dissenting.
4 52 The majority concludes the State may deprive a person of her property as a result of a criminal conviction and that it may retain the property even after the person shows on appeal that the conviction is invalid, It finds that, while the legislature has provided for the collection and expendltule of a convicted defendant's money, the legislature has not provided for refunds and therefore criminal courts lack authority to issue refunds. To obtain relief, the majority requires Shannon Nelson to mount a new lawsuit and prove her innocence under the Compensation for Certain Exonerated Persons Act ("Exoneration Act" or "Act"), '
153 Becatise Nelson is legally innocent, I would begin at a different place. Instead of requiring Nelson to identify a specific statute authorizing a refund, I would require the State to identify a source of law allowing it to keep a defendant's property in the absence of a valid criminal conviction. Because I know of no such authority, and I agree with the court of appeals that the district court had jurisdiction to order a refund, I respectfully dissent.
I. Nelson Has Never Been Validly Convicted.
T54 The majority quickly moves over the procedural history of Nelson's ease, but it is worth a closer look. < In 2006, Nelson stood trial for crimes of sexual abuse allegedly perpetrated against her four children, The prosecution's case depended heavily on the children's testimony and out-of-court statements. At trial, the People called as a witness a forensic interviewer who had spoken with the children. When the People posed a question about the nature of children's memories; Nelson objected because the witness had not been endorsed as an expert. The trial court acknowledged the witness was -not qualified as an expert and that in the past it had been "reluctant" to qualify her, but the court felt that based on the interviewer's continuing training and growing experience she would "at some point in the future :.. be qualifiable as an expert,". The court. overruled Nelson's objection. The interviewer went on to testify about the age at which children have the ability to remember information and relate it accurately; she also described the ways children disclose trauma and the reliability of such disclosures. The Jury convicted Nelson of five.charges-sexual assault on a child, aggravated incest, and three counts of misdemeanor child abuse. She appealed. .
155 The court of appeals reversed her convictions in a unanimous opinion. People v. Shannon Kay Gonser, n/k/a Shannon Nelson, No. 06CA1023, 2009 WL 952492 (Colo. App. Apr. 9, 2009). The division concluded the trial court erred by allowing a lay witness to testify on matters requiring specialized knowledge and training. It further concluded this error was prejudicial. The error impaired the fairness. of Nelson's trial by affecting the jury's ability to evaluate the credibility of the alleged vietims. Consequently, the court reversed her convictions and remanded for a new trial.
56 The proseoumon retried Nelson A jury acquitted her.. : - T 57 Because Nelson was never validly convicted, we presume she is innocent. This, of course, is one of our bedrock concepts of criminal justice. See Coffin v. United States,
T 57 Because Nelson was never validly convicted, we presume she is innocent. This, of course, is one of our bedrock concepts of criminal justice. See Coffin v. United States, *1080156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) ("[The presumption of innocence] is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our eriminal law."). Thus, just as the State was required to release Nelson from incarceration, it should also be required to release Nelson's money paid as costs, fees, and restitution.
II. The State's Appellate Process Must Comport 'with Due Process.
158 This case stands at the confluence of the legislature's choice to provide appellate review of convictions and its choice to collect money from defendants before convictions are final. Though the Supreme Court has said the federal Constitution guarantees no right to an appeal, see McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894), when the legislature creates one, as Colorado has done, see § 16-12-101, C.R.S. (2015), a criminal defendant is entitled to due process throughout the appeal. Hoang v. People, 2014 CO 27, 1139, 323 P.3d 780, 788; see also, e.g., Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 LEd.2d 821 (1985) (holding that when a state provides a first appeal as of right, due process requires that defendants receive the effective assistance of counsel during that appeal). Knowing this, the legislature might have decided not to order defendants to pay costs, fees, and restitution until judgments survive direct appeal. While requiring defendants to pay up sooner is understandable, I struggle to see how we can sanction a system that makes money immediately due without providing for its return when reversible error occurs.
