Full Opinion

25CA0209 Peo v Fournier 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA0209 El Paso County District Court No. 13CR1027 Honorable Robin Chittum, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Zachary Justin Fournier, Defendant-Appellant. ORDER AFFIRMED Division IV Opinion by JUDGE LIPINSKY Harris and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, Brock J. Swanson, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Zachary Justin Fournier, Pro Se ¶1 Zachary Justin Fournier appeals the district court’s order denying his November 2024 postconviction motion. We affirm. I. Background ¶2 In March 2013, Fournier was charged with five counts stemming from a domestic violence incident: (1) first degree assault; (2) a crime of violence count alleging that Fournier used a deadly weapon during the commission of the first degree assault; (3) a crime of violence count alleging that Fournier caused serious bodily injury to the victim during the commission of the first degree assault; (4) felony menacing; and (5) misdemeanor third degree assault. He was also charged with six habitual criminal counts. ¶3 In January 2014, the jury acquitted Fournier of first degree assault and found him guilty of the lesser offense of second degree assault – causing bodily injury by means of a deadly weapon, as well as the menacing and third degree assault counts. The trial court adjudicated him a habitual criminal and imposed an aggregate thirty-two-year sentence in the custody of the Department of Corrections. The mittimus indicated that Fournier was convicted on the two crime of violence counts. 1 ¶4 A division of this court affirmed the judgment of conviction. People v. Fournier, slip op. at ¶ 11 (Colo. App. No. 14CA1222, Jan. 21, 2016) (not published pursuant to C.A.R. 35(f)). The mandate issued in August 2016. ¶5 Fournier filed a pro se Crim. P. 35(c) motion the next year. The postconviction court issued an order denying most of his claims and ordering the prosecution to respond to the remaining issues. After the prosecution responded, the court issued an order denying the remaining claims. ¶6 A division of this court reversed the order and remanded the case for the court to comply with the procedures of Crim. P. 35(c)(3)(V) by “refer[ring] a copy of Fournier’s motion to the Public Defender.” See People v. Fournier, (Colo. App. No. 18CA1162, Nov. 21, 2019) (not published pursuant to C.A.R. 35(e)). ¶7 After appointed counsel filed an amended Crim. P. 35(c) motion, the postconviction court again entered an order denying Fournier’s claims. A division of this court affirmed the order. See People v. Fournier, (Colo. App. No. 22CA1166, Mar. 21, 2024) (not published pursuant to C.A.R. 35(e)). 2 ¶8 In May 2024, Fournier filed a Crim. P. 35(a) motion challenging the constitutionality of his sentence and requesting a proportionality review. The postconviction court construed his motion as cognizable under Crim. P. 35(c) and summarily denied it as procedurally barred. ¶9 Six months later, Fournier filed the underlying Crim. P. 35(a) motion, in which he challenged the legality and constitutionality of the two crime of violence counts that were included on his mittimus and requested that he be resentenced without the crime of violence sentence enhancer. ¶ 10 In a written order, the postconviction court agreed that the charged crime of violence counts had not been proved and were erroneously included on the mittimus. The court said that the mittimus would be modified to remove those counts. But the court found that the modification did not implicate Fournier’s sentences because the trial court did not aggravate his sentences based on the crime of violence sentence enhancer. II. Analysis ¶ 11 On appeal, Fournier maintains his challenges to the legality and constitutionality of the crime of violence counts and his 3 argument that his sentences were illegally enhanced under the crime of violence statute. ¶ 12 We conclude that the postconviction court correctly concluded that the inclusion of the crime of violence counts on the mittimus was error and the court properly modified the mittimus to correct the mistake. See Crim. P. 36 (A court may correct “[c]lerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from oversight or omission . . . at any time.”); People v. Wood, 2019 CO 7, ¶ 43, 433 P.3d 585, 595 (A correction to the mittimus under Crim. P. 36 is the proper remedy when the “error in the original mittimus was clerical in nature, not the result of judicial consideration or discretion.”). ¶ 13 To the extent Fournier continues to challenge the legality and constitutionality of the crime of violence counts, that