Peo v. Cummings

23CA1084 Peo v Cummings 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1084
City and County of Denver District Court No. 17CR782
Honorable Ericka F.H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Andrews Cummings,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

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

Amy D. Trenary, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Joshua Andrews Cummings appeals the postconviction court’s

denial of his Crim. P. 35(a) motion requesting vacatur of the

sentencing court’s restitution order. He argues that the sentencing

court entered an illegal sentence or a sentence imposed in an illegal

manner by ordering restitution in the amount of $9,950 payable to

the Crime Victim Compensation Board (CVCB) despite the

prosecution’s failure to prove the amount and causation in

accordance with section 18-1.3-603(10), C.R.S. 2025. We disagree

and therefore affirm the order.

I. Background

¶2 To provide context for this case, we begin by discussing the

legal framework for CVCB payments under the restitution statute

before describing the relevant factual background.

A. Legal Framework

¶3 The Restitution Act requires a convicted offender to financially

compensate crime victims for the harm they suffered as a result of

the offender’s conduct. §§ 18-1.3-601 to -603, C.R.S. 2025. “The

purpose of restitution is to make the victim whole, and the

Restitution Act is to be ‘liberally construed’ to accomplish that

purpose.” People v. Stone, 2020 COA 24, ¶ 5 (citation omitted).

1
Pertinent to this case, a “victim” can include “[a]ny [CVCB] that has

paid a victim compensation claim” for compensable losses, such as

funeral expenses and mental health counseling.

§ 18-1.3-602(4)(a)(IV), C.R.S. 2025; § 24-4.1-109(1)(e), (g), C.R.S.

2025.

¶4 In restitution proceedings, “the prosecution bears the burden

of proving by a preponderance of the evidence not only the [amount

of the] victim’s losses, but also that the victim’s losses were

proximately caused by the [offender’s] criminal conduct.” People v.

Martinez-Chavez, 2020 COA 39, ¶¶ 14, 18. This burden requires

“[m]ore than speculation,” but not “the same quality of evidence

required in a trial on the merits.” People in Interest of A.V., 2018

COA 138M, ¶ 24.

¶5 However, a 2015 amendment to the Restitution Act provides

that “the amount of assistance provided and requested by the

[CVCB] is presumed to be a direct result of the [offender’s] criminal

conduct and must be considered by the court in determining the

amount of restitution ordered.” § 18-1.3-603(10)(a); see Ch. 60,

sec. 6, § 18-1.3-603, 2015 Colo. Sess. Laws 147. It also states the

“amount of assistance provided is established by either”

2
(I) [a] list of the amount of money paid to
each provider; or

(II) [i]f the identity or location of a provider
would pose a threat to the safety or
welfare of the victim, summary data
reflecting what total payments were made
for [five specified categories of expenses,
including funeral and counseling
expenses].

§ 18-1.3-603(10)(b).

¶6 Divisions of this court have interpreted the 2015 amendment

as creating a rebuttable presumption of proximate cause that is

triggered by the prosecution establishing the amount of assistance

provided through a list or summary data. See, e.g.,

Martinez-Chavez, ¶ 20 (Assuming that subsection (10)(a) applies, “to

be entitled to the presumption . . . , the prosecution must provide

either [a list or summary data].”); People v. Fregosi, 2024 COA 6,

¶¶ 44-45 (“To trigger the rebuttable presumption, . . . the

prosecution must establish the amount of assistance provided,” and

the “statute prescribes two ways” to do so.). A rebuttable

presumption shifts the burden of producing evidence to the

opposing party. People v. Henry, 2018 COA 48M, ¶ 17. If the

opposing party fails to produce sufficient evidence to rebut the

3
presumption, the presumed facts are established as a matter of law.

Id.

B. Factual Background

¶7 On January 31, 2017, near Union Station in downtown

Denver, Cummings approached a Regional Transportation District

(RTD) security guard, put a gun to the guard’s head, and pulled the

trigger. People v. Cummings, slip op. at ¶ 2 (Colo. App. No.

