The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 20, 2020
2020COA124
No. 17CA0822, People v. Johnson — Criminal Law —
Sentencing — Restitution — Abatement Ab Initio;
Constitutional Law — Due Process
In light of Nelson v. Colorado, 581 U.S. ___, ___,
137 S. Ct.
1249, 1257-58 (2017), and People v. Cowen,
2018 CO 96, a division
of the court of appeals revisits the holding in People v. Daly,
313 P.3d 571, 578 (Colo. App. 2011), that the doctrine of abatement
ab initio does not apply to restitution orders. The division
concludes that when a defendant dies while his direct appeal is
pending, as in this case, the doctrine of abatement ab initio
extinguishes everything associated with the case — including the
restitution order — and leaves the defendant as if he had never
been indicted or convicted.
Accordingly, the division remands the case to the district court
with instructions to abate the defendant’s criminal conviction;
dismiss the charges against him; vacate any orders concerning
costs, fees, and fines; and vacate the restitution order.
COLORADO COURT OF APPEALS 2020COA124
Court of Appeals No. 17CA0822
Logan County District Court No. 15CR306
Honorable Charles M. Hobbs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Eddie Wayne Johnson,
Defendant-Appellant.
MOTION GRANTED
Division A
Opinion by JUDGE YUN
Román and Tow, JJ., concur
Announced August 20, 2020
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Eddie Wayne Johnson was convicted of multiple counts of
securities fraud and theft and adjudicated a habitual criminal. The
district court sentenced him to a total of forty-eight years in prison
and ordered him to pay approximately $220,000 in costs, fees, and
restitution. Johnson timely appealed. Before the appeal could be
resolved, however, Johnson died.
¶2 Johnson’s counsel filed a motion notifying this court of
Johnson’s death and requesting the abatement ab initio of all the
proceedings against him, including his convictions and the
restitution order. The People object. They concede that the “penal
aspects” of the judgment of conviction (i.e., Johnson’s sentence and
“non-restitution fees, fines, or costs”) should be abated. But they
argue that, under People v. Daly, 313 P.3d 571, 578 (Colo. App.
2011), and section 18-1.3-603, C.R.S. 2019, the restitution order
should not be abated because it is a civil judgment that survives
Johnson’s death.
¶3 Daly was decided in 2011. Subsequent legal authority from
this and other jurisdictions requires us to reexamine the scope of
the doctrine of abatement ab initio. We now hold that, when a
defendant dies while his criminal conviction is pending on direct
1
appeal, the doctrine of abatement ab initio extinguishes a
restitution order entered as part of his sentence. We therefore agree
with Johnson’s counsel that the order of restitution must be
abated.
I. Abatement Ab Initio Extends to Restitution Orders
¶4 For over a century, Colorado has recognized the common law
doctrine of abatement ab initio. See Overland Cotton Mill v. People,
32 Colo. 263, 265,
75 P. 924, 925 (1904). Under this doctrine,
when a defendant dies while his criminal conviction is pending on
direct appeal, his death “abates not only the appeal but also all
proceedings had in the prosecution from its inception.” People v.
Griffin,
2014 CO 48, ¶ 4 (quoting Crooker v. United States,
325 F.2d
318, 320 (8th Cir. 1963)). “[T]he appeal does not just disappear,
and the case is not merely dismissed. Instead, everything
associated with the case is extinguished, leaving the defendant as if
he had never been indicted or convicted.”
Id. (quoting United
States v. Estate of Parsons,
367 F.3d 409, 413 (5th Cir. 2004)).
¶5 The doctrine of abatement ab initio rests on two principles. Id.
at ¶ 5. The first is finality: “an appeal is an integral part of our
system of adjudicating guilt or innocence and defendants who die
2
before the conclusion of their appellate review have not obtained a
final adjudication of guilt or innocence.” Id. (quoting People v.
Valdez, 911 P.2d 703, 704 (Colo. App. 1996)). The second is
punishment: the primary purpose of the criminal justice system is
to punish offenders, and a defendant’s death “renders enforcement
of the punishment impossible.” Id. at ¶ 6.
