24CA0794 Peo v Thompson 04-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0794 City and County of Denver District Court No. 19CR3561 Honorable Kandace C. Gerdes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kalvin J. Thompson,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE MEIRINK Dunn and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025
Philip J. Weiser, Attorney General, Jacob R. Lofgran, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Kalvin J. Thompson, appeals the district court’s
order denying his Crim. P. 35(a) motion challenging the restitution
component of his sentence. We affirm.
I. Background
¶2 A jury found Thompson guilty of first degree murder. Before
sentencing, the prosecution submitted a request for restitution in
the amount of $10,873.28.
¶3 At the June 14, 2021, sentencing hearing, the district court
asked Thompson if he objected to the restitution request. Defense
counsel asked for “a brief period of time to discuss that matter with
Mr. Thompson and file an appropriate response if necessary.” The
court granted Thompson twenty-one days within which to file an
objection or “[o]therwise . . . restitution in the amount of
$10,873.28 will be ordered.”
¶4 The district court sentenced Thompson to life in prison
without the possibility of parole and issued a mittimus, which did
not address restitution. The minute order of the sentencing hearing
states that “DEF HAS 21 DAYS TO OBJECT TO RESTITUTION OF
10873.28.”
1 ¶5 On June 29, 2021, Thompson filed an objection to the amount
of the requested restitution and asked for a hearing. Following an
August 13, 2021, hearing, the district court granted the full amount
of the requested restitution. The court issued an amended
mittimus reflecting this restitution order.
¶6 Thereafter, Thompson filed a Crim. P. 35(a) motion to correct
an illegal sentence, arguing that the district court lacked
jurisdiction to impose restitution at the time it did so. He asserted
that the mittimus controlled over the court’s oral pronouncement at
sentencing and that the original mittimus did not contain the order
that is statutorily required to extend a court’s jurisdiction to impose
restitution beyond the sentencing hearing The district court denied
the motion without a hearing.
II. Legal Authority and Standard of Review
¶7 The restitution statute requires every order of conviction to
include one of four types of restitution orders. § 18-1.3-603(1),
C.R.S. 2024; People v. Weeks, 2021 CO 75, ¶ 3. As relevant here,
section 18-1.3-603(1)(b) requires an order of conviction to include
“[a]n order that the defendant is obligated to pay restitution, but
that the specific amount of restitution shall be determined within
2 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.”
¶8 In Sanoff v. People, 187 P.3d 576 (Colo. 2008), the supreme
court concluded that, in enacting section 18-1.3-603(1)(b), “the
General Assembly has made clear its intent that the amount of the
defendant’s [restitution] liability no longer be a required component
of a final judgment of conviction” and that “an order of conviction
need only include a determination whether the defendant is
obligated to pay restitution, without designation of the amount.” Id.
at 578. Accordingly, the court recognized that section 18-1.3-
603(1)(b) creates two separate, final, appealable orders: a
sentencing order assigning liability for restitution but reserving the
determination of the amount, and a subsequent order setting the
amount of restitution for which a defendant is liable. Id. at 578-79;
see also Weeks, ¶ 30 n.9; People v. Tennyson, 2023 COA 2, ¶¶ 17,
20-23 (cert. granted Sept. 11, 2023).
¶9 “[W]hen [a] district court order[s] [a] defendant liable to pay
restitution, the restitution component of the defendant’s sentence
[i]s satisfied” and “[the] sentence, and therefore [the] judgment of
3 conviction, bec[o]me[s] a final, appealable order upon issuance of
the mittimus.” Sanoff, 187 P.3d at 579; see also Crim. P. 32(b)(3)(I);
Meza v. People, 2018 CO 23, ¶¶ 13-15. And “[the] subsequent
determination of the amount of restitution owed by a defendant, as
distinguished from an order simply finding [the defendant] liable to
pay restitution, has been severed from the meaning of the term
‘sentence,’ as contemplated by Crim. P. 32, and therefore from [the]
judgment of conviction.” Sanoff, 187 P.3d at 578.
¶ 10 Because an order of restitution is a component of a
defendant’s sentence and the judgment of conviction, a court’s
failure to enter a restitution order at sentencing creates an illegal
sentence. Tennyson, ¶ 31. “An illegal sentence is one that is not
authorized by law, meaning that it is inconsistent with the
sentencing scheme established by the legislature.” People v.
Jenkins, 2013 COA 76, ¶ 11. A court may “correct a sentence that
was not authorized by law or that was imposed without jurisdiction
at any time.” Crim. P. 35(a).
