The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY March 7, 2019

No. 18CA0041, People v. Knoeppchen — Criminal Procedure — Postconviction Remedies — Correction of Illegal Sentence — Sentence Imposed in an Illegal Manner

A division of the court of appeals considers whether a

postconviction appeal of a district court’s order denying a motion to

vacate a restitution order involves a claim that the defendant’s

sentence is not authorized by law or is a challenge to the manner in

which sentence was imposed. Because the division concludes that

the motion is an illegal manner claim under Crim. P. 35(a) and the

challenge is untimely, the division concludes that the petition was

time barred, and thus affirms the order. COLORADO COURT OF APPEALS

Court of Appeals No. 18CA0041 Larimer County District Court No. 13CR335 Honorable Susan J. Blanco, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Billy Joe Knoeppchen,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE TOW Taubman and Berger, JJ., concur

Announced March 7, 2019

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lance Thibert, Deputy State Public Defender, Fort Collins, Colorado, for Defendant-Appellant ¶1 Defendant, Billy Joe Knoeppchen, appeals the district court’s

order denying his motion to vacate the restitution order. His appeal

requires us to determine whether his challenge involves a claim that

his sentence is not authorized by law or is a challenge to the

manner in which sentence was imposed. Because we decide it is

the latter, and the challenge is untimely, we affirm.

I. Background

¶2 On August 22, 2013, Knoeppchen pleaded no contest to third

degree assault and was sentenced to probation. As part of the plea

agreement, Knoeppchen agreed to pay restitution. However,

because the prosecution did not have complete information

regarding restitution at the time, the district court reserved the

restitution determination for ninety days. 1

¶3 On November 29, 2013, 100 days later, the prosecution moved

for an order imposing restitution. Knoeppchen did not file any

response to the motion. The district court adopted the proposed

order filed by the prosecution. This order noted, “[t]he above stated

——————————————————————— 1 The court was statutorily authorized to reserve restitution for

ninety-one days. § 18-1.3-603(1)(b), C.R.S. 2018. However, the prosecutor only requested ninety days.

1 amount is the current amount due, but not a final amount due.

The defendant is ordered to pay restitution covering the actual costs

of the ongoing or future treatment of [the victim] for treatment to

his mouth, teeth[,] and jaw.” The amount of restitution owed to the

victim compensation fund was also left to be determined. On May

21, 2014, the prosecution moved to amend the restitution amount,

reducing the total amount due. Again, Knoeppchen filed no

response. The district court granted this motion as well.

¶4 More than three years later, Knoeppchen filed a motion to

vacate the restitution order. Although he did not explicitly refer to

Crim. P. 35, or to any other statute or rule under which he was

proceeding, he “attack[ed] the restitution order itself as a matter of

law,” asserting that the proposed order was filed by the prosecution

and adopted by the district court after the ninety-day deadline, and

that the prosecution did not establish good cause for its tardy

request. The district court denied the motion, finding that good

cause existed for filing the motion for restitution late, despite not

having made any express finding of good cause when it entered the

original order.

2 II. Analysis

¶5 Knoeppchen now appeals the district court’s order denying his

motion to vacate the restitution order. As a preliminary matter, the

People argue that (1) this court lacks jurisdiction to review the order

because it is not a final, appealable order denying postconviction

relief; and (2) even if the motion to vacate the restitution order is a

final, appealable order seeking postconviction relief, the motion was

time barred. Although we disagree that this court lacks jurisdiction

to review the order, we agree that the motion was time barred.

Thus, we affirm the district court’s order, but on grounds other

than those relied on by the district court.

