2
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 20CA646.
Attorneys for Petitioner: Megan A. Ring, Public Defender Lisa
Weisz, Deputy Public Defender Denver, Colorado.
Attorneys for Respondent: Philip J. Weiser, Attorney General
Frank R. Lawson, Assistant Attorney General Denver, Colorado.
Attorneys for Amicus Curiae Office of the Alternate Defense
Counsel: Gibson, Dunn & Crutcher LLP John Partridge Al
Kelly Nicholas Venable.Denver, Colorado.
3
Amicus
Curiae Tnias D. Pike, pro se Buena Vista, Colorado.
JUSTICE SAMOUR delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE
HOOD, JUSTICE HART, and JUSTICE BERKENKOTTER joined. JUSTICE
GABRIEL dissented.
OPINION
4
SAMOUR, JUSTICE.
¶1
Under Colorado law, with one rare exception, every sentence
in a criminal case must include consideration of
restitution.[1] See § 18-1.3-603(1), C.R.S.
(2024); Crim. P. 32(b)(3)(I). Specifically, our legislature
has mandated that every sentence must include at least one of
four statutorily enumerated restitution orders: (1) an order
requiring payment of an amount of restitution; (2) an order
obligating the defendant to pay restitution but indicating
that the amount of restitution will be determined within
ninety-one days or, upon an express finding of good cause,
within a longer timeframe set by the trial court; (3) an
order, in addition to or in place of an order requiring
payment of an amount of restitution, directing the defendant
to pay restitution covering the actual costs of future
treatment for any victim; or (4) an order stating that no
restitution payment is required because no victim suffered a
pecuniary loss. § 18-1.3-603(1)(a)-(d).
¶2
We now reaffirm that a sentence that fails to include at
least one of these four restitution orders violates section
18-1.3-603(1) ("subsection (1)") and is a
5
sentence not authorized by law that may be corrected at any
time. See Crim. P. 35(a) ("The court may
correct a sentence that was not authorized by law or that was
imposed without jurisdiction at any time . . . .").
Because an order entered during a sentencing
hearing[2] simply deferring until a later date the
matter of restitution in its entirety (i.e., deferring both
whether the defendant is liable to pay restitution, and if
so, the amount of restitution due) is not one of the orders
listed in subsection (1), a sentence that addresses
restitution through such an order is a sentence that is not
authorized by law.
¶3
This case presents a more nuanced issue, however. Pursuant to
section 18-1.3-603(1)(b) ("subsection (1)(b)"), the
district court imposed a sentence that implicitly obligated
the defendant, Audrey Lee Tennyson, to pay restitution and
postponed the determination of the amount of restitution
until a later date. The court, though, subsequently failed to
set the amount of restitution within the applicable deadline
in subsection (1)(b)-ninety days or, upon a timely and
express finding of good cause, any longer timeframe set by
the court (the "subsection (1)(b)
deadline").[3] Ten years later, Tennyson brought a Crim.
P. 35(a)
6
claim arguing that he received an illegal sentence that may
be corrected at any time and that the only way to correct it
was by vacating the restitution order and entering in its
place an order specifying that no restitution was due. The
question for us is whether Tennyson's Crim. P. 35(a)
claim is an "illegal sentence claim" challenging
the legality of his sentence or an "illegal manner
claim" challenging the legality of the manner in which
his sentence was imposed.
¶4
The answer is consequential. If the district court's
failure to comply with the subsection (1)(b) deadline
rendered Tennyson's sentence illegal, the court could
correct it at any time. But if the court's violation of
the subsection (1)(b) deadline meant that Tennyson's
sentence was imposed in an illegal manner, the court could
only correct it within 120 days after his sentence was
imposed. See Crim. P. 35(a)-(b).[4] To resolve the
question, we must review both our Crim. P. 35(a)
jurisprudence and our restitution jurisprudence.
¶5
First, Crim. P. 35(a). In People v. Baker, 2019 CO
97M, ¶ 1, 452 P.3d 759, 760, we were called upon to
decide whether a claim seeking more presentence confinement
credit ("PSCC") than originally granted was a claim
that the prison sentence imposed was "not authorized by
law" and was thus illegal under Crim.
7
P. 35(a). We held that it could not be an illegal sentence
claim because "PSCC is not a component of a
sentence." Baker, ¶ 1, 452 P.3d at 760. We
acknowledged, however, that a claim challenging the trial
court's calculation of PSCC could be brought pursuant to
Crim. P. 35(a) as an illegal manner claim. Baker,
¶ 20, 452 P.3d at 763.
¶6
Second, restitution. In Sanoff v. People, 187 P.3d
576, 579 (Colo. 2008), we held that a restitution order
issued at sentencing pursuant to subsection (1)(b) that
merely required the defendant to pay restitution and
indicated that the amount due would be determined later
sufficed to satisfy the restitution component of the
sentence. We reasoned that, "by express legislative
action, a subsequent determination of the amount of
restitution . . ., as distinguished from an order simply
finding [the defendant] liable to pay restitution, has been
severed from the meaning of the term 'sentence,' as
contemplated by Crim. P. 32, and therefore from [the]
judgment of conviction." Sanoff, 187 P.3d at
578.
¶7
Guided by Sanoff, we conclude that the order setting
the amount of restitution owed by Tennyson is not part of his
sentence or of his judgment of conviction. And guided by
Baker, we conclude that Tennyson's Crim. P.
35(a) claim challenging the timeliness of the order setting
the amount of restitution is an illegal manner claim, not an
illegal sentence claim. As such, he was required to bring it
within 120 days after his sentence was imposed. Because he
did not, his
8
Crim. P. 35(a) claim is time-barred. And because the court of
appeals reached the same conclusion, we affirm its judgment.
I.
Facts and Procedural History
¶8
In the summer of 2007, Tennyson committed a series of
robberies. He was subsequently charged with fifty counts in
this case. The prosecution and Tennyson eventually reached a
global disposition: He pleaded guilty to two counts of
aggravated robbery, and in exchange, the prosecution agreed
to a sentencing range on each count of ten to thirty-two
years in the Department of Corrections ("DOC"),
which he would serve concurrently with each other and with
the sentences in three other felony cases in which he was
facing complaints to revoke his probation.
¶9
Tennyson stipulated in the plea agreement that there was
restitution and that he was liable for it. Specifically, the
plea agreement obligated him to pay restitution "to all
victims in all pending counts and cases governed by this plea
agreement, including all counts to be dismissed."
Further, the plea agreement stated that the prosecution would
"act in good faith to provide correct information
establishing the amount of restitution within [ninety]
days of sentencing." (Emphasis added.) Following
Tennyson's guilty pleas at the providency hearing, the
court scheduled all four cases for sentencing.¶10 During
the sentencing hearing, the prosecutor argued for prison
sentences within the agreed-upon sentencing ranges,
specifically asked for restitution, and then requested that
restitution be "[r]eserve[d] for [ninety] days."
Consistent with the plea agreement, the court imposed prison
sentences of twenty-six years on each of the two aggravated
robbery counts, to run concurrently with each other and with
the shorter prison sentences imposed in the three
probation-revocation cases. The court then gave the
prosecution "[ninety] days to determine," not
whether there would be restitution, but rather "what
restitution is due and owing." (Emphasis added.) It
further granted Tennyson "[thirty] days to challenge if
[he] believe[d] the figure [was] in
error."[5] (Emphasis added.) Like the division, we
infer from the record-particularly from the terms of the plea
agreement and the exchange between the court and the
prosecution at the sentencing hearing-that the court found
Tennyson liable for restitution but deferred until after
sentencing the determination of the amount of restitution.
¶11
Eighty-six days after the sentencing hearing, the prosecution
timely submitted a proposed restitution order setting forth
the requested amount of
9
restitution ($12,306.18). Tennyson lodged no objection, and
the district court granted the proposed order 136 days after
sentencing. Despite approving the proposed restitution
amount, the court gave Tennyson ten additional days to file
an objection. Although Tennyson did not file an objection
within that timeframe, the prosecution filed an amended
proposed order on the tenth day. The amended proposed order
simply corrected an arithmetic error in the calculation of
the amount of restitution due: $12,684.96 instead of
$12,306.18.[6] The court signed the amended proposed
order 155 days after sentencing but again gave Tennyson ten
days to object to it. Tennyson did not file a timely
objection this time either.
