22CA1377 Peo v Lewicke 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1377 Larimer County District Court No. 21CR169 Honorable Daniel M. McDonald, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Geoffrey James Lewicke,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE TOW Lipinsky and Grove, JJ., concur
Prior Opinion Announced March 28, 2024, Vacated in 24SC390
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Levin Jacobson Japha P.C., David C. Japha, Evan J. House, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Geoffrey James Lewicke, appeals his judgment of
conviction entered on a jury verdict finding him guilty of attempted
second degree murder and several other offenses.
¶2 We previously issued an opinion affirming in part and
reversing in part. People v. Lewicke, (Colo. App. No. 22CA1377,
Mar. 28, 2024) (not published pursuant to C.A.R. 35(e)).
Specifically, we rejected Lewicke’s contentions that several trial
errors warranted reversal. But we concluded that the trial court
erred with respect to restitution, and we agreed with the parties
that the mittimus inaccurately reflected the parole period. Lewicke
sought certiorari on one of the trial error contentions (involving a
challenge to the prosecutor’s voir dire) and the division’s resolution
of the restitution challenge.
¶3 While Lewicke’s certiorari petition was pending, the supreme
court decided a collection of cases involving restitution-related
issues not resolved in People v. Weeks, 2021 CO 75: Johnson v.
People, 2025 CO 29; People v. Roberson, 2025 CO 30; Tennyson v.
People, 2025 CO 31; and Snow v. People, 2025 CO 32. Shortly
thereafter, the supreme court granted certiorari in this case,
vacated our judgment, and remanded for reconsideration in light of
1 Johnson, Tennyson, and Snow. Lewicke v. People, (Colo. No.
24SC390, Aug. 4, 2025) (unpublished order).
¶4 Having reconsidered the matter, we again reject Lewicke’s
challenges to his conviction. But we vacate the restitution order
and remand for entry of an order that no restitution is owed and for
correction of the mittimus.1
I. Background
¶5 From the evidence presented at trial, a jury could reasonably
have found the following.
¶6 One evening, Lewicke invited two friends, Jenna
Holmstrom-Wetzel and Jessica Delapp, to hang out at his house.
They all drank together and consumed cocaine.
¶7 According to Delapp, Lewicke had been “getting kind of
aggressive” as the night progressed. She was concerned, and
eventually she asked Holmstrom-Wetzel to step outside with her
and smoke a cigarette.
1 The supreme court’s remand instructions pertain only to the
restitution issue. Nevertheless, because the supreme court’s order vacating our judgment was not restricted or qualified in any way, it effectively abrogated our entire original opinion. So we reiterate our analysis and conclusions on the other issues.
2 ¶8 While they were outside, Delapp looked through a window and
saw Lewicke “chug[] alcohol” and then turn off the lights and lock
the back door. Holmstrom-Wetzel went to the door to ask for her
phone and keys, which she had left inside, but Lewicke would not
let her in. While Holmstrom-Wetzel was at the back door, Delapp
waited further away because she was “terrified.” Lewicke then shot
through the door, striking Holmstrom-Wetzel in the face, severely
injuring her.
¶9 Holmstrom-Wetzel and Delapp left and called an ambulance.
When police later arrived at Lewicke’s house, he had barricaded
himself inside. Eventually, the police rammed through his door,
and he surrendered. Among the several guns police found in his
home was a nine millimeter handgun suspected to have been used
against Holmstrom-Wetzel.
¶ 10 Lewicke was charged with attempted first degree murder,
among other offenses. At trial, Lewicke testified that he was likely
responsible for shooting Holmstrom-Wetzel:
DEFENSE COUNSEL: Do you have any doubt now that you probably are the person that hurt her?
3 LEWICKE: Unfortunately, yeah. It’s not fun finding out you hurt one of your best friends . . . .
DEFENSE COUNSEL: Do you have any idea how the shot got through the door?
LEWICKE: It looks like I — looks like I did it, because there was no one else in the house at the time.
However, Lewicke emphasized that he had no reason to want to
hurt Holmstrom-Wetzel. He also reiterated that he had memory
issues and that he could not remember the shooting.
¶ 11 The jury found Lewicke guilty of attempted second degree
murder, second degree assault, reckless endangerment, and
prohibited use of a weapon.