A. This Court Has Jurisdiction

¶6 We first address, and reject, the People’s assertion that the

district court’s order is not a final, appealable order. According to

the People, because Knoeppchen did not explicitly invoke Rule 35 or

its statutory counterpart, section 18-1-410, C.R.S. 2018, the

district court lacked authority to treat the matter as a

postconviction challenge. However, courts have long considered the

substantive issues raised in a motion, rather than the label placed

on such motion, to determine how the matter should be

3 characterized. See Dodge v. People,

,

(1972). Knoeppchen’s collateral attack on the three-year-old

restitution order clearly sought postconviction relief in the form of

vacating the restitution order.2 Thus, the challenge to the propriety

of the district court’s resolution of that claim is properly before us.

B. Knoeppchen’s Claims Are Time Barred

¶7 The People’s second procedural argument is more availing. As

noted, Knoeppchen’s motion levies an attack on the restitution

award “as a matter of law.” In substance, he asserts that

restitution was not legally imposed. Which provision of Rule 35

governs Knoeppchen’s claim depends on whether he asserts an

illegality of constitutional dimension. If it is a claim that the

sentence is illegal in a way that does not invoke constitutional

protections, it is cognizable under Rule 35(a). See People v. Dunlap,

(Colo. App. 2009) (construing the defendant’s

argument that the district court failed to consider and fix the

restitution amount as a claim that his sentence was illegal under

——————————————————————— 2 Of course, Knoeppchen could have appealed the district court’s original order granting restitution had he chosen to do so in a timely fashion. He did not. Consequently, the only avenue that remained available to him was a postconviction challenge.

4 Rule 35(a)). If it is a claim that the sentence violates constitutional

rights, it is cognizable under Rule 35(c). See People v. Wenzinger,

(Colo. App. 2006) (holding that a challenge to an

aggravated range sentence as contrary to the Sixth Amendment

right to a jury determination of all facts that impact the maximum

sentence falls within the ambit of Rule 35(c)).

1. Challenges to an Illegal Sentence

¶8 Rule 35(a) governs two distinct types of challenges to the

legality of a sentence: (1) a claim that a sentence was not authorized

by law or was imposed without jurisdiction and (2) a claim that the

sentence was imposed in an illegal manner. Crim. P. 35(a). A

sentence is not authorized by law if it is “inconsistent with the

statutory scheme outlined by the legislature.” People v. Rockwell,

, 414 (Colo. 2005).

¶9 In contrast, a sentence may be imposed in an illegal manner,

notwithstanding the district court’s authority to impose a particular

sentence, if it “‘ignores essential procedural rights or statutory

considerations in forming the sentence.’” People v. Bowerman,

(Colo. App. 2010) (quoting 15 Robert J. Dieter &

5 Nancy J. Lichtenstein, Colorado Practice Series, Criminal Practice

and Procedure § 21.10 n.10 (2d ed. 2004)).

¶ 10 The line between an unauthorized sentence claim and an

illegal manner claim is not always easily discernable. The broadest

reading of Rockwell, for example, might suggest that even a

procedural error would give rise to an unauthorized sentence claim,

since the improper procedure would be “inconsistent with the

statutory scheme.” However, a division of this court has

characterized the language in Rockwell more narrowly. Wenzinger,

.

¶ 11 Indeed, a closer view of Rockwell does not support a broad

application. In employing the “statutory scheme” language,

Rockwell cited People v. District Court,

, 995 (Colo.

1983). There, the supreme court held that “[a] court may not

impose a sentence that is inconsistent with the terms specified by

statutes.” Id. The sentence under review in that case involved an

attempt by the sentencing court, through the combination of a

suspended prison sentence and a sentence to a fixed period in the

county jail work release program, to impose quasi-probationary

conditions without actually imposing probation. Id. at 995-96.

6 Because such a structure was not authorized by the sentencing

statutes, the sentence was illegal. Id. at 996.

¶ 12 Notably, the court in Rockwell addressed a prior version of

Rule 35(a). Prior to July 1, 2004, the rule provided that a court

could “correct an illegal sentence at any time . . . .” Rule Change

2004(2), Colorado Rules of Criminal Procedure (Amended and

Adopted by the Court En Banc, Jan. 29, 2004),

https://perma.cc/J7PK-XYNW. The rule now authorizes a court to

“correct a sentence that was not authorized by law or that was

imposed without jurisdiction at any time . . . .” In Wenzinger, a

division of this court concluded that the amendment “merely

codifie[d] case law defining ‘illegal sentence.’” 3

.

