22CA2136 Peo v Huntley 05-01-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2136 Douglas County District Court No. 14CR595 Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Thomas Andrew Huntley,
Defendant-Appellant.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE KUHN Welling, J., concurs Schutz, J., dissents
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 1, 2025
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Thomas Andrew Huntley, appeals the
postconviction court’s order denying his Crim. P. 35(a) motion to
vacate the restitution order entered against him. We affirm the
order and remand for correction of the mittimus.
I. Background
¶2 In 2013, Huntley drove drunk and crashed into another car,
injuring the couple inside and leaving one of them with severe brain
damage. Because Huntley was seventeen years old at the time of
the incident, the prosecution filed a petition in delinquency in
Douglas County Case No. 13JD386.1 The prosecution alleged that
Huntley committed acts that, if committed by an adult, would
constitute criminal offenses, including vehicular assault and driving
under the influence (DUI). Roughly nine months later, the case was
transferred to district court, and the prosecution charged Huntley
with additional counts as an adult.
¶3 The parties resolved the case through a plea arrangement.
Huntley pleaded guilty to one count each of vehicular assault and
1 We take judicial notice of the contents of court records in this
related juvenile delinquency case. See People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004).
1 DUI per se in exchange for the dismissal of all other charges along
with an unrelated juvenile delinquency case, Douglas County Case
No. 13JD282. As part of his guilty plea, Huntley executed a Crim.
P. 11 advisement, which included the following provision regarding
restitution: “I understand that the Court will determine the
restitution I must pay, if any. The District Attorney’s Office may
submit a request for restitution within [ninety] days of sentencing.
If I object to the restitution, a hearing shall be set by the Court.”
The parties also addressed restitution in a document entitled “Plea
Agreement of the Parties.” The section of that agreement labeled
“Sentence Agreement” provided, next to the line for restitution, that
it was “reserved in this case” and that “[Huntley] admits liability.”
¶4 On October 2, 2014, the court approved the plea agreement
after confirming that Huntley understood its terms. The district
court then proceeded to immediate sentencing. It imposed
concurrent sentences of six years of probation for the vehicular
assault with ninety days in jail and one year in jail for the DUI per
se.
¶5 As for restitution, the district court said that it would
2 reserve restitution for a period of [ninety-one] days. That is, [the prosecution would] have [ninety-one] days to submit a request for restitution. If one is submitted, the defense would have [fourteen] days to file an objection. If an objection is filed, the Court will then direct the matter be set for hearing. If no objection is filed, the Court will simply issue the order for restitution.
¶6 On December 19, seventy-seven days after Huntley’s
sentencing, the prosecutor submitted a request for $28,518.03 in
restitution. This figure consisted of $16,843 that the Crime Victim
Compensation Board had paid for the victims’ medical expenses
and $11,675.03 in other expenses that the family had incurred
related to the crash. Huntley didn’t object or otherwise respond to
the request within the fourteen-day deadline the district court had
set at sentencing. Accordingly, on January 28, 2015 (118 days
after sentencing), the court ordered Huntley to pay the requested
amounts. Huntley didn’t directly appeal his judgment of conviction
or the January 2015 order fixing the amount of restitution.
¶7 In April 2019, Huntley pleaded guilty to violating the terms of
his probation. Consequently, the district court revoked Huntley’s
probation and sentenced him to five years in the custody of the
Department of Corrections (DOC). A division of this court affirmed
3 the sentence but directed the district court to determine on remand
the amount of presentence confinement credit (PSCC) to which
Huntley was entitled. People v. Huntley, (Colo. App. No. 19CA1119,
July 29, 2021) (not published pursuant to C.A.R. 35(e)) (Huntley I).
¶8 The mandate in Huntley I issued on December 22, 2021, and
125 days later, Huntley filed a motion for postconviction relief
under Crim. P. 35(a), asserting that the restitution order the district
court entered in connection with his 2014 judgment of conviction
must be vacated because the court imposed the restitution
obligation in violation of section 18-1.3-603, C.R.S. 2024. The
postconviction court denied Huntley’s motion, reasoning that any
infirmities in the original restitution order were rectified in the
subsequent probation revocation proceeding when the district court
properly ordered him to pay restitution.
II. Analysis
¶9 On appeal, Huntley contends that the postconviction court
erred when it denied his motion challenging the original restitution
order. Specifically, he argues that the order must be vacated
because (1) the prosecutor didn’t move for restitution and the
district court “reserved” the issue of restitution in its entirety at the
4 2014 sentencing hearing; (2) the prosecutor failed to present
available restitution information before or at the hearing; and
(3) the district court fixed the amount of restitution after the
statutory ninety-one-day deadline had already expired.
