Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Ryan Bonde v. People
Under Section 18-1.3-405 of state law, an offender is entitled to presentence confinement credit, or PSCC, for the period the offender was confined for an offense before sentencing. In People v. Hoecher, the Colorado Supreme Court noted it addressed whether an offender in a community corrections program who is resentenced to the Colorado Department of Corrections is entitled to PSCC for the nonresidential component of the community corrections sentence.
The court explained that it reasoned that a community corrections offender on nonresidential status is not confined for the purposes of PSCC credit under Section 18-1.3-405, but rather, is “free to function in the community in a manner unencumbered by most of the constraints associated with confinement.” The court held that such an offender is not entitled to PSCC upon resentencing to the CDOC.
The state Supreme Court was asked in this case to revisit our decision in Hoecher, not because the legislature has amended the PSCC statute, but because part of Hoecher’s reasoning has been undermined by subsequent amendments to the parole statutes. The court wrote it declined to do so.
It noted its reasoning in Hoecher was ultimately grounded in the plain language of Section 18-1.3-405, which entitles an offender to PSCC for the period the offender has been confined. As it emphasized in that case, the court noted individuals serving a nonresidential component of a community corrections sentence enjoy a wide range of freedoms that are inconsistent with the notion of confinement. Since its decision in that case, the state Supreme Court wrote that nothing has altered the notion of confinement underpinning the PSCC statute or the nature of the freedoms associated with nonresidential status in a community corrections program. The court ultimately declined to disturb its holding in Hoecher that offenders aren’t entitled to PSCC for time served during nonresidential community corrections sentences.
Because Ryan Bonde is not entitled to PSCC for the nonresidential component of his community corrections sentence under Hoecher, the state Supreme Court affirmed the judgment of the Colorado Court of Appeals.
People v. Oscar Ganaway
While conducting an operation to arrest Anthony Veloz at a motel, the police encountered Oscar Ganaway walking toward the motel. An officer asked Ganaway where he was going, and Ganaway pointed to Veloz’s motel room. A detective then asked Ganaway if he could pat him down for weapons, and Ganaway said, “No problem.” During the patdown, the detective found methamphetamine and arrested Ganaway. Ganaway later moved to suppress the seized evidence. The trial court granted the motion, finding that the initial encounter was a seizure, and therefore, the evidence arising from the search must be suppressed. The People appealed the trial court’s order.
The Colorado Supreme Court held that, based on the totality of the circumstances, the initial encounter between the police and Ganaway was not a seizure, meaning it didn’t trigger Fourth Amendment protections. It also held that Ganaway voluntarily consented to the patdown. The court reversed the trial court’s suppression order and remanded the case.
Zachary E. Babcock v. People
In almost every criminal case, the court must consider restitution and enter one of four restitution-related orders upon conviction. Zachary Babcock’s conviction included one such order: The trial court found that he was liable for restitution at sentencing but reserved determining the amount for 91 days. However, because Babcock’s counsel requested that the trial court hold a restitution hearing and proposed a date that was nearly six months after sentencing, the court didn’t order the amount of restitution until after the 91-day deadline. Babcock argued that the Colorado Supreme Court’s decision in People v. Weeks, or alternatively, the jurisdictional nature of the trial court’s deadline, precluded this untimely restitution order.
The state Supreme Court disagreed. It held that Weeks is distinguishable and doesn’t nullify the restitution order in this case. It also held that the trial court’s deadline isn’t jurisdictional. Finally, the court concluded that Babcock’s counsel’s request to set the restitution hearing outside the 91-day deadline constitutes an implied waiver of Babcock’s right to have the trial court determine the amount of restitution within 91 days of conviction.
