People v. Stanley

COLORADO COURT OF APPEALS 2017COA121

Court of Appeals No. 16CA1612
Adams County District Court No. 15CR1433
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Steven Robert Paul Stanley,

Defendant-Appellee.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE FREYRE
Booras, J., concurs
Webb, J., specially concurs

Announced September 7, 2017

David J. Young, District Attorney, Cameron M. Munier, Senior Deputy District
Attorney, Brighton, Colorado, for Plaintiff-Appellant

Bendinelli Law Firm, PC, Mark G. Mayberry, Westminster, Colorado, for
Defendant-Appellee
¶1 In this prosecution appeal of a restitution setoff, we must

reconcile the dual policy interests underlying the restitution statute,

§ 18-1.3-603, C.R.S. 2016, of fully compensating a victim on the

one hand and of precluding double recovery by the victim on the

other.

¶2 The prosecution asks us to reverse the trial court’s order

awarding the defendant, Steven Robert Paul Stanley, a $25,000

setoff against restitution of $30,000, an amount paid to the victim

by the Crime Victim Compensation Program (CVCP). The setoff

arose from a policy-limits settlement between the victim and

Stanley’s automobile insurance company. Despite uncontroverted

evidence of this settlement, the prosecution argues that Stanley

failed to sufficiently prove entitlement to a setoff because he did not

show that the settlement proceeds were “earmarked” for the same

expenses reimbursed by the CVCP, leaving open the possibility that

the victim used the proceeds for losses not compensated by the

CVCP.

¶3 Because the level of specificity for apportioning urged by the

prosecution would render meeting a defendant’s burden of proving

a setoff under § 18-1.3-603(3) and (8)(c)(I) impractical — and in

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 some cases impossible — we conclude that a defendant sufficiently

meets his or her burden of going forward to invoke the trial court’s

discretion to award a setoff by showing that the settlement

included one or more categories of loss (expenses) paid by the CVCP

and covered by the restitution order.

¶4 Thus, we affirm in part the trial court’s ruling on

apportionment. However, because the victim may have used some

or all of the settlement proceeds for losses not compensated by the

CVCP, we remand the case to permit the prosecution to respond by

showing that the victim used or allocated settlement proceeds for

losses proximately caused by Stanley’s criminal conduct but which

were not paid by the CVCP and covered by the restitution order.

This procedure gives effect to the restitution statute’s legislative

intent “to make full restitution” to victims for their losses. § 18-1.3-

601(1)(b), C.R.S. 2016. If the prosecution makes such a showing,

the trial court should amend its restitution order by reducing the

amount of the setoff.

I. The Restitution Order

¶5 This case arises from a traffic accident that occurred on April

11, 2015. On May 7, 2015, Stanley’s automobile insurer, Geico

2
 Indemnity Co. (Geico), entered into a “Release in Full of All Claims”

(the Release) with the victim and her husband. Under the

settlement, Geico paid the victim $25,000 for all claims related to

and stemming from the accident in exchange for a full and final

release of all claims against Stanley and Geico. The Release

released and forever discharged Stanley and Geico

[f]rom any and every claim, demand, right or
cause of action, of whatever kind or nature, on
account of or in any way growing out of any
and all personal injuries and consequences
thereof, including, but not limited to, all
causes of action preserved by the wrongful
death statute applicable, any loss of services
and consortium, any injuries which may exist
but which at this time are unknown and
unanticipated and which may develop at some
time in the future, all unforeseen
developments arising from known injuries, and
any and all property damage resulting or to
result from an accident that occurred on or
about the 11th day of April, 2015 . . . .

¶6 On February 4, 2016, Stanley pleaded guilty to felony

vehicular assault, driving under the influence, and careless driving.

Under the plea agreement, the trial court deferred the entry of

judgment and sentence on the felony for four years, and sentenced

Stanley to four years of concurrent probation on the misdemeanor

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 convictions. The court gave the prosecution ninety days to submit

a restitution request.

