25CA0646 Peo v Hurtado 01-22-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0646 Larimer County District Court No. 12CR1156 Honorable Susan Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Evertt Hurtado,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 22, 2026
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Evertt Hurtado, Pro Se ¶1 Defendant, Evertt Hurtado, appeals the district court’s order
denying his second motion to modify or vacate restitution.1 We
affirm.
I. Background
¶2 In 2013, after Hurtado pleaded guilty to class 4 felony
aggravated motor vehicle theft and misdemeanor driving under the
influence, the district court ordered him to pay $11,738.05 in
restitution to the victim and the victim’s insurance company. As of
March 2025, Hurtado had paid $7,796.90, and his remaining
balance was $13,984.97 due to postjudgment interest under section
18-1.3-603(4)(b)(I), C.R.S. 2025.2
¶3 In 2017, Hurtado filed a pro se “motion to vacate, set aside, or
modify fines or restitution.” He argued that he couldn’t pay
restitution due to financial hardship, in part because he was
1 Hurtado spells his first name as “Everett” in the notice of appeal
but uses “Evertt” in his opening and reply briefs. We adopt the latter based on an April 2025 motion, filed in our court, in which Hurtado clarified that his legal name is “Evertt Hurtado.” 2 Interest accrued at a rate of twelve percent per annum before
January 1, 2020, and eight percent per annum thereafter. See § 18-1.3-603(4)(b.5)(II), C.R.S. 2025.
1 incarcerated. The district court denied the motion. Hurtado didn’t
appeal.
¶4 In March 2025, Hurtado filed a second pro se motion to
“modify or vacate restitution order,” this time arguing that
restitution should be vacated or modified under section
“18-1.3-603(3)(d)” because “[t]he balance, inflated by interest during
incarceration and aggressive collections despite [his] good-faith
efforts, violates [his] constitutional rights and crushes [him] with
hardship.”3 After outlining his financial difficulties, he specifically
asserted that (1) the accrual of $6,000 to $8,000 in interest while he
was incarcerated violated his due process rights; (2) the nearly
$11,000 in accrued interest was a constitutionally excessive fine;
(3) the insurance company “likely wrote off” the loss, but he would
need discovery to determine this; (4) tax intercepts despite his
compliance violated due process; (5) payment imposed an undue
hardship on him; and (6) there was a possible ex post facto issue.
3 Although Hurtado cited section 18-1.3-603(3)(d), the statute
doesn’t contain a subsection (3)(d). But subsection (3)(b) authorizes a court to decrease restitution based on specific circumstances. Construing Hurtado’s pro se motion broadly, see Jones v. Williams, 2019 CO 61, ¶ 5, we presume he intended to cite section 18-1.3-603(3)(b).
2 He requested that the court remove all interest as unconstitutional;
reduce restitution to the amount he had already paid; stop or stay
collections; lower his monthly payments; and hold a hearing.
¶5 After the prosecution objected, Hurtado replied, reasserting
his arguments and newly arguing that his plea was entered
unknowingly, involuntarily, and unintelligently.
¶6 The district court denied Hurtado’s motion because he failed
to establish one of the requirements for a decrease in restitution as
outlined in section 18-1.3-603(3)(b). Under that statute, an order
for restitution may be decreased “[w]ith the consent of the
prosecuting attorney and the victim or victims to whom the
restitution is owed” or “[i]f the defendant has otherwise
compensated the victim or victims for the pecuniary losses
suffered.” § 18-1.3-603(3)(b).
II. Discussion
¶7 Hurtado appeals the district court’s order denying his motion
but doesn’t reassert any of his original claims.4 Instead, he argues
4 We deem these claims abandoned because Hurtado hasn’t
reasserted them on appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.
3 for the first time on appeal that the restitution order and accrued
interest violate his equal protection rights.
¶8 Because Hurtado didn’t raise this equal protection issue in his
motion and the district court didn’t rule on it, the issue isn’t
properly before us. See People v. Cali, 2020 CO 20, ¶ 34
(“[A]lthough we will broadly construe a pro se litigant’s pleadings to
effectuate the substance, rather than the form, of those pleadings,
we will not consider issues not raised before the district court in a
motion for postconviction relief.”). Moreover, to the extent Hurtado
now seeks to bolster the arguments in his motion with a detailed
equal protection analysis on appeal, we don’t consider a defendant’s
attempts to use his appellate briefs to “fortify . . . issues
inadequately raised or supported by his motion.” People v.
Rodriguez, 914 P.2d 230, 251 (Colo. 1996).
