Peo v. Lagunas

• Court: Colorado Court of Appeals
• Decided: May 28, 2026
• Docket: 21CA0744
• Status: Unpublished

Opinion

21CA0744 Peo v Lagunas 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0744 Weld County District Court Nos. 20CR1152 & 20CR1324 Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Victorino Lagunas, Jr.,

Defendant-Appellant.

ORDER VACATED AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE BROWN Tow and Schock, JJ., concur

Prior Opinion Announced September 14, 2023, Vacated in 23SC767

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Victorino Lagunas, Jr., pleaded guilty to one count

of second degree assault as an act of domestic violence against his

former girlfriend, K.S. Lagunas appealed the district court’s order

awarding restitution, and we affirmed. People v. Lagunas, (Colo.

App. No. 21CA0744, Sep. 14, 2023) (not published pursuant to

C.A.R. 35(e)). The Colorado Supreme Court granted Lagunas’

petition for writ of certiorari, vacated the division’s opinion, and

remanded the case to this court for reconsideration in light of Snow

v. People, 2025 CO 32. See Lagunas v. People, (Colo. No.

23SC0767, Aug. 4, 2025) (unpublished order). In Snow, ¶ 21, the

supreme court held that the failure to enter at least one of the

enumerated restitution orders required by section 18-1.3-603(1),

C.R.S. 2024,1 results in an illegal sentence.

¶2 On appeal, Lagunas did not raise a claim that his sentence

was illegal because the district court failed to enter one of the four

enumerated restitution orders. But the supreme court’s remand

order plainly requires us to address that issue. See Snow, ¶ 24

1 Throughout this opinion, we cite the 2024 version of this statute,

as that was the version in effect at all relevant times. The statute has since been amended.

1 (“Colorado jurisprudence allows — and, in fact requires — courts to

correct an illegal sentence . . . .); People v. Isom, 2015 COA 89, ¶ 7

(a court has “the power and the duty” to correct a sentence that is

not authorized by law, and it may do so at any time), aff’d, 2017 CO

110. Having considered the parties’ supplemental briefs, we agree

with Lagunas that the district court failed to enter one of the

required restitution orders at sentencing and that he is not liable to

pay any restitution. Consequently, we vacate the restitution order

and remand for entry of an order under section 18-1.3-603(1)(d)

that no restitution is owed.

I. Relevant Background

¶3 As a term of his plea agreement, Lagunas agreed that the

prosecution could “reserve restitution for [sixty] days.” He also

stipulated to “proximate cause for the purposes of restitution.” And

he agreed that “[r]estitution . . . as to all originally filed and pled

counts w[ould] be as ordered by the [c]ourt.”

¶4 At the providency hearing, the district court reiterated the

terms of Lagunas’ plea, including that the prosecution “would be

reserving restitution for [sixty] days and [that Lagunas] would be

2 stipulating to proximate causation for the purposes of any

restitution requests.” Otherwise, restitution was not discussed.

¶5 At the sentencing hearing, the prosecution did not request or

otherwise address restitution. When advocating for a probationary

sentence, defense counsel told the district court, “There’s probably

restitution going to be coming down in [ninety] days or there will be

and he’ll need to be responsible for that. He’s more than willing to

pay that.” The court ordered that the prosecution would have

“[sixty] days to file any request for restitution in this case” and that,

“[i]f one [wa]s filed,” Lagunas would have fourteen days to file an

objection or response. The mittimus noted that the prosecution

had sixty days to file a notice of restitution.

¶6 The prosecution filed a request for restitution fifty-nine days

after the sentencing hearing. The court later conducted a

restitution hearing and ordered Lagunas to pay $7,189.40 in

restitution.

II. Standard of Review and Applicable Law

¶7 We review de novo the legality of a sentence. Snow, ¶ 19.

¶8 When Lagunas was sentenced, section 18-1.3-603(1) required

that every judgment of conviction include one of the following:

3 (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 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.

