Peo v. Gillmore

24CA0734 Peo v Gillmore 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0734
City and County of Denver District Court No. 23CR726
Honorable A. Bruce Jones, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin P. Gillmore,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE KUHN
Dunn and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for
Defendant-Appellant

Katherine Houston, Lakewood, Colorado, for Amicus Curiae Rocky Mountain
Victim Law Center
¶1 Defendant, Kevin P. Gillmore, appeals the district court’s

restitution order. We affirm.

I. Background

¶2 The prosecution accused Gillmore of sexually assaulting the

victim, with whom he was in a relationship, over a period of several

months. The parties resolved the case through a plea agreement.

Gillmore pleaded guilty to second degree assault and attempt to

commit sexual assault. See §§ 18-3-203(l)(g), 18-3-402(l)(b),

18-2-101, C.R.S. 2025.

¶3 The district court sentenced Gillmore to eight years

imprisonment followed by eight years of sex offender intensive

supervised probation. At the sentencing hearing, the court gave the

prosecution forty-nine days to “submit restitution.”

¶4 The prosecution filed a motion for restitution one business day

after the forty-nine-day deadline, together with a motion to accept

its untimely restitution request. The court accepted the restitution

motion and later held a restitution hearing. After the hearing, the

court ordered Gillmore to pay $136,220.17 in restitution. Gillmore

now appeals.

1
II. Analysis

¶5 Gillmore claims that the district court violated the restitution

statute, section 18-1.3-603, C.R.S. 2023,1 because the court (1) did

not comply with the statute’s requirements at sentencing and

(2) abused its discretion by accepting the prosecution’s untimely

restitution motion.

A. Applicable Law and Standard of Review

¶6 A court may correct an illegal sentence “that was not

authorized by law or that was imposed without jurisdiction at any

time.” Crim. P. 35(a). An illegal sentence “not authorized by law” is

a sentence that “fails to comply in full with statutory requirements.”

Tennyson v. People, 2025 CO 31, ¶ 25. And an illegal sentence

“imposed without jurisdiction” refers to a court’s “power to entertain

and to render a judgment on a particular claim.” Id. at ¶ 27

(quoting People in Interest of J.W. v. C.O., 2017 CO 105, ¶ 21).

1 Effective after Gillmore’s sentencing, the General Assembly

amended section 18-1.3-603(1)(b), (2)(a), C.R.S. 2025, revising
certain statutory deadlines. See Ch. 307, sec. 1, § 18-1.3-603(1)(b),
(2)(a), 2025 Colo. Sess. Laws 1606-07. For our purposes, we refer
to the statute in effect at the time of Gillmore’s sentencing,
section 18-1.3-603, C.R.S. 2023.

2
¶7 Rule 35(a) also provides that a court “may correct a sentence

imposed in an illegal manner,” subject to certain deadlines not

relevant here. A court imposes a sentence in an illegal manner

when the court “ignores essential procedural rights or statutory

considerations in forming the sentence.” Tennyson, ¶ 29 (quoting

15 Robert J. Dieter & Nancy J. Lichtenstein, Colorado Practice

Series, Criminal Practice and Procedure, § 21.10 n.10 (2d ed. 2004)).

A challenge to “the timeliness of the determination of the amount of

restitution[] is an illegal manner claim, not an illegal sentence

claim.” Id. at ¶ 45.

¶8 A Rule 35(a) claim has no preservation requirements, even for

a direct appeal. See People v. Martinez Rubier, 2024 COA 67, ¶ 23

(no preservation requirements for either an illegal sentence or illegal

manner claim); Fransua v. People, 2019 CO 96, ¶ 13 (“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.”)

¶9 We review de novo the legality of a sentence and questions of

statutory or procedural interpretation. Tennyson, ¶ 23; Snow v.

3
People, 2025 CO 32, ¶¶ 17-18. We also review de novo questions of

waiver. Martinez Rubier, ¶ 30.

