The People of the State of Colorado v. Tommy Rae Mickey

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                SUMMARY
                                                           November 9, 2023

                               

No. 21CA1407, People v. Mickey — Criminal Law — Sentencing
— Restitution — Assessment of Restitution — Procedural
Deadlines — “Good Cause” to Extend Trial Court’s Deadline;
Criminal Procedure — Harmless Error

     A division of the court of appeals, for the first time, holds that

the error in entering a restitution order after the expiration of the

statutory ninety-one-day period, without an express timely finding

of good cause pursuant to People v. Weeks, 

, cannot be

harmless.
COLORADO COURT OF APPEALS                                         

Court of Appeals No. 21CA1407
Mesa County District Court No. 20CR599
Honorable Gretchen B. Larson, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tommy Rae Mickey,

Defendant-Appellant.


                               ORDER VACATED

                                 Division VII
                           Opinion by JUDGE TOW
                       Schock and Graham*, JJ., concur

                         Announced November 9, 2023


Philip J. Weiser, Attorney General, Frank R. Lawson, 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. 2023.
¶1    Defendant, Tommy Rae Mickey, appeals the district court’s

 order requiring him to pay restitution. We vacate the order. In so

 doing, we conclude that the error in entering a restitution order

 after the expiration of the statutory ninety-one-day period, without

 an express, timely finding of good cause pursuant to People v.

 Weeks, 

, cannot be harmless.

                           I.    Background

¶2    Mickey pleaded guilty to second degree burglary and vehicular

 eluding.1 On October 7, 2020, he was sentenced to six years in the

 custody of the Colorado Department of Corrections. On June 29,

 2021, more than 250 days after the sentencing hearing, the district

 court ordered Mickey to pay restitution for unrecovered stolen

 property. The district court did not make an express finding that

 there was good cause to determine restitution more than ninety-one

 days after the sentencing hearing.2 See § 18-1.3-603(1)(b), C.R.S.

 2023.




 1 The plea was part of a global resolution of several cases filed

 against Mickey.
 2 The district court was acting without the benefit of the supreme

 court’s decision in People v. Weeks, 

.

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                          II.   Vacatur and Error

¶3       Mickey argues that the restitution order was untimely under

 section 18-1.3-603(1)(b) and must be vacated.3 We agree.

¶4       We review de novo issues of statutory interpretation. Weeks,

 ¶ 24.

¶5       Section 18-1.3-603(1)(b) requires courts to determine

 restitution within ninety-one days after sentencing, unless — before

 the deadline expires — the court expressly finds good cause for

 extending the deadline. Weeks, ¶ 5. The district court ordered

 restitution after the ninety-one-day deadline and did not find good

 cause for doing so. This was error.

¶6       While the People concede this point, they argue vacatur is not

 required because any error was harmless. Another division of this

 court recently rejected a similar argument, holding that the




 3 Although Mickey did not make this argument to the district court,

 an illegal manner challenge under Crim. P. 35(a) — which is what
 Mickey’s claim would be if this were not a direct appeal, see People
 v. Tennyson, 

, ¶ 2 (cert. granted Sept. 11, 2023) — does
 not need to be preserved. As our supreme court has said, “It makes
 no sense to require preservation of a claim on direct appeal when
 an identical claim could be raised without preservation after the
 conclusion of the direct appeal.” Fransua v. People, 

.

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 supreme court did not conduct a harmless error analysis in Weeks

 and that we are bound by that precedent.4 People v. Roberson,

 

, ¶ 32 (first citing Weeks, ¶¶ 14-18; and then citing

 People v. Kern, 

, ¶ 42). We agree with Roberson, but

 we go one step further to point out that a harmless error analysis

 would be futile when reviewing a restitution order entered without

 authority.

¶7    In criminal cases, an error is harmless if it “does not affect

 substantial rights” of the parties. Crim. P. 52(a). The error here

 was not merely a delay, as the People argue. It was the entry of an

 order that obliged Mickey to pay restitution in excess of $15,000.

 We simply cannot see how such an order — entered without

 authority — can be said to have not affected Mickey’s substantial

 rights. Indeed, the order is, by operation of law, “a final civil

 judgment,” § 18-1.3-603(4)(a)(I), meaning Mickey is now subject to

 collections efforts by the State.


 4 We are not persuaded by the People’s argument that Weeks

 impliedly conducted a harmless error analysis simply because it
 mentioned that the restitution order was entered a year after the
 sentencing hearing over defense objection. Rather, the supreme
 court expressly said that because the trial court violated the
 restitution deadline, vacatur was correct. Weeks, ¶ 47.

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¶8    The People correctly point out that a lack of authority is not a

 jurisdictional defect. See People v. Babcock, 

.

 This distinction is important because nonjurisdictional timelines

 can be waived. Id. at ¶ 8. But absent such a waiver — and the

 People do not argue that a waiver occurred here — the deadline,

 and its authority-divesting effect, remains. Thus, even though the

 district court retained jurisdiction, the loss of authority renders the

 order erroneous and not harmless.

¶9    The People offer several cases to persuade us otherwise, but

 each is distinguishable — either because the relevant party

 voluntarily waived their statutory rights; the court did not expressly

 lack authority to act; or the case involved specialized, noncriminal

 proceedings. See People in Interest of Lynch, 

 (Colo. 1989) (holding court did not lose jurisdiction over mental

 health proceeding because the appellant waived right to have a

 hearing held within ten days of request); People v. Heimann, 

 (Colo. App. 2007) (ruling untimely probation revocation

 did not require reversal because the defendant consented to hearing

 after the statutory deadline); People v. Dominguez, 

 (stating illegal manner claims are reviewable for harmless error


                                    4
  but not ruling that the court exceeded its authority) (cert. granted

  Apr. 11, 2022); McKenna v. Witte, 

 (holding water

  court did not lose jurisdiction because deadline to prepare

  abandonment list was violated).

¶ 10   We also decline the People’s invitation to follow the federal

  model embodied in the Mandatory Victims Restitution Act,

  

(d)(5). We are not aware of any case — and the

  People cite none — holding that the expiration of the deadline in the

  federal statute divests the trial court of the authority to impose

  restitution. In other words, Weeks (or a federal case with a similar

  holding) does not define the impact of violating the federal deadline,

  but it absolutely binds us in dealing with violations of the state

  deadline.

¶ 11   In sum, the district court’s authority to enter restitution was

  not extended or restored by a waiver. Thus, it lacked the authority

  to enter the restitution order — which, by definition, is not

  harmless.5




  5 In light of our resolution of this issue, we need not reach any of

  Mickey’s other challenges.

                                     5
                           III.   Disposition

¶ 12   The order is vacated.

       JUDGE SCHOCK and JUDGE GRAHAM concur.




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