Peo v. Huntley

22CA2136 Peo v Huntley 05-01-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2136
Douglas County District Court No. 14CR595
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas Andrew Huntley,

Defendant-Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE KUHN
Welling, J., concurs
Schutz, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 1, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Thomas Andrew Huntley, appeals the

postconviction court’s order denying his Crim. P. 35(a) motion to

vacate the restitution order entered against him. We affirm the

order and remand for correction of the mittimus.

I. Background

¶2 In 2013, Huntley drove drunk and crashed into another car,

injuring the couple inside and leaving one of them with severe brain

damage. Because Huntley was seventeen years old at the time of

the incident, the prosecution filed a petition in delinquency in

Douglas County Case No. 13JD386.1 The prosecution alleged that

Huntley committed acts that, if committed by an adult, would

constitute criminal offenses, including vehicular assault and driving

under the influence (DUI). Roughly nine months later, the case was

transferred to district court, and the prosecution charged Huntley

with additional counts as an adult.

¶3 The parties resolved the case through a plea arrangement.

Huntley pleaded guilty to one count each of vehicular assault and

1 We take judicial notice of the contents of court records in this

related juvenile delinquency case. See People v. Sa’ra, 117 P.3d 51,
56 (Colo. App. 2004).

1
DUI per se in exchange for the dismissal of all other charges along

with an unrelated juvenile delinquency case, Douglas County Case

No. 13JD282. As part of his guilty plea, Huntley executed a Crim.

P. 11 advisement, which included the following provision regarding

restitution: “I understand that the Court will determine the

restitution I must pay, if any. The District Attorney’s Office may

submit a request for restitution within [ninety] days of sentencing.

If I object to the restitution, a hearing shall be set by the Court.”

The parties also addressed restitution in a document entitled “Plea

Agreement of the Parties.” The section of that agreement labeled

“Sentence Agreement” provided, next to the line for restitution, that

it was “reserved in this case” and that “[Huntley] admits liability.”

¶4 On October 2, 2014, the court approved the plea agreement

after confirming that Huntley understood its terms. The district

court then proceeded to immediate sentencing. It imposed

concurrent sentences of six years of probation for the vehicular

assault with ninety days in jail and one year in jail for the DUI per

se.

¶5 As for restitution, the district court said that it would

2
reserve restitution for a period of [ninety-one]
days. That is, [the prosecution would] have
[ninety-one] days to submit a request for
restitution. If one is submitted, the defense
would have [fourteen] days to file an objection.
If an objection is filed, the Court will then
direct the matter be set for hearing. If no
objection is filed, the Court will simply issue
the order for restitution.

¶6 On December 19, seventy-seven days after Huntley’s

sentencing, the prosecutor submitted a request for $28,518.03 in

restitution. This figure consisted of $16,843 that the Crime Victim

Compensation Board had paid for the victims’ medical expenses

and $11,675.03 in other expenses that the family had incurred

related to the crash. Huntley didn’t object or otherwise respond to

the request within the fourteen-day deadline the district court had

set at sentencing. Accordingly, on January 28, 2015 (118 days

after sentencing), the court ordered Huntley to pay the requested

amounts. Huntley didn’t directly appeal his judgment of conviction

or the January 2015 order fixing the amount of restitution.

¶7 In April 2019, Huntley pleaded guilty to violating the terms of

his probation. Consequently, the district court revoked Huntley’s

probation and sentenced him to five years in the custody of the

Department of Corrections (DOC). A division of this court affirmed

3
the sentence but directed the district court to determine on remand

the amount of presentence confinement credit (PSCC) to which

Huntley was entitled. People v. Huntley, (Colo. App. No. 19CA1119,

July 29, 2021) (not published pursuant to C.A.R. 35(e)) (Huntley I).

¶8 The mandate in Huntley I issued on December 22, 2021, and

125 days later, Huntley filed a motion for postconviction relief

under Crim. P. 35(a), asserting that the restitution order the district

court entered in connection with his 2014 judgment of conviction

must be vacated because the court imposed the restitution

obligation in violation of section 18-1.3-603, C.R.S. 2024. The

postconviction court denied Huntley’s motion, reasoning that any

infirmities in the original restitution order were rectified in the

subsequent probation revocation proceeding when the district court

properly ordered him to pay restitution.

II. Analysis

¶9 On appeal, Huntley contends that the postconviction court

erred when it denied his motion challenging the original restitution

order. Specifically, he argues that the order must be vacated

because (1) the prosecutor didn’t move for restitution and the

district court “reserved” the issue of restitution in its entirety at the

4
2014 sentencing hearing; (2) the prosecutor failed to present

available restitution information before or at the hearing; and

(3) the district court fixed the amount of restitution after the

statutory ninety-one-day deadline had already expired.