challenge would be cognizable under Crim. P. 35(c)(2)(I) and would fail as untimely and successive. See § 16-5-402(1), C.R.S. 2026 (providing that a defendant must file a Crim. P. 35(c) motion within three years of the defendant’s conviction for an offense other than a class 1 felony); Crim. P. 35(c)(3)(IV); People v. Prendergast, 2024 COA 127, ¶ 28, 564 P.3d 1084, 1089 (explaining that a conviction 4 becomes final when the mandate is issued following a direct appeal); see also Crim. P. 35(c)(3)(VI), (VII) (providing that a court must deny a Crim. P. 35(c) claim that was, or could have been, raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant). ¶ 14 Correcting the mittimus did not affect the legality of Fournier’s sentence. An illegal sentence is one that is not authorized by law because it fails to comply with statutory requirements. See Tennyson v. People, 2025 CO 31, ¶ 25, 569 P.3d 815, 823. Fournier’s sentence complied with the governing statutes. The jury found him guilty of second degree assault committed by means of a deadly weapon. § 18-3-203(1)(b), C.R.S. 2026. Because that offense requires the use of a deadly weapon, it is an extraordinary risk crime that raised the maximum of the presumptive range for this class 4 felony from six to eight years. § 18-3-203(2)(b); § 18-1.3-401(1)(a)(V)(A), (10)(a), (10)(b)(XII), C.R.S. 2026; see People v. Banks, 9 P.3d 1125, 1128-32 (Colo. 2000). As a habitual criminal, Fournier was subject to four times the maximum of the presumptive range — thirty-two years. § 18-1.3-801(2)(a)(I)(A), C.R.S. 2026. That is the sentence the trial court imposed. 5 ¶ 15 Fournier’s reliance on the crime of violence statute is therefore misplaced. The separately charged crime of violence counts — now removed from the mittimus — played no role in his sentence, which rested on the extraordinary risk maximum under the habitual criminal statute. See People v. Lowe, 2020 COA 116, ¶ 58, 486 P.3d 397, 410 (“[T]he habitual criminal statute preempts the crime of violence statute only in regards to imposing the greater sentence on the defendant” and does not preempt the crime of violence statute’s “mandatory consecutive sentencing provision.”). And because the extraordinary risk designation flows from the deadly weapon element that the jury necessarily found in convicting Fournier of second degree assault, no judicially found fact increased his sentence. His reliance on the jury finding requirement of section 18-1.3-406(4), C.R.S. 2026, and Apprendi v. New Jersey, 530 U.S. 466 (2000), is therefore unavailing. ¶ 16 Next, Fournier invokes his right to appellate review of the propriety of his sentence under section 18-1-409(1), C.R.S. 2026. However, his request is untimely. See § 18-1-409(2) (“No appellate court shall review any sentence which is imposed unless, within forty-nine days from the date of the imposition of sentence, a 6 written notice is filed in the trial court to the effect that review of the sentence will be sought . . . .”); People v. Lehmkuhl, 2013 COA 98, ¶ 22, 369 P.3d 635, 638-39 (“[C]hallenges to the propriety of a sentence for a felony ordinarily must be brought on direct appeal.”). In any event, because Fournier’s sentence was mandatory, there is no lesser penalty available for us to substitute. See § 18-1-409(3). ¶ 17 Finally, Fournier raises several claims for the first time on appeal: (1) the lack of a jury finding on the crime of violence sentence enhancer counts, as required by section 18-1.3-406(4), impaired the jury’s consideration of the elements of second degree assault; (2) the trial court should have allowed the jury to exercise its nullification power with knowledge of the consequences of his sentence; (3) prosecutorial bias and impropriety tainted the sentencing proceeding; and (4) the trial court’s restitution order is unconstitutional. ¶ 18 We do not address arguments asserted for the first time on appeal. See People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996). In any event, these are challenges to Fournier’s convictions that are cognizable only under Crim. P. 35(c)(2)(I), and they are untimely and successive for the reasons stated above. See 7 § 16-5-402(1); Crim. P. 35(c)(3)(IV), (VI), (VII). To the extent Fournier contends that the jury was entitled to be instructed on the sentencing consequences of its verdict, he had no such right. See Shannon v. United States, 512 U.S. 573, 576 (1994) (noting “the well-established principle that a jury is to base its verdict on the evidence before it, without regard to the possible consequences of the verdict”). III. Disposition ¶ 19 The order is affirmed. JUDGE HARRIS and JUDGE GOMEZ concur. 8