v. Gregory

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 19, 2019

2019COA184

No. 16CA1171, People v. Gregory — Criminal Law — Sentencing
— Restitution

As a matter of first impression, a division of the court of

appeals holds that where the victims’ families enter into a

settlement agreement with defendant and his insurer that is clearly

intended to cover all liabilities and that agrees to indemnify

defendant for anything additional he has to pay, defendant has met

his burden of going forward to show that the agreement covered all

categories of loss for which restitution could be imposed. The

division also concludes — as a matter of first impression — that the

court’s authority to decrease restitution does not carry with it the

same limitations placed on its authority to increase restitution

previously ordered.
COLORADO COURT OF APPEALS 2019COA184

Court of Appeals No. 16CA1171
El Paso County District Court No. 15CR2254
Honorable G. David Miller, Judge

The People of the State of Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

Marshal Douglas Gregory,

Defendant-Appellant and Cross-Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUSTICE MARTINEZ*
Berger and Welling, JJ., concur

Announced December 19, 2019

Philip J. Weiser, Attorney General, Christine C. Brady, Assistant Attorney
General, Denver, Colorado; Daniel H. May, District Attorney, Tanya A. Karimi,
Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and
Cross-Appellant

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-
Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Marshal Douglas Gregory, and the People each

appeal the restitution order entered by the district court. We decide

that the court’s authority to decrease restitution does not carry with

it the same limitations placed on its authority to increase

restitution previously ordered. We also conclude that the

comprehensive settlement agreement in this case — which was

intended to cover all liabilities and indemnified defendant for any

further losses — meets defendant’s burden of going forward to show

that he compensated the victims for the same categories of losses

for which restitution could be imposed. Thus, we reverse and

remand for further proceedings.

I. Background

¶2 In September 2014, defendant, who was seventeen years old at

the time, drove while intoxicated and crashed his vehicle, killing two

passengers (B.B. and R.P.) and seriously injuring a third (J.C.).

Defendant pleaded guilty, as an adult, to two counts of vehicular

homicide. On October 11, 2015, defendant’s insurance company

settled with the two deceased victims’ families and the living victim.

Each of the deceased victims’ families received $500,000 and, in

1
 exchange, released defendant, his parents, and his insurance

company from all claims stemming from the incident.

¶3 On October 16, 2015, the court sentenced defendant to a

twelve-year suspended prison sentence, conditioned on completion

of four years in the Youthful Offender System. During sentencing,

the court reserved restitution for ninety-one days. On January 6,

2016, the prosecution requested restitution of $15,513.43. The

requested restitution consisted of (1) $3307.33 to R.P.’s family for

travel expenses and psychologist fees for R.P.’s brother; and (2)

$5542 and $6664.10 to the Crime Victim Compensation Program

(CVCP) for payments made to B.B.’s and R.P.’s families,

respectively, for funeral expenses.

¶4 On May 27, 2016, following a restitution hearing, the court

entered a restitution order for the entire amount requested by the

prosecution. The order stated that defendant had thirty days to

object to the amount of restitution before the order became final.

Defendant filed an objection on June 8, 2016 — within the allotted

thirty days — arguing that the court should “reconsider” its order.

The court issued an amended restitution order on July 11, 2016, in

which it removed the payment that was to be made directly to R.P.’s

2
 family, reasoning that it was set off by the settlement agreement.

The court maintained that defendant was liable to the CVCP, as the

fund was not a party to the settlement agreements.

¶5 Defendant now appeals the amended restitution order, arguing

that the court erred by denying him a setoff for the CVCP payments.

The People filed a cross-appeal in which they argue that (1) the

court did not have authority to change its May 27, 2016, restitution

order; and (2) the court erred by granting defendant a setoff for the

payment to R.P.’s family.

II. The Court’s Authority to Amend the Restitution Order

¶6 As a threshold matter, the People contend that the district

court did not have authority to change its May 27, 2016, order. We

disagree.

A. Applicable Law

¶7 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

3
 other tools of statutory construction.” Goodman v. Heritage

Builders, Inc., 2017 CO 13, ¶ 7.

¶8 The district court must consider restitution in every order of

conviction it enters in a felony case. § 18-1.3-603(1), C.R.S. 2019.