¶ 10 We disagree with Huntley’s first argument and conclude that
the other two are properly construed as illegal manner claims. And
because he brought those claims roughly seven and a half years
after his 2014 judgment of conviction, we further conclude that
they are time barred.
A. Applicable Law and Standard of Review
¶ 11 Crim. P. 35(a) provides that a 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 [in the rule] for the
reduction of sentence.” A sentence is “not authorized by law” if any
of its components fail to comply with the sentencing statutes,
People v. Baker, 2019 CO 97M, ¶ 19, and it is “imposed without
jurisdiction” if it was “otherwise imposed in excess of the court’s
subject matter jurisdiction,” People v. Bowerman, 258 P.3d 314,
316 (Colo. App. 2010) (quoting People v. Wenzinger, 155 P.3d 415,
5 418 (Colo. App. 2006)). In contrast, a sentence is “imposed in an
illegal manner ‘when the trial court ignores essential procedural
rights or statutory considerations in forming the sentence.’” Id.
(quoting 15 Robert J. Dieter & Nancy J. Lichtenstein, Colorado
Practice Series, Criminal Practice and Procedure § 21.10 n.10 (2d ed.
2004)).
¶ 12 A court may correct a sentence not authorized by law or
imposed without jurisdiction at any time. Crim. P. 35(a). But a
claim that the sentence was imposed in an illegal manner may only
be corrected within 126 days after, as relevant here, (1) the
imposition of the defendant’s sentence or (2) the issuance of the
appellate mandate. Crim. P. 35(a)-(b). Thus, an illegal manner
claim is time barred if not brought within this timeframe. See
People v. Collier, 151 P.3d 668, 673 (Colo. App. 2006) (noting that a
defendant’s illegal manner claim was time barred because it wasn’t
asserted within the then-governing 120-day deadline).
¶ 13 The legality of a sentence is a question of law that we review de
novo. People v. Bassford, 2014 COA 15, ¶ 20. Likewise, we review
de novo questions of statutory interpretation. People v. Weeks,
2021 CO 75, ¶ 24.
6 B. The Restitution Statute
¶ 14 Colorado’s restitution statute imposes set deadlines on the
district court and the prosecution to complete certain tasks.
§ 18-1.3-603. It provides that every judgment of conviction must
“include consideration of restitution,” meaning it must include
(1) an order fixing a specific amount of restitution; (2) an order that
the defendant is obligated to pay restitution but reserving the
question of how much restitution is due for up to ninety-one days;
(3) an order fixing restitution and requiring the defendant to pay
certain future costs; or (4) a specific finding that no victim of the
crime suffered a financial loss and thus no restitution is assessed.
§ 18-1.3-603(1)(a)-(d); Weeks, ¶ 29.
¶ 15 Accordingly, an order entered under section
18-1.3-603(1)(b) — reserving the question of how much restitution
is due — requires the judgment of conviction to assign liability for
restitution, even though the amount is determined later. See Sanoff
v. People, 187 P.3d 576, 578 (Colo. 2008). But a district court must
still determine the amount of restitution owed within ninety-one
days after the judgment of conviction enters unless, before the
deadline expires, the court finds good cause for extending the
7 deadline. Weeks, ¶¶ 4-5, 39. Absent an express and timely good
cause finding, a district court lacks authority to enter an order
fixing the amount of restitution once the statutory deadline has
expired. Id. at ¶ 45.
¶ 16 The statute also imposes obligations on the prosecution.
Specifically, section 18-1.3-603(2) requires the prosecutor to
(1) move for restitution before or during the sentencing hearing and
(2) present to the court the information in support of the motion
before the court enters the judgment of conviction, if the
information is then available. Weeks, ¶¶ 30-31. To satisfy the
latter obligation, the prosecutor must exercise due diligence to
obtain and timely present to the court the information about the
proposed restitution amount and the identities of the victims. See
id. at ¶¶ 6 n.3, 30-31; People v. Brassill, 2024 COA 19, ¶ 45. If the
information is not available at the time of the sentencing hearing,
the prosecutor may submit it within ninety-one days of the
judgment of conviction unless the district court expressly finds that
extenuating circumstances exist that support an extension of that
deadline. Id. at ¶ 31.