¶12
Tennyson did not appeal his sentence or judgment of
conviction. He did, however, file numerous postconviction
claims and appeals challenging the rulings on some of those
claims. None of those claims or appeals are relevant to our
analysis, so we omit any discussion of them.
¶13
In 2015, approximately seven years after his sentencing
hearing, Tennyson wrote a letter to the district court
contending that the restitution order had not been served on
him and objecting to the restitution amount. The court denied
this objection as untimely.
10
¶14
About three years later (some ten years after his sentence
was imposed), Tennyson brought additional postconviction
claims, including the Crim. P. 35(a) claim before us. As
relevant here, he argued that his sentence was illegal
because there was no evidence that the prosecution needed
additional time after sentencing to calculate the amount of
restitution ultimately requested. The district court
disagreed, explaining that it was customary to afford the
prosecution ninety days after sentencing to calculate the
amount of restitution sought because the prosecution rarely
has that information at the time of sentencing.
¶15
Tennyson appealed. While his case was pending on appeal, we
announced our decision in People v. Weeks, 2021 CO
75, ¶¶ 45-47, 498 P.3d 142, 157, where, as relevant
here, we (1) held that when a trial court enters a subsection
(1)(b) order finding restitution liability at sentencing, it
loses authority to require restitution if it fails to set the
amount due within the subsection (1)(b) deadline; and (2)
concluded that vacatur of the restitution order was the
appropriate remedy for the trial court's failure to
determine the amount of restitution within the subsection
(1)(b) deadline.
¶16
Relying on Weeks, Tennyson argued at the court of
appeals that his sentence was illegal because the district
court had lacked authority to enter the order setting the
amount of restitution after the subsection (1)(b) deadline
expired. And, according to Tennyson, the remedy required by
Weeks to correct his sentence was
11
vacatur of the restitution order and entry of an order
indicating he owed no restitution.
¶17
In a published opinion, a unanimous division of the court of
appeals disagreed and affirmed the district court's
orders denying Tennyson's postconviction claims.
People v. Tennyson, 2023 COA 2, ¶ 2, 528 P.3d
185, 187-88. As pertinent here, the division concluded that:
(1) under this court's case law, when a trial court
enters a subsection (1)(b) order, the "liability"
component is distinct and separate from the
"amount" component; and (2) Weeks simply
set forth the procedural manner in which the
restitution amount must be determined after sentencing under
subsection (1)(b). Id. at ¶ 17, 528 P.3d at
189. Because the division discerned that the amount of
restitution was not part of Tennyson's sentence, it ruled
that his challenge to the timeliness of the post-sentencing
order setting the amount of restitution was an illegal manner
claim, not an illegal sentence claim. Id. And since
Tennyson failed to bring his claim within 120 days after his
sentence was imposed, the division determined that the claim
was time-barred. Id. at ¶ 38, 528 P.3d at 192.
¶18
Tennyson thereafter sought our review, and we granted his
petition. We agreed to consider the single issue he raised:
"Whether a postconviction challenge to the timeliness of
a restitution order is cognizable as an illegal sentence
claim under Crim. P. 35(a)." Given what occurred here,
we understand the issue to refer
12
to a Crim. P. 35(a) challenge to the timeliness of a
post-sentencing determination of the amount of restitution
following a sentencing hearing during which the court finds
restitution liability.[7]
II.
Analysis
¶19
Before analyzing the issue raised by Tennyson, we set forth
the standard of review. We then consider the case law
applying Crim. P. 35(a) and differentiating between illegal
sentence claims and illegal manner claims. With these
precedents in mind, we turn to Colorado law governing
restitution in criminal cases-focusing specifically on
subsection (1)(b) restitution orders. We end by applying the
principles of law discussed to determine whether the district
court's untimely determination of the amount of
restitution rendered Tennyson's sentence illegal. We rule
that it did not and therefore conclude that the Crim. P.
35(a) claim brought by Tennyson was an illegal manner claim
that should have been brought within 120 days after
sentencing.
A.
Standard of Review
¶20
Subject to constitutional limitations, "it is the
prerogative of the legislature to . . . prescribe
sentences." Sanoff, 187 P.3d at 577. Our
General Assembly has
13
long required that every criminal sentence reflect
consideration of restitution. Id. Restitution orders
in criminal prosecutions in this jurisdiction are governed by
statute and rule. See § 18-1.3-603; Crim. P.
32(b)(1) ("When imposing sentence, the court shall
consider restitution as required by section 18-1.3-603(1),
C.R.S."); Crim. P. 32(b)(3)(I) (indicating that
"[a] judgment of conviction" must include "an
order or finding regarding restitution as required by section
18-1.3-603, C.R.S.").
¶21
Questions of statutory interpretation are questions of law,
which we review de novo. Weeks, ¶ 24, 498 P.3d
at 151. In construing a statute, our goal is to give effect
to the legislature's intent. Id. at ¶ 25,
498 P.3d at 151. The first step in this endeavor is to give
the statute's "words and phrases their plain and
ordinary meaning." Id. (quoting McCulley v.
People, 2020 CO 40, ¶ 10, 463 P.3d 254, 257). We
"presume that a legislature says in a statute what it
means and means in a statute what it says there."
Id. (quoting Conn. Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992)). Consequently, if
a statute is unambiguous, we apply it as written without
resorting to tools of statutory construction. Baker,
¶ 13, 452 P.3d at 762.
¶22
The same principles that apply to statutory interpretation
apply when we construe our rules of criminal procedure, which
we have plenary authority to promulgate and interpret.
Id. at ¶ 14, 452 P.3d at 762. Just as with
questions of statutory interpretation, questions of rule
interpretation are legal in nature and
14
subject to de novo review. Hunsaker v. People, 2021
CO 83, ¶ 16, 500 P.3d 1110, 1114 (relying on People
v. Bueno, 2018 CO 4, ¶ 18, 409 P.3d 320, 325).
¶23
We also review de novo the legality of a sentence. Veith
v. People, 2017 CO 19, ¶ 12, 390 P.3d 403, 406.
Thus, the denial of a Crim. P. 35(a) claim asserting that a
sentence was either not authorized by statute or imposed
without jurisdiction presents a question of law subject to de
novo review.
B.
Crim. P. 35(a)-Illegal Sentence Claims vs. Illegal Manner
Claims
¶24
Crim. P. 35(a) allows a defendant in a criminal case to file
a postconviction claim (1) to "correct a sentence that
was not authorized by law or that was imposed without
jurisdiction" or (2) to "correct a sentence imposed
in an illegal manner." The former is an illegal sentence
claim; the latter is an illegal manner claim. We explore in
some depth each type of claim.
¶25
We have made clear that an illegal sentence includes a
sentence that is not authorized by law because it fails to
comply in full with statutory requirements.
Delgado v. People, 105 P.3d 634, 636 (Colo. 2005);
see also People v. Collier, 151 P.3d 668, 670
(Colo.App. 2006) (observing that a sentence is illegal if
"it is inconsistent with the statutory scheme outlined
by the legislature"). For example, in Chae v.
People, 780 P.2d 481, 484 (Colo. 1989), we held that a
suspended term of incarceration in the DOC constituted an
illegal sentence because, although the imposition of the DOC
sentence itself was legal, its suspension was not. Later, in
15
Craig v. People, 986 P.2d 951, 960 (Colo. 1999), we
decided that "any plea agreement purporting to
eliminate, waive, modify or direct the trial court's
application of parole in a way not available under the
sentencing law would call for an illegal sentence of the sort
rejected in Chae." Thus, it is a fundamental
tenet in this state that, "as long as any aspect of a
sentence is inconsistent with statutory requirements, the
complete sentence is illegal." Delgado, 105
P.3d at 637.
¶26
A claim that a sentence is not authorized by law can
encompass a wide range of situations, including, for example:
when a court orders sentences to run concurrently, even
though a statute requires them to run consecutively,
People v. White, 179 P.3d 58, 60 (Colo.App. 2007);
when a court orders mandatory parole in contravention of a
statute requiring discretionary parole, Hunsaker,
¶ 19, 500 P.3d at 1114; or when a court imposes a prison
sentence longer than the maximum term permitted by the
governing statute, id. Depending on the nature of
the illegality involved, some sentences that are not
authorized by law "can be corrected through resentencing
and imposition of a legal sentence while other illegal
sentences require that the judgment of conviction be
vacated." Id. (quoting Delgado, 105
P.3d at 637).