II. Trial Issues
¶ 12 Lewicke raises three issues with his trial. Because none of the
issues is preserved, we review them for plain error. Hagos v. People,
2012 CO 63, ¶ 14. Plain errors are obvious and substantial. Id.
For an error to be obvious, it “must contravene (1) a clear statutory
command; (2) a well-settled legal principle; or (3) Colorado case
law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting People v. Pollard,
2013 COA 31M, ¶ 40), abrogated on other grounds by, Whiteaker v.
People, 2024 CO 25. Further, we reverse only if the error “so
4 undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction.” Id. at ¶ 15
(citing People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
¶ 13 Lewicke contends that the trial court erred by not sua sponte
(1) correcting the prosecutor’s statements on gun control during
voir dire; (2) denying the admission of Lewicke’s guns into evidence
(except for the nine millimeter involved); and (3) correcting the
prosecutor’s closing argument, which, according to Lewicke,
expressed improper opinions and referenced facts not in evidence.
We discern no reversible errors.
A. Voir Dire Inquiries
¶ 14 Lewicke argues that, during voir dire, the prosecutor
improperly asked potential jurors about their feelings on gun
control. We disagree.
¶ 15 The purpose of voir dire is to “allow[] counsel to determine
whether any potential jurors possessed any beliefs that would bias
them such as to prevent . . . a fair trial.” People v. O’Neill, 803 P.2d
164, 169 (Colo. 1990). This is a case involving gun violence, and
gun control is a sensitive topic that could improperly influence a
juror’s reasoning. Thus, we are not convinced that the trial court
5 abused its discretion by permitting this line of inquiry. People v.
Flockhart, 2013 CO 42, ¶ 37 (“[T]he ‘propriety of questions to
potential jurors on voir dire is within the discretion of the trial
court, and its ruling thereon will not be disturbed on appeal unless
an abuse of that discretion is shown.’” (quoting People v. Collins,
730 P.2d 293, 300 (Colo. 1986))).
¶ 16 In any event, the cases Lewicke cites to support his contention
that voir dire was improper and undermined the fairness of his trial
are distinguishable. They involve jurors commenting on the
credibility of witnesses or on the bad character of a defendant —
neither of which occurred here. See Mach v. Stewart, 137 F.3d 630,
632, 634 (9th Cir. 1997) (finding prejudice when prospective juror,
a social worker for child protective services, said sexual assault had
been confirmed whenever a child had made an accusation); State v.
McMahon, 894 P.2d 313, 316 (Mont. 1995) (finding prejudice when
prospective jurors commented on defendant’s reputation, and one
said she was fearful of him). Moreover, both cases are from other
jurisdictions, and thus they fail to establish that permitting this
particular inquiry ran afoul of “well-settled legal principle[s]” or
“Colorado case law” sufficient to make any error obvious. Scott,
6 ¶ 17 (“[A]n error is generally not obvious when nothing in Colorado
statutory or prior case law would have alerted the trial court to the
error.”).
B. Admission of Multiple Guns
¶ 17 Lewicke next contends that the trial court abused its
discretion by admitting into evidence his guns that were not used in
the shooting. (Lewicke does not challenge the admission of the gun
that was used in the shooting.) We disagree.
¶ 18 Initially, we note that Lewicke again relies largely on case law
from other states to argue that the admission of his guns was
erroneous. He contends there was no “sufficient nexus” between
the guns and the crimes charged, and thus the guns were
inadmissible. See, e.g., People v. Maldonado, 608 N.E.2d 499, 505
(Ill. App. 1992) (concluding that a weapon may be admitted if there
is a sufficient nexus between the weapon and the crime alleged,
meaning that there must be a showing that the weapon is “suitable
for the crime charged”). But we are aware of no Colorado authority
establishing such a narrowly defined “sufficient nexus” requirement
for the admission of firearm evidence. To the contrary, under
Colorado case law, “although it is not claimed nor proved that the
7 articles introduced in evidence were actually used in the
commission of the crime, a weapon or other instrument found in
the possession of the accused when arrested has been held
admissible as part of the history of the arrest.” Davis v. People, 321
P.2d 1103, 1105 (Colo. 1958); see also People v. Watson, 650 P.2d
1340, 1343 (Colo. App. 1982) (concluding that “weapons found
during a search are admissible as a part of the history of the arrest,
notwithstanding that there is no evidence that they were used in
the commission of the crime” (citing Hafer v. People, 492 P.2d 847,
850 (Colo. 1972))).2
¶ 19 To the extent Lewicke proffers the “sufficient nexus” argument
as a relevancy challenge, we reject it. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
2 We recognize that this line of cases is perhaps a vestige of the res
gestae doctrine, which our supreme court has since abolished. See Rojas v. People, 2022 CO 8, ¶ 41. But that connection is not entirely clear; notably, Rojas did not explicitly overrule or abrogate these cases. Thus, the trial court and we are bound by Davis v. People, 321 P.2d 1103 (Colo. 1958). In any event, the fact that these opinions remain undisturbed defeats any claim that admission of the guns was contrary to existing law and thus obvious error.
