A Douglas County judge ordered a defendant to pay crime victim restitution eight months beyond the legal deadline and nearly two years after the Colorado Supreme Court warned trial judges to follow the law, the state’s second-highest court ruled on Thursday.

The Court of Appeals also noted former District Court Judge Patricia Herron “recharacterized history” by claiming she issued a restitution order 11 months before she actually did.

In Colorado, as part of sentencing, judges must consider whether defendants owe financial restitution to their victims. If so, prosecutors generally need to provide the requested amount by the time of sentencing or within 91 days of sentencing. Judges must also impose the restitution amount within 91 days of sentencing. If judges need to extend either deadline, they must find extenuating circumstances or good cause.

In a major decision, People v. Weeks, the Supreme Court ruled in November 2021 that judges’ historical process of awarding compensation to crime victims did not comply with Colorado law. The justices noted a lackadaisical approach had taken hold in the trial courts that neglected the clear deadlines and procedural requirements. Consequently, if trial judges fail to follow the law, they lose authority to issue a restitution order.

Timothy Wilson Thieman pleaded guilty in October 2022 to stealing from a convenience store with a co-defendant. His plea agreement required him to pay “preliminary” restitution of $10,825 for stolen nicotine products, but his lawyer objected to that amount. Herron set a hearing for early December to address the dispute.

During the hearing, the prosecution made clear it was seeking restitution for many more items, leading the defense to protest. Herron permitted the prosecutor to submit a revised request afterward. Hours later, the district attorney’s office updated its restitution request to $22,011. Once again, the defense objected and requested another hearing.

Eight months later and without holding a hearing, Herron issued an order granting the prosecution’s request in full. 

“On October 10, 2022, the Court entered an Order on Motion for Joint and Several Restitution in the amount of $10,825.14,” she wrote. The prosecution “submitted all requested restitution in this case in a timely manner.”

Thieman appealed, arguing Herron clearly did not set his restitution amount within 91 days of sentencing, despite the Supreme Court having made its expectations clear in Weeks two years earlier. Moreover, she had not found good cause to extend the deadline.

During oral arguments to a three-judge appellate panel, Judge Craig R. Welling pointed out another problem: Herron mistakenly represented she already issued a $10,000 restitution decision in October 2022.

“I think in the court’s order granting restitution, it recharacterized history,” he said.

Senior Assistant Attorney General Frank R. Lawson urged the Court of Appeals panel not to apply the Supreme Court’s automatic reversal rule from Weeks. However, he and the appellate judges acknowledged the Supreme Court had recently held a marathon set of oral arguments to consider the government’s grievances about the Weeks decision, with the justices showing little appetite to overturn Weeks.

The panel ultimately agreed with Thieman that Herron’s restitution order was issued eight months beyond the deadline. As for her representation that she had already issued one order on time, “This finding is clearly erroneous,” wrote Judge Pax L. Moultrie in the Jan. 2 opinion.

Moultrie acknowledged, but rejected, the prosecution’s argument that the rights of victims should be a factor before automatically reversing a restitution order.

“There is undoubtedly some prejudice to a victim when a court delays in determining the amount of restitution to which they are entitled. And there is most certainly prejudice to a victim when an untimely restitution order is vacated,” she explained. “But, even accepting as true that the statutory deadline is primarily intended to help victims of crimes and only secondarily to help a defendant, we can’t simply ignore a defendant’s due process right to finality and fairness.”

Herron is no longer a judge, having retired in December 2023. Colorado Politics previously reported on her numerous errors that have led to convictions and sentences being overturned on appeal.

Last year, a different Court of Appeals panel vacated another of Herron’s orders for a defendant to pay $12,500 in restitution. Herron issued the decision nearly two years after sentencing and after the Supreme Court told judges they lose authority to award restitution when they fail to respect the legal deadlines.

The case is People v. Thieman.