8 C. The District Court Didn’t Reserve the Issue of Restitution at Sentencing
¶ 17 Huntley contends that the prosecutor failed to “actually move”
for restitution before or during the 2014 sentencing hearing. He
argues that the prosecutor only asked, and the district court
ordered, that the entire issue of restitution be reserved for up to
ninety-one days. And because the court failed to enter a timely
order requiring him to pay restitution, Huntley posits, the court
lacked authority when it later fixed the amount of that obligation.
We’re not persuaded.
¶ 18 Section 18-1.3-603(2) doesn’t allow the prosecution “to ask
that the issue of restitution (not just the amount of restitution)
‘remain open’ for any period of time after the judgment of conviction
enters.” Weeks, ¶ 30. Similarly, while the statute “allows the court
to shelve the determination of the amount of restitution after
entering a preliminary order requiring restitution,” it doesn’t permit
the court to address the issue of restitution “by entering an order
deferring that issue in its entirety.” Id. Put differently, a district
court must at least enter a preliminary order about whether the
defendant is liable for restitution. Sanoff, 187 P.3d at 578.
9 ¶ 19 In arguing that the district court here failed to enter such an
order, Huntley argues that the prosecutor merely asked the court to
reserve the issue of restitution in its entirety. By doing so, he
contends, the prosecutor failed to timely move for restitution, which
would have allowed the court to enter an order requiring Huntley to
pay restitution but postponing a determination of the amount owed
for up to ninety-one days. See Weeks, ¶ 30 (noting that a court
may enter an order under section 18-1.3-603(1)(b) only after the
prosecution has made a motion for restitution). In support of this
argument, Huntley points out that the prosecutor asked the court
during the sentencing hearing “that restitution be reserved on both
this case and 13JD282.”
¶ 20 But the record shows that by the time of the hearing, Huntley
had already agreed that he was liable to pay restitution, leaving
only the amount of that obligation for the district court to
determine. As we note above, Huntley admitted liability for
restitution in his plea agreement. And the district court accepted
the plea agreement after finding that Huntley understood its terms
and that his plea was knowing, intelligent, and entered without
undue influence or coercion.
10 ¶ 21 True, the prosecutor told the court that she was “asking that
restitution be reserved.” But in context, we don’t view that
statement as reserving the entire issue of restitution. To the
contrary, the next thing she said was that Huntley “is admitting
liability for that restitution.”
¶ 22 Moreover, the record also shows that Huntley used his
forthcoming restitution obligation to advocate for a probationary
sentence, which the district court eventually imposed. Specifically,
later in the hearing, his counsel argued that such a sentence was
appropriate in part because “there [was] a huge bill that [was] going
to be paid at the end of this case that [Huntley] owes to the victim
and his family, and the only way [that was] going to get paid back
[was] through [Huntley] working and paying them back.”
¶ 23 It’s also true that the district court later said that it was
“reserv[ing] restitution for a period of [ninety-one] days,” without
specifying that it was only reserving the amount of Huntley’s
restitution obligation. And the mittimus the court issued after
sentencing simply noted “restitution reserved.”
¶ 24 But the court also gave the prosecutor ninety-one days to
submit her restitution request. This is important for two reasons.
11 First, it would have made little sense for the court to require a
motion seeking an order for assignment of liability given that
Huntley had just submitted a plea agreement admitting liability, the
prosecutor had brought that admission to the court’s attention, and
his counsel had referred to the amount he owed the family.
Second, we note that the ninety-one-day deadline the court referred
to only appears in subsection (1)(b) of section 18-1.3-603, which
applies only when the court has assigned liability but defers
determination of the amount of restitution. And the court’s ruling
included no language suggesting that it was entering any of the
three other orders allowed under the statute. See Weeks, ¶ 7 n.4
(When making express findings of extenuating circumstances to
extend the prosecution’s deadline and express findings of good
cause to extend the court’s deadline, “talismanic incantations”
aren’t necessary, and “substance controls over form.”).
¶ 25 To be sure, the better practice would have been for the district
court to explicitly state that Huntley was liable for restitution and
that the court was only reserving the question of how much
restitution he must pay. But we also recognize that the court didn’t
have the benefit of Weeks, which drew clearer lines around the
12 procedures a district court must follow when entering a restitution
order under section 18-1.3-603(1)(b).
¶ 26 In any event, after considering the district court’s ruling in
light of the whole record, we conclude that the court accepted
Huntley’s admission of liability to pay restitution and deferred only
determination of the specific amount he owed for ninety-one days.
See Sanoff, 187 P.3d at 578. Huntley’s argument that his 2014
sentence is illegal because the district court reserved the issue of
restitution in its entirety therefore fails.