¶7 On May 3, 2016, the prosecution filed a motion to impose

restitution and attached a report from the CVCP. It showed that

the CVCP had paid the victim $30,000, the maximum amount

allowable by statute, for pecuniary losses proximately caused by

Stanley’s criminal conduct. See § 24-4.1-109(2)(b), C.R.S. 2016. It

paid the victim $8048 for lost wages and $21,952 for medical

expenses.1 The report stated that “[e]ach bill received by CVCP is

verified to ensure that it is crime related; that no other funding

source was responsible (insurance) and to verify the most up to

date balance.”

¶8 Believing that the insurance Release and settlement satisfied

his restitution obligation, Stanley never filed an objection to the

prosecution’s motion for restitution. On June 14, 2016, the court

granted the unopposed motion and ordered Stanley to pay the

victim $30,000 in restitution. Later that same day, Stanley filed a

1 The exact date of the CVCP’s payment to the victim is not clear
from the record. The CVCP report contains a notation that it was
printed on “2/9/2016” and was filed with the court on “May 3,
2016.”
4
 Motion for Reconsideration of the Restitution Order, explaining his

misunderstanding and requesting a hearing and a setoff. The court

granted Stanley’s hearing request.

¶9 At the hearing, the parties relied on two documents — the

CVCP report evidencing the $30,000 payment and the Release

evidencing the $25,000 settlement. Neither party presented any

other evidence.

¶ 10 The prosecution argued that because the Release constituted

an unapportioned settlement, Stanley bore the burden of proving

that the settlement proceeds were intended to compensate the

victim for the same lost wages and medical expenses compensated

by the CVCP. Specifically, “[the Release] talks in no way about

where this $25,000 is to be allocated. Is it supposed to go to

medical or pay for the damages to the vehicle?” Relying on People v.

Lassek, 122 P.3d 1029 (Colo. App. 2005), the prosecution argued

that the “entire amount could have simply gone to [nonpecuniary

losses not covered by the restitution statute]” and asked the court

to find that Stanley had not met his apportionment burden.

¶ 11 Stanley agreed that he bore the burden of establishing the

existence of a setoff. He asserted that the Release “broadly

5
 apportioned” the proceeds through the language stating an intent to

compensate for “any and every claim” for loss of services, as

relevant to wage loss, and for personal injuries and all

consequences of them, as relevant to medical expenses. He

reasoned that the settlement proceeds necessarily included the

medical and lost wages compensation the victim received from the

CVCP. He further argued that the CVCP was remiss in failing to

offset restitution by the settlement amount under § 24-4.1-110(1),

C.R.S. 2016.

¶ 12 The trial court held that $30,000 in restitution was

reasonable, due, and owing. It further held that the Release’s broad

language was “all encompassing and [that] it include[d] every type

of claim imaginable and any type of injury imaginable.” It found the

Release “contemplate[d] payment for the very same categories that

are set forth in the prosecution’s restitution report,” and noted that

these types of releases never apportioned proceeds to specific loss

categories. Therefore, it awarded Stanley a $25,000 setoff against

restitution and ordered him to pay the $5000 net amount.2

2 Stanley does not cross-appeal the court’s findings concerning the
reasonableness of the $30,000 restitution award.
6
 II. Analysis

¶ 13 Relying on Lassek and People in Interest of T.R., 860 P.2d 559

(Colo. App. 1993), the prosecution urges us to reverse the court’s

order, arguing that the Release is an unapportioned settlement that

does not “earmark” the proceeds for the same expenses

compensated by the CVCP, as required by these cases. While we

acknowledge that Lassek and T.R. could be read to support this

argument, for the reasons described below we conclude that these

cases do not require the level of specificity urged by the

prosecution.3

A. Standard of Review

¶ 14 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

3 In any event, we are not bound by decisions of other divisions of
this court. People v. Smoots, 2013 COA 152, ¶ 20, aff’d sub nom.
Reyna-Abarca v. People, 2017 CO 15.
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 the proper amount of restitution if it is supported by the record.”

People v. Bohn, 2015 COA 178, ¶ 8.

