by granting a good cause extension, it 5  implicitly found that the prosecution had exercised reasonable diligence in securing the necessary information from the store owner. This appeal followed. ¶ 12 Talmadge argues that he did not waive his claim and maintains that the prosecution failed to exercise reasonable diligence. He thus asks us to vacate the trial court’s order. The People counter that, even aside from waiver, his claim fails on the merits. While we agree with Talmadge that he did not waive his right to challenge restitution, we conclude that the record supports the trial court’s finding that the prosecution was reasonably diligent. II. Waiver A. Standard of Review ¶ 13 Waiver presents a question of law that we review de novo. People v. Roberson, 2025 CO 30, ¶ 13. Unlike the waiver of a constitutional right, the waiver of a statutory right need only be voluntary, not knowing and intelligent. Id. Waiver may be explicit, i.e., demonstrated by a party’s words or actions, or implicit, “as when a party engages in conduct that manifests an intent to 6  relinquish a right or privilege or acts inconsistently with its assertion.” Forgette v. People, 2023 CO 4, ¶ 28. B. Applicable Law and Analysis ¶ 14 Generally, all judgments of conviction must consider restitution. § 18-1.3-603(1). Of the four types of restitution orders, the second is relevant here: “[a]n 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.” § 18-1.3-603(1)(b). When, as here, a defendant agrees to pay restitution for losses arising from dismissed counts, he is bound by that agreement. People v. Sosa, 2019 COA 182, ¶ 30. ¶ 15 The ninety-one-day deadline in subsection (1)(b) is not jurisdictional and may be waived. People v. Babcock, 2025 CO 26, ¶ 27. In Babcock, ¶ 30, our supreme court held that a defendant waived the right to challenge the deadline by requesting a hearing date beyond the ninety-one-day window. Similarly, in Roberson, ¶ 17, the court held that the defendant’s “failure to object to a 7  hearing outside the statutory deadline and subsequent repeated requests for continuances — all without any mention of the . . . deadline despite numerous opportunities to do so” — evidenced waiver. And in Johnson v. People, 2025 CO 29, ¶¶ 8-10, the defendant requested a hearing after the deadline, asked for multiple continuances, argued that there was good cause to extend the deadline, and did not object when the district court extended his deadline to contest restitution. This, the court held, amounted to waiver. Id. at ¶ 31. ¶ 16 Talmadge’s case stands in contrast to these cases. Here, defense counsel objected on May 10 — three days before the ninety- one-day deadline — to the trial court’s finding of good cause for a continuance. Contra Roberson, ¶ 17; Johnson, ¶ 31. Defense counsel also noted that liquor stores must keep and maintain invoices; thus, the prosecution should have been able to readily determine losses. While defense counsel may not have explicitly argued until September 6 that the prosecution failed to exercise reasonable diligence, the record demonstrates that counsel’s objections were grounded in the same concerns. See People v. Rediger, 2018 CO 32, ¶¶ 40, 46 (recognizing that waiver is 8  accomplished by intent and we must indulge every reasonable assumption against waiver). Accordingly, Talmadge did not act inconsistently with his assertion on appeal, and we will review the merits of his claim. See Forgette, ¶ 28. III. Reasonable Diligence ¶ 17 Talmadge contends that the trial court erred by finding that the prosecution exercised reasonable diligence. We discern no error. A. Standard of Review ¶ 18 We review a trial court’s factual findings for clear error. People v. Beauvais, 2017 CO 34, ¶ 22. We set aside the court’s factual findings “only when they are so clearly erroneous as to find no support in the record.” Id. We will not substitute our judgment for that of the fact finder. DeBella v. People, 233 P.3d 664, 666 (Colo. 2010). B. Applicable Law and Analysis ¶ 19 In People v. Brassill, 2024 COA 19, ¶ 30 (cert. granted Aug. 4, 2025), a division of this court held that “the restitution statute requires the prosecution to exercise reasonable diligence to determine the amount of restitution and present it to the court at or 9  before the sentencing hearing.” But the division also recognized that when, as here, restitution cannot be resolved at sentencing — despite the prosecution’s diligent efforts — subsection (1)(b) of section 18-1.3.-603 “provide[s] the court with sufficient options to efficiently and timely resolve any lingering issues.” Brassill, ¶ 63. Importantly, the ninety-one-day deadline “refers to the court’s determination of the restitution amount the defendant must pay, not to the prosecution’s determination of the proposed amount of restitution.” People v. Weeks, 2021 CO 75, ¶ 5. And “this deadline may be extended only if, before the deadline expires, the court expressly finds good cause for doing so.” Id. ¶ 20 In Brassill, ¶ 3, the defendant entered into a plea agreement that did not mention restitution. The court proceeded directly to sentencing and inquired whether the prosecution intended to seek restitution. Id. at ¶ 4. The prosecutor responded affirmatively but conceded, “I don’t have a good excuse for why we don’t have that [information today].” Id. The court then ordered the prosecution to supply a restitution figure within thirty days. Id. Defense counsel objected, arguing that the prosecution should have provided a restitution amount at sentencing. Id. at ¶ 5. A division of this 10  court agreed, holding that subsection (2)(a) of section 18-1.3.