Peo in Interest of A.N

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
May 9, 2019

2019COA67

No. 16CA1834, Peo in Interest of A.N. — Juvenile Court —
Delinquency; Criminal Law — Sentencing — Restitution —
Assessment of Restitution

A division of the court appeals considers whether the trial

court erred when it overruled a juvenile defendant’s objection to the

Judicial Department’s method of calculating and assessing monthly

interest on his unpaid restitution balance and denied the juvenile

defendant’s motion for an order specifying that interest will be

assessed on a yearly basis. Relying on the reasoning in People v.

Ray, 2018 COA 158, the division concludes that section 18-1.3-

603(4)(b)(I), C.R.S. 2013, permits the Judicial Department to

compute and assess interest at a rate of 1% per month. The

division further rejects the juvenile defendant’s contention that

because the statute is ambiguous as to the frequency with which
interest may be assessed, it is void for vagueness under the United

States and Colorado Constitutions. Accordingly, the division

affirms the trial court’s order.
COLORADO COURT OF APPEALS 2019COA67

Court of Appeals No. 16CA1834
City and County of Denver Juvenile Court No. 14JD59
Honorable D. Brett Woods, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.N.,

Juvenile-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE RICHMAN
Navarro and Welling, JJ., concur

Announced May 9, 2019

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy
State Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1 Appellant, A.N., appeals the trial court’s order overruling his

objection to the Judicial Department’s method of calculating and

assessing monthly interest on his unpaid restitution balance and

denying his motion for an order specifying that interest will be

assessed on a yearly basis. We affirm the trial court’s order.

I. Background

¶2 A.N. is a juvenile who stole an unoccupied car that had been

left running. Police found and pursued A.N., and a high-speed

chase ensued. The chase ended when A.N. crashed the car in an

open field and was apprehended by police. A.N. was charged with

several offenses and elected to plead guilty to second degree

aggravated motor vehicle theft. As part of his plea, he agreed to pay

restitution to the victims. Although the parties stipulated to some

of the restitution expenses, A.N. disputed the full amount of

restitution sought. That dispute was ultimately resolved by this

court in People in Interest of A.N., (Colo. App. No. 15CA0014, Feb.

16, 2017) (not published pursuant to C.A.R. 35(e)) (A.N. I), wherein

a division of this court affirmed the award of $9677.44 in restitution

to the victims.

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¶3 While A.N. I was pending, the Judicial Department announced

that to remedy prior inconsistencies in its method of calculating

and assessing interest on restitution obligations, it would begin

calculating and assessing 1% interest on all restitution obligations

on a monthly basis. A.N. received a letter notifying him that,

beginning in September of that year, interest would be added to his

restitution balance at a rate of 1% per month. A.N. filed a motion

objecting to this notification in the trial court, additionally

requesting an order that his interest be calculated and assessed at

the end of each year and not on a monthly basis. In a thorough,

written order, the trial court overruled A.N.’s objection and denied

A.N.’s motion for an order contrary to the Judicial Department’s

decision.1

1 In their answer brief, the People correctly note that when the trial
court issued its initial order, the trial court lacked jurisdiction
because an appeal regarding the amount of restitution was pending
in this court. See People in Interest of A.N., (Colo. App. No.
15CA0014, Feb. 16, 2017) (not published pursuant to C.A.R.
35(e))(A.N. I); see also Molitor v. Anderson, 795 P.2d 266, 269 (Colo.
1990) (noting that “in this jurisdiction a trial court may not
determine matters affecting the substance of a judgment once an
appeal of that judgment has been perfected unless the appellate
court issues an order remanding the judgment to the trial court for
that purpose”). Accordingly, before reaching any conclusion on the

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¶4 A.N. makes four contentions on appeal. First, he contends

that the trial court erred in concluding that the Judicial

Department’s method of calculating and assessing interest

comports with the plain language of the statute in effect at the time

that restitution was ordered. § 18-1.3-603(4)(b)(I), C.R.S. 2013

(hereinafter, the restitution interest statute). Second, he contends

that if this court concludes that monthly interest assessments are

proper, then the restitution interest statute is irreconcilably

ambiguous as to the permitted methods of calculating and

assessing interest, requiring us to invoke the rule of lenity to

interpret the restitution interest statute in his favor. Third, he

contends that the calculation and assessment of monthly interest

undermines the rehabilitative goals of the juvenile justice system.