American Heritage Railways v. Colorado PUC & La Plata County
Pursuant to Section 40-6-115(5) of state law, American Heritage Railways, Inc. and its subsidiary, The Durango & Silverton Narrow Gauge Railroad Company appealed the district court’s decision upholding the Colorado Public Utilities Commission’s order granting relief to La Plata County in this land use dispute between the railroad and the county. The railroad contends that the PUC lacked jurisdiction to interpret the applicable land use provision, Section 30-28-127; the county lacked standing to petition the PUC for the relief it sought; the PUC deprived the railroad of its due process rights in several respects; and the PUC erred in its application of Section 30-28-127
The Colorado Supreme Court concluded that the PUC had jurisdiction to interpret Section 30-28-127, the county had standing to petition the PUC, the PUC didn’t deprive the railroad of its due process rights and the PUC’s application of Section 30-28-127 was just and reasonable and in accordance with the evidence.
The state Supreme Court affirmed the district court’s judgment upholding the PUC’s decision.
People In interest of B.C.B. & B.C.B. v. A.B. & J.S.
This dependency or neglect action, in which the El Paso County Department of Human Services and the guardian ad litem, or GAL, for the child, B.C.B., challenge the Colorado Court of Appeals division’s judgment reversing a dependency or neglect adjudication, required the Colorado Supreme Court to construe Section 19-3-102(1)(g). That statute provides that a child is dependent or neglected if “[t]he child is born affected by alcohol or substance exposure, except when taken as prescribed or recommended and monitored by a licensed health care provider, and the newborn child’s health or welfare is threatened by substance use.”
The state Supreme Court concluded that, contrary to the division majority’s determination, a child is born affected by alcohol or substance exposure within the meaning of Section 19-3-102(1)(g) when, as here, the child tests positive at birth for methamphetamine. This alone, however, doesn’t suffice to establish that the child was dependent or neglected because the statute also requires that the department prove that “the newborn child’s health or welfare is threatened by substance use,” according to the Colorado Supreme Court’s opinion.
The department can satisfy this prong of the statute if it shows either that exposure to a particular substance directly threatens a child’s health or welfare, or as a result of a parent’s substance use, the parent would be unable to care for the child properly. Applying this construction of the statute here, the state Supreme Court concluded that sufficient evidence supported the jury’s finding that B.C.B. was dependent or neglected.
The court reversed the judgment of the division.
Darryl Johnson v. People
The Colorado Supreme Court granted certiorari in this case, along with four others, to address questions that have arisen about the operation of Colorado’s restitution statute, following the court’s 2021 decision in People v. Weeks.
Here, a trial court allowed prosecutors to delay the issue of the amount of restitution owed by Darryl Johnson for 91 days after sentencing because the precise amount of restitution owed was unavailable at the time of sentencing, and the parties agreed that the prosecution would provide a restitution amount within 91 days of sentencing.
The prosecution filed a proposed order for a defined amount of restitution on day 91, and the trial court entered its order imposing that amount of restitution that same day. Johnson objected to the amount of restitution and requested a hearing. After several continuances, Johnson argued that the court lacked the authority to enter an order for restitution in light of the state Supreme Court’s opinion in Weeks.
Alternatively, Johnson argued that the amount of restitution owed was available to the prosecution at the time of sentencing, which required the court to set the amount at that time and not later.
The Colorado Supreme Court didn’t reach the merits of either argument, however, because it concluded that Johnson waived both through his actions in the district court proceedings. The court affirmed the division’s opinion, albeit for different reasons.
People v. Jessica Roberson
Jessica Roberson pleaded guilty to one count of forgery and one count of theft and agreed to pay $21,450 in restitution, with “additional restitution” to be determined. Defense counsel confirmed this agreement to the court during the providency hearing. Then at sentencing, Roberson herself told the court that she “most definitely want[ed] to repay the victims.” According to the court opinion, 28 days later, the prosecution filed a proposed order for $62,241.28 in restitution. Roberson’s counsel objected and asked for additional time to review the numbers underlying the proposed amount. The court offered a hearing date outside the 91-day statutory deadline in Section 18-1.3-603(1)(b) to make a final determination of the restitution amount. Roberson’s counsel accepted that date.