¶ 15 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 other tools of statutory construction.” Goodman v.

Heritage Builders, Inc., 2017 CO 13, ¶ 7.

B. Applicable Law

¶ 16 As part of “[e]very order of conviction,” a trial court must order

a defendant to pay restitution if the defendant’s conduct caused

pecuniary loss to a victim. § 18-1.3-603(1); People v. Reyes, 166

P.3d 301, 302 (Colo. App. 2007). Restitution means “any pecuniary

loss suffered by a victim . . . proximately caused by an offender’s

conduct and that can be reasonably calculated and recompensed in

money.” § 18-1.3-602(3)(a), C.R.S. 2016. The General Assembly

has declared restitution to be a mechanism for rehabilitating

offenders, deterring future criminality, and reducing the financial

burden on and compensating victims and their families for their

8
 losses. § 18-1.3-601(1)(c)-(g). The restitution statute must be

liberally construed to accomplish these goals. § 18-1.3-601(2).

¶ 17 The court bases its restitution order on information provided

by the prosecuting attorney. § 18-1.3-603(2). The prosecution

bears the burden of proving the amount owed by a preponderance

of the evidence, People v. Smith, 181 P.3d 324, 328 (Colo. App.

2007), while the defendant bears the burden of proving any setoff.

Lassek, 122 P.3d at 1035.

¶ 18 Compensable losses are defined in §§ 24-4.1-109(1) and (1.5),

and include the following:

(a) Reasonable medical and hospital expenses
and expenses incurred for dentures,
eyeglasses, hearing aids, or other prosthetic or
medically necessary devices;

(b) Loss of earnings;

(c) Outpatient care;

(d) Homemaker and home health services;

(e) Burial expenses;

(f) Loss of support to dependents;

(g) Mental health counseling;

(h) Household support; except that household
support is only available to a dependent when:

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 (I) The offender is accused of committing the
criminally injurious conduct that is the basis
of the dependent’s claim under this article;

(II) As a result of the criminal event, the
offender vacated any home the offender shared
with the dependent; and

(III) The dependent provides verification of
dependency on the offender at the time of the
criminal event.

(1.5)(a) Losses compensable under this part 1
resulting from property damage include:

(I)(A) Repair or replacement of property
damaged as a result of a compensable crime;
or

(B) Payment of the deductible amount on a
residential insurance policy;

(II) Any modification to the victim’s residence
that is necessary to ensure victim safety; and

(III) The rekeying of a motor vehicle or other
lock that is necessary to ensure the victim’s
safety.

Compensable losses do not include

(a) Pain and suffering or property damage
other than residential property damage or
rekeying a lock pursuant to subparagraph (III)
of paragraph (a) of subsection (1.5) of this
section; or

(b) Aggregate damages to the victim or to the
dependents of a victim exceeding thirty
thousand dollars.

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 § 24-4.1-109(2).

¶ 19 Additionally, if a crime victim compensation board provides

assistance to a victim, “the amount of assistance provided and

requested by the crime victim compensation board is presumed to

be a direct result of the defendant’s criminal conduct and must be

considered by the court in determining the amount of restitution

ordered.” § 18-1.3-603(10)(a). The amount of assistance provided

may be established by either (1) a list of the amount of money paid

to each provider; or (2) a summary data reflecting what total

payments were made for medical and dental expenses, funeral or

burial expenses, mental health counseling, wage or support losses,

or other expenses, if the identity or location would pose a threat to

the safety or welfare of the victim. § 18-1.3-603(10)(b)(II).

¶ 20 The restitution statute also furthers a second interest — that

of avoiding double recovery. As pertinent here, a trial court may

decrease a restitution award if the defendant has otherwise

compensated the victim or victims for “the pecuniary losses

suffered.”4 § 18-1.3-603(3)(b)(II). Indeed, “[a]ny amount paid to a

4 The General Assembly has defined restitution as
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 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); People v.