18CA0503, Mar. 24, 2022) (not published pursuant to C.A.R. 35(e)).

The RTD guard died in “less than a few minutes.” Id.

Subsequently, a jury convicted Cummings of first degree murder

after deliberation. Id. at ¶ 4.

¶8 At Cummings’s sentencing hearing, the prosecutor requested

“restitution of $11,570.” In response, defense counsel said, “I guess

we just need to see the restitution forms.”

¶9 After sentencing, the prosecutor filed a motion for restitution

in the amount of $9,950, explaining that the prosecution

“received . . . information from [the CVCB] requesting restitution in

the amount of $9,950, for damages directly related to, and a result

of, the action cause[d] by [Cummings].” The prosecutor also filed a

restitution request form, which was divided into three sections

4
based on the type of victim. The amount of requested restitution

was left blank in the first two sections, but at the bottom of the

form it stated:

Restitution Request Form

¶ 10 Defense counsel filed a request for more time to respond and a

written objection. In both, defense counsel explained that the

prosecution had reduced the restitution amount after defense

counsel discovered an error in the supporting documentation:

After review of the prosecution’s supporting
documentation for the requested restitution,
defense counsel noticed what appeared to be
an error in calculation. Defense counsel
alerted the prosecution . . . [and] the
prosecution, through an email, adjusted the
requested amount to $9,950.00.

In the written objection, defense counsel objected to “the granting of

any restitution in this matter.”

5
¶ 11 At the restitution hearing, defense counsel again objected to

“any restitution under the Colorado Constitution and the United

States Constitution, due process clauses and right to confront

witnesses,” noting that the defense had “received nothing but the

bare restitution sheet that has totals on it.” The prosecutor replied

that “victims’ compensation is specifically authorized,” that the

sentencing court “heard this trial,” and that he “believe[d] specific

restitution [to the CVCB] . . . was for funeral services and mental

health therapy for the wife of the victim.” Defense counsel had no

further objection.

¶ 12 The sentencing court ordered $9,950 in restitution, finding as

follows:

[B]ased upon a receipt of the motion for
restitution in this case, there is a request
specifically to [the CVCB] fund in the amount
of $9,950, included within the definition of
victim is money that has been paid pursuant
to the victim compensation claim based upon
or is encompassed in the term of victim in this
case.

The Court finds that based upon [the CVCB]
paying out expenses related to this case being
sustained by the victim in this case, it is
appropriate to grant restitution . . . in the
amount of $9,950.

6
¶ 13 After Cummings’s conviction was affirmed on direct appeal, he

retained new counsel and filed a Crim. P. 35(a) motion arguing,

among other things, that restitution payable to the CVCB was

imposed in an illegal manner. He argued that the “prosecution’s

lump-sum request” form failed to prove the amount and made it

“impossible . . . to rebut the presumption of causation.”

Specifically, he appeared to argue that the prosecutor must present

a list of the amounts paid to each provider “to the court” because

(1) section 18-1.3-603(2)(a) states “[t]he court shall base its

[restitution] order . . . upon information presented to the court by

the [prosecution]”; and (2) if there are no safety concerns, section

18-1.3-603(10)(b) requires the amount be “established” by a list of

the amounts the CVCB paid to each provider.

¶ 14 The prosecution responded that the Restitution Act created a

presumption of proximate cause since the defense received a

compliant list during discovery. In support, it attached (1) a

discovery receipt showing the defense received “BATES [PAGES]

1106-1109 (RESTITUTION DOCUMENTS)” before the restitution

hearing; and (2) a memorandum, paginated 1107, listing the

7
amounts that the CVCB paid to each provider. The CVCB

memorandum is pictured below:

CVCB Memorandum

¶ 15 In his reply, Cummings did not deny that his prior counsel

received this memorandum before the restitution hearing. He

argued only that the memorandum should have been provided to

the sentencing court. Critically, the defense clarified that

8
“Cummings has not challenged causation” and “takes issue only

with the manner in which the restitution was imposed.”