Pursuant to section 18-1.3-603(1), an order of conviction must

contain: (a) an order specifying the amount of restitution; (b) an

order that the defendant must pay restitution but that the specific

amount is to be determined within ninety-one days from the order

of conviction, or longer for good cause; (c) an order, in addition to a

specific amount of restitution, that the defendant cover the cost of a

victim’s specific future treatment; or (d) a finding that no victim of

the crime suffered a pecuniary loss and that restitution is not

required. § 18-1.3-603(1).

¶9 Section 18-1.3-603(3) also states:

Any order for restitution may be:

(a) Increased if additional victims or additional
losses not known to the judge or the
prosecutor at the time the order of restitution
was entered are later discovered and the final
amount of restitution due has not been set by
the court; or

(b) Decreased:

4
 (I) With the consent of the prosecuting attorney
and the victim or victims to whom the
restitution is owed; or

(II) If the defendant has otherwise
compensated the victim or victims for the
pecuniary losses suffered.

B. Analysis

¶ 10 The People contend that the court lacked statutory authority

to decrease the restitution amount ordered on May 27, 2016, as

section 18-1.3-603(3)(b)(II) only allows a decrease in the amount of

restitution if the defendant has compensated the victims after the

court’s order is entered. The People reiterate that the court was

aware of the settlement agreements when it entered its May 27,

2016, order, so no new information was available to it when it

changed the order.

¶ 11 We do not read section 18-1.3-603(3)(b)(II) as imposing such a

limitation. Unlike section 18-1.3-603(3)(a), which allows a court to

increase restitution only if additional losses were “not known to the

judge or the prosecutor at the time the order of restitution was

entered” and are discovered before the “final amount of restitution”

has been set by the court, section 18-1.3-603(3)(b)(II) does not

5
 similarly limit when the court can decrease the restitution amount.

See § 18-1.3-603(3)(a)-(b). Instead, section 18-1.3-603(3)(b)(II)

merely states that the restitution amount may be decreased if the

defendant has “otherwise compensated the victim or victims for the

pecuniary losses suffered.” We therefore conclude that the court

had authority to decrease the restitution amount ordered on May

27, 2016, when it finally determined that R.P.’s family was

compensated by the settlement agreement. See Turbyne v. People,

151 P.3d 563, 567 (Colo. 2007) (“We do not add words to the

statute or subtract words from it.”).

¶ 12 In so concluding, we reject the People’s contention that

because restitution is part of a defendant’s criminal sentence,

amendment of a final restitution amount violates the constitutional

prohibition against double jeopardy. The cases cited by the People

illustrate that this constitutional protection applies only to an

increase in the restitution amount. A decrease in the restitution

amount does not have the same implication. See People v. Harman,

97 P.3d 290, 293 (Colo. App. 2004) (highlighting that the double

jeopardy prohibition against increasing a legal sentence once the

6
 defendant has begun serving it is to protect the defendant from

being punished twice for the same offense).

¶ 13 We also reject the People’s contention that our decision

contravenes the Colorado Supreme Court’s decision in Meza v.

People, 2018 CO 23. There, the county court entered a specific

amount of restitution, reserved restitution at the same time, and

then later increased the amount of restitution. Meza, ¶ 6. Our

supreme court held that the county court erred because it did not

have statutory authority pursuant to section 18-1.3-603(3)(a) to

enter a specific amount of restitution, reserve restitution at the

same time, and subsequently increase restitution. Id. at ¶ 15. The

court in this case, however, did not err because it had statutory

authority to decrease the restitution amount pursuant to section

18-1.3-603(3)(b)(II).

¶ 14 We therefore conclude that the district court had authority to

amend the May 27, 2016, restitution order. 1

1 We note that the May 27, 2016, order may not have been an order
setting the amount of restitution because it specifically provided
that it would result in a “final order” if the defendant did not
request a hearing within 30 days. Because the district court has
authority to decrease the amount of restitution, it is unnecessary

7
 III. The Settlement Agreements

¶ 15 The People next contend that the district court erred by

granting defendant a setoff for R.P.’s family’s travel expenses and

psychologist fees based on the settlement agreement between

defendant’s insurer and R.P.’s family. Defendant, on the other

hand, contends that the court erred by denying him a setoff for the

CVCP payments made to the victims’ families for funeral expenses

because the agreements discharged his liability for these costs.

¶ 16 We agree that defendant showed that the settlement

agreement covered R.P.’s family’s travel expenses and psychologist

fees but conclude that the district court erred by not considering

that the settlement agreements also covered the CVCP payments

made to the victims’ families for funeral expenses. Because

defendant has met his burden of going forward by showing that the

settlement agreements were intended to cover the same categories

of losses as his restitution, the burden now shifts to the prosecution

to rebut the inference of double recovery. Thus, we reverse and

remand for further proceedings.

for us to resolve any ambiguity about the nature of the May 27,
2016, order.