Maxich, 971 P.2d 268, 269 (Colo. App. 1998); see also § 18-1.3-

603(8)(c)(I) (a court may not award restitution to a victim

concerning a pecuniary loss for which the victim has received or is

entitled to receive benefits or reimbursement under a policy of

insurance or other indemnity agreement).

¶ 21 When a victim receives compensation from a civil settlement

against a defendant, the defendant may request a setoff against

any pecuniary loss suffered by a victim and
includes but is not limited to all out-of-pocket
expenses, interest, loss of use of money,
anticipated future expenses, rewards paid by
victims, money advanced by law enforcement
agencies, money advanced by a governmental
agency for a service animal, adjustment
expenses, and other losses or injuries
proximately caused by an offender’s conduct
and that can be reasonably calculated and
recompensed in money. “Restitution” does not
include damages for physical or mental pain
and suffering, loss of consortium, loss of
enjoyment of life, loss of future earnings, or
punitive damages.

§ 18-1.3-602(3)(a), C.R.S. 2016.
12
 restitution “to the extent of any money actually paid to the victim

for the same damages.” Lassek, 122 P.3d at 1034. Moreover,

“[w]here 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.” Id. at 1034-35 (quoting People v. Acosta, 860 P.2d 1376,

1382 (Colo. App. 1993)).

¶ 22 Still, for purposes of a setoff, the court cannot allocate

proceeds from an unapportioned civil settlement agreement without

“specific evidence that the settlement included particular categories

of loss.” Lassek, 122 P.3d at 1035. This is so because, in civil

cases, victims may recover both pecuniary losses covered by the

restitution statute and other damages specifically excluded under

the restitution statute, such as loss of future earnings and

nonresidential property damages, as well as nonpecuniary damages

for pain and suffering, inconvenience, or impairment of the quality

of life. See id.; see also § 13-21-102.5, C.R.S. 2016; § 18-1.3-

602(3)(a); § 24-4.1-109(2).

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¶ 23 When applying a setoff, the trial court must make specific

findings on the apportionment of actual damages for which the

defendant compensated the victim and set off that amount against

any restitution ordered. T.R., 860 P.2d at 564. Thus, in the

absence of evidence demonstrating that a civil settlement was

intended to be allocated in a particular way, a trial court need not

set off any amounts from that settlement against the ordered

restitution. Lassek, 122 P.3d at 1035.

C. Application

¶ 24 We begin with T.R. and Lassek, which we find informative but

distinguishable from this case. In T.R., the victim’s estate and

surviving spouse brought a civil action against T.R. that was

defended by T.R.’s automobile liability insurer. T.R., 860 P.2d at

564. The parties reached a settlement for the policy limit of

$100,000 in exchange for a waiver of any further claims against

T.R. Id. The settlement agreement did not designate the proceeds

as being for any particular purpose. Id. Even so, the juvenile court

apportioned some of the settlement proceeds to expenses incurred

by the victim’s estate as a restitution setoff. Id. A division of this

court reversed T.R.’s convictions on unrelated grounds and

14
 instructed that if restitution were to arise on remand, the trial court

should “make specific findings on the apportionment of actual

damages that the victim’s estate was compensated for under the

civil settlement agreement and to set off that amount against any

restitution ordered.” Id.

¶ 25 Similarly, in Lassek, the defendant pleaded guilty to charges

related to a fatal traffic accident. Lassek, 122 P.3d at 1031. The

trial court ordered restitution that included costs for burial

expenses and travel and lodging expenses incurred by the victim’s

parents in attending the memorial service. Id. at 1034. Lassek

sought a $50,000 setoff against restitution based on a settlement

payment made by his automobile insurer to the victim’s family as

part of a “Covenant Not to Execute” signed by the victim’s parents.

Id. at 1035. But the Covenant “did not identify any particular

losses covered by the payment.” Id.

¶ 26 The trial court concluded it could not make a setoff because it

could not determine the amount of the settlement proceeds which

compensated the parents for the burial and travel expenses. Id. A

division of this court affirmed the trial court’s order, ruling the

settlement proceeds “unapportioned” because the Covenant did not

15
 identify any expenses covered by the restitution order. Id. It

further concluded that the defendant bore the burden of

establishing apportionment. Id.

