Peo v. Archibeque

22CA2272 Peo v Archibeque 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2272
Adams County District Court No. 20CR2176
Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Geno Lee Archibeque,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Geno Lee Archibeque, appeals the restitution order

entered following his guilty plea and conviction for attempted

second degree assault. We affirm.

I. Background

¶2 After being charged with six counts of second degree assault,

six counts of menacing, and one count of criminal mischief,

Archibeque pleaded guilty on July 13, 2021, to one count of

attempted second degree assault – causing injury with a deadly

weapon. As part of his plea agreement, Archibeque agreed to pay

any court-ordered restitution and that the restitution amount

would be reserved.

¶3 On January 19, 2022, the trial court sentenced Archibeque to

three years and 302 days in community corrections. At sentencing,

the prosecution requested to reserve restitution because the

amount was still being determined since the victim was still

receiving continuing care for his injuries. The court reserved

restitution, gave the prosecution thirty-five days to file its

restitution request, and gave the defense twenty-eight days after

that to file any objection.

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¶4 Before the court held a restitution hearing and entered an

order for a specific amount of restitution, the following motions and

orders were filed:

• On March 1, the prosecution moved for an extension of

time to file the restitution information until May 30. It

asserted extenuating circumstances justified the

extension because the victim was still receiving medical

treatment and asked the court to make a good cause

finding to extend its deadline to determine restitution

beyond ninety-one days.

• On March 14, the court entered an order finding

extenuating circumstances for the prosecution’s late

filing and gave it until April 30 to file its restitution

documents. The court also expressly found good cause

to extend its deadline for determining the restitution

amount and set June 1 as its own deadline to determine

the restitution amount.

• On April 26, the prosecution filed another motion for an

extension of time to file its restitution request, again

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asserting that the victim was still undergoing treatment,

and asked for a June 13 deadline for its filing.

• On April 29, the court entered another order extending

the prosecution’s deadline to June 9 and finding good

cause to further extend its own deadline to enter an order

determining the amount of restitution until July 14.

• On June 8, the prosecution submitted a request for

$3,939.20 in restitution but asked for an extension until

October 31 to submit its final restitution amount because

the victim had yet to return to work and additional time

was needed to calculate his lost wages and medical bills

not covered by insurance.

• On July 1, the court held a hearing on the prosecution’s

motion. At that hearing, Archibeque objected to (1) the

prosecution’s June 8 extension request, and (2) the

prosecution’s assertion that he proximately caused all of

the victim’s damages. The court found good cause to

extend the period within which to determine restitution,

set a deadline of September 9 for the prosecution to

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submit its final restitution amount, and scheduled a

restitution hearing for September 30.

• On September 8, the prosecution filed its final restitution

figures, asking for $12,048.50 in restitution, and, the

next day, filed a motion to continue the restitution

hearing.

¶5 The court ultimately held the restitution hearing on

October 24. Six days later, it issued a written order finding that

there was good cause to extend the time by which it would

determine restitution and indicated it would enter its order within

thirty-five days. On November 18, the court entered a written order

finding that the prosecution had established, by a preponderance of

the evidence, that Archibeque was responsible for $6,569.70 in

restitution.

II. Restitution

¶6 Restitution is “any pecuniary loss suffered by a victim . . .

proximately caused by an offender’s conduct.” § 18-1.3-602(3)(a),

C.R.S. 2024. Every order of conviction “shall include consideration

of restitution,” which must take one or more of four prescribed

forms: (1) an order to pay a specific amount of restitution; (2) an

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order that the defendant is obligated to pay restitution, but

deferring the determination of the actual amount owed; (3) an order

that the defendant is obligated to pay the actual costs of specific

future treatment of the victim; or (4) a finding that no victim

suffered a pecuniary loss and thus no restitution is owed. § 18-1.3-

603(1)(a)-(d), C.R.S. 2024. If the court defers determining the

amount of restitution, it “shall” determine the amount “within 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.” § 18-1.3-603(1)(b);

see also People v. Weeks, 2021 CO 75, ¶ 5 (“[T]he deadline in

subsection (1)(b) refers to the court’s determination of the

restitution amount the defendant must pay, not to the prosecution’s

determination of the proposed amount of restitution.”).