¶ 11 A court’s failure to comply with section 18-1.3-603(1)(b) when
entering an order setting the amount of restitution creates a
sentence that was imposed in an illegal manner. Tennyson, ¶¶ 2,
4 33. A court may correct a sentence imposed in an illegal manner
within 126 days from, as relevant here, the issuance of the mandate
from a direct appeal. Crim. P. 35(a); People v. McDonald, 2023 COA
23, ¶ 31, aff’d, 2024 CO 75.
III. Analysis
¶ 12 On appeal, Thompson contends that the district court reserved
the determination of the restitution amount, but it did not enter a
section 18-1.3-603(1)(b) order assigning restitution liability either
orally at the sentencing hearing or in writing on the original
mittimus. Therefore, the court was divested of jurisdiction or
authority to enter a restitution order after sentencing. We are not
persuaded.
¶ 13 Initially, we reject Thompson’s assertion that the mittimus
controls over the court’s oral pronouncement at sentencing. See
Tennyson, ¶ 37 (a court’s oral pronouncement of sentence takes
precedence over the mittimus); People v. Wiseman, 2017 COA 49M,
¶ 52; People v. Rockne, 2012 COA 198, ¶ 23, overruled on other
grounds by Weeks, ¶ 47 n.16.
¶ 14 We are satisfied that the district court’s oral finding that
“restitution in the amount of $10,873.28 w[ould] be ordered” if
5 defense counsel did not object within twenty-one days, although not
explicit, reflected a consideration of restitution, an assignment of
restitution liability to Thompson, and a reservation of only the
restitution amount. See Tennyson, ¶ 37 (The district court’s grant
at sentencing of ninety days for the prosecution “to determine what
restitution is due and owing” and thirty days for the defendant to
challenge “the figure” was sufficient to show “that the court
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24CA0794 Peo v Thompson 04-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0794 City and County of Denver District Court No. 19CR3561 Honorable Kandace C. Gerdes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kalvin J. Thompson,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE MEIRINK Dunn and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025
Philip J. Weiser, Attorney General, Jacob R. Lofgran, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Kalvin J. Thompson, appeals the district court’s
order denying his Crim. P. 35(a) motion challenging the restitution
component of his sentence. We affirm.
I. Background
¶2 A jury found Thompson guilty of first degree murder. Before
sentencing, the prosecution submitted a request for restitution in
the amount of $10,873.28.
¶3 At the June 14, 2021, sentencing hearing, the district court
asked Thompson if he objected to the restitution request. Defense
counsel asked for “a brief period of time to discuss that matter with
Mr. Thompson and file an appropriate response if necessary.” The
court granted Thompson twenty-one days within which to file an
objection or “[o]therwise . . . restitution in the amount of
$10,873.28 will be ordered.”
¶4 The district court sentenced Thompson to life in prison
without the possibility of parole and issued a mittimus, which did
not address restitution. The minute order of the sentencing hearing
states that “DEF HAS 21 DAYS TO OBJECT TO RESTITUTION OF
10873.28.”
1 ¶5 On June 29, 2021, Thompson filed an objection to the amount
of the requested restitution and asked for a hearing. Following an
August 13, 2021, hearing, the district court granted the full amount
of the requested restitution. The court issued an amended
mittimus reflecting this restitution order.
¶6 Thereafter, Thompson filed a Crim. P. 35(a) motion to correct
an illegal sentence, arguing that the district court lacked
jurisdiction to impose restitution at the time it did so. He asserted
that the mittimus controlled over the court’s oral pronouncement at
sentencing and that the original mittimus did not contain the order
that is statutorily required to extend a court’s jurisdiction to impose
restitution beyond the sentencing hearing The district court denied
the motion without a hearing.
II. Legal Authority and Standard of Review
¶7 The restitution statute requires every order of conviction to
include one of four types of restitution orders. § 18-1.3-603(1),
C.R.S. 2024; People v. Weeks, 2021 CO 75, ¶ 3. As relevant here,
section 18-1.3-603(1)(b) requires an order of conviction to include
“[a]n order that the defendant is obligated to pay restitution, but
that the specific amount of restitution shall be determined within
2 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.”
¶8 In Sanoff v. People, 187 P.3d 576 (Colo. 2008), the supreme
court concluded that, in enacting section 18-1.3-603(1)(b), “the
General Assembly has made clear its intent that the amount of the
defendant’s [restitution] liability no longer be a required component
of a final judgment of conviction” and that “an order of conviction
need only include a determination whether the defendant is
obligated to pay restitution, without designation of the amount.” Id.
at 578. Accordingly, the court recognized that section 18-1.3-
603(1)(b) creates two separate, final, appealable orders: a
sentencing order assigning liability for restitution but reserving the
determination of the amount, and a subsequent order setting the
amount of restitution for which a defendant is liable. Id. at 578-79;
see also Weeks, ¶ 30 n.9; People v. Tennyson, 2023 COA 2, ¶¶ 17,
20-23 (cert. granted Sept. 11, 2023).