¶ 10 We disagree with Huntley’s first argument and conclude that

the other two are properly construed as illegal manner claims. And

because he brought those claims roughly seven and a half years

after his 2014 judgment of conviction, we further conclude that

they are time barred.

A. Applicable Law and Standard of Review

¶ 11 Crim. P. 35(a) provides that a court may correct a sentence

“that was not authorized by law or that was imposed without

jurisdiction at any time and may correct a sentence imposed in an

illegal manner within the time provided [in the rule] for the

reduction of sentence.” A sentence is “not authorized by law” if any

of its components fail to comply with the sentencing statutes,

People v. Baker, 2019 CO 97M, ¶ 19, and it is “imposed without

jurisdiction” if it was “otherwise imposed in excess of the court’s

subject matter jurisdiction,” People v. Bowerman, 258 P.3d 314,

316 (Colo. App. 2010) (quoting People v. Wenzinger, 155 P.3d 415,

5
418 (Colo. App. 2006)). In contrast, a sentence is “imposed in an

illegal manner ‘when the trial court ignores essential procedural

rights or statutory considerations in forming the sentence.’” Id.

(quoting 15 Robert J. Dieter & Nancy J. Lichtenstein, Colorado

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

2004)).

¶ 12 A court may correct a sentence not authorized by law or

imposed without jurisdiction at any time. Crim. P. 35(a). But a

claim that the sentence was imposed in an illegal manner may only

be corrected within 126 days after, as relevant here, (1) the

imposition of the defendant’s sentence or (2) the issuance of the

appellate mandate. Crim. P. 35(a)-(b). Thus, an illegal manner

claim is time barred if not brought within this timeframe. See

People v. Collier, 151 P.3d 668, 673 (Colo. App. 2006) (noting that a

defendant’s illegal manner claim was time barred because it wasn’t

asserted within the then-governing 120-day deadline).

¶ 13 The legality of a sentence is a question of law that we review de

novo. People v. Bassford, 2014 COA 15, ¶ 20. Likewise, we review

de novo questions of statutory interpretation. People v. Weeks,

2021 CO 75, ¶ 24.

6
B. The Restitution Statute

¶ 14 Colorado’s restitution statute imposes set deadlines on the

district court and the prosecution to complete certain tasks.

§ 18-1.3-603. It provides that every judgment of conviction must

“include consideration of restitution,” meaning it must include

(1) an order fixing a specific amount of restitution; (2) an order 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) an order fixing restitution and requiring the defendant to pay

certain future costs; or (4) a specific finding that no victim of the

crime suffered a financial loss and thus no restitution is assessed.

§ 18-1.3-603(1)(a)-(d); Weeks, ¶ 29.

¶ 15 Accordingly, an order entered under section

18-1.3-603(1)(b) — reserving the question of how much restitution

is due — requires the judgment of conviction to assign liability for

restitution, even though the amount is determined later. See Sanoff

v. People, 187 P.3d 576, 578 (Colo. 2008). But a district court must

still determine the amount of restitution owed within ninety-one

days after the judgment of conviction enters unless, before the

deadline expires, the court finds good cause for extending the

7
deadline. Weeks, ¶¶ 4-5, 39. Absent an express and timely good

cause finding, a district court lacks authority to enter an order

fixing the amount of restitution once the statutory deadline has

expired. Id. at ¶ 45.

¶ 16 The statute also imposes obligations on the prosecution.

Specifically, section 18-1.3-603(2) requires the prosecutor to

(1) move for restitution before or during the sentencing hearing and

(2) present to the court the information in support of the motion

before the court enters the judgment of conviction, if the

information is then available. Weeks, ¶¶ 30-31. To satisfy the

latter obligation, the prosecutor must exercise due diligence to

obtain and timely present to the court the information about the

proposed restitution amount and the identities of the victims. See

id. at ¶¶ 6 n.3, 30-31; People v. Brassill, 2024 COA 19, ¶ 45. If the

information is not available at the time of the sentencing hearing,

the prosecutor may submit it within ninety-one days of the

judgment of conviction unless the district court expressly finds that

extenuating circumstances exist that support an extension of that

deadline. Id. at ¶ 31.

8
C. The District Court Didn’t Reserve the Issue
of Restitution at Sentencing

¶ 17 Huntley contends that the prosecutor failed to “actually move”

for restitution before or during the 2014 sentencing hearing. He

argues that the prosecutor only asked, and the district court

ordered, that the entire issue of restitution be reserved for up to

ninety-one days. And because the court failed to enter a timely

order requiring him to pay restitution, Huntley posits, the court

lacked authority when it later fixed the amount of that obligation.