¶7 Resolving conflicting interpretations of section 18-1.3-

603(1)(b), the supreme court in Weeks held that a trial court

(1) must determine the amount of restitution within ninety-one days

of the judgment of conviction; and (2) may extend that ninety-one-

day deadline only if, before the deadline expires, the court expressly

finds good cause to extend it. Weeks, ¶¶ 4-5. Thus, within ninety-

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one days of the order of conviction, the trial court must either

determine restitution or expressly make a finding of good cause to

extend the deadline. Id. at ¶ 5. If the court fails to do either, it

loses its “authority” to award restitution. See id. at ¶ 45; see also

People v. Tennyson, 2023 COA 2, ¶¶ 32-33 (cert. granted Sept. 11,

2023).

¶8 Further, the statute requires the court to base its order setting

the restitution amount on information presented by the prosecuting

attorney either prior to entry of conviction at sentencing or within

ninety-one days if it’s not available before that time. § 18-1.3-

603(2)(a). But the court can also extend that date if it finds

“extenuating circumstances affecting the prosecuting attorney’s

ability to determine restitution.” Weeks, ¶ 6.

¶9 Whether the trial court had authority to impose restitution is a

legal question that we review de novo. See People v. Roddy, 2021

CO 74, ¶ 23.

III. Initial Restitution Order at Sentencing

¶ 10 Archibeque contends that the trial court didn’t enter one of the

four types of orders required by section 18-1.3-603(1) and Weeks at

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the sentencing hearing, and therefore, did not have authority to

enter the later restitution order. We disagree.

¶ 11 Initially, we note that the parties dispute whether Archibeque

waived or invited any error with regard to the court’s entry of a

section 18-1.3-603(1) order at sentencing. However, we don’t

resolve that dispute because, as discussed below, we reject the

argument on the merits.

¶ 12 We acknowledge that Archibeque’s mittimus doesn’t include a

notation regarding restitution. But in the plea agreement,

Archibeque agreed to “pay any Court-ordered restitution” and

agreed that the determination of the amount of restitution would be

reserved. At sentencing, the trial court orally granted the

prosecution thirty-five days to file its restitution motion based upon

the prosecution’s assertion that the amount was still being

determined because the victim was receiving continuing care, both

psychological and physical.

¶ 13 We understand the court’s statement about the prosecution

filing its restitution motion to mean that the court considered and

ordered that Archibeque was liable to pay restitution and the court

reserved only the determination of the restitution amount based on

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the prosecution’s assertion that the amount was, as of that time,

undetermined. Thus, we conclude that the order entered at the

restitution hearing was sufficient to comply with section 18-1.3-

603(1)(b).

¶ 14 Archibeque also asserts that, before entering the preliminary

order requiring a defendant to pay restitution under section 18-1.3-

603(1)(b), the trial court must make a determination that the

defendant proximately caused the damages subject to restitution.

And because the court didn’t do that here, any order entered at the

sentencing hearing was improper. Again, we disagree.

¶ 15 Section 18-1.3-603(1) requires that all judgments of conviction

contain one of four types of orders regarding restitution. Weeks,

¶ 3. As discussed above, the type of restitution order relevant here

requires a judgment 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 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.” § 18-1.3-603(1)(b).

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¶ 16 However, a section 18-1.3-603(1)(b) order assigning liability for

restitution is distinct from a determination of the amount of

restitution for which the defendant is liable. See Sanoff v. People,

187 P.3d 576, 578 (Colo. 2008) (“[A]n order of conviction need only

include a determination whether the defendant is obligated to pay

restitution, without designation of the amount[.]”); see also

Tennyson, ¶ 22 (noting that the restitution statute clearly

distinguishes between a subsequent determination of the amount of

restitution owed by a defendant and the order simply finding the

defendant liable to pay restitution). Indeed, section 18-1.3-

603(1)(b) contemplates that the court will enter an order at

sentencing requiring a defendant to pay restitution before the

prosecution presents any information in support of a specific

amount. And it’s only after the prosecution submits documentation

to establish the amount of damages caused by the defendant’s

criminal conduct that the court holds a hearing to determine

proximate cause and the amount of restitution if the defendant

objects on those grounds. §§ 18-1.3-602(3)(a), 18-1.3-603(1)(b).

