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People v. Tennyson.

2023 COA 2. No. 20CA0646. Sentencing—Restitution—Postconviction Remedies— Sentence Imposed in an Illegal Manner.

January 12, 2023

Tennyson pleaded guilty to two counts of aggravated robbery in 2008. The district court sentenced him to prison terms, and it ordered restitution more than 90 days after sentencing. A few weeks later, the district court entered an amended restitution order correcting an arithmetic error in the calculation of the total amount. Tennyson did not file an objection to either order. Tennyson did not directly appeal his conviction or sentence but filed numerous unsuccessful postconviction motions and appeals. In 2015, Tennyson sent a letter to the district court claiming that he had not been notified of the restitution order and objecting to the imposition of restitution. The court denied his objection as untimely. In 2018, Tennyson filed two Crim. P. 35(a) motions, which were denied.

On appeal, Tennyson argued that the district court erred in denying his most recent postconviction motions in which he collaterally challenged his restitution order. He maintained that the district court reserved the issue of restitution in its entirety at sentencing and then imposed an order of restitution after the statutory deadline, so his restitution order should be vacated. Under CRS § 18-1.3-603(1), the order obligating a defendant to pay restitution is a component of the defendant’s sentence. Under CRS § 18-1.3-603(1)(b), the district court has 91 days following the conviction order to enter the post-sentencing order regarding the amount of restitution. This period may be extended if an express finding of good cause is made before the deadline expires. A defendant’s postconviction challenge to the restitution component of a sentence due to a district court’s untimely determination of the restitution amount constitutes an illegal manner claim under Crim. P. 35(a). The version of Crim. P. 35(a) in effect when Tennyson was sentenced provided that a court could correct a sentence imposed in an illegal manner within 120 days from the imposition of the sentence. Here, the record shows that at sentencing the court considered and ordered that Tennyson was liable for restitution; it reserved only the determination of the restitution amount. Tennyson filed his postconviction challenge to the order determining the amount of restitution more than 120 days after sentencing, so it is time barred. Accordingly, the postconviction court properly rejected this claim without a hearing.

Tennyson also contended that the prosecution failed to present evidence to support its restitution request. Because Tennyson did not file this illegal manner claim within 120 days of the 2008 imposition of his sentence, this claim is untimely.

Tennyson further asserted that the imposition of restitution violated his constitutional rights. Here, Tennyson did not file this claim within three years of the 2008 imposition of his sentence, and this claim could have been raised in a prior postconviction proceeding, so it is untimely and successive.

The orders were affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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