Peo v. Denny

Opinion

24CA1754 Peo v Denny 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1754 Adams County District Court No. 03CR429 Honorable Jeffrey Smith Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Lucky Denny,

Defendant-Appellant.

ORDER AFFIRMED

Division VII Opinion by JUDGE MOULTRIE Tow and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Daniel Lucky Denny, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Daniel Lucky Denny, appeals the postconviction

court’s order denying his motion for postconviction relief. We

affirm.

I. Background

¶2 According to the affidavit in support of a warrantless arrest

(arrest affidavit), a police officer found a white Chevy Blazer, which

had earlier been reported as stolen, abandoned on the side of the

road. The officer asked a passerby if they saw anyone leaving the

area, and the passerby reported that a “young male had just gotten

a ride in a silver car.” The silver car was eventually located and

stopped, and a passenger in the vehicle fled. The passenger — later

identified as Denny — was pursued and apprehended. Denny made

a few attempts to escape immediately after he was apprehended and

before he was transported to jail.

¶3 The State charged Denny with first degree aggravated motor

vehicle theft, possession of a schedule II controlled substance, and

attempted escape. Denny ultimately pleaded guilty to attempted

first degree aggravated motor vehicle theft in exchange for the

dismissal of the original charges. The parties agreed, and the court

1 found, that the arrest affidavit was sufficient to establish a factual

basis for Denny’s guilty plea.

¶4 At the 2003 sentencing hearing, defense counsel

acknowledged that the owner of the stolen Blazer “want[ed]

restitution ordered for the damages to his car.” And the prosecutor

asked the court to order Denny to pay $5,591 in restitution to the

vehicle’s owner and submitted documentation to establish the cost

of the damage to the Blazer. The district court sentenced Denny to

three years in prison and ordered him, without objection, to pay the

requested restitution amount to the victim. Later, the court granted

Denny’s Crim. P. 35(b) motion for a reduction of sentence and

resentenced him to thirty months in the custody of the Colorado

Department of Corrections.

¶5 In 2015, Denny filed a “Motion to Suspend Restitution,” in

which he acknowledged the restitution order in this case and

argued that, while he was incarcerated, he would be unable to pay

it. The court denied the motion.

¶6 In 2019, Denny filed a Crim. P. 35(c) motion, in which he

challenged the validity of his guilty plea, his sentence, and the

restitution order because (1) the plea agreement did not provide for

2 restitution; (2) neither plea counsel nor the providency court

advised him that, upon pleading guilty, he would be subject to the

possibility of being ordered to pay restitution; and (3) the

sentencing court entered the restitution order without holding a

hearing on the prosecution’s restitution request and without

making an independent determination that the prosecution had

proved that his criminal conduct proximately caused the victim’s

losses. Denny acknowledged that he became aware of the

restitution issue at the sentencing hearing. The postconviction

court denied the motion as untimely filed.

¶7 In 2024, Denny filed the underlying Crim. P. 35(a) motion to

correct an illegal sentence, in which he asserted that the restitution

component of his sentence must be vacated because the victim’s

losses were caused by uncharged conduct and the court lacked the

authority to impose restitution for losses that were not proximately

caused by conduct that formed the basis of his conviction. He

asserted that the prosecution did not allege, and he did not admit,

that he damaged the vehicle. He also asserted that the plea

agreement did not address the issue of restitution. The court

3 denied the motion, finding that it was not cognizable under Crim. P.

35(a).

II. Legal Authority and Standard of Review

¶8 Every order of conviction must include one of the four types of

restitution orders set forth in section 18-1.3-603(1)(a) through (d),

C.R.S. 2025. People v. Weeks, 2021 CO 75, ¶ 3. As relevant here,

“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.” Tennyson v. People,

2025 CO 31, ¶ 40.

¶9 Restitution includes, among other things, any pecuniary loss

suffered by a victim that was proximately caused by the offender’s

conduct. § 18-1.3-602(3)(a), C.R.S. 2025. Proximate cause is any

cause that in natural and probable sequence produced the claimed

injury. Martinez v. People, 2024 CO 6M, ¶ 13. We won’t disturb the

district court’s determination of proximate causation unless it is

clearly erroneous. Id. at ¶ 32.

¶ 10 Generally, a court cannot order a defendant “to pay restitution

for pecuniary loss beyond that proximately caused by the conduct

essential to the charges to which [the defendant] pleads guilty.”

4 People v. Roddy, 2021 CO 74, ¶ 32; see also People v. Moss, 2022

COA 92, ¶ 13 (“A defendant may not be ordered to pay

restitution . . . for losses that did not stem from the conduct that

was the basis of their conviction.”). But the prosecution and the

defendant may reach an agreement as part of a plea deal that

extends the scope of the restitution order to include pecuniary

losses for uncharged conduct or for conduct exclusively related to

dismissed counts. See § 18-1.3-603(11); Roddy, ¶¶ 5, 28-29; People

v. Sosa, 2019 COA 182, ¶ 29.

¶ 11 Crim. P. 35(a) permits a court to correct an illegal sentence or

a sentence that was imposed in an illegal manner. Tennyson, ¶ 24.

¶ 12 “[A]n illegal sentence includes a sentence that is not

authorized by law because it fails to comply in full with statutory

requirements.” Id. at ¶ 25; see also People v. Jenkins, 2013 COA

76, ¶ 11 (An illegal sentence is one that “is inconsistent with the

sentencing scheme established by the legislature.”). A court may

correct an illegal sentence at any time. Crim. P. 35(a).

