Peo v. Melendez-Carrera

21CA1146 Peo v Melendez-Carrera 08-15-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1146

Adams County District Court No. 20CR1011

Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ruben Melendez-Carrera,

Defendant-Appellant.

ORDER VACATED

Division III

Opinion by JUDGE DUNN

Yun and Moultrie, JJ., concur

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

Announced August 15, 2024

Philip J. Weiser, Attorney General, Matthew S. Holman, First 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

1

¶ 1 Defendant, Ruben Melendez-Carrera, appeals the trial court’s

restitution order. We vacate the order.

I. Background

¶ 2 Melendez-Carrera pleaded guilty to second degree assault and

agreed to pay “any Court-ordered restitution.”

¶ 3 On December 17, 2020, the trial court sentenced Melendez-

Carrera and granted the prosecution’s request to “reserve

restitution” for ninety-one days.

¶ 4 On February 26, 2021 — seventy-one days after sentencing —

the prosecution filed its restitution motion. A few days later, the

court granted the prosecution’s request that any objection be filed

within thirty-five days.

¶ 5 On March 26 — less than thirty-five days later but one

hundred days after sentencing — Melendez-Carrera objected to the

restitution motion, arguing, among other things, that under section

18-1.3-603(1)(b), C.R.S. 2023, and People v. Weeks, 2020 COA 44

(Weeks I), the trial court “lack[ed] jurisdiction to impose restitution”

because it hadn’t done so within the statutory ninety-one-day

deadline. The prosecution never responded to this particular

argument, and the court never addressed it.

2

¶ 6 Ultimately, on June 18 — one hundred and eighty-four days

after sentencing — the court ordered Melendez-Carrera to pay

$5,678.40 in restitution.

II. The Trial Court Lacked Authority Under the Restitution

Statute and Weeks

¶ 7 Melendez-Carrera contends that the trial court lacked

authority to enter the restitution order more than ninety-one days

after his sentencing because it didn’t make an express good cause

finding to extend that deadline as required by section 18-1.3-

603(1)(b) and People v. Weeks, 2021 CO 75, ¶ 5 (Weeks II). We

agree.

¶ 8 We review de novo whether a trial court complied with the

restitution statute. See Weeks II, ¶ 24; see also People v. Roddy,

2021 CO 74, ¶ 23.

¶ 9 Weeks II, ¶¶ 4-5, plainly requires that when a trial court defers

determination of the restitution amount at sentencing, it must

either (1) determine the amount of restitution within ninety-one

days of the order of conviction or (2) make an express finding of

good cause for extending that deadline before the deadline expires.

Absent an express and timely good cause finding, the trial court

3

lacks authority to order restitution after the ninety-one-day

deadline. Id. at ¶ 45; People v. Brassill, 2024 COA 19, ¶¶ 56-58;

People v. Roberson, 2023 COA 70, ¶ 12 (cert. granted Apr. 8, 2024).

¶ 10 It is undisputed that the trial court here entered restitution

long after the ninety-one-day deadline expired. And the

responsibility to enter a timely restitution order falls to the court —

not the defendant. See Brassill, ¶ 20 (“[T]he [restitution] statute

places an obligation on the sentencing court to ensure that

restitution is resolved within ninety-one days from the entry of the

order of conviction.”); see § 18-1.3-603(1)(b) (referring to the court’s

obligation to enter a timely restitution order).

¶ 11 We reject the People’s suggestion that Melendez-Carrera

somehow waived the ninety-one-day deadline or “invited” the

untimely restitution order. Melendez-Carrera didn’t ask for an

extension of the restitution deadline, nor did he ask that the

restitution hearing be set outside the ninety-one-day deadline. He

4

simply pointed out the violation of the ninety-one-day deadline, and

he did so within the briefing schedule set by the court.

1

¶ 12 That leaves only the question of whether the trial court made

an express and timely good cause finding to extend the deadline

before the deadline expired. See Weeks II, ¶¶ 39-40. It did not.

The only order the court entered before the statutory restitution

deadline passed was an order adopting the prosecution’s request

that any objection be filed within thirty-five days. That order didn’t

acknowledge the ninety-one-day deadline, let alone include any

express good cause findings to extend it. And because any express

good cause findings had to be made before the ninety-one-day

deadline passed, we don’t agree with the People’s contention that

later events somehow established good cause to extend the

deadline. See id. at ¶ 7 (noting that neither belated requests nor

belated orders “may act as a defibrillator to resuscitate an expired

deadline”).

1

Even assuming Melendez-Carrera had some obligation to assert

the right to a timely restitution determination, the failure to assert

such a right would be a forfeiture, not a waiver. See People v.

Turner, 2022 CO 50, ¶ 14 (A forfeiture is “the failure to make the

timely assertion of a right.”) (citation omitted).

5

¶ 13 Because the trial court didn’t impose the amount of restitution

within the ninety-one-day deadline and didn’t make a good cause

finding to extend that deadline, it lacked authority to enter the

restitution order. And because the entry of an order that the court

lacked authority to enter, “by definition, is not harmless,” People v.

Mickey, 2023 COA 106, ¶ 11, we also reject the People’s contention

that vacatur isn’t required because any error was harmless. See

Weeks II, ¶¶ 45-47 (vacating a restitution order that was entered

after the ninety-one-day deadline because the court “lacked

authority” to enter it); see also Roberson, ¶ 32 (observing that when

Weeks II vacated the restitution order, “it did not consider

harmlessness”).

¶ 14 We therefore must vacate the restitution order. Having so

concluded, we needn’t consider Melendez-Carrera’s remaining

challenges to the restitution order.

III. Disposition

¶ 15 The restitution order is vacated.

JUDGE YUN and JUDGE MOULTRIE concur.