Peo v. Rodriguez

23CA0250 Peo v Rodriguez 08-14-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0250
Arapahoe County District Court No. 21CR1325
Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Rodriguez,

Defendant-Appellant.

ORDER VACATED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Gomez and Lum, JJ., concur

Prior Opinion Announced January 23, 2025, Vacated in 25SC122

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 14, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 This case is before us again after the Colorado Supreme Court

vacated our opinion in People v. Rodriguez, (Colo. App. No.

23CA0250, Jan. 23, 2025) (not published pursuant to C.A.R. 35(e))

(Rodriguez I), and remanded with directions for us to reconsider

Rodriguez I in light of five later announced cases: Johnson v. People,

2025 CO 29; People v. Roberson, 2025 CO 30; Babcock v. People,

2025 CO 26; Tennyson v. People, 2025 CO 31; and Snow v. People,

2025 CO 32. People v. Rodriguez, (Colo. No. 25SC122, June 30,

2025) (unpublished order). In Rodriguez I, we concluded that the

district court ordered defendant, Joshua Rodriguez, to pay

restitution without authority because it issued its order 315 days

after sentencing without finding good cause to extend the statutory

deadline. See § 18-1.3-603(1)(b), C.R.S. 2021.1 Concluding that

these cases support our original disposition, we vacate the

1 At the time of the offense in 2021, district courts had ninety-one

days following the order of conviction to determine a specific
amount of restitution. § 18-1.3-603(1)(b), C.R.S. 2021. In 2025,
the General Assembly amended the deadline such that district
courts must determine a specific amount of restitution within sixty-
three days following the later of (1) the prosecution’s presentation of
restitution information or (2) the order of conviction. Ch. 307, sec.
1, § 18-1.3-603(1)(b), 2025 Colo. Sess. Laws 1606. All citations to
section 18-1.3-603 in this opinion are to the 2021 statute.

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restitution order and remand for the district court to correct the

mittimus to reflect that Rodriguez owes no restitution.

I. Background

¶2 Rodriguez was charged with sixteen counts in connection with

a police pursuit of a stolen car in Littleton, Colorado. In September

2021, he pleaded guilty to one count of second degree assault with

a deadly weapon. § 18-3-203(1)(b), C.R.S. 2024. The plea

agreement said restitution was “reserved.” In November 2021, at

the State’s request, the court entered an order obligating Rodriguez

to pay restitution, “the specific amount of which shall be

determined within 91 days following the order of conviction.” On

February 3, 2022, the State requested $25,531.76 in restitution.

¶3 At a February 18, 2022, sentencing hearing, the court entered

a judgment of conviction and said that “[r]estitution is hereby

ordered.” Defense counsel objected to the requested amount, and

the court set a hearing for March 29, 2022. The court did not order

restitution at the hearing but noted that it would issue “an order

relatively soon” and that it would “be a relatively quick order.”

¶4 Three months later, the court had not yet ordered restitution.

So, on June 30, 2022, Rodriguez requested a ruling. The court did

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not respond. On November 16, 2022, Rodriguez again requested a

ruling, this time arguing that the court could not impose restitution

because the ninety-one-day deadline had lapsed. See § 18-1.3-

603(1)(b). On December 30, 2022, more than ten months (315

days) after sentencing, the district court issued an order imposing

$8,314.80 in restitution. The order did not address Rodriguez’s

statutory objection to restitution or the reason for the delay.

¶5 On appeal in Rodriguez I, Rodriguez argued that the district

court lacked authority to order restitution because it did so more

than ninety-one days after the judgment of conviction without

finding good cause to extend the deadline. No. 23CA0250, slip op.

at ¶ 8. We agreed that the court lacked authority to impose

restitution, so we did not reach Rodriguez’s alternative contention

that the court erred by imposing restitution for property damage

related to a dismissed charge. Id. at ¶ 24; see § 18-1.3-603(11). We

vacated the restitution order and remanded to the district court to

amend the mittimus to reflect that Rodriguez owed no restitution.

¶6 The State filed a petition for certiorari in April 2025, and our

supreme court announced several restitution cases while the

petition was pending. On remand, we reconsider Rodriguez I based

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on those cases. We first consider the State’s contention that

Rodriguez waived his right to assert subsection (1)(b)’s deadline.