¶ 27 In contrast to both of these cases, where the settlement

agreements did not identify particular categories of losses, the plain

language of the Release identifies “any and every claim, demand,

right or cause of action . . . any and all personal injuries and

consequences thereof . . . any loss of services . . . and any and all

property damage resulting or to result from an accident” as

encompassed within the settlement. (Emphasis added.) A

settlement agreement is a contract. See H. W. Houston Constr. Co.

v. Dist. Court, 632 P.2d 563, 565 (Colo. 1981). The primary goal of

contract interpretation is to give effect to the intent of the

parties. Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376

(Colo. 2000). We discern the parties’ intent by looking to the plain

and generally accepted meaning of the contractual

language. Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692,

697 (Colo. 2009). The meaning of a contract is found by examining

the entire instrument and not by viewing clauses or phrases in

isolation. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.

16
¶ 28 We conclude, therefore, that “personal injuries and the

consequences thereof” include both physical and emotional harm

arising from the costs of treatment for bodily injury (here, medical

expenses for the victim’s injuries), and also from the several types of

nonpecuniary damages recoverable by the victim in a civil claim

based on those physical injuries, such as pain and suffering,

inconvenience, and emotional distress. See Lassek, 122 P.3d at

1035. Similarly, we conclude that “loss of services” includes

the lost wages compensated by the CVCP. For these reasons, we

agree with the trial court that Stanley met his burden of going

forward with evidence that the Release identified “particular losses

covered by the [CVCP] payment.” Id.

¶ 29 This conclusion does not end our analysis, however, because

as argued by the prosecution, and as recognized by the division in

Lassek, the victim “could allocate the entire settlement to

noneconomic [i.e. noncompensable] damages.” Id. Indeed, the

language “any and every claim, demand, right or cause of action”

and “property damage” is broad enough to include noncompensable

losses, such as automobile damage, and pain and suffering related

to the victim’s physical injuries.

17
¶ 30 How then does a trial court give effect to § 18-1.3-603(3)(II)

and the underlying policy of preventing double recovery expressed

in § 18-1.3-603(6) while simultaneously giving effect to the statute’s

policy of making the victim whole? None of our cases has answered

this question.

¶ 31 We are guided by a related statute from the Colorado Crime

Victim Compensation Act (Act).5 Section 24-4.1-110 of this Act,

titled “Recovery from collateral source,” provides as follows:

(1) The board shall deduct from compensation
it awards under this part 1 any payments
received by the applicant from the offender
or from a person on behalf of the offender,
from the United States or any state, or any
subdivision or agency thereof, from a
private source, or from an emergency award
under this part 1 for injury or death
compensable under this part 1, excluding
death or pension benefits.

(2) If compensation is awarded under this part
1 and the person receiving it also receives a
collateral sum under subsection (1) of this
section which has not been deducted from
it, he shall refund to the board the lesser of

5 Similar to the restitution statute, the General Assembly intended
this Act “to provide protection and assistance to victims and
members of the immediate families of such victims by declaring and
implementing the rights of such persons and by lessening the
financial burden placed upon such victims due to the commission
of crimes.” § 24-4.1-101, C.R.S. 2016.
18
 the sums or the amount of compensation
paid to him under this part 1 unless the
aggregate of both sums does not exceed his
losses. The fund shall be the payor of last
resort.

(3) If a defendant is ordered to pay restitution
under article 18.5 of title 16, C.R.S., to a
person who has received compensation
awarded under this part 1, an amount
equal to the compensation awarded shall be
transmitted from such restitution to the
board for allocation to the fund.

¶ 32 As relevant here, under subsection (1), if the board knows

about a collateral payment to the victim for a compensable damage,

it must deduct that amount before issuing its award. Subsection

(2) requires a person compensated by the CVCP (the victim here) to

refund the CVCP for compensation paid to that person by the

offender or by another on behalf of the offender. That is, if the

victim receives a “collateral sum” after the award has already been

made by the board, then the victim must refund any duplicative

amounts, which necessarily could only be compensable damages.

