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 March 7, 2019
2019COA34
No. 18CA0041, People v. Knoeppchen — Criminal Procedure — Postconviction Remedies — Correction of Illegal Sentence — Sentence Imposed in an Illegal Manner
A division of the court of appeals considers whether a
postconviction appeal of a district court’s order denying a motion to
vacate a restitution order involves a claim that the defendant’s
sentence is not authorized by law or is a challenge to the manner in
which sentence was imposed. Because the division concludes that
the motion is an illegal manner claim under Crim. P. 35(a) and the
challenge is untimely, the division concludes that the petition was
time barred, and thus affirms the order. COLORADO COURT OF APPEALS 2019COA34
Court of Appeals No. 18CA0041 Larimer County District Court No. 13CR335 Honorable Susan J. Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Billy Joe Knoeppchen,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE TOW Taubman and Berger, JJ., concur
Announced March 7, 2019
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lance Thibert, Deputy State Public Defender, Fort Collins, Colorado, for Defendant-Appellant ¶1 Defendant, Billy Joe Knoeppchen, appeals the district court’s
order denying his motion to vacate the restitution order. His appeal
requires us to determine whether his challenge involves a claim that
his sentence is not authorized by law or is a challenge to the
manner in which sentence was imposed. Because we decide it is
the latter, and the challenge is untimely, we affirm.
I. Background
¶2 On August 22, 2013, Knoeppchen pleaded no contest to third
degree assault and was sentenced to probation. As part of the plea
agreement, Knoeppchen agreed to pay restitution. However,
because the prosecution did not have complete information
regarding restitution at the time, the district court reserved the
restitution determination for ninety days. 1
¶3 On November 29, 2013, 100 days later, the prosecution moved
for an order imposing restitution. Knoeppchen did not file any
response to the motion. The district court adopted the proposed
order filed by the prosecution. This order noted, “[t]he above stated
——————————————————————— 1 The court was statutorily authorized to reserve restitution for
ninety-one days. § 18-1.3-603(1)(b), C.R.S. 2018. However, the prosecutor only requested ninety days.
1 amount is the current amount due, but not a final amount due.
The defendant is ordered to pay restitution covering the actual costs
of the ongoing or future treatment of [the victim] for treatment to
his mouth, teeth[,] and jaw.” The amount of restitution owed to the
victim compensation fund was also left to be determined. On May
21, 2014, the prosecution moved to amend the restitution amount,
reducing the total amount due. Again, Knoeppchen filed no
response. The district court granted this motion as well.
¶4 More than three years later, Knoeppchen filed a motion to
vacate the restitution order. Although he did not explicitly refer to
Crim. P. 35, or to any other statute or rule under which he was
proceeding, he “attack[ed] the restitution order itself as a matter of
law,” asserting that the proposed order was filed by the prosecution
and adopted by the district court after the ninety-day deadline, and
that the prosecution did not establish good cause for its tardy
request. The district court denied the motion, finding that good
cause existed for filing the motion for restitution late, despite not
having made any express finding of good cause when it entered the
original order.
2 II. Analysis
¶5 Knoeppchen now appeals the district court’s order denying his
motion to vacate the restitution order. As a preliminary matter, the
People argue that (1) this court lacks jurisdiction to review the order
because it is not a final, appealable order denying postconviction
relief; and (2) even if the motion to vacate the restitution order is a
final, appealable order seeking postconviction relief, the motion was
time barred. Although we disagree that this court lacks jurisdiction
to review the order, we agree that the motion was time barred.
Thus, we affirm the district court’s order, but on grounds other
than those relied on by the district court.
A. This Court Has Jurisdiction
¶6 We first address, and reject, the People’s assertion that the
district court’s order is not a final, appealable order. According to
the People, because Knoeppchen did not explicitly invoke Rule 35 or
its statutory counterpart, section 18-1-410, C.R.S. 2018, the
district court lacked authority to treat the matter as a
postconviction challenge. However, courts have long considered the
substantive issues raised in a motion, rather than the label placed
on such motion, to determine how the matter should be
3 characterized. See Dodge v. People, 178 Colo. 71, 73, 495 P.2d 213,
214 (1972). Knoeppchen’s collateral attack on the three-year-old
restitution order clearly sought postconviction relief in the form of
vacating the restitution order.2 Thus, the challenge to the propriety
of the district court’s resolution of that claim is properly before us.