Thus, contrary to Archibeque’s contention, we conclude that the

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trial court isn’t required to determine causation at the sentencing

hearing when it enters a section 18-1.3-603(1)(b) order.

IV. Authority to Enter the Final Restitution Order

¶ 17 Archibeque next contends that the trial court lacked authority

to enter the order requiring him to pay $6,569.70 in restitution

because it (1) failed to set a new deadline for it to determine the

restitution amount at the July 1 hearing and (2) didn’t find

extenuating circumstances to justify the prosecution’s extension for

submitting its final restitution figures before its June 9 deadline

expired. Because we conclude that the trial court retained

authority to enter the November 18, 2022, restitution order, we

reject Archibeque’s contentions.

A. Trial Court Maintained Authority to Order Restitution

¶ 18 Archibeque argues that the trial court lost its authority to

enter the final restitution order because it did not adhere to its self-

imposed deadline of July 14 for determining the restitution amount

and did not set a new deadline for itself at the July 1 hearing when

it found good cause to extend its time for determining the

restitution amount. We aren’t persuaded.

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¶ 19 Here, pursuant to section 18-1.3-603(1)(b) and Weeks, ¶ 5, the

trial court had until April 19, 2022 — ninety-one days after the

January 18 sentencing hearing — to determine restitution or make

an express good cause finding to extend the restitution deadline.

On March 14, the court entered an order finding extenuating

circumstances to extend the prosecution’s deadline to file its

restitution figures, expressly found good cause to extend its

deadline for determining the restitution amount, and set June 1,

2022, as its new deadline for determining the restitution amount.

Because the court expressly found good cause to go beyond the

initial ninety-one day statutory deadline before that deadline

expired, we conclude that it retained authority to continue the

restitution proceedings. See Weeks, ¶¶ 4-5.

¶ 20 Archibeque nevertheless argues that the trial court lost

authority when, at the July 1 hearing, despite finding good cause to

further extend the restitution proceedings, the court failed to set a

new deadline for itself to enter the restitution order when it set the

restitution hearing for September 30. However, Archibeque doesn’t

cite, and we aren’t aware of, any reported Colorado case holding

that a trial court lacks the authority to enter a restitution order

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when it fails to meet its own self-imposed deadline for determining

the restitution amount.

¶ 21 Section 18-1.3-603(1)(b) refers only to the statutory ninety-

one-day deadline; and, neither the statute nor Weeks require the

trial court to set a deadline for itself when it makes a good cause

finding to go beyond the statutory ninety-one days. Thus, as long

as the trial court expressly finds good cause to extend the deadline

for ordering restitution before the initial ninety-one days expires, it

retains authority to enter the restitution amount more than ninety-

one days after sentencing. See Weeks, ¶¶ 4-5.

¶ 22 We note, however, that the absence of such a requirement

doesn’t necessarily mean that a trial court can indefinitely postpone

determining the restitution amount once it’s made a good cause

finding to determine restitution more than ninety-one days after

sentencing. Thus, to the extent that the statute and Weeks

envision that the trial court will enter restitution within a

reasonable time after making the good cause finding to go beyond

the statutory ninety-one days, we conclude that, based on the facts

here, the trial court entered the order for a specific amount of

restitution within a reasonable time. Despite the trial court failing

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to set an internal deadline for when it would enter the restitution

order after the July 1 hearing, it didn’t allow the matter to linger. It

set deadlines for the prosecution’s supplemental request, scheduled

a restitution hearing based on Archibeque’s objection to the

requested amount, and ultimately issued its order within a month

of that hearing. Given the specific nature of the victim’s injuries

and the court’s need to evaluate the evidence before deciding on the

restitution amount for which Archibeque was responsible, we

conclude that the trial court’s restitution order was entered within a

reasonable time.