D. Huntley’s Remaining Challenges to the Restitution Order Are Properly Construed as Illegal Manner Claims
¶ 27 Huntley also contends that the restitution order must be
vacated because (1) the prosecutor failed to submit the information
in support of her restitution request before or at sentencing, even
though that information was already available or could easily have
been obtained had the prosecutor exercised due diligence; and
(2) the district court determined the amount of restitution 118 days
after Huntley’s sentencing without extending the statutory deadline
for good cause in advance of its expiration. See Weeks, ¶¶ 4-5,
30-31, 39.
13 ¶ 28 Huntley argued in the postconviction court — and does so on
appeal — that because these infirmities rendered his sentence
illegal, he was entitled to postconviction relief under Crim. P. 35(a),
and that his motion could be brought at any time. But in
determining the nature of postconviction relief sought, we look at
the substance of the claim made, not the way it’s designated in the
motion. See People v. Knoeppchen, 2019 COA 34, ¶¶ 7, 27
(considering the substance of the defendant’s postconviction
challenge to the restitution order to conclude that his challenge was
cognizable as an illegal manner claim), overruled on other grounds
by Weeks, ¶ 47 n.16. Accordingly, we must determine whether
Huntley’s challenges to the timeliness of the prosecution’s request
for a specific amount of restitution and the district court’s
determination of that amount constitute illegal sentence claims or
illegal manner claims.
¶ 29 In arguing that his challenges are illegal sentence claims that
may be raised at any time, Huntley relies on Weeks and contends
that “where either the prosecution or the court fails to abide by the
deadlines in the restitution statute, any subsequent restitution is
entered without authority and must be vacated.” Specifically, he
14 directs us to the supreme court’s statement that a district court
“lack[s] authority” to order restitution more than ninety-one days
after the judgment of conviction enters absent an express good
cause finding to extend the deadline. Weeks, ¶ 45.
¶ 30 The People agree with that proposition to the extent that the
court determined the amount of restitution outside the
ninety-one-day deadline without making a finding of good cause.
But they argue that these claims are only cognizable as illegal
manner claims. We agree and conclude that Huntley’s claims are
properly construed as illegal manner claims.
¶ 31 Huntley’s challenges don’t pertain to a component of his
sentence. While Crim. P. 32(b)(1) provides that a district court
“shall consider restitution” when imposing sentence, the Colorado
Supreme Court has observed that section 18-1.3-603(1)(b) “clearly
distinguishes an order assigning liability for restitution from a
determination of the amount of restitution for which the defendant
is liable.” Sanoff, 187 P.3d at 578. By requiring that a judgment of
conviction need only include a determination of whether the
defendant is liable for restitution, the Sanoff court stated, “the
General Assembly has made clear its intent that the amount of the
15 defendant’s liability no longer be a required component of a final
judgment of conviction.” Id. Accordingly, the court said, when a
district court orders a defendant liable to pay restitution, the
restitution component of the defendant’s sentence is satisfied and
the sentence, and therefore the judgment of conviction, becomes a
final, appealable order upon issuance of the mittimus. Id. at 579.
“Neither subsequent proceedings to determine, nor an order
assessing, a specific amount of restitution directly affects that
judgment.” Id. at 578. Instead, the order fixing the amount of
restitution is a separate final, appealable order distinct from the
defendant’s judgment of conviction. Id.
¶ 32 A division of this court applied Sanoff’s reasoning in
addressing a defendant’s claim that his postconviction Weeks-based
challenge was properly construed as an illegal sentence claim
because his sentence wasn’t authorized by law. See People v.
Tennyson, 2023 COA 2, ¶¶ 15-16 (cert. granted Sept. 11, 2023).
The defendant in that case, like Huntley here, argued that his
sentence was illegal because the district court had no authority to
fix the amount of restitution after the expiration of the
ninety-one-day deadline for making that determination. Id. at ¶ 16.
16 The division disagreed and held that where a defendant brings a
postconviction challenge regarding the procedures employed in
determining the amount of restitution, the claim is cognizable as an
illegal manner claim. Id. at ¶ 33. The court reasoned that
“[b]ecause 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.
¶ 33 We agree with the Tennyson division on this point, and the
distinction between liability for and the amount of restitution is
applicable here. Any proceedings after the 2014 sentencing were
distinct from, and didn’t affect, the sentence component of
Huntley’s judgment of conviction. See Sanoff, 187 P.3d at 578.