{59 Like the majority, I see nothing wrong with a court following the statutory plan for the collection and use of a convicted defendant's funds, see maj. op. 139; nor is there anything objectionable about requiring defendants to comply with existing court orders to pay costs, fees, 'and restitution stemming from valid convictions and requiring defendants who wish to challenge their convictions to use the normal channels, But when the process leading to the conviction is exposed as so deficient as to mandate rever-
T60 This court shared my concern in Toland v. Strohl, 147 Colo. 577, 364 P.2d 588, 593 (1961), when we required the return of a defendant's fines and costs paid pursuant to a conviction obtained in violation of due process. Today, the majority relegates Toland to a footnote and emphasizes that the defendant there suffered a summary disposition of his case immediately after arrest-a situation that presented obvious due process problems. See maj. op. 146, n.5; Toland, 364 P.2d at 593 (concluding the "summary, hasty, middle of the night justice" dispensed to a suspected drunk driver after a crash did not comport with due process). By distinguishing To-land, the majority sets up two tiers of invalid convictions: There are stark constitutional violations, like those in Toland, that demand setting the defendant back to the status quo ante, and then there are arguably less egregious but nonetheless invalid convictions, like Nelson's, for which reimbursement is unavailable. But reversal is reversal. And an invalid conviction is no conviction at all.
T61 Other courts have' recognized what the interests of justice compel in similar circumstances. See United States v. Hayes, 385 F.3d 1226, 1229-30 (Oth Cir.2004) (holding that, where the defendant's conviction was reversed on collateral review, the government must return amounts paid as special - assessments and costs, though it need not reimburse for restitution disbursed after the conviction became final); Telink Inc. v. United States, 24 F.3d 42, 47 (9th Cir.1994) ("If [the defendants] prevail in setting aside their convictions, the wrongly paid fines would be automatically refunded, without requiring a civil action. ..."); United States v. Lewis, 478 F.2d 835, 836 (5th Cir.1973) ("Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines."); United States v. Beckner, 16 F.Supp.2d 677, 679 (M.D.La.1998) ("[This court has jurisdiction to carry out its obligation to completely vacate all aspects of the erroneous judgement [sic] issued by it.... In this criminal case the final judgment is *1081that Beckner owed restitution to no one.... The government must reimburse Beck-ner...."); United States v. Venneri, 782 F.Supp. 1091, 1092-95. (describing previous order requiring government to refund a defendant's fine paid for violating an unconstitutional statute and ordering third-party restitution recipient to repay defendant); Cooper v. Gordon, 389 So.2d 318, 319 (Fla.Dist.Ct.App.1980) (holding lower court had inherent power to restore defendant to status quo ante for wrongly paid fine, restitution, and probation costs); : Commonwealth v. McKee, 38 A.3d 879, 881 (Pa.Super.Ct.2012) (finding trial court had jurisdiction to consider defendant's refund petition after his convictions were overturned on direct appeal). But see Hooper v. State, 150 Idaho 497, 248 P.3d 748, 751 (2011) (holding that the trial court could not award a refund of restitution where the defendant's payments had gone to the state's Industrial Commission over which the court lacked personal jurisdiction),
162 The majority finds no due process problem and refers Nelson to the Exonerstion Act. See maj. op.s ¶¶ 29-33, 46-50 (discussing §§ 13-65-101 to -103, C.R.S. (2015)). It proceeds as though litigants merely needed directions on where to ask for relief. See id. at 188 (explaining that Nelson filed a motion in eriminal court instead of filing a civil claim). But the Exoneration Act is not the answer to Nelson's problem. © ~
HIL. The Exoneration Act Is an Inadequate ‘Reme'dy;
T 63 The. Act is not up to the task the majority assigns it for several reasons. First and foremost, requiring defendants who have never been validly convicted to resort to this Act flips the presumption of innocence. The Act establishes a separate civil claim that puts the burden on the petitioner to demonstrate her actual innocence by clear and convincing evidence. § 18-65-102(4)(a)(I), (6)(b).
« 64 Second, the Act is not geared toward refunds. As the majority explains, the Exoneration Act provides not just a refund but also $70,000 for every year of wrongful incarceration, plus attorneys' fees and other benefits. See maj. op. ¶ 82; see also § 13-65-103(2)-(3). The legislature is free to establish this broad relief and to require a petitioner to prove she is entitled to it. But Nelson is not seeking such broad relief; she is merely asking for a return to the status quo ante.1 See Toland, 364 P.2d at 593.
T65 Third, the majority ignores the impracticability of bringing a separate civil action. Defendants are not entitled to state-provided counsel in this context, which means they must retain a lawyer or find one willing to work for free. Defendants with meritorious claims paying hourly rates could find themselves throwing good money after bad, while the relatively low amounts available 'will likely prevent most defendants from retaining counsel on a contingency basis.