8 less probable than it would be without the evidence.” CRE 401.
The People contend that the guns were relevant to Lewicke’s
consciousness of guilt. Specifically, the People contend that, when
combined with the evidence that Lewicke barricaded himself inside
the house after the shooting, a jury could reasonably infer that he
knew he had shot Holmstrom-Wetzel and understood the
seriousness of his actions — thus refuting his claims of intoxication
and lack of memory. The People also assert that the manner in
which the guns were found undermined the credibility of Lewicke’s
statements, made shortly after the incident, regarding his handling
and storage of the weapons.3
¶ 20 We agree with the People. The evidence of the guns was
particularly relevant to Lewicke’s credibility, as well as, albeit to a
lesser extent, his consciousness of guilt.
¶ 21 Lewicke also challenges the gun evidence under CRE 403. He
relies on People v. Allgier, 2018 COA 122, ¶ 35, for the notion that
3 At oral argument, the People proffered a third justification: that
the arsenal of loaded weapons strewn about the home supported the prosecution’s theory of the case that Lewicke shot Holmstrom-Wetzel with the goal of setting up a violent confrontation with police to get himself killed. We do not consider this argument, however, as it was raised too late.
9 there was “at least some possibility of prejudice” in admitting the
guns into evidence. But the possibility of prejudice alone does not
amount to a CRE 403 violation. Rather, the prejudice must be
unfair and must substantially outweigh the evidence’s probative
value. CRE 403. Moreover, “[b]ecause the balance required by
CRE 403 favors admission, a reviewing court must afford the
evidence the maximum probative value attributable by a reasonable
fact finder and the minimum unfair prejudice to be reasonably
expected.” People v. Elmarr, 2015 CO 53, ¶ 44 (quoting People v.
Rath, 44 P.3d 1033, 1043 (Colo. 2002)). Thus, even if Lewicke’s
plethora of firearms could have possibly prejudiced jurors who
disliked guns (or, for that matter, jurors who were responsible gun
owners), the court did not abuse its discretion by admitting the
guns given that they were probative of Lewicke’s consciousness of
guilt and credibility. See id. at ¶ 20 (“Trial courts have broad
discretion in determining the admissibility of evidence based on its
relevance, its probative value, and its prejudicial impact.”).
C. Closing Argument
¶ 22 We also reject Lewicke’s claim that prosecutorial misconduct
during closing arguments warrants reversal because the prosecutor
10 (1) expressed improper opinions and (2) referenced facts not in
evidence.
¶ 23 First, Lewicke contends that each of the following statements
was improper:
• The prosecutor’s argument that Holmstrom-Wetzel’s
recounting of events was “extremely credible under those
circumstances.”
• The prosecutor’s comment that “we know that [Lewicke]
doesn’t have memory problems; he has [attention deficit
disorder (ADD)].”
• The prosecutor’s statement that Lewicke’s explanation of
Holmstrom-Wetzel’s location at the time of the shooting was
“clearly . . . not credible.”
¶ 24 But a prosecutor may argue that a witness’s testimony was or
was not credible, so long as the arguments are anchored in the
evidence. Domingo-Gomez v. People, 125 P.3d 1043, 1051 (Colo.
