Peo v. Plake

23CA1812 Peo v Plake 01-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1812
Douglas County District Court No. 11CR103
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Valiant Plake,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 9, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Janet Kinniry, Gardner, Colorado, for Defendant-Appellant
¶1 Defendant, Matthew Valiant Plake, appeals the district court’s

order denying as time barred his postconviction motion challenging

his restitution order. Because we agree that the motion was

untimely filed, we affirm the order.

I. Background

¶2 Plake agreed to plead guilty to two counts of conspiracy to

commit first degree murder in exchange for the dismissal of other

charges filed against him and a stipulated sentence of forty-eight

years in prison. The written plea documents reflect that Plake

stipulated to causation for purposes of determining restitution but

that restitution would be “reserved” for ninety days following

sentencing.

¶3 At a March 14, 2012, hearing, Plake pleaded guilty, and the

district court imposed the stipulated sentence. Neither the

sentencing order nor the mittimus reflected the court’s

determination of Plake’s liability with respect to restitution. The

court ordered the prosecution to submit a request for restitution

within ninety days and ordered Plake to file any objection within

fifteen days if a request for restitution was filed. The court stated

that it would enter a restitution order if no objection was filed.

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¶4 On June 13, 2012 — the ninety-first day after sentencing —

the prosecution filed a motion for an extension of time to file a

restitution motion. The district court granted the motion.

¶5 On August 28, 2012, the prosecution filed a motion for an

award of $35,087.35 in restitution. The record contains no

objection. On October 17, 2012, the district court entered an order

imposing the requested restitution.

¶6 On November 12, 2021, Plake filed a pro se Crim. P. 35(a)

motion, in which he argued that his sentence was illegal because

the court entered the restitution order more than ninety days after

sentencing in violation of section 18-1.3-603(1)(b), C.R.S. 2024, and

the then-recently announced holding in People v. Weeks, 2021 CO

75. The prosecution countered that Plake’s argument was not

cognizable as an illegal sentence claim but that he instead raised an

untimely challenge to the manner in which his sentence was

imposed.

¶7 At a September 19, 2022, hearing, the postconviction court

indicated its belief that Plake’s sentence was illegal because the

district court was without jurisdiction when it entered the

restitution order. The court noted that, since this illegality existed

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as a result of the restitution terms of the plea agreement, the

required remedy would be to vacate Plake’s guilty pleas and the plea

agreement. Because this was not Plake’s intended relief, the court

stated that, “if [counsel] need some time to talk with Mr. Plake,

including setting this for a different date, I will give you that time

and opportunity before I enter the order.” At counsel’s request, the

court set the matter over to another hearing date.

¶8 Subsequently, a division of this court in People v. Tennyson,

2023 COA 2 (cert. granted Sept. 11, 2023), concluded that a

postconviction challenge to the timeliness of a section

18-1.3-603(1)(b) restitution order was cognizable as an illegal

manner claim. See id. at ¶¶ 2, 38. At the next hearing, Plake

stated that he wouldn’t withdraw his challenge to the restitution

order but objected to the vacation of his guilty pleas and the plea

agreement. The parties and the postconviction court agreed to

continue the matter to see if the supreme court granted certiorari in

Tennyson. After the announcement of additional relevant authority

from the court of appeals, the court ordered the parties to submit

written arguments on the issue.

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¶9 In his brief, Plake asserted that, notwithstanding the

subsequently announced caselaw, the postconviction court should

not reconsider its September 19, 2022, ruling that his motion

raised an illegal sentence claim. Plake also argued that Tennyson

was wrongly decided or was distinguishable from his case. Lastly,

Plake asserted that, even if his claim was cognizable as an illegal

manner claim, his failure to comply with the applicable deadline for

filing such claims was the result of excusable neglect and,

consequently, the court should consider the motion.

¶ 10 In its response, the prosecution argued that the postconviction

court could reconsider its September 19, 2022, ruling because it

was either not a final order or subject to reconsideration pursuant

to the law of the case doctrine. The prosecution maintained that

the court was bound by Tennyson and that, therefore, it should

deny Plake’s motion as asserting an untimely illegal manner claim.

Lastly, the prosecution objected to the court finding that the

untimely filing of Plake’s motion was the result of excusable neglect.

¶ 11 In an August 31, 2023, order, the postconviction court noted

that, at the September 19, 2022, hearing, it had “provided direction

that it was considering the sentence to be an illegal sentence” and

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that the matter was set over to permit Plake and his counsel to

discuss the consequences that would result from that finding. As

such, the court found that it “did not enter a final order regarding if

the sentence entered was illegal or if a violation of the plea

agreement occurred.” Nevertheless, the court recognized that, even

if it had issued a ruling, the law of the case doctrine allowed it to

reconsider the ruling in light of the changed conditions created by

the announcement of Tennyson.