T 66 Therefore, I respectfully disagree with the majority's determination that the Exoneration Act prowdes "sufficient process" for defendants in Nelson's situation. Maj. op. 46. The Act serves dlfferent goals and provides a different remedyu Of course, this begs the question whether the judiciary has the authority to pr ov1de an alternative remedy.
IV. The Criminal Court May Award a Refund.
167 Ancillary jurisdiction gives us that authority, In a well-reasoned and unanimous opinion, authored by then-Judge Gabriel, the court of appeals relied on the an-clary jurisdiction analysis articulated in Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.Cir.1969), and previously used by the court of appeals in People v. Hargrove, 179 P.3d 226, 229-80 (Colo. See People v. Nelson, 2013 COA 58, ¶¶ 24-26, - P.3d -.
*1082168 Ancillary jurisdiction allows a court to decide certain matters related to the principal proceeding. "[All courts, absent some specific statutory denial of power, possess ancillary powers to effectuate their jurisdiction." - Morrow, 417 F.2d at 787. At issue in Morrow was whether a criminal court could issue an order preventing the dissemination of a defendant's arrest record after the case stemming from his arrest was dismissed. The United States Court of Appeals for the District of Columbia Cireuit held the city's criminal court did have such ancfllary jurisdiction. Id. at 740-41. "The major purpose of ancillary jurisdiction .. . is to insure that a judgment of a court is gwen full effect; ancillary orders will issue when a party's actlons, either directly or indirectly, threaten to compromise the effect of the court's judgment." Id. at 740. '
169 Applying the test articulated in Morrow, see id. the court of appeals concluded the trial court had ancillary jurisdiction over Nelson's refund petition: The refund matter arose from the same transaction as the main proceeding (Nelson's criminal case); dealdmg the refund questlon did not require substantial new factfinding; nor would adJudlcatlon deprive a party of a substantial procedural or substantive right; and finally, lesolutlon 'of the ancfllary matter was requlred to prevent frustration of the underlymg criminal matter, Nelson, 125 (citing Hargrave, 179 P.3d at 229-80).
T 70 The court of appeals justifiably noted this approach also (1) serves judicial economy by preempting the need for defendants to file a separate civil action, see id. at TT 28, 26; see also Morrow, 417 F.2d at 740 (citing judicial economy as another purpose .of ancillary jurisdiction); and (2) avoids "a seengrio in which former criminal defendants are left to seek out and file lawsuits or other proceedings against third parties, and especially crime. victims, to recover the restitution amounts that the defendants prevmusly paid," Neilson, 1 81.
T 71 The majority raises another jurisdictional concern with this approach, one implicating the separation of powers, See maj. op. 134." Apart from a court's ability to hear a defendant's request for a refund, the majority argues courts cannot award a refund of costs, fees, and- restitution in the absence of statutory authorization. See id. at 140. To grant a réfund without statutory backing would be, in the majority's view, to "intrude on the General Assembly's power" to define crimes and sentences, raise revenue, and make appropriations,. Ed. at 134. These powers are undeniably important and they undoubtedly reside in the. legislature, but they are nevertheless subject to constitution, al constraints such as due process. See Colo. Const. art. II, § 25 ¢: ("No person shall be deprived of life, liberty or property, without due process of law.").
'T72 Refunds simply recognize that the legislature lacks power to punish people who have not been validly convicted. They do not intrude on the power to define crimes and sentences.
T 73 As for the budgetary powers, the legislature itself recognizes the State's obligation to provide the court system with the resources it needs to function: Section 18-3, 104-"State shall - fund courts"-provides, "The state of Colorado shall provide funds by annual appropriation for the operations, salaries, and other. expenses of all courts of record within the state...." § 18-8-104(1), C.R.S. (2015). As I see it, the obligation to refund money taken from defendants whom the State never validly convieted is part of the "operations" of courts; it is the cost of doing business, or here, an expense of doing justice.
