The People of the State of Colorado v. Tommy Rae Mickey

2023 COA 106

• Court: Colorado Court of Appeals
• Decided: November 9, 2023
• Docket: 21CA1407-PD
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 9, 2023

2023COA106

No. 21CA1407, People v. Mickey — Criminal Law — Sentencing — Restitution — Assessment of Restitution — Procedural Deadlines — “Good Cause” to Extend Trial Court’s Deadline; Criminal Procedure — Harmless Error

A division of the court of appeals, for the first time, holds that

the error in entering a restitution order after the expiration of the

statutory ninety-one-day period, without an express timely finding

of good cause pursuant to People v. Weeks, 2021 CO 75, cannot be

harmless. COLORADO COURT OF APPEALS 2023COA106

Court of Appeals No. 21CA1407 Mesa County District Court No. 20CR599 Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tommy Rae Mickey,

Defendant-Appellant.

ORDER VACATED

Division VII Opinion by JUDGE TOW Schock and Graham*, JJ., concur

Announced November 9, 2023

Philip J. Weiser, Attorney General, Frank R. Lawson, 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. 2023. ¶1 Defendant, Tommy Rae Mickey, appeals the district court’s

order requiring him to pay restitution. We vacate the order. In so

doing, we conclude that the error in entering a restitution order

after the expiration of the statutory ninety-one-day period, without

an express, timely finding of good cause pursuant to People v.

Weeks, 2021 CO 75, cannot be harmless.

I. Background

¶2 Mickey pleaded guilty to second degree burglary and vehicular

eluding.1 On October 7, 2020, he was sentenced to six years in the

custody of the Colorado Department of Corrections. On June 29,

2021, more than 250 days after the sentencing hearing, the district

court ordered Mickey to pay restitution for unrecovered stolen

property. The district court did not make an express finding that

there was good cause to determine restitution more than ninety-one

days after the sentencing hearing.2 See § 18-1.3-603(1)(b), C.R.S.

2023.

1 The plea was part of a global resolution of several cases filed

against Mickey. 2 The district court was acting without the benefit of the supreme

court’s decision in People v. Weeks, 2021 CO 75.

1 II. Vacatur and Error

¶3 Mickey argues that the restitution order was untimely under

section 18-1.3-603(1)(b) and must be vacated.3 We agree.

¶4 We review de novo issues of statutory interpretation. Weeks,

¶ 24.

¶5 Section 18-1.3-603(1)(b) requires courts to determine

restitution within ninety-one days after sentencing, unless — before

the deadline expires — the court expressly finds good cause for

extending the deadline. Weeks, ¶ 5. The district court ordered

restitution after the ninety-one-day deadline and did not find good

cause for doing so. This was error.

¶6 While the People concede this point, they argue vacatur is not

required because any error was harmless. Another division of this

court recently rejected a similar argument, holding that the

3 Although Mickey did not make this argument to the district court,

an illegal manner challenge under Crim. P. 35(a) — which is what Mickey’s claim would be if this were not a direct appeal, see People v. Tennyson, 2023 COA 2, ¶ 2 (cert. granted Sept. 11, 2023) — does not need to be preserved. As our supreme court has said, “It makes no sense to require preservation of a claim on direct appeal when an identical claim could be raised without preservation after the conclusion of the direct appeal.” Fransua v. People, 2019 CO 96, ¶ 13.

2 supreme court did not conduct a harmless error analysis in Weeks

and that we are bound by that precedent.4 People v. Roberson,

2023 COA 70, ¶ 32 (first citing Weeks, ¶¶ 14-18; and then citing

People v. Kern, 2020 COA 96, ¶ 42). We agree with Roberson, but

we go one step further to point out that a harmless error analysis

would be futile when reviewing a restitution order entered without

authority.

¶7 In criminal cases, an error is harmless if it “does not affect

substantial rights” of the parties. Crim. P. 52(a). The error here

was not merely a delay, as the People argue. It was the entry of an

order that obliged Mickey to pay restitution in excess of $15,000.

We simply cannot see how such an order — entered without

authority — can be said to have not affected Mickey’s substantial

rights. Indeed, the order is, by operation of law, “a final civil

judgment,” § 18-1.3-603(4)(a)(I), meaning Mickey is now subject to

collections efforts by the State.

4 We are not persuaded by the People’s argument that Weeks

impliedly conducted a harmless error analysis simply because it mentioned that the restitution order was entered a year after the sentencing hearing over defense objection. Rather, the supreme court expressly said that because the trial court violated the restitution deadline, vacatur was correct. Weeks, ¶ 47.

3 ¶8 The People correctly point out that a lack of authority is not a

jurisdictional defect. See People v. Babcock, 2023 COA 49, ¶ 7.

This distinction is important because nonjurisdictional timelines

can be waived. Id. at ¶ 8. But absent such a waiver — and the

People do not argue that a waiver occurred here — the deadline,

and its authority-divesting effect, remains. Thus, even though the

district court retained jurisdiction, the loss of authority renders the

order erroneous and not harmless.

¶9 The People offer several cases to persuade us otherwise, but

each is distinguishable — either because the relevant party

voluntarily waived their statutory rights; the court did not expressly

lack authority to act; or the case involved specialized, noncriminal

proceedings. See People in Interest of Lynch, 783 P.2d 848, 851

(Colo. 1989) (holding court did not lose jurisdiction over mental

health proceeding because the appellant waived right to have a

hearing held within ten days of request); People v. Heimann, 186

P.3d 77, 79 (Colo. App. 2007) (ruling untimely probation revocation

did not require reversal because the defendant consented to hearing

after the statutory deadline); People v. Dominguez, 2021 COA 76,

¶ 12 (stating illegal manner claims are reviewable for harmless error

4 but not ruling that the court exceeded its authority) (cert. granted

Apr. 11, 2022); McKenna v. Witte, 2015 CO 23, ¶ 21 (holding water

court did not lose jurisdiction because deadline to prepare

abandonment list was violated).

¶ 10 We also decline the People’s invitation to follow the federal

model embodied in the Mandatory Victims Restitution Act,

18 U.S.C. § 3664(d)(5). We are not aware of any case — and the

People cite none — holding that the expiration of the deadline in the

federal statute divests the trial court of the authority to impose

restitution. In other words, Weeks (or a federal case with a similar

holding) does not define the impact of violating the federal deadline,

but it absolutely binds us in dealing with violations of the state

deadline.

¶ 11 In sum, the district court’s authority to enter restitution was

not extended or restored by a waiver. Thus, it lacked the authority

to enter the restitution order — which, by definition, is not

harmless.5

5 In light of our resolution of this issue, we need not reach any of

Mickey’s other challenges.

5 III. Disposition

¶ 12 The order is vacated.

JUDGE SCHOCK and JUDGE GRAHAM concur.