Colorado Court of Appeals criminal law decision 5-12-11

People v. Hill            Untimely Appeal / Good Cause / Restitution           

Facts: Mr. Hill appealed the trial court's denial of his motion to withdraw his plea. However, while his appeal was pending with the Colorado Court of Appeals, the trial court held a restitution hearing. Following the hearing on restitution, the trial court ordered that Mr. Hill pay $3332.45. The Attorney General argued, Mr. Hill agreed, and the CofA found the restitution order to be separately appealable. However, Mr. Hill never appealed the restitution order. A year later, Mr. Hill filed an amended notice on his original appeal challenging the restitution.

Issue: Whether Mr. Hill may file an appeal of a restitution order almost a year past the deadline?

Held: No.

Reasoning: All you really need to know to understand this decision is the first two paragraphs of the opinion:

During the pendency of this appeal from the denial of Kevin Hill's motion to withdraw guilty plea and vacate sentence, the trial court entered an order awarding $3332.45 in restitution. Hill did not file a notice of appeal from this order. More than a year later, he moved for leave to file an amended notice of appeal challenging it.

We conclude that the restitution order was separately appealable; that even if Hill's motion could be treated as a notice of appeal, it was untimely; and that he has not shown good cause under C.A.R. 26(b) to excuse his untimeliness. Therefore, we exercise our discretion and deny the motion.”

            The CofA found no good cause to allow out-of-time appeal of the restitution because: 1) Mr. Hill always had representation; 2) Mr. Hill can proceed under 35(a) or (c). The CofA did not think much of the 35(c), and so it did not find the judicial economy argument persuasive; 3) The record does not reflect that Mr. Hill directed his attorney to appeal the restitution order; 4) The right to appeal a restitution order is not a ‘fundamental right’. The CofA found no fundemental right to appeal restitution because the order is a civil judgement, the burden of proof is only by a preponderance, that restitution can be granted on victim impact statements alone, and “’[A] criminal conviction establishing the defendant's culpability [for some elements of loss] is not required to impose restitution.’” quoting People v. Pagan, 165 P.3d 724, 731 (Colo.App.2006).