¶9 “[W]hen [a] district court order[s] [a] defendant liable to pay
restitution, the restitution component of the defendant’s sentence
[i]s satisfied” and “[the] sentence, and therefore [the] judgment of
3 conviction, bec[o]me[s] a final, appealable order upon issuance of
the mittimus.” Sanoff, 187 P.3d at 579; see also Crim. P. 32(b)(3)(I);
Meza v. People, 2018 CO 23, ¶¶ 13-15. And “[the] subsequent
determination of the amount of restitution owed by a defendant, as
distinguished from an order simply finding [the defendant] liable to
pay restitution, has been severed from the meaning of the term
‘sentence,’ as contemplated by Crim. P. 32, and therefore from [the]
judgment of conviction.” Sanoff, 187 P.3d at 578.
¶ 10 Because an order of restitution is a component of a
defendant’s sentence and the judgment of conviction, a court’s
failure to enter a restitution order at sentencing creates an illegal
sentence. Tennyson, ¶ 31. “An illegal sentence is one that is not
authorized by law, meaning that it is inconsistent with the
sentencing scheme established by the legislature.” People v.
Jenkins, 2013 COA 76, ¶ 11. A court may “correct a sentence that
was not authorized by law or that was imposed without jurisdiction
at any time.” Crim. P. 35(a).
¶ 11 A court’s failure to comply with section 18-1.3-603(1)(b) when
entering an order setting the amount of restitution creates a
sentence that was imposed in an illegal manner. Tennyson, ¶¶ 2,
4 33. A court may correct a sentence imposed in an illegal manner
within 126 days from, as relevant here, the issuance of the mandate
from a direct appeal. Crim. P. 35(a); People v. McDonald, 2023 COA
23, ¶ 31, aff’d, 2024 CO 75.
III. Analysis
¶ 12 On appeal, Thompson contends that the district court reserved
the determination of the restitution amount, but it did not enter a
section 18-1.3-603(1)(b) order assigning restitution liability either
orally at the sentencing hearing or in writing on the original
mittimus. Therefore, the court was divested of jurisdiction or
authority to enter a restitution order after sentencing. We are not
persuaded.
¶ 13 Initially, we reject Thompson’s assertion that the mittimus
controls over the court’s oral pronouncement at sentencing. See
Tennyson, ¶ 37 (a court’s oral pronouncement of sentence takes
precedence over the mittimus); People v. Wiseman, 2017 COA 49M,
¶ 52; People v. Rockne, 2012 COA 198, ¶ 23, overruled on other
grounds by Weeks, ¶ 47 n.16.
¶ 14 We are satisfied that the district court’s oral finding that
“restitution in the amount of $10,873.28 w[ould] be ordered” if
5 defense counsel did not object within twenty-one days, although not
explicit, reflected a consideration of restitution, an assignment of
restitution liability to Thompson, and a reservation of only the
restitution amount. See Tennyson, ¶ 37 (The district court’s grant
at sentencing of ninety days for the prosecution “to determine what
restitution is due and owing” and thirty days for the defendant to
challenge “the figure” was sufficient to show “that the court
considered and ordered that [the defendant] was liable to pay
restitution and the court reserved only the determination of the
restitution amount.”); see also Weeks, ¶ 7 n.4 (In applying the
restitution statute, “talismanic incantations are [not] necessary,”
and “substance controls over form.”).
¶ 15 Our conclusion that the district court assigned restitution
liability at sentencing and reserved only the determination of the
restitution amount is supported by defense counsel’s subsequent
request for the court to find that Thompson was indigent and to
consequently waive court costs and fees so that “if restitution is in
fact granted in this case[] in that significant sum[,] . . . the moneys
that are able to be paid from Mr. Thompson while he serves a
6 sentence in the Department of Corrections go towards restitution as
opposed to other ancillary court costs and fees.” (Emphasis added).
¶ 16 Accordingly, because the district court entered an order
assigning restitution liability at sentencing and entered an order
setting a restitution amount within ninety-one days thereafter, we
conclude that Thompson’s sentence was not illegal and that the
restitution component of his sentence was not imposed in an illegal
manner.1
IV. Disposition
¶ 17 The order is affirmed.
JUDGE DUNN and JUDGE TOW concur.
1 Even if the district court did not expressly impose restitution
liability at the sentencing or in the mittimus, it does not matter because the court corrected the error in the amended mittimus.