The division further explained that this language of the rule must

be read to exclude mere procedural flaws in sentencing, lest the

rule “blur the distinction between sentences that are void because

they were imposed in excess of the court’s statutory authority and

——————————————————————— 3 Alternatively, if the language in Rockwell was intended to have a more expansive reach, the subsequent amendment clearly narrowed its application to only scenarios where the sentence is inconsistent with the terms and conditions authorized by statute, or where the sentencing court lacked jurisdiction to act.

7 sentences that are voidable because they were ‘imposed in an illegal

manner . . . .’”

(citation omitted).

¶ 13 Such a narrow reading is consistent with prior appellate

decisions applying either version of the rule, which have found

sentences to be illegal — or not authorized by law — only when

there have been substantive deviations from the statutory scheme.

In Rockwell, for example, the supreme court held that the district

court announced an illegal sentence when it imposed a period of

mandatory parole when the statute provided for discretionary parole

for the particular offense involved. 125 P.3d at 414; see also

Delgado v. People,

(Colo. 2005) (same). In

Downing v. People,

(Colo. 1995), the district court

resentenced a defendant who was being transferred from

community corrections to the Department of Corrections and

imposed a longer term than originally imposed, in derogation of the

then-existing statutory prohibition on doing so.

. And

in People v. White,

(Colo. App. 2007), the district court

entered an illegal sentence because it permitted the sentence to run

concurrently with another sentence when the statute required it to

run consecutively.

.

8 ¶ 14 In contrast, in People v. Collier,

(Colo. App.

2006), the defendant claimed that “he was not given the complete

range of psychological and physiological testing required for his sex

offender evaluation before he was sentenced.”

. The

defendant argued that this testing was required by sections 16-

11.7-104 and 16-11.7-105, C.R.S. 2006. Notwithstanding the fact

that the claim arguably rested on a deviation from the statutory

scheme, a division of this court treated the claim as a challenge to

the manner in which the sentence was imposed. Collier,

.

¶ 15 And in People v. Bowerman, the defendant challenged the

restitution component of her sentence. She argued that her

sentence was not authorized by law because the prosecution did

not prove by a preponderance of the evidence that she had stolen

items in addition to the specific items mentioned in the information.

. A division of this court rejected the defendant’s

characterization of the claim. Instead, the division concluded that

because the defendant challenged the outcome of the factfinding

process, rather than the general authority of the court to order

restitution, the claim was an illegal manner claim.

9 ¶ 16 We agree with the division in Wenzinger that the language in

Rockwell regarding inconsistency with the statutory scheme does

not encompass mere procedural inconsistencies. Indeed, the

supreme court in Rockwell further characterized illegal sentence

claims as encompassing “questions [concerning] the trial court’s

authority to issue a particular sentence . . . .” 125 P.3d at 414. A

procedural challenge to the sentence does not challenge the court’s

authority, but rather the way in which the court’s authority was

exercised — in other words, the manner in which the sentence was

imposed.

a. The District Court’s Authority and Obligation to Impose Restitution

¶ 17 The question whether Knoeppchen’s claim challenges the

district court’s authority to impose the sentence or simply the

manner in which it did so requires us to consider the nature of the

district court’s authority to impose restitution.

¶ 18 In every criminal prosecution, at the time sentence is imposed,

the district court must address restitution. § 18-1.3-603(1), C.R.S.

2018. To discharge this duty, the district court must take one of

four actions when issuing the order of conviction: (1) establish a

10 specific amount of restitution; (2) find that the defendant will be

obligated to pay restitution, but reserve for ninety-one days the

determination of the specific amount; (3) order that the defendant

will be responsible for paying the costs of specifically designated

ongoing treatment; or (4) find that no victim suffered a pecuniary

loss, so no restitution is owed. Id. Any sentence imposed without

one of these orders is an illegal sentence. People v. Smith,

(Colo. App. 2005).