Fourth, he contends that any reading of the restitution interest

statute that allows for the calculation and assessment of interest at

merits of this appeal, we remanded this case to the trial court so
that it could re-enter its initial order on a date subsequent to our
mandate in A.N. I. It is this trial court order, issued on March 5,
2019, that we now consider.

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 a time other than at the end of each year renders the statute

unconstitutionally vague.

II. The Restitution Interest Statute

A. Standard of Review

¶5 The manner in which restitution is imposed in Colorado is a

matter of statutory law. §§ 18-1.3-601 to -603, C.R.S. 2018.

Where, as here, an appeal requires us to interpret a statute, our

review is de novo. People v. Ortiz, 2016 COA 58, ¶ 15.

B. The Meaning of “Per Annum”

¶6 When restitution is ordered by the trial court, it is due and

payable when the court enters the order. § 16-18.5-104(1), C.R.S.

2018. If a defendant cannot pay the entire amount of restitution at

that time, the defendant will be referred to a collections investigator

who will set a payment schedule. § 16-18.5-104(4)(a)(I). The

defendant must pay interest on the unpaid balance.

§ 18-1.3-603(4)(b)(I), C.R.S. 2018. The restitution interest statute

was originally enacted to provide “full restitution for victims of

crime in the most expeditious manner.” Roberts v. People, 130 P.3d

1005, 1009 (Colo. 2006) (quoting § 18-1.3-601(1)(g)(I), C.R.S. 2005).

When the trial court issued A.N.’s restitution order, the relevant

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 statute provided that “[a]ny order for restitution made pursuant to

this section shall also be deemed to order that . . . [t]he defendant

owes interest from the date of the entry of the order at the rate of

twelve percent per annum . . . .” § 18-1.3-603(4)(b)(I), C.R.S. 2013.2

The interpretation of this language is the central issue in this

appeal.

¶7 When interpreting statutes, our responsibility is to ascertain

the intent of the legislature as represented in the plain language of

the statute. Roberts, 130 P.3d at 1007. If the language is clear, we

apply the statute as written. People v. Ray, 2018 COA 158, ¶ 16.

However, if the language is ambiguous, we may use other tools of

interpretation to determine the intent of the legislature. Id.

¶8 Here, the statutory language states that defendants owe 12%

per annum, which clearly means that defendants must pay an

amount of interest equal to 12% annually. Black’s Law Dictionary

1317 (10th ed. 2014) (defining per annum as “[b]y, for, or in each

2 In 2016, the legislature amended this portion of the statute to
read, “[t]he defendant owes simple interest from the date of the entry
of the order at the rate of eight percent per annum . . . .” Ch. 277,
sec. 1, § 18-1.3-603(4)(b)(I), 2016 Colo. Sess. Laws 1143 (emphasis
added).

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 year; annually”). However, the interest provision does not address

the frequency with which the Judicial Department may calculate

and assess interest. Therefore, the restitution interest statute is

ambiguous on this point. Ray, ¶ 24 (finding this language

ambiguous as to the question of how often the Judicial Department

can require a defendant to make interest payments).

