JOHNSON v. PEOPLE (2025)

¶1 We granted certiorari in this case, along with four others, to address questions that have arisen about the operation of Colorado's restitution statute, § 18-1.3-603, C.R.S. (2024), following our decision in People v. Weeks, 2021 CO 75, 498 P.3d 142.

¶2 Here, a trial court allowed prosecutors to delay the issue of the amount of restitution owed by Darryl Cornelious Johnson for ninety-one days after sentencing because (1) the precise amount of restitution owed was unavailable at the time of sentencing, and (2) the parties agreed that the prosecution would provide a restitution amount within ninety-one days of sentencing.

¶3 The prosecution filed a proposed order for a defined amount of restitution on the ninety-first day, and the trial court entered its order imposing that amount of restitution that same day. Johnson thereafter objected to the amount of restitution and requested a hearing. After several continuances, Johnson argued that the court lacked the authority to enter an order for restitution in light of our opinion in Weeks. He reiterates that argument here today.

¶4 Alternatively, Johnson argues that the amount of restitution owed was available to the prosecution at the time of sentencing, which required the court to set the amount at that time and not later.

¶5 We do not reach the merits of either argument, however, because we conclude that Johnson waived both through his actions in the district court proceedings. Accordingly, we affirm the division's opinion, albeit for different reasons.

I. Facts and Procedural History

¶6 Johnson, a former loss prevention employee for Walmart, stole cash and merchandise from Walmart. Johnson admitted that he committed the thefts, which were caught on surveillance video, and pleaded guilty to one count of felony theft and one count of misdemeanor theft. According to the plea agreement, the prosecutor agreed to dismiss a third degree burglary count and to accept a three-year deferred judgment on the felony theft count and a concurrent probationary sentence on the misdemeanor theft count.

¶7 The plea agreement also addressed restitution. As relevant here, it stated that (1) Johnson agreed to pay “all restitution within the term of [his] original sentence”; (2) “[t]he District Attorney's Office [would] act in good faith to provide correct information establishing the amount of restitution within [ninety-one] days of sentencing”; and (3) Johnson understood “that court ordered restitution [was] a condition of [his] sentence.” Johnson also signed a Stipulation for Deferred Judgment and Sentence, which reflected his agreement to “pay through the registry of the Court the following amounts, which I expect to be able to pay: Restitution in an amount to be determined within [ninety-one] days.”

¶8 During a providency hearing on June 9, 2020, Johnson stated that he understood and agreed to the terms of the plea agreement and deferred judgment. The district court then accepted both agreements, finding that Johnson entered the “pleas ․ knowingly, intelligently, and voluntarily,” his agreement was “not the product of any undue influence or coercion,” and he would be obligated to pay restitution. The court ordered the prosecutor to provide the restitution amount within ninety-one days and gave defense counsel sixty days to object to that amount.

¶9 Eighty-five days later, Walmart provided two reports to the prosecution, detailing the stolen items and unrecovered amounts. Shannon Ashley, the senior restitution coordinator for the prosecution, reviewed this documentation and, on September 8 (ninety-one days after Johnson was sentenced), filed a proposed restitution payout order with the court, requesting $11,030.30 in restitution. The court signed the order later that same day. The order gave Johnson thirty days to request a hearing if he objected to the amount and stated that the order would become final if Johnson failed to do so.

¶10 Johnson filed an objection to the restitution amount and requested a hearing. After several continuances, which were requested by both parties, the court conducted a hearing. During the hearing, Johnson argued that the statute contemplated an opportunity for defense objection, any necessary hearing, and the court's determination of the restitution amount within ninety-one days. He also argued that, if a defense objection could not occur within ninety-one days, there would “be good cause to extend the [ninety-one]-day determination, and the [district attorney] would be able to argue at the same time that [a defense objection] would be good cause as well, which is what the statute allows.” More specifically, Johnson argued that the court could not make a “final determination” of restitution based only on the prosecution's request and that a defendant's challenge to restitution would constitute good cause for extending the period to make a final determination.

¶11 In response, the prosecutor argued that her office did not receive documentation of Walmart's losses until six days before the ninety-first day, and that it would be absurd to interpret the statute as requiring that all objections and hearings be concluded within ninety-one days. In the prosecution's view, such a requirement would not be feasible and could allow a defendant to entirely avoid restitution by continuing the hearing beyond the statutory deadline.