¶ 19 If the district court exercises the second option, reserving

restitution, the statute requires the amount of restitution to be

established within ninety-one days. § 18-1.3-603(1)(b).4 However,

the district court can extend that time period upon a showing of

good cause. Id.

——————————————————————— 4 The statute appears to set up a bit of an inconsistency. Subsection (1)(b) requires the amount of restitution to be determined within ninety-one days; but subsection (2) sets the same ninety-one-day deadline for the prosecution to provide the information to the court. Compare § 18-1.3-603(1)(b), with § 18- 1.3-603(2). It would appear that where the prosecution timely provides information to the court on or just before the ninety-first day, it will usually be impossible for the district court to rule on the restitution request within the same period, particularly because the court will need to afford the defendant an opportunity to respond.

11 ¶ 20 The ninety-one-day period is not jurisdictional. People v.

Harman,

(Colo. App. 2004). However, where the

prosecution fails to establish the amount of restitution within the

ninety-one days, the district court lacks the authority to impose

restitution unless good cause has been shown. People v. Turecek,

.

b. Knoeppchen’s Challenge to Restitution

¶ 21 To apply the principles discussed above, we must determine

whether Knoeppchen challenges the legality of the sentence or the

manner in which it was imposed. Significantly, Knoeppchen does

not argue that the district court lacked jurisdiction to impose

restitution for this offense. As noted above, the district court not

only has the authority, but the obligation, to order restitution. §

18-1.3-603(1). Nor does he argue that the district court lost

jurisdiction to impose restitution outside the ninety (or even the

statutory ninety-one) days. See Harman,

.

¶ 22 Rather, Knoeppchen argues that the district court failed to

make a contemporaneous finding of good cause before permitting

the late request for restitution. Unfortunately, just as he did in the

district court, Knoeppchen asserts his claim without any reference

12 to Rule 35 at all, let alone any specific reference to whether the

sentence was authorized by law. Instead, Knoeppchen relies on

Turecek.

¶ 23 In Turecek, the prosecution initially filed a timely restitution

request that was only an estimate because the insurer had not

made a final coverage decision for the claim. Turecek, ¶ 3. The

district court considered the amount requested “not to be accurate

at this point” and declined to take any action on the request;

instead, the court gave the prosecution ninety days to file a

corrected request. Id. at ¶ 4. The prosecution took no further

action for nine months, at which time it sought a ruling on the

original request. Id. at ¶ 5. The district court granted the request.

¶ 24 On appeal, a division of this court concluded that because the

prosecution “failed to establish (or even seek to establish) good

cause for extending that time period,” the district court erred in

imposing restitution. Id. at ¶ 15. Significantly, the defendant in

Turecek timely filed a direct appeal of the restitution order.

Consequently, the appellate court had no occasion to discuss

whether the challenge was an illegal sentence claim or an illegal

manner claim. It appears, however, that Knoeppchen believes that

13 the context of the appellate court’s discussion in Turecek speaks in

terms of the district court’s authority, or lack thereof, to order

restitution in those circumstances. See id. at ¶¶ 13-15.

¶ 25 As a threshold issue, we note that nothing in the statute

explicitly requires the court to make an oral or written finding of

good cause; rather, the statute merely requires good cause to be

shown. Nor does Turecek clearly impose on the district court an

obligation to make such an explicit finding. Compare id. at ¶ 15

(stating the holding of the case, specifically that the district court

erred in imposing restitution where the prosecution had not shown

good cause), with id. at ¶ 20 (noting, in distinguishing Harman, that

the district court had made no finding that the prosecution had

established good cause).

¶ 26 Even if we assume Turecek stands for the proposition that a

good cause finding is integral to the district court’s authority to

order restitution, Knoeppchen’s reliance on Turecek is misplaced.