¶27
A sentence imposed without jurisdiction is also an illegal
sentence. "a court's 'jurisdiction' concerns
its 'power to entertain and to render a judgment on a
particular claim.'" People in Int. of J.W. v.
C.O., 2017 CO 105, ¶ 21, 406 P.3d 853, 858
16
(quoting In re Estate of Ongaro, 998 P.2d 1097, 1103
(Colo. 2000)). Jurisdiction consists of two elements: subject
matter jurisdiction, which refers to a "court's
authority to deal with the class of cases,"
People v. Sprinkle, 2021 CO 60, ¶ 15, 489 P.3d
1242, 1245 (quoting C.O., ¶ 24, 406 P.3d at
858); and personal jurisdiction, which refers to a
court's power over the parties, C.O., ¶ 22,
406 P.3d at 858.
¶28
The Colorado Constitution confers general subject matter
jurisdiction on district courts, so unless otherwise
provided, they have jurisdiction to hear all criminal cases.
Colo. Const. art. VI, § 9(1). While the General Assembly
may limit a court's subject matter jurisdiction,
"such limitations must be explicit." Wood v.
People, 255 P.3d 1136, 1140 (Colo. 2011).
¶29
Illegal sentences should not be confused with sentences
imposed in an illegal manner. Crim. P. 35(a). A sentence is
imposed in an illegal manner "when the trial court
ignores essential procedural rights or statutory
considerations in forming the sentence." 15 Robert J.
Dieter, Colorado Practice Series: Criminal Practice and
Procedure § 21.10 n.10 (2d ed. 2004); see also
People v. Bowerman, 258 P.3d 314, 316-17 (Colo.App.
2010) (relying on this definition); People v.
Knoeppchen, 2019 COA 34, ¶ 9, 459 P.3d 679, 682
(same), overruled in part on other grounds by Weeks,
¶¶ 9, 47 n.16, 498 P.3d at 149, 157 n.16. Sentences
imposed in an illegal manner include, but are not limited to,
those where the court fails to adhere to statutory procedural
requirements, such as by depriving the defendant of the
17
complete range of presentencing sex-offender testing mandated
by the legislature, see Collier, 151 P.3d at 673, or
where the manner of imposing the sentence results in the
denial of procedural due process, see People v.
Sisson, 179 P.3d 193, 196 (Colo.App. 2007).
¶30
We recognize, as has a division of the court of appeals, that
an illegal sentence could fairly be viewed as encompassing
procedural infirmities. People v. Wenzinger, 155
P.3d 415, 418 (Colo.App. 2006). But doing so risks blurring
the distinction between, on the one hand, sentences that are
void because they have been imposed either in excess of the
court's statutory authority or without jurisdiction, and,
on the other, sentences that are voidable because they have
been imposed in an illegal manner. See id. And this
distinction is important, among other reasons, because an
illegal manner claim is subject to a time limitation, but an
illegal sentence claim is not.
¶31
Crim. P. 35(a) specifically states that, although an illegal
sentence may be corrected "at any time," a sentence
imposed in an illegal manner may be corrected only
"within the time provided . . . for the reduction of
sentence" pursuant to Crim. P. 35(b). A trial court may
reduce a sentence under Crim. P. 35(b) if an appropriate
motion is filed within 126 days (120 days during the relevant
timeframe here) after (1) the imposition of the sentence, (2)
receipt of the remittitur following either (a) an affirmance
of the sentence or judgment of conviction or (b) dismissal of
the
18
appeal, or (3) entry of an appellate court's order or
judgment denying review or having the effect of upholding the
sentence or the judgment of conviction. A trial court may
also reduce a sentence at any time pursuant to a limited
remand ordered by an appellate court during the pendency of a
direct appeal. Id.
¶32
The timeliness of Tennyson's Crim. P. 35(a) claim hinges
on whether it is an illegal sentence claim or an illegal
manner claim. If it's the former, it's timely, as he
could have brought it at any time; if it's the latter,
it's not, as he didn't bring it within 120 days after
the imposition of his sentence. Although ascertaining whether
a claim is an illegal sentence claim or an illegal manner
claim isn't always easy, our case law provides some
guidance. A recent case in particular, Baker, is
instructive here.
¶33
In Baker, we were asked to determine whether a Crim.
P. 35(a) claim seeking additional PSCC against a DOC sentence
was a claim that the sentence was "not authorized by
law" and was thus illegal. ¶ 1, 452 P.3d at 760. We
held that the claim could not be an illegal sentence claim
because "PSCC is not a component of a sentence."
Id. Relying on the statute defining the credit
criminal defendants are entitled to receive as a result of
presentence confinement, see § 18-1.3-405,
C.R.S. (2024), we explained that PSCC "is time served
before a sentence is imposed," is "calculated
independently from the sentence," and "is later
credited against" the sentence. Baker,
¶¶ 1, 16, 452 P.3d at 760, 762. Accordingly, we
concluded that the
19
defendant's remedy was to file a Crim. P. 36 motion to
correct the clerical error in the PSCC reflected on his
mittimus. Baker, ¶ 21, 452 P.3d at 763.
¶34
Of particular interest here, we explained that, to the extent
the error was not a clerical one subject to correction under
Crim. P. 36, the defendant certainly could have challenged
the trial court's PSCC calculation by bringing a Crim. P.
35(a) claim "that the sentencing process deviated from
the statutory requirements, such that the sentence was
imposed 'in an illegal manner.'" Baker,
¶ 20, 452 P.3d at 763. Consequently, we concluded that
the defendant could have brought a claim arguing that his
sentence was imposed in an illegal manner and was thus
in need of correction, even though PSCC is not a
component of a sentence. Id. The defendant had
not brought such a claim simply because more than 126 days
had passed since the imposition of his sentence, rendering
any illegal manner claim untimely. Id.
¶35
Mindful of the differences between illegal sentence claims
and illegal manner claims, we shift our attention now to
Colorado law governing restitution in criminal cases. In
light of the circumstances of this case, we keep our focus on
subsection (1)(b) orders.
C.
Colorado Law Governing Restitution in Criminal Cases
¶36
A judgment of conviction in Colorado includes the sentence
imposed. See Crim. P. 32(b)(3)(I). Consequently, we
have determined that a judgment of conviction is not final
and appealable until the defendant has been acquitted, the
20
charges have been dismissed in their entirety, or the
defendant has been convicted and sentenced.
Sanoff, 187 P.3d at 577. The sentence aspect of a
final judgment of conviction is the centerpiece of our
analysis in this case.
¶37
Before making significant amendments to the restitution
statutory scheme twenty-five years ago, our General Assembly
had required that the amount of restitution be fixed by the
court in every case at the time of sentencing. Id.
(citing § 16-11-102(4), C.R.S. (1989)). Accordingly, we
had held that an order requiring restitution, including the
amount the defendant was obligated to pay, was a component of
the sentence and, by extension, of the judgment of
conviction. Id. (citing People v. Johnson,
780 P.2d 504, 508 (Colo. 1989)).
¶38
In 2000, however, the legislature substantially revised the
restitution statutory framework. Id. at 578 (citing
Ch. 232, sec. 1, §§ 16-18.5-101 to -110, 2000 Colo.
Sess. Laws 1030, 1030-41). In the process, it enacted an
integrated system for the imposition and collection of
restitution. See Meza v. People, 2018 CO 23, ¶
9, 415 P.3d 303, 306.