§ 18-1.3-603(1); see Snow, ¶ 20; People v. Weeks, 2021 CO 75, ¶ 3;

see also Crim. P. 32(b)(3)(I) (requiring that the judgment of

conviction consist of, among other things, a recital of the plea, the

sentence, and “an order or finding regarding restitution as required

by section 18-1.3-603”).

¶9 A sentence that fails to include one or more of the subsection

(1) orders, “is a sentence not authorized by law (i.e., an illegal

sentence) that may be corrected at any time.” Snow, ¶ 21. But the

district court may not correct the illegality by entering a

4 subsection (1) order sometime after sentencing. See id. at ¶¶ 30-32.

Rather, “the sole remedy consistent with the legislative intent

behind subsection (1) is vacatur of the untimely restitution order

and entry of an order pursuant to subsection (1)(d) that there is no

restitution owed.” Id. at ¶ 38.

III. Analysis

¶ 10 Lagunas contends that the district court failed to enter one of

the orders required by section 18-1.3-603(1) at sentencing,

resulting in an illegal sentence that must be corrected by entry of a

subsection (1)(d) order that no restitution is owed. We agree.

¶ 11 In Snow, the Colorado Supreme Court considered whether

Snow’s sentence was illegal because the trial court failed to enter an

order authorized by 18-1.3-603(1). Id. at ¶ 22. The supreme court

explained that Snow pleaded guilty to second degree murder via a

plea agreement that did not mention restitution. Id. at ¶ 6. The

issue of restitution was also “conspicuously absent” from the

providency hearing. Id. at ¶ 29. At the sentencing hearing, “the

prosecution did not request restitution or give any indication that it

intended to seek restitution. Instead, it simply asked the court ‘to

reserve restitution at this point in time.’” Id. at ¶ 7. The trial court

5 “reserve[d] restitution for [sixty] days.’” Id. The supreme court

viewed the colloquy between the court and the prosecution at

sentencing to leave “no doubt that everyone intended to defer until

after sentencing the issue of restitution in its entirety.” Id. at ¶ 29.

¶ 12 On these facts, the supreme court held that the trial court

“imposed a sentence not authorized by law because the mere

reservation of the issue of restitution in its entirety failed to adhere

to subsection (1).” Id. at ¶ 22. It reasoned that the trial court

record was “barren of an explicit or implicit finding of restitution

liability either before or during the sentencing hearing” and that

there was “no basis . . . to infer that the only issue the [trial] court

deferred until after the sentencing hearing was the determination of

the amount of restitution,” as allowed by subsection (1)(b). Id. at

¶ 29.

¶ 13 At Lagunas’ sentencing, “the prosecution did not request

restitution or give any indication that it intended to seek

restitution.” Id. at ¶ 7. It did not even ask to “reserve restitution”

like the prosecution did in Snow. Id. True, defense counsel

indicated that Lagunas would be responsible for and was willing to

pay restitution, but counsel’s statements were even arguably

6 equivocal about whether restitution would be requested or ordered,

noting that there was “probably restitution going to be coming

down . . . or there w[ould] be.”

¶ 14 The district court’s only restitution-related order at sentencing

was to allow the prosecution to “file any request for restitution”

within sixty days. (Emphasis added.) The use of “any” before

“request for restitution” reflects that the prosecution had not yet

made a request for restitution, and the court had not yet granted it.

Indeed, the court continued, “If one is filed, I will give [Lagunas’]

attorney [fourteen] days to object.” (Emphasis added.) The court

did not (1) order Lagunas to pay a specific amount of restitution,

see § 18-1.3-603(1)(a); (2) order that Lagunas was liable for

restitution but reserve determining the amount for a later date, see

§ 18-1.3-603(1)(b); (3) order Lagunas to pay the actual cost of

specific future treatment for the victim, see § 18-1.3-603(1)(c); or

(4) order no restitution, see § 18-1.3-603(1)(d). Thus, “because the

district court failed to enter at least one of the four restitution

orders authorized by subsection (1), [Lagunas] received an illegal

sentence.” Snow, ¶ 23.