¶ 12 The postconviction court then found that it was bound by

Tennyson and that Plake’s motion asserted an untimely illegal

manner claim. The court rejected Plake’s assertion that his failure

to timely file the motion was the result of excusable neglect.

II. Crim. P. 35(a) Authority

¶ 13 Crim. P. 35(a) permits a “court [to] correct a sentence that was

not authorized by law or that was imposed without jurisdiction at

any time.” “An illegal sentence is one that is not authorized by law,

meaning that it is inconsistent with the sentencing scheme

established by the legislature.” People v. Jenkins, 2013 COA 76,

¶ 11.

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¶ 14 Crim. P. 35(a) also permits a court to “correct a sentence

imposed in an illegal manner within the time provided herein for the

reduction of sentence.” The version of Crim. P. 35 in effect at the

time Plake was sentenced provided that a court may reduce a

defendant’s sentence within 120 days from, as relevant here, the

imposition of the sentence. Crim. P. 35(b) (2011).1 “A sentence may

be imposed in an illegal manner ‘when the [district] court ignores

essential procedural rights or statutory considerations in forming

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

2010) (quoting 15 Robert J. Dieter & Nancy J. Lichtenstein,

Colorado Practice Series, Criminal Practice and Procedure, § 21.10

n.10 (2d ed. 2004)).

III. Applicable Restitution Authority

¶ 15 The restitution statute requires every order of conviction to

include one of four types of restitution orders. § 18-1.3-603(1);

Weeks, ¶ 3. At issue here is the restitution order set forth in

section 18-1.3-603(1)(b). The version of subsection (1)(b) in effect at

the time Plake was sentenced required an order of conviction to

1 The current version of Crim. P. 35(b) permits a court to reduce a

sentence within 126 days of the imposition of a sentence.

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include “[a]n order that the defendant is obligated to pay restitution,

but that the specific amount of restitution shall be determined

within the ninety 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.” § 18-1.3-603(1)(b),

C.R.S. 2011.2

¶ 16 In Sanoff v. People, 187 P.3d 576 (Colo. 2008), the supreme

court concluded that, in enacting section 18-1.3-603(1)(b), “the

General Assembly has made clear its intent that the amount of the

defendant’s [restitution] liability no longer be a required component

of a final judgment of conviction” and that “an order of conviction

need only include a determination whether the defendant is

obligated to pay restitution, without designation of the amount.” Id.

at 578. Accordingly, the court recognized that section 18-1.3-

603(1)(b) creates two separate, final, appealable orders: a

sentencing order assigning liability for restitution but reserving the

determination of the amount, and a subsequent order setting the

2 The current version of the restitution statute requires the amount

of restitution to be determined within ninety-one days of
sentencing. See § 18-1.3-603(1)(b), C.R.S. 2024.

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amount of restitution for which a defendant is liable. Id. at 578-79;

see also Weeks, ¶ 30 n.9; Tennyson, ¶¶ 17, 20-23.

¶ 17 “[W]hen [a] district court order[s] [a] defendant liable to pay

restitution, the restitution component of the defendant’s sentence

[i]s satisfied” and “[the] sentence, and therefore [the] judgment of

conviction, bec[o]me[s] a final, appealable order upon issuance of

the mittimus.” Sanoff, 187 P.3d at 579; see also Meza v. People,

2018 CO 23, ¶¶ 13-15. And “[the] subsequent determination of the

amount of restitution owed by a defendant, as distinguished from

an order simply finding [the defendant] liable 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.” Sanoff, 187 P.3d at 578.

¶ 18 In Weeks, the supreme court clarified that the subsequent

order fixing the amount of restitution must be entered within

ninety-one days after entry of the order of conviction or within

whatever extended timeframe the court sets based on an express

finding of good cause for a continuance, which must be made before

the deadline expires. Weeks, ¶¶ 4-5, 7-8, 39, 45; see also

Tennyson, ¶ 28. A court lacks the authority to fix a restitution

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amount after the deadline in the absence of this express, timely

good cause finding. Weeks, ¶ 45.

IV. Analysis

¶ 19 In his opening brief, Plake raises various challenges to the

postconviction court’s order denying his Crim. P. 35(a) motion and

to the restitution order itself. We address and reject his assertions.

¶ 20 First, to the extent Plake asks us to affirm the postconviction

court’s September 19, 2022, ruling that the sentencing court was

without jurisdiction to order restitution, we decline to do so. That

ruling wasn’t final and was reconsidered, so we lack jurisdiction to

review it. See People v. Thomas, 116 P.3d 1284, 1285 (Colo. App.

2005) (“A final appealable order is one that effectively terminates

the proceedings in the court below and is a jurisdictional

prerequisite to appellate review.”).

