23CA0250 Peo v Rodriguez 08-14-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0250 Arapahoe County District Court No. 21CR1325 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joshua Rodriguez,
Defendant-Appellant.
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Gomez and Lum, JJ., concur
Prior Opinion Announced January 23, 2025, Vacated in 25SC122
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 14, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 This case is before us again after the Colorado Supreme Court
vacated our opinion in People v. Rodriguez, (Colo. App. No.
23CA0250, Jan. 23, 2025) (not published pursuant to C.A.R. 35(e))
(Rodriguez I), and remanded with directions for us to reconsider
Rodriguez I in light of five later announced cases: Johnson v. People,
2025 CO 29; People v. Roberson, 2025 CO 30; Babcock v. People,
2025 CO 26; Tennyson v. People, 2025 CO 31; and Snow v. People,
2025 CO 32. People v. Rodriguez, (Colo. No. 25SC122, June 30,
2025) (unpublished order). In Rodriguez I, we concluded that the
district court ordered defendant, Joshua Rodriguez, to pay
restitution without authority because it issued its order 315 days
after sentencing without finding good cause to extend the statutory
deadline. See § 18-1.3-603(1)(b), C.R.S. 2021.1 Concluding that
these cases support our original disposition, we vacate the
1 At the time of the offense in 2021, district courts had ninety-one
days following the order of conviction to determine a specific amount of restitution. § 18-1.3-603(1)(b), C.R.S. 2021. In 2025, the General Assembly amended the deadline such that district courts must determine a specific amount of restitution within sixty- three days following the later of (1) the prosecution’s presentation of restitution information or (2) the order of conviction. Ch. 307, sec. 1, § 18-1.3-603(1)(b), 2025 Colo. Sess. Laws 1606. All citations to section 18-1.3-603 in this opinion are to the 2021 statute.
1 restitution order and remand for the district court to correct the
mittimus to reflect that Rodriguez owes no restitution.
I. Background
¶2 Rodriguez was charged with sixteen counts in connection with
a police pursuit of a stolen car in Littleton, Colorado. In September
2021, he pleaded guilty to one count of second degree assault with
a deadly weapon. § 18-3-203(1)(b), C.R.S. 2024. The plea
agreement said restitution was “reserved.” In November 2021, at
the State’s request, the court entered an order obligating Rodriguez
to pay restitution, “the specific amount of which shall be
determined within 91 days following the order of conviction.” On
February 3, 2022, the State requested $25,531.76 in restitution.
¶3 At a February 18, 2022, sentencing hearing, the court entered
a judgment of conviction and said that “[r]estitution is hereby
ordered.” Defense counsel objected to the requested amount, and
the court set a hearing for March 29, 2022. The court did not order
restitution at the hearing but noted that it would issue “an order
relatively soon” and that it would “be a relatively quick order.”
¶4 Three months later, the court had not yet ordered restitution.
So, on June 30, 2022, Rodriguez requested a ruling. The court did
2 not respond. On November 16, 2022, Rodriguez again requested a
ruling, this time arguing that the court could not impose restitution
because the ninety-one-day deadline had lapsed. See § 18-1.3-
603(1)(b). On December 30, 2022, more than ten months (315
days) after sentencing, the district court issued an order imposing
$8,314.80 in restitution. The order did not address Rodriguez’s
statutory objection to restitution or the reason for the delay.
¶5 On appeal in Rodriguez I, Rodriguez argued that the district
court lacked authority to order restitution because it did so more
than ninety-one days after the judgment of conviction without
finding good cause to extend the deadline. No. 23CA0250, slip op.
at ¶ 8. We agreed that the court lacked authority to impose
restitution, so we did not reach Rodriguez’s alternative contention
that the court erred by imposing restitution for property damage
related to a dismissed charge. Id. at ¶ 24; see § 18-1.3-603(11). We
vacated the restitution order and remanded to the district court to
amend the mittimus to reflect that Rodriguez owed no restitution.
¶6 The State filed a petition for certiorari in April 2025, and our
supreme court announced several restitution cases while the
petition was pending. On remand, we reconsider Rodriguez I based
3 on those cases. We first consider the State’s contention that
Rodriguez waived his right to assert subsection (1)(b)’s deadline.
We also consider its argument that Rodriguez raised an illegal
manner claim, which it asks us to review for harmless error.