¶39
Under the current statutory regime, every sentence must
include at least one of the four specifically enumerated
restitution orders. § 18-1.3-603(1); Meza,
¶ 10, 415 P.3d at 307. A sentence must now contain: (1)
an order pursuant to section 18-1.3-603(1)(a)
("subsection (1)(a)") requiring payment of an
amount of restitution; (2) an order pursuant to subsection
(1)(b) obligating the defendant to
21
pay restitution but indicating that the amount of restitution
shall be determined within the subsection (1)(b) deadline;
(3) an order pursuant to section 18-1.3-603(1)(c)
("subsection (1)(c)"), in addition to or in place
of an order of an amount of restitution, directing the
defendant to pay restitution covering the actual costs of
specific future treatment for any victim; and/or (4) an order
pursuant to section 18-1.3-603(1)(d) ("subsection
(1)(d)") stating that no payment of restitution is
required because no victim suffered a pecuniary loss. See
also Crim. P. 32(b)(3)(I) (indicating that a judgment of
conviction must include "an order or finding regarding
restitution as required by section 18-1.3-603,
C.R.S.").[8] A restitution order that is not authorized
by subsection (1) fails to satisfy the restitution component
of a sentence and of the judgment of conviction.
Sanoff, 187 P.3d 579. Correspondingly, a sentence
that fails to include at least one of the four enumerated
restitution orders in subsection (1) is a sentence not
authorized by law (i.e., an illegal sentence) that may be
corrected at any time.
¶40
As pertinent here, while every sentence must continue to
include consideration of restitution, trial courts have been
relieved of their obligation to set the amount of restitution
at the time of sentencing in some cases. Sanoff,
22
187 P.3d at 578. Excluding a subsection (1)(d)
order, which requires no restitution at all, two of the
remaining three enumerated orders allow a trial court to find
restitution liability at sentencing and to postpone the
determination of the restitution amount until after
sentencing: an order governed by subsection (1)(b) and an
order governed by subsection (1)(c). See Meza,
¶¶ 14-15, 415 P.3d at 308. Only subsection (1)(a)
orders require that the amount of restitution be determined
before entry of the judgment of conviction. Thus, when a
trial court determines the amount of restitution (and thereby
also necessarily finds restitution liability) before or
during sentencing, it enters a subsection (1)(a) order.
¶41
Here, however, the court entered a restitution order pursuant
to subsection (1)(b). That subsection allows a trial court,
at or before sentencing, "to merely order that the
defendant be obligated to pay restitution and postpone a
determination of the specific amount of restitution."
Sanoff, 187 P.3d at 578. Hence, under subsection
(1)(b), a defendant's judgment of conviction becomes
final and appealable when the court enters an order making
the defendant liable to pay restitution, even though the
amount of restitution hasn't been (and won't be)
determined until sometime after the sentencing hearing.
Id. at 578-79.
¶42
It follows that subsection (1)(b) "clearly
distinguishes" between "an order assigning
liability for restitution from a determination of the amount
of restitution for which the defendant is liable."
Id. at 578. We acknowledged as much in
Sanoff,
23
explaining that the statutory amendments enacted in 2000
"undermine[d] the continuing validity of our earlier
conclusion that the amount of restitution must be part of a
judgment of conviction." Id. By specifying in
subsection (1)(b) that the judgment of conviction "need
only include a determination whether the defendant is
obligated to pay restitution, without designation of the
amount, the General Assembly has made clear its intent that
the amount of the defendant's liability no longer be a
required component of a final judgment of conviction" in
some cases. Id.
¶43
Accordingly, in the context of subsection (1)(b) orders, the
amount of restitution "has been severed from the meaning
of the term 'sentence,' as contemplated by Crim. P.
32, and therefore from [the] judgment of conviction."
Id. Because under subsection (1)(b) the amount of
restitution "is no longer part of the defendant's
judgment of conviction, as contemplated by Crim. P. 32,"
neither a proceeding to determine, nor an order assessing,
the amount of restitution directly affects the judgment of
conviction. Id. at 578-79. For that reason, after
issuing a subsection (1)(b) order at sentencing finding
restitution liability, a trial court may thereafter set the
amount of restitution even if an appeal of the judgment of
conviction is already pending. Id. Of course, in
that scenario, the post-sentencing order determining the
amount of restitution is still appealable-as a separate,
final judgment. Id.; see also Meza, ¶
13, 415 P.3d at 308 (indicating that subsection (1)(b)
24
"necessarily contemplates the possibility of a second
proceeding within ninety-one days, or longer for good cause,
that would result in a second, final, appealable
order").
¶44
This stands in stark contrast to a subsection (1)(a) order.
The legislature has not expressed an intent to sever the
amount of restitution from the sentence in such an order.
This makes logical sense: A subsection (1)(a) order is an
order that both finds restitution liability and requires
payment of an amount of restitution. Consequently, the amount
of restitution in a subsection (1)(a) order is a component of
the sentence that "finalizes" and renders
appealable "the judgment of conviction in
question." Meza, ¶ 15, 415 P.3d at 308.
For this reason, any Crim. P. 35(a) challenge to the
restitution amount in the context of a subsection (1)(a)
order is an illegal sentence claim, not an illegal manner
claim. See Baker, ¶ 1, 452 P.3d at 760. To the
extent the division failed to account for this subtle but
important distinction, it erred.[9]
25
D.
Application
¶45
Tennyson's judgment of conviction became final and
appealable at the sentencing hearing, where the district
court implicitly found him generally liable for restitution
without yet determining the amount of restitution owed. The
court's post-sentencing determination of the restitution
amount, while appealable as a separate judgment, was not part
of Tennyson's sentence. Accordingly, Tennyson's Crim.
P. 35(a) claim, which challenges the timeliness of the
determination of the amount of restitution, is an illegal
manner claim, not an illegal sentence claim.[10] Much like a
challenge related to PSCC, Tennyson's challenge is to the
sentencing process followed, not to the legality of his
sentence. And because Tennyson didn't file a direct
appeal from his judgment of conviction, he was
26
required to bring his illegal manner claim within 120 days
after the imposition of his sentence. He failed to do so, and
therefore, his claim is time-barred.
¶46
We are not persuaded otherwise by Tennyson's arguments.
We address each in turn.
¶47
Tennyson contends that Sanoff is distinguishable. As
a refresher, we held in that case that because the trial
court entered a subsection (1)(b) order finding restitution
liability at sentencing, the judgment of conviction became
final and appealable, even though the court deferred setting
the restitution amount until a later date. Sanoff,
187 P.3d at 576, 578-79. Tennyson asks us to cabin our
holding in Sanoff to the finality of a judgment of
conviction under Crim. P. 32(b)(3)(I) for purposes of filing
an appeal. And because neither the finality nor the
appealability of his judgment of conviction is an issue
before us, he questions the relevance of our conclusion in
Sanoff regarding the severance of the restitution
amount from a defendant's sentence and judgment of
conviction in some cases. We see no legal or logical basis to
read Sanoff so narrowly.
¶48
Our holding in Sanoff was premised on the
legislature's decision, as reflected in the
statutory revisions enacted in 2000, to distinguish in some
circumstances an order holding a defendant liable for
restitution from an order setting the amount of restitution.
187 P.3d at 578. We inferred from that decision that the
legislature intended for "the amount" of
restitution to "no longer be a required component"
27
of the sentence or of the final judgment of conviction in
some cases. Id. Had we believed that this
legislative intent was limited to determining when a judgment
of conviction becomes final and appealable, we would have
said so. Of course, there was no basis for us to say so
because nothing in section 18-1.3-603 reflects that the
legislature had such a limitation in mind.
¶49
Our reference to Crim. P. 32 in Sanoff-"by
express legislative action, . . . the amount of restitution .
. . has been severed from . . . 'sentence,' as
contemplated by Crim. P. 32"-provides no refuge for
Tennyson. Sanoff, 187 P.3d at 578. We relied on
Crim. P. 32 there because the rule describes a
defendant's "sentence" as including
consideration of restitution pursuant to subsection (1).
Crim. P. 32(b)(1); see also Sanoff, 187 P.3d at 577.
Crim. P. 32 though, is just as relevant here-one of the
questions we answer today is whether, in the context of a
subsection (1)(b) order, the amount of restitution is part of
a defendant's "sentence," as that term is
defined in Crim. P. 32. Nothing about our reference to Crim.
P. 32 in Sanoff supports Tennyson's position
that our opinion in that case is inapposite.