2005). And each of these statements was connected to facts in
evidence:
• The statement about Holmstrom-Wetzel’s credibility addressed
her ability to recall facts after waking from a coma. The
11 prosecutor was arguing that Holmstrom-Wetzel was a credible
witness even though “she may not have gotten things perfect”
during her testimony due to “the effect of trauma and the fact
that she had been in a coma for a week.”
• The comment about Lewicke’s memory, seen in context, was
not a statement of the prosecutor’s personal opinion but,
rather, a reference to Lewicke’s testimony that doctors had
only diagnosed Lewicke with ADD and not with “memory
problems.”
• The prosecutor’s argument regarding Lewicke’s description of
Holmstrom-Wetzel’s location when she was shot reminded the
jury that the evidence showed that, at the time of the shooting,
Lewicke had a clear view of Holmstrom-Wetzel; when viewed in
context, the prosecutor was asking the jury to conclude that
Lewicke’s testimony regarding Holmstrom-Wetzel’s location at
the time of the shooting was not credible.
In short, none of the statements was an expression of the
prosecutor’s personal opinion.
¶ 25 Likewise, the statement Lewicke contends was an opinion on
Lewicke’s guilt was not improper. The prosecutor asked the jury to
12 consider all the facts and reach “the only verdicts that were
consistent with the truth of the case.” This was “simply asking the
jury to make a reasonable inference that defendant was guilty
based on the evidence presented at trial.” People v. Villa, 240 P.3d
343, 358 (Colo. App. 2009) (holding that the prosecutor’s closing
argument to “[f]ind [defendant] guilty, because he is guilty” was not
a personal opinion of defendant’s guilt but, rather, a request that
the jury reasonably infer guilt based on the evidence).
¶ 26 Second, Lewicke contends that the prosecutor referenced facts
not in evidence during closing argument. Specifically, the
prosecutor told the jury that Lewicke had “patted the gun in his
holster” as he made a comment to Delapp that he could “pull a gun
and take you guys out with me.” However, Delapp testified that she
did not see a gun. Nor did she describe Lewicke wearing or patting
a holster, though she did say that he “like motioned.”
¶ 27 A prosecutor is not permitted to intentionally misstate
evidence or mislead the jury as to inferences it may draw from that
evidence. Domingo-Gomez, 125 P.3d at 1049. The People contend
that the prosecutor did not misstate the evidence (or at least did not
intentionally do so) because (1) Delapp testified that, though she did
13 not see a gun, Lewicke “motioned” as he made the statement; and
(2) Lewicke had a holster on his waistband when he was arrested.
¶ 28 But we need not determine whether the prosecutor
intentionally misstated the evidence because even assuming without
deciding that the statement was improper, it does not warrant
reversal. Reversal under a plain error standard is not required
when there is overwhelming evidence to support the conviction. See
Martinez v. People, 2017 CO 36, ¶ 38 (considering overwhelming
evidence in rejecting argument that jury’s access to out-of-court
interviews was plain error); People v. Martinez, 2020 COA 141, ¶ 76
(considering overwhelming evidence when rejecting argument that
evidentiary error was plain); cf. Bartley v. People, 817 P.2d 1029,
1034 (Colo. 1991) (holding that overwhelming evidence rendered
constitutional error harmless beyond a reasonable doubt after
assuming aerial surveillance evidence was wrongly admitted). And
there was overwhelming evidence that Lewicke knowingly shot
Holmstrom-Wetzel.
¶ 29 Holmstrom-Wetzel testified that, after she knocked on the
locked door and asked to get her belongings, she heard “a cocking
of the gun”; she again knocked and asked to retrieve her
14 possessions, took one step, and then was shot through the door.
Lewicke did not contradict Holmstrom-Wetzel’s testimony, nor did
he contradict Delapp’s description of the veiled threat to “take [the
women] out.” Instead, he asserted that he had no recollection of
much of the night. Despite his lack of memory, though, he
acknowledged that he was likely the person who shot
Holmstrom-Wetzel because “there was no one else in the house at
the time.”
¶ 30 Moreover, no testimony or other evidence suggested that
Lewicke acted with mere negligence or recklessness. Consistent
with the evidence presented, the jury convicted Lewicke of
attempted second degree murder and second degree assault.
