23CA1592 Peo v Jones 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1592 City and County of Denver District Court No. 87CR201401 Honorable Jennifer B. Torrington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Glenn E. Jones,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Glenn E. Jones, Pro Se ¶1 Glenn E. Jones appeals the postconviction court’s order
resolving his Crim. P. 35(a) motion by amending the mittimus to
clarify that no restitution was owed. We discharge a pending order
to show cause and affirm the postconviction court’s order.
I. Background
¶2 In 1988, Jones was convicted of numerous substantive
offenses, adjudicated a habitual criminal, and sentenced to life in
the custody of the Department of Corrections. There is no
indication in the record before us that the prosecution requested
any restitution or that the trial court ever addressed the issue of
restitution.
¶3 On direct appeal, a division of this court affirmed the
judgment. See People v. Jones, 786 P.2d 481 (Colo. App. 1989).
¶4 In 2003, Jones filed an unsuccessful Crim. P. 35(c) motion for
postconviction relief. See People v. Jones, (Colo. App. No.
03CA1612, July 1, 2004) (not published pursuant to C.A.R. 35(f)).
¶5 In 2023 — thirty-five years after sentencing — Jones filed the
Crim. P. 35(a) motion at issue claiming that his sentence is illegal
because the trial court did not consider or address restitution at the
time of sentencing for his triggering offenses or his predicate
1 convictions underlying the habitual criminal adjudication. He
claimed that, as a result, “his habitual criminal adjudication must
be vacated.”
¶6 The postconviction court resolved Jones’s motion without
appointing counsel or holding a hearing. The court agreed that
Jones’s sentence was illegal because the trial court never
specifically addressed restitution. However, the court denied
Jones’s request for relief, instead ruling that the appropriate
remedy was to amend the mittimus to reflect that no restitution was
owed. The court amended the mittimus accordingly.
¶7 Jones timely filed a notice of appeal. However, after he failed
to timely file an opening brief, this court issued an order to show
cause why the appeal should not be dismissed. Jones filed a
response, which this court deferred ruling on, but the court also
gave Jones a new deadline to file his opening brief. Jones filed his
opening brief by that deadline, see C.A.R. 25(b), and the appeal is
now fully briefed.
¶8 We discharge the order to show cause and consider Jones’s
appeal.
2 II. Standard of Review
¶9 We review the legality of a sentence de novo. See Magana v.
People, 2022 CO 25, ¶ 33; People v. Weeks, 2021 CO 75, ¶ 24.
III. Analysis
A. Illegal Sentence
¶ 10 As an initial matter, we note that Jones relies on the current
version of the restitution statute in asserting that every order of
conviction must include at least one of the four types of restitution
orders listed in section 18-1.3-603(1)(a)-(d), C.R.S. 2024. However,
Jones’s judgment of conviction and sentence was entered in 1988,
and at that time, a different statutory scheme governed what was
required of district courts in terms of restitution. As pertinent here,
it is not clear that the older statutory scheme, or the case law
interpreting it, required district courts to include any notation
regarding restitution on the mittimus if no restitution was being
ordered. See § 16-11-102(4), C.R.S. 1988 (“[T]he amount of
restitution shall be fixed by the court at the time of sentencing and
shall be endorsed upon the mittimus.”); People v. Johnson, 780 P.2d
504, 506 (Colo. 1989) (“[I]n all cases in which a convicted
defendant’s criminal conduct causes pecuniary damages to a victim,
3 the sentencing court is obliged to order the defendant to pay
restitution . . . and to fix the amount of such restitution as part of
the judgment, whether the sentence be to probation or to a term of
incarceration.”) (emphasis added).
¶ 11 Nevertheless, we will assume, without deciding, that Jones’s
sentence was illegal because the trial court did not address
restitution at sentencing and did not include any notation regarding
restitution on the mittimus.
¶ 12 Under the older statutory scheme applicable here, “[i]n
determining the amount of restitution owing by a defendant, [a
district court was] required to consult the probation and
presentence reports, consider any other evidence presented by the
parties with respect to damages, and consider the defendant’s
present and future financial circumstances and family obligations.”
People v. Carpenter, 885 P.2d 334, 336 (Colo. App. 1994). And a
presentence investigation report (PSIR) had to “include a victim
impact statement which, in turn, may include an identification of
the victim and an itemization of economic loss suffered by the
victim as a result of the offense.” Id.