Considering that Huntley’s challenges relate to the proceedings for
determining the amount of his restitution obligation, they don’t
implicate the legality of a component of his 2014 sentence. See id.
at 578-79; Fransua v. People, 2019 CO 96, ¶ 12 (“Rule 35(a) claims
that a sentence is ‘not authorized by law’ are appropriate only
where a defendant is challenging the legality of some component of
a sentence.” (quoting Baker, ¶ 19)); see also Baker, ¶ 19 (concluding
17 that because PSCC is not part of a sentence, a challenge to the
amount of PSCC noted in the mittimus doesn’t constitute an illegal
sentence claim).
¶ 34 In arguing otherwise, Huntley directs us to cases holding that
when a restitution award includes amounts not authorized by law,
the defendant has an illegal sentence claim. See People v.
Suttmiller, 240 P.3d 504, 507 (Colo. App. 2010) (noting that a
defendant asserted a cognizable illegal sentence claim when the
defendant argued that the amount of restitution was improper
because it included a rental value of an item that the victim never
rented); Roberts v. People, 130 P.3d 1005, 1007 n.2 (Colo. 2006)
(noting that whether a district court may award prejudgment
interest on the amount of restitution implicates the legality of a
sentence because it’s an issue of whether the prejudgment interest
is authorized by statute); People v. Brooks, 250 P.3d 771, 772-73
(Colo. App. 2010) (concluding that the defendant’s sentence was
illegal because the restitution order included amounts from an
unrelated juvenile delinquency case).
¶ 35 But unlike the defendants in Suttmiller, Roberts, and Brooks,
Huntley doesn’t argue that the restitution order is improper
18 because it includes amounts that are not authorized by law.
Rather, he asserts that he doesn’t owe any amount of restitution
because the prosecution and the district court failed to comply with
their respective statutory deadlines when calculating the amount.
In essence, then, Huntley challenges the procedure that preceded
the district court’s determination of the amount he must pay to the
victims. A challenge to the procedure used to reach a restitution
amount is an illegal manner claim, not an illegal sentence claim.2
See Bowerman, 258 P.3d at 317 (the claim that the prosecution
failed to prove that the defendant proximately caused certain losses
was an illegal manner claim when the defendant argued “that the
2 We recognize that the supreme court has noted, as Huntley points
out, that illegal sentence claims can encompass a wide range of different factual circumstances, including when “the restitution imposed was either not permitted or was in the wrong amount.” Hunsaker v. People, 2021 CO 83, ¶ 19. But Hunsaker doesn’t help Huntley for two reasons. First, the supreme court’s fleeting reference to the restitution statute is dicta because that case involved a different issue (i.e., the scope of the rule providing that correction of an illegal sentence renews a defendant’s deadline for pursuing a subsequent collateral attack that is related to the illegality). See id. at ¶¶ 8-12; see also Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999) (“Dictum is not the law of the case and is not controlling precedent.”). Second, in making the quoted statement, Hunsaker cited People v. Brooks, 250 P.3d 771 (Colo. App. 2010), which is distinguishable here for the reasons stated above.
19 trial court did not comply with one or more of the statutory and
procedural considerations governing restitution hearings”).
¶ 36 In sum, we conclude that Huntley’s challenges to the
timeliness of the prosecution’s request for a specific amount of
restitution and the district court’s determination of that amount are
cognizable as illegal manner claims, not as illegal sentence claims.
E. Huntley’s Illegal Manner Claims Are Time Barred
¶ 37 Having determined that Huntley’s challenges to the timing of
the prosecutor’s submission and the district court’s decision are
properly construed as illegal manner claims, we next consider
whether he timely asserted those claims. Huntley contends that his
claims are not time barred because he filed his motion for
postconviction relief 125 days after the mandate issued in Huntley I.
In the alternative, Huntley argues that even if the 126-day deadline
for filing of his illegal manner restitution claims didn’t start with the
issuance of the mandate, the district court’s determination of PSCC
on remand from Huntley I “corrected a separate illegality,” renewing
his deadline for bringing the claims. We’re not persuaded by either
argument.
20 ¶ 38 For starters, we disagree with Huntley’s argument that his
126-day deadline started to run when the mandate in Huntley I
issued because “any appellate mandate affirming the conviction or
sentence revives” that deadline. In that case, he directly appealed,
and a division of this court affirmed, his five-year DOC sentence
after the district court revoked his probation. Huntley I, No.
19CA1119, slip op. at ¶ 1. However, Huntley’s motion for
postconviction relief doesn’t challenge that separate sentence
resulting from his revocation; rather, his only claim is that the
district court erred when it entered the restitution order in
connection with his 2014 judgment of conviction.