¶12 The court rejected Johnson's argument and concluded that the ninety-one-day deadline was not jurisdictional, that it had discretion to extend the ninety-one-day deadline for good cause, and that it could find good cause retroactively. Further, the court found that Johnson's objection and request for a hearing constituted good cause. Finally, the court found that the prosecution had satisfied its burden to prove restitution and ordered restitution in the amount requested.

¶13 We subsequently announced our opinion in Weeks, explaining that the court's ninety-one-day deadline for setting restitution may only be extended based on an express finding of good cause made before the deadline expired. ¶¶ 7, 39, 498 P.3d at 148, 154–55.

¶14 Johnson appealed the district court's decision on restitution. As relevant here, he argued that (1) the amount of restitution was available to the prosecution before sentencing so the restitution amount should have been set at that time pursuant to section 18-1.3-603(2)(a) and (2) the court failed to make the requisite good cause finding to permit a final determination of restitution after ninety-one days.

¶15 Applying our decision in Weeks, a split division of the court of appeals affirmed the district court's order and held that the court had met its statutory obligations because the ninety-one-day deadline was extended by an express finding of good cause. People v. Johnson, 2023 COA 43M, ¶¶ 28–29, 534 P.3d 947, 952–53. Specifically, the division determined that the good-cause finding was timely because the district court gave defense counsel thirty days to object in the restitution order and, at sentencing, it ordered that defense counsel would have sixty days to object to any restitution proposed by the prosecution. Id. at ¶ 28, 534 P.3d at 952–53. Since the prosecution was given until the ninety-first day to provide the specific amount of restitution, these orders necessarily contemplated a hearing occurring outside of the statutory ninety-one-day period. Id.

¶16 Judge Welling wrote a separate concurrence, agreeing that the restitution order should be upheld but noting that, in his view, it was unnecessary to determine whether the final restitution amount had been unavailable to the prosecution at the time of sentencing. Id. at ¶¶ 35–39, 534 P.3d at 953–54 (Welling, J., specially concurring). In support of his position, Judge Welling noted that Johnson had assented in his plea agreement to allow ninety-one days for the prosecution to enter an amount of restitution. Id. Arguments that they should have offered an amount earlier were directly contradictory to that agreement according to Judge Welling. Id.

¶17 Judge Furman dissented, explaining that he would reverse the restitution order because the court did not enter it within ninety-one days and the amount of restitution was not found to be unavailable to the prosecution at the time of sentencing. Id. at ¶¶ 55–56, 534 P.3d at 956 (Furman, J., dissenting).

¶18 Johnson petitioned this court to review the division's decision, the People filed a cross-petition, and we granted both requests.¹

II. Analysis

¶19 We begin by addressing section 18-1.3-603(2)(a) (“subsection (2)(a)”) and concluding that its deadline, like that of section 18-1.3-603(1)(b) (“subsection (1)(b)”), is not jurisdictional and can be waived. Accordingly, we analyze the facts of this case and conclude that Johnson waived his statutory rights under subsections (1)(b) and (2)(a) both (1) explicitly in his plea agreement, and (2) implicitly by assenting to the court's order at the providency hearing and requesting a restitution hearing outside of the ninety-one-day deadline.

A. Section 18-1.3-603(2)(a) Is Not Jurisdictional

¶20 For the reasons we explain in our opinion in Babcock v. People, 2025 CO 26, ¶¶ 21–26, ––– P.3d ––––, one of the four companion cases we announce today, we conclude that the ninety-one-day statutory period for setting the restitution amount in section 18-1.3-603(1)(b) is not jurisdictional. Similarly, the deadlines in section 18-1.3-603(2)(a) for the prosecution to provide available information about restitution at sentencing and to otherwise provide information about restitution within ninety-one days of sentencing are not jurisdictional.

¶21 Addressing these questions requires us to interpret the statute, which is a question of law that we review de novo. Weeks, ¶ 24, 498 P.3d at 151. In construing a statute, we aim to effectuate the legislature's intent. Cowen v. People, 2018 CO 96, ¶ 12, 431 P.3d 215, 218. We first look to the plain language of the statute and “consider it within the context of the statute as a whole.” Archuleta v. Roane, 2024 CO 74, ¶ 9, 560 P.3d 399, 402 (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011)). We must “give consistent, harmonious, and sensible effect to all [of the statute's] parts.” Dep't of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO 27 ¶ 20, 486 P.3d 250, 256. When a statute's plain language is unambiguous, we apply it as written. Garcia v. People, 2023 CO 41, ¶ 14, 530 P.3d 1200, 1203.

