illegal manner claim in Colorado

2025A challenge to the procedure used to reach a restitution amount is an illegal manner claim, not an illegal sentence claim.2 See Bowerman, 258 P.3d at 317 (the claim that the prosecution failed to prove that the defendant proximately caused certain losses was an illegal manner claim when the defendant argued “that the 2 We recognize that the supreme court has noted, as Huntley points out, that illegal sentence claims can encompass a wide range of different factual circumstances, including when “the restitution imposed was either not permitted or was in the wrong amount.” Hunsaker v. People, 202

2025See People v. Perez, 2024 COA 94, ¶ 51 . 17 entry of an untimely restitution order, in violation of the statutory deadline, would certainly constitute an illegal manner claim, divisions of this court have also held that an illegal manner claim arose when the defendant argued “that the [district] court did not comply with one or more of the statutory and procedural considerations governing restitution hearings.” People v. Bowerman, 258 P.3d 314, 317 (Colo. App. 2010).

2026Tennyson v. People, 2025 CO 31 ¶ 25 (quoting Crim.

2026See Tennyson v. People, 2025 CO 31 , ¶ 7 (the trial court’s order setting the amount of restitution is not part of the sentence or judgment of conviction; thus, a challenge to its timeliness is an illegal manner claim under Crim. P. 35(a)); see also People v. Martinez Rubier, 2024 COA 67 , ¶¶ 22-23 (a defendant’s challenge to the trial court’s sua sponte order granting the prosecution an extension of time to file restitution information falls under Crim. P. 35(a) and does not require preservation).

2026See People v. Dominguez, 2021 COA 76, ¶ 12 (reviewing an illegal manner claim for harmless error).

2025See People v. Dominguez, 2021 COA 76, ¶ 12 (reviewing an illegal manner claim for harmless error) (cert. granted Apr. 11, 2022). ¶ 26 We agree that the issue here implicates the principles outlined in Tennyson regarding illegal manner claims.

2025See People v. Martinez Rubier, 2024 COA 67 , ¶ 23 (no preservation requirements for either an illegal sentence or illegal manner claim); Fransua v. People, 2019 CO 96, ¶ 13 (“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.”) ¶9 We review de novo the legality of a sentence and questions of statutory or procedural interpretation.

2024As 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, 2019 CO 96, ¶ 13 , 451 P.3d 1208 . 4We 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.

2025A restitution order under section 23 18-1.3-603(1)(b), C.R.S. 2025, “allows a trial court, at or before sentencing, ‘to merely order that the defendant be obligated to pay restitution and postpone a determination of the specific amount of restitution.’” Id. at ¶ 41 (quoting Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008)).

2025A. Standard of Review ¶20 Subject to constitutional limitations, "it is the prerogative of the legislature to . . . prescribe sentences." Sanoff , 187 P.3d at 577 .

2026“In weighing whether a trial court’s violation of a statutory deadline requires reversal of the defendant’s conviction, we consider the gravity of the court’s deviation from the statutory provisions, ‘including a consideration of due process concerns,’ and any prejudice to the defendant caused by the deviation.” Martinez Rubier, ¶ 48 (quoting People in Interest of Lynch, 783 P.2d 848, 852 (Colo. 1989)). 11 ¶ 20 Here, the prosecution submitted the restitution information twenty-eight days after sentencing.

2025See People v. Swainson, 674 P.2d 984, 986 (Colo. App. 1983), rev’d on other grounds, 713 P.2d 479 , 480 (Colo. 1986). ¶ 58 An illegal manner claim must be filed “within the time provided [in Crim. P. 35(b)] for the reduction of sentence.” Crim. P. 35(a).

2025See People v. Swainson, 674 P.2d 984, 986 (Colo. App. 1983), rev’d on other grounds, 713 P.2d 479 , 480 (Colo. 1986). ¶ 58 An illegal manner claim must be filed “within the time provided [in Crim. P. 35(b)] for the reduction of sentence.” Crim. P. 35(a).

2025See People v. Perez, 2024 COA 94, ¶ 51 . 17 entry of an untimely restitution order, in violation of the statutory deadline, would certainly constitute an illegal manner claim, divisions of this court have also held that an illegal manner claim arose when the defendant argued “that the [district] court did not comply with one or more of the statutory and procedural considerations governing restitution hearings.” People v. Bowerman, 258 P.3d 314, 317 (Colo. App. 2010).