4 ¶ 13 The postconviction court’s order denying Jones’s Crim. P.
35(a) motion relied on a PSIR containing a short section pertaining
to restitution, which noted that “the victims are not claiming any
restitution.” However, our review of the record indicates that was
the PSIR for a different district court case (Arapahoe County District
Court case number 87CR208).
¶ 14 The record reflects that the PSIR for this case (City and County
of Denver District Court case number 87CR201401) did not address
restitution. Also, the victim impact statement attached to the PSIR
for this case did not contain any specific information about the
amount of any pecuniary loss suffered by the victims. And our
review of the record indicates that the parties did not submit “any
other evidence . . . with respect to damages” (such as a restitution
motion with supporting exhibits). Id. So, the record reflects that
the trial court did not have any basis upon which to order any
amount of restitution.
¶ 15 Under these circumstances, we conclude that the
postconviction court did not err in resolving Jones’s Crim. P. 35(a)
claim by amending the mittimus to reflect that no restitution was
being ordered in this case. See People v. Dunlap, 222 P.3d 364, 368
5 (Colo. App. 2009) (“[A]n illegal sentence can be corrected at any time
through amendment of the mittimus.”).
B. Habitual Criminal Adjudication
¶ 16 We reject Jones’s claim that “his habitual criminal
adjudication must be vacated” because restitution was also never
considered or ordered in the prior criminal cases resulting in the
predicate felony convictions underlying his habitual criminal
adjudication in this case. Even if we were to accept the premise
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23CA1592 Peo v Jones 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1592 City and County of Denver District Court No. 87CR201401 Honorable Jennifer B. Torrington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Glenn E. Jones,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Glenn E. Jones, Pro Se ¶1 Glenn E. Jones appeals the postconviction court’s order
resolving his Crim. P. 35(a) motion by amending the mittimus to
clarify that no restitution was owed. We discharge a pending order
to show cause and affirm the postconviction court’s order.
I. Background
¶2 In 1988, Jones was convicted of numerous substantive
offenses, adjudicated a habitual criminal, and sentenced to life in
the custody of the Department of Corrections. There is no
indication in the record before us that the prosecution requested
any restitution or that the trial court ever addressed the issue of
restitution.
¶3 On direct appeal, a division of this court affirmed the
judgment. See People v. Jones, 786 P.2d 481 (Colo. App. 1989).
¶4 In 2003, Jones filed an unsuccessful Crim. P. 35(c) motion for
postconviction relief. See People v. Jones, (Colo. App. No.
03CA1612, July 1, 2004) (not published pursuant to C.A.R. 35(f)).
¶5 In 2023 — thirty-five years after sentencing — Jones filed the
Crim. P. 35(a) motion at issue claiming that his sentence is illegal
because the trial court did not consider or address restitution at the
time of sentencing for his triggering offenses or his predicate
1 convictions underlying the habitual criminal adjudication. He
claimed that, as a result, “his habitual criminal adjudication must
be vacated.”
¶6 The postconviction court resolved Jones’s motion without
appointing counsel or holding a hearing. The court agreed that
Jones’s sentence was illegal because the trial court never
specifically addressed restitution. However, the court denied
Jones’s request for relief, instead ruling that the appropriate
remedy was to amend the mittimus to reflect that no restitution was
owed. The court amended the mittimus accordingly.
¶7 Jones timely filed a notice of appeal. However, after he failed
to timely file an opening brief, this court issued an order to show
cause why the appeal should not be dismissed. Jones filed a
response, which this court deferred ruling on, but the court also
gave Jones a new deadline to file his opening brief. Jones filed his
opening brief by that deadline, see C.A.R. 25(b), and the appeal is
now fully briefed.
¶8 We discharge the order to show cause and consider Jones’s
appeal.
2 II. Standard of Review
¶9 We review the legality of a sentence de novo. See Magana v.
People, 2022 CO 25, ¶ 33; People v. Weeks, 2021 CO 75, ¶ 24.