The question the Colorado Supreme Court answered is whether Roberson’s acceptance of a hearing date outside the 91-day statutory deadline constituted a voluntary waiver of a statutory right. The court concluded that it did.
Audrey Tennyson v. People
Under Colorado law, with one rare exception, every sentence in a criminal case must include consideration of restitution. Specifically, the Colorado Legislature has mandated that every sentence must include at least one of four statutorily enumerated restitution orders: an order requiring payment of an amount of restitution; an order obligating the defendant to pay restitution but indicating that the amount of restitution will be determined within 91 days or, upon an express finding of good cause, within a longer timeframe set by the trial court; an order, in addition to or in place of an order requiring payment of an amount of restitution, directing the defendant to pay restitution covering the actual costs of future treatment for any victim; or an order stating that no restitution payment is required because no victim suffered a pecuniary loss.
The Colorado Supreme Court reaffirmed that a sentence that fails to include at least one of these four restitution orders violates Section 18-1.3-603(1) and is a sentence not authorized by law that may be corrected at any time.
Because an order entered during a sentencing hearing simply deferring until a later date the matter of restitution in its entirety (i.e., deferring both whether the defendant is liable to pay restitution, and if so, the amount of restitution due) is not one of the orders listed in Subsection (1), a sentence that addresses restitution through such an order is a sentence that is not authorized by law.
This case presented a more nuanced issue, according to the Colorado Supreme Court. Pursuant to Section 18-1.3-603(1)(b) (“subsection (1)(b)”), the district court imposed a sentence that implicitly obligated Audrey Tennyson to pay restitution and postponed the determination of the amount of restitution until a later date. The court, though, subsequently failed to set the amount of restitution within the applicable deadline in Subsection (1)(b) — 90 days or, upon a timely and express finding of good cause, any longer timeframe set by the court.
10 years later, Tennyson brought a Crim. P. 35(a) claim arguing that Tennyson received an illegal sentence that may be corrected at any time and that the only way to correct it was by vacating the restitution order and entering in its place an order specifying that no restitution was due.
The question for the state Supreme Court was whether Tennyson’s Crim. P. 35(a) claim is an illegal sentence claim challenging the legality of the sentence or an illegal manner claim challenging the legality of the manner in which the sentence was imposed.
The answer is consequential, the high court noted. If the district court’s failure to comply with the Subsection (1)(b) deadline rendered Tennyson’s sentence illegal, the court could correct it at any time. But if the court’s violation of the Subsection (1)(b) deadline meant that Tennyson’s sentence was imposed in an illegal manner, the court could only correct it within 120 days after the sentence was imposed. To resolve the question, the state Supreme Court noted it must review both its Crim. P. 35(a) jurisprudence and its restitution jurisprudence.
First, in People v. Baker in 2019, the court was called upon to decide whether a claim seeking more presentence confinement credit than originally granted was a claim that the prison sentence imposed was not authorized by law and was thus illegal under Crim. 6 P. 35(a). It held that it could not be an illegal sentence claim because PSCC is not a component of a sentence. It acknowledged, however, that a claim challenging the trial court’s calculation of PSCC could be brought pursuant to Crim. P. 35(a) as an illegal manner claim.
Second, in Sanoff v. People, the court held that a restitution order issued at sentencing pursuant to Subsection (1)(b) that merely required the defendant to pay restitution and indicated that the amount due would be determined later sufficed to satisfy the restitution component of the sentence. The court reasoned that, by express legislative action, a subsequent determination of the amount of restitution as distinguished from an order simply finding the defendant liable to pay restitution, was severed from the meaning of the term “sentence,” as contemplated by Crim. P. 32, and therefore from the conviction.
