Peo v. Urzua-Hernandez

Opinion

24CA0485 Peo v Urzua-Hernandez 08-06-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0485 Weld County District Court No. 13CR1649 Honorable Timothy G. Kerns, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Johan Joshua Urzua-Hernandez,

Defendant-Appellant.

ORDER VACATED AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE PAWAR Sullivan and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 6, 2026

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Johan Joshua Urzua-Hernandez, appeals the

district court’s order denying his Crim. P. 35(a) motion to correct an

illegal sentence. We agree with Urzua-Hernandez that the district

court erred by denying, as untimely, his Crim. P. 35(a) motion

concerning the validity of the court’s post-sentencing restitution

order. In accordance with Snow v. People, 2025 CO 32, we vacate

the restitution order and remand the case for entry of an order

under section 18-1.3-603(1)(d), C.R.S. 2025, that no restitution is

owed.

I. Background

¶2 Urzua-Hernandez was charged with first degree assault based

on allegations that he punched his father’s landlord and hit him

with a hammer. As part of a plea agreement, Urzua-Hernandez

pleaded guilty to an added count of attempted second degree

murder with a stipulated twenty-year prison sentence. As a term of

his plea agreement, Urzua-Hernandez agreed that “[r]estitution and

costs of prosecution as to all originally filed and pled counts will be

as ordered by the Court.”

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

terms of Urzua-Hernandez’s plea, including that he “would also be

1 responsible to pay any restitution as ordered by the [c]ourt.” The

court addressed the prosecution regarding restitution: “And if you

can — I realize that restitution is probably not going to be paid

anytime soon, but if you can at least try to investigate that

restitution?” The prosecutor confirmed he would. Otherwise,

restitution was not discussed.

¶4 At the sentencing hearing, the prosecutor did not request or

otherwise address restitution. After imposing the stipulated

sentence, the district court granted the prosecution “91 days to file

a notice of restitution.” The court explained to Urzua-Hernandez,

What that means is that the Prosecutor’s simply going to potentially request that you pay any out-of-pocket expenses to the victims in this — these cases. Your lawyers will have 30 days to file an objection. If I don’t see an objection timely filed within 30 days, I will be ordering as a condition of your sentence and ultimate parole that you pay restitution as ordered by the Court.

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

after the sentencing hearing. The request sought $5,435.43 in

restitution and sought to reserve additional costs of future

treatment under section 18-1.3-603(1)(c). Ninety days after the

sentencing hearing, the district court signed the restitution order

2 without objection. The court also granted, without objection, two

subsequent requests for restitution. The final restitution order

totaled $7,110.37.

¶6 Nine years later, Urzua-Hernandez filed a postconviction

motion to correct an illegal sentence under Crim. P. 35(a). He

argued that his sentence was illegal under People v. Weeks, 2021

CO 75, because the district court did not issue an order at

sentencing under section 18-1.3-603(1) that he was liable for

restitution. Instead, he asserted, the court only granted the

prosecution ninety-one days to “potentially” request that he pay

restitution.

¶7 The district court denied Urzua-Hernandez’s motion as

untimely. Relying on People v. Tennyson, 2023 COA 2, the court

concluded that “the purported error was a sentence imposed in an

illegal manner and not an illegal sentence itself.” The court added

that it “may reconsider after clarification from the Supreme Court,

who has taken Cert. to that issue.”

¶8 This appeal followed.

3 II. Discussion

¶9 Urzua-Hernandez contends that the district court erred by

denying his Crim. P. 35(a) motion as untimely. He argues that the

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.

A. Standard of Review

¶ 10 The denial of a Crim. P. 35(a) motion presents a question of

law subject to de novo review. Snow, ¶ 19. Likewise, we review de

novo the legality of a sentence. Id.

B. Illegal Sentence

¶ 11 Every judgment of conviction must contain one of four orders

regarding restitution: (1) an order setting a specific amount of

restitution; (2) an order requiring restitution but reserving

determination of the amount; (3) an order requiring the defendant

to pay restitution covering the actual costs of specific future

treatment of a victim; or (4) an order that no restitution is required.

§ 18-1.3-603(1)(a)-(d); Snow, ¶ 20; Weeks, ¶ 3. A sentence that

does not include one or more of these four enumerated restitution

4 orders is an illegal sentence. Snow, ¶ 21. And the district court

may not correct such an illegality by entering a 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.

¶ 12 In Snow, our supreme court concluded that the district court

entered an illegal sentence when, at sentencing, it “reserve[d]

restitution for [sixty] days.” Id. at ¶¶ 7, 23. At the sentencing

hearing, the prosecution did not “request restitution or give any

indication that it intended to seek restitution”; it asked only that

the court “reserve restitution at this point in time” — a request the

district court granted. Id. at ¶ 7. The supreme court held that

such an order — which it characterized as “the mere reservation of

the issue of restitution in its entirety” — violated section 18-1.3-

603(1), making the sentence illegal. Snow, ¶ 22.