We’re not persuaded.

¶ 18 Section 18-1.3-603(2) doesn’t allow the prosecution “to ask

that the issue of restitution (not just the amount of restitution)

‘remain open’ for any period of time after the judgment of conviction

enters.” Weeks, ¶ 30. Similarly, while the statute “allows the court

to shelve the determination of the amount of restitution after

entering a preliminary order requiring restitution,” it doesn’t permit

the court to address the issue of restitution “by entering an order

deferring that issue in its entirety.” Id. Put differently, a district

court must at least enter a preliminary order about whether the

defendant is liable for restitution. Sanoff, 187 P.3d at 578.

9
¶ 19 In arguing that the district court here failed to enter such an

order, Huntley argues that the prosecutor merely asked the court to

reserve the issue of restitution in its entirety. By doing so, he

contends, the prosecutor failed to timely move for restitution, which

would have allowed the court to enter an order requiring Huntley to

pay restitution but postponing a determination of the amount owed

for up to ninety-one days. See Weeks, ¶ 30 (noting that a court

may enter an order under section 18-1.3-603(1)(b) only after the

prosecution has made a motion for restitution). In support of this

argument, Huntley points out that the prosecutor asked the court

during the sentencing hearing “that restitution be reserved on both

this case and 13JD282.”

¶ 20 But the record shows that by the time of the hearing, Huntley

had already agreed that he was liable to pay restitution, leaving

only the amount of that obligation for the district court to

determine. As we note above, Huntley admitted liability for

restitution in his plea agreement. And the district court accepted

the plea agreement after finding that Huntley understood its terms

and that his plea was knowing, intelligent, and entered without

undue influence or coercion.

10
¶ 21 True, the prosecutor told the court that she was “asking that

restitution be reserved.” But in context, we don’t view that

statement as reserving the entire issue of restitution. To the

contrary, the next thing she said was that Huntley “is admitting

liability for that restitution.”

¶ 22 Moreover, the record also shows that Huntley used his

forthcoming restitution obligation to advocate for a probationary

sentence, which the district court eventually imposed. Specifically,

later in the hearing, his counsel argued that such a sentence was

appropriate in part because “there [was] a huge bill that [was] going

to be paid at the end of this case that [Huntley] owes to the victim

and his family, and the only way [that was] going to get paid back

[was] through [Huntley] working and paying them back.”

¶ 23 It’s also true that the district court later said that it was

“reserv[ing] restitution for a period of [ninety-one] days,” without

specifying that it was only reserving the amount of Huntley’s

restitution obligation. And the mittimus the court issued after

sentencing simply noted “restitution reserved.”

¶ 24 But the court also gave the prosecutor ninety-one days to

submit her restitution request. This is important for two reasons.

11
First, it would have made little sense for the court to require a

motion seeking an order for assignment of liability given that

Huntley had just submitted a plea agreement admitting liability, the

prosecutor had brought that admission to the court’s attention, and

his counsel had referred to the amount he owed the family.

Second, we note that the ninety-one-day deadline the court referred

to only appears in subsection (1)(b) of section 18-1.3-603, which

applies only when the court has assigned liability but defers

determination of the amount of restitution. And the court’s ruling

included no language suggesting that it was entering any of the

three other orders allowed under the statute. See Weeks, ¶ 7 n.4

(When making express findings of extenuating circumstances to

extend the prosecution’s deadline and express findings of good

cause to extend the court’s deadline, “talismanic incantations”

aren’t necessary, and “substance controls over form.”).

¶ 25 To be sure, the better practice would have been for the district

court to explicitly state that Huntley was liable for restitution and

that the court was only reserving the question of how much

restitution he must pay. But we also recognize that the court didn’t

have the benefit of Weeks, which drew clearer lines around the

12
procedures a district court must follow when entering a restitution

order under section 18-1.3-603(1)(b).

¶ 26 In any event, after considering the district court’s ruling in

light of the whole record, we conclude that the court accepted

Huntley’s admission of liability to pay restitution and deferred only

determination of the specific amount he owed for ninety-one days.

See Sanoff, 187 P.3d at 578. Huntley’s argument that his 2014

sentence is illegal because the district court reserved the issue of

restitution in its entirety therefore fails.

D. Huntley’s Remaining Challenges to the Restitution Order
Are Properly Construed as Illegal Manner Claims

¶ 27 Huntley also contends that the restitution order must be

vacated because (1) the prosecutor failed to submit the information

in support of her restitution request before or at sentencing, even

though that information was already available or could easily have

been obtained had the prosecutor exercised due diligence; and

(2) the district court determined the amount of restitution 118 days

after Huntley’s sentencing without extending the statutory deadline

for good cause in advance of its expiration. See Weeks, ¶¶ 4-5,

30-31, 39.