¶22 As we explain in more detail in Babcock, ¶¶ 19–21, statutory deadlines can be either jurisdictional (meaning they limit a court's power to act) and unwaivable, or directory (meaning they merely indicate what should be done but may be waived).

¶23 As with subsection (1)(b), discussed in Babcock, ¶¶ 23–29, we conclude that the deadline articulated in subsection (2)(a) is directory for four reasons. First, the General Assembly did not state in subsection (2)(a)’s plain language that it is jurisdictional. Second, subsection (2)(a) uses affirmative language, like “shall” and “may,” rather than prohibitive language, which is indicative of a directory construction. Pearson v. Dist. Ct., 924 P.2d 512, 516 (Colo. 1996). Third, subsection (2)(a) does not impose any consequences for a violation of its deadline, which generally indicates a directory rather than a jurisdictional statute. See, e.g., City & Cnty. of Denver Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass'n, 2017 CO 30, ¶ 20, 407 P.3d 1220, 1224.

¶24 Finally, to interpret the statute as directory comports with the legislature's stated intent to “provide for and collect full restitution for victims of crime in the most expeditious manner.” § 18-1.3-601(1)(g)(I), C.R.S. (2024). And the legislature has directed that the statute should be “liberally construed” to ensure that restitution is “ordered, collected, and disbursed to the victims of crime and their immediate families.” § 18-1.3-601(2). To interpret the statute as jurisdictional would mean that a trial court's failure to meet the deadline might render the victim of a crime without any means to seek restitution.

¶25 Accordingly, we hold that—like the ninety-one-day deadline in subsection (1)(b)—the deadlines under subsection (2)(a) are not jurisdictional and can be waived. Therefore, we proceed to examine whether Johnson waived his rights under subsections (1)(b) and (2)(a) in this case.

B. Johnson Waived His Statutory Rights

¶26 We review de novo whether a claim is waived. Richardson v. People, 2020 CO 46, ¶ 21, 481 P.3d 1, 5. When the right at issue is a statutory right, rather than a fundamental constitutional right, waiver “must be voluntary, but need not be knowing and intelligent.” Finney v. People, 2014 CO 38, ¶ 16, 325 P.3d 1044, 1050; cf. People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902 (explaining the seriousness of waiving a constitutional right and the high bar set for finding that waiver). Waiver extinguishes error and therefore appellate review. Finney, ¶ 40, 416 P.3d at 902. Waiver may be demonstrated through explicit words or actions, or it may be implied “as when a party engages in conduct that manifests an intent to relinquish a right or privilege or acts inconsistently with its assertion.” Forgette v. People, 2023 CO 4, ¶ 28, 524 P.3d 1, 7. Moreover, when statutory rights are at issue, the actions of counsel are relevant to our analysis as “[c]ounsel may waive a defendant's statutory rights.” Finney, ¶ 16, 325 P.3d at 1050.

¶27 Both rights at issue in this case are statutory: the right to have restitution determined at sentencing if the amount of restitution is available to the prosecution prior to that time, § 18-1.3-603(2)(a), and the right to have a final determination of restitution within ninety-one days absent an express finding of good cause, § 18-1.3-603(1)(b). The question we must address, therefore, is whether the record demonstrates a voluntary waiver of these rights. We conclude that it does.

¶28 Johnson signed a plea agreement in which he agreed to pay “all restitution within the term of [his] original sentence.” That plea agreement provided that “[t]he District Attorney's Office [would] act in good faith to provide correct information establishing the amount of restitution within [ninety-one] days of sentencing.” Johnson also signed a Stipulation for Deferred Judgment and Sentence, stating that he would “pay through the registry of the Court the following amounts, which [he] expected to be able to pay: Restitution in an amount to be determined within [ninety-one] days.”

¶29 During the providency hearing at which the court accepted Johnson's plea, Johnson told the court that he understood and agreed to the terms of his plea and deferred judgment agreements. The court found that Johnson had entered the “pleas ․ knowingly, intelligently, and voluntarily,” and that they were “not the product of any undue influence or coercion.”

