dissenting.
18 Louis Madden sought a refund of the costs, fees, and restitution he paid on account of two invalid eriminal convictions. The trial court determined he was entitled to reimbursement for the costs and fees but not the restitution. The court of appeals determined he could also get back the restitution money. People v. Madden, 2013 COA 56, ¶ 1, - P.3d -, The majority now concludes he is entitled to nothing,. See maj. op. ¶¶ 1, 7.
¶19 I believe the court of appeals got it right, and I would therefore affirm that court's well-reasoned opinion authored by then-Judge Gabriel, In today's companion case of People v. Nelson, 2015 CO 68, ¶ 53, 362 P.3d 1070 (Hood, J., dissenting), I conclude that a defendant who wins reversal on direct appeal is entitled to a full refund, For the reasons I articulate in Nelson, I would also permit the district court to grant the same relief to Madden. Because the majority concludes the district court lacked authority to award Madden a refund, I respectfully dissent.
{20 Madden's case reached us in a procedural posture distinct from Nelson. I do not believe this difference should matter, but I write briefly to address a contrary view.
121 A jury convicted Madden of two offenses, He appealed, and we reversed his conviction for attempting to patronize a prostituted child because the State presented no evidence that Madden took part in an exchange of value to engage in sex with a child. *871See People v. Madden, 111 P.3d 452, 454, 459-60 (Colo.2005). Left standing was Madden's conviction for third degree sexual assault.
¶22 On collateral review, Madden: argued that this remaining conviction was invalid because the lawyer at his trial was constitutionally ineffective. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In 2009, thé district court agreed with him. Madden had "clearly shown" his counsel was deficient Among other things, Madden's counsel solicited testimony concerning a harmful rumor about his client that was "inadmissible double or triple hearsay," allowed a police officer to testify to the alleged victim's truthfulness, and invited into the case other "extremely damning" evidence. The court was convinced there existed a reasonable probability that, but for these errors, Madden would not have been convicted. It therefore vacated his conviction, The People did not retry him, and thus, Madden has never 'been validly convict, ed.
23 As I explained in Nelson, defendants are not constitutionally entitled to a direct appeal, but, when the legislature establishes such a right, defendants are entitled to dué process throughout that appeal. See Nelson, ¶ 58 (Hood, J., dissenting). Similarly, there is no constitutional right to post-conviction review. See People v. Wiedemer, 852 P.2d 424, 438 (Colo.1998) (citing Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). Colorado nonetheless provides for collateral challenges. See § 18-1-410, C.R.S. (2015) Crim. P. 85, Thus, defendants have statutory rights to challenge their convictions directly and collaterally, though the procedures are quite 'different, See Jurgevich v. Dist. Court, 907 P.2d 565, 567 (Colo.1995) ("A collateral attack ... does not invoke the same rights as a direct appeal." (citing Wright v. West, 505 U.S. 277, 287-98, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion)}. But whichever procedural road a defendant travels, I fail to see why the State is entitled to retain the funds paid by a defendant who ultimately shows his conviction is invalid.
24 I acknowledge at least one court has seen fit to draw a distinction between the relief available following a reversal on direct appeal and following a collateral invalidation of a conviction. See United States v. Hayes, 385 F.3d 1226, 1229-80 (9th Cir.2004). I am not persuaded by the Ninth Cireuit's reasoning. .In Hayes, a defendant won post-convietion relief 'because of a Sixth Amendment violation, and the government elected not to retry him. Id. at 1227-28, Hayes then sought a refund from the United States for the payments he made while subject to his invalid criminal conviction. Id. at 1228. The, panel citing Telink, Inc. v. United States, 24 F.3d 42, 46-47 (9th Cir.1994), agreed he could be reimbursed for costs and special assessments, but it concluded that, in the post-conviction context, a refund of restitution depends on whether and when the government disbursed the. funds. See Hayes, 385 F.3d at 1229-30. The court concluded that even an invalidly convicted defendant cannot recover from the government money it no longer has so long as the government waited until the conviction was final before disbursing the money. Id. at 1230. The Ninth Cireuit compared the government's role to that of an eserow agent, and it rejected the defendant's view that the government must not disburse any funds before a defendant exhausts his collateral challenges. See id. at 1230 & n.6. By granting Madden a refund of his costs and fees while denying him a restitution refund, the trial court in this case effectively arrived at the same result.
[ 25 While I agree the government has a legitimate interest in effectuating its system of restitution payments for crime vietims-among the legislatively declared purposes of the system is the "expeditious" colléction and "timely" distribution of compensation, § 18-1.3-601(1)(g)(ID)-(II), CRS." (2015)-I find the Ninth Cireuit's escrow analogy inapt, at least for the situation here. The State is not required to sit on the restitution money of all defendants through collateral or direct review; it must only reimburse those defendants who are never validly convicted. The legislature is free to determine the best means of providing for these refunds. See Nelson, ¶ 79 (Hood, J., dissenting).
*872I 26 Moreover, a distinction between direct and collateral review would devalue certain constitutional rights purely on the basis of which procedural tool a defendant used to vindicate them. For example, a defendant who suffered a Fourth Amendment violation could receive a full refund if he sought direct review of his suppression motion, while a defendant who suffered a Sixth Amendment violation could not receive a full refund if he sought review through a collateral challenge. Madden used the collateral process and demonstrated that his conviction was obtained in violation of the Sixth Amendment,. He too should be placed in the status quo ante. As this court has previously remarked, "[Ujn-constitutional convictions, in addition to being of suspect relisbility, abridge the very charter from which the government draws its authority to prosecute anyone." People v. Germany, 674 P.2d 345, 349 (Colo.1983).
(27 Thus, I conclude Madden is just as entitled to a refund of his costs, fees, and restitution as a defendant winning reversal on direct appeal. For the reasons given in my dissent in Nelson, I therefore respectfully dissent. .