2025This is an important 22 distinction “because an illegal manner claim is subject to a time limitation, but an illegal sentence claim is not.” Id. at ¶ 30. ¶ 53 A sentence is illegal if it “is not authorized by law because it fails to comply in full with statutory requirements.” Id. at ¶ 25; see, e.g., Downing v. People, 895 P.2d 1046, 1049-50 (Colo. 1995) (resentencing to a longer term than originally imposed in violation of a statutory prohibition is illegal); People v. White, 179 P.3d 58, 60-61 (Colo. App. 2007) (a sentence imposed to be served concurrently, when the General Assembly required

2025See People v. Knoeppchen, 2019 COA 34, ¶¶ 7, 27 (considering the substance of the defendant’s postconviction challenge to the restitution order to conclude that his challenge was cognizable as an illegal manner claim), overruled on other grounds by Weeks, ¶ 47 n.16.

2025Dieter, Colorado Practice Series: Criminal Practice and Procedure § 21.10 n.10 (2d ed. 2004)); see, e.g., People v. Sisson, 179 P.3d 193, 196 (Colo. App. 2007) (a claim of denial of procedural due process is an illegal manner claim). ¶ 55 As part of its sentencing prerogative, the “General Assembly has long required that every criminal sentence reflect consideration of restitution.” Tennyson, ¶ 20.

2025Dieter, Colorado Practice Series: Criminal Practice and Procedure § 21.10 n.10 (2d ed. 2004)); see, e.g., People v. Sisson, 179 P.3d 193, 196 (Colo. App. 2007) (a claim of denial of procedural due process is an illegal manner claim). ¶ 55 As part of its sentencing prerogative, the “General Assembly has long required that every criminal sentence reflect consideration of restitution.” Tennyson, ¶ 20.

2025This is an important 22 distinction “because an illegal manner claim is subject to a time limitation, but an illegal sentence claim is not.” Id. at ¶ 30. ¶ 53 A sentence is illegal if it “is not authorized by law because it fails to comply in full with statutory requirements.” Id. at ¶ 25; see, e.g., Downing v. People, 895 P.2d 1046, 1049-50 (Colo. 1995) (resentencing to a longer term than originally imposed in violation of a statutory prohibition is illegal); People v. White, 179 P.3d 58, 60-61 (Colo. App. 2007) (a sentence imposed to be served concurrently, when the General Assembly required

2025See People v. Collier, 151 P.3d 668, 673 (Colo. App. 2006) (noting that a defendant’s illegal manner claim was time barred because it wasn’t asserted within the then-governing 120-day deadline). ¶ 13 The legality of a sentence is a question of law that we review de novo.

2025See People v. Collier, 151 P.3d 668, 673 (Colo. App. 2006) (noting that a defendant’s illegal manner claim was time barred because it wasn’t asserted within the then-governing 120-day deadline). ¶ 13 The legality of a sentence is a question of law that we review de novo.

2024See Crim. P. 35(a) (noting that an illegal sentence claim seeks “correct[ion] of a sentence that was not authorized by law or that was imposed without jurisdiction”); see also id. (noting that the court “may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence”). 5 ¶ 13 But Medina is not appealing the denial of a postconviction motion.

2024See also People v. Walker, 724 P.2d 666, 669 (Colo. 1986) (a court may, in its discretion, find extraordinary aggravating circumstances based on the character and record of the offender). ¶8 To the extent Buccheri’s claim could be construed as an illegal manner claim because it asserts procedural flaws in the sentencing process, it’s untimely because he didn’t file his motion within 126 days after the court imposed his sentence.

2019In other words, he claims the district court “ignore[d] essential procedural rights or statutory considerations.” Bowerman, 258 P.3d at 316 (quoting Dieter & Lichtenstein, § 21.10 n.10); see also James v. United States, 70 F. App’x 112, 113 (4th Cir. 2003) (treating an assertion that the sentencing court failed to establish the amount of restitution within ninety days as an illegal manner claim under the 1987 version of Rule 35(a) of the Federal Rules of Criminal Procedure — which was identical to the 2004 version of Colorado’s rule at issue in Rockwell).