v. Hernandez

Citations

• 2019 COA 111

Syllabus

A jury convicted defendant of first degree assault for stabbing the victim. The prosecutor timely sought restitution to compensate the Crime Victim Compensation Fund (CVCF). Defense counsel filed a general objection and appeared at the restitution hearing without defendant, requesting the court to proceed with the restitution hearing. The prosecutor called the CVCF coordinator as the sole witness. Defense counsel neither cross-examined her nor presented any evidence. The court awarded the amount requested. On appeal, defendant argued that the trial court erred by proceeding with the restitution hearing in his absence. A defendant has the right to be present at a restitution hearing, and defense counsel cannot unilaterally waive a defendant's presence at the hearing. The record here does not show that defendant authorized his counsel to waive his presence, nor that he even knew of the restitution hearing. Based on these facts, the trial court plainly erred by holding the restitution hearing in defendant's absence. Defendant also argued that he was denied due process because CRS § 18-1.3-603(10) creates a rebuttable presumption, and the information submitted to the Crime Victim Compensation Board is confidential so he could not contest the restitution request. The record is unclear whether the trial court applied this rebuttable presumption, or whether it will apply the presumption if it conducts a new hearing. Thus, to the extent defendant asserted the unconstitutionality of the statute as applied, the Court of Appeals declined to address the argument. However, in the interest of judicial economy, the Court addressed the argument to the extent the challenge is facial and determined that the facial challenge failed. The order was vacated and the case was remanded.