¶6 Colorado precedent applying the doctrine of abatement ab
initio makes clear that, when a defendant dies during the pendency
of his direct appeal, his conviction and sentence, including fines,
must be vacated and the indictment dismissed. See, e.g.,
Crowley v. People,
122 Colo. 466, 467-68,
223 P.2d 387, 388 (1950)
(ordering an end to “the punishment imposed by the justice of the
peace,” which included a fine); People v. Lipira,
621 P.2d 1389,
1390 (Colo. App. 1980) (directing the district court “to set aside the
judgment of conviction and dismiss the indictment”). It is less
clear, however, whether the defendant’s death abates a restitution
order.
¶7 A division of this court addressed that question in Daly,
313 P.3d at 578, ultimately concluding that the doctrine of
abatement ab initio “does not apply to civil judgments created by
3
restitution orders.” The division reached this conclusion based, in
large part, on its interpretation of section 18-1.3-603(4)(a)(I), which
states that a restitution order is “a final civil judgment in favor of
the state and any victim” that “remains in force until the restitution
is paid in full,” “[n]otwithstanding any other civil or criminal statute
or rule.” See Daly, 313 P.3d at 576-77. According to the Daly
division, the legislature intended this statute to create a civil
judgment that survives a defendant’s death and to which the
doctrine of abatement ab initio does not apply.
Id. at 578.
Subsequent decisions, in our view, have called this reasoning into
question.
¶8 In Nelson v. Colorado,
581 U.S. ___, ___,
137 S. Ct. 1249,
1257-58 (2017), the defendants, both of whom had their convictions
reversed on appeal, challenged the constitutionality of Colorado’s
Compensation for Certain Exonerated Persons Act, §§ 13-65-101
to -103, C.R.S. 2019, under which “a defendant must prove her
innocence by clear and convincing evidence to obtain the refund of
costs, fees, and restitution paid pursuant to an invalid conviction.”
Nelson,
581 U.S. at ___,
137 S. Ct. at 1255. Applying the
procedural due process test from Mathews v. Eldridge,
424 U.S. 319
4
(1976), the United States Supreme Court held that, “[w]hen a
criminal conviction is invalidated by a reviewing court and no retrial
will occur, the State [is] obliged to refund fees, court costs, and
restitution exacted from the defendant[s] upon, and as a
consequence of, the conviction.” Nelson,
581 U.S. at ___,
137 S. Ct.
at 1252. Once the convictions have been “erased” and the
defendants’ presumption of innocence “restored,” the Court
explained, “Colorado has no interest in withholding from [them]
money to which the State currently has zero claim of right.”
Id. at
___, ___,
137 S. Ct. at 1255, 1257. In other words, “Colorado may
not presume a person, adjudged guilty of no crime, nonetheless
guilty enough for monetary exactions.”
Id. at ___,
137 S. Ct. at
1256.
¶9 The Colorado Supreme Court “[e]xtend[ed] the teachings of
Nelson” in People v. Cowen,
2018 CO 96, ¶ 36. There, the Court
held that procedural due process prohibits ordering restitution “for
losses resulting from conduct of which a defendant has been
acquitted and as to which he retains the presumption of
innocence.” Id. at ¶ 38. A year later, a division of the court of
appeals took this reasoning a step further, concluding that, to
5
comport with due process, absent a specific plea agreement in
which the defendant agrees to pay restitution arising out of
uncharged or dismissed counts, courts may not order restitution for
losses caused by conduct for which the defendant has never been
charged or for losses caused by conduct underlying a dismissed
charge. People v. Sosa, 2019 COA 182, ¶¶ 26-29.
¶ 10 The federal circuit courts, meanwhile, are split on whether the
doctrine of abatement ab initio applies to restitution orders. The
Third and Sixth Circuits have limited the doctrine of abatement ab
initio to the appeal, the conviction, and any fines, allowing
restitution orders to remain in effect even when the defendant dies
during the pendency of his direct appeal. See United States v.