¶50
In any event, when a trial court enters a subsection (1)(b)
order, it makes little sense to say, on the one hand, that
the amount of restitution is severed from the
defendant's sentence for purposes of determining when the
judgment of conviction becomes final and appealable, while on
the other, that the amount of restitution is not
severed from the defendant's sentence for purposes of
28
determining whether a Crim. P. 35(a) claim is an illegal
sentence claim or an illegal manner claim. As we see it, when
dealing with subsection (1)(b) orders, the amount of
restitution is either part of the sentence or is severed from
it-both for purposes of a direct appeal from the judgment of
conviction and for purposes of a Crim. P. 35(a) claim in a
postconviction proceeding. Sanoff answers the
question for both purposes: Under subsection (1)(b), the
amount of restitution is severed from the sentence-always.
Full stop.
¶51
Tennyson insists, however, that his is an illegal sentence
claim because we said in Weeks that a trial court
lacks the "authority" to order restitution after
the statutory deadline in subsection (1)(b) has lapsed. In
this regard, Tennyson reminds us that Crim. P. 35(a) allows
courts to correct a sentence "not authorized by
law." But we just explained that one of
Sanoff's teachings is that the amount of
restitution when a trial court enters a subsection (1)(b)
order is not part of the sentence. So, a Crim. P.
35(a) challenge to that amount is necessarily not a claim
that the sentence imposed was not authorized by law.
¶52
Importantly, nowhere in Weeks did we imply, let
alone expressly state, that we were overruling
Sanoff. To the contrary, Weeks reaffirmed
some of the lessons from Sanoff on which we rely
today. Weeks, ¶¶ 30 n.9, 36 n.11, 498 P.3d
at 153 n.9, 154 n.11.
29
¶53
Still, Tennyson maintains that, under Weeks, the
district court lacked jurisdiction to enter the amount of
restitution after the subsection (1)(b) deadline expired, and
therefore, his challenge is best understood as an illegal
sentence claim. True, an illegal sentence under Crim. P.
35(a) includes one "imposed without jurisdiction."
But we never said in Weeks that a trial court loses
jurisdiction to order restitution when it fails to determine
the amount of restitution before the subsection (1)(b)
deadline expires. In fact, we didn't use the word
"jurisdiction" a single time in that opinion.
¶54
When we said in Weeks that a trial court lacks
"authority" to order restitution after the
subsection (1)(b) deadline expires, we didn't mean that
it is divested of subject matter jurisdiction to act. Rather,
we simply meant that it cannot do something that exceeds what
section 18-1.3-603 permits-that is, it cannot take action
without the statutory power to do so in an area of the law
like sentencing, which lies within the legislature's sole
prerogative.[11] This was consistent with what we'd
repeatedly said before.
¶55
For example, in Sanoff, we observed that the trial
court had reserved the determination of the restitution
amount "[a]s authorized by the applicable
statutory
30
provision" (i.e., subsection (1)(b)). 187 P.3d at 577
(emphasis added). Further, in Meza, we said that the
trial court lacked "power" to increase the amount
of restitution previously set because, absent "a
statutorily authorized order" reserving the amount of
restitution, the judgment of conviction made that amount
final and appealable. ¶ 2, 415 P.3d at 305; see also
id. at ¶ 15, 415 P.3d at 308 (stating that the
trial court's "power" to order additional
restitution existed, if at all, "only as a result of
specific statutory authorization," and explaining that,
"[i]n the absence of" a subsection (1)(b) or a
subsection (1)(c) order, "the statute does not purport
to empower the sentencing court to set an amount of
restitution following entry of the judgment of conviction in
question"); People v. Belibi, 2018 CO 24,
¶¶ 2, 9-11, 415 P.3d 301, 302-03 (using similar
language).
¶56
According to Tennyson, however, separate and apart from our
decision in Weeks, the subsection (1)(b) deadline is
jurisdictional. For the reasons articulated in Babcock v.
People, 2025 CO 26, ¶¶ 22-26, P.3d, one of the
four companion cases we announce today, we disagree and
conclude that this deadline is not jurisdictional.
¶57
Nor does the remedy we granted in Weeks support
Tennyson's assertion that he brought an illegal sentence
claim. In Weeks, we vacated the restitution order
because we determined that by the time the trial court set
the amount of restitution
31
(after expiration of the subsection (1)(b) deadline), it no
longer had the authority to do so. Weeks,
¶¶ 45, 47, 498 P.3d at 157.
¶58
But the fact that we resorted to vacatur as a remedy in
Weeks doesn't transform Tennyson's claim
into an illegal sentence claim. To begin, Weeks
didn't involve a postconviction proceeding pursuant to
Crim. P. 35(a); rather, it came to us on direct appeal from
the judgment of the restitution amount. Weeks,
¶¶ 15-18, 498 P.3d at 150. Therefore, the remedy we
granted there has no bearing on Tennyson's Crim. P. 35(a)
claim.
¶59
Moreover, in Weeks, we could conceive of no
appropriate remedy, other than vacatur or reversal of
restitution, when, on direct appeal, a court determines that,
at sentencing, the trial court entered a subsection (1)(b)
order finding restitution liability and then failed to timely
determine the amount of restitution after sentencing. Simply
remanding a case with instructions for the trial court to
either re-issue the untimely order setting the restitution
amount or issue a subsection (1)(a) order to accomplish the
same thing would leave the deadline in subsection (1)(b)
toothless. Not surprisingly, even before Weeks,
we'd sanctioned the automatic vacatur or reversal of
post-sentencing orders determining the restitution amount
without statutory authority. See Belibi, ¶ 2,
415 P.3d at 302 (affirming the judgment of a division of the
court of appeals vacating the trial court's
post-sentencing order, which had increased the amount of
restitution set
32
at sentencing, even though neither a subsection (1)(b) order
nor a subsection (1)(c) order had entered at sentencing to
reserve the determination of the amount of restitution, and
remanding for reinstatement of the restitution order issued
at sentencing, which was authorized by subsection (1)(a));
Meza, ¶ 2, 415 P.3d at 305 (reversing the
judgment of the trial court increasing the amount of
restitution set at sentencing, even though neither a
subsection (1)(b) order nor a subsection (1)(c) order had
entered at sentencing to reserve the determination of the
amount of restitution, and remanding with instructions to
reinstate the initial restitution order, which was authorized
by subsection (1)(a)).[12]
¶60
Lastly, Tennyson asserts that treating a claim like his as an
illegal manner claim could yield draconian results because a
trial court that enters a subsection (1)(b) order might
determine the amount of restitution more than 126 days (or,
as relevant here, more than 120 days) after sentencing, which
would deprive some defendants of any recourse under Crim. P.
35(a). But the only time this concern is present is in the
rare event that there is no direct appeal from the judgment
of conviction or sentence. See Crim. P. 35(b). Since
Tennyson did not
33
appeal his judgment of conviction or sentence, he had only
120 days after sentencing to bring his illegal manner claim.
¶61
Regardless, Tennyson's argument is somewhat of a red
herring. Because the determination of the restitution amount
in a subsection (1)(b) scenario is its own final judgment, a
defendant is always entitled to timely file a direct appeal
from that judgment, no matter how long the trial
court may have taken to determine the amount of restitution.
Tennyson could have filed such an appeal from the judgment
related to the restitution amount; he did not. Instead, he
waited approximately ten years after his sentence (and over
nine years after the post-sentencing order setting the
restitution amount) to bring his Crim. P. 35(a) claim. That
was too late.
III.
Conclusion
¶62
For the foregoing reasons, we conclude that Tennyson's
Crim. P. 35(a) claim challenging the timeliness of the
district court's post-sentencing determination of the
restitution amount pursuant to subsection (1)(b) is an
illegal manner claim, not an illegal sentence claim. Because
he did not appeal his judgment of conviction or sentence,
Tennyson was required to bring his claim within 120 days
after his sentence was imposed. He failed to do so, and
therefore, his claim is time-barred. The division reached the
same conclusion, so we affirm its judgment. JUSTICE
GABRIEL dissented.
34
GABRIEL, JUSTICE dissenting.
¶63
Just over three years ago, we unanimously concluded in
People v. Weeks, 2021 CO 75, ¶¶ 1-10, 498
P.3d 142, 147-49, that prosecutors had routinely violated the
restitution statute's deadlines by reflexively reserving
restitution and having trial courts determine restitution
beyond the statute's ninety-one-day deadline. Today, in a
series of cases, a majority of this court dramatically
undercuts (if not effectively overrules) that decision by
ensuring that in many, if not most, cases, criminal
defendants affected by the foregoing statutory violations
will have no remedy and that courts and prosecutors will bear
no consequences for their statutory violations, thereby
rendering the deadlines in the restitution statute
meaningless in many cases.