Because we conclude that the court lacked authority to impose
restitution, we do not reach Rodriguez’s second contention of error
from the original appeal concerning the amount of restitution.
II. Analysis
A. Waiver
¶7 The State argues that Babcock, Johnson, and Roberson
support a conclusion that Rodriguez waived his challenge to the
restitution order’s timeliness because he did not insist on a final
order within the deadline, and he did not raise the deadline “until
almost eight months after the restitution hearing.” Rodriguez
contends that these cases do not support waiver because the State
argued on appeal that he failed to preserve his challenge, and the
cases addressing waiver “involved situations where defense counsel
did something to waive the statutory deadline.” Because the State
did not argue waiver in the original appeal, we do not address the
merits of its argument here.
4 1. Standard of Review and Applicable Law
¶8 “We review de novo whether a claim is waived.” Babcock, ¶ 28.
The “waiver of a statutory right ‘must be voluntary, but need not be
knowing and intelligent.’” Id. at ¶ 29 (citation omitted). Waiver may
be explicit, through a party’s “express[] abandon[ment of] an
existing right or privilege,” or implicit, “when a party engages in
conduct that manifests an intent to relinquish a right or privilege or
acts inconsistently with its assertion.” Id. (citation omitted).
¶9 By statute, virtually all judgments of conviction must address
restitution. See § 18-1.3-603(1)(a)-(d). Of the four enumerated
types of restitution orders, we consider the second, “[a]n 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.” § 18-1.3-603(1)(b). Our
supreme court has explicitly held that district courts lack authority
to order restitution “after the ninety-one-day deadline in [section
18-1.3-603(1)(b)] expire[s]” unless “the court expressly finds good
5 cause” to extend the deadline “before the deadline expires.” People
v. Weeks, 2021 CO 75, ¶¶ 5, 40, 45 (emphases added).
¶ 10 In three of the five companion cases, our supreme court
considered whether subsection (1)(b)’s deadline is jurisdictional,
such that it cannot be waived, or directory, such that it can. E.g.,
Babcock, ¶¶ 17, 27. The court held that subsection (1)(b) is not
jurisdictional, so “its provisions can be waived.” Id. at ¶ 27. In the
first case, affirming a decision from a division of this court, the
court held that a defendant waived his right to assert subsection
(1)(b)’s deadline. Id. at ¶¶ 2, 31. Specifically, Babcock waived the
deadline by objecting to the prosecution’s proposed restitution
amount and requesting a hearing date more than ninety-one days
after the judgment of conviction. Id. at ¶¶ 3, 30. Rejecting
Babcock’s argument that Weeks controlled, the court noted that
“[w]aiver was not before [it] in Weeks; neither party raised the issue,
and [the court] didn’t address it.” Babcock, ¶ 10.
¶ 11 Next, Roberson, ¶ 2, considered whether “accept[ing] . . . a
hearing date outside the . . . deadline” amounted to waiver. There,
defense counsel requested additional time to review the proposed
restitution amount, agreed to a hearing after the statutory deadline,
6 and requested multiple continuances of the hearing. Id. at ¶¶ 7-8.
On the second day of the hearing, well over a year after sentencing,
Roberson objected to the court’s authority to impose restitution
because the deadline had passed. Id. at ¶ 8. On appeal, the State
argued that Roberson waived the deadline, a division of this court
disagreed, and the supreme court reversed. Id. at ¶¶ 9, 17.
¶ 12 As in Babcock, the court in Roberson distinguished Weeks,
noting that the State did not argue waiver in Weeks, “and Weeks, in
fact, asserted his statutory rights before the . . . deadline had
lapsed.” Roberson, ¶ 15 (explaining that, while Weeks first argued
that the court lacked authority to order restitution “at a defense-
requested hearing ten months after sentencing,” he made an earlier
objection, well before the deadline, arguing that the issue of
restitution could not remain open indefinitely (citing Weeks, ¶¶ 12-
14)). The court concluded that Roberson’s “failure to object to a
hearing outside the statutory deadline and subsequent repeated
requests for continuances — all without any mention of the . . .
deadline despite numerous opportunities to do so” — evidenced
waiver. Id. at ¶ 17.