We also consider its argument that Rodriguez raised an illegal

manner claim, which it asks us to review for harmless error.

Because we conclude that the court lacked authority to impose

restitution, we do not reach Rodriguez’s second contention of error

from the original appeal concerning the amount of restitution.

II. Analysis

A. Waiver

¶7 The State argues that Babcock, Johnson, and Roberson

support a conclusion that Rodriguez waived his challenge to the

restitution order’s timeliness because he did not insist on a final

order within the deadline, and he did not raise the deadline “until

almost eight months after the restitution hearing.” Rodriguez

contends that these cases do not support waiver because the State

argued on appeal that he failed to preserve his challenge, and the

cases addressing waiver “involved situations where defense counsel

did something to waive the statutory deadline.” Because the State

did not argue waiver in the original appeal, we do not address the

merits of its argument here.

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1. Standard of Review and Applicable Law

¶8 “We review de novo whether a claim is waived.” Babcock, ¶ 28.

The “waiver of a statutory right ‘must be voluntary, but need not be

knowing and intelligent.’” Id. at ¶ 29 (citation omitted). Waiver may

be explicit, through a party’s “express[] abandon[ment of] an

existing right or privilege,” or implicit, “when a party engages in

conduct that manifests an intent to relinquish a right or privilege or

acts inconsistently with its assertion.” Id. (citation omitted).

¶9 By statute, virtually all judgments of conviction must address

restitution. See § 18-1.3-603(1)(a)-(d). Of the four enumerated

types of restitution orders, we consider the second, “[a]n order that

the defendant is obligated to pay restitution, but that the specific

amount of restitution shall be determined within the ninety-one

days immediately following the order of conviction, unless good

cause is shown for extending the time period by which the

restitution amount shall be determined.” § 18-1.3-603(1)(b). Our

supreme court has explicitly held that district courts lack authority

to order restitution “after the ninety-one-day deadline in [section

18-1.3-603(1)(b)] expire[s]” unless “the court expressly finds good

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cause” to extend the deadline “before the deadline expires.” People

v. Weeks, 2021 CO 75, ¶¶ 5, 40, 45 (emphases added).

¶ 10 In three of the five companion cases, our supreme court

considered whether subsection (1)(b)’s deadline is jurisdictional,

such that it cannot be waived, or directory, such that it can. E.g.,

Babcock, ¶¶ 17, 27. The court held that subsection (1)(b) is not

jurisdictional, so “its provisions can be waived.” Id. at ¶ 27. In the

first case, affirming a decision from a division of this court, the

court held that a defendant waived his right to assert subsection

(1)(b)’s deadline. Id. at ¶¶ 2, 31. Specifically, Babcock waived the

deadline by objecting to the prosecution’s proposed restitution

amount and requesting a hearing date more than ninety-one days

after the judgment of conviction. Id. at ¶¶ 3, 30. Rejecting

Babcock’s argument that Weeks controlled, the court noted that

“[w]aiver was not before [it] in Weeks; neither party raised the issue,

and [the court] didn’t address it.” Babcock, ¶ 10.

¶ 11 Next, Roberson, ¶ 2, considered whether “accept[ing] . . . a

hearing date outside the . . . deadline” amounted to waiver. There,

defense counsel requested additional time to review the proposed

restitution amount, agreed to a hearing after the statutory deadline,

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and requested multiple continuances of the hearing. Id. at ¶¶ 7-8.

On the second day of the hearing, well over a year after sentencing,

Roberson objected to the court’s authority to impose restitution

because the deadline had passed. Id. at ¶ 8. On appeal, the State

argued that Roberson waived the deadline, a division of this court

disagreed, and the supreme court reversed. Id. at ¶¶ 9, 17.

¶ 12 As in Babcock, the court in Roberson distinguished Weeks,

noting that the State did not argue waiver in Weeks, “and Weeks, in

fact, asserted his statutory rights before the . . . deadline had

lapsed.” Roberson, ¶ 15 (explaining that, while Weeks first argued

that the court lacked authority to order restitution “at a defense-

requested hearing ten months after sentencing,” he made an earlier

objection, well before the deadline, arguing that the issue of

restitution could not remain open indefinitely (citing Weeks, ¶¶ 12-

14)). The court concluded that Roberson’s “failure to object to a

hearing outside the statutory deadline and subsequent repeated

requests for continuances — all without any mention of the . . .

deadline despite numerous opportunities to do so” — evidenced

waiver. Id. at ¶ 17.