¶64
Here, relying on our opinion in Sanoff v. People,
187 P.3d 576 (Colo. 2008), the majority concludes that the
amount of restitution imposed on a defendant is not part of
the defendant's sentence and, therefore, any challenge to
the amount of restitution is a Crim. P. 35(a) illegal manner
claim, with its short deadline for filing, rather than a
Crim. P. 35(a) illegal sentence claim, which may be filed at
any time. Maj. op. ¶¶ 7, 19, 45, 62.
¶65
In my view, this determination is contrary to well-settled
law, it is internally inconsistent, and it will close the
courthouse door to many, if not most, defendants aggrieved by
violations of the restitution statute.
35
¶66
Accordingly, I respectfully dissent.
I.
Factual Background
¶67
The material facts are not disputed.
¶68
Audrey Lee Tennyson pleaded guilty to two counts of
aggravated robbery, and at the sentencing hearing, which
occurred on June 3, 2008, the trial court sentenced him to
concurrent twenty six year prison terms. At that hearing, the
prosecution requested that restitution be reserved for ninety
days, and the trial court ruled that the prosecution would
have ninety days to determine what restitution is due and
owing. The prosecution did not assert at sentencing that the
restitution information was unavailable to it at that time.
¶69
Thereafter, on August 28, 2008 (eighty-six days after
sentencing), the prosecution submitted a proposed restitution
order. The court signed this order on October 17, 2008 (136
days after sentencing), and on November 5, 2008, the court
signed an amended restitution order correcting a clerical
error. At no time did the court make a finding of good cause
to extend the statutory deadline for determining restitution.
¶70
Tennyson did not file a direct appeal, but approximately ten
years later, he filed a Crim. P. 35(a) motion asserting,
among other things, that the restitution award should be
vacated for violation of the requirements of the restitution
statute, section 18-1.3-603, C.R.S. (2024). The
postconviction court ultimately
36
denied that motion, and the division below affirmed,
concluding that (1) the prosecution's request for
restitution at sentencing was sufficient to constitute a
motion for an order that Tennyson was liable for restitution
and (2) the trial court's order granting the prosecution
ninety days to determine the restitution that was due and
owing was not a reservation of restitution in its entirety
but rather was a finding that Tennyson was liable for
restitution and that only the determination of the amount of
restitution was reserved. People v. Tennyson, 2023
COA 2, ¶¶ 36-37, 528 P.3d 185, 192. The division
did not address Tennyson's contention that the trial
court had failed to determine restitution by the statutory
deadline, concluding that this contention was time-barred
because it did not qualify as an illegal sentence claim under
Crim. P. 35(a). Id. at ¶¶ 33, 38, 528 P.3d
at 191-92. In support of this conclusion, the division
reasoned, "Because the amount of restitution is not a
component of a defendant's sentence, any procedural
deficiency in determining the amount cannot implicate the
legality of the restitution component of the defendant's
sentence." Id. at ¶ 33, 528 P.3d at 191.
¶71 We then granted Tennyson's petition for a writ
of certiorari.
II.
Analysis
¶72
I begin by setting forth the applicable legal principles
underlying our decision in this case. I then explain why I
believe that Tennyson's postconviction motion raised a
timely illegal sentence claim and that Weeks is
dispositive here.
37
Finally,
I explain why I believe the majority's reliance on
Sanoff is incorrect and leads to absurd results.
A.
Applicable Legal Principles
¶73
Crim. P. 35(a) provides, "The court may correct a
sentence that was not authorized by law or that was imposed
without jurisdiction at any time and may correct a sentence
imposed in an illegal manner within the time provided herein
for the reduction of sentence."
¶74
Crim. P. 35(b), in turn, provides, as pertinent here, that a
court may reduce a defendant's sentence provided that a
motion for a sentence reduction is filed within 126 days
after the sentence is imposed or after the entry of any order
or judgment of an appellate court "denying review or
having the effect of upholding a judgment of conviction or
sentence."
¶75
Accordingly, a defendant may file a motion to correct an
illegal sentence claim at any time but must file a motion to
correct a sentence imposed in an illegal manner within 126
days after sentence is imposed (if, as here, the defendant
does not file an appeal) or within 126 days after an
appellate court's judgment denying review or upholding
the judgment of conviction (if the defendant files an
appeal).
¶76
A sentence is not authorized by law and is thus illegal when,
among other things, it is inconsistent with the statutory
scheme outlined by the legislature and when any of the
sentence's components fail to comply with the applicable
38
sentencing statutes. People v. Baker, 2019 CO 97M,
¶ 19, 452 P.3d 759, 762; People v.
Rockwell, 125 P.3d 410, 414 (Colo. 2005); see
also Delgado v. People, 105 P.3d 634, 637 (Colo. 2005)
("[I]t long has been clear that a sentence is illegal
unless all the components of a sentence fully comply with the
sentencing statutes."). We have said that illegal
sentence claims can encompass a wide range of factual
circumstances, including allegations that the court imposed a
prison term longer than that permitted by the applicable
statute and, as pertinent here, "claims that the
restitution imposed was either not permitted or was in the
wrong amount." Hunsaker v. People, 2021 CO 83,
¶ 19, 500 P.3d 1110, 1114.
¶77
A sentence is imposed in an illegal manner, in contrast,
when, among other things, "the trial court ignores
essential procedural rights or statutory considerations in
forming the sentence." People v. Bowerman, 258
P.3d 314, 316 (Colo.App. 2010) (quoting 15 Robert J. Dieter
& Nancy J. Lichtenstein, Colorado Practice
Series, Criminal Practice & Procedure § 21.10
n.10 (2d ed. 2004)).
¶78
Our restitution statute, section 18-1.3-603, provides, in
pertinent part:
(1) Every order of conviction of a felony . . . shall include
consideration of restitution. Each such order shall include
one or more of the following:
(a) An order of a specific amount of restitution be paid by
the defendant;
(b) An order that the defendant is obligated to pay
restitution, but that the specific amount of restitution
shall be determined within the ninety-one days immediately
following the order of conviction, unless good cause is
39
shown for extending the time period by which the
restitution amount shall be determined;
(c) An order, in addition to or in place of a specific amount
of restitution, that the defendant pay restitution covering
the actual costs of specific future treatment of any victim
of the crime; or
(d) Contain a specific finding that no victim of the crime
suffered a pecuniary loss and therefore no order for the
payment of restitution is being entered.
(2)(a) The court shall base its order for restitution upon
information presented to the court by the prosecuting
attorney, who shall compile such information through victim
impact statements or other means to determine the amount of
restitution and the identities of the victims. Further,
the prosecuting attorney shall present this information
to the court prior to the order of conviction or within
ninety-one days, if it is not available prior to the order of
conviction. The court may extend this date if it finds that
there are extenuating circumstances affecting the prosecuting
attorney's ability to determine restitution.
(Emphases added.) (At the time of Tennyson's conviction,
the statutory deadlines were ninety days, see §
18-1.3-603(1)(b), (2), C.R.S. (2008), rather than the current
ninety-one days, but that distinction is immaterial here.)
¶79
We recently construed these provisions in Weeks,
¶¶ 29-40, 498 P.3d at 152-55. There, we first
concluded that section 18-1.3-603(2) controls "the
timeframe within which the prosecution must submit the
proposed amount of restitution." Id. at ¶
31, 498 P.3d at 153. We said that under that subsection, the
prosecution must file the proposed amount of restitution
before the judgment of conviction enters, or, if the
information is not then available, within ninety-one days of
the judgment of conviction. Id. We further noted
that the court may extend
40
this deadline only if it finds "extenuating
circumstances affecting the prosecution's ability to
determine the proposed amount of restitution."
Id.
¶80
We next concluded, based on the statute's plain language,
that the ninety-one-day deadline set forth in section
18-1.3-603(1)(b) refers to the court's deadline to
determine the amount of restitution to be imposed, and we
observed that the court may extend this deadline only for
good cause shown. Weeks, ¶ 39, 498 P.3d at
154-55.