7 ¶ 13 Finally, in Johnson, ¶ 31, the supreme court concluded that
“Johnson waived his claim that the court lost authority to impose
restitution.” It reasoned that Johnson did not raise the deadline
when the district court originally gave him sixty days after the
ninety-one-day deadline to object to restitution, nor did he object
when, on the ninety-first day, the district court ordered restitution
and gave Johnson thirty days to object to the amount and request a
hearing. Id. at ¶¶ 8-9, 31. Additionally, Johnson requested a
hearing after the deadline, requested multiple continuances, and
then argued at the hearing that the district court had good cause to
extend the deadline. Id. at ¶¶ 10, 31.
¶ 14 A split division of this court had held that the district court
made a valid good cause finding to extend the deadline, but the
majority did not consider waiver. Id. at ¶ 15. However, the
concurring judge had written that Johnson “waive[d] . . . any
challenge to restitution on the basis that the prosecution waited
ninety-one days to file its motion.”2 People v. Johnson, 2023 COA
2 Johnson also raised a challenge under section 18-1.3-603(2)(a),
which involves the prosecution’s deadline and is not applicable here. Johnson v. People, 2025 CO 29, ¶¶ 14, 19.
8 43M, ¶ 37 (Welling, J., specially concurring), aff’d, 2025 CO 29. In
its petition for certiorari, the State had argued that Johnson waived
the statutory deadlines.
2. Application
¶ 15 Here, unlike the cases discussed above, Rodriguez did not
request continuances, nor did he request — or accept — a hearing
after the deadline. The restitution hearing occurred two months
before the deadline’s expiration, and the district court emphasized
that it would issue an order shortly thereafter. Thus, the State
argues that Rodriguez waived the statutory deadline by waiting
until his second request for a ruling to argue that the court lacked
authority to impose restitution because the deadline had passed.
However, unlike Johnson, Babcock, and Roberson, the State did not
make a waiver argument on appeal or in its petition for certiorari.
¶ 16 Instead, it argued that Rodriguez did not preserve his
argument about the court’s deadline because his objection was
untimely. The State did not argue that Rodriguez expressly waived
this argument, nor did it argue that he “engage[d] in conduct that
manifest[ed] an intent to relinquish a right or privilege or act[ed]
inconsistently with its assertion.” Babcock, ¶ 29 (quoting Forgette
9 v. People, 2023 CO 4, ¶ 28). And the State could have argued
waiver before the supreme court announced its recent decisions; in
June 2023 (more than a year before the State filed its answer brief
in Rodriguez I), a division of this court concluded that subsection
(1)(b)’s deadline was not jurisdictional and could be waived. People
v. Babcock, 2023 COA 49, ¶ 11, aff’d, 2025 CO 26.
¶ 17 Moreover, in its petition for certiorari, the State noted that all
five of the recently decided (then pending) supreme court cases
could affect the supreme court’s review of Rodriguez I. Yet the
State’s petition did not argue that Rodriguez waived his challenge to
the timeliness of the restitution order, nor did it request review of
our conclusion that Rodriguez preserved this issue. The issues
presented for review included: (1) “[w]hether a preliminary order for
a specific amount of restitution, subject to a hearing on the
defendant’s objection, satisfied section 18-1.3-603(1)(a) . . . , and
whether a later reduction of that amount . . . was authorized by
section 18-1.3-603(3)(b)”; and (2) “[w]hether any procedural
violations in imposing restitution required automatic vacatur of the
restitution award.”
10 ¶ 18 Under these circumstances, we decline the State’s invitation
on remand to consider whether Rodriguez waived his right to rely
on subsection (1)(b)’s deadline. We do not interpret the remand
order as asking us to consider arguments not raised in the original
appeal or in the petition for certiorari. See Tennyson, ¶ 10 n.5 (“We
‘decide cases on the grounds raised and considered in the
[intermediate appellate court] and included in the question on
which we granted certiorari.’” (quoting Bragdon v. Abbott, 524 U.S.
624, 638 (1998))) (alteration in original). And we see no reason to
do so when the issue was not fully briefed in the original appeal.
Cf. Tull v. Gundersons, Inc., 709 P.2d 940, 945 & n.5 (Colo. 1985)
(addressing an issue not considered on appeal because it was
“bound to arise on remand” and “was fully briefed to the court of
appeals”).
