Pueblo councilor loses appeal, will have to pay restitution for Columbus statue vandalism

A Pueblo city councilor will have to pay the full amount of restitution imposed upon him by a Pueblo court after the Colorado Court of Appeals recently upheld the lower court's order in a 2-1 decision.

Vincente Martinez Ortega, a city councilman, previously pleaded guilty to misdemeanor criminal mischief in a January 2022 plea agreement with the 4th Judicial District Attorney's Office, which handled the case due to a conflict of interest. In exchange for his plea, the original charge of felony criminal mischief against Martinez Ortega was dropped.

The city councilor pleaded guilty after damaging a portion of the retaining wall surrounding Pueblo's controversial statue of Christopher Columbus in May 2021, during a protest.

In the plea agreement, Martinez Ortega agreed to pay all court-ordered restitution, including restitution for any counts dismissed as part of the plea agreement.

At a sentencing hearing, Martinez Ortega admitted that he knowingly damaged the personal property of the city of Pueblo by removing "some bricks" from the wall.

The prosecution provided a motion for restitution to the district court requesting $3,926.66.

Through his attorneys, Martinez Ortega objected, taking issue with the amount of restitution and contending that the estimate did not match the damage he actually caused.

However, 10th District Court Judge Amiel Markenson granted the full restitution amount, arguing that Martinez Ortega knew of the restitution request for the entire east side wall, therefore, "proximate cause really shouldn't be an issue."

Markenson further concluded that the damage caused by Martinez Ortega may have led to further damage, as the other layers of the wall "may have fallen off due to weakness in the wall or things like that."

Martinez Ortega appealed the district court's decision, contending that the prosecution failed to prove that he caused all the damage to the wall charged in the total. However, the prosecution contended that the challenge of causation was precluded by the plea agreement.

In the state appeals courts' 2-1 decision, appellate judge Craig R. Welling wrote for himself and Judge W. Eric Kuhn that he agreed with the district court decision.

"Martinez Ortega was on notice at the time he executed his plea agreement that (prosecutors) were seeking restitution for repairing the entirety of the east part of the wall," Welling wrote in the decision. "Simply put, a defendant can’t leverage an agreement to pay restitution to obtain a favorable plea — here, a misdemeanor instead of a felony — and then turn around and require proof on the very issue stipulated to."

Judge Terry Fox stated in her dissent that the plea agreement did not remove Martinez Ortega's ability to appeal the amount of restitution requested and that others at the protest that day may have caused some of the damage to other sections of the retaining wall.

"There was no testimony that Martinez Ortega’s act of damaging one section of the wall caused the damage that was incurred to the other three sections of the wall," wrote Fox. "Nor was there any evidence that damage to one section of the wall necessitated the replacement of all four sections. Accordingly, the district court’s conclusion that the act of removing “one layer of bricks” could have caused others to fall 'due to weakness in the wall or things like that' is entirely unsupported by the record."

Fox concluded her dissent by stating that she would reverse the order awarding restitution and order the district court to determine exactly what damage was caused by Martinez Ortega's conduct alone.

Martinez Ortega declined to comment when contacted by the Pueblo Chieftain.

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This article originally appeared on The Pueblo Chieftain: Martinez Ortega loses appeal on Columbus statue vandalism restitution