Therefore, in light of the overwhelming weight of the evidence, any
error does not cause us to doubt the reliability of the judgment of
conviction. See Hagos, ¶ 14.4
4 We also reject Lewicke’s cumulative error claim. We have identified at most a single error — mischaracterization of the evidence during closing. See Howard-Walker v. People, 2019 CO 69, ¶ 25.
15 III. Restitution
¶ 31 Lewicke next challenges the trial court’s orders regarding
restitution, both as contained in the judgment of conviction entered
on July 1, 2022, and in a separate order for restitution entered on
November 2, 2022. Specifically, he contends that the trial court
erred at sentencing by reserving restitution “on an ongoing basis.”
In light of Snow, we agree.
A. Additional Background
¶ 32 At sentencing, the prosecutor informed the trial court that
Holmstrom-Wetzel said in her victim impact statement that her
medical costs were “ongoing,” and, thus, they were not yet
“enumerated.” The prosecutor requested that, for this reason, the
court “make a finding of good cause to allow the People to file for
restitution on an ongoing basis as that information comes in to us.”
The trial court agreed that there was “good cause to preserve the
right to file for ongoing restitution” and, accordingly, noted in the
judgment of conviction that restitution was “reserved on an ongoing
basis.”
16 B. Standard of Review and Applicable Law
¶ 33 We review the legality of a sentence de novo. People v.
Wiseman, 2017 COA 49M, ¶ 22. A sentence is illegal if it is
“inconsistent with the statutory scheme outlined by the legislature.”
Id. (quoting People v. Wenzinger, 155 P.3d 415, 418 (Colo. App.
2006)).
¶ 34 Colorado’s sentencing statute requires that every judgment of
conviction include one or more of four specific orders regarding
restitution:
(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
17 therefore no order for the payment of restitution is being entered.
§ 18-1.3-603(1), C.R.S. 2022.5 A sentence that does not include at
least one of these four provisions is illegal and must be corrected.
Snow, ¶ 24.
C. Tennyson, Johnson, and Snow
¶ 35 As noted, the supreme court instructed us on remand to
reconsider our previous opinion in light of its decisions in
Tennyson, Johnson, and Snow.
¶ 36 In Tennyson, the supreme court held that when the trial court
enters a proper (albeit implicit) order at sentencing under section
18-1.3-603(1)(b) that establishes the obligation to pay restitution
but defers until later the determination of the amount the
defendant will owe, any challenge to the timeliness of the ultimate
determination of that amount is a claim that the sentence was
imposed in an illegal manner. Tennyson, ¶ 45.
5 Section 18-1.3-603 was amended in 2025, but the amendments
only apply to “defendants sentenced on or after” May 30, 2025. See Ch. 307, sec. 1, § 18-1.3-603, 2025 Colo. Sess. Laws 1606-07. For the remainder of this opinion, references to section 18-1.3-603 are to the statute in effect in 2022.
18 ¶ 37 The opinion in Tennyson has little bearing on this case, as
Lewicke asserted his challenge to the restitution order in his direct
appeal rather than in a Crim. P. 35(a) proceeding. We do, however,
recognize that, in Tennyson, the supreme court gave effect to an
implicit determination of the obligation to pay restitution;
specifically, it treated as an implicit section 18-1.3-603(1)(b) order
the sentencing court’s language giving the prosecution ninety days
to determine “not whether there would be restitution, but rather
‘what restitution is due and owing.’” Id. at ¶¶ 10, 45. Thus, the
case also stands for the proposition that compliance with section
18-1.3-603(1)(b) can be implied from the sentencing order. This
aspect of the case is relevant to our analysis, as we discuss below.
¶ 38 In Johnson, the supreme court held that the statutory
deadline for determining the amount of restitution is not
jurisdictional and can therefore be waived. Johnson, ¶ 25. The
court concluded that the defendant waived his challenge to the fact
that restitution was not ordered at sentencing because he signed a
plea agreement that said restitution would be determined within
ninety-one days after sentencing. Further, the defendant waived
the untimeliness of the ultimate determination of the amount of
19 restitution because he did not object to the sentencing court’s
scheduling order that would necessarily delay the resolution of the
prosecution’s restitution request until after the statutory period had
expired.
