Peo v. Xiong

22CA0895 Peo v Xiong 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0895
Morgan County District Court No. 17CR448
Honorable Charles M. Hobbs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ha Xiong,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Yun and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Ha Xiong, appeals the district court’s order

denying his Crim. P. 35(a) motion. Because we conclude the motion

was untimely, we affirm.

I. Factual Background

A. Trial Court Proceedings

¶2 The People charged Xiong with possession with intent to

manufacture or distribute more than fifty pounds of marijuana or

marijuana concentrate, possession of methamphetamine, and

driving under the influence. The charges stemmed from an incident

in which Xiong crashed a rented car into a semitruck while he was

transporting over a hundred pounds of marijuana.

¶3 In exchange for dismissal of the original charges, Xiong

pleaded guilty to an amended count of driving while ability impaired

and an added count of possession with intent to manufacture or

distribute a controlled substance. As part of his plea agreement,

the parties stipulated that Xiong “is to pay all restitution, including

but not limited to [the semitruck driver, the rental car company,]

and any other party injured or property damaged as a result of th[e]

incident.”

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¶4 At the May 2019 sentencing hearing, the trial court imposed a

controlling four-year prison sentence. The court gave the

prosecution ninety-one days to file its restitution request and gave

the defense time to object. The mittimus does not mention

restitution.

¶5 Xiong did not directly appeal his convictions or sentence.

¶6 Forty-eight days after sentencing, the prosecution submitted a

request for $36,809.12 in restitution. Four days later, Xiong

objected, requesting a hearing and asserting that he “[did] not

believe this [wa]s a reasonable amount for the damages in this case

nor [wa]s he the proximate cause of some of the requested

restitution.”

¶7 The court set the matter for a hearing on August 23, 2019 —

112 days after the sentencing hearing. After the hearing, the court

ordered Xiong to pay the requested amount of restitution.

B. The Restitution Appeal and Crim. P. 35(a) Proceedings

¶8 Xiong appealed the restitution award, and a division of this

court affirmed the trial court’s order. People v Xiong, (Colo. App.

No. 19CA1820, June 17, 2021) (not published pursuant to C.A.R.

35(e)) (Xiong I). Shortly after the division announced its opinion in

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Xiong I, the supreme court announced People v. Weeks, 2021 CO

75.

¶9 Xiong then filed the Crim. P. 35(a) motion at issue here. He

argued that, under Weeks, the restitution order should be vacated

because (1) the prosecutor failed to request restitution at the

sentencing hearing, meaning the court could not have properly

deferred a determination of the amount of restitution owing; and (2)

the court failed to fix the amount of restitution within the statutory

ninety-one-day deadline.

¶ 10 The district court denied the motion. It found that its

“authority under Rule 35” was equitable in nature and that “it

would be manifestly inequitable to the victim” to retroactively apply

Weeks.

II. Discussion

¶ 11 Xiong argues that, pursuant to Weeks, the district court erred

by denying his Crim. P. 35(a) motion. Reviewing the court’s order

de novo, see People v. Tennyson, 2023 COA 2, ¶ 9 (cert. granted

Sept. 11, 2023), we disagree, though we affirm on different grounds

than those relied on by the district court, see People v. Cooper, 2023

COA 113, ¶ 7.

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A. Standing

¶ 12 As a threshold issue, the People assert that Xiong lacked

standing to file his motion because the deadlines in the restitution

statute were enacted for the benefit of victims, not defendants. The

People cite no authority for this proposition, and we are not aware

of any. Regardless, no one disputes that a defendant has standing

to seek postconviction review under Crim. P. 35. See Hunsaker v.

People, 2021 CO 83, ¶ 18 (stating that defendants may seek

postconviction review of a sentence and listing the “three avenues

for this relief” as Crim. P. 35(a), (b), and (c)).

