22CA0895 Peo v Xiong 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0895 Morgan County District Court No. 17CR448 Honorable Charles M. Hobbs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ha Xiong,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE HARRIS Yun and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Ha Xiong, appeals the district court’s order
denying his Crim. P. 35(a) motion. Because we conclude the motion
was untimely, we affirm.
I. Factual Background
A. Trial Court Proceedings
¶2 The People charged Xiong with possession with intent to
manufacture or distribute more than fifty pounds of marijuana or
marijuana concentrate, possession of methamphetamine, and
driving under the influence. The charges stemmed from an incident
in which Xiong crashed a rented car into a semitruck while he was
transporting over a hundred pounds of marijuana.
¶3 In exchange for dismissal of the original charges, Xiong
pleaded guilty to an amended count of driving while ability impaired
and an added count of possession with intent to manufacture or
distribute a controlled substance. As part of his plea agreement,
the parties stipulated that Xiong “is to pay all restitution, including
but not limited to [the semitruck driver, the rental car company,]
and any other party injured or property damaged as a result of th[e]
incident.”
1 ¶4 At the May 2019 sentencing hearing, the trial court imposed a
controlling four-year prison sentence. The court gave the
prosecution ninety-one days to file its restitution request and gave
the defense time to object. The mittimus does not mention
restitution.
¶5 Xiong did not directly appeal his convictions or sentence.
¶6 Forty-eight days after sentencing, the prosecution submitted a
request for $36,809.12 in restitution. Four days later, Xiong
objected, requesting a hearing and asserting that he “[did] not
believe this [wa]s a reasonable amount for the damages in this case
nor [wa]s he the proximate cause of some of the requested
restitution.”
¶7 The court set the matter for a hearing on August 23, 2019 —
112 days after the sentencing hearing. After the hearing, the court
ordered Xiong to pay the requested amount of restitution.
B. The Restitution Appeal and Crim. P. 35(a) Proceedings
¶8 Xiong appealed the restitution award, and a division of this
court affirmed the trial court’s order. People v Xiong, (Colo. App.
No. 19CA1820, June 17, 2021) (not published pursuant to C.A.R.
35(e)) (Xiong I). Shortly after the division announced its opinion in
2 Xiong I, the supreme court announced People v. Weeks, 2021 CO
75.
¶9 Xiong then filed the Crim. P. 35(a) motion at issue here. He
argued that, under Weeks, the restitution order should be vacated
because (1) the prosecutor failed to request restitution at the
sentencing hearing, meaning the court could not have properly
deferred a determination of the amount of restitution owing; and (2)
the court failed to fix the amount of restitution within the statutory
ninety-one-day deadline.
¶ 10 The district court denied the motion. It found that its
“authority under Rule 35” was equitable in nature and that “it
would be manifestly inequitable to the victim” to retroactively apply
Weeks.
II. Discussion
¶ 11 Xiong argues that, pursuant to Weeks, the district court erred
by denying his Crim. P. 35(a) motion. Reviewing the court’s order
de novo, see People v. Tennyson, 2023 COA 2, ¶ 9 (cert. granted
Sept. 11, 2023), we disagree, though we affirm on different grounds
than those relied on by the district court, see People v. Cooper, 2023
COA 113, ¶ 7.
3 A. Standing
¶ 12 As a threshold issue, the People assert that Xiong lacked
standing to file his motion because the deadlines in the restitution
statute were enacted for the benefit of victims, not defendants. The
People cite no authority for this proposition, and we are not aware
of any. Regardless, no one disputes that a defendant has standing
to seek postconviction review under Crim. P. 35. See Hunsaker v.
People, 2021 CO 83, ¶ 18 (stating that defendants may seek
postconviction review of a sentence and listing the “three avenues
for this relief” as Crim. P. 35(a), (b), and (c)).
B. Timeliness
¶ 13 Every judgment in a felony case must include “consideration
of restitution,” meaning it must include (a) an order fixing a specific
amount of restitution; (b) an order requiring restitution but
deferring the specific amount for up to ninety-one days; (c) an order
fixing restitution and requiring the defendant to pay certain future
costs; or (d) a finding that no restitution is owing. § 18-1.3-
603(1)(a)-(d), C.R.S. 2024; Weeks, ¶ 29.
¶ 14 But the statute distinguishes “an order assigning liability for
restitution from a determination of the amount of restitution for
4 which the defendant is liable.” Sanoff v. People, 187 P.3d 576, 578
(Colo. 2008) (emphasis added). Only the order assigning liability is
a component of the defendant’s sentence; the order fixing the
amount of restitution is separate from the judgment of conviction
and independently appealable. Id.