¶ 39 As with Tennyson, the court’s opinion in Johnson has little
bearing on this case. Lewicke did not enter a plea agreement. Nor
was there any scheduling order to which Lewicke failed to object
that necessarily resulted in the determination of the amount of
restitution after expiration of the statutory period. More
importantly, Johnson did not involve a sentence that failed to
include one of the four restitution provisions; the court entered a
valid order under section 18-1.3-603(1)(b). Here, in contrast, for
reasons we discuss below, the error in Lewicke’s sentence is the
absence of any of the four required provisions at the time of
sentencing. In other words, while Johnson (and Tennyson) involved
the determination of the amount of restitution, this case centers on
whether there was a timely determination of the obligation to pay
restitution.
¶ 40 We turn, then, to the impact of Snow. In Snow, the supreme
court held that the sentence was illegal because the sentencing
20 order failed to include one of the four statutory provisions
establishing the obligation to pay restitution. Snow, ¶ 23.
Moreover, the court held that the sole remedy for such an illegal
sentence is vacatur of the untimely restitution order and entry of an
order under section 18-1.3-603(1)(d) that no restitution is owed. Id.
at ¶ 38.
D. Analysis
¶ 41 As noted, the trial court ordered that restitution was “reserved
on an ongoing basis.” This may have been intended as a section
18-1.3-603(1)(b) order because the prosecutor had indicated he
could not yet determine the amount of restitution. See § 18-1.3-
603(2)(a) (authorizing reservation of restitution for ninety-one days
if the restitution information is “not available prior to the order of
conviction”). Or the trial court may have intended to order,
pursuant to section 18-1.3-603(1)(c), that Lewicke owed restitution
“covering the actual costs of specific future treatment” for
Holmstrom-Wetzel. The restitution language in the judgment of
conviction does not give us any indication which of the two orders
the trial court intended.
21 ¶ 42 Nor does the language satisfy either provision. By definition,
“ongoing” does not establish a closed-end ninety-one-day period.
And the court did not identify what “specific future treatment” (or
treatments) Lewicke would be responsible for. Certainly, the
prosecutor’s statement that Holmstrom-Wetzel had “ongoing
medical costs” that had “not been enumerated yet” provided
justification to grant the prosecution more time to submit
restitution information. And given Holmstrom-Wetzel’s horrific
injuries (which, according to her victim impact statement, included
“a shattered cheekbone, broken eye socket, slashed palate, broken
lower jaw, slashed nasal septum, injured sinus and lost [two]
teeth”), it is possible that she would need to undergo one or more
specific treatments for some time, thus justifying a proper section
18-1.3-603(1)(c) order. But the order reserving restitution “on an
ongoing basis” does neither.
¶ 43 Further, while Tennyson permits us to give effect to a
sentencing court’s implicit determination of the obligation to pay
restitution in compliance with section 18-1.3-603(1), we do not
think the trial court’s language is sufficiently clear to give it such
effect. The court did not say that the amount of restitution was to
22 be determined on an ongoing basis; rather, the mittimus said
“restitution reserved on an ongoing basis.”6 In our view, this
language is not sufficient to imply the determination that Lewicke
was responsible for restitution but that the amount would be
determined later. Nor, in our view, can the order be read as
implicitly ordering restitution for the actual costs of specific future
treatment, as there was no specificity at the time of sentencing as to
what treatment or treatments Holmstrom-Wetzel was undergoing.7
¶ 44 We pause to note an arguable disconnect between the
narrowness of the factual scenario in Snow and the breadth of the
supreme court’s holding in the case. In describing the facts of the
case, the supreme court noted, “As pertinent here, the prosecution
did not request restitution or give any indication that it intended to
seek restitution. Instead, it simply asked the court ‘to reserve
6 With respect to the second degree assault sentence, the mittimus
uses slightly different language: “[R]estitution to be filed on an ongoing basis.” 7 Indeed, even the ultimate restitution order was, at least in part,
insufficiently tied to specific future treatment. The trial court broadly ordered that Lewicke would be responsible “for the actual costs of the ongoing or future treatment of [Holmstrom-Wetzel] for medical expenses pertaining to this case and mental health therapy.”