8
 A. Additional Facts

¶ 17 The settlement agreements between defendant’s insurer and

the deceased victims’ families were broad and comprehensive. The

agreements signed by the two families were practically identical.

Both agreements stated in relevant part:

In consideration of the payment set forth . . .
Releasors [victim’s parents and estate] . . .
completely release and forever discharge
Releasees [defendant and his parents], and
their insurers . . . from any and all actions,
causes of actions, suits, debts, charges,
complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages,
and expenses, of any nature whatsoever, in
law or equity, whether known or unknown,
from the beginning of time through the
execution of this agreement, including without
limitation all claims which were or could have
been asserted in the Action, that related in any
way to the automotive accident occurring on or
about September 1, 2014, and the resulting
death of [victim].

¶ 18 The agreements also contained a separate section titled

“Responsibility for Liens, Interests, and Any Other Claims.” The

section stated in relevant part:

Releasors agree that they are solely
responsible for the payment of any and all
applicable medical and other liens, interests or
claims that may exist or may be asserted in
the future, and that the Releasees shall not be

9
 liable or responsible for any liens asserted for
claims, injuries, or damages arising from the
accident occurring on or about September 1,
2014, and resulting in wrongful death of
[victim]. . . .
The indemnity in this section shall
include, but not be limited to, . . .
governmental or non-governmental liens, [and]
amounts paid to or on behalf of Releasors by
. . . any governmental program or agency . . . .

¶ 19 At the restitution hearing, the district court relied on People v.

Lassek, 122 P.3d 1029 (Colo. App. 2005), and initially concluded

that because the agreements were unapportioned, the court could

not ascertain the categories of loss that were covered. The court

reasoned that “[i]t could be all pain and suffering.” The court

therefore refused to set off R.P.’s family’s travel expenses and

psychologist fees. As for the CVCP payments, the court concluded

that the CVCP’s interest could not be waived by the settlement

agreements as the CVCP was not a party to them. The court

therefore ordered all of the restitution requested by the prosecution,

subject to defendant’s request for a second hearing.

10
¶ 20 In its subsequent order, the court distinguished the agreement

in Lassek from the agreements in this case. 2 The court reasoned

that the Lassek agreement was executed with the knowledge that

the victims were bringing a separate underinsured motorist claim

against their own insurer. The court explained that the Lassek

agreement therefore had to be apportioned to set off the defendant’s

restitution as it was not intended to be a full settlement because a

jury had yet to determine the extent of the victim’s damages. The

court noted that the agreements in this case clearly did not

contemplate further legal action and expressed the intent of the

parties to discharge defendant of all possible claims against him so

that “an itemized statement of damages would serve no purpose in

this case.” The court therefore concluded that defendant was not

liable to R.P.’s family for any further expenses. The court did not

alter its ruling on the CVCP payments.

2The order refers to “People v. Lassiter, 122 P.3d 1029 (Colo. App.
2005),” however, this appears to be an error and is assumed to be
People v. Lassek, 122 P.3d 1029 (Colo. App. 2005).

11
 B. Discussion

¶ 21 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

the amount of restitution if it is supported by the record.” People v.

Henson, 2013 COA 36, ¶ 9.

¶ 22 We review and interpret statutes and contracts de novo.

Padilla-Lopez, ¶ 7; Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d

371, 374 (Colo. 1990).

¶ 23 Restitution is “any pecuniary loss suffered by a victim.”

§ 18-1.3-602(3)(a), C.R.S. 2019. The General Assembly has

declared that restitution is designed to rehabilitate offenders, deter

future criminality, lessen the financial burdens inflicted on victims

and their families, and compensate them for their suffering and

hardship. See § 18-1.3-601(1)(c)-(e), C.R.S. 2019; Lassek, 122 P.3d

at 1034.

12
¶ 24 “The restitution statute also furthers a second interest — that

of avoiding double recovery.” People v. Stanley, 2017 COA 121,

¶ 20. “Any amount paid to a 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). Additionally, a victim’s civil judgment against a

defendant does not prohibit the trial court from imposing restitution

for the same damages. People v. Wright, 18 P.3d 816, 818 (Colo.