¶ 10 We review a district court’s decision to modify its own deadline

for an abuse of discretion. See People v. Johnson, 2013 COA 122,

¶¶ 39-41; People v. Sandoval-Candelaria, 2014 CO 21, ¶ 26 (“[T]rial

courts have broad discretion to manage their dockets.”). A district

court abuses its discretion when it misconstrues or misapplies the

law or when its decision is manifestly arbitrary, unreasonable, or

unfair. People v. Knapp, 2020 COA 107, ¶ 68.

B. The Restitution Statute

¶ 11 District courts are required to include “consideration of

restitution” in every order of conviction by (1) fixing a specific

amount of restitution; (2) ordering that the defendant is obligated to

pay restitution but reserving the question of how much restitution

is due for up to ninety-one days; (3) fixing restitution and requiring

the defendant to pay certain future costs; or (4) making a specific

finding that no victim of the crime suffered a financial loss and thus

assessing no restitution. § 18-1.3-603(1); see People v. Weeks,

2021 CO 75, ¶ 29.

4
¶ 12 An order reserving the question of how much restitution is

due, § 18-1.3-603(1)(b), requires that the order of conviction assign

restitution liability at sentencing, even though the court defers

determining the amount of restitution, Snow, ¶ 12 (noting a “court

may enter a finding of restitution liability at sentencing while

postponing the determination of the amount of restitution”); id. at

¶ 12 n.4 (distinguishing between restitution liability and amount).

In other words, section 18-1.3-603(1) does not authorize a court to

reserve the issue of restitution in its entirety at sentencing. Snow,

¶ 22.

¶ 13 The prosecution also has obligations under the statute.

Section 18-1.3-603(2)(a) requires the prosecutor to (1) move for

restitution before or during the sentencing hearing; and (2) present

the court with information for determining the amount of restitution

before the judgment of conviction, if the information is then

available. Weeks, ¶ 30. If the information isn’t then available, the

prosecutor may submit the information within ninety-one days.

§ 18-1.3-603(1)(b), (2)(a).

5
C. Restitution Liability Was Imposed at Sentencing

¶ 14 Gillmore contends that the district court failed to comply with

section 18-1.3-603 because, at sentencing, the prosecution did not

move for restitution, and the court reserved ruling on restitution in

its entirety. Consequently, the court’s failure to comply with the

statute, asserts Gillmore, meant that it had no power to order

restitution after sentencing, and thus, the restitution order must be

vacated. We are not persuaded.

1. Additional Facts

¶ 15 Gillmore submitted to the district court a request to plead

guilty along with the plea agreement (collectively, the plea

documents). In the plea documents, Gillmore affirmed, “I know that

I must pay restitution.” The plea documents further stated that

Gillmore “agree[d] to pay restitution for all charged counts,

including counts dismissed as part of this plea resolution,”

although they also stipulated that “[t]he People [r]eserve[d]

[r]estitution.”

¶ 16 The prosecutor told the district court at the plea hearing that

she was “reserving restitution.” The court then ruled that

“[r]estitution [wa]s being reserved.”

6
¶ 17 At the sentencing hearing, defense counsel acknowledged

having received an initial proposed amount of restitution from the

prosecutor for approximately $46,000. Defense counsel said that

most of that amount involved the victim’s future psychological

treatment — which, defense counsel conceded, “I’m sure [the victim]

does need.” Defense counsel then argued, “But, honestly, it’s going

to be difficult for [Gillmore] to make any payments at all if he’s in

prison.” Accordingly, defense counsel asked the court to sentence

Gillmore to probation.

¶ 18 For her part, the prosecutor contended that she had a

“good-faith basis for reserving restitution” because, “[a]s alluded to

by the defense, there is a significant amount of restitution that will

be sought.” The prosecutor elaborated that earlier in the week she

had received forty pages of documentation and receipts from the

victim for determining the restitution amount, but the prosecutor

and her co-counsel had not yet been able to go through those

documents. The prosecutor concluded, “[T]o the extent it would be

appropriate for a restitution ask of this nature, . . . we are

requesting that the [c]ourt reserve.”