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¶ 13 Finally, in Johnson, ¶ 31, the supreme court concluded that

“Johnson waived his claim that the court lost authority to impose

restitution.” It reasoned that Johnson did not raise the deadline

when the district court originally gave him sixty days after the

ninety-one-day deadline to object to restitution, nor did he object

when, on the ninety-first day, the district court ordered restitution

and gave Johnson thirty days to object to the amount and request a

hearing. Id. at ¶¶ 8-9, 31. Additionally, Johnson requested a

hearing after the deadline, requested multiple continuances, and

then argued at the hearing that the district court had good cause to

extend the deadline. Id. at ¶¶ 10, 31.

¶ 14 A split division of this court had held that the district court

made a valid good cause finding to extend the deadline, but the

majority did not consider waiver. Id. at ¶ 15. However, the

concurring judge had written that Johnson “waive[d] . . . any

challenge to restitution on the basis that the prosecution waited

ninety-one days to file its motion.”2 People v. Johnson, 2023 COA

2 Johnson also raised a challenge under section 18-1.3-603(2)(a),

which involves the prosecution’s deadline and is not applicable
here. Johnson v. People, 2025 CO 29, ¶¶ 14, 19.

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43M, ¶ 37 (Welling, J., specially concurring), aff’d, 2025 CO 29. In

its petition for certiorari, the State had argued that Johnson waived

the statutory deadlines.

2. Application

¶ 15 Here, unlike the cases discussed above, Rodriguez did not

request continuances, nor did he request — or accept — a hearing

after the deadline. The restitution hearing occurred two months

before the deadline’s expiration, and the district court emphasized

that it would issue an order shortly thereafter. Thus, the State

argues that Rodriguez waived the statutory deadline by waiting

until his second request for a ruling to argue that the court lacked

authority to impose restitution because the deadline had passed.

However, unlike Johnson, Babcock, and Roberson, the State did not

make a waiver argument on appeal or in its petition for certiorari.

¶ 16 Instead, it argued that Rodriguez did not preserve his

argument about the court’s deadline because his objection was

untimely. The State did not argue that Rodriguez expressly waived

this argument, nor did it argue that he “engage[d] in conduct that

manifest[ed] an intent to relinquish a right or privilege or act[ed]

inconsistently with its assertion.” Babcock, ¶ 29 (quoting Forgette

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v. People, 2023 CO 4, ¶ 28). And the State could have argued

waiver before the supreme court announced its recent decisions; in

June 2023 (more than a year before the State filed its answer brief

in Rodriguez I), a division of this court concluded that subsection

(1)(b)’s deadline was not jurisdictional and could be waived. People

v. Babcock, 2023 COA 49, ¶ 11, aff’d, 2025 CO 26.

¶ 17 Moreover, in its petition for certiorari, the State noted that all

five of the recently decided (then pending) supreme court cases

could affect the supreme court’s review of Rodriguez I. Yet the

State’s petition did not argue that Rodriguez waived his challenge to

the timeliness of the restitution order, nor did it request review of

our conclusion that Rodriguez preserved this issue. The issues

presented for review included: (1) “[w]hether a preliminary order for

a specific amount of restitution, subject to a hearing on the

defendant’s objection, satisfied section 18-1.3-603(1)(a) . . . , and

whether a later reduction of that amount . . . was authorized by

section 18-1.3-603(3)(b)”; and (2) “[w]hether any procedural

violations in imposing restitution required automatic vacatur of the

restitution award.”

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¶ 18 Under these circumstances, we decline the State’s invitation

on remand to consider whether Rodriguez waived his right to rely

on subsection (1)(b)’s deadline. We do not interpret the remand

order as asking us to consider arguments not raised in the original

appeal or in the petition for certiorari. See Tennyson, ¶ 10 n.5 (“We

‘decide cases on the grounds raised and considered in the

[intermediate appellate court] and included in the question on

which we granted certiorari.’” (quoting Bragdon v. Abbott, 524 U.S.

624, 638 (1998))) (alteration in original). And we see no reason to

do so when the issue was not fully briefed in the original appeal.

Cf. Tull v. Gundersons, Inc., 709 P.2d 940, 945 & n.5 (Colo. 1985)

(addressing an issue not considered on appeal because it was

“bound to arise on remand” and “was fully briefed to the court of

appeals”).