¶ 16 The postconviction court denied his Crim. P. 35(a) motion,

finding that the “record demonstrates that the [CVCB] paid . . . for

burial expenses and therapy” and “that the amount paid was a

result of . . . Cummings’s conduct.” The court further explained:

The Motion for Restitution and Request for
Restitution . . . do not itemize the amount of
restitution paid by the [CVCB]. However, it is
evident that the restitution information was
provided to the defense in discovery. And
although the discovery documents are not part
of the factual record, it is apparent that the
defense was on notice of the categories paid by
the [CVCB] and that the Court considered
these amounts and categories in awarding
restitution. At the hearing[,] the defense
stated the People had not established what the
restitution was paid for. In response, the
People stated the categories — funeral and
therapy — for which [the CVCB] paid
restitution. The defense did not object or
otherwise make any further record at all. In
response, the Court found that the request for
restitution to the [CVCB] was appropriate and
awarded restitution in the amount of $9,950.

II. Analysis

¶ 17 Cummings appeals the postconviction court’s denial of his

Crim. P. 35(a) motion, alleging once again that the sentencing court

9
imposed restitution in an illegal manner and, for the first time on

appeal, that his restitution order is an illegal sentence.

¶ 18 In support of both challenges, he argues that the court could

not impose restitution unless the prosecution proved the amount

and causation. However, he asserts that the prosecution proved

neither — since it failed to provide a list of the amount paid to each

provider “to the court” at the restitution hearing, there was no

statutory presumption under section 18-1.3-603(10)(a). Thus, he

continues, “[t]he prosecution presented insufficient evidence to

prove that . . . Cummings was liable for $9,950 in restitution

payable to the CVCB.”

¶ 19 We first address whether Cummings’s challenge is cognizable

as either an illegal sentence or an illegal manner claim. We next

analyze whether the sentencing court imposed restitution in an

illegal manner.

A. Illegal Sentence Claim

¶ 20 Cummings asserts that the restitution order constitutes an

illegal sentence requiring vacatur because the prosecution’s failure

to present the list described in section 18-1.3-603(10)(b) at the

hearing deprived the court of its “authori[ty] to impose restitution

10
payable to the CVCB.” Alternatively, he pursues an illegal manner

claim relying on the same facts. We disagree that his challenge is

cognizable as an illegal sentence claim.

¶ 21 We review the legality of a sentence de novo. Tennyson v.

People, 2025 CO 31, ¶ 23. Under Crim. P. 35(a), a defendant may

challenge a sentence as either an illegal sentence or as a sentence

imposed in an illegal manner. Illegal sentences include (1) a

sentence “not authorized by law because it fails to comply in full

with statutory requirements,” and (2) “[a] sentence imposed without

jurisdiction.” Tennyson, ¶¶ 25, 27. A sentence is imposed in an

illegal manner when “the [district] court ignores essential

procedural rights or statutory considerations in forming the

sentence.” Id. at ¶ 29 (citation omitted). Illegal manner claims

include 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.” Id.

Though the concepts appear overlapping, our supreme court has

cautioned that viewing illegal sentences as “encompassing

procedural infirmities” would “risk[] blurring the distinction

11
between [illegal sentences and] sentences that are voidable because

they have been imposed in an illegal manner.” Id. at ¶ 30.

¶ 22 In light of Tennyson, we are not persuaded that Cummings’s

procedural challenge to restitution based upon the prosecution’s

failure to present a list to the court is cognizable as an illegal

sentence claim. In Tennyson, our supreme court held that the

“court’s post-sentencing determination of the restitution

amount . . . was not part of [the defendant’s] sentence,” and it

concluded that a challenge to the timeliness of this determination is

“an illegal manner claim, not an illegal sentence claim.” Id. at ¶ 45.

