Peo v. Pike

23CA0353 Peo v Pike 07-03-2024 COLORADO COURT OF APPEALS Court of Appeals No. 23CA0353 El Paso County District Court No. 10CR2483 Honorable Laura N. Findorff, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Tnias Dmitri Pike, Defendant-Appellant. ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS Division III Opinion by JUDGE YUN Moultrie and Davidson*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 3, 2024 Philip J. Weiser, Attorney General, Frank R. Lawson , Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Tnias Dmitri Pike, Pro Se *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023. 1 ¶ 1 Tnias Dmitri Pike appeals the postconviction court ’s order denying his Crim. P. 35(a) motion for postconviction relief wit hout a hearing. We affirm and remand for the district court to correct the mittimus. I. Background ¶ 2 In 2011, Pike pleaded guilty to second degree murder as part of a global plea agreement. Under th is agreement, Pike agreed to pay restitution for all the counts in the case, including dismisse d counts. The plea agreement provided that the “District Attorney’s Office will act in good faith to provide correct information establishing the amount of restitution within 90 days of sentencing.” ¶ 3 The district court accepted the plea agreement. At a later hearing, the court sentenced Pike to a total of forty-nine years in the custody of the Department of Corrections for all of the cases in the global plea agreement. ¶ 4 Thirty-eight days after Pike was sentenced, the People submitted a proposed restitution order that individually listed ea ch victim and their respective amount of restitution. Fifteen days later, Pike filed an objection to the proposed order and requested 2 discovery. A restitution hearing was initially set for the following week. But for reasons not in the record, the hearing was vacated and reset for the next month, ninety-four days after the sent encing hearing. At the beginning of the hearing, Pike withdrew his objection to restitution. As a result, the district court vacated the remaining part of the hearing and entered the People’s propos ed restitution order. ¶ 5 Eleven years later, Pike, appearing pro se, filed motions to correct an illegal sentence under Crim. P. 35(a) and to withdraw a guilty plea under Crim. P. 32(d). Pike argued that his sentence wa s illegal because the district court issued its restitution order mo re than ninety days 1 after he was sentenced, see § 18 -1.3-603(1)(b), C.R.S. 20 11 , and because the court awarded restitution to what he claimed were non-victims — the Office of the Staff Judge Advocate, a hospital, and other medical offices , see § 18 -1.3-602(4)(a), C.R.S. 1 T he current statutory deadline is ninety-one days . § 18 -1.3- 603(1)(b), C.R.S. 20 23 ; s ee Ch. 208, sec. 112, § 18 -1.3-603(2), 2012 Colo. Sess. Laws 867. The postconviction court’s order refers to the current ninety-one-day deadline even though the statute in eff ect at the time of the restitution order provided a ninety-day deadline . But because the restitution order was entered ninety-four days aft er sentencing, this difference has no bearing on the resolution of t his appeal. 3 2023. Pike asserted that these contentions were properly construed as Crim. P. 35(a) “illegal sentence” claims — that h is sentence “wa s not authorized by law” and “was imposed without jurisdicti on” — that can be raised “at any time.” And Pike argued that his motion to withdraw his guilty plea , ordinarily required by Crim. P. 32(d) to be filed “before sentence is imposed or imposition of sentence is suspended, ” could thereafter be timely filed between when the postconviction court vacated his purportedly illegal sentence and imposed a legal one. ¶ 6 The postconviction court denied both motions. Regarding the Crim. P. 35(a) motion, the court concluded that Pike’s challeng e to the timeliness of the restitution order was an “illegal manner” claim that needed to be raised within 126 days 2 of sentencing , see Crim. P. 35(a), (b), and, thus, was itself untimely. The court ruled that Pike’s contention that non-victims were awarded restitution 2 The version of Crim. P. 35 in effect when Pike was convicted required an “illegal manner” claim to be brought within 12 0 days from the date of sentencing. See Crim. P. 35(a), (b) (20 11 ) ; Rule Change 2011(19) , Colorado Rules of Procedure (Amended and Adopted by the Court En Banc, Dec. 14, 2011) , https://perma.cc/6SFN-GLQA. This difference again has no bearing on the resolution of this appeal. 