¶81
Finally, we concluded that any findings of extenuating
circumstances to extend the prosecution's deadline for
submitting restitution information and of good cause to
extend the court's deadline to determine the amount of
restitution had to be made expressly and before the deadline
expired. Id. at ¶ 40, 498 P.3d at 155.
¶82
In so concluding, we recognized that our interpretation of
the statute had the potential to lead to undesirable results,
as, for example, allowing a criminal defendant to avoid the
obligation to pay restitution because the trial court did not
comply with the statutory deadline. Id. at ¶
41, 498 P.3d at 155. We, however, affirmed our
"unwavering confidence" in trial courts to comply
with the statutory deadline. Id.
¶83
Applying those principles to the case there before us, where
the trial court had determined the amount of restitution long
after the statutory deadline and
41
without a timely finding of good cause, we concluded that by
the time the trial court had ordered Weeks to pay
restitution, it lacked the authority to do so. Id.
at ¶ 45, 498 P.3d at 157. We therefore affirmed the
court of appeals division's judgment vacating the
restitution award in that case. Id. at ¶ 47,
498 P.3d at 157.
¶84
Having thus set out the governing legal principles, I turn to
the issues now before us.
B.
Illegal Sentence Claim and Weeks
¶85
It appears undisputed that the trial court in this case set
the amount of restitution beyond the statutory deadline and
that it made no finding of good cause to extend that
deadline. The question becomes whether Tennyson's Crim.
P. 35(a) motion should be construed as an illegal sentence
claim, in which case it was timely, or an illegal manner
claim, in which case it was not. I would conclude that
Tennyson's claim was an illegal sentence claim.
¶86
As noted above, our restitution statute, section
18-1.3-603(1), requires sentencing courts to consider
"restitution," and it mandates that sentencing
courts order (1) a specific amount of restitution; (2) that
the defendant is obligated to pay restitution but that the
amount will be determined within ninety-one days following
the order of conviction (unless good cause is shown); (3)
that the defendant pay restitution covering the actual costs
of specific future treatment of
42
a crime victim; or (4) that no victim suffered a pecuniary
loss and thus no order for the payment of restitution would
enter.
¶87
Unlike the majority, Maj. op. ¶¶ 7, 42-43, 45, 50,
I perceive nothing in this provision that makes liability for
restitution part of a defendant's sentence but that
excludes the amount of restitution from that sentence.
Indeed, as noted above, if the restitution information is
known at the time of sentencing, then the sentencing court is
required to enter a specific amount of restitution at that
time. In that scenario, the amount of the restitution is
indisputably part of the defendant's sentence, and I
perceive no rational basis to treat the amount of restitution
differently merely because it happens to be set at a later
time. In my view, the statute makes plain that the amount of
restitution is part of the sentence and judgment of
conviction.
¶88
Case law from the appellate courts in this state is in
accord. Thus, it has long been settled that restitution is
part of a defendant's sentence. See, e.g.,
People v. Perez, 2017 COA 52M, ¶ 5, 413 P.3d
266, 269; People v. Brooks, 250 P.3d 771, 772
(Colo.App. 2010).
¶89
Accordingly, I would conclude that the amount of restitution
is a component of a defendant's sentence. And because
this component of Tennyson's sentence was entered in
violation of the restitution statute, our above-described
case law mandates the conclusion that Tennyson's sentence
was illegal. See Baker,
43
¶ 19, 452 P.3d at 762; Rockwell, 125 P.3d at
414; Delgado, 105 P.3d at 637. Indeed, we recently
said as much in Hunsaker, ¶ 19, 500 P.3d at
1114, when we cited as an example of an illegal sentence a
sentence in which restitution was imposed when it was not
permitted to be imposed.
¶90
For these reasons, I would conclude that Tennyson timely
asserted an illegal sentence claim, and I would further
conclude, consistent with our determination in
Weeks, ¶¶ 45, 47, 498 P.3d at 157, that
Tennyson's sentence was illegal and that the restitution
award against him should therefore be vacated.
¶91
In reaching this conclusion, I recognize that this result may
seem undesirable to some. But as we recognized in
Weeks, ¶ 41, 498 P.3d at 155, this is a
necessary byproduct of enforcing the plain language of the
restitution statute, which we are obligated to do.
C.
Sanoff
¶92
Notwithstanding the foregoing, the majority, relying on
Sanoff, 187 P.3d at 578, concludes that when the
amount of restitution is decided after the statutory deadline
and without a finding of good cause to extend that deadline,
then the amount is not part of the defendant's sentence.
Maj. op. ¶¶ 7, 42-43, 45, 50. From this premise,
the majority opines that a defendant's postconviction
challenge to the untimely setting of the amount of
restitution is an illegal manner claim, and not an illegal
sentence claim, under Crim. P. 35(a). Maj. op. ¶¶
7, 19, 45, 62. The
44
consequence of this determination is that Tennyson, who did
not file a direct appeal, had, under the rule in effect at
the time, Crim. P. 35(b) (2008), 120 days to challenge the
setting of the amount of restitution, even though that would
have required him to challenge the amount before the court
even set it. Maj. op. ¶ 60. And because Tennyson did not
bring his challenge within that timeframe, his postconviction
claim is time-barred. Id. at ¶ 62. I
respectfully disagree with each part of this analysis.
¶93
First, as discussed above, and contrary to the majority's
principal premise, the restitution amount is a
component of a defendant's sentence.
¶94
Second, Sanoff, on which the majority so heavily
relies, is not to the contrary and does not conclude that a
postconviction challenge to a belated determination of the
amount of restitution is an illegal manner claim.
¶95
In Sanoff, 187 P.3d at 577, the defendant was
convicted of theft, and in October 2000, the trial court
entered a judgment of conviction that included a prison
sentence and an order to make restitution. The court,
however, reserved ruling on the specific amount of
restitution, and the amount of restitution ultimately was not
set until January 2003. Id.
¶96
In the interim, in October 2000, the defendant timely
appealed her conviction and sentence. Id. A division
of the court of appeals affirmed, and we denied certiorari.
Id. Accordingly, the proceedings in the district
court to
45
determine the amount of restitution occurred while the
defendant's direct appeal of her conviction and sentence
were pending. Id.
¶97
After the trial court set the amount of restitution, the
defendant appealed again, this time challenging the order
setting the amount of restitution. Id. As pertinent
here, the division concluded that the trial court was not
deprived of jurisdiction by the defendant's earlier
filing of a notice of appeal, reasoning that the earlier
notice was premature because the defendant's judgment of
conviction had not become a final, appealable order until the
amount of restitution had been set. Id.
¶98
We ultimately concluded that the defendant's first notice
of appeal did not divest the trial court of jurisdiction to
set the restitution amount. Id. at 578. In reaching
this conclusion, we observed that the restitution statute
allows a sentencing court to order a defendant to pay
restitution while postponing the determination of the
specific amount thereof. Id. We then observed that
the statute "distinguishes an order assigning liability
for restitution from a determination of the amount of
restitution for which the defendant is liable," and this
undermined the continuing validity of a prior precedent that
had concluded that the amount of restitution must be part of
the judgment of conviction. Id. Instead, we read the
statute as reflecting the legislature's intent to clarify
that the amount of the defendant's liability is no longer
a required component of a final
46
judgment of conviction. Id. Thus, we concluded that
a subsequent determination of the amount of restitution owed
by a defendant has been severed from the meaning of the term
"'sentence,' as contemplated by Crim. P.
32," the rule concerning criminal sentences and
judgments. Id. (emphasis added).
Accordingly,
the trial court was not divested of jurisdiction to proceed
to set the amount of restitution by an ongoing appeal, and
the order setting the amount of restitution constituted a
"separate, final judgment" that itself was an
appealable order. Id.
¶99
For a number of reasons, I do not believe that
Sanoff applies here.
¶100
First, Sanoff made clear that the language,
"severed from the meaning of the term
'sentence,'" on which the majority so heavily
relies, Maj. op. ¶¶ 43, 50, was limited to its
context, namely, the finality of a judgment for purposes of
an appeal, Sanoff, 187 P.3d at 578. Thus, we
concluded that finality of the judgment of the
defendant's conviction, including her sentence and the
order finding her obligated to make restitution, was
unaffected by the later judgment setting the amount of
restitution, and the appeal of the first judgment did not
divest the court of jurisdiction to decide the amount of
restitution due and owing. Id.