But Cummings neither addresses the supreme court’s decision in

Tennyson nor provides any legal authority holding that

noncompliance with section 18-1.3-603(10)(b) strips the court of

authority to impose restitution. Accordingly, we conclude that his

challenge is cognizable only as an illegal manner claim.

B. Illegal Manner Claim

¶ 23 Alternatively, Cummings argues that the sentencing court

imposed restitution in an illegal manner by “ignor[ing] [his]

essential procedural rights and statutory considerations.” While

12
this claim is cognizable, we disagree that restitution was imposed in

an illegal manner.

1. Standard of Review

¶ 24 Unlike an illegal sentence claim, an illegal manner claim must

be brought within the designated statutory timeframe. Crim. P.

35(a)–(b). Cummings timely brought his illegal manner claim

because he filed his Crim. P. 35(a) motion 126 days after issuance

of the appellate mandate following his direct appeal. See Crim. P.

35(a)–(b); Cummings, No. 18CA0503, slip op. at ¶ 50.

¶ 25 The appropriate standard of review for an illegal manner claim

“necessarily will depend on which of a wide variety of restitution

issues district courts decide and we are asked to review.” People v.

Barbre, 2018 COA 123, ¶ 24. Cummings seeks de novo review of

“whether the prosecution presented sufficient evidence to support

the requested amount of restitution.” That does not fully articulate

the applicable standard of review for this case.

¶ 26 Whether section 18-1.3-603(10)(b) requires the prosecution to

present a list — specifically, to the court — is a question of

statutory interpretation that we review de novo. People v. Steen,

2014 CO 9, ¶ 9. So is the question of whether the “quantum of

13
evidence provided to the court” was sufficient to support the

restitution amount. Martinez v. People, 2024 CO 6M, ¶ 20.

However, we review the court’s findings of fact, including whether it

properly found causation in a restitution proceeding, for clear error.

See id. at ¶¶ 21, 32, 34. Under this standard, we must affirm the

court’s findings unless they are without support in the record. Id.

at ¶ 34.

2. Section 18-1.3-603 Requirements

¶ 27 For two reasons, we are not persuaded that the sentencing

court “ignore[d] procedural rights or statutory considerations,”

resulting in a sentence imposed in an illegal manner.

¶ 28 First, the record demonstrates that Cummings received a

compliant list before the restitution hearing. The memorandum

was compliant because it showed the amounts paid to two

providers: the CVCB paid $9,500 to Viegut Funeral Home and $450

to Larry Snap, a mental health counselor. See § 18-1.3-603(10)(b).

Both were compensable losses by statute. See § 24-4.1-109(1)(e),

(g). Further, the record shows Cummings received this

memorandum before the restitution hearing:

14
• Before the hearing, the defense twice noted that the

prosecution reduced its restitution request to $9,950 after

the defense identified a calculation error in the “supporting

documentation.” A calculation error could not be identified

with only a “lump-sum” total.

• The prosecution’s discovery receipt showed that the defense

received “BATES [PAGES] 1106-1109 (RESTITUTION

DOCUMENTS)” before the hearing. The memorandum

listing the provider payments was paginated 1107.

• At the same hearing, when the prosecution explained that

the amount consisted of costs paid by the CVCB for funeral

services and mental health counseling, the defense did not

object or express surprise.

Based on this record, we agree with the postconviction court’s

finding that “restitution information was provided to the defense in

discovery” before the restitution hearing.

¶ 29 Second, given that Cummings received a compliant list in the

memorandum, the only remaining issue is whether the court

ignored “procedural rights or statutory considerations” by entering

restitution without first receiving this memorandum.

15
¶ 30 However, prior to imposing restitution, the court received

information largely consistent with section 18-1.3-603(10)(b).

Before the hearing, the court was informed that the defense had

received and reviewed “supporting documentation for the requested

restitution.” At the hearing, the prosecutor informed the court that

the CVCB — an eligible victim under the restitution statute — paid

$9,950 to cover the funeral for the RTD guard and his widow’s

counseling. Although Cummings now argues that the prosecutor’s

statement was not evidence, he has never disputed the accuracy of

this information. He merely argues that the prosecutor was

required to present the information in the form of a written list.