7 ¶ 15 The People attempt to distinguish this case from Snow,

arguing that the record establishes that the district court “intended

to effectuate a subsection (1)(b) order of restitution that found

Lagunas liable for restitution but that the specific amount was

deferred for later determination.” Essentially, the People argue that

we may imply from the surrounding circumstances that the court

only deferred determination of the amount of restitution, rather

than reserving restitution in its entirety as prohibited by Snow. The

People highlight that (1) Lagunas’ plea agreement addressed

restitution; (2) the court addressed restitution at the providency

hearing; (3) the presentence investigation (PSI) report recommended

that Lagunas “pay restitution as ordered”; and (4) the court

acknowledged the PSI and heard evidence about the victim’s

injuries as part of the sentencing hearing. We are not persuaded.

¶ 16 First, although Lagunas’ plea agreement addressed restitution,

we disagree with the People that it reflects Lagunas’ agreement to

be liable for restitution, subject only to determination of the

amount. In the plea agreement, Lagunas agreed that the

prosecution could “reserve restitution” and that restitution would

be “as ordered by the [c]ourt.” He also stipulated to proximate

8 cause “for purposes of restitution,” relieving the prosecution of its

burden to prove causation at a restitution hearing. See

§ 18-1.3-602(3)(a), C.R.S. 2025 (defining restitution as pecuniary

losses suffered by a victim and “proximately caused by an offender’s

conduct”). But he did not agree that he was liable for restitution.2

¶ 17 Second, at the providency hearing, restitution was mentioned

only once, when the court reviewed the basic terms of the plea with

Lagunas. The court reminded Lagunas that the prosecution would

be “reserving restitution” and that Lagunas would be stipulating to

proximate causation “for the purposes of any restitution requests.”

(Emphasis added.) Again, that the court used the word “any” before

“restitution requests” — a word not used in the plea agreement

itself — makes clear that no such request had been made or

granted. The People argue that, by accepting the plea, the court

accepted Lagunas’ “stipulation to proximate causation and, thus,

2 We understand the People’s argument to be that Lagunas’ plea

provides relevant context for the district court’s order at sentencing that would allow us to imply a valid subsection (1)(b) order. To the extent the People contend that Lagunas waived the court’s compliance with section 18-1.3-603(1), C.R.S. 2024, through the plea agreement, we disagree because Lagunas cannot waive the illegality of his sentence. See People v. Bottenfield, 159 P.3d 643, 645 (Colo. App. 2006).

9 that he was liable for restitution.” But we have rejected the People’s

interpretation of the plea agreement as reflecting Lagunas’

agreement to be liable for restitution. And, in any event, the court

was not bound by the terms of the plea agreement. See People v.

Mazzarelli, 2019 CO 71, ¶¶ 20-21 (a trial court is not bound by the

terms of a plea agreement simply by accepting the guilty plea).

¶ 18 Third, that Lagunas’ PSI recounted the need for medical

intervention to address the victim’s injuries and recommended that

Lagunas pay restitution does not change our view of the court’s

order at sentencing. The PSI said nothing about the victim being

responsible for medical bills, nor did it indicate that the victim was

seeking restitution. And though the victim attended the sentencing,

she did not speak and did not otherwise request restitution. Thus,

while we recognize, as the People argue, that the existence of the

PSI is a factual difference between this case and Snow, we do not

think it distinguishes this case from Snow.

¶ 19 It is true that it would be reasonable to infer that the victim

here suffered a pecuniary loss. But the existence of such a loss

does not automatically transform the district court’s order at

sentencing into a valid subsection (1) order. Indeed, Snow was a

10 homicide — another case in which it would have been reasonable

for the sentencing court to anticipate that restitution may be

requested. Nevertheless, as the supreme court made clear in Snow,

the district court cannot account for such an anticipated request by

reserving the entire issue for future resolution.