¶ 39 The amount of Huntley’s restitution obligation became a final,
appealable order in January 2015 after the district court
determined the amount he owed. In the absence of a direct appeal,
Huntley’s deadline for filing a collateral challenge to the manner in
which restitution was imposed started to run after the district court
entered the restitution order. See Crim. P. 35(b)(1); People v. Dist.
Ct., 638 P.2d 65, 67 (Colo. 1981) (noting that a motion under Rule
35(b) must be filed within the deadline “after the sentence is
imposed unless an appeal has been filed”) (emphasis added); People
21 v. Lyons, 618 P.2d 673, 675 (Colo. App. 1980) (“For purposes of
[Rule 35(b)], a conviction is final 12[6] days after the imposition of
[a] sentence when that conviction is not appealed, and 12[6] days
after the conclusion of the appellate process if the conviction or
sentence is directly appealed.”). Huntley’s motion challenging the
restitution order as being entered in an illegal manner, filed seven
and a half years after the order entered, is therefore untimely.
¶ 40 We’re not persuaded otherwise by Huntley’s alternative
argument that the 126-day deadline was renewed when the district
court determined on remand the amount of PSCC to which he was
entitled. Relying on the rule that a defendant may pursue an
otherwise time-barred collateral attack on the conviction when a
district court corrects an illegal sentence, see Hunsaker v. People,
2021 CO 83, ¶ 3, Huntley argues that the district court here
removed an illegality in his sentence when it calculated the correct
amount of his PSCC. We disagree for two reasons.
¶ 41 First, as Huntley concedes, a challenge to the amount of PSCC
is only cognizable as an illegal manner claim because PSCC is not a
component of a defendant’s sentence. See Baker, ¶ 19.
Accordingly, the district court’s correction of Huntley’s PSCC didn’t
22 constitute removal of an illegality in his sentence renewing his
126-day deadline for asserting the illegal manner claims. See
Hunsaker, ¶ 20 (“The correction of an illegal sentence pursuant to
Crim. P. 35(a) restarts the clock for purposes of [Crim. P.] 35(b).”).
Second, even if we were to assume otherwise, Huntley’s argument
reads Hunsaker too broadly. There, the supreme court said that a
“defendant who successfully corrects an illegal sentence may
thereafter collaterally attack their conviction, but they may only
raise arguments addressing how the illegality in the sentence
potentially affected the original conviction.” Id. at ¶ 26. Huntley
doesn’t explain, and we don’t see, how the corrected PSCC relates to
his challenge to the restitution order from roughly ten years ago.
¶ 42 For the foregoing reasons, we conclude that Huntley’s
challenges to the manner in which the district court ordered him to
pay restitution are time barred. Accordingly, we affirm the order
denying his motion for postconviction relief, though on different
grounds than the postconviction court. See People v. Cooper, 2023
COA 113, ¶ 7 (“We may affirm the postconviction court’s ruling on
any ground supported by the record, whether or not the
postconviction court relied on or considered that ground.”).
23 III. Correction of the Mittimus
¶ 43 The mittimus the district court issued after determining the
amount of Huntley’s PSCC, dated March 3, 2022, states that he
was sentenced on December 10, 2021. However, as the parties
point out, that date is incorrect because the court resentenced
Huntley on April 29, 2019. Moreover, even though the district court
ordered restitution at the 2014 sentencing and later determined the
amount owed, it didn’t include the amount of restitution on the
mittimus. The amended mittimus still reflects “restitution
reserved.” Accordingly, we remand the case to the district court to
amend the mittimus to reflect the correct date of Huntley’s
resentencing and the amount of his restitution obligation. See
Weeks, ¶ 9 (stating that the mittimus should reflect that restitution
has been ordered and the amount due); Crim. P. 36 (“Clerical
mistakes in judgments, orders, or other parts of the
record . . . arising from oversight or omission may be corrected by
the court at any time . . . .”).
IV. Disposition
¶ 44 The order is affirmed, and the case is remanded for correction
of the mittimus.
24 JUDGE WELLING concurs.
JUDGE SCHUTZ dissents.
25 JUDGE SCHUTZ, dissenting.
¶ 45 The sentencing court was required to make an express finding
at sentencing that defendant, Thomas Andrew Huntley, was
obligated to pay restitution with the amount to be determined later,
or an alternative order authorized by section 18-1.3-603(1)(a) to (d),
C.R.S. 2024. Because I conclude that the court failed to do so, the
court’s sentence was illegal and it had no authority to order Huntley
to pay restitution 118 days after the sentence was originally
imposed. Therefore, I respectfully dissent.