¶ 15 Xiong first contends that because the prosecutor did not
present restitution information before or at the sentencing hearing,
the court could not have properly assigned liability for restitution
and deferred fixing the amount. See Weeks, ¶ 30 (Section 18-1.3-
603(1)(b) “allows the court to shelve the determination of the
amount of restitution after entering a preliminary order requiring
restitution. And the court can only enter such an order if the
prosecution has made a motion for restitution.”).1 True, the
omission in the judgment of an order assigning liability for
1 Under section 18-1.3-603(2)(a), C.R.S. 2024, the prosecutor shall
“present [restitution] information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction.” But the prosecutor’s failure to present restitution information before or at sentencing, even if the information is available, does not itself require vacatur of the restitution order. See People v. Brassill, 2024 COA 19, ¶ 60 (even if the prosecution fails to comply with its obligation to present restitution information at sentencing, the court has authority to enter a restitution order within the ninety-one-day deadline).
5 restitution results in an illegal sentence that can be challenged at
any time under Crim. P. 35(a). See People v. Bowerman, 258 P.3d
314, 316 (Colo. App. 2010).
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22CA0895 Peo v Xiong 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0895 Morgan County District Court No. 17CR448 Honorable Charles M. Hobbs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ha Xiong,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE HARRIS Yun and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Ha Xiong, appeals the district court’s order
denying his Crim. P. 35(a) motion. Because we conclude the motion
was untimely, we affirm.
I. Factual Background
A. Trial Court Proceedings
¶2 The People charged Xiong with possession with intent to
manufacture or distribute more than fifty pounds of marijuana or
marijuana concentrate, possession of methamphetamine, and
driving under the influence. The charges stemmed from an incident
in which Xiong crashed a rented car into a semitruck while he was
transporting over a hundred pounds of marijuana.
¶3 In exchange for dismissal of the original charges, Xiong
pleaded guilty to an amended count of driving while ability impaired
and an added count of possession with intent to manufacture or
distribute a controlled substance. As part of his plea agreement,
the parties stipulated that Xiong “is to pay all restitution, including
but not limited to [the semitruck driver, the rental car company,]
and any other party injured or property damaged as a result of th[e]
incident.”
1 ¶4 At the May 2019 sentencing hearing, the trial court imposed a
controlling four-year prison sentence. The court gave the
prosecution ninety-one days to file its restitution request and gave
the defense time to object. The mittimus does not mention
restitution.
¶5 Xiong did not directly appeal his convictions or sentence.
¶6 Forty-eight days after sentencing, the prosecution submitted a
request for $36,809.12 in restitution. Four days later, Xiong
objected, requesting a hearing and asserting that he “[did] not
believe this [wa]s a reasonable amount for the damages in this case
nor [wa]s he the proximate cause of some of the requested
restitution.”
¶7 The court set the matter for a hearing on August 23, 2019 —
112 days after the sentencing hearing. After the hearing, the court
ordered Xiong to pay the requested amount of restitution.
B. The Restitution Appeal and Crim. P. 35(a) Proceedings
¶8 Xiong appealed the restitution award, and a division of this
court affirmed the trial court’s order. People v Xiong, (Colo. App.
No. 19CA1820, June 17, 2021) (not published pursuant to C.A.R.
35(e)) (Xiong I). Shortly after the division announced its opinion in
2 Xiong I, the supreme court announced People v. Weeks, 2021 CO
75.
¶9 Xiong then filed the Crim. P. 35(a) motion at issue here. He
argued that, under Weeks, the restitution order should be vacated
because (1) the prosecutor failed to request restitution at the
sentencing hearing, meaning the court could not have properly
deferred a determination of the amount of restitution owing; and (2)
the court failed to fix the amount of restitution within the statutory
ninety-one-day deadline.
¶ 10 The district court denied the motion. It found that its
“authority under Rule 35” was equitable in nature and that “it
would be manifestly inequitable to the victim” to retroactively apply
Weeks.
II. Discussion
¶ 11 Xiong argues that, pursuant to Weeks, the district court erred
by denying his Crim. P. 35(a) motion. Reviewing the court’s order
de novo, see People v. Tennyson, 2023 COA 2, ¶ 9 (cert. granted
Sept. 11, 2023), we disagree, though we affirm on different grounds
than those relied on by the district court, see People v. Cooper, 2023
COA 113, ¶ 7.