¶ 13 At Urzua-Hernandez’s sentencing hearing, “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

5 restitution” like the prosecution did in Snow. Id. The district

court’s only restitution-related order at sentencing was to allow the

prosecution ninety-one days “to file a notice of restitution.” The

court explained this meant that the prosecution would “potentially

request” that Urzua-Hernandez pay restitution. (Emphasis added.)

The court added that Urzua-Hernandez’s attorneys would have

thirty days to file an objection to any request, but, if a timely

objection was not filed, the court would order Urzua-Hernandez to

“pay restitution as ordered by the Court” as a condition of his

sentence.

¶ 14 The district court’s course of conduct at sentencing did not

(1) order Urzua-Hernandez to pay a specific amount of restitution,

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

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

see § 18-1.3-603(1)(b); (3) order Urzua-Hernandez 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), [Urzua-Hernandez]

received an illegal sentence.” Snow, ¶ 23.

6 ¶ 15 The Attorney General attempts to distinguish this case from

Snow, arguing that this case is more like Weeks, Tennyson, and

Johnson v. People, 2025 CO 29.

¶ 16 In Weeks, the prosecutor asked at the sentencing hearing

“that the issue of restitution ‘remain open,’” and the district 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. While the question

of whether the court in Weeks entered a valid subsection (1) order

was not before the supreme court in that case, see Snow, ¶ 28 n.9,

the supreme court in Snow determined that the record of the

proceedings in Weeks “reflected that the trial court had invoked

subsection (1)(b).” Snow, ¶ 28. Snow was careful to point out

certain facts supporting an implicit finding of restitution liability in

Weeks, namely that:

• “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);

7 • 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

• “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).

The record before us does not contain similar facts which would

support an implicit finding of restitution liability.

¶ 17 In Tennyson, the defendant stipulated in the plea agreement

“that there was restitution and he was liable for it.” Tennyson, ¶ 9.

And the prosecution agreed to provide information establishing the

amount of restitution within ninety days of sentencing. Id. But

unlike Tennyson, Urzua-Hernandez did not stipulate “that there

was restitution and that he was liable for it.” Id. Nor did the

prosecution make any representation that it would provide

information regarding the restitution amount. Id. Instead, Urzua-

8 Hernandez simply agreed to comply with any court order to pay

restitution if the district court ordered it.

¶ 18 Moreover, in Tennyson, the prosecution “specifically asked for

restitution” at sentencing, and the district court gave it ninety days

to determine “not whether there would be restitution, but rather

‘what restitution is due and owing.’” Id. at ¶ 10. The supreme court

inferred from the terms of the plea agreement and this exchange at

the sentencing hearing that the district court had “found [the

defendant] liable for restitution but deferred until after sentencing”

only the amount. Id. In contrast, the only reference to restitution

at the sentencing hearing in this case came from the district court,

which granted the prosecutor ninety-one days to investigate and file

a notice of restitution, and explained, “What this means is that the

Prosecutor’s simply going to potentially request that you pay any

out-of-pocket expense to the victims in this — in these cases.”

(Emphasis added.) We do not read this as an order, implicit or

otherwise, that Urzua-Hernandez is liable for restitution and

deferring only the amount.

¶ 19 In Johnson, setting aside that the existence of a restitution

order was not at issue in the case, the district court’s order

9 expressly required the defendant to pay restitution. Specifically,

the court found that the defendant “would be obligated to pay

restitution.” Johnson, ¶ 8. As discussed, no such assignment of

liability occurred at Urzua-Hernandez’s sentencing hearing.

¶ 20 Still, the Attorney General argues that the record as a whole

establishes that the district court issued an order at sentencing

that Urzua-Hernandez was liable for restitution but reserved setting

the specific amount of restitution for a later date. See § 18-1.3-

603(1)(b). In support, the Attorney General points to the plea

agreement, the statements made at the providency and sentencing

hearings, the presentence investigation report (PSIR), Urzua-

Hernandez’s failure to contest restitution when it was ordered, and

the mittimus. We are not persuaded.

¶ 21 First, although Urzua-Hernandez’s plea agreement addressed

restitution, we disagree with the Attorney General that it reflects an

agreement that Urzua-Hernandez would be liable for restitution,

subject only to a later determination of the amount. In the plea

agreement, under the heading “AGREEMENT,” Urzua-Hernandez

agreed that restitution would be “as ordered by the court.” But he

did not agree that he was liable for restitution. Rather, as written,

10 the language of the plea agreement amounts only to an agreement

to pay restitution if ordered by the court.