B. Knoeppchen’s Claims Are Time Barred
¶7 The People’s second procedural argument is more availing. As
noted, Knoeppchen’s motion levies an attack on the restitution
award “as a matter of law.” In substance, he asserts that
restitution was not legally imposed. Which provision of Rule 35
governs Knoeppchen’s claim depends on whether he asserts an
illegality of constitutional dimension. If it is a claim that the
sentence is illegal in a way that does not invoke constitutional
protections, it is cognizable under Rule 35(a). See People v. Dunlap,
222 P.3d 364 (Colo. App. 2009) (construing the defendant’s
argument that the district court failed to consider and fix the
restitution amount as a claim that his sentence was illegal under
——————————————————————— 2 Of course, Knoeppchen could have appealed the district court’s original order granting restitution had he chosen to do so in a timely fashion. He did not. Consequently, the only avenue that remained available to him was a postconviction challenge.
4 Rule 35(a)). If it is a claim that the sentence violates constitutional
rights, it is cognizable under Rule 35(c). See People v. Wenzinger,
155 P.3d 415, 419 (Colo. App. 2006) (holding that a challenge to an
aggravated range sentence as contrary to the Sixth Amendment
right to a jury determination of all facts that impact the maximum
sentence falls within the ambit of Rule 35(c)).
1. Challenges to an Illegal Sentence
¶8 Rule 35(a) governs two distinct types of challenges to the
legality of a sentence: (1) a claim that a sentence was not authorized
by law or was imposed without jurisdiction and (2) a claim that the
sentence was imposed in an illegal manner. Crim. P. 35(a). A
sentence is not authorized by law if it is “inconsistent with the
statutory scheme outlined by the legislature.” People v. Rockwell,
125 P.3d 410, 414 (Colo. 2005).
¶9 In contrast, a sentence may be imposed in an illegal manner,
notwithstanding the district court’s authority to impose a particular
sentence, if it “‘ignores essential procedural rights or statutory
considerations in forming the sentence.’” People v. Bowerman, 258
P.3d 314, 316 (Colo. App. 2010) (quoting 15 Robert J. Dieter &
5 Nancy J. Lichtenstein, Colorado Practice Series, Criminal Practice
and Procedure § 21.10 n.10 (2d ed. 2004)).
¶ 10 The line between an unauthorized sentence claim and an
illegal manner claim is not always easily discernable. The broadest
reading of Rockwell, for example, might suggest that even a
procedural error would give rise to an unauthorized sentence claim,
since the improper procedure would be “inconsistent with the
statutory scheme.” However, a division of this court has
characterized the language in Rockwell more narrowly. Wenzinger,
155 P.3d at 418.
¶ 11 Indeed, a closer view of Rockwell does not support a broad
application. In employing the “statutory scheme” language,
Rockwell cited People v. District Court, 673 P.2d 991, 995 (Colo.
1983). There, the supreme court held that “[a] court may not
impose a sentence that is inconsistent with the terms specified by
statutes.” Id. The sentence under review in that case involved an
attempt by the sentencing court, through the combination of a
suspended prison sentence and a sentence to a fixed period in the
county jail work release program, to impose quasi-probationary
conditions without actually imposing probation. Id. at 995-96.
6 Because such a structure was not authorized by the sentencing
statutes, the sentence was illegal. Id. at 996.
¶ 12 Notably, the court in Rockwell addressed a prior version of
Rule 35(a). Prior to July 1, 2004, the rule provided that a court
could “correct an illegal sentence at any time . . . .” Rule Change
2004(2), Colorado Rules of Criminal Procedure (Amended and
Adopted by the Court En Banc, Jan. 29, 2004),
https://perma.cc/J7PK-XYNW. The rule now authorizes a court to
“correct a sentence that was not authorized by law or that was
imposed without jurisdiction at any time . . . .” In Wenzinger, a
division of this court concluded that the amendment “merely
codifie[d] case law defining ‘illegal sentence.’” 3 155 P.3d at 418.