74 Despite this, the majority argues that our precedent prohibits a court from ordering a refund absent more specific statutory authority. Our cases do not stand for such a broad prmc1p1e "The majority leads with People v. $11, 200 00 U.S. Currency, 2018 CO '64, 813 P.3d 554, where a defendant sought a refund.of money lost through civil forfeiture. He relied on a particular statute that provided for the return of property only where the related' criminal action terminated in an acquittal or dismissal while the forfeiture action was pending. See id. at T1 4, 18, 818 P.3d at 555-56, 558 (discussing § 16-18-807(1.6), CRS. (2018). The defendant's forfeiture action, which we repeatedly stressed he never bothered to appeal, see id. at 118, 8, 28, *1083318 P.3d at 555-57, 561, became final long before his conviction was reversed on appeal, see id. at ¶¶ 5-10, 313 P.3d at 556—57 Thus, in that situation, | that statute did not cover that defendant Here, by contrast, Nelson seeks relief from the invalid eriminal convictions themselves, she appealed those convie-tions and won. And while the restltutlon obligation is an 1ndependent civil Judgment see § 18-1.3-603(4)(a), C.R.S. (2015), it is tethered to the criminal conviction, see § 18-1.8-608(1) ("Every order of conviction ... shall include consideration of restitution."). Indeed, restitution is punishment for the crime. See § 18-1. 3-601(1)(b)-(d) . (setting forth "moral," rehabilitative, and deterrence rationales).
T 75 The majority also relies on People v. District Court, 808 P.2d 831, 835 (Colo.1991), where we merely held that a trial court's remedial authority under Crim. P. 16 does not include the power to order the prosecution to pay the. defendant's attorneys' fees. But a trial court's power to redress discovery abuses does not address our issue here: Whether the criminal court can refund costs, fees, and restitution to a defendant who was not validly convicted, Moreover, even if the case stood for the broad proposition the majority cites-"a monetary sanction payable from public funds ... is beyond the authority of the trial co ,”‘niaj. op. 40 (omission in original) (quoting Dist. Court, 808 P.2d at 835)-a refund is not a "sanction" against the government; it is the return of a defendant’ money,. >
176 Thus, our cases do not hold that the State may retain a defendant's funds after she demonstrates her conviction is invalid. In fact, our closest case says just the oppo-s1te See Tolond, 364 P.2d at 593.
177 Furthermore,. the majority concedes that Nelson's repayment obligation "ceased when the conviction was no longer in place." Maj. op. ¶ 42; see also id. at ¶ 48 ("Nelson was obligated to pay only while her convietion was in place...."), Thus, the majority allows a court to grant a defendant prospective relief from an outstanding financial obligation that traces to an invalid conviction. This means the majority allows a court to cut off the flow of funds to victims and the State, but forbids a court-ordered refund. Yet the same reasoning compels relief in both directlons' The defendant was not validly convicted.
T78 The majority's budgetary concerns should also be tempered by the reality that many defendants are indigent and most convictions are affirmed. In fiscal year 2014, the court of appeals outright reversed on direct appeal in only 45 criminal cases, and, dating back to 2005, the annual number was never more than 67 (fiscal year 2008)2 Even these numbers somewhat overstate the matter. | The relevant number is the number of cases where, after reversal, the defendant was acquitted or never retried, And from within this group, only the defendants who paid something in the interim are affected. Nélson paid barely more than $700 while subject to her invalid convictions. While from the perspective of the State's total budget these sums are small, the underlying due process principle is large.
T 79 The legislature's choice to provide appellate review of convictions, when met with its choice to collect money from defendants before those convictions become final, implicates difficult public policy questions. Given the logistical complexities, the court of appeals was right to invite legislative participation, See Nelson, 84. But unlike the majority, I would require the legislature to confront those challenges. The legislature may decide for itself how to provide refunds, but I would not allow the State to retain a defendant's money on the basis of a convietion known to be invalid.
€80 I conclude that the State was not authorized to retain Nelson's money. The district court had jurisdiction to order a refund. Therefore, I respectfully dissent.
. The Exoneration Act provides Nelson no recourse whatsoever for the money withheld due to her invalid misdemeanor convictions. Though misdemeanor convictions can subject individuals to various costs, see, eg., § 24-4.1-119(1)(a), C.R.S. (2015) (imposing $78 charge for a misdemeanor conviction), and restitution, see § 18-1.3-603(1), C.R.S. (2015), the Exoneration Act grants relief only to "a person who has been convicted of a felony," § 13-65-102(1)(a) (emphasis added).
. Data obtained from the Clerk of the Colorado Supreme Court and the Coloralo Court of Appeals.