Guided by Sanoff, the Colorado Supreme Court concluded that the order setting the amount of restitution owed by Tennyson is not part of the sentence or of Tennyson’s conviction. And guided by Baker, the court concluded that Tennyson’s Crim. P. 35(a) claim challenging the timeliness of the order setting the amount of restitution is an illegal manner claim, not an illegal sentence claim. As such, Tennyson was required to bring it within 120 days after the sentence was imposed. Because Tennyson didn’t, Tennyson’s Crim. P. 35(a) claim is time-barred. And because the Colorado Court of Appeals reached the same conclusion, the high court affirmed its judgment.
Shaun Snow v. People
The Colorado Supreme Court granted certiorari in this case primarily to consider whether a Crim. P. 35(a) challenge regarding a post-sentencing order setting the amount of restitution is cognizable as an illegal sentence claim or an illegal manner claim.
The answer matters: Although a trial court may correct a sentence not authorized by law or imposed without jurisdiction at any time, it may correct a sentence imposed in an illegal manner only within 126 days after the sentence is imposed. A division of the Colorado Court of Appeals ruled that the Crim. P. 35(a) claim brought by Shaun Snow was an illegal manner claim that was time-barred. But the Colorado Supreme Court agreed with Snow that this was an error.
At the sentencing hearing, the district court deferred the issue of restitution in its entirety for 60 days. Because, with one anomalous exception not relevant here, restitution is a component of every sentence, and because deferring the issue of restitution in its entirety at a sentencing hearing is not one of the restitution orders authorized by Section 18-1.3-603(1), the state Supreme Court found that Snow was correct that his sentence was not authorized by law.
But that begs the question of the appropriate remedy to correct Snow’s illegal sentence. The court noted it agreed with Snow on this front as well.
The court stood firmly by its decision in People v. Weeks. It concluded that the untimely restitution order entered by the district court after sentencing must be vacated.
Because the division erred in upholding the post-sentencing restitution order, it reversed. The state Supreme Court remanded with instructions to return the case to the district court so that it may enter an order reflecting that Snow owes no restitution.
Application for Water Rights Town of Firestone v. BCL Colorado et al.
The Town of Firestone challenged an order and decree of the District Court for Water Division 1 that dismissed without prejudice three of five claims for groundwater well fields from Firestone’s application for conditional groundwater rights and its accompanying augmentation plan.
Firestone contended that the water court misconstrued the contours of the reasonably accurate standard the Colorado Supreme Court previously articulated in 2005 in City of Aurora ex rel. Util. Enter. v. Colo. State Engineer; erred by declining to retain jurisdiction so Firestone could demonstrate non-injury at a later date; erred by allowing the St. Vrain Sanitation District to contest, contrary to a prior conditional stipulation, whether Firestone had met its burden of showing that the well fields wouldn’t cause injury; and clearly erred in some of its material findings of fact.
The state Supreme Court concluded that a water court must evaluate an application for conditional groundwater rights and an accompanying augmentation plan on a case-by-case basis to determine whether the proposed water use would injure those with vested, senior water rights. If an applicant fails to meet its burden of showing that the proposed use wouldn’t cause injury, then a water court acts within its authority by rejecting the augmentation plan and dismissing the application for conditional groundwater rights based on the particular facts before it.
The high court also concluded that the water court didn’t err in deciding that Firestone failed to meet its burden of showing that its depletions in the well fields at issue wouldn’t injure those with vested, senior water rights in St. Vrain Creek. The water court also correctly declined to retain jurisdiction over Firestone’s application because Firestone sought to delay its burden of demonstrating non-injury until after its conditional groundwater rights had been approved. And the water court likewise didn’t abuse its discretion, under the specific circumstances in this case, when it allowed an opposer to contest a conditional stipulation to a question of law from a court filing. Lastly, it didn’t err by finding that Firestone’s proposed well locations weren’t sufficiently specific to allow the town to calculate reasonably accurate estimates of lagged depletions.
The state Supreme Court affirmed the water court’s order partially granting and partially denying St. Vrain’s motion to dismiss and its findings of fact, conclusions of law and decree regarding Firestone’s application.