23 restitution at this point in time.’” Snow, ¶ 7. Indeed, in a footnote,
the court further emphasized that the prosecutor did not “even so
much as inform the court and Snow that it intended to seek
restitution, until it submitted the restitution information some two-
and-a-half months after the sentencing hearing.” Id. at ¶ 38 n.13.
¶ 45 Nevertheless, the court did not narrow its holding to scenarios
in which such facts were present. Rather, it broadly held that the
sentence was not authorized by law “because the mere reservation
of the issue of restitution in its entirety failed to adhere to
subsection [18-1.3-603](1).” Id. at ¶ 22. Further, “because the
district court failed to enter at least one of the four restitution
orders authorized by subsection [18-1.3-603](1), Snow received an
illegal sentence.” Id. at ¶ 23. Perhaps most importantly, the court
did not leave any room for the application of a remedy other than
vacatur and remand for an order that no restitution is owed.
¶ 46 The People argue that Snow is distinguishable from this case
because everyone in this case knew the prosecution would
eventually seek extensive restitution. The prosecutor began his
sentencing argument by noting that the victim’s impact statement
indicated there were ongoing medical costs that had not yet been
24 “enumerated.” The defense attorney urged the court to impose the
minimum prison sentence specifically because “[t]here’s going to be
a substantial amount of restitution due and owing in this case, and
he is not going to be paying any of it while he is in the penitentiary.”
And the court said that it had “heard testimony, evidence, and [it]
has read plenty that there are going to be ongoing medical bills that
we do not know yet and cannot be quantified today.”
¶ 47 We note that the mere fact restitution was actually
contemplated at sentencing is not dispositive. In Weeks, the
prosecutor informed the court at sentencing that “he would be
seeking restitution but hadn’t filed a motion yet.” Weeks, ¶ 11. As
a result, the sentencing court in that case entered an order under
section 18-1.3-603(1)(b), establishing the defendant’s obligation to
pay restitution but reserving determination of the amount. Id.
Nevertheless, because that amount was not determined within the
statutory timeline, the supreme court held that vacating the
restitution order was the proper remedy. Id. at ¶ 28; see also Snow,
¶ 31 (“We chose the remedy of vacatur in Weeks because we could
conceive of no other appropriate remedy” for the failure to comply
with the statute.).
25 ¶ 48 Similarly, here, the trial court did not comply with the statute.
As noted, the court neither (1) ordered that Lewicke was responsible
for restitution while reserving for ninety-one days the determination
of the amount of restitution nor (2) ordered at sentencing that
Lewicke was obligated to pay all costs of any specific treatment or
treatments. Instead, the court allowed the prosecution to, “on an
ongoing basis, file for restitution.” The restitution statute simply
does not allow for that path.
¶ 49 Thus, factual distinctions notwithstanding, we are bound by
the supreme court’s holding in Snow that a sentence is illegal if the
district court fails to enter “at least one of the four restitution orders
authorized” by the restitution statute.” Snow, ¶ 23. And because
Lewicke’s sentence is illegal in this way, under Snow, the sole
remedy is vacatur of the restitution order and remand for the
imposition of an order that no restitution is owed. Id. at ¶ 38.
IV. Mittimus
¶ 50 Finally, Lewicke and the People agree that the mittimus
misstates the term of parole associated with Lewicke’s attempted
second degree murder conviction. Attempted second degree murder
is a class 3 felony. See § 18-2-101(4), C.R.S. 2025 (“[C]riminal
26 attempt to commit a class 2 felony is a class 3 felony.”); § 18-3-
103(3)(a), C.R.S. 2025 (“[M]urder in the second degree is a class 2
felony.”). The mandatory parole period for a class 3 felony is thirty-
six months. § 18-1.3-401(1)(a)(V.5)(A), C.R.S. 2025. But the
mittimus reflects a mandatory parole period of sixty months.
Because the trial court will have to issue a new mittimus reflecting
that no restitution is owed, we direct the trial court to note the
correct parole period on the new mittimus.
V. Disposition
¶ 51 The order for restitution is vacated. The case is remanded for
entry of an order pursuant to section 18-1.3-603(1)(d) that no
restitution is owed and an amended mittimus reflecting the correct
parole period. The judgment of conviction is otherwise affirmed.
JUDGE LIPINSKY and JUDGE GROVE concur.