¶101
Second, notwithstanding the above-quoted language in
Sanoff severing the determination of the amount of
restitution from the sentence for purposes of finality of
the initial judgment under Crim. P. 32, I perceive
nothing in Sanoff determining
47
that the amount of restitution is not a component of a
defendant's sentence. Rather, as noted above,
Sanoff spoke of two judgments, id., and as
I read that case, both judgments are part of the
defendant's sentence. The fact that the amount of
restitution was set later, however, did not alter the fact
that the initial judgment was final for purposes of appeal.
¶102
Third, nothing in Sanoff addresses the question now
before us, namely, whether a postconviction challenge to an
untimely order setting the amount of restitution is a
challenge to the legality of the sentence or simply a
challenge to the manner in which the sentence was determined.
Sanoff does not address that issue at all, and I am
not persuaded that our reasoning in a wholly different
factual and procedural context applies in this case.
¶103
Fourth, the majority's reading of Sanoff is
internally inconsistent. On the one hand, the majority
concludes that the order setting the amount of restitution is
not part of Tennyson's sentence. Maj. op. ¶¶ 7,
42-43, 45, 50. On the other hand, the majority says that
Tennyson's challenge amounts to an illegal manner claim.
Id. at ¶¶ 7, 19, 45, 62. As noted above,
however, Crim. P. 35(a) allows a court to correct "a
sentence imposed in an illegal manner." (Emphasis
added.) Accordingly, it is inconsistent to say both that the
order setting the amount of restitution is not part of
Tennyson's sentence and that Tennyson's challenge to
that
48
order is a challenge to the manner in which his sentence was
determined. The order is either part of his sentence or it is
not.
¶104
Fifth, the majority's conclusion leads to absurd results.
For example, under the majority's view, if the amount of
restitution is set at the time of sentencing, then it is part
of the defendant's sentence. Maj. op. ¶ 44. If,
however, it is determined later, then it is not. Id.
at ¶¶ 7, 42-43, 45, 50. The majority does not
persuasively explain why the amount of restitution is part of
a defendant's sentence if it is determined at the time of
sentencing but not part of a defendant's sentence if it
is set later, and I am aware of no authority supporting the
proposition that the nature of a component of a criminal
sentence changes depending on when that component is
determined.
¶105
In addition, if the majority is correct that a postconviction
challenge to an untimely determination of the amount of
restitution is an illegal manner claim that must be brought
within 126 days of sentencing (if no appeal is filed) or
within 126 days after entry of an appellate judgment (if the
defendant files an appeal), then in many cases-like this
one-the defendant's claim will be time-barred even before
the trial court determines the amount of restitution. In my
view, it would be absurd to require a defendant to challenge
an action that has not yet occurred. Nor is it a sufficient
answer to say that the defendant simply could have filed a
direct appeal. Id. at ¶ 61. Our criminal
procedure rules allow defendants to bring
49
illegal sentence and illegal manner claims even when they do
not appeal. Crim. P. 35(a). I perceive no basis for
concluding that defendants lose that right if they do not
appeal and subsequent events suggest that it would perhaps
have been better had they done so.
¶106
The upshot of the majority's opinion today is that many
defendants will be deprived of their day in court, and courts
and prosecutors that violate the plain language of the
restitution statute will face no consequences for their
actions, rendering the statutory language meaningless in a
large number of cases.
¶107
To me, such a result is contrary to basic principles of
access to justice and of the rule of law. Accordingly, I
respectfully cannot subscribe to such a result.
III.
Conclusion
¶108
For these reasons, I would conclude that Tennyson brought a
timely illegal sentence claim and that under Weeks,
he was entitled to relief from the illegally imposed
restitution award. As a result, I would reverse the judgment
of the division below and remand this case with instructions
to return the case to the trial court to vacate the illegal
restitution order.
¶109
Accordingly, I respectfully dissent.
---------
Notes:
[1] The one exception, which has no
relevance here, is a sentence imposed following a
"conviction for a state traffic misdemeanor offense
issued by a municipal or county court in which the
prosecuting attorney is acting as a special deputy district
attorney pursuant to an agreement with the district
attorney's office." § 18-1.3-603(1), C.R.S.
(2024). For the sake of convenience, we omit any mention of
this anomalous exception when discussing Colorado law on
restitution in this opinion.
[2] We refer to a "sentencing
hearing" or "sentencing" when describing a
hearing during which the sentence is imposed and the judgment
of conviction enters.
[3] The legislature amended subsection
(1)(b) in 2012 to change ninety days to ninety-one days. Ch.
208, sec. 112, § 18-1.3-603(1)(b), 2012 Colo. Sess. Laws
822, 866-67.
[4] Rule 35 was amended after Tennyson was
sentenced in 2008. Where, as here, no direct appeal is filed,
the deadline to bring an illegal manner claim is now 126 days
(instead of 120 days) after the sentence is imposed. This
difference is immaterial in this appeal.
[5] The prosecution doesn't raise the
issue of waiver with respect to any claim related to the
subsection (1)(b) deadline. Accordingly, we do not reach it.
We "decide cases on the grounds raised and considered in
the [intermediate appellate court] and included in the
question on which we granted certiorari." Bragdon v.
Abbott, 524 U.S. 624, 638 (1998).
[6] The original proposed order and the
amended proposed order included the same restitution amount
as to each individual victim; the amended proposed order
simply corrected a miscalculation of the sum total of those
amounts.
[7] When we refer to restitution
"liability," we mean a general obligation to pay
restitution without a determination yet of the amount of
restitution. And when we refer to the "amount of
restitution" or the "restitution amount," we
mean the final amount of restitution.
[8] The quoted language related to
restitution was added to Crim. P. 32(b)(3)(I) in 2015 (after
Tennyson's sentence was imposed in 2008). But the
legislature's amendments in section 18-1.3-603 became
effective in 2000, before Tennyson's sentencing
hearing.
[9] In at least one part of its opinion,
the division correctly confined its holding as
follows:
"[I]n circumstances where the district court
ordered at . . . sentencing that the defendant was liable to
pay restitution and then later determined the restitution
amount under [subsection (1)(b)], a defendant's
postconviction challenge to the restitution amount is
cognizable as a challenge to the manner in which the
sentence was imposed under Rule 35(a)."
Tennyson, ¶ 2, 528 P.3d at 187. But the
division also more broadly implied that the amount of
restitution is never a component of a defendant's
sentence. Id. ("[T]he amount of
restitution is not a part of a defendant's
sentence."). In fairness, our opinion in Sanoff
contained similarly imprecise language. 187 P.3d at 578
("In fact, . . . the General Assembly has made clear its
intent that the amount of the defendant's liability no
longer be a required component of a final judgment of
conviction."). We corrected course in Meza,
however, where we stated that, in the context of a subsection
(1)(a) order, the amount of restitution is a
component of a defendant's sentence and judgment of
conviction. ¶ 16, 415 P.3d at 308-09.
[10]We recognize that, among the examples
of illegal sentence claims we offered in Hunsaker,
we included "claims that the restitution imposed . . .
was in the wrong amount." ¶ 19, 500 P.3d
at 1114 (emphasis added). But restitution was not at issue
there, and we didn't specify which of the four
statutorily enumerated orders we were referencing. As we
explained above, a Crim. P. 35(a) claim challenging the
amount of restitution in a subsection (1)(a) order is,
indeed, an illegal sentence claim.
[11]Although we were not asked to decide
in Weeks which of the four statutorily enumerated
restitution orders, if any, the trial court had entered at
sentencing, it is clear from our opinion and the
division's opinion that a subsection (1)(b) order was
implicated. See Snow v. People, 2025 CO 32, ¶
28, __ P.3d __.
[12]Had Tennyson timely filed his Crim.
P. 35(a) illegal manner claim, he would have been entitled to
vacatur of the post-sentencing order setting the restitution
amount, and that, in turn, would have required the district
court to amend his mittimus to reflect that no restitution
was required. See § 18-1.3-603(1)(d);
Weeks, ¶ 10, 498 P.3d at 149.
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