III. Analysis
A. Illegal Sentence
¶ 10 As an initial matter, we note that Jones relies on the current
version of the restitution statute in asserting that every order of
conviction must include at least one of the four types of restitution
orders listed in section 18-1.3-603(1)(a)-(d), C.R.S. 2024. However,
Jones’s judgment of conviction and sentence was entered in 1988,
and at that time, a different statutory scheme governed what was
required of district courts in terms of restitution. As pertinent here,
it is not clear that the older statutory scheme, or the case law
interpreting it, required district courts to include any notation
regarding restitution on the mittimus if no restitution was being
ordered. See § 16-11-102(4), C.R.S. 1988 (“[T]he amount of
restitution shall be fixed by the court at the time of sentencing and
shall be endorsed upon the mittimus.”); People v. Johnson, 780 P.2d
504, 506 (Colo. 1989) (“[I]n all cases in which a convicted
defendant’s criminal conduct causes pecuniary damages to a victim,
3 the sentencing court is obliged to order the defendant to pay
restitution . . . and to fix the amount of such restitution as part of
the judgment, whether the sentence be to probation or to a term of
incarceration.”) (emphasis added).
¶ 11 Nevertheless, we will assume, without deciding, that Jones’s
sentence was illegal because the trial court did not address
restitution at sentencing and did not include any notation regarding
restitution on the mittimus.
¶ 12 Under the older statutory scheme applicable here, “[i]n
determining the amount of restitution owing by a defendant, [a
district court was] required to consult the probation and
presentence reports, consider any other evidence presented by the
parties with respect to damages, and consider the defendant’s
present and future financial circumstances and family obligations.”
People v. Carpenter, 885 P.2d 334, 336 (Colo. App. 1994). And a
presentence investigation report (PSIR) had to “include a victim
impact statement which, in turn, may include an identification of
the victim and an itemization of economic loss suffered by the
victim as a result of the offense.” Id.
4 ¶ 13 The postconviction court’s order denying Jones’s Crim. P.
35(a) motion relied on a PSIR containing a short section pertaining
to restitution, which noted that “the victims are not claiming any
restitution.” However, our review of the record indicates that was
the PSIR for a different district court case (Arapahoe County District
Court case number 87CR208).
¶ 14 The record reflects that the PSIR for this case (City and County
of Denver District Court case number 87CR201401) did not address
restitution. Also, the victim impact statement attached to the PSIR
for this case did not contain any specific information about the
amount of any pecuniary loss suffered by the victims. And our
review of the record indicates that the parties did not submit “any
other evidence . . . with respect to damages” (such as a restitution
motion with supporting exhibits). Id. So, the record reflects that
the trial court did not have any basis upon which to order any
amount of restitution.
¶ 15 Under these circumstances, we conclude that the
postconviction court did not err in resolving Jones’s Crim. P. 35(a)
claim by amending the mittimus to reflect that no restitution was
being ordered in this case. See People v. Dunlap, 222 P.3d 364, 368
5 (Colo. App. 2009) (“[A]n illegal sentence can be corrected at any time
through amendment of the mittimus.”).
B. Habitual Criminal Adjudication
¶ 16 We reject Jones’s claim that “his habitual criminal
adjudication must be vacated” because restitution was also never
considered or ordered in the prior criminal cases resulting in the
predicate felony convictions underlying his habitual criminal
adjudication in this case. Even if we were to accept the premise
that the failure to address restitution in those prior criminal cases
affected the legality of the sentences imposed, it does not follow that
Jones’s convictions would be invalid. See id. at 369 (“[A] claim that
an illegal sentence has been imposed because of a failure to
consider or fix restitution does not affect the finality of [the]
judgment of conviction. . . . Crim. P. 35(a) deals with motions to
correct illegal sentences. This portion of the rule allows a defendant
only to challenge the legality of the sentence, not the conviction.”).
And a habitual criminal adjudication is based on the defendant’s
prior felony convictions, not the prior sentences on those
convictions. See generally § 18-1.3-801, C.R.S. 2024.
6 ¶ 17 For these reasons, we affirm the postconviction court’s ruling
that Jones was not entitled to the relief he sought on his Crim. P.
35(a) motion.
IV. Disposition
¶ 18 The order to show cause is discharged. The postconviction
court’s order resolving Jones’s Crim. P. 35(a) motion is affirmed.
JUDGE FREYRE and JUDGE GROVE concur.