¶ 19 Moreover, in distinguishing Weeks, the supreme court

emphasized that waiver was not at issue there, just as it was not at

issue in Rodriguez I. See Roberson, ¶ 15; Babcock, ¶ 10. Nothing in

the supreme court’s recent cases suggests that we must address an

issue not originally before us on appeal. See Moody v. People, 159

P.3d 611, 614 (Colo. 2007) (It is a “basic principle of appellate

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jurisprudence that arguments not advanced on appeal are generally

deemed waived.”). Therefore, because we do not consider waiver,

we stand by our decision in Rodriguez I that the district court

lacked authority to impose restitution because it did so after the

deadline without good cause. See Weeks, ¶¶ 40, 45.

B. The Applicable Remedy and Standard of Reversal

¶ 20 Next, the State argues that, if Rodriguez’s challenge to the

restitution order’s timeliness is not waived, it is an illegal manner

claim that we must review for harmless error. In Rodriguez I, the

State mentioned illegal sentence and illegal manner claims once, in

the context of preservation. However, in Rodriguez I and in its

petition for certiorari, the State argued that Rodriguez’s restitution

challenge is reviewable for harmless or plain error. Viewing

preservation in the most lenient light possible, we conclude that we

may reach this issue.

¶ 21 We review the legality of a sentence de novo. Snow, ¶ 23.

¶ 22 The remaining cases for our consideration include Snow and

Tennyson, both of which addressed postconviction challenges to

restitution under Crim. P. 35(a). Snow, ¶ 1, considered “whether a

Crim. P. 35(a) challenge regarding a post-sentencing order setting

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the amount of restitution is cognizable as an illegal sentence claim

or an illegal manner claim.” The supreme court held that the

district court imposed an illegal sentence when it reserved the issue

of restitution entirely and thereby failed to enter “one of the four

restitution orders authorized by subsection (1).” Id. at ¶¶ 22-23. It

then concluded that vacatur was the proper remedy but noted that

Weeks did not control this result. Id. at ¶¶ 26-28.

¶ 23 The court explained that “the subsection (1)(b) deadline is

inapposite here because the district court never entered a

subsection (1)(b) order[;] . . . [it] merely reserved the issue of

restitution in its entirety, [which was] not authorized by subsection

(1).” Id. at ¶ 27. However, the court stood “firmly by . . . Weeks,”

concluding that vacatur was the proper remedy for the illegal

sentence. Id. at ¶ 4. It explained that vacatur is the only proper

remedy when, “on direct appeal, a court concludes that the trial

court, after entering a subsection (1)(b) order finding restitution

liability at sentencing, fails to comply with the ninety-one-day

deadline and thus acts without authority in determining the

amount of restitution.” Id. at ¶ 31. It applied the same rationale to

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illegal sentence claims as Weeks did to subsection (1)(b). Id. at ¶¶

32, 41.

¶ 24 Tennyson, ¶ 3, 62, also considered whether a Rule 35(a) claim

involving restitution was an illegal sentence claim or an illegal

manner claim but held that a challenge “pursuant to subsection

(1)(b) is an illegal manner claim.” The distinction mattered because

Tennyson could have brought an illegal sentence claim at any time,

but he could only bring an illegal manner claim “within 120 days

after the imposition of his sentence.” Id. at ¶ 32. The court

concluded that his claim was time barred under Rule 35’s deadline

for illegal manner claims. Id. at ¶¶ 31, 62. Therefore, although the

district court ordered restitution 126 days after sentencing, the

supreme court did not vacate the order. Id. at ¶¶ 11, 62.

¶ 25 The State argues that, because Rodriguez’s appeal involves a

challenge to an untimely order entered under subsection (1)(b), the

issue before us is an illegal manner claim. Thus, it contends,

Snow’s remedy of vacatur for illegal sentences does not apply, and

we should review for prejudice. The State notes that the recent

restitution cases did not address whether similar illegal manner

claims should be reviewed for harmless error, but it urges us to

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infer such a standard from these cases and others. See People v.

Dominguez, 2021 COA 76, ¶ 12 (reviewing an illegal manner claim

for harmless error) (cert. granted Apr. 11, 2022).