¶9 In Ray, a division of this court addressed the proper

interpretation of this very ambiguity. Id. at ¶ 27. The Ray division

noted that (1) the consensus in other jurisdictions is that the term

“per annum” does not indicate an intent to require annual interest

payments; (2) the legislature has clearly mandated annual interest

payments in other statutes but has not done so with respect to

restitution; (3) the assessment of monthly interest is consistent with

industry standards and would lead to the collection of no more than

12% interest per year; (4) the assessment of annual interest would

contradict the legislature’s intent to assess interest from the date of

the order; (5) monthly interest assessments encourage expeditious

payment, effectuating the intent of the legislature; (6) other

statutory provisions that may encourage expeditious payment are

no substitute for postjudgment interest; and (7) the Judicial

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 Department’s manner of computing and assessing interest does not

modify or contravene the restitution interest statute as written. Id.

at ¶¶ 28-39.

¶ 10 The argument that monthly interest assessments encourage

expeditious payment, effectuating the intent of the legislature, is

particularly compelling. We do not construe statutes to yield

absurd results and we avoid constructions that contradict the

overall legislative scheme. People v. Benavidez, 222 P.3d 391, 393

(Colo. App. 2009). Under A.N.’s proposed method of interest

calculation and assessment, a defendant has no reason to pay off

his restitution debt until the day before annual interest is to be

assessed. If he then pays off the entirety of the debt, he will pay no

interest although the debt has existed and remained unpaid for

nearly a year. This result ignores the legislative declaration

associated with the restitution interest statute, which states that

“[a]n effective criminal justice system requires timely restitution to

victims of crime and to members of the immediate families of such

victims in order to lessen the financial burdens inflicted upon

them . . . .” § 18-1.3-601(1)(e), C.R.S. 2018. When crime victims

are not paid in a timely manner for financial losses, and are

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 deprived of interest on those amounts, the legislative goal of

lessening victims’ financial burdens is substantially thwarted, as a

victim has essentially given an interest-free loan to a defendant.

See People v. Garcia, 55 P.3d 243, 245 (Colo. App. 2002) (noting

that victims should be compensated for a defendant’s delay in

repaying restitution obligations).

¶ 11 In light of this compelling and substantial evidence of

legislative intent, we are persuaded to follow the holding in Ray.

We conclude that the trial court’s interpretation of the restitution

interest statute is correct and that the statute allows the Judicial

Department to compute and assess interest at a rate of 1% per

month.

III. The Rule of Lenity

¶ 12 We also reject A.N.’s contention that we should apply the rule

of lenity to interpret the statute in his favor. Because that rule

applies only when other methods of statutory interpretation fail,

and such methods were effective here, we need not apply the rule of

lenity. People v. Summers, 208 P.3d 251, 258 (Colo. 2009) (stating

that the rule of lenity is a “rule of last resort” to be used only if,

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 after using other aids to statutory construction, legislative intent is

still unclear).

IV. Juvenile Rehabilitation

¶ 13 A.N. separately argues that calculating and assessing interest

on a monthly basis is inconsistent with the goal of rehabilitation of

juveniles embedded in the juvenile code because “high amounts of

restitution may exacerbate poverty for indigent juveniles, their

families, and siblings.” We disagree.

¶ 14 The juvenile code provides that “the juvenile justice system

shall take into consideration the best interests of the juvenile, the

victim, and the community in providing appropriate treatment to

reduce the rate of recidivism in the juvenile justice system and to

assist the juvenile in becoming a productive member of society.”

§ 19-2-102(1), C.R.S. 2018. Thus, the code indeed reflects a

particular concern for the rehabilitation of juveniles. However, the

code also reflects a concern that the juvenile justice system

function as a means of restoring safety and security to victims of

crime, keeping the victim’s best interests in mind as well. Id.;

§ 19-2-102(2) (noting that the juvenile justice system should seek to

repair harm caused by criminal conduct and hold juveniles

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 accountable for such conduct). The goals of juvenile rehabilitation

and community protection are not inconsistent. In fact, the

juvenile code states that its purpose is “to serve the welfare of

children and the best interests of society,” expressly recognizing

that the legislature’s intent is to balance both interests and that

striking that balance is not inconsistent with the provisions of the

juvenile code. § 19-1-102, C.R.S. 2018; see People v. Juvenile

Court, 893 P.2d 81, 91 (Colo. 1995) (noting that the juvenile code

reflects a balance between concern for juveniles and concern for the

community at large).

