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.

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¶ 1 Tnias Dmitri Pike appeals the postconviction court’s order

denying his Crim. P. 35(a) motion for postconviction relief without 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 this agreement, Pike agreed to

pay restitution for all the counts in the case, including dismissed

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 each

victim and their respective amount of restitution. Fifteen days

later, Pike filed an objection to the proposed order and requested

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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 sentencing

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 proposed

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 was

illegal because the district court issued its restitution order more

than ninety days

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after he was sentenced, see § 18-1.3-603(1)(b),

C.R.S. 2011, 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.

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The current statutory deadline is ninety-one days. § 18-1.3-

603(1)(b), C.R.S. 2023; see 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 effect at

the time of the restitution order provided a ninety-day deadline.

But because the restitution order was entered ninety-four days after

sentencing, this difference has no bearing on the resolution of this

appeal.

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2023. Pike asserted that these contentions were properly construed

as Crim. P. 35(a) “illegal sentence” claims — that his sentence “was

not authorized by law” and “was imposed without jurisdiction” —

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 challenge to

the timeliness of the restitution order was an “illegal manner” claim

that needed to be raised within 126 days

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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 120 days

from the date of sentencing. See Crim. P. 35(a), (b) (2011); 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.

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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 named

as victims because they each had a contractual relationship 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 restitution

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, 2023 COA 2,

¶ 9 (cert. granted Sept. 11, 2023). “We may affirm the

postconviction court’s ruling on any ground supported by the

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record, whether or not the postconviction court relied on or

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 jurisdiction

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

120 days after the judgment of conviction is affirmed. Id.; Crim.

P. 35(b) (2011). Thus, because Pike filed his motion years after the

120-day deadline expired, the timeliness of that motion turns on

whether his claims are “illegal sentence” or “illegal manner” claims.

¶ 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 essential

procedural rights or statutory considerations in forming the

sentence.” Id. at ¶ 11 (citation omitted). A challenge to the amount

of restitution a defendant is obligated to pay is an illegal manner

claim. People v. Bowerman, 258 P.3d 314, 317 (Colo. App. 2010).

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¶ 12 Because Pike is proceeding pro se, and did so in the

postconviction proceedings, we “broadly construe” his pleadings “to

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 consider claims

he did not make in his motion. Id.

B. Timeliness of Restitution

¶ 13 Relying on People v. Weeks, 2021 CO 75, Pike contends that

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 after he was

sentenced. Therefore, Pike argues, the postconviction court erred

by treating his claim as an untimely “illegal manner” claim instead

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 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

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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 restitution

within ninety-one days of the judgment of conviction unless, before

the deadline expires, the court expressly finds good cause to extend

the deadline. Weeks, ¶¶ 4-5.

¶ 16 But Weeks involved a direct appeal of a restitution order and

does not address how to properly construe a postconviction

challenge under its holdings and section 18-1.3-603’s procedural

requirements. However, Tennyson squarely addresses this issue.

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¶ 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 defendant’s

postconviction motion, filed ten years after the restitution order 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 its restitution

order in 2011, and Pike filed his 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 time

barred. See Crim. P. 35(a), (b); Tennyson, ¶¶ 35-38.

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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 not 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 error.

¶ 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 6M.

The statutory definition of “victim” includes other persons besides

the direct victim of the crime. Id. As relevant here, a victim

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includes “[a]ny person[

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] who has suffered losses because of a

contractual relationship with, including but not limited to, an

insurer . . . for a person [against whom any felony, misdemeanor,

petty, or traffic misdemeanor offense has been perpetrated 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 the parties

that changes their legal rights and duties of care.” People v. Oliver,

2016 COA 180M, ¶ 36. This contractual relationship can be formed

by any type of contract, regardless of whether there is a written

document. Id. at ¶¶ 34-35.

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We also reject Pike’s argument that the Office of the Staff Judge

Advocate, the hospital, and the other medical offices are not entitled

to restitution because they are not human beings and therefore are

not victims under the second degree murder statute. The

restitution statute authorizes the award of restitution to persons

beyond the direct victim of the crime. And, for the purposes of the

restitution statute, the 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, ¶ 34.

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¶ 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 order. 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 to

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. Oliver

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 the victims.

In other words, “[r]ather than raising the question whether the . . .

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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 also

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 these 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 waived

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

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scheduled a restitution hearing, and the People complied 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 related 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 to be

presented and contested before the district court — but he

knowingly and intentionally waived it. See Garcia, ¶ 29; People v.

Martinez, 166 P.3d 223, 224 (Colo. App. 2007) (“A defendant waives

his or her objections to the amount of restitution by failing to go

forward with evidence when given the opportunity to do so.”). That

the record does not contain evidence of contractual relationships 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

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Advocate, the hospital, and the medical offices. See Horton v.

Suthers, 43 P.3d 611, 614, 618-20 (Colo. 2002) (holding that the

director of the Department of Corrections invited error when he

expressly agreed that the district court had jurisdiction and stated

that he did not oppose the relief requested but took the opposite

position on appeal). Pike cannot now complain that these entities

are not victims when he expressly agreed with the proposed 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 order.

Accordingly, we remand the case for the court to correct the

mittimus. See Weeks, ¶¶ 9, 44; see also People v. Esparza-Treto,

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.