13
¶ 28 Huntley argued in the postconviction court — and does so on

appeal — that because these infirmities rendered his sentence

illegal, he was entitled to postconviction relief under Crim. P. 35(a),

and that his motion could be brought at any time. But in

determining the nature of postconviction relief sought, we look at

the substance of the claim made, not the way it’s designated in the

motion. See People v. Knoeppchen, 2019 COA 34, ¶¶ 7, 27

(considering the substance of the defendant’s postconviction

challenge to the restitution order to conclude that his challenge was

cognizable as an illegal manner claim), overruled on other grounds

by Weeks, ¶ 47 n.16. Accordingly, we must determine whether

Huntley’s challenges to the timeliness of the prosecution’s request

for a specific amount of restitution and the district court’s

determination of that amount constitute illegal sentence claims or

illegal manner claims.

¶ 29 In arguing that his challenges are illegal sentence claims that

may be raised at any time, Huntley relies on Weeks and contends

that “where either the prosecution or the court fails to abide by the

deadlines in the restitution statute, any subsequent restitution is

entered without authority and must be vacated.” Specifically, he

14
directs us to the supreme court’s statement that a district court

“lack[s] authority” to order restitution more than ninety-one days

after the judgment of conviction enters absent an express good

cause finding to extend the deadline. Weeks, ¶ 45.

¶ 30 The People agree with that proposition to the extent that the

court determined the amount of restitution outside the

ninety-one-day deadline without making a finding of good cause.

But they argue that these claims are only cognizable as illegal

manner claims. We agree and conclude that Huntley’s claims are

properly construed as illegal manner claims.

¶ 31 Huntley’s challenges don’t pertain to a component of his

sentence. While Crim. P. 32(b)(1) provides that a district court

“shall consider restitution” when imposing sentence, the Colorado

Supreme Court has observed that section 18-1.3-603(1)(b) “clearly

distinguishes an order assigning liability for restitution from a

determination of the amount of restitution for which the defendant

is liable.” Sanoff, 187 P.3d at 578. By requiring that a judgment of

conviction need only include a determination of whether the

defendant is liable for restitution, the Sanoff court stated, “the

General Assembly has made clear its intent that the amount of the

15
defendant’s liability no longer be a required component of a final

judgment of conviction.” Id. Accordingly, the court said, when a

district court orders a defendant liable to pay restitution, the

restitution component of the defendant’s sentence is satisfied and

the sentence, and therefore the judgment of conviction, becomes a

final, appealable order upon issuance of the mittimus. Id. at 579.

“Neither subsequent proceedings to determine, nor an order

assessing, a specific amount of restitution directly affects that

judgment.” Id. at 578. Instead, the order fixing the amount of

restitution is a separate final, appealable order distinct from the

defendant’s judgment of conviction. Id.

¶ 32 A division of this court applied Sanoff’s reasoning in

addressing a defendant’s claim that his postconviction Weeks-based

challenge was properly construed as an illegal sentence claim

because his sentence wasn’t authorized by law. See People v.

Tennyson, 2023 COA 2, ¶¶ 15-16 (cert. granted Sept. 11, 2023).

The defendant in that case, like Huntley here, argued that his

sentence was illegal because the district court had no authority to

fix the amount of restitution after the expiration of the

ninety-one-day deadline for making that determination. Id. at ¶ 16.

16
The division disagreed and held that where a defendant brings a

postconviction challenge regarding the procedures employed in

determining the amount of restitution, the claim is cognizable as an

illegal manner claim. Id. at ¶ 33. The court reasoned that

“[b]ecause the amount of restitution is not a component of a

defendant’s sentence, any procedural deficiency in determining the

amount cannot implicate the legality of the restitution component of

the defendant’s sentence.” Id.

¶ 33 We agree with the Tennyson division on this point, and the

distinction between liability for and the amount of restitution is

applicable here. Any proceedings after the 2014 sentencing were

distinct from, and didn’t affect, the sentence component of

Huntley’s judgment of conviction. See Sanoff, 187 P.3d at 578.

Considering that Huntley’s challenges relate to the proceedings for

determining the amount of his restitution obligation, they don’t

implicate the legality of a component of his 2014 sentence. See id.

at 578-79; Fransua v. People, 2019 CO 96, ¶ 12 (“Rule 35(a) claims

that a sentence is ‘not authorized by law’ are appropriate only

where a defendant is challenging the legality of some component of

a sentence.” (quoting Baker, ¶ 19)); see also Baker, ¶ 19 (concluding

17
that because PSCC is not part of a sentence, a challenge to the

amount of PSCC noted in the mittimus doesn’t constitute an illegal

sentence claim).