¶ 20 Finally, we are not persuaded that, by merely acknowledging

the PSI and focusing on the severity and permanency of the victim’s

injuries when sentencing Lagunas, the court entered a valid

subsection (1)(b) order. As noted, the prosecution did not request

restitution — or even say the word restitution — at the sentencing

hearing. And the court’s order as to restitution, in its entirety, said:

“I will give the People [sixty] days to file any request for restitution

in this case. If one is filed, I will give your attorney [fourteen] days

to object.” Even when considering the surrounding

circumstances — including the plea agreement, PSI, and sentencing

arguments — we cannot conclude that the court implicitly ordered

Lagunas to pay restitution (reserving only the determination of the

amount for a later date) under section 18-1.3-603(1)(b). See Snow,

¶ 29 (“Under these circumstances, there is no basis for us to infer

that the only issue the district court deferred until after the

11 sentencing hearing was the determination of the amount of

restitution.”).

¶ 21 We acknowledge that the facts of this case fall somewhere

between Snow — which we have discussed at length — and

Weeks — which “was a subsection (1)(b) case.” Snow, ¶ 28. At the

sentencing in Weeks, “the prosecutor asked that the issue of

restitution ‘remain open,’” and the trial court ordered, “I will leave

restitution open for ninety-one days.” Weeks, ¶ 11. The court set a

briefing schedule and explained, “If no request is made, I’ll rule on

the pleadings.” Id. Yet the supreme court determined that the

discussion in Weeks “reflected that the trial court had invoked

subsection (1)(b).” Snow, ¶ 28.

¶ 22 The language the court used in this case is similar to the

language the trial court used in Weeks. Even so, we conclude that

we lack a valid subsection (1)(b) order in this case for two reasons.

¶ 23 First, the question of whether the trial court in Weeks entered

a valid subsection (1) order was not before the supreme court in

that case. See id. at ¶ 28 n.9. As explained in Snow,

[T]he appeal in Weeks revolved around subsection (1)(b). The defendant challenged the judgment entered on the post-sentencing

12 determination of the restitution amount. Accordingly, before us, the parties briefed issues exclusively related to the procedures and deadlines applicable when, at sentencing, a trial court enters a subsection (1)(b) order finding restitution liability and deferring the determination of the restitution amount.

Id. (second emphasis added) (citations omitted).

¶ 24 Second, Snow was careful to point out certain facts supporting

an implicit finding of restitution liability in Weeks: (1) “at

sentencing, the prosecution . . . advised that it had already decided

it would be requesting restitution and that it intended to identify

the proposed amount of restitution after sentencing,” Snow, ¶ 28

(citing Weeks, ¶ 11); (2) before the hearing, “the trial court had

previously granted the prosecution’s request for an amount of

restitution in the codefendant’s case based on the same pecuniary

losses suffered by the same victim in the same incident,” id. (citing

Weeks, ¶ 11 n.6); and (3) “following the sentencing hearing, the

court confirmed that, at sentencing, it had entered an order

allowing the prosecution ninety-one days to submit the restitution

information,” id. (citing Weeks, ¶ 16). None of these facts are

present in Lagunas’ case.

13 ¶ 25 In the end, we conclude that, because the district court failed

to enter one of the orders required by section 18-1.3-603(1) at

sentencing, Lagunas’ sentence was illegal. See id. at ¶ 23. The

deficiency could not be cured by the court’s entry of a

post-sentencing order obligating Lagunas to pay a sum certain in

restitution. See id. at ¶ 37. The sole available remedy is to vacate

the untimely restitution order and enter an order under

subsection (1)(d) that no restitution is owed. Id. at ¶ 38.

IV. Disposition

¶ 26 We vacate the restitution order and remand the case to the

district court to enter an order under section 18-1.3-603(1)(d) that

no restitution is owed.

JUDGE TOW and JUDGE SCHOCK concur.