¶9 In his reply brief, Hurtado argues that his equal protection
claim was properly preserved for appeal because his motion “clearly
alleged that the way restitution interest and collection practices
were being applied to him, given his indigence and years of
incarceration, violated his constitutional rights,” and “[t]he equal-
protection framing on appeal is the legal characterization of the
4 same operative facts and constitutional concerns raised below, not
a new or different claim.” We disagree.
¶ 10 We acknowledge that Hurtado argued in his motion that the
balance on his restitution obligation “violates [his] constitutional
rights.” He also made a cursory due process claim. Furthermore,
he cited Bearden v. Georgia, 461 U.S. 660 (1983), in which the
United States Supreme Court held that due process and equal
protection principles may prohibit a state from revoking an indigent
defendant’s probation for failure to pay restitution “through no fault
of his own.” Id. at 665, 672-73. But he cited Bearden to assert
only that the government “can’t punish poverty” and that “[t]his
debt traps [him] despite [his] recovery.” Even construing Hurtado’s
pro se motion broadly, as we must, see Jones v. Williams, 2019 CO
61, ¶ 5, we don’t interpret his motion as alleging any violation of
equal protection. Indeed, even his citation to Bearden was under
the heading for his due process argument.
¶ 11 Hurtado also argues in his reply brief that, even if we conclude
that his equal protection claim is unpreserved, we have discretion
to review it “for plain error or in the interests of justice” because
“the underlying constitutional question is purely legal and arises on
5 an undisputed record.” True, we may, as a matter of discretion,
address an unpreserved constitutional claim when doing so would
promote efficiency and judicial economy. Hinojos-Mendoza v.
Free access — add to your briefcase to read the full text and ask questions with AI
25CA0646 Peo v Hurtado 01-22-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0646 Larimer County District Court No. 12CR1156 Honorable Susan Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Evertt Hurtado,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 22, 2026
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Evertt Hurtado, Pro Se ¶1 Defendant, Evertt Hurtado, appeals the district court’s order
denying his second motion to modify or vacate restitution.1 We
affirm.
I. Background
¶2 In 2013, after Hurtado pleaded guilty to class 4 felony
aggravated motor vehicle theft and misdemeanor driving under the
influence, the district court ordered him to pay $11,738.05 in
restitution to the victim and the victim’s insurance company. As of
March 2025, Hurtado had paid $7,796.90, and his remaining
balance was $13,984.97 due to postjudgment interest under section
18-1.3-603(4)(b)(I), C.R.S. 2025.2
¶3 In 2017, Hurtado filed a pro se “motion to vacate, set aside, or
modify fines or restitution.” He argued that he couldn’t pay
restitution due to financial hardship, in part because he was
1 Hurtado spells his first name as “Everett” in the notice of appeal
but uses “Evertt” in his opening and reply briefs. We adopt the latter based on an April 2025 motion, filed in our court, in which Hurtado clarified that his legal name is “Evertt Hurtado.” 2 Interest accrued at a rate of twelve percent per annum before
January 1, 2020, and eight percent per annum thereafter. See § 18-1.3-603(4)(b.5)(II), C.R.S. 2025.
1 incarcerated. The district court denied the motion. Hurtado didn’t
appeal.
¶4 In March 2025, Hurtado filed a second pro se motion to
“modify or vacate restitution order,” this time arguing that
restitution should be vacated or modified under section
“18-1.3-603(3)(d)” because “[t]he balance, inflated by interest during
incarceration and aggressive collections despite [his] good-faith
efforts, violates [his] constitutional rights and crushes [him] with
hardship.”3 After outlining his financial difficulties, he specifically
asserted that (1) the accrual of $6,000 to $8,000 in interest while he
was incarcerated violated his due process rights; (2) the nearly
$11,000 in accrued interest was a constitutionally excessive fine;
(3) the insurance company “likely wrote off” the loss, but he would
need discovery to determine this; (4) tax intercepts despite his
compliance violated due process; (5) payment imposed an undue
hardship on him; and (6) there was a possible ex post facto issue.
3 Although Hurtado cited section 18-1.3-603(3)(d), the statute
doesn’t contain a subsection (3)(d). But subsection (3)(b) authorizes a court to decrease restitution based on specific circumstances. Construing Hurtado’s pro se motion broadly, see Jones v. Williams, 2019 CO 61, ¶ 5, we presume he intended to cite section 18-1.3-603(3)(b).
2 He requested that the court remove all interest as unconstitutional;
reduce restitution to the amount he had already paid; stop or stay
collections; lower his monthly payments; and hold a hearing.