7
¶ 19 In its oral sentencing order, the court ordered the prosecution

to submit the amount of restitution sought and advised Gillmore of

the following:

The [prosecution] [is] given [forty-nine] days to
submit restitution. Given the amounts that
were being discussed, if the amounts sought
are in that vicinity, I am sure that the defense
will request a hearing and they are entitled to
a hearing. For that reason, given the amounts
that are being suggested, if I could see it
sooner than [forty-nine] days, I would very
much appreciate that.

Confer with counsel, who can confer with
[Gillmore]. It may be that the amount that is
ultimately sought is something that he finds
agreeable. . . . I’ll rephrase that, . . . that he
will agree to.

But [Gillmore], if you do not agree to the
amount of restitution that’s being sought, you
have the right to request a hearing and we will
have a hearing at which I will hear witnesses
and I will hear testimony and I will see exhibits
and I will make a determination as to the
appropriate amount of restitution.

The mittimus contained no information about restitution.2

2 The district court has since amended the mittimus to reflect the

court’s ultimate restitution order. See People v. Weeks, 2021 CO
75, ¶ 44 (district courts must update mittimuses to reflect
restitution, as appropriate).

8
2. The Prosecutor Properly
Moved for Restitution

¶ 20 Gillmore contends that, even though the prosecutor had some

information about the restitution amount at the time of sentencing,

she didn’t move for restitution at the hearing as required by section

18-1.3-603(2)(a).3

¶ 21 However, before sentencing, Gillmore had already affirmed in

his plea documents that he “kn[e]w that [he] must pay restitution”

and had “agree[d] to pay restitution for all charged counts.” And

the court confirmed on the record that Gillmore understood the

3 Shortly before oral argument, Gillmore’s counsel filed a “Citation

of Supplemental Authorities” referencing an unpublished opinion
from a division of this court, which he asserts supports this
argument. And after oral argument, counsel filed a “Second
Citation of Supplemental Authorities” that similarly cited a second
unpublished opinion from a division of this court. However, a
notice of supplemental authority is only appropriate to alert the
court to “pertinent and significant new authority.” C.A.R. 28(i).
Only cases designated for official publication are precedential,
C.A.R. 35(e), and this court does not permit citation of opinions not
selected for publication other than for reasons not applicable here.
Accordingly, we do not consider the notices of supplemental
authorities further.

9
terms of his plea documents and had entered his plea freely,

knowingly, and intentionally.4

¶ 22 It is true that at the plea hearing the court ordered, echoing

the words of the prosecutor’s request, that restitution was “being

reserved.” But based on the affirmations contained in Gillmore’s

plea documents, we perceive that the court was only reserving the

amount of restitution and that it implicitly imposed restitution

liability on Gillmore, as the plea agreement contemplated.

¶ 23 Indeed, the record supports the conclusion that, at

sentencing, the parties understood that the court would hold

Gillmore liable for restitution. Defense counsel demonstrated this

understanding by advocating for a probationary sentence so that

4 Gillmore also claims that the court didn’t establish restitution

liability at the sentencing hearing because the court’s findings of
fact issued after the plea hearing indicated that the court wasn’t
bound by the parties’ representations, thus implying that
restitution needed to be stated on the record. But Gillmore raised
this issue for the first time in his reply brief, so we will not consider
it. This is so even though we permitted the People to file a surreply
because the surreply was solely directed at responding to Gillmore’s
discussion in his reply brief about Snow v. People, 2025 CO 32
(which was announced after the answer brief was filed). See People
v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990) (when
prosecution did not have a chance to brief an issue first raised in
reply brief, supreme court would not address it), abrogated in part
on other grounds by, Rojas v. People, 2022 CO 8.

10
Gillmore could pay “a restitution amount . . . of some $46,000,”

which largely entailed treatments that defense counsel

acknowledged the victim “does need.” (Emphasis added.) Such an

argument about what type of sentence would enable Gillmore to pay

for restitution is necessarily premised on his being liable for

restitution to begin with. Further, defense counsel raised no

objections with the district court — either at sentencing or at the

later restitution hearing — to Gillmore having an underlying

obligation to pay restitution. Indeed, his liability for some amount

of restitution was a foregone conclusion.