Christopher,
273 F.3d 294, 299 (3d Cir. 2001); United States v.
Johnson,
937 F.2d 609 (6th Cir. 1991) (unpublished table decision).
As the Third Circuit explained, restitution is “an equitable
remedy . . . intended to reimburse a person wronged by the actions
of another,” and “[t]o absolve the estate from refunding the fruits of
the wrongdoing would grant an undeserved windfall” to the
defendant. Christopher,
273 F.3d at 299.
6
¶ 11 But the majority of federal circuit courts have held that the
doctrine of abatement ab initio applies to restitution orders. See
United States v. Coddington, 802 F. App’x 373, 375-76 (10th Cir.
2020); United States v. Ajrawat,
738 F. App’x 136, 139 (4th Cir.
2018); United States v. Brooks,
872 F.3d 78, 89 (2d Cir. 2017);
United States v. Volpendesto,
755 F.3d 448, 454 (7th Cir. 2014);
United States v. Rich,
603 F.3d 722, 729 (9th Cir. 2010); Estate of
Parsons,
367 F.3d at 415; United States v. Logal,
106 F.3d 1547,
1552 (11th Cir. 1997). This majority has grown since the United
States Supreme Court decided Nelson. See, e.g., Ajrawat, 738 F.
App’x at 139 (overruling an earlier decision and explaining that,
“[i]n light of Nelson, we can no longer say that an order of
restitution is an exception to” the doctrine of abatement ab initio).
As the Ninth Circuit explained,
[t]he Restitution Order must be abated
because “the defendant is no longer a
wrongdoer” once his conviction has abated.
Just as it is inappropriate to impose
restitution on a living individual who was
never indicted or convicted, so it is
inappropriate to impose restitution on the
estate of a deceased individual who, in the
eyes of the law, was never indicted or
convicted. Abatement ab initio means what it
says.
7
Rich, 603 F.3d at 729 (citation omitted).
¶ 12 This precedent — binding authority from the Colorado
Supreme Court in Cowen and the United States Supreme Court in
Nelson, as well as persuasive authority from the majority of federal
circuit courts — convinces us that, when a defendant dies during
the pendency of his direct appeal, the doctrine of abatement ab
initio operates to extinguish not only his conviction but “everything
associated with the case,” including any restitution order. Griffin,
¶ 4 (quoting Estate of Parsons,
367 F.3d at 413). Abatement, which
“leav[es] the defendant as if he had never been indicted or
convicted,” is thus legally indistinguishable from reversal.
Id.
(quoting Estate of Parsons,
367 F.3d at 413). In either case, the
conviction is erased and the presumption of innocence restored.
See Nelson,
581 U.S. at ___,
137 S. Ct. at 1255; Cowen, ¶ 38. We
therefore respectfully disagree with Daly and conclude that
restitution orders are subject to abatement ab initio. See People v.
Smoots,
2013 COA 152, ¶ 20 (stating that one division is not
obligated to follow another division’s precedent), aff’d sub nom.
Reyna-Abarca v. People,
2017 CO 15.
8
II. Section 18-1.3-603 Does Not Modify
the Abatement Ab Initio Doctrine
¶ 13 We are not persuaded otherwise by the People’s contention
that the restitution statute, § 18-1.3-603, modifies the common law
doctrine of abatement ab initio.
¶ 14 The People point specifically to section 18-1.3-603(4)(a)(I) and
(II). Subparagraph (I) states that “[a]ny order for restitution entered
pursuant to this section is a final civil judgment in favor of the state
and any victim. Notwithstanding any other civil or criminal statute
or rule, any such judgment remains in force until the restitution is
paid in full.” Subparagraph (II), in turn, states,
[n]otwithstanding the provisions of
subparagraph (I) of this paragraph (a), two
years after the presentation of the defendant’s
original death certificate to the clerk of the
court or the court collections investigator, the
court may terminate the remaining balance of
the judgment and order for restitution if,
following notice by the clerk of the court or the
court collections investigator to the district
attorney, the district attorney does not object
and there is no evidence of a continuing source
of income of the defendant to pay restitution.
According to the People, “[t]hese provisions unambiguously
contemplate that a defendant’s restitution obligations continue even
after his death.”
9
¶ 15 We generally construe statutes to be consistent with the
common law. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).
Although the General Assembly may modify or abrogate common
law, we can recognize such changes only when they are clearly
expressed.