I. The Controlling Law
¶ 46 The district court was obligated to enter, at the time of
sentencing, an order meeting one of the four conditions of section
18-1.3-603(1)(a) to (d):
(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 shown for
26 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.
(Emphasis added.)
¶ 47 The deadlines imposed on the court under subsection (1)(b)
may not be extended by an untimely request for more time, or by an
untimely finding of good cause to extend the deadlines. People v.
Weeks, 2021 CO 75, ¶ 7 (“[N]either a belated request for more time
to determine the proposed amount of restitution nor an order
granting such a request may act as a defibrillator to resuscitate an
expired deadline.”). “Rather, each deadline requires an express
finding — one relating to extenuating circumstances affecting the
prosecution’s ability to determine the proposed amount of
restitution and the other relating to good cause for extending the
court’s deadline to determine the amount of restitution the
defendant must pay.” Id.
27 [W]hen the court enters a preliminary restitution order pursuant to subsection (1)(b) at a sentencing hearing, the mittimus should reflect that restitution has been ordered but that the amount will be determined later (either within ninety-one days or within whatever expanded timeframe the court has established based on a finding of good cause).
Id. at ¶ 9. If a sentencing court fails to comply with section
18-1.3-603(1)(b), the restitution order must be vacated. Id. at ¶ 47.
¶ 48 Adherence to this interpretation of section 18-1.3-603 “has the
potential to lead to an undesirable result . . . [because] a defendant
could avoid paying restitution solely because the court failed to
comply with its deadline under subsection (1)(b).” Id. at ¶ 41. But,
as the supreme court observed in Weeks, a desire to avoid an
undesirable result does not justify ignoring the controlling law.
We infer from the restitution statute that the legislature expects litigants and judges to be prepared to address the issue of restitution at sentencing hearings. At such a hearing, a judge must enter one or more of four types of restitution orders. Reserving the issue of restitution in its entirety until a later date isn’t one of them.
Imperfect as our restitution statute may be, trial courts have to find a way to adhere to it. Because the trial court in this case violated the ninety-one-day deadline in subsection (1)(b) to
28 determine the amount of restitution, the division correctly vacated the restitution order.
Id. at ¶¶ 46-47 (emphasis added).
¶ 49 With these controlling principles in mind, I turn to the facts
that lead me to a different result than that reached by my
colleagues.
II. The Controlling Facts
¶ 50 As the majority opinion notes, Huntley entered into a plea
agreement. Supra, ¶ 3. The plea expressed the parties’ agreement
that “restitution is reserved in this case . . . . [Huntley] admits
liability.” The accompanying advisement signed by Huntley and his
counsel provided, “I understand that the Court will determine the
restitution I must pay, if any. The District Attorney’s Office may
submit a request for restitution within 90 days of sentencing. If I
object to the restitution, a hearing shall be set by the Court.”
¶ 51 When presenting the fully executed plea agreement to the
court, the prosecutor represented that “[w]e are asking that
restitution be reserved on both this case[, 14CR595,] and 13JD282.
[Huntley] is admitting liability for that restitution.” After hearing
from the parties, Huntley’s family members, and the victims and
29 their family members, the court proceeded to immediately sentence
Huntley.
¶ 52 At the sentencing hearing, the prosecution did not request
that the court enter an order finding that Huntley was obligated to
pay restitution and did not present any evidence concerning the
amount of restitution that it was requesting. Nor did the
prosecution demonstrate good cause for why it was not prepared to
address restitution, which was based on losses incurred by the
victims prior to the sentencing hearing. Instead, the prosecutor
simply asked, “Is the court reserving restitution?”
¶ 53 The court responded,
I’ll reserve restitution for a period of 91 days. That is, you’ll have 91 days to submit a request for restitution. If one is submitted, the defense would have 14 days to file an objection. If an objection is filed, the Court will then direct the matter be set for hearing. If no objection is filed, the Court will simply issue the order for restitution.
Consistent with this verbal order, the court entered a written
mittimus that stated, “Restitution Reserved.”
¶ 54 Predictably, given the substance of the sentencing court’s
order, the prosecution did not submit its request for restitution
30 until seventy-seven days after sentencing, and the court failed to
determine the amount of restitution that was owing until 118 days
after the sentence was imposed.
III. Analysis
¶ 55 At the time of sentencing, the sentencing court failed to fulfill
its obligation under section 18-1.3-603(1)(b). It did not enter an
order that Huntley was obligated to pay restitution. And it made no
finding that there was good cause to delay determining the amount
of restitution owed. Instead, the court simply deferred the issue of
restitution in its entirety for a period of ninety-one days. And the
court did not resolve the amount of restitution within the ninety-
one-day period. As a consequence, the court did not have the
authority to award the restitution that it ultimately imposed on
Huntley. See Weeks, ¶ 45.
