July 20, 2018

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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