¶ 31 Moreover, at the restitution hearing, the $9,950 amount went

unchallenged — the defense never suggested that this sum was

inflated or that the claimed funeral and mental health expenses

were unrelated to Cummings’s criminal conduct. Although the

court was not informed of the precise breakdown of the total — that

the CVCB paid $9,500 to Viegut Funeral Home and $450 to

counselor Larry Snap — the defense received the memorandum

before the hearing and thus had the opportunity to raise any

objections to these payments. But the defense raised none.

16
¶ 32 Under these circumstances, the court did not impose

restitution in an illegal manner. Because the prosecution provided

information largely consistent with section 18-1.3-603(10)(b) at the

hearing, the amount of assistance paid by the CVCB was presumed

to be a direct result of Cummings’s criminal conduct. Accordingly,

sufficient evidence supported the restitution award. See Henry,

¶ 17 (if the presumption is unrebutted, the presumed facts are

established as a matter of law).

3. Waiver of Causation

¶ 33 Finally, even if we were to assume that the prosecution

violated section 18-1.3-603(10)(b), Cummings waived part of his

sufficiency-of-evidence challenge. Specifically, he waived his

argument that the prosecution presented insufficient evidence to

establish causation.

¶ 34 Waiver can be demonstrated through explicit words or actions,

or it may be implied “as when a party engages in conduct that

manifests an intent to relinquish a right or privilege or acts

inconsistently with its assertion.” People v. Roberson, 2025 CO 30,

¶ 13 (citation omitted). For statutory rights, waiver “must be

voluntary, but need not be knowing and intelligent.” Id. (citation

17
omitted). When statutory rights are at issue, counsel’s actions are

relevant to our analysis, as “[c]ounsel may waive a defendant’s

statutory rights.” Id. (citation omitted). Waiver extinguishes error

and thus precludes appellate review. Id.

¶ 35 Cummings asserts a statutory right: the right to have the

prosecution provide a compliant list.1 In this appeal, he argues that

the statutory presumption under section 18-1.3-603(10)(a) hinges

on the prosecution providing the list to the court. He contends that

the list’s absence from the court record renders the evidence

insufficient to establish that the amount paid by the CVCB was

proximately caused by his criminal conduct.

¶ 36 However, the prosecution need not rely on the list and its

corresponding statutory presumption to establish causation; rather,

the prosecution can also prove causation by “other means.”

§ 18-1.3-603(2)(a); see also Fregosi, ¶¶ 47-48 (noting that causation

can be established through impact statement or other means);

Henry, ¶¶ 23-24 (holding that the prosecution was entitled to the

1 Cummings withdrew his argument concerning his due process

rights to notice and confrontation in his reply in support of his
postconviction motion. Consequently, this argument is also waived.

18
statutory presumption, but that the victim’s lost wages were also

established by the victim’s testimony about missing work); Barbre,

¶ 40 (“[U]nder Colorado law, an award of restitution may be based

solely on a victim impact statement.”).

¶ 37 In this case, Cummings’s counsel expressly waived the right to

challenge the sufficiency of evidence on causation by representing

to the court,

The district attorney’s contentions about
whether “the amounts paid to the victim by the
Board were proximately caused by the
Defendant’s actions” are inapposite.
Mr. Cummings has not challenged causation.
He takes issue only with the manner in which
the restitution was imposed . . . .

Cummings’s counsel treated “the manner” — imposing restitution

without a list in the record — as separate from causation, asserting

that he was not challenging causation. Because Cummings asserts

a statutory right, his counsel’s representations to the court in the

Crim. P. 35(a) proceedings sufficed to waive the issue of causation.

Consequently, even if a statutory violation occurred, Cummings

waived any right to challenge the sufficiency of evidence on

causation.

19
III. Disposition

¶ 38 The order is affirmed.

JUDGE GROVE and JUDGE SCHOCK concur.

20