¶ 24 Moreover, while it’s true that the prosecutor requested at

sentencing “that the [c]ourt reserve” restitution, she made her

request based on the review required for the “significant amount of

restitution that [would] be sought.” (Emphasis added.) It would

make little sense for the prosecutor to request more time to

determine the amount of restitution unless her request implicitly

included asking the court to hold Gillmore liable for restitution —

as the parties understood he would be — and thus invoking section

18-1.3-603(2)(a). Even so, Gillmore contends, citing Weeks,

¶ 30, that the prosecutor needed to exercise diligent efforts to

11
obtain the restitution information before sentencing.5 While

Gillmore doesn’t dispute that the prosecution obtained forty pages

of documents before sentencing, he does claim that the prosecutor

failed to exercise diligence because she didn’t obtain the

documentation sooner.

¶ 25 We disagree with the premise that the prosecutor’s obligation

under Weeks — to show that the information supporting the

prosecution’s restitution request “isn’t yet available” at

sentencing — entails the prosecutor obtaining the information by

some arbitrary date before the sentencing hearing. Weeks, ¶ 6.

Besides, both parties acknowledged at the sentencing hearing that

the prosecutor had grounds to seek a significant amount of

restitution; that the prosecutor needed more time to review the forty

pages of documents, to which defense counsel did not object; and

that the prosecutor had provided the defense with an initial

restitution amount before sentencing. The record demonstrates,

then, that the prosecutor had sufficiently endeavored to obtain the

5 The Colorado Supreme Court recently granted certiorari in a case

holding that the prosecution must exercise diligent efforts to obtain
the restitution information before the judgment of conviction. See
People v. Brassill, 2024 COA 19 (cert. granted in part Aug. 4, 2025).

12
information before sentencing and had reasonable grounds

explaining why the exact amount of restitution was not yet

available. See § 18-1.3-603(2)(a); Weeks, ¶ 44.

3. The Court Did Order That Gillmore
Was Liable for Restitution

¶ 26 Gillmore contends that because the district court ordered the

prosecution to submit the restitution information within forty-nine

days, it reserved ruling on the issue of restitution in its entirety in

violation of the statute.

¶ 27 To be sure, it would have been a better practice for the district

court to have explicitly ordered at sentencing that Gillmore was

liable for restitution with the amount to be determined later. See

§ 18-1.3-603(1)(b). Likewise, it would be a better practice for the

prosecutor to not ask to “reserve restitution,” particularly nearly

three years after the supreme court had issued Weeks.

¶ 28 Nonetheless, the court’s order addressed restitution in terms

of the “[g]iven . . . amounts” and “amounts sought.” (Emphasis

added.) And the court tailored its order in anticipation of Gillmore

either agreeing to the restitution “amount that is ultimately sought”

or “not agree[ing] to the amount of restitution” and requesting a

13
hearing so the court could “make a determination as to the

appropriate amount of restitution.” (Emphasis added.) Viewing

these rulings in context with both (1) Gillmore’s acknowledgements

in his plea documents that he “must pay restitution” and would

“pay restitution for all charged counts” and (2) the parties’ exclusive

focus at sentencing on the amount of restitution to be determined,

we infer that the district court’s order deferred only the

determination of the amount of restitution, and not Gillmore’s

liability for restitution in its entirety, in accordance with section

18-1.3-603(1)(b) and the parties’ understanding.

¶ 29 Consequently, we disagree with Gillmore’s argument that this

case is analogous to Snow. In that case, the supreme court held

that there was no basis to infer restitution liability from the

district’s court order that “reserve[d] restitution for [sixty] days.”