¶30 These facts demonstrate voluntary waiver of Johnson's claim that restitution should have been determined at sentencing or at some point before the ninety-one days following sentencing.

¶31 The record also demonstrates that Johnson waived his claim that the court lost authority to impose restitution because it did not make a final determination of the amount of restitution within ninety-one days or make an express finding of good cause to extend that time. At the providency hearing, the court said, “I will give ․ [ninety-one] days to the People to calculate restitution, [sixty] days for the Defense to file any objections thereafter.” Defense counsel did not object to this order, despite the fact that it would obviously extend the time for making a final restitution determination beyond the ninety-one-day deadline set forth in subsection (1)(b). Nor did defense counsel object to the thirty days the court gave Johnson to object to the restitution amount in its order imposing restitution, which also exceeded the ninety-one-day deadline. Rather, defense counsel then requested a restitution hearing outside the ninety-one-day deadline and, at the restitution hearing, argued that the circumstances of the case qualified as the kind of good cause contemplated by the statute.

¶32 For these reasons, we conclude that the record demonstrates that Johnson waived his statutory claims both explicitly in his plea agreement and implicitly by assenting to the court's order at the providency hearing and requesting a restitution hearing outside the ninety-one-day deadline.²

III. Conclusion

¶33 Johnson voluntarily waived the statutory claims he presents here. For this reason, we affirm the division's opinion.

¶34 For the reasons set forth in my opinion concurring in the judgment in Babcock v. People, 2025 CO 26, ––– P.3d –––– (Gabriel, J., concurring in the judgment), which is also being announced today, I continue to believe that a waiver is “the intentional relinquishment of a known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902 (quoting Dep't of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). Accordingly, for the reasons further set forth in my separate opinion in Babcock, ¶¶ 54–62, I cannot agree with the majority's conclusion that Darryl Cornelious Johnson implicitly waived his claim of a violation of the restitution statute when he assented to a hearing on his objection to the district court's restitution order after the restitution statute's ninety-one-day deadline, § 18-1.3-603(1)(b), C.R.S. (2024), had expired. Maj. op. ¶¶ 26–32.

¶35 For different reasons, however, I reach the same ultimate conclusion in this case as the majority. Here, the district court entered an order determining the amount of restitution before the expiration of the statutory ninety-one-day period. Accordingly, the entry of the order complied with the statute. It was only after the court entered its timely order that Johnson objected and sought a hearing. In these circumstances, any error by the court in reconsidering its restitution award after the expiration of the ninety-one-day deadline was arguably invited by Johnson. See Rediger, ¶ 34, 416 P.3d at 901 (noting that the invited error doctrine prevents parties from complaining on appeal of errors that they invited or injected into a case). Even if any such error was not invited, however, for the reasons set forth in my separate opinion in Babcock, ¶¶ 48–53, I believe that Johnson's request for or assent to a hearing beyond the ninety-one-day statutory deadline established good cause under section 18-1.3-603(1)(b) for extending that deadline.

¶36 For these reasons, I perceive no error in the district court's conducting a hearing on Johnson's objection to the restitution award beyond the statute's ninety-one-day deadline. Accordingly, I respectfully concur in the majority's judgment.

FOOTNOTES

1.   We granted certiorari to review the following issues:1. Whether the division's opinion violated this court's holding in People v. Weeks, 2021 CO 75, [498 P.3d 142].2. Whether the division correctly defined “available” under the restitution statute.3. Whether the prosecution's timeline for presenting a restitution motion is non-jurisdictional in nature and, thus, subject to both waiver and, if necessary, a prejudice analysis.4. Whether defendant waived his present challenge to the timeliness of the prosecution's restitution motion to gain the benefit of his plea agreement.5. Alternatively, whether the alleged violation should be rejected as harmless under the facts of this case.

2.   By contrast, in Weeks, defense counsel neither explicitly nor implicitly waived his client's statutory claims related to restitution.¶¶ 13–14, 498 P.3d at 149–50. To the contrary, in that case, after the prosecution filed a motion seeking an “interim amount” of restitution and informing the court that there might be grounds to request additional restitution, defense counsel timely objected and argued that the amount of restitution should be limited to the interim amount and that restitution should not remain an open issue indefinitely. Id. at ¶ 13, 498 P.3d at 149.

JUSTICE HART delivered the Opinion of the Court.

JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ, concurred in the judgment.