¶ 56 Despite these authorities, the majority excuses or looks past
the sentencing court’s omissions on the grounds that Huntley
admitted liability for purposes of restitution under the plea
agreement. I reject this conclusion on multiple grounds. First, a
defendant’s admission of liability for purpose of restitution is not a
finding that restitution is owed or an admission that the defendant
31 is obligated to pay restitution. And, critically, it is no substitute for
a court order stating that the defendant is obligated to pay
restitution. Moreover, the entry of such an order is neither a
defendant’s responsibility nor their prerogative. The obligation to
enter such an order, along with the corresponding obligation to
ensure that restitution is resolved within ninety-one days (absent a
timely good cause finding to extend that period), rests solely on the
sentencing court’s shoulders. The sentencing court here did
neither.
¶ 57 Moreover, the plea advisement signed by Huntley and his
counsel indicated that if the prosecution submitted a request for
restitution, he would have the opportunity to object and the court
would then set the restitution issue for a hearing. The advisement
also provided that the sentencing court would then “determine the
restitution [Huntley] must pay, if any.” This advisement indicates
that the question of what restitution, if any, Huntley was obligated
to pay remained open at the time of sentencing.
¶ 58 The majority opinion attempts to excuse the sentencing court’s
failure to meet its obligations under section 18-1.3-603(1)(b) based
on the fact that this sentence was entered in 2014, seven years
32 before the supreme court issued the Weeks decision. Supra, ¶ 25.
But Weeks did not create new law. Rather, the principles
articulated in Weeks are dictated by the terms of section
18-1.3-603(1)(a) to (d), which did not materially change between
2014 and 2021. In other words, Weeks does not impose obligations
on prosecutors and trial courts that did not exist in 2014. To the
contrary, Weeks simply reminds sentencing courts and prosecutors
of the duties that the General Assembly imposed upon them when
entering a criminal sentence that involves a claim for restitution.
¶ 59 Nor can the sentencing court’s omissions be excused based
upon this court’s subsequent conclusion that an explicit order of
restitution was either not required or can be implied from the
surrounding circumstances. Weeks, ¶ 7. Rather, the obligation
imposed by section 18-1.3-603(1)(b) requires the sentencing court
to make a timely “express finding.” Id.
¶ 60 Because the sentencing court failed to enter an order
complying with section 18-1.3-603(1)(a) to (d) at the time sentence
was imposed, the sentence was illegal, and it may be corrected at
any time. Crim. P. 35(a) (an illegal sentence may be corrected at
any time); People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010)
33 (“Section 18-1.3-603 . . . mandates that, after every felony
conviction, trial courts must answer the question whether the
defendant should pay the victim restitution. The failure to make
this necessary finding results in an illegal sentence.”); see also
People v. Tennyson, 2023 COA 2, ¶ 31 (“Divisions of this court have
concluded that a district court imposes an illegal sentence if it fails
to consider restitution when imposing sentence.”) (cert. granted
Sept. 11, 2023).
¶ 61 The Colorado Supreme Court granted certiorari in Tennyson to
review the following issue: “Whether a postconviction challenge to
the timeliness of a restitution order is cognizable as an illegal
sentence claim under Crim. P. 35(a).” Tennyson v. People, No.
23SC168, 2023 WL 5944725 (Colo. Sept. 11, 2023) (unpublished
order). The decision in that case will likely have a significant
impact on the resolution of this case. If the supreme court
concludes that the failure to impose a section 18-1.3-603(1)(b) order
is not actionable as an illegal sentence claim under Crim. P. 35(a),
then Huntley’s appeal was properly dismissed as untimely, as the
majority opinion concludes. In such case, the concerns that
underlie this dissent will be obsolete. On the other hand, if the
34 court determines that the failure to enter a section 18-1.3-603(1)(b)
compliant order is actionable as an illegal sentence claim, then the
supreme court is likely to provide guidance on what is the
appropriate remedy for such a violation.
¶ 62 Given these dynamics, judicial restraint leads me to refrain
from opining on what the appropriate remedy is for a sentencing
court’s failure to enter an order at sentencing that a defendant is
obligated to pay restitution, or an alternative order authorized by
section 18-1.3-603(1)(a) to (d).
IV. Conclusion
¶ 63 For the stated reasons, I respectfully dissent.