¶ 19 Moreover, in distinguishing Weeks, the supreme court
emphasized that waiver was not at issue there, just as it was not at
issue in Rodriguez I. See Roberson, ¶ 15; Babcock, ¶ 10. Nothing in
the supreme court’s recent cases suggests that we must address an
issue not originally before us on appeal. See Moody v. People, 159
P.3d 611, 614 (Colo. 2007) (It is a “basic principle of appellate
11 jurisprudence that arguments not advanced on appeal are generally
deemed waived.”). Therefore, because we do not consider waiver,
we stand by our decision in Rodriguez I that the district court
lacked authority to impose restitution because it did so after the
deadline without good cause. See Weeks, ¶¶ 40, 45.
B. The Applicable Remedy and Standard of Reversal
¶ 20 Next, the State argues that, if Rodriguez’s challenge to the
restitution order’s timeliness is not waived, it is an illegal manner
claim that we must review for harmless error. In Rodriguez I, the
State mentioned illegal sentence and illegal manner claims once, in
the context of preservation. However, in Rodriguez I and in its
petition for certiorari, the State argued that Rodriguez’s restitution
challenge is reviewable for harmless or plain error. Viewing
preservation in the most lenient light possible, we conclude that we
may reach this issue.
¶ 21 We review the legality of a sentence de novo. Snow, ¶ 23.
¶ 22 The remaining cases for our consideration include Snow and
Tennyson, both of which addressed postconviction challenges to
restitution under Crim. P. 35(a). Snow, ¶ 1, considered “whether a
Crim. P. 35(a) challenge regarding a post-sentencing order setting
12 the amount of restitution is cognizable as an illegal sentence claim
or an illegal manner claim.” The supreme court held that the
district court imposed an illegal sentence when it reserved the issue
of restitution entirely and thereby failed to enter “one of the four
restitution orders authorized by subsection (1).” Id. at ¶¶ 22-23. It
then concluded that vacatur was the proper remedy but noted that
Weeks did not control this result. Id. at ¶¶ 26-28.
¶ 23 The court explained that “the subsection (1)(b) deadline is
inapposite here because the district court never entered a
subsection (1)(b) order[;] . . . [it] merely reserved the issue of
restitution in its entirety, [which was] not authorized by subsection
(1).” Id. at ¶ 27. However, the court stood “firmly by . . . Weeks,”
concluding that vacatur was the proper remedy for the illegal
sentence. Id. at ¶ 4. It explained that vacatur is the only proper
remedy when, “on direct appeal, a court concludes that the trial
court, after entering a subsection (1)(b) order finding restitution
liability at sentencing, fails to comply with the ninety-one-day
deadline and thus acts without authority in determining the
amount of restitution.” Id. at ¶ 31. It applied the same rationale to
13 illegal sentence claims as Weeks did to subsection (1)(b). Id. at ¶¶
32, 41.
¶ 24 Tennyson, ¶ 3, 62, also considered whether a Rule 35(a) claim
involving restitution was an illegal sentence claim or an illegal
manner claim but held that a challenge “pursuant to subsection
(1)(b) is an illegal manner claim.” The distinction mattered because
Tennyson could have brought an illegal sentence claim at any time,
but he could only bring an illegal manner claim “within 120 days
after the imposition of his sentence.” Id. at ¶ 32. The court
concluded that his claim was time barred under Rule 35’s deadline
for illegal manner claims. Id. at ¶¶ 31, 62. Therefore, although the
district court ordered restitution 126 days after sentencing, the
supreme court did not vacate the order. Id. at ¶¶ 11, 62.
¶ 25 The State argues that, because Rodriguez’s appeal involves a
challenge to an untimely order entered under subsection (1)(b), the
issue before us is an illegal manner claim. Thus, it contends,
Snow’s remedy of vacatur for illegal sentences does not apply, and
we should review for prejudice. The State notes that the recent
restitution cases did not address whether similar illegal manner
claims should be reviewed for harmless error, but it urges us to
14 infer such a standard from these cases and others. See People v.
Dominguez, 2021 COA 76, ¶ 12 (reviewing an illegal manner claim
for harmless error) (cert. granted Apr. 11, 2022).
