Peo v. Muth

22CA0688 Peo v Muth 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0688

El Paso County District Court No. 19CR3025

Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Willow Muth,

Defendant-Appellant.

ORDERS AFFIRMED

Division III

Opinion by JUDGE YUN

Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-

Appellant

1

¶ 1 Willow Muth appeals the postconviction court’s orders denying

her Crim. P. 35(a) and Crim. P. 35(c) motions for postconviction

relief. We affirm.

I. Background

¶ 2 In 2019, Muth pleaded guilty to violating a bail bond condition

in exchange for a stipulated probationary sentence, the dismissal of

a forgery count, and the dismissal of charges in another case.

Under the plea agreement, Muth agreed to pay restitution for all

counts in both cases, including dismissed counts. The agreement

provided that the “District Attorney’s Office will act in good faith to

provide correct information establishing the amount of restitution

within 91 days of sentencing.”

¶ 3 The district court accepted the plea agreement and entered the

stipulated sentence on July 8, 2019, noting that the “DA’s office has

91 days to calculate and submit a restitution payout order.”

Eighty-seven days later, on October 3, 2019, the People submitted a

proposed restitution order requesting $103.33 for one victim and

$8,825 for another. The proposed order included a notice to Muth

that, if she objected to the restitution amount, she had thirty days

to request a hearing.

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¶ 4 The district court waited thirty-five days. When Muth did not

object, it entered the People’s proposed restitution order on

November 7, 2019 — 122 days after Muth’s judgment of conviction.

¶ 5 Two years later, our supreme court decided People v. Weeks,

2021 CO 75. It held that, under section 18-1.3-603(1)(b), C.R.S.

2023, when a district court enters a preliminary order requiring the

defendant to pay restitution but notes that the specific amount will

be determined later, the court must determine the amount of

restitution within ninety-one days of the judgment of conviction

unless, before this deadline expires, it makes an express good cause

finding for extending the deadline. Weeks, ¶¶ 4-5.

¶ 6 In September 2021, Muth filed a pro se motion for

postconviction relief under Crim. P. 35(c), arguing that her counsel

had been ineffective for failing to object to the untimely restitution

order. In March 2022, court-appointed postconviction counsel filed

a motion to correct an illegal sentence pursuant to Crim. P. 35(a),

arguing that, under section 18-1.3-603(1)(b) and Weeks, the district

court had no authority to enter the restitution order more than

ninety-one days after Muth’s judgment of conviction absent a good

cause finding.

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¶ 7 After two separate hearings, the postconviction court denied

both motions.

II. Analysis

¶ 8 Muth contends that the postconviction court erred by

concluding that (1) the untimely restitution order was not an illegal

sentence under Crim. P. 35(a) and (2) her counsel did not provide

ineffective assistance by following the “standard practices in [the]

entire judicial district” at the time. We reject both contentions.

A. Timeliness of Restitution

¶ 9 We first address Muth’s argument that the postconviction

court erred by denying her Crim. P. 35(a) claim. We conclude that

this claim is time barred because it is an “illegal manner,” not an

“illegal sentence,” claim.

1. Standard of Review and Governing Law

¶ 10 “The legality of a sentence is a question of law that we review

de novo.” People v. Bassford, 2014 COA 15, ¶ 20. “We may affirm

the postconviction court’s ruling on any ground supported by the

record, whether or not the postconviction court relied on or

considered that ground.” People v. Cooper, 2023 COA 113, ¶ 7.

4

¶ 11 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 Muth,

within 126 days after the sentence is imposed. Crim. P. 35(a), (b).

Thus, because Muth filed her motion after the 126-day deadline

expired, the timeliness of that motion turns on whether her claim is

an “illegal sentence” or an “illegal manner” claim.

¶ 12 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” within the meaning of Crim. P. 35(a), “if any of

the sentence’s components fail to comply with the sentencing

statutes.” People v. Baker, 2019 CO 97M, ¶ 19. A sentence is

imposed “in an illegal manner” when the court “ignores essential

procedural rights or statutory considerations in forming the

sentence.” People v. Bowerman, 258 P.3d 314, 316 (Colo. App.

2010) (citation omitted). A challenge to the amount of restitution a

defendant is obligated to pay is an illegal manner claim. Id. at 317.

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2. Discussion

¶ 13 Relying on Weeks, Muth argues that the restitution portion of

her sentence “was not authorized by law” because the district court

entered its restitution order more than ninety-one days after she

was sentenced, in violation of section 18-1.3-603(1)(b). 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

[to] be paid by the defendant;

(b) An order that the defendant is obligated to

pay restitution, but that the specific amount of

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.

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¶ 15 As discussed above, 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 that the court did not comply with section 18-1.3-603’s

procedural requirements. However, People v. Tennyson, 2023 COA

2, ¶ 9 (cert. granted Sept. 11, 2023), squarely addresses this issue.