¶ 34 In arguing otherwise, Huntley directs us to cases holding that

when a restitution award includes amounts not authorized by law,

the defendant has an illegal sentence claim. See People v.

Suttmiller, 240 P.3d 504, 507 (Colo. App. 2010) (noting that a

defendant asserted a cognizable illegal sentence claim when the

defendant argued that the amount of restitution was improper

because it included a rental value of an item that the victim never

rented); Roberts v. People, 130 P.3d 1005, 1007 n.2 (Colo. 2006)

(noting that whether a district court may award prejudgment

interest on the amount of restitution implicates the legality of a

sentence because it’s an issue of whether the prejudgment interest

is authorized by statute); People v. Brooks, 250 P.3d 771, 772-73

(Colo. App. 2010) (concluding that the defendant’s sentence was

illegal because the restitution order included amounts from an

unrelated juvenile delinquency case).

¶ 35 But unlike the defendants in Suttmiller, Roberts, and Brooks,

Huntley doesn’t argue that the restitution order is improper

18
because it includes amounts that are not authorized by law.

Rather, he asserts that he doesn’t owe any amount of restitution

because the prosecution and the district court failed to comply with

their respective statutory deadlines when calculating the amount.

In essence, then, Huntley challenges the procedure that preceded

the district court’s determination of the amount he must pay to the

victims. A challenge to the procedure used to reach a restitution

amount is an illegal manner claim, not an illegal sentence claim.2

See Bowerman, 258 P.3d at 317 (the claim that the prosecution

failed to prove that the defendant proximately caused certain losses

was an illegal manner claim when the defendant argued “that the

2 We recognize that the supreme court has noted, as Huntley points

out, that illegal sentence claims can encompass a wide range of
different factual circumstances, including when “the restitution
imposed was either not permitted or was in the wrong amount.”
Hunsaker v. People, 2021 CO 83, ¶ 19. But Hunsaker doesn’t help
Huntley for two reasons. First, the supreme court’s fleeting
reference to the restitution statute is dicta because that case
involved a different issue (i.e., the scope of the rule providing that
correction of an illegal sentence renews a defendant’s deadline for
pursuing a subsequent collateral attack that is related to the
illegality). See id. at ¶¶ 8-12; see also Main Elec., Ltd. v. Printz
Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999) (“Dictum is not the
law of the case and is not controlling precedent.”). Second, in
making the quoted statement, Hunsaker cited People v. Brooks, 250
P.3d 771 (Colo. App. 2010), which is distinguishable here for the
reasons stated above.

19
trial court did not comply with one or more of the statutory and

procedural considerations governing restitution hearings”).

¶ 36 In sum, we conclude that Huntley’s challenges to the

timeliness of the prosecution’s request for a specific amount of

restitution and the district court’s determination of that amount are

cognizable as illegal manner claims, not as illegal sentence claims.

E. Huntley’s Illegal Manner Claims Are Time Barred

¶ 37 Having determined that Huntley’s challenges to the timing of

the prosecutor’s submission and the district court’s decision are

properly construed as illegal manner claims, we next consider

whether he timely asserted those claims. Huntley contends that his

claims are not time barred because he filed his motion for

postconviction relief 125 days after the mandate issued in Huntley I.

In the alternative, Huntley argues that even if the 126-day deadline

for filing of his illegal manner restitution claims didn’t start with the

issuance of the mandate, the district court’s determination of PSCC

on remand from Huntley I “corrected a separate illegality,” renewing

his deadline for bringing the claims. We’re not persuaded by either

argument.

20
¶ 38 For starters, we disagree with Huntley’s argument that his

126-day deadline started to run when the mandate in Huntley I

issued because “any appellate mandate affirming the conviction or

sentence revives” that deadline. In that case, he directly appealed,

and a division of this court affirmed, his five-year DOC sentence

after the district court revoked his probation. Huntley I, No.

19CA1119, slip op. at ¶ 1. However, Huntley’s motion for

postconviction relief doesn’t challenge that separate sentence

resulting from his revocation; rather, his only claim is that the

district court erred when it entered the restitution order in

connection with his 2014 judgment of conviction.

¶ 39 The amount of Huntley’s restitution obligation became a final,

appealable order in January 2015 after the district court

determined the amount he owed. In the absence of a direct appeal,

Huntley’s deadline for filing a collateral challenge to the manner in

which restitution was imposed started to run after the district court

entered the restitution order. See Crim. P. 35(b)(1); People v. Dist.