4 was an “illegal sentence” claim that could be brought at any time , see Crim. P. 35(a), but found that the Office of the Staff Judge Advocate, the hospital, and the medical offices were properly name d as victims because they each had a contractual relationshi p with the victims of Pike’s crime, see § 18 -1.3-602(4)(a)(III). In addition, the court rejected the Crim. P. 32(d) motion as untimely. ¶ 7 Pike appeals the postconviction court’s order. II. Analysis ¶ 8 Pike contends that the postconviction court erred by concluding that (1) his challenge to the timeliness of the restit ution order was an untimely illegal manner claim; and (2) the Office of the Staff Judge Advocate, the hospital, and the medical offices qualified as victims under section 18-1.3-602(4)(a)(III). We reject both contentions, albeit for reasons slightly different than those relied on by the postconviction court. A. Standard of Review and Applicable Law ¶ 9 We review de novo the legality of a sentence and the summary denial of a Crim. P. 35 motion . People v. Tennyson , 20 23 COA 2, ¶ 9 ( cert. granted Sept. 11, 2023). “We may affirm the postconviction court ’ s ruling on any ground supported by the 5 record, whether or not the postconviction court relied on o r considered that ground.” People v. Cooper , 2023 COA 113 , ¶ 7. ¶ 10 Under Crim. P. 35(a), the court may correct a sentence that was “not authorized by law or that was imposed without ju risdiction at any time.” But the court may correct a sentence imposed “in an illegal manner” only if the motion is filed, as relevant to Pike, within 12 0 days after the judgment of conviction is affirmed. Id. ; Crim. P. 35(b) (2011). Thus, because Pike filed his motion years after t he 12 0-day deadline expired, the timeliness of that moti on turns on whether his claims are “illegal sentence” or “illegal manner” claim s. ¶ 11 The substance of a postconviction motion, and not its label, controls its designation under Crim. P. 35. See People v. Collier , 151 P.3d 668, 670 (Colo. App. 2006). A sentence is “illegal,” or “not authorized by law,” when it is “inconsistent with the terms specified by statutes.” Tennyson , ¶ 10 (citation omitted). A sentence is imposed “in an illegal manner” when the court “ignores essent ial procedural rights or statutory considerations in formi ng the sentence.” Id. at ¶ 11 (citation omitted). A challenge to the amount of restitution a defendant is obligated to pay is an illegal manne r claim. People v. Bowerman , 258 P.3d 314, 317 (Colo. App. 2 010). 6 ¶ 12 Because Pike is proceeding pro se, and did so in the postconviction proceedings , we “broadly construe” his pleadings “t o effectuate the substance, rather than the form, of those pleadings.” People v. Cali , 2020 CO 20, ¶ 34 . But we may not rewrite his arguments or act as his advocate. Id. Nor may we consi der claims he did not make in his motion. Id. B. Timeliness of Restitution ¶ 13 Relying on People v. Weeks , 2021 CO 75 , Pike contends t hat the restitution portion of his sentence “was not authorized by law” or “was imposed without jurisdiction” because the district court entered its restitution order more than ninety days aft er he was sentenced. Therefore, Pike argues, the postconviction court erred by treating his claim as an untimely “ illegal manner ” claim instea d of an “ illegal sentence ” claim that can be raised at any time. We are not persuaded. ¶ 14 As Weeks clarifies, section 18-1.3-603(1) requires that every order of conviction “shall include one or more of the f ollowing”: (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 7 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; (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. § 18 -1.3-603(1); Weeks , ¶ 3. ¶ 15 Weeks held, among other things, that section 18-1.3-603(1)(b) requires a district court to determine the amount of restituti on within ninety-one days of the judgment of conviction unless, before the deadline expires, the court expressly finds good caus e to extend the deadline. Weeks , ¶¶ 4- 5. ¶ 16 But Weeks involved a direct appeal of a restitution order an d does not address how to properly construe a postconvict ion challenge under its holdings and section 18-1.3- 603’s procedural requirements. However, Tennyson squarely addresses this issue. 