-603 requires the prosecution to exercise reasonable diligence in determining restitution before sentencing. Id. at ¶ 45. ¶ 21 Talmadge contends that the trial court’s restitution order is in “direct conflict” with Brassill’s interpretation of section 18-1.3.-603. But this case is factually distinguishable from Brassill. Here, the prosecution presented some restitution information at sentencing and explained the need for additional time to calculate the liquor store owner’s losses. Moreover, Talmadge entered a plea agreement that explicitly reserved restitution and obligated him to pay the amount later determined. Talmadge was bound by these terms, see People v. Barton, 174 P.3d 786, 790 (Colo. 2008) (recognizing that courts apply contract principles when interpreting defense and prosecution obligations under plea agreements), and Brassill’s holding does not override this obligation. ¶ 22 In any event, the record demonstrates that the prosecution acted with reasonable diligence. At sentencing, the prosecution presented a loss figure for the car owner and explained that more time was needed to calculate the restitution amount for the liquor store owner due to the extent of the damage. Cf. Brassill, ¶ 4 11  (noting the prosecution’s failure to explain why it did not have restitution information at sentencing). Language barriers, fluctuating liquor costs, and the store owner’s miscalculations — factors outside the prosecution’s immediate control — further complicated the prosecution’s ability to provide an accurate amount. We therefore conclude that the trial court did not err in implicitly finding that the prosecution exercised reasonable diligence. And even if there was error, such error would be harmless because the final figure was less than the amount initially requested within the ninety-one-day deadline. See, e.g., People v. Short, 2018 COA 47, ¶ 54 (“Under the nonconstitutional harmless error test, the defendant bears the burden of showing prejudice from the error.”). IV. Disposition ¶ 23 The order is affirmed. JUDGE YUN concurs. JUDGE JOHNSON specially concurs. 12  JUDGE JOHNSON, specially concurring. ¶ 24 I agree with the majority that the restitution order imposed against defendant, Robert E. Talmadge, III (Talmadge), should be affirmed. But I disagree that we should base our analysis on his plea agreement. Supra ¶ 21. ¶ 25 The majority asserts that Talmadge’s case is factually distinct from People v. Brassill, 2024 COA 19. That division affirmed a restitution order, despite concluding that the prosecutor failed to exercise reasonable diligence when he told the court he did not have a “good excuse” for not having the restitution information at sentencing. Id. at ¶ 46. As the majority points out, and I agree, the prosecutor in this case had some restitution information at sentencing and explained why he needed more time to accumulate more. And the record supports, as the majority points out, that the prosecutor’s delays in obtaining that information were due to “language barriers [with the store owner], fluctuating liquor costs, and the store owner’s miscalculations.” Supra ¶ 22. ¶ 26 In my view, this ends the analysis. Instead, the majority also relies on Talmadge’s plea agreement to support its conclusion that his case is factually distinct from Brassill. Supra ¶ 21. As the 13  majority notes, Talmadge “agree[d] to pay restitution for all charged counts, including counts dismissed as part of this plea resolution,” and so he was bound by the plea agreement’s terms. Id. I do not read this language as broadly relieving the prosecutor of his duty to exercise reasonable diligence to obtain the information within the statutory deadline in section 18-1.3-603(2)(a), C.R.S. 2023. ¶ 27 In People v. Martinez Rubier, 2024 COA 67, ¶ 33, a division of this court held that a defendant’s plea agreement did not relieve the prosecution of its duty to comply with the statutory deadline in section 18-1.3-603(2)(a). In that case, the defendant had agreed to language similar to Talmadge’s, as well as a term that the restitution “amount [would] be determined within [ninety-one] days.” Martinez Rubier, ¶ 9. I agree with Martinez Rubier’s conclusion that reading the plea provision as waiving the statutory deadline would “stretch[] the agreement’s language too far.” Id. at ¶ 33. Therefore, if the prosecutor in this case had no explanation for the delay in obtaining the liquor store owner’s restitution information like in Brassill, he would not be relieved from his 14  section 18-1.3-603(2)(a) deadline based on Talmadge’s plea agreement. ¶ 28 Therefore, I disagree with the majority opinion to the extent it relies, in part, on Talmadge’s plea agreement to support the prosecutor’s reasonable diligence. But because the record supports the majority’s conclusion that there were good cause reasons for the prosecutor’s delay, I concur with the majority’s decision affirming the restitution order.  To the extent Talmadge argues that the prosecutor’s explanation at sentencing was insufficient to comply with section 18-1.3- 603(2)(a), C.R.S. 2023, I agree with the majority that we must presume that the district court’s factual finding was correct because Talmadge did not include that transcript in the appellate record. See People v. Gandiaga, 70 P.3d 523, 527 (Colo. App. 2002) (“It is the appellant’s duty to provide those portions of the record necessary to substantiate the claims of error on appeal.”). 15