Id. Thus, “[s]tatutes in derogation of the common law
must be strictly construed, so that if the legislature wishes to
abrogate rights that would otherwise be available under the
common law, it must manifest its intent either expressly or by clear
implication.”
Id. (quoting Vaughan v. McMinn,
945 P.2d 404, 408
(Colo. 1997)). Applying this principle, we conclude that neither
subparagraph (I) nor subparagraph (II) of section 18-1.3-603(4)(a)
clearly modifies the doctrine of abatement ab initio to exclude
restitution orders.
¶ 16 First, that a restitution order is “a final civil judgment” under
section 18-1.3-603(4)(a)(I) does not necessarily save it from the
operation of the doctrine of abatement ab initio. Section
18-1.3-603(1) expressly ties a restitution order to a conviction, but
a defendant’s death during the pendency of his appeal abates his
conviction and “leav[es] the defendant as if he had never been
indicted or convicted.” Griffin, ¶ 4 (quoting Estate of Parsons,
10
367 F.3d at 413). And a defendant who has not been convicted
retains the presumption of innocence and cannot be ordered to pay
restitution. Nelson,
581 U.S. at ___,
137 S. Ct. at 1257-58; Cowen,
¶ 38; Sosa, ¶¶ 26-28.
¶ 17 Nor are we persuaded by the legislature’s inclusion, in section
18-1.3-603(4)(a)(I), of the phrase, “Notwithstanding any other civil
or criminal statute or rule, any such judgment remains in force
until the restitution is paid in full.” That phrase does not explicitly
or by clear implication abrogate the common law doctrine of
abatement ab initio, which is neither a statute nor a rule. Vigil,
103 P.3d at 327.
¶ 18 Second, applying the doctrine of abatement ab initio to
restitution orders would not, as the People contend, “render the
express term of section [18-1.3-]603(4)(a)(II) a nullity.” That
provision addresses what happens when a defendant dies before
paying restitution in full, but it does not address the specific
situation in which a defendant dies during the pendency of his direct
appeal. When that happens, as discussed above, no valid
conviction exists and, therefore, due process prevents the state from
11
collecting restitution. Nelson, 581 U.S. at ___,
137 S. Ct. at
1257-58; Cowen, ¶ 38; Sosa, ¶¶ 26-28.
¶ 19 We recognize that our conclusion could lead to unjust results
for crime victims, who will not be able to receive restitution
payments from the estates of defendants who die during the
pendency of their direct appeals. But such outcomes are an
inevitable consequence of the doctrine of abatement ab initio. The
legislature or the Colorado Supreme Court may, of course, avoid
such outcomes by abolishing or abrogating the doctrine altogether,
as other jurisdictions have. See, e.g., State v. Reed,
456 P.3d 453,
456, 458-59 (Ariz. 2020) (recognizing the Arizona legislature’s
abolition of the doctrine of abatement ab initio); State v. Al Mutory,
581 S.W.3d 741, 750 (Tenn. 2019) (judicially abrogating the
doctrine of abatement ab initio “because it is obsolete, its continued
application would do more harm than good, and it is inconsistent
with the current public policy of this State”). Until then, however,
we are bound by the decisions of the Colorado Supreme Court and
the United States Supreme Court. See Nelson,
581 U.S. at ___;
137 S. Ct. at 1257-58; Cowen, ¶ 38.
12
III. Remand Instructions
¶ 20 The case is remanded to the district court with directions to
abate the criminal conviction; dismiss the charges against Johnson;
vacate any orders concerning costs, fees, and fines; and vacate the
restitution order.
¶ 21 After the district court completes the abatement proceedings,
Johnson’s counsel shall immediately forward a copy of the district
court’s order to this court. The district court shall construe entry of
the abatement order as recertification of the matter on appeal.
Thereafter, this court will dismiss the appeal.
¶ 22 If this matter is not concluded within thirty-five days from the
date of this order, Johnson’s counsel shall notify this court in
writing of the status of the district court proceedings. Johnson’s
counsel shall file status reports every thirty-five days until the
district court completes the abatement proceedings.
JUDGE ROMÁN and JUDGE TOW concur.
13