8 ¶ 17 In Tennyson , the defendant, like Pike, claimed that his postconviction challenge based on Weeks was not time barred because it was properly construed as a Crim. P. 35(a) claim that his sentence was not authorized by law. Tennyson , ¶¶ 15 -16. The division disagreed and held that where a defendant brings a postconviction challenge regarding the procedures employed in determining the appropriate restitution amount , the claim is properly construed as an “illegal manner” claim under Crim. P. 35(a). Id. at ¶¶ 18 -34. The division held that the defe ndant’s postconviction motion, filed ten years after the restitution o rder was issued, was therefore time barred. Id. at ¶¶ 35 -38. ¶ 18 Contrary to Pike ’s argument that Tennyson was wrongly decided, we agree with the holding and reasoning in Tennyson and follow it here. In this case, the district court entered it s restitution order in 20 11 , and Pike filed h is postconviction motion eleven years later in 2022. The motion is properly construed as raising an “illegal manner” claim under Crim. P. 35(a) and is therefore t ime barred. See Crim. P. 35(a), (b); Tennyson , ¶¶ 35 - 38. 9 C. Recipients of Restitution ¶ 19 Pike’s remaining contention is that the postconviction court erred by concluding that the Office of the Staff Judge Advocate, the hospital, and the medical offices were “ victims ” for restitution purposes because the record does no t contain evidence of contractual relationships between them and the direct victims of the crime. We conclude not only that Pike’s claim is time barred because it is an “illegal manner” claim , but also that he is barred from raising it under the doctrines of waiver and invited err or. ¶ 20 “The Colorado restitution statutes require an offender to ‘mak[e] the victim whole to the extent practicable.’” People v. Martinez , 2022 COA 28 , ¶ 1 (quoting People v. Courtney , 868 P.2d 1126, 1128 (Colo. App. 1993)), aff ’ d on other grounds , 2024 CO 6 M . The statutory definition of “ victim ” includes other persons besides the direct victim of the crime. Id . As relevant here, a victim 10 includes “[a]ny person [ 3 ] who has suffered losses because of a contractual relationship with, including but not limited to, an insurer . . . for a person [against whom any felony, misdeme anor, petty, or traffic misdemeanor offense has been perpetrate d or attempted]. ” § 18 -1.3-602(4)(a)(I), (III) ; see People v. McCarthy , 2012 COA 133 , ¶ 9 (under the restitution statute, “victim” includes “ any person who has suffered losses because of a contractual relationship with the primary victim of the crime ”). “[A] ‘contractual relationship’ is an agreement that creates legally enforceable obligations and a legally recognized association between t he parties that changes their legal rights and duties of care.” People v. Oliver , 2016 COA 180M, ¶ 36 . Th is contractual relationship can be formed by any type of contract, regardless of whether there is a written document. Id. at ¶¶ 34 -35. 3 We also reject Pike’s argument that the Office of the Staff Judge Advocate, the hospital, and the other medical offices are not entit led to restitution because they are not human beings and therefore ar e not victims under the second degree murder statute. The restitution statute authorizes the award of restitution t o persons beyond the direct victim of the crime. And, for the purpo ses of the restitution statute, t he term “person” includes “ any individual, corporation, government or governmental subdivision or agency, . . . or other legal entity. ” § 2-4-401(8), C.R.S. 2023; see People v. Martinez , 2022 COA 28 , ¶ 3 4. 