Ct., 638 P.2d 65, 67 (Colo. 1981) (noting that a motion under Rule

35(b) must be filed within the deadline “after the sentence is

imposed unless an appeal has been filed”) (emphasis added); People

21
v. Lyons, 618 P.2d 673, 675 (Colo. App. 1980) (“For purposes of

[Rule 35(b)], a conviction is final 12[6] days after the imposition of

[a] sentence when that conviction is not appealed, and 12[6] days

after the conclusion of the appellate process if the conviction or

sentence is directly appealed.”). Huntley’s motion challenging the

restitution order as being entered in an illegal manner, filed seven

and a half years after the order entered, is therefore untimely.

¶ 40 We’re not persuaded otherwise by Huntley’s alternative

argument that the 126-day deadline was renewed when the district

court determined on remand the amount of PSCC to which he was

entitled. Relying on the rule that a defendant may pursue an

otherwise time-barred collateral attack on the conviction when a

district court corrects an illegal sentence, see Hunsaker v. People,

2021 CO 83, ¶ 3, Huntley argues that the district court here

removed an illegality in his sentence when it calculated the correct

amount of his PSCC. We disagree for two reasons.

¶ 41 First, as Huntley concedes, a challenge to the amount of PSCC

is only cognizable as an illegal manner claim because PSCC is not a

component of a defendant’s sentence. See Baker, ¶ 19.

Accordingly, the district court’s correction of Huntley’s PSCC didn’t

22
constitute removal of an illegality in his sentence renewing his

126-day deadline for asserting the illegal manner claims. See

Hunsaker, ¶ 20 (“The correction of an illegal sentence pursuant to

Crim. P. 35(a) restarts the clock for purposes of [Crim. P.] 35(b).”).

Second, even if we were to assume otherwise, Huntley’s argument

reads Hunsaker too broadly. There, the supreme court said that a

“defendant who successfully corrects an illegal sentence may

thereafter collaterally attack their conviction, but they may only

raise arguments addressing how the illegality in the sentence

potentially affected the original conviction.” Id. at ¶ 26. Huntley

doesn’t explain, and we don’t see, how the corrected PSCC relates to

his challenge to the restitution order from roughly ten years ago.

¶ 42 For the foregoing reasons, we conclude that Huntley’s

challenges to the manner in which the district court ordered him to

pay restitution are time barred. Accordingly, we affirm the order

denying his motion for postconviction relief, though on different

grounds than the postconviction court. See People v. Cooper, 2023

COA 113, ¶ 7 (“We may affirm the postconviction court’s ruling on

any ground supported by the record, whether or not the

postconviction court relied on or considered that ground.”).

23
III. Correction of the Mittimus

¶ 43 The mittimus the district court issued after determining the

amount of Huntley’s PSCC, dated March 3, 2022, states that he

was sentenced on December 10, 2021. However, as the parties

point out, that date is incorrect because the court resentenced

Huntley on April 29, 2019. Moreover, even though the district court

ordered restitution at the 2014 sentencing and later determined the

amount owed, it didn’t include the amount of restitution on the

mittimus. The amended mittimus still reflects “restitution

reserved.” Accordingly, we remand the case to the district court to

amend the mittimus to reflect the correct date of Huntley’s

resentencing and the amount of his restitution obligation. See

Weeks, ¶ 9 (stating that the mittimus should reflect that restitution

has been ordered and the amount due); Crim. P. 36 (“Clerical

mistakes in judgments, orders, or other parts of the

record . . . arising from oversight or omission may be corrected by

the court at any time . . . .”).

IV. Disposition

¶ 44 The order is affirmed, and the case is remanded for correction

of the mittimus.

24
JUDGE WELLING concurs.

JUDGE SCHUTZ dissents.

25
JUDGE SCHUTZ, dissenting.

¶ 45 The sentencing court was required to make an express finding

at sentencing that defendant, Thomas Andrew Huntley, was

obligated to pay restitution with the amount to be determined later,

or an alternative order authorized by section 18-1.3-603(1)(a) to (d),

C.R.S. 2024. Because I conclude that the court failed to do so, the

court’s sentence was illegal and it had no authority to order Huntley

to pay restitution 118 days after the sentence was originally

imposed. Therefore, I respectfully dissent.

I. The Controlling Law

¶ 46 The district court was obligated to enter, at the time of

sentencing, an order meeting one of the four conditions of section

18-1.3-603(1)(a) to (d):

(1) Every order of conviction of a felony . . .
shall include consideration of restitution.
Each such order shall include one or more of the
following:

(a) An order of a specific amount of restitution
be paid by the defendant;

(b) An 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

26
extending the time period by which the
restitution amount shall be determined;

(c) An order, in addition to or in place of a
specific amount of restitution, that the
defendant pay restitution covering the actual
costs of specific future treatment of any victim
of the crime; or

(d) Contain a specific finding that no victim of
the crime suffered a pecuniary loss and
therefore no order for the payment of
restitution is being entered.