Snow, ¶ 7. Unlike the record here, the supreme court determined

that the record in Snow was “barren of an explicit or implicit finding

of restitution liability either before or during the sentencing

hearing.” Id. at ¶ 29. This is so because, as distinguishable from

Gillmore’s case, in Snow, the defendant’s plea agreement didn’t

mention restitution at all, and the prosecution gave no indication it

14
intended to seek restitution beyond the singular event of asking the

district court to “reserve restitution at this point in time.” Id. at

¶¶ 6-7.

¶ 30 Gillmore’s case is more analogous to Tennyson, where the

record did support an inference of restitution liability. In Tennyson,

after the defendant stipulated in a plea agreement that he was

liable for restitution, at sentencing, the district court granted the

prosecution more time to determine “what restitution is due and

owing.” Tennyson, ¶ 10. Accordingly, the supreme court inferred

from “the terms of the plea agreement and the exchange between

the court and the prosecution at the sentencing hearing” that the

district court had found the defendant liable for restitution. Id.

¶ 31 The same is true here. Following Gillmore’s stipulation in the

plea agreement that he would pay restitution, the district court

ordered that the prosecution had “[forty-nine] days to submit

restitution” because of the amounts sought and the defense’s

anticipated request for a hearing. Accordingly, from the plea

agreement, the parties’ exchanges over the amount of restitution,

and the court’s order discussing the restitution amount, we infer

15
that, at the sentencing hearing, the court found Gillmore liable for

restitution with the amount of restitution to be determined later.

D. Untimely Motion for Restitution

¶ 32 Gillmore contends that the district court abused its discretion

when it accepted the prosecution’s untimely motion for restitution

after sentencing. We disagree.

1. Additional Facts

¶ 33 As discussed, the district court ordered the prosecution to

“submit restitution” within forty-nine days of sentencing. The

forty-ninth day fell on a Friday. The following Monday, the

prosecution filed a motion for restitution that specified the amount

of restitution it sought.

¶ 34 The prosecution simultaneously filed a motion requesting that

the court accept the motion for restitution as timely. The request

asserted that the prosecution had received updated documentation

from the victim the day before the forty-nine-day deadline, but on

the day of the deadline, the two prosecutors were unable to review

the documentation due to scheduling conflicts.

¶ 35 The district court granted the request, accepted the untimely

restitution motion, and ordered the parties to set a restitution

16
hearing. The hearing was scheduled for roughly a month later,

before section 18-1.3-603(1)(b)’s ninety-one-day deadline. By all

indications, defense counsel participated in the scheduling process,

and she attended the hearing without objection.

¶ 36 At the restitution hearing, the court found good cause to

extend the statutory deadline beyond ninety-one days to prepare a

written order. See id. The court issued its restitution order after

the ninety-one-day statutory deadline but before the extended

deadline.6

2. Gillmore Properly Raised
and Didn’t Waive This Issue

¶ 37 As an initial matter, we disagree with the People’s claim that

Gillmore’s contention isn’t cognizable under Rule 35(a) because

Gillmore doesn’t contest the court’s good cause finding or the

issuance of its restitution order beyond the statutory deadline.

Gillmore’s contention implicates the procedures the court employed

to determine the amount of restitution. While a challenge to the

6 To the extent Gillmore implies the district court’s acceptance of

the late filing caused the court to delay its final order, such an
argument is not developed, and we will not address it. See People v.
Perez, 2024 COA 94, ¶ 51.

17
entry of an untimely restitution order, in violation of the statutory

deadline, would certainly constitute an illegal manner claim,

divisions of this court have also held that an illegal manner claim

arose when the defendant argued “that the [district] court did not

comply with one or more of the statutory and procedural

considerations governing restitution hearings.” People v.

Bowerman, 258 P.3d 314, 317 (Colo. App. 2010). And while not

grounded on a statutory deadline, Gillmore argues that the court

did not give him the procedural protections of the schedule that it

had set for the case. See Tennyson, ¶ 29 (“Sentences imposed in an

illegal manner include, but are not limited to, those where the court

fails to adhere to statutory procedural requirements . . . or where

the manner of imposing the sentence results in the denial of

procedural due process.” (citation omitted)). Regardless, because

we conclude below that the district court did not abuse its

discretion, we need not decide which standard of reversal would

apply if it had erred. See Hagos v. People, 2012 CO 63, ¶¶ 9-14.