11 ¶ 21 Pike’s claim that there is no evidence of contractual relationships in the record is fundamentally a challenge to the sufficiency of the evidence to support the restitution orde r. That is an illegal manner claim. See Bowerman , 258 P.3d at 317 (concluding that an argument that the prosecution did not prove the defendant stole certain items was an illegal manner claim); Tennyson , ¶ 39 (holding that a claim that the prosecution failed t o present evidence to support its restitution request “is a challenge to the legality of the manner in which [the] sentence was imposed”) . ¶ 22 We are not convinced that Oliver suggests that any challenge to whether a person qualifies as a victim under section 18 -1.3-602(4)(a) is cognizable as an “ illegal sentence ” claim. O liver dealt with a question of law : Can governmental agencies be considered insurers entitled to restitution under section 18 -1.3-602(4)(a)(III)? Oliver , ¶ 25. In contrast, Pike does not contend that the Office of the Staff Judge Advocate, the hospital, and the medical offices can never satisfy section 18-1.3-602(4)(a)(III) as a matter of law; he argues that the record does not contain sufficient evidence of their contractual relationship with t he victims. In other words, “[r]ather than raising the question whether the . . . 12 restitution was ‘authorized by law,’ [Pike’s] argument directly challenges the outcome of the fact-finding process conducted within the boundaries of the statutory scheme.” Bowerman , 258 P.3d at 317. ¶ 23 Thus, Pike was required to bring this claim within 120 days of his sentencing hearing under the then-existing rule. Id. ; see a lso People v. Bryce , 2020 COA 57, ¶ 3 . Because he did not do so, the claim is time barred. ¶ 24 Moreover, we conclude that Pike is barred from raising the lack of evidence supporting the se contractual relationships under the doctrines of waiver and invited error . See People v. Garcia , 2024 CO 41 , ¶ 28 ( “Waiver is ‘the intentional relinquishment of a known right or privilege, ’” and “an appellate court may not review a waiv ed error .” (quoting Forgette v. People , 2023 CO 4, ¶ 28) ) (emphasis omitted); People v. Rediger , 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case; the party must abide the consequences of his or her acts.”). ¶ 25 Pike ’s counsel initially objected to the People’s proposed restitution order and requested discovery on it. The district court 13 scheduled a restitution hearing, and the People com plied with Pike’s request for discovery. As the restitution hearing was set to begin, Pike ’s counsel stated that he “received all of the discovery relate d to [the restitution order] and did have a chance to speak with Mr. Pike regarding it; and, at this time, we would withdraw our objection to restitution.” Consequently, the court vacated the evidentiary hearing and entered the proposed restitution order. ¶ 26 Thus, Pike was afforded a restitution hearing — the opportunity for evidence such as contractual relationships t o be presented and contested before the district court — but he knowingly and intentionally waived it . See Garcia , ¶ 29 ; Peop le v. Martinez , 166 P.3d 223, 224 (Colo. App. 2007) (“A def endant waives his or her objections to the amount of restitution by failing to go forward with evidence when given the opportunity to do s o.”). That the record does not contain evidence of contractual relationshi ps is a direct consequence of Pike’s waiver. ¶ 27 Further, Pike ’s counsel invited any error by telling the court that, after reviewing the discovery and consulting with Pike, he was withdrawing his objections to the proposed restitution order that specifically awarded restitution to the Office of the Staff Judge 14 Advocate, the hospital, and the medical offices . See Horton v. Suthers , 43 P.3d 611, 614 , 618- 20 (Colo. 2002) (holding that t he director of the Department of Corrections invited error when he expressly agreed that the district court had jurisdiction and stat ed that he did not oppose the relief requested but took the opposit e position on appeal ). Pike cannot now complain that these entities are not victims when he expressly agreed with the prop osed order listing them as such . See id. ; Rediger , ¶ 34 . III. Disposition ¶ 28 The postconviction court’s order is affirmed. However, the mittimus does not reflect the terms of the restitution orde r. Accordingly, we remand the case for the court to correct t he mittimus. See Weeks , ¶¶ 9, 44 ; see also People v. Esparza - Tret o , 282 P.3d 471, 480 (Colo. App. 2011) (“When the mittimus is incorrect, we must remand to allow the trial court to correct it.”). JUDGE MOULTRIE and JUDGE DAVIDSON concur.