(Emphasis added.)

¶ 47 The deadlines imposed on the court under subsection (1)(b)

may not be extended by an untimely request for more time, or by an

untimely finding of good cause to extend the deadlines. People v.

Weeks, 2021 CO 75, ¶ 7 (“[N]either a belated request for more time

to determine the proposed amount of restitution nor an order

granting such a request may act as a defibrillator to resuscitate an

expired deadline.”). “Rather, each deadline requires an express

finding — one relating to extenuating circumstances affecting the

prosecution’s ability to determine the proposed amount of

restitution and the other relating to good cause for extending the

court’s deadline to determine the amount of restitution the

defendant must pay.” Id.

27
[W]hen the court enters a preliminary
restitution order pursuant to subsection (1)(b)
at a sentencing hearing, the mittimus should
reflect that restitution has been ordered but
that the amount will be determined later
(either within ninety-one days or within
whatever expanded timeframe the court has
established based on a finding of good cause).

Id. at ¶ 9. If a sentencing court fails to comply with section

18-1.3-603(1)(b), the restitution order must be vacated. Id. at ¶ 47.

¶ 48 Adherence to this interpretation of section 18-1.3-603 “has the

potential to lead to an undesirable result . . . [because] a defendant

could avoid paying restitution solely because the court failed to

comply with its deadline under subsection (1)(b).” Id. at ¶ 41. But,

as the supreme court observed in Weeks, a desire to avoid an

undesirable result does not justify ignoring the controlling law.

We infer from the restitution statute that the
legislature expects litigants and judges to be
prepared to address the issue of restitution at
sentencing hearings. At such a hearing, a
judge must enter one or more of four types of
restitution orders. Reserving the issue of
restitution in its entirety until a later date isn’t
one of them.

Imperfect as our restitution statute may be,
trial courts have to find a way to adhere to it.
Because the trial court in this case violated the
ninety-one-day deadline in subsection (1)(b) to

28
determine the amount of restitution, the
division correctly vacated the restitution order.

Id. at ¶¶ 46-47 (emphasis added).

¶ 49 With these controlling principles in mind, I turn to the facts

that lead me to a different result than that reached by my

colleagues.

II. The Controlling Facts

¶ 50 As the majority opinion notes, Huntley entered into a plea

agreement. Supra, ¶ 3. The plea expressed the parties’ agreement

that “restitution is reserved in this case . . . . [Huntley] admits

liability.” The accompanying advisement signed by Huntley and his

counsel provided, “I understand that the Court will determine the

restitution I must pay, if any. The District Attorney’s Office may

submit a request for restitution within 90 days of sentencing. If I

object to the restitution, a hearing shall be set by the Court.”

¶ 51 When presenting the fully executed plea agreement to the

court, the prosecutor represented that “[w]e are asking that

restitution be reserved on both this case[, 14CR595,] and 13JD282.

[Huntley] is admitting liability for that restitution.” After hearing

from the parties, Huntley’s family members, and the victims and

29
their family members, the court proceeded to immediately sentence

Huntley.

¶ 52 At the sentencing hearing, the prosecution did not request

that the court enter an order finding that Huntley was obligated to

pay restitution and did not present any evidence concerning the

amount of restitution that it was requesting. Nor did the

prosecution demonstrate good cause for why it was not prepared to

address restitution, which was based on losses incurred by the

victims prior to the sentencing hearing. Instead, the prosecutor

simply asked, “Is the court reserving restitution?”

¶ 53 The court responded,

I’ll reserve restitution for a period of 91 days.
That is, you’ll have 91 days to submit a
request for restitution. If one is submitted, the
defense would have 14 days to file an
objection. If an objection is filed, the Court
will then direct the matter be set for hearing.
If no objection is filed, the Court will simply
issue the order for restitution.

Consistent with this verbal order, the court entered a written

mittimus that stated, “Restitution Reserved.”

¶ 54 Predictably, given the substance of the sentencing court’s

order, the prosecution did not submit its request for restitution

30
until seventy-seven days after sentencing, and the court failed to

determine the amount of restitution that was owing until 118 days

after the sentence was imposed.