¶ 13 Alternatively, “[a] sentence is imposed in an illegal manner

‘when the trial court ignores essential procedural rights or statutory

considerations in forming the sentence.’” Tennyson, ¶ 29 (quoting

5 15 Robert J. Dieter & Nancy J. Lichtenstein, Colorado Practice

Series, Criminal Practice and Procedure, § 21.10 n.10 (2d ed. 2004)).

At the time Denny was sentenced, a court could correct a sentence

imposed in an illegal manner within 120 days from, as relevant

here, the imposition of sentence. Crim. P. 35(a), (b) (2002).

III. Analysis

¶ 14 When the postconviction court entered its order denying

Denny’s motion, a postconviction challenge to the restitution order

would have been cognizable under Crim. P. 35(a), but it was unclear

whether the challenge would constitute an illegal sentence or illegal

manner claim. See People v. Bowerman, 258 P.3d 314, 315-17

(Colo. App. 2010). Since then, the supreme court held that “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.” Tennyson, ¶ 44. Consequently, Denny’s challenge

to his restitution order is cognizable as a Crim. P. 35(a) illegal

sentence claim, which can be asserted at any time.

¶ 15 Although the postconviction court erred by finding that

Denny’s motion was not cognizable under Crim. P. 35(a), we

nevertheless affirm the order because we are not persuaded that the

6 restitution component of Denny’s sentence is illegal. See Whiteaker

v. People, 2024 CO 25, ¶¶ 27-28 (courts have the power and the

duty to correct an illegal sentence); People v. Wiseman, 2017 COA

49M, ¶ 21 (an illegal sentence can be addressed for the first time on

appeal); see also Magana v. People, 2022 CO 25, ¶ 33 (we review de

novo the legality of a sentence). Specifically, the record supports

the sentencing court’s implicit finding of proximate causation

between the victim’s losses and the conduct that formed the basis

of Denny’s conviction.

¶ 16 The Sheriff’s Office’s Court Information Sheet, which was filed

along with the arrest affidavit, named Denny as the sole offender in

the underlying incident, indicated that he was arrested for

aggravated motor vehicle theft, and documented that the Blazer had

sustained “transmission damage.” Further, the presentence

investigation report — which Denny, through his counsel,

confirmed was accurate — contained (1) the passerby’s

identification of Denny as the driver of the stolen Blazer that “had

been tailgating him . . . before speeding past him,” (2) Denny’s

admission that he was driving the stolen vehicle at the relevant time

and that he abandoned the car when “[t]he Blazer got stuck,” and

7 (3) the victim’s representation that the Blazer had incurred

$5,591.18 in damages. Finally, in a letter Denny submitted to the

court in anticipation of sentencing, he admitted that he was driving

the stolen Blazer at the relevant time and that, after fleeing from the

vehicle’s owner, he “got the car stuck trying to turn it around.”

¶ 17 In light of this record, we cannot say that the district court

clearly erred in its implicit finding that the victim’s losses stemmed

from conduct that formed the basis of Denny’s conviction. See

Martinez, ¶¶ 43-44 (the court did not err in its finding of proximate

causation because the defendant was involved in events that led to

the collision that caused the damage to the victim’s property);

People v. Lockett, 2025 COA 1, ¶ 36 (“[T]he court didn’t err by

ordering [the defendant] to pay restitution to the vehicle owners

because their losses were proximately caused by conduct essential

to [the defendant’s conviction].”); cf. Moss, ¶¶ 5, 14-20 (the court

erred in its finding of proximate causation because no evidence was

presented to establish that the claimed damage to the victim’s

vehicle occurred while it was in the defendant’s unlawful

possession).

8 ¶ 18 Lastly, Denny does not provide any authority to support his

assertion that the restitution order is illegal because of the absence

of (1) an allegation of damage in the criminal complaint, (2) a

provision in the plea agreement addressing restitution, (3) an

advisement that he would be subject to restitution, or (4) an

admission that he caused the damage. See Martinez, ¶ 13 (“A

defendant convicted of a felony offense must pay restitution for any

pecuniary loss [they] proximately caused [their] victim.”); Moss, ¶ 18

(rejecting the defendant’s argument that, “because she did not

specifically plead guilty to — and was not charged with — damaging

the vehicle, she cannot be held responsible for that damage” and,

instead, holding that, “while restitution need not be tied to a

specific element of the crime, it must be tied to unlawful conduct

for which a defendant was convicted”); People v. Martinez-Chavez,

2020 COA 39, ¶ 14 (“In a restitution proceeding, the prosecution

bears the burden of proving by a preponderance of the evidence . . .

that the victim’s losses were proximately caused by the defendant’s

criminal conduct.”).

¶ 19 Denny also argues that the above omissions implicated the

validity of his guilty plea. However, that claim is cognizable under

9 Crim. P. 35(c). People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005).

Accordingly, it must be denied as untimely and successive.

§ 16-5-402(1), C.R.S. 2025 (a defendant must file a Crim. P. 35(c)

motion within three years of their conviction for an offense other

than a class 1 felony); Crim. P. 35(c)(3)(VI), (VII) (a trial court is

required to deny a Crim. P. 35(c) claim that was, or could have

been, raised and resolved in a prior appeal or postconviction

proceeding on behalf of the same defendant).

IV. Disposition

¶ 20 The order is affirmed.

JUDGE TOW and JUDGE BERGER concur.