¶ 21 Next, we reject Plake’s assertion that the district court lacked

jurisdiction to enter a restitution order when it did so on October

17, 2012. Again, an order addressing liability for restitution is a

component of a defendant’s sentence and the judgment of

conviction. See Crim. P. 32(b)(3)(I); Weeks, ¶¶ 8, 46; Meza, ¶¶ 10,

14; Sanoff, 187 P.3d at 578-79. The entry of one of the four

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statutorily enumerated orders of restitution “satisf[ies] the

restitution component of a judgment of conviction, rendering it a

final judgment for purposes of appeal.” Meza, ¶ 14; see also Sanoff,

187 P.3d at 578-79.

¶ 22 For purposes of section 18-1.3-603(1)(b), an order assigning

restitution liability but deferring the determination of the restitution

amount is the required component of a final judgment of conviction.

See Sanoff, 187 P.3d at 578-79; Tennyson, ¶ 21. Accordingly, the

district court’s failure to enter a restitution liability order at

sentencing created a sentence that was not authorized by law but

which was subject to correction at any time. See Crim. P. 35(a);

Tennyson, ¶ 31; Bowerman, 258 P.3d at 316; People v. Dunlap, 222

P.3d 364, 368 (Colo. App. 2009). The illegality in Plake’s sentence

caused by the failure to enter a restitution liability order was

corrected when the court entered its order setting a restitution

amount, which necessarily included a finding that Plake was

obligated to pay restitution. See Sanoff, 187 P.3d at 578.

¶ 23 Plake doesn’t explain why section 18-1.3-603(1)(b)’s ninety-

day deadline applies to the entry of the restitution liability order or

why the expiration of the deadline would divest the court of

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jurisdiction to correct an illegality created by the omission of such

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.”); see also Dunlap,

222 P.3d at 369 (“[N]o time requirement limits jurisdiction under

Crim. P. 35(a).”); People v. White, 179 P.3d 58, 61 (Colo. App. 2007)

(“Because an illegal sentence represents a type of jurisdictional

defect, [a] trial court retain[s] the authority to correct [the] error.”).

¶ 24 To the extent Plake asserts that the court’s error in entering

the order assigning restitution liability required vacating the order

setting the amount of restitution, we aren’t persuaded. See

Tennyson, ¶¶ 2, 30-33 (because the order imposing restitution

liability is a component of a defendant’s sentence and separate from

the order setting the restitution amount, a noncompliant order

setting a restitution amount could not affect the trial court’s duty to

enter the order imposing restitution liability). The second order

contemplated by section 18-1.3-603(1)(b) — the order fixing the

restitution amount — is subject to the statutory ninety-day

deadline. See Weeks, ¶¶ 4-5, 30 n.9, 39; Tennyson, ¶ 32. But, for

the reasons set forth in People v. Babcock, 2023 COA 49, ¶¶ 7-11

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(cert. granted Apr. 8, 2024), we conclude that this deadline isn’t

jurisdictional.

¶ 25 Lastly, Plake argues that the restitution order must be vacated

because the district court’s entry of the order more than ninety

days after sentencing was unlawful. He argues that Tennyson is

distinguishable because that case involved a challenge to the

restitution amount itself and he is instead challenging the court’s

authority to enter the restitution order. We aren’t persuaded.

¶ 26 Contrary to Plake’s assertion, Tennyson addressed whether,

like here, a defendant’s postconviction challenge to the timeliness of

the order setting the restitution amount was cognizable as an illegal

sentence claim subject to correction at any time or as an illegal

manner claim subject to correction within 120 days of sentencing.

See id. at ¶¶ 2, 32-34, 38. Relying on Sanoff, the Tennyson division

concluded that, because the restitution amount is not a part of a

defendant’s sentence, a district court’s failure to follow the

procedure outlined in Weeks by which the amount is determined

implicates the legality of the manner in which the sentence was

imposed, and not the legality of the sentence. Id. at ¶¶ 2, 17, 32-

34, 38.

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¶ 27 We agree with the reasoning in Tennyson and, therefore,

conclude that Plake’s motion was cognizable as a Crim. P. 35(a)

illegal manner claim. See also People v. Mickey, 2023 COA 106, ¶ 3

n.3. As such, because his 2021 motion was filed more than 120

days after his 2012 sentencing, the postconviction court was

required to deny it as time barred.

¶ 28 We decline Plake’s bald request to remand the case to allow

him another opportunity to present more evidence on the issue of

whether the untimely filing of his motion was the result of

excusable neglect. See Crim. P. 45(b)(2); People v. Johnson, 2013

COA 122, ¶¶ 39-41.

V. Disposition

¶ 29 The order is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

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