III. Analysis

¶ 55 At the time of sentencing, the sentencing court failed to fulfill

its obligation under section 18-1.3-603(1)(b). It did not enter an

order that Huntley was obligated to pay restitution. And it made no

finding that there was good cause to delay determining the amount

of restitution owed. Instead, the court simply deferred the issue of

restitution in its entirety for a period of ninety-one days. And the

court did not resolve the amount of restitution within the ninety-

one-day period. As a consequence, the court did not have the

authority to award the restitution that it ultimately imposed on

Huntley. See Weeks, ¶ 45.

¶ 56 Despite these authorities, the majority excuses or looks past

the sentencing court’s omissions on the grounds that Huntley

admitted liability for purposes of restitution under the plea

agreement. I reject this conclusion on multiple grounds. First, a

defendant’s admission of liability for purpose of restitution is not a

finding that restitution is owed or an admission that the defendant

31
is obligated to pay restitution. And, critically, it is no substitute for

a court order stating that the defendant is obligated to pay

restitution. Moreover, the entry of such an order is neither a

defendant’s responsibility nor their prerogative. The obligation to

enter such an order, along with the corresponding obligation to

ensure that restitution is resolved within ninety-one days (absent a

timely good cause finding to extend that period), rests solely on the

sentencing court’s shoulders. The sentencing court here did

neither.

¶ 57 Moreover, the plea advisement signed by Huntley and his

counsel indicated that if the prosecution submitted a request for

restitution, he would have the opportunity to object and the court

would then set the restitution issue for a hearing. The advisement

also provided that the sentencing court would then “determine the

restitution [Huntley] must pay, if any.” This advisement indicates

that the question of what restitution, if any, Huntley was obligated

to pay remained open at the time of sentencing.

¶ 58 The majority opinion attempts to excuse the sentencing court’s

failure to meet its obligations under section 18-1.3-603(1)(b) based

on the fact that this sentence was entered in 2014, seven years

32
before the supreme court issued the Weeks decision. Supra, ¶ 25.

But Weeks did not create new law. Rather, the principles

articulated in Weeks are dictated by the terms of section

18-1.3-603(1)(a) to (d), which did not materially change between

2014 and 2021. In other words, Weeks does not impose obligations

on prosecutors and trial courts that did not exist in 2014. To the

contrary, Weeks simply reminds sentencing courts and prosecutors

of the duties that the General Assembly imposed upon them when

entering a criminal sentence that involves a claim for restitution.

¶ 59 Nor can the sentencing court’s omissions be excused based

upon this court’s subsequent conclusion that an explicit order of

restitution was either not required or can be implied from the

surrounding circumstances. Weeks, ¶ 7. Rather, the obligation

imposed by section 18-1.3-603(1)(b) requires the sentencing court

to make a timely “express finding.” Id.

¶ 60 Because the sentencing court failed to enter an order

complying with section 18-1.3-603(1)(a) to (d) at the time sentence

was imposed, the sentence was illegal, and it may be corrected at

any time. Crim. P. 35(a) (an illegal sentence may be corrected at

any time); People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010)

33
(“Section 18-1.3-603 . . . mandates that, after every felony

conviction, trial courts must answer the question whether the

defendant should pay the victim restitution. The failure to make

this necessary finding results in an illegal sentence.”); see also

People v. Tennyson, 2023 COA 2, ¶ 31 (“Divisions of this court have

concluded that a district court imposes an illegal sentence if it fails

to consider restitution when imposing sentence.”) (cert. granted

Sept. 11, 2023).

¶ 61 The Colorado Supreme Court granted certiorari in Tennyson to

review the following issue: “Whether a postconviction challenge to

the timeliness of a restitution order is cognizable as an illegal

sentence claim under Crim. P. 35(a).” Tennyson v. People, No.

23SC168, 2023 WL 5944725 (Colo. Sept. 11, 2023) (unpublished

order). The decision in that case will likely have a significant

impact on the resolution of this case. If the supreme court

concludes that the failure to impose a section 18-1.3-603(1)(b) order

is not actionable as an illegal sentence claim under Crim. P. 35(a),

then Huntley’s appeal was properly dismissed as untimely, as the

majority opinion concludes. In such case, the concerns that

underlie this dissent will be obsolete. On the other hand, if the

34
court determines that the failure to enter a section 18-1.3-603(1)(b)

compliant order is actionable as an illegal sentence claim, then the

supreme court is likely to provide guidance on what is the

appropriate remedy for such a violation.

¶ 62 Given these dynamics, judicial restraint leads me to refrain

from opining on what the appropriate remedy is for a sentencing

court’s failure to enter an order at sentencing that a defendant is

obligated to pay restitution, or an alternative order authorized by

section 18-1.3-603(1)(a) to (d).

IV. Conclusion

¶ 63 For the stated reasons, I respectfully dissent.

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