¶ 38 We are also unpersuaded by the People’s assertion that

Gillmore waived this issue by not objecting after any of the court’s

rulings. Waiver requires an intentional relinquishment of a known

18
right. People v. Garcia, 2024 CO 41M, ¶ 28. It is true that waiver

can be implied “when a party engages in conduct that manifests an

intent to relinquish a right or privilege or acts inconsistently with its

assertion.” Babcock v. People, 2025 CO 26, ¶ 29 (quoting Forgette v.

People, 2023 CO 4, ¶ 28). But Gillmore’s mere failure to object

while complying with the district court’s orders to schedule and

attend the restitution hearing — all done without Gillmore making

any specific scheduling requests — did not manifest his intent to

relinquish the right to have the court comply with the deadlines it

had imposed. Cf. id. at ¶ 30 (holding that defendant manifested

intent to relinquish right to statutory deadline by requesting

restitution hearing be set outside deadline). And as Gillmore points

out, the court granted the motion to accept the untimely restitution

motion only hours after the prosecution filed it.

3. The Court Accepted the Untimely
Motion by Exercising Its Inherent Authority

¶ 39 Gillmore contends that the district court violated Crim. P. 45

by accepting the prosecution’s untimely restitution motion without

first finding excusable neglect.

19
¶ 40 That rule states that, for any act that “is required or allowed to

be performed at or within a specified time,” the court in its

discretion may, upon a motion, “permit the act to be done after

expiration of the specified period if the failure to act on time was the

result of excusable neglect.” Crim. P. 45(b)(2). Here, the

forty-nine-day deadline stemmed from the district court’s order at

sentencing, not from a statute or rule. Indeed, the prosecution’s

motion fell within the ninety-one-day deadline set by section

18-1.3-603(2)(a). See Martinez Rubier, ¶ 46 (holding that a district

court may deviate from restitution timetable “so long as the court

ultimately enters its restitution order within the ninety-one-day

deadline set forth in section 18-1.3-603(1)(b)”). And while Gillmore

cites Rule 45(b)(2) for the proposition that the district court needed

to find excusable neglect before it accepted the untimely filing, he

does not cite any statute or rule as the basis for the underlying

forty-nine-day deadline.

¶ 41 To the contrary, the district court issued the scheduling order

under its own inherent authority. See People v. Silva-Jaquez, 2025

CO 11, ¶ 37 (“A trial court may issue scheduling orders pursuant to

its inherent case-management authority.”). Because the court set

20
the deadline under its own inherent authority and not by a time

specified by statute or procedural rule, no excusable neglect finding

was required. See People v. Owens, 2014 CO 58M, ¶ 16 (“[I]t is

undisputed that district courts have the inherent authority to

manage their dockets . . . as they deem necessary to avoid

delay-causing surprise at evidentiary hearings on post-conviction

claims . . . .”); see also People v. Jasper, 17 P.3d 807, 809 (Colo.

2001) (concluding that a party must establish good cause when it

misses a plea cutoff bargain deadline the court has established

under its inherent authority).

¶ 42 Consequently, the district court did not abuse its discretion by

allowing a single business-day extension to its deadline for the

prosecution to submit its restitution motion because (1) the

prosecution provided good cause for the delay; (2) Gillmore had

already received a proposed restitution amount at sentencing that

made him aware of the prosecution’s intent to file the motion; and

(3) Gillmore still had a month to prepare for the restitution hearing

after receiving the restitution motion. Therefore, we don’t perceive

that the court’s acceptance of the untimely motion was manifestly

arbitrary, unreasonable, or unfair. See Knapp, ¶ 68; see also

21
Brassill, ¶ 61 (“[T]he violation of a scheduling order does not deprive

the court of the authority to resolve restitution.”).

III. Disposition

¶ 43 The restitution order is affirmed.

JUDGE DUNN and JUDGE LIPINSKY concur.

22