¶ 22 Moreover, at the providency hearing, restitution was

mentioned for the first time when the district court reviewed the

basic terms of the plea with Urzua-Hernandez, stating, “Do you

understand that you would also be responsible to pay any

restitution as ordered by the Court?” (Emphasis added.) The use of

the word “any” before “restitution” makes clear that no such request

had yet been made or granted. Further, like in Snow, the

prosecutor said nothing at the providency hearing about restitution

or that the plea agreement included a condition that Urzua-

Hernandez was liable for restitution. Instead, at the conclusion of

the hearing the court urged the prosecutor to “try to investigate” it.

¶ 23 Thus, we reject the Attorney General’s interpretation of the

plea agreement and statements at the providency hearing as

reflecting Urzua-Hernandez’s 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

district court is not bound by the terms of a plea agreement simply

by accepting the guilty plea).

11 ¶ 24 Second, the Attorney General points to the PSIR and notes

that it outlined (in the attached warrantless arrest affidavit) the

various injuries the victim sustained, and Urzua-Hernandez did not

object to the report’s contents. But the PSIR said nothing about the

victim being responsible for medical bills, nor did it indicate that

the victim was seeking restitution. Further, the victim did not

attend the sentencing hearing or otherwise report that he was

requesting restitution. While it would be reasonable to infer that

the victim here suffered a pecuniary loss, 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

homicide — another case in which it would have been reasonable

for the sentencing court to anticipate that restitution might be

requested. See Snow, ¶ 6. 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. See id. at ¶ 39.

¶ 25 Third, looking to the sentencing hearing itself, we are not

persuaded by the Attorney General’s assertion that the district

court’s express grant of ninety-one days for the prosecution to file

12 its notice of restitution constituted an implicit finding that Urzua-

Hernandez was liable for restitution and that the prosecution only

had to submit a request as to the amount. As noted, even after

telling the court that it would investigate restitution, the

prosecution did not again utter the word restitution at the

sentencing hearing. Nor did it inform the court that there was

restitution or ask the court for more time to determine or finalize

the restitution amount. Further, the court explained its express

grant of ninety-one days by clarifying that “the [p]rosecutor’s simply

going to potentially request [restitution]” and only “[i]f” there was

not a timely objection to that request, would the court “order[] as a

condition of [Urzua-Hernandez’s] sentence . . . that [Urzua-

Hernandez] pay restitution as ordered by the Court.” (Emphasis

added.)

¶ 26 We also reject the Attorney General’s reliance on Urzua-

Hernandez’s failure to contest the restitution amounts at the time

they were ordered. The defendant in Snow likewise did not respond

to or object to the prosecution’s request for restitution. See Snow,

¶ 8.

13 ¶ 27 Last, having rejected the premise that the district court

assigned liability to Urzua-Hernandez at sentencing, we also

necessarily reject the Attorney General’s reliance on the proposition

that a district court’s oral pronouncements at sentencing control

over the mittimus.

¶ 28 Accordingly, when considering the surrounding circumstances

— including the plea agreement, the PSIR, the mittimus, and the

statements made by the parties and the district court at the

providency and sentencing hearings — we cannot conclude that the

court implicitly ordered Urzua-Hernandez 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 sentencing hearing was the

determination of the amount of restitution.”). Therefore, because

the district court failed to enter one of the orders required by

section 18-1.3-603(1) at sentencing, Urzua-Hernandez’s sentence

was illegal. See Snow, ¶ 23.

14 C. Remedy for an Illegal Sentence

¶ 29 When the district court fails to enter one of the four

enumerated restitution orders in section 18-1.3-603(1) at

sentencing and later enters a post-sentencing restitution order, “the

sole remedy . . . is vacatur of the untimely restitution order and

entry of an order . . . that there is no restitution owed.” Snow, ¶ 38.

¶ 30 That is the proper remedy in this case. In so concluding, we

disagree with the Attorney General that this deficiency can be cured

by construing the district court’s post-sentencing order as a

subsection (1)(a) order obligating Urzua-Hernandez to pay

restitution and thereby correcting the illegal sentence that was

previously imposed. See id. at ¶ 37. While we agree that the

court’s post-sentencing order was within the timeframe required by

subsection (1)(b) at that time,1 a subsection (1)(a) order “must enter

at or before the sentencing hearing.” Id. at ¶ 34. And because the

court did not enter a restitution order at sentencing, its post-

sentencing restitution order was “necessarily untimely,” id., and

1 The deadline in section 18-1.3-603(1)(b) was recently amended,

but those changes do not have any impact on this case. See 2025 Colo. Sess. Laws 1304.

15 not, as the Attorney General suggests, consistent with the

timeframes set forth in the statute. Thus, 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. We

therefore vacate the restitution order and remand the case to the

district court to enter an order that no restitution is owed.

III. Disposition

¶ 31 The restitution order is vacated, and the case is remanded for

entry of an order that no restitution is owed.

JUDGE SULLIVAN and JUDGE MEIRINK concur.