3 A. Standing
¶ 12 As a threshold issue, the People assert that Xiong lacked
standing to file his motion because the deadlines in the restitution
statute were enacted for the benefit of victims, not defendants. The
People cite no authority for this proposition, and we are not aware
of any. Regardless, no one disputes that a defendant has standing
to seek postconviction review under Crim. P. 35. See Hunsaker v.
People, 2021 CO 83, ¶ 18 (stating that defendants may seek
postconviction review of a sentence and listing the “three avenues
for this relief” as Crim. P. 35(a), (b), and (c)).
B. Timeliness
¶ 13 Every judgment in a felony case must include “consideration
of restitution,” meaning it must include (a) an order fixing a specific
amount of restitution; (b) an order requiring restitution but
deferring the specific amount for up to ninety-one days; (c) an order
fixing restitution and requiring the defendant to pay certain future
costs; or (d) a finding that no restitution is owing. § 18-1.3-
603(1)(a)-(d), C.R.S. 2024; Weeks, ¶ 29.
¶ 14 But the statute distinguishes “an order assigning liability for
restitution from a determination of the amount of restitution for
4 which the defendant is liable.” Sanoff v. People, 187 P.3d 576, 578
(Colo. 2008) (emphasis added). Only the order assigning liability is
a component of the defendant’s sentence; the order fixing the
amount of restitution is separate from the judgment of conviction
and independently appealable. Id.
¶ 15 Xiong first contends that because the prosecutor did not
present restitution information before or at the sentencing hearing,
the court could not have properly assigned liability for restitution
and deferred fixing the amount. See Weeks, ¶ 30 (Section 18-1.3-
603(1)(b) “allows the court to shelve the determination of the
amount of restitution after entering a preliminary order requiring
restitution. And the court can only enter such an order if the
prosecution has made a motion for restitution.”).1 True, the
omission in the judgment of an order assigning liability for
1 Under section 18-1.3-603(2)(a), C.R.S. 2024, the prosecutor shall
“present [restitution] information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction.” But the prosecutor’s failure to present restitution information before or at sentencing, even if the information is available, does not itself require vacatur of the restitution order. See People v. Brassill, 2024 COA 19, ¶ 60 (even if the prosecution fails to comply with its obligation to present restitution information at sentencing, the court has authority to enter a restitution order within the ninety-one-day deadline).
5 restitution results in an illegal sentence that can be challenged at
any time under Crim. P. 35(a). See People v. Bowerman, 258 P.3d
314, 316 (Colo. App. 2010). But the remedy for such an error is to
remand for the trial court to amend the mittimus to reflect the
necessary order assigning liability for restitution, not to vacate the
entirely separate restitution order. See Tennyson, ¶ 31 (“[I]f a
sentence is illegal because it does not contain the ‘consideration of
restitution’ as required by section 18-1.3-603(1), the district court
must correct it.”).2
¶ 16 Next, Xiong argues that the court erred by fixing the amount
of restitution outside the ninety-one-day deadline. But as he
acknowledges, this error gives rise to an illegal manner claim, not
an illegal sentence claim. See id. at ¶ 33. An illegal manner claim
must be raised, as relevant here, within 126 days after (1) “sentence
is imposed” or (2) affirmance of the judgment of conviction or
sentence. Crim. P. 35(a), (b).
2 Because Xiong does not argue that his sentence is illegal or seek
correction of this omission, we decline to order a remand to amend the mittimus.
6 ¶ 17 Xiong says, as he did in the district court, that his Crim. P.
35(a) motion was timely because he filed it within 126 days after the
mandate issued in Xiong I. But Xiong I did not affirm the judgment
of conviction or sentence; it affirmed the trial court’s restitution
order, which, as we have explained, is not a component of the
defendant’s judgment of conviction, including the sentence. See
Sanoff, 187 P.3d at 578 (The determination of the amount of
restitution, as distinguished from an order assigning liability 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.”).
¶ 18 Because Xiong did not appeal his judgment of
conviction/sentence, his illegal manner claim had to be raised
under Crim. P. 35(a) within 126 days of the date sentence was
imposed. See Tennyson, ¶ 38 (concluding that the defendant’s
Crim. P. 35(a) illegal manner claim was untimely where the motion
was filed “more than 12[6] days after sentencing”). Sentence was
imposed in May 2019, but Xiong did not file his motion until March
2022. Therefore, the district court properly denied the motion.
7 III. Disposition
¶ 19 The order is affirmed.
JUDGE YUN and JUDGE GRAHAM concur.