App. 2000), superseded by statute on other grounds, Ch. 232,

sec. 1, § 16-18.5-103, 2000 Colo. Sess. Laws 1032, as recognized in

People v. Rockne, 2012 COA 198, ¶ 12. However, a defendant is

entitled to a setoff against the restitution order for any money

actually paid to the victim for the same damages covered by the

order. Id. Therefore, where 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. People v. Acosta, 860 P.2d 1376, 1382 (Colo.

App. 1993); see also People v. T.R., 860 P.2d 559, 564 (Colo. App.

1993).

13
¶ 25 The prosecution bears the burden of proving the amount of

restitution owed by a preponderance of the evidence, while the

defendant bears the burden of proving any setoff. People v. Smith,

181 P.3d 324, 328 (Colo. App. 2007); Lassek, 122 P.3d at 1035.

¶ 26 The record here demonstrates that the district court initially

thought it lacked the authority to consider whether the settlement

agreements could set off defendant’s restitution because the

agreements were not apportioned. The court summarized its

position by stating “it looks like my hands might be tied.” Then,

when the court considered the broad language of the agreements in

its subsequent order, it did not order restitution to R.P.’s family but

still refrained from setting off the funeral expenses paid by the

CVCP, perhaps as a result of its initial reasoning that the CVCP was

not a party to the agreements.

¶ 27 Although the payments under the agreements were not

apportioned, they were clearly intended by the parties to

compensate the victims for any and all claims that arose as a result

of the incident. The plain language of the agreements certainly

confirms this intent. The agreements covered “any and all actions,

causes of actions, suits, debts, charges, complaints, claims,

14
 liabilities, obligations, promises, agreements, controversies, damages,

and expenses, of any nature whatsoever, in law or equity, whether

known or unknown, from the beginning of time through the execution

of this agreement . . . .” (Emphasis added.) Both agreements also

contained broad indemnification clauses, indemnifying defendant

and his parents against any and all further losses.

¶ 28 Apportionment of a settlement agreement indicates to the

court whether the victim recovered twice for the same pecuniary

loss. That is not to say, however, that an unapportioned agreement

intended to cover all pecuniary losses could not be considered in

assessing whether the defendant is entitled to a setoff. To the

contrary, it seems incongruous to conclude that an agreement

intended to cover every conceivable loss is “unapportioned” and,

therefore, does not set off any loss at all. See Stanley, ¶¶ 39-40

(Webb, J., specially concurring) (acknowledging that, in many

cases, the defendant may be unable to meet his burden of proving

that the agreement was intended to cover the same categories of

loss as restitution because most settlement agreements are not

apportioned). A defendant should not be precluded from fully

15
 satisfying the victim’s losses prior to the entry of restitution in this

manner.

¶ 29 We therefore hold that when a settlement agreement is clearly

intended to cover all categories of loss for which restitution could be

imposed, the defendant has met his burden of going forward. The

inability of the victim to receive further recovery, as evidenced by an

indemnification clause, also serves as strong evidence that the

victim has agreed to the value of all losses and has already received

full recovery. Because the agreements here covered the same losses

that could be compensated by restitution, defendant has met his

burden of going forward, and the burden shifts to the prosecution

so that it may rebut the inference of double recovery. See id. at

¶ 34 (majority opinion).

¶ 30 We acknowledge that Stanley’s holding was limited to

restitution for payments made to the CVCP; however, we find some

of the rationale underlying it equally applicable to payments made

pursuant to a comprehensive settlement agreement intended to

cover all losses, as in this case. We therefore conclude that on

remand, the court should allow the prosecution an opportunity to

rebut an inference of double recovery for both the award to R.P.’s

16
 family for travel expenses and psychologist fees and the payments

made by the CVCP to the victims’ families for funeral expenses.

IV. Lassek and Stanley

¶ 31 Contrary to the People’s contention, this outcome does not

conflict with Lassek, as that case is distinguishable from this case.

In Lassek, the defendant argued that he should receive a setoff for

burial and travel expenses based on a “Covenant Not to Execute”

that was signed by his insurer and the victim’s parents. Lassek,

122 P.3d at 1035. The trial court denied the setoff on the basis that

the agreement was unapportioned such that the court was unable

to determine the categories of loss it covered. Id. A division of this

court held that the trial court did not err because the defendant

had the burden of proving that he was entitled to a setoff. Id. The

division found no evidence in the record to support the defendant’s

argument that the unapportioned settlement covered the same

pecuniary losses as the restitution order. Id.