¶ 15 The legislature has, therefore, chosen to require juveniles to

pay restitution where they have damaged property through their

criminal conduct even if they cannot immediately pay the full

amount. § 19-2-918(1)-(2), C.R.S. 2018. To that end, the juvenile

restitution statute further provides that, like adults, juveniles must

pay interest in accordance with section 18-1.3-603. § 19-2-918(2).

Thus, the legislature has not enacted any separate provisions

creating different repayment standards for juveniles in light of the

rehabilitative purpose of the juvenile code. Nor has the legislature

made the inability to pay restitution, including restitution interest,

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 a factor to be considered in issuing a restitution order in a juvenile

case. People v. Stovall, 75 P.3d 1165, 1167 (Colo. App. 2003)

(noting that restitution must be ordered regardless of a defendant’s

ability to pay); see People v. Cardenas, 262 P.3d 913, 914-15 (Colo.

App. 2011) (rejecting a defendant’s contention that the restitution

interest statute is an excessive fine and concluding that the

defendant’s inability to work is irrelevant).

¶ 16 We therefore cannot consider A.N.’s alleged inability to pay

when determining the meaning of the restitution interest statute as

to juveniles, nor can we invalidate the statute because it may

sometimes function in a way that is contrary to the purposes of the

juvenile code. Juvenile Court, 893 P.2d at 88 (noting that a

provision of the criminal code could not be deemed invalid because

it is contrary to the purposes of the juvenile code).

¶ 17 Moreover, the legislature has specifically recognized that the

payment of restitution “is a mechanism for the rehabilitation of

offenders” and “aid[s] the offender in reintegration as a productive

member of society.” § 18-1.3-601(1)(c), (2). We will not contravene

these express legislative declarations by concluding that monthly

interest, assessed to a juvenile in accordance with the restitution

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 interest statute, thwarts the rehabilitative purposes of the juvenile

code.

V. Constitutional Constraints on Statutory Ambiguity

¶ 18 A.N. raises a final contention, not addressed in Ray, that the

trial court’s interpretation of the restitution interest statute renders

the statute unconstitutionally vague, violating his due process

rights under the United States and Colorado Constitutions. See

U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25. Specifically,

A.N. argues that because the restitution interest statute is

ambiguous as to the frequency with which interest may be

assessed, there is a danger that it will be enforced in an arbitrary

and capricious manner.

¶ 19 As a threshold issue, we note that we may conclude that a

statute is ambiguous when the statute is “silent on an issue that

would be expected to be within its scope.” Ray, ¶ 16 (quoting

People v. Carey, 198 P.3d 1223, 1229 (Colo. App. 2008)). This

standard is not to be equated with the standard under which we

evaluate whether a statute is void for vagueness due to

constitutional constraints. Rather, when considering whether a

statute is unconstitutionally vague, we examine whether the statute

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 gives fair warning of prohibited conduct and whether it lacks

explicit standards for application, creating a danger of arbitrary and

capricious enforcement. See, e.g., Colo. Auto & Truck Wreckers

Ass’n v. Dep’t of Revenue, 618 P.2d 646, 651 (Colo. 1980).

¶ 20 In addition, we are mindful that a statute is presumed to be

constitutional, and a party challenging its constitutionality must

prove, beyond a reasonable doubt, that it is unconstitutional.

Parrish v. Lamm, 758 P.2d 1356, 1364 (Colo. 1988). Therefore, if a

statute is capable of both constitutional and unconstitutional

interpretations, we will adopt the constitutional interpretation. Id.