Here, unlike in Turecek, the prosecution asserted, and the district

court found, that there was good cause for extending the time

period. Knoeppchen argues that this finding of good cause is

invalid because it was not made when the district court initially

14 ordered restitution. However, he cites to no authority, and we have

found none, that requires the showing (or finding) of good cause to

occur at any particular time. Rather, the statute merely requires

that a showing be made. § 18-1.3-603(1)(b).

¶ 27 The essence of Knoeppchen’s claim, then, is not that the

prosecution failed to show good cause for extending the period, but

rather that the court did not address good cause in a timely

fashion. In other words, he claims the district court “ignore[d]

essential procedural rights or statutory considerations.”

Bowerman,

(quoting Dieter & Lichtenstein, § 21.10

n.10); see also James v. United States,

(4th

Cir. 2003) (treating an assertion that the sentencing court failed to

establish the amount of restitution within ninety days as an illegal

manner claim under the 1987 version of Rule 35(a) of the Federal

Rules of Criminal Procedure — which was identical to the 2004

version of Colorado’s rule at issue in Rockwell). Knoeppchen’s

claim, therefore, must be addressed as a challenge to the manner in

which the sentence was imposed.

¶ 28 This distinction is fatal to Knoeppchen’s claim. While an

illegal sentence may be corrected at any time, the district court can

15 only correct “a sentence imposed in an illegal manner within the

time provided herein for the reduction of sentence.” Crim. P. 35(a).

Thus, a claim that a sentence was imposed in an illegal manner

must be raised within 126 days of the imposition of the sentence.

Crim. P. 35(a), (b). Because Knoeppchen filed his motion to vacate

the restitution order well beyond the 126-day limit, his motion was

time barred.

2. Due Process Challenge

¶ 29 Knoeppchen’s second argument is also time barred. He

asserts that the district court violated his right to due process by

making a post hoc finding of good cause in permitting the tardy

restitution request and relying on information presented by the

prosecution long after the restitution order was entered. This is a

challenge to the constitutionality of the restitution component of the

sentence. As such, this claim is cognizable under Rule 35(c).

Wenzinger,

.

¶ 30 Knoeppchen was convicted of, and sentenced for, a

misdemeanor. A Rule 35(c) challenge to a misdemeanor conviction

or sentence must be brought within eighteen months of the

conviction. § 16-5-402(1), C.R.S. 2018. Where there is no appeal,

16 this period begins to run when the district court enters judgment

and the sentence is imposed. People v. Pennington,

(Colo. App. 1999).

¶ 31 Knoeppchen’s conviction entered when he was sentenced on

August 22, 2013. It is unclear whether the subsequent order fixing

restitution would restart the commencement of the statutory filing

period. See People v. Metcalf,

(Colo. App. 1999)

(holding that a modification of sentence pursuant to Rule 35(b) does

not restart the clock for a Rule 35(c) motion). Even if we assume it

did, the district court entered the initial order imposing restitution

on January 8, 2014, and the order amending restitution on July 8,

2014. Knoeppchen first sought to challenge the restitution order on

September 15, 2017, more than three years after the last restitution

order was issued. Thus, Knoeppchen’s due process challenge is

also time barred.

C. An Appellate Court May Raise Untimeliness

¶ 32 We acknowledge that the People did not argue that

Knoeppchen’s motion was time barred under section 16-5-402 in

the district court. However, so long as the untimeliness is clear

from the motion and the record, an appellate court may deny relief

17 on such grounds even if the issue was not raised in the district

court. § 16-5-402(1.5). Further, we can affirm a district court’s

ruling on any ground supported by the record. People v. Quintana,

(Colo. 1994).

¶ 33 Because Knoeppchen’s motion was untimely, we affirm the

district court’s denial of the motion, albeit for different reasons than

those relied on by the district court.

III. Conclusion

¶ 34 The order is affirmed.

JUDGE TAUBMAN and JUDGE BERGER concur.

18