B. Timeliness

¶ 13 Every judgment in a felony case must include “consideration

of restitution,” meaning it must include (a) an order fixing a specific

amount of restitution; (b) an order requiring restitution but

deferring the specific amount for up to ninety-one days; (c) an order

fixing restitution and requiring the defendant to pay certain future

costs; or (d) a finding that no restitution is owing. § 18-1.3-

603(1)(a)-(d), C.R.S. 2024; Weeks, ¶ 29.

¶ 14 But the statute distinguishes “an order assigning liability for

restitution from a determination of the amount of restitution for

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which the defendant is liable.” Sanoff v. People, 187 P.3d 576, 578

(Colo. 2008) (emphasis added). Only the order assigning liability is

a component of the defendant’s sentence; the order fixing the

amount of restitution is separate from the judgment of conviction

and independently appealable. Id.

¶ 15 Xiong first contends that because the prosecutor did not

present restitution information before or at the sentencing hearing,

the court could not have properly assigned liability for restitution

and deferred fixing the amount. See Weeks, ¶ 30 (Section 18-1.3-

603(1)(b) “allows the court to shelve the determination of the

amount of restitution after entering a preliminary order requiring

restitution. And the court can only enter such an order if the

prosecution has made a motion for restitution.”).1 True, the

omission in the judgment of an order assigning liability for

1 Under section 18-1.3-603(2)(a), C.R.S. 2024, the prosecutor shall

“present [restitution] information to the court prior to the order of
conviction or within ninety-one days, if it is not available prior to
the order of conviction.” But the prosecutor’s failure to present
restitution information before or at sentencing, even if the
information is available, does not itself require vacatur of the
restitution order. See People v. Brassill, 2024 COA 19, ¶ 60 (even if
the prosecution fails to comply with its obligation to present
restitution information at sentencing, the court has authority to
enter a restitution order within the ninety-one-day deadline).

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restitution results in an illegal sentence that can be challenged at

any time under Crim. P. 35(a). See People v. Bowerman, 258 P.3d

314, 316 (Colo. App. 2010). But the remedy for such an error is to

remand for the trial court to amend the mittimus to reflect the

necessary order assigning liability for restitution, not to vacate the

entirely separate restitution order. See Tennyson, ¶ 31 (“[I]f a

sentence is illegal because it does not contain the ‘consideration of

restitution’ as required by section 18-1.3-603(1), the district court

must correct it.”).2

¶ 16 Next, Xiong argues that the court erred by fixing the amount

of restitution outside the ninety-one-day deadline. But as he

acknowledges, this error gives rise to an illegal manner claim, not

an illegal sentence claim. See id. at ¶ 33. An illegal manner claim

must be raised, as relevant here, within 126 days after (1) “sentence

is imposed” or (2) affirmance of the judgment of conviction or

sentence. Crim. P. 35(a), (b).

2 Because Xiong does not argue that his sentence is illegal or seek

correction of this omission, we decline to order a remand to amend
the mittimus.

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¶ 17 Xiong says, as he did in the district court, that his Crim. P.

35(a) motion was timely because he filed it within 126 days after the

mandate issued in Xiong I. But Xiong I did not affirm the judgment

of conviction or sentence; it affirmed the trial court’s restitution

order, which, as we have explained, is not a component of the

defendant’s judgment of conviction, including the sentence. See

Sanoff, 187 P.3d at 578 (The determination of the amount of

restitution, as distinguished from an order assigning liability to pay

restitution, “has been severed from the meaning of the term

‘sentence,’ as contemplated by Crim. P. 32, and therefore from [the]

judgment of conviction.”).

¶ 18 Because Xiong did not appeal his judgment of

conviction/sentence, his illegal manner claim had to be raised

under Crim. P. 35(a) within 126 days of the date sentence was

imposed. See Tennyson, ¶ 38 (concluding that the defendant’s

Crim. P. 35(a) illegal manner claim was untimely where the motion

was filed “more than 12[6] days after sentencing”). Sentence was

imposed in May 2019, but Xiong did not file his motion until March

2022. Therefore, the district court properly denied the motion.

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III. Disposition

¶ 19 The order is affirmed.

JUDGE YUN and JUDGE GRAHAM concur.

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