B. Prosecution’s Submission of the Restitution Information

¶ 23 Archibeque also argues that the trial court lost its authority to

enter the restitution order because it (1) allowed the prosecution to

submit the restitution information after the June 9 deadline it set

expired and (2) failed to grant an extension of that deadline before it

expired. We aren’t persuaded.

¶ 24 The trial court has the inherent authority to manage its docket

through scheduling orders. People v. Owens, 2014 CO 58, ¶ 16.

Under section 18-1.3-603(2)(a), the prosecutor shall “present

[restitution] information to the court prior to the order of conviction

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or within ninety-one days, if it is not available prior to the order of

conviction.” In Weeks, the supreme court held that “a request for

an extension of the prosecution’s deadline should be made and

resolved before or during the sentencing hearing.” Id. at ¶ 8.

However, the court may extend that deadline if, before the

prosecution’s ninety-one-day deadline expires, it expressly finds

there are extenuating circumstances affecting the prosecution’s

ability to determine the proposed amount of restitution. Id. at

¶¶ 31, 40; see also People v. Martinez Rubier, 2024 COA 67, ¶ 40.

¶ 25 Here, before the statutory ninety-one days expired, the

prosecution requested an extension until May 30 to file its

restitution figures, asserting that extenuating circumstances

justified the extension because one of the victims was still receiving

medical treatment. On March 14, the court entered an order

finding extenuating circumstances for the prosecution’s late filing

and gave it until April 30 to file the restitution documents.

¶ 26 Then, prior to the expiration of the April 30 deadline, the

prosecution requested a second extension, and the court again

found extenuating circumstances and extended the prosecution’s

deadline until June 9. The prosecution met that deadline by filing

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its request seeking $3,939.20 in restitution on June 8. Thus, the

prosecution satisfied section 18-1.3-603(2)(a)’s requirement to

provide information regarding the amount of restitution within that

extended period based on extenuating circumstances. See Weeks,

¶ 31.

¶ 27 We aren’t persuaded that the prosecution’s request on June 8

for an additional amount of time to supplement that figure and the

court’s failure to rule on it before its June 9 deadline affected the

court’s authority to enter the restitution order. Section 18-1.3-

603(3)(a) allows an order of restitution to be increased if additional

losses not known at the time the order of restitution was entered

are later discovered and the court has not set the final restitution

amount.

¶ 28 Further, neither Weeks nor the statute require the court to

make continuing findings of extenuating circumstances for the

prosecution to file its restitution information after the initial finding

extending the timeline for filing beyond the first ninety-one-day

period after sentencing. Section 18-1.3-603(2)(a) provides only that

the court may extend “this date” upon a finding of extenuating

circumstances. (Emphasis added.) The date referenced in that

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sentence refers to the initial ninety-one-day deadline mentioned in

the preceding sentence that states “the prosecuting attorney shall

present this information to the court prior to the order of conviction

or within ninety-one days.” § 18-1.3-603(2)(a).

¶ 29 Thus, when the trial court found, in its April 29 order, that

extenuating circumstances existed to extend the prosecution’s

deadline until June 9, it complied with both the statute and Weeks.

Weeks, ¶ 6. And the prosecution complied with that deadline when

it filed its restitution request on June 8. Therefore, the court

retained authority to enter further orders regarding the restitution

proceedings.

¶ 30 Although the prosecution later filed an amended restitution

request, it nevertheless complied with the court’s scheduling order

that required the amended restitution amount be submitted by

September 8, and that filing constituted a valid request pursuant to

section 18-1.3-603(3)(a) for an additional amount not previously

known. Thus, we perceive no error in the court accepting the

prosecution’s amended restitution request. See id.

V. Disposition

¶ 31 We affirm the trial court’s restitution order.

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JUDGE BROWN and JUDGE MOULTRIE concur.

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