¶ 17 In Tennyson, the defendant, like Muth, 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

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postconviction motion, filed ten years after the restitution order was

issued, was therefore time barred. Id. at ¶¶ 35-38.

¶ 18 Contrary to Muth’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 2019, and Muth filed her Crim. P. 35(a) motion more than

two 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.

B. Ineffective Assistance of Counsel

¶ 19 Next, we turn to Muth’s argument that the postconviction

court erred by denying her Crim. P. 35(c) ineffective assistance of

counsel claim. We again disagree.

1. Standard of Review and Governing Law

¶ 20 In reviewing the denial of a Crim. P. 35(c) motion after a

hearing, we review conclusions of law de novo but defer to the

postconviction court’s findings of fact if they are supported by the

evidence. People v. Villanueva, 2016 COA 70, ¶ 28. “The weight

and credibility to be given the testimony of witnesses in a Crim. P.

35(c) hearing is within the province of the [postconviction] court and

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when there is sufficient evidence in the record to support the

court’s findings, its ruling will not be disturbed on review.”

People v. Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).

¶ 21 To establish a claim of ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance was deficient

and (2) counsel’s deficient performance prejudiced her.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ardolino v.

People, 69 P.3d 73, 76 (Colo. 2003). An ineffective assistance claim

fails if the defendant does not satisfy either prong. Strickland,

466 U.S. at 697.

¶ 22 To establish deficient performance, the defendant bears the

burden of showing that, “in light of all the circumstances, the

identified acts or omissions [of counsel] were outside the wide range

of professionally competent assistance.” Id. at 690. In evaluating

such a claim, the court must avoid “the distorting effects of

hindsight,” People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007),

and “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,”

Ardolino, 69 P.3d at 76. To establish prejudice, in turn, the

defendant must demonstrate a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694.

2. Discussion

¶ 23 Muth argues that her counsel performed deficiently by failing

to object to the entry of the restitution order 122 days after her

judgment of conviction when section 18-1.3-603(1)(b) provides that

“the specific amount of restitution shall be determined within the

ninety-one days immediately following the order of conviction”

unless good cause is shown for an extension. We are not

persuaded.

¶ 24 At the hearing on her Crim. P. 35(c) motion, Muth’s plea

counsel testified that he followed his standard practice at the time

regarding restitution in her case. He testified that “restitution . . .

was reserved like in all plea agreements” and that there was an

“opportunity to object once a restitution request was filed,” but that

he did not consider objecting on the basis that the “restitution order

was granted 122 days after [Muth’s sentence] was entered.” The

postconviction court found that Muth’s plea counsel was a credible

witness and that he had not performed deficiently by following “the

standard practice here in the Fourth Judicial District” at the time

10

and failing to “predict[] in 2019 what the Colorado Supreme Court

would . . . order[] [in Weeks] in 2021.”

¶ 25 Muth argues that it is “irrelevant” that Weeks had not yet been

decided at the time of the restitution order in her case because the

language of section 18-1.3-603 is unambiguous and the supreme

court’s analysis in Weeks was thus “hiding in plain sight.” But

Weeks begins by acknowledging that the practice followed in Muth’s

case — of reserving restitution for ninety-one days and then giving

the defendant an opportunity to object to the amount — was

standard at the time and that, “[i]n fairness to our colleagues

litigating and presiding over criminal cases, section 18-1.3-603 is

not a paragon of clarity.” Weeks, ¶¶ 1-2. In setting forth a new

standard, the supreme court overruled ten court of appeals

decisions to the extent they were inconsistent with its opinion. Id.

at ¶ 47 n.16.

¶ 26 The Constitution guarantees criminal defendants a competent

attorney, but it “does not insure that defense counsel will recognize

and raise every conceivable” claim. People v. Houser, 2020 COA

128, ¶ 37 (quoting Engle v. Isaac, 456 U.S. 107, 134 (1982)).

“Specifically, a lawyer does not perform deficiently by ‘failing to raise

11

novel arguments that are unsupported by then-existing precedent.’”

Id. at ¶ 33 (quoting United States v. Morris, 917 F.3d 818, 823 (4th

Cir. 2019)). “Nor does counsel fall below Strickland’s standard of

reasonableness by failing to anticipate changes in the law, or to

argue for an extension of precedent.” Id. (quoting Morris, 917 F.3d

at 823). Under these circumstances, we cannot conclude that

Muth’s counsel performed deficiently by “maneuver[ing] within the

existing law,” id. at ¶ 37 (citation omitted), and following the

district’s “longstanding” practice, Weeks, ¶ 2.

¶ 27 We thus conclude that the postconviction court did not err by

denying Muth’s ineffective assistance of counsel claim.

III. Disposition

¶ 28 The orders are affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.