The division further explained that this language of the rule must
be read to exclude mere procedural flaws in sentencing, lest the
rule “blur the distinction between sentences that are void because
they were imposed in excess of the court’s statutory authority and
——————————————————————— 3 Alternatively, if the language in Rockwell was intended to have a more expansive reach, the subsequent amendment clearly narrowed its application to only scenarios where the sentence is inconsistent with the terms and conditions authorized by statute, or where the sentencing court lacked jurisdiction to act.
7 sentences that are voidable because they were ‘imposed in an illegal
manner . . . .’” Id. (citation omitted).
¶ 13 Such a narrow reading is consistent with prior appellate
decisions applying either version of the rule, which have found
sentences to be illegal — or not authorized by law — only when
there have been substantive deviations from the statutory scheme.
In Rockwell, for example, the supreme court held that the district
court announced an illegal sentence when it imposed a period of
mandatory parole when the statute provided for discretionary parole
for the particular offense involved. 125 P.3d at 414; see also
Delgado v. People, 105 P.3d 634, 636 (Colo. 2005) (same). In
Downing v. People, 895 P.2d 1046 (Colo. 1995), the district court
resentenced a defendant who was being transferred from
community corrections to the Department of Corrections and
imposed a longer term than originally imposed, in derogation of the
then-existing statutory prohibition on doing so. Id. 1049-50. And
in People v. White, 179 P.3d 58 (Colo. App. 2007), the district court
entered an illegal sentence because it permitted the sentence to run
concurrently with another sentence when the statute required it to
run consecutively. Id. at 60-61.
8 ¶ 14 In contrast, in People v. Collier, 151 P.3d 668 (Colo. App.
2006), the defendant claimed that “he was not given the complete
range of psychological and physiological testing required for his sex
offender evaluation before he was sentenced.” Id. at 673. The
defendant argued that this testing was required by sections 16-
11.7-104 and 16-11.7-105, C.R.S. 2006. Notwithstanding the fact
that the claim arguably rested on a deviation from the statutory
scheme, a division of this court treated the claim as a challenge to
the manner in which the sentence was imposed. Collier, 151 P.3d
at 673.
¶ 15 And in People v. Bowerman, the defendant challenged the
restitution component of her sentence. She argued that her
sentence was not authorized by law because the prosecution did
not prove by a preponderance of the evidence that she had stolen
items in addition to the specific items mentioned in the information.
258 P.3d at 317. A division of this court rejected the defendant’s
characterization of the claim. Instead, the division concluded that
because the defendant challenged the outcome of the factfinding
process, rather than the general authority of the court to order
restitution, the claim was an illegal manner claim. Id.
9 ¶ 16 We agree with the division in Wenzinger that the language in
Rockwell regarding inconsistency with the statutory scheme does
not encompass mere procedural inconsistencies. Indeed, the
supreme court in Rockwell further characterized illegal sentence
claims as encompassing “questions [concerning] the trial court’s
authority to issue a particular sentence . . . .” 125 P.3d at 414. A
procedural challenge to the sentence does not challenge the court’s
authority, but rather the way in which the court’s authority was
exercised — in other words, the manner in which the sentence was
imposed.
a. The District Court’s Authority and Obligation to Impose Restitution
¶ 17 The question whether Knoeppchen’s claim challenges the
district court’s authority to impose the sentence or simply the
manner in which it did so requires us to consider the nature of the
district court’s authority to impose restitution.
¶ 18 In every criminal prosecution, at the time sentence is imposed,
the district court must address restitution. § 18-1.3-603(1), C.R.S.
2018. To discharge this duty, the district court must take one of
four actions when issuing the order of conviction: (1) establish a
10 specific amount of restitution; (2) find that the defendant will be
obligated to pay restitution, but reserve for ninety-one days the
determination of the specific amount; (3) order that the defendant
will be responsible for paying the costs of specifically designated
ongoing treatment; or (4) find that no victim suffered a pecuniary
loss, so no restitution is owed. Id. Any sentence imposed without
one of these orders is an illegal sentence. People v. Smith, 121 P.3d
243, 251 (Colo. App. 2005).