¶ 26 We agree that the issue here implicates the principles outlined

in Tennyson regarding illegal manner claims. But we reject the

invitation to review for harmless error, concluding that Weeks,

Tennyson, and Snow support vacatur as the proper remedy. See

Doe v. Univ. of Denver, 2022 COA 57, ¶ 88 (“We are bound by

opinions of the Colorado Supreme Court, not opinions of another

division of this court.”), aff’d in part and rev’d in part, 2024 CO 27.

¶ 27 First, while Snow, ¶ 31, considered an illegal sentence claim,

not an illegal manner claim, it reaffirmed vacatur as the proper

remedy under subsection (1)(b) when a district court does not

“comply with the ninety-one-day deadline and thus acts without

authority in determining the amount of restitution.” See also

Weeks, ¶ 47 (vacating such an order). As the supreme court did in

Weeks, we concluded in Rodriguez I that the district court did not

comply with the subsection (1)(b) deadline and lacked authority to

impose restitution.

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¶ 28 Additionally, Tennyson and Snow involved postconviction

issues, which the court distinguished from direct appeals.

Tennyson, ¶ 58 (explaining that because Weeks involved a direct

appeal, “the remedy . . . granted there has no bearing on

Tennyson’s Crim. P. 35(a) claim”). And the issue before us involves

a direct appeal.

¶ 29 Although the State suggests otherwise, Tennyson did not leave

open the question of whether a timely illegal manner claim under

Rule 35 is subject to harmless error review. The court specifically

noted that if Tennyson had timely filed his illegal manner claim, “he

would have been entitled to vacatur of the post-sentencing order

setting the restitution amount, and that, in turn, would have

required the district court to amend his mittimus to reflect that no

restitution was required.” Id. at ¶ 59 n.12.

¶ 30 Finally, we reject the State’s argument that Babcock, Johnson,

and Roberson support reviewing untimely subsection (1)(b) orders

for harmless error. True, Babcock, ¶ 26, noted that construing

subsection (1)(b) as jurisdictional was “antithetical to the statute’s

purposes” because victims with statutory rights to restitution

“could receive no compensation due solely to a trial court’s failure

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to meet the deadline.” And Johnson, ¶ 24, explained that

“interpret[ing] the statute as jurisdictional would mean that a trial

court’s failure to meet the deadline might render a victim . . .

without any means to seek restitution.” But this language is not at

odds with the notion that vacatur is the proper remedy when a

court orders restitution beyond the statutory deadline without

making an express good cause finding. See Weeks, ¶¶ 45, 47.

¶ 31 As Snow explained, Weeks determined vacatur was the proper

remedy because allowing trial courts to simply “reissu[e] the

untimely order setting the restitution amount . . . would have

knocked out all the deadline’s teeth.” Snow, ¶ 31 (citing Weeks,

¶ 47). The concerns in Babcock, Johnson, and Roberson present

different sides of the same issue. While Weeks sought to ensure

that defendants are not penalized for a court’s failure to adhere to

its deadline, Babcock, Johnson, and Roberson sought to ensure that

victims are not penalized for a defendant’s waiver of the deadline.

¶ 32 Babcock, ¶¶ 26-27, 30, for example, was concerned that

construing subsection (1)(b) such that it could not be waived would

mean that a defendant could, for instance, agree to or ask the court

to determine restitution after the deadline and then successfully

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argue that the court imposed restitution without authority. This

concern was not present in Weeks because “[w]aiver was not before

[the court] in Weeks.” Babcock, ¶ 10. Therefore, the recent cases

did not overrule Week’s conclusion that vacatur is the proper

remedy for untimely subsection (1)(b) orders; they merely clarified

that vacatur is improper if a defendant waived the statutory

deadline, see, e.g., id. at ¶¶ 26-27, or if an illegal manner challenge

was untimely, see Tennyson, ¶ 62. And the fact that Rodriguez’s

claim could be construed as an illegal manner claim if it had not

been brought on direct appeal does not change the result. See

Tennyson, ¶ 59 n.12.

¶ 33 Accordingly, we stand by our decision in Rodriguez I to vacate

the district court’s restitution order.

III. Disposition

¶ 34 For the reasons set forth above and in Rodriguez I, we vacate

the order imposing restitution and remand for the district court to

correct the mittimus to reflect that Rodriguez owes no restitution.

JUDGE GOMEZ and JUDGE LUM concur.

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