¶ 32 Unlike the agreement in Lassek, the settlement agreements in

this case were clearly intended to cover all conceivable claims

against defendant and even appear to preclude the victims’ families

from retaining any additional compensation. Therefore, there was

17
 sufficient evidence in the record to show that the settlement

agreements covered the same pecuniary losses as the restitution

order.

¶ 33 We also decline the People’s invitation to abandon Stanley;

instead, we find it instructive in our case. In Stanley, the defendant

sought a setoff against a restitution amount of $30,000 that the

CVCP had paid to the victim for lost wages and medical expenses.

Stanley, ¶¶ 2, 7. The defendant’s insurer had settled with the

victim for $25,000, which was the policy limit. Id. at ¶ 2. The

agreement covered “any and every claim, demand, right or cause of

action,” including “personal injuries and consequences thereof” and

“any loss of services” resulting from the incident. Id. at ¶ 5. The

division in Stanley concluded that the agreement’s references to

“personal injuries” and “loss of services” were sufficient for the

defendant to meet his burden of proving that the agreement was

intended to cover lost wages and medical expenses — the same

losses covered by his restitution. Id. at ¶ 28. The division

acknowledged that the broad language of the unapportioned

agreement hindered the trial court’s ability to allocate the

settlement to the different categories of loss. Id. at ¶ 29.

18
 Additionally, the confidential nature of CVCP determinations meant

that only a victim would know if he or she was fully compensated or

received double recovery. Id. at ¶ 34. The division therefore held

that once a defendant has shown that a settlement includes the

same categories of losses compensated by the CVCP and awarded

as restitution, the defendant has met his burden of going forward.

Id. The prosecution may then rebut the inference of double

recovery. Id.

¶ 34 Although the settlement agreements in this case did not

specify the categories of loss covered, the broad language of the

agreements reinforces the conclusion that the agreements were

intended to cover all conceivable categories of loss. Additionally,

the indemnification clauses show that the victims are likely

precluded from receiving further compensation. The agreements in

this case are sufficient to meet defendant’s burden.

¶ 35 Further, because Stanley was announced after the restitution

hearings in this case, on remand the People should have the

opportunity to rebut the inference of double recovery.

19
 V. The People’s Other Contentions

¶ 36 We reject the People’s contention that because the CVCP was

not a party to the agreements and is not bound by them, defendant

is liable for the CVCP payments regardless of whether the

agreements covered funeral costs.

¶ 37 The district court may — but is not required to — compensate

the CVCP through defendant’s restitution. When considering

restitution, the court is determining the victims’ pecuniary losses

that have yet to be compensated by the defendant. See

§ 18-1.3-602(3)(a) (defining “restitution”).

¶ 38 Because the agreements satisfied defendant’s burden of going

forward, if the prosecution is unable to rebut an inference of double

recovery, the court should not order any restitution to the CVCP.

See § 24-4.1-110(2), C.R.S. 2019 (providing that if compensation is

awarded by the CVCP and the victim also receives a collateral sum

that was not deducted from the CVCP award, the victim shall

refund to the CVCP board the lesser of the sums or the amount of

compensation paid to him by the CVCP, unless the aggregate of

both sums does not exceed his losses).

20
¶ 39 We are also not persuaded by the People’s argument that if

defendant does not pay restitution, then the agreements violate

public policy because the statutory scheme favors ordering

restitution. We acknowledge that the goals of restitution include

rehabilitation and deterrence; however, the statutory scheme clearly

contemplates the need to prevent the victim from recovering twice

for the same loss. See § 18-1.3-603(6) (giving defendant a setoff for

amounts recovered by victim in a civil proceeding); § 18-1.3-

603(8)(c)(I) (prohibiting the court from awarding restitution to a

victim who is compensated for the same loss by an insurance policy

or an indemnity agreement); § 24-4.1-110(1)-(2) (requiring that the

CVCP deduct other payments received by the victim from its award).

Additionally, Colorado public policy favors the settlement of

disputes. Arline v. Am. Family Mut. Ins. Co., 2018 COA 82, ¶ 19.

¶ 40 Finally, because of our disposition, we need not address

whether the CVCP properly considered the insurance settlements

when it compensated the victims for funeral costs.

21
 VI. Conclusion

¶ 41 We therefore reverse and remand the case to the district court

to give the People an opportunity to rebut the inference of double

recovery.

JUDGE BERGER and JUDGE WELLING concur.

22