¶ 33 In order to calculate the amount of any refund owed, a victim

would necessarily need to determine whether the compensation he

or she received from the defendant was used to reimburse the same

19
 losses and expenses compensated by the CVCP and then to provide

such information to the CVCP. Our General Assembly has deemed

this information “confidential” under § 24-4.1-107.5, C.R.S. 2016,

and, therefore, inaccessible to a defendant except in a narrow

circumstance not applicable here.6

¶ 34 Because the information needed to determine whether the

victim has been fully compensated or has received any double

recovery is known only by the victim, we conclude that once a

defendant has shown that a civil settlement includes the same

categories of losses or expenses as compensated by the CVCP and

awarded as restitution, the defendant has met his or her burden of

going forward, and the prosecution may then rebut the inference

that a double recovery has occurred. The prosecution can do so by

showing that the victim used or allocated the settlement proceeds

for losses proximately caused by the defendant’s criminal conduct

but which were not paid by the CVCP and covered by the restitution

order. In sum, we affirm the trial court’s finding that Stanley met

6 Under § 24-4.1-107.5(3), C.R.S. 2016, a defendant may request an
in camera review to rebut the presumption of causation, but only
based on a defendant’s proffer of a nonspeculative evidentiary
hypothesis.
20
 his burden of proving a setoff and remand for further proceedings to

allow the prosecution to show that the victim did not receive a

double recovery from the insurance settlement proceeds and the

CVCP payment. The trial court should adjust the restitution order

in accordance with that additional evidence, subject to further

appeal by either party.

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

whether the CVCP properly considered the insurance settlement

when compensating the victim for medical expenses and lost wages.

III. Conclusion

¶ 36 The order is affirmed and the case is remanded for further

proceedings consistent with this opinion.

JUDGE BOORAS concurs.

JUDGE WEBB specially concurs.

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 JUDGE WEBB, specially concurring.

¶ 37 While I agree with the majority’s disposition, I write separately

to air the possibility of a legislative solution.

¶ 38 On the one hand, a trial court may decrease a restitution

award if a defendant has otherwise compensated a victim for the

“pecuniary losses suffered.” § 18-1.3-603(3)(b)(II), C.R.S. 2016.

But on the other, this phrase does not restrict the decrease based

on overlap between that compensation and either losses

compensable under the restitution statute or any specific item in

the restitution award. Indeed, while section 18-1.3-603(6) applies

to a setoff against a post-restitution civil judgment rather than

against a restitution award, it too does not require any overlap

between the items covered by a restitution award and the items

“recovered as compensatory damages.” The breadth of the latter

section could have significant consequences if the civil judgment

included only noneconomic losses, such as pain and suffering, for

which the restitution award could not have compensated the victim.

¶ 39 At the restitution hearing in this case, the trial court found,

“You’ll never see a release that says X number of dollars goes to

paying the Kaiser bill and X number of dollars goes to paying Auto

22
 Nation for repairs nor will you see this is earmarked for or

designated for medical expenses.” This finding raises the dilemma

that, in many cases, the defendant may be unable to meet even the

burden imposed by the majority.

¶ 40 True, the majority avoids this dilemma by focusing on

language in the Release that corresponds to the two categories of

loss identified by the victim compensation board. But that solution

may be unavailable in many cases, just as it was unavailable in

Lassek. And even here, the question is close because while the

release expressly addresses “services,” it is silent as to “medical

expenses.”1

¶ 41 To avoid further uncertainty, the General Assembly may wish

to consider amending section 18-1.3-603(3)(b)(II) to clarify exactly

what must be proven, and by whom, to invoke the trial court’s

discretion to order a setoff under section 18-1.3-603(3), where a

civil settlement predates a restitution hearing.

1 This dilemma may be unique to settlements, because if a victim
recovers a civil judgment, the jury may have apportioned damages
among categories such as economic and noneconomic loss.
23