¶ 19 If the district court exercises the second option, reserving
restitution, the statute requires the amount of restitution to be
established within ninety-one days. § 18-1.3-603(1)(b).4 However,
the district court can extend that time period upon a showing of
good cause. Id.
——————————————————————— 4 The statute appears to set up a bit of an inconsistency. Subsection (1)(b) requires the amount of restitution to be determined within ninety-one days; but subsection (2) sets the same ninety-one-day deadline for the prosecution to provide the information to the court. Compare § 18-1.3-603(1)(b), with § 18- 1.3-603(2). It would appear that where the prosecution timely provides information to the court on or just before the ninety-first day, it will usually be impossible for the district court to rule on the restitution request within the same period, particularly because the court will need to afford the defendant an opportunity to respond.
11 ¶ 20 The ninety-one-day period is not jurisdictional. People v.
Harman, 97 P.3d 290, 293 (Colo. App. 2004). However, where the
prosecution fails to establish the amount of restitution within the
ninety-one days, the district court lacks the authority to impose
restitution unless good cause has been shown. People v. Turecek,
2012 COA 59, ¶ 15.
b. Knoeppchen’s Challenge to Restitution
¶ 21 To apply the principles discussed above, we must determine
whether Knoeppchen challenges the legality of the sentence or the
manner in which it was imposed. Significantly, Knoeppchen does
not argue that the district court lacked jurisdiction to impose
restitution for this offense. As noted above, the district court not
only has the authority, but the obligation, to order restitution. §
18-1.3-603(1). Nor does he argue that the district court lost
jurisdiction to impose restitution outside the ninety (or even the
statutory ninety-one) days. See Harman, 97 P.3d at 293.
¶ 22 Rather, Knoeppchen argues that the district court failed to
make a contemporaneous finding of good cause before permitting
the late request for restitution. Unfortunately, just as he did in the
district court, Knoeppchen asserts his claim without any reference
12 to Rule 35 at all, let alone any specific reference to whether the
sentence was authorized by law. Instead, Knoeppchen relies on
Turecek.
¶ 23 In Turecek, the prosecution initially filed a timely restitution
request that was only an estimate because the insurer had not
made a final coverage decision for the claim. Turecek, ¶ 3. The
district court considered the amount requested “not to be accurate
at this point” and declined to take any action on the request;
instead, the court gave the prosecution ninety days to file a
corrected request. Id. at ¶ 4. The prosecution took no further
action for nine months, at which time it sought a ruling on the
original request. Id. at ¶ 5. The district court granted the request.
¶ 24 On appeal, a division of this court concluded that because the
prosecution “failed to establish (or even seek to establish) good
cause for extending that time period,” the district court erred in
imposing restitution. Id. at ¶ 15. Significantly, the defendant in
Turecek timely filed a direct appeal of the restitution order.
Consequently, the appellate court had no occasion to discuss
whether the challenge was an illegal sentence claim or an illegal
manner claim. It appears, however, that Knoeppchen believes that
13 the context of the appellate court’s discussion in Turecek speaks in
terms of the district court’s authority, or lack thereof, to order
restitution in those circumstances. See id. at ¶¶ 13-15.
¶ 25 As a threshold issue, we note that nothing in the statute
explicitly requires the court to make an oral or written finding of
good cause; rather, the statute merely requires good cause to be
shown. Nor does Turecek clearly impose on the district court an
obligation to make such an explicit finding. Compare id. at ¶ 15
(stating the holding of the case, specifically that the district court
erred in imposing restitution where the prosecution had not shown
good cause), with id. at ¶ 20 (noting, in distinguishing Harman, that
the district court had made no finding that the prosecution had
established good cause).
¶ 26 Even if we assume Turecek stands for the proposition that a
good cause finding is integral to the district court’s authority to
order restitution, Knoeppchen’s reliance on Turecek is misplaced.