¶5 After the prosecution objected, Hurtado replied, reasserting
his arguments and newly arguing that his plea was entered
unknowingly, involuntarily, and unintelligently.
¶6 The district court denied Hurtado’s motion because he failed
to establish one of the requirements for a decrease in restitution as
outlined in section 18-1.3-603(3)(b). Under that statute, an order
for restitution may be decreased “[w]ith the consent of the
prosecuting attorney and the victim or victims to whom the
restitution is owed” or “[i]f the defendant has otherwise
compensated the victim or victims for the pecuniary losses
suffered.” § 18-1.3-603(3)(b).
II. Discussion
¶7 Hurtado appeals the district court’s order denying his motion
but doesn’t reassert any of his original claims.4 Instead, he argues
4 We deem these claims abandoned because Hurtado hasn’t
reasserted them on appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO 83.
3 for the first time on appeal that the restitution order and accrued
interest violate his equal protection rights.
¶8 Because Hurtado didn’t raise this equal protection issue in his
motion and the district court didn’t rule on it, the issue isn’t
properly before us. See People v. Cali, 2020 CO 20, ¶ 34
(“[A]lthough we will broadly construe a pro se litigant’s pleadings to
effectuate the substance, rather than the form, of those pleadings,
we will not consider issues not raised before the district court in a
motion for postconviction relief.”). Moreover, to the extent Hurtado
now seeks to bolster the arguments in his motion with a detailed
equal protection analysis on appeal, we don’t consider a defendant’s
attempts to use his appellate briefs to “fortify . . . issues
inadequately raised or supported by his motion.” People v.
Rodriguez, 914 P.2d 230, 251 (Colo. 1996).
¶9 In his reply brief, Hurtado argues that his equal protection
claim was properly preserved for appeal because his motion “clearly
alleged that the way restitution interest and collection practices
were being applied to him, given his indigence and years of
incarceration, violated his constitutional rights,” and “[t]he equal-
protection framing on appeal is the legal characterization of the
4 same operative facts and constitutional concerns raised below, not
a new or different claim.” We disagree.
¶ 10 We acknowledge that Hurtado argued in his motion that the
balance on his restitution obligation “violates [his] constitutional
rights.” He also made a cursory due process claim. Furthermore,
he cited Bearden v. Georgia, 461 U.S. 660 (1983), in which the
United States Supreme Court held that due process and equal
protection principles may prohibit a state from revoking an indigent
defendant’s probation for failure to pay restitution “through no fault
of his own.” Id. at 665, 672-73. But he cited Bearden to assert
only that the government “can’t punish poverty” and that “[t]his
debt traps [him] despite [his] recovery.” Even construing Hurtado’s
pro se motion broadly, as we must, see Jones v. Williams, 2019 CO
61, ¶ 5, we don’t interpret his motion as alleging any violation of
equal protection. Indeed, even his citation to Bearden was under
the heading for his due process argument.
¶ 11 Hurtado also argues in his reply brief that, even if we conclude
that his equal protection claim is unpreserved, we have discretion
to review it “for plain error or in the interests of justice” because
“the underlying constitutional question is purely legal and arises on
5 an undisputed record.” True, we may, as a matter of discretion,
address an unpreserved constitutional claim when doing so would
promote efficiency and judicial economy. Hinojos-Mendoza v.
People, 169 P.3d 662, 667-68 (Colo. 2007), abrogated on other
grounds as recognized by Phillips v. People, 2019 CO 72, ¶¶ 32-33.
But Hurtado doesn’t explain, nor do we discern, how our
addressing his unpreserved challenge would “‘promote judicial
economy,’ [so] we decline to address the merits of his argument.”
People v. Butler, 2017 COA 117, ¶ 36 (quoting People in Interest of
L.C., 2017 COA 82, ¶ 19).
¶ 12 In addition, even if we elected to review his unpreserved equal
protection challenge for plain error, we would find none. No case
law or other authority existed at the time of the district court’s
order that should have led the court to sua sponte find that the
restitution award and postjudgment interest created an equal
protection violation. See L.C., ¶ 20; People v. Walker, 2022 COA 15,
¶ 68 (an error is plain when it’s so obvious that the action
challenged on appeal clearly violates statute, a well-settled legal
principle, or Colorado case law).
6 ¶ 13 Accordingly, we conclude that the district court didn’t err by
denying Hurtado’s second motion to modify or vacate restitution. In
light of our resolution, we decline to address the People’s alternative
argument that Hurtado’s equal protection claim is procedurally
barred as an untimely Crim. P. 35(c) claim.
III. Disposition
¶ 14 We affirm the order.
JUDGE FOX and JUDGE KUHN concur.