¶ 26 We agree that the issue here implicates the principles outlined
in Tennyson regarding illegal manner claims. But we reject the
invitation to review for harmless error, concluding that Weeks,
Tennyson, and Snow support vacatur as the proper remedy. See
Doe v. Univ. of Denver, 2022 COA 57, ¶ 88 (“We are bound by
opinions of the Colorado Supreme Court, not opinions of another
division of this court.”), aff’d in part and rev’d in part, 2024 CO 27.
¶ 27 First, while Snow, ¶ 31, considered an illegal sentence claim,
not an illegal manner claim, it reaffirmed vacatur as the proper
remedy under subsection (1)(b) when a district court does not
“comply with the ninety-one-day deadline and thus acts without
authority in determining the amount of restitution.” See also
Weeks, ¶ 47 (vacating such an order). As the supreme court did in
Weeks, we concluded in Rodriguez I that the district court did not
comply with the subsection (1)(b) deadline and lacked authority to
impose restitution.
15 ¶ 28 Additionally, Tennyson and Snow involved postconviction
issues, which the court distinguished from direct appeals.
Tennyson, ¶ 58 (explaining that because Weeks involved a direct
appeal, “the remedy . . . granted there has no bearing on
Tennyson’s Crim. P. 35(a) claim”). And the issue before us involves
a direct appeal.
¶ 29 Although the State suggests otherwise, Tennyson did not leave
open the question of whether a timely illegal manner claim under
Rule 35 is subject to harmless error review. The court specifically
noted that if Tennyson had timely filed his illegal manner claim, “he
would have been entitled to vacatur of the post-sentencing order
setting the restitution amount, and that, in turn, would have
required the district court to amend his mittimus to reflect that no
restitution was required.” Id. at ¶ 59 n.12.
¶ 30 Finally, we reject the State’s argument that Babcock, Johnson,
and Roberson support reviewing untimely subsection (1)(b) orders
for harmless error. True, Babcock, ¶ 26, noted that construing
subsection (1)(b) as jurisdictional was “antithetical to the statute’s
purposes” because victims with statutory rights to restitution
“could receive no compensation due solely to a trial court’s failure
16 to meet the deadline.” And Johnson, ¶ 24, explained that
“interpret[ing] the statute as jurisdictional would mean that a trial
court’s failure to meet the deadline might render a victim . . .
without any means to seek restitution.” But this language is not at
odds with the notion that vacatur is the proper remedy when a
court orders restitution beyond the statutory deadline without
making an express good cause finding. See Weeks, ¶¶ 45, 47.
¶ 31 As Snow explained, Weeks determined vacatur was the proper
remedy because allowing trial courts to simply “reissu[e] the
untimely order setting the restitution amount . . . would have
knocked out all the deadline’s teeth.” Snow, ¶ 31 (citing Weeks,
¶ 47). The concerns in Babcock, Johnson, and Roberson present
different sides of the same issue. While Weeks sought to ensure
that defendants are not penalized for a court’s failure to adhere to
its deadline, Babcock, Johnson, and Roberson sought to ensure that
victims are not penalized for a defendant’s waiver of the deadline.
¶ 32 Babcock, ¶¶ 26-27, 30, for example, was concerned that
construing subsection (1)(b) such that it could not be waived would
mean that a defendant could, for instance, agree to or ask the court
to determine restitution after the deadline and then successfully
17 argue that the court imposed restitution without authority. This
concern was not present in Weeks because “[w]aiver was not before
[the court] in Weeks.” Babcock, ¶ 10. Therefore, the recent cases
did not overrule Week’s conclusion that vacatur is the proper
remedy for untimely subsection (1)(b) orders; they merely clarified
that vacatur is improper if a defendant waived the statutory
deadline, see, e.g., id. at ¶¶ 26-27, or if an illegal manner challenge
was untimely, see Tennyson, ¶ 62. And the fact that Rodriguez’s
claim could be construed as an illegal manner claim if it had not
been brought on direct appeal does not change the result. See
Tennyson, ¶ 59 n.12.
¶ 33 Accordingly, we stand by our decision in Rodriguez I to vacate
the district court’s restitution order.
III. Disposition
¶ 34 For the reasons set forth above and in Rodriguez I, we vacate
the order imposing restitution and remand for the district court to
correct the mittimus to reflect that Rodriguez owes no restitution.
JUDGE GOMEZ and JUDGE LUM concur.