Here, unlike in Turecek, the prosecution asserted, and the district
court found, that there was good cause for extending the time
period. Knoeppchen argues that this finding of good cause is
invalid because it was not made when the district court initially
14 ordered restitution. However, he cites to no authority, and we have
found none, that requires the showing (or finding) of good cause to
occur at any particular time. Rather, the statute merely requires
that a showing be made. § 18-1.3-603(1)(b).
¶ 27 The essence of Knoeppchen’s claim, then, is not that the
prosecution failed to show good cause for extending the period, but
rather that the court did not address good cause in a timely
fashion. In other words, he claims the district court “ignore[d]
essential procedural rights or statutory considerations.”
Bowerman, 258 P.3d at 316 (quoting Dieter & Lichtenstein, § 21.10
n.10); see also James v. United States, 70 F. App’x 112, 113 (4th
Cir. 2003) (treating an assertion that the sentencing court failed to
establish the amount of restitution within ninety days as an illegal
manner claim under the 1987 version of Rule 35(a) of the Federal
Rules of Criminal Procedure — which was identical to the 2004
version of Colorado’s rule at issue in Rockwell). Knoeppchen’s
claim, therefore, must be addressed as a challenge to the manner in
which the sentence was imposed.
¶ 28 This distinction is fatal to Knoeppchen’s claim. While an
illegal sentence may be corrected at any time, the district court can
15 only correct “a sentence imposed in an illegal manner within the
time provided herein for the reduction of sentence.” Crim. P. 35(a).
Thus, a claim that a sentence was imposed in an illegal manner
must be raised within 126 days of the imposition of the sentence.
Crim. P. 35(a), (b). Because Knoeppchen filed his motion to vacate
the restitution order well beyond the 126-day limit, his motion was
time barred.
2. Due Process Challenge
¶ 29 Knoeppchen’s second argument is also time barred. He
asserts that the district court violated his right to due process by
making a post hoc finding of good cause in permitting the tardy
restitution request and relying on information presented by the
prosecution long after the restitution order was entered. This is a
challenge to the constitutionality of the restitution component of the
sentence. As such, this claim is cognizable under Rule 35(c).
Wenzinger, 155 P.3d at 419.
¶ 30 Knoeppchen was convicted of, and sentenced for, a
misdemeanor. A Rule 35(c) challenge to a misdemeanor conviction
or sentence must be brought within eighteen months of the
conviction. § 16-5-402(1), C.R.S. 2018. Where there is no appeal,
16 this period begins to run when the district court enters judgment
and the sentence is imposed. People v. Pennington, 989 P.2d 230,
231 (Colo. App. 1999).
¶ 31 Knoeppchen’s conviction entered when he was sentenced on
August 22, 2013. It is unclear whether the subsequent order fixing
restitution would restart the commencement of the statutory filing
period. See People v. Metcalf, 979 P.2d 581, 583 (Colo. App. 1999)
(holding that a modification of sentence pursuant to Rule 35(b) does
not restart the clock for a Rule 35(c) motion). Even if we assume it
did, the district court entered the initial order imposing restitution
on January 8, 2014, and the order amending restitution on July 8,
2014. Knoeppchen first sought to challenge the restitution order on
September 15, 2017, more than three years after the last restitution
order was issued. Thus, Knoeppchen’s due process challenge is
also time barred.
C. An Appellate Court May Raise Untimeliness
¶ 32 We acknowledge that the People did not argue that
Knoeppchen’s motion was time barred under section 16-5-402 in
the district court. However, so long as the untimeliness is clear
from the motion and the record, an appellate court may deny relief
17 on such grounds even if the issue was not raised in the district
court. § 16-5-402(1.5). Further, we can affirm a district court’s
ruling on any ground supported by the record. People v. Quintana,
882 P.2d 1366, 1375 (Colo. 1994).
¶ 33 Because Knoeppchen’s motion was untimely, we affirm the
district court’s denial of the motion, albeit for different reasons than
those relied on by the district court.
III. Conclusion
¶ 34 The order is affirmed.
JUDGE TAUBMAN and JUDGE BERGER concur.