We will construe the restitution interest statute “in such a way that

it is not void for vagueness whenever a reasonable and practical

construction can be given to its language . . . .” People v. Phillips,

652 P.2d 575, 578 (Colo. 1982).

¶ 21 A.N. has not met the heavy burden of proving that the

restitution interest statute is unconstitutional beyond a reasonable

doubt. “A provision is not void for vagueness if it fairly describes

forbidden conduct so as to enable persons of common intelligence

readily to understand its meaning and application.” Stamm v. City

& Cty. of Denver, 856 P.2d 54, 56 (Colo. App. 1993). Words or

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 phrases, therefore, may be given their generally accepted meanings

and need not be defined with mathematical precision. Id.; see

Allstate Prods. Co., Inc. v. Colo. Dep’t of Labor & Emp’t, 782 P.2d

880, 882 (Colo. App. 1989) (“[D]ue process of law requires neither

scientific nor mathematical exactitude in legislative

draftsmanship.”).

¶ 22 Here, a person of common intelligence would understand the

words “[12%] per annum” in section 18-1.3-603(4)(b)(I), C.R.S.

2013, to cap the total amount of interest collected at 12% per year,

however frequently interest may be calculated and assessed.

Within the scope of that limitation, when an interest rate is stated

on a “per annum” basis, it is generally accepted that interest may

be calculated monthly, as long as that calculation approximates the

specified yearly interest rate. Ray, ¶ 30 (noting that the Judicial

Department’s monthly interest assessments are consistent with

standard practices in the financial community).

¶ 23 Furthermore, the “per annum” rate should be interpreted in

the context of the statute as a whole. Mr. Lucky’s, Inc. v. Dolan, 197

Colo. 195, 198, 591 P.2d 1021, 1023 (1979) (stating that in

evaluating vagueness, the court must analyze the standards set

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 forth in the statute according to its purpose and context). When the

restitution interest statute is considered in the context of Colorado’s

restitution scheme as a whole, its standards of enforcement are

sufficient to clarify which methods of calculation and assessment

are acceptable. The restitution interest statute requires that the

Judicial Department begin charging interest on the date that

restitution is ordered. § 18-1.3-603(4)(b)(I). It also requires that the

Judicial Department establish procedures to “collect full restitution

for victims of crime in the most expeditious manner.”

§ 18-1.3-601(1)(g)(I).

¶ 24 Therefore, A.N.’s assertion that the Judicial Department has

so much discretion that it arbitrarily “could decide to assess

interest quarterly, semiannually, or daily” is unpersuasive. Any

decision with respect to the method of collecting restitution must,

as far as is practicable, allow the Judicial Department to assess

interest promptly after the requisite order is issued, must promote

expeditious repayment, and must permit the collection of no more

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 than 12% total interest per year. 3 Although these constraints do

not amount to a mathematical formula for the calculation and

assessment of interest, they limit the range of options available.

The allowable enforcement methods do not create a danger of

arbitrary and capricious enforcement; thus, they satisfy minimal

due process requirements. Stamm, 856 P.2d at 57 (concluding that

the statute was not so “ill-defined as to create a danger of arbitrary

or capricious enforcement” when its disputed terms were viewed

according to their ordinary meaning, as well as their interpretation

in prior case law and their policy context).

VI. Conclusion

¶ 25 We affirm the trial court’s order.

3 We decline A.N.’s request to “clarify” that interest under section
18-1.3-603(4)(b)(I), C.R.S. 2013, must be assessed as simple
interest rather than compound interest. “We may not read into
a statute a provision not found in it.” Rook v. Indus. Claim Appeals
Office, 111 P.3d 549, 552 (Colo. App. 2005). Nonetheless, we note
that the statute was subsequently amended to clarify that simple
interest applies, 2016 Colo. Sess. Laws at 1142. We also note that
where contrary terms are not specified, simple interest generally
applies. People v. Ray, 2018 COA 158, ¶ 32. In addition, the
People argue that the Judicial Department intended to assess only
simple interest. We therefore proceed, for purposes of discussion,
as if the interest assessed is simple interest.

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JUDGE NAVARRO and JUDGE WELLING concur.

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