People v. Bowerman, 09CA0083.
| Decision Date | 02 September 2010 |
| Docket Number | No. 09CA0083.,09CA0083. |
| Citation | 258 P.3d 314 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Charlotte Carmen BOWERMAN, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.Opinion by Judge BERNARD.
Defendant, Charlotte Carmen Bowerman, appeals the district court's order denying her postconviction motion for correction of an illegal sentence. She challenges the amount of restitution that the court had ordered. Focusing only on the claim she raises before us, we affirm, although for reasons different from those relied upon by the district court. See People v. Aarness, 150 P.3d 1271, 1277 (Colo.2006) ().
Defendant was originally charged with class four felony theft, arising out of allegations that she stole items from the victim. As a condition of a plea disposition, defendant pled guilty to one count of providing false information to a pawn broker, a class six felony, and an added count of attempted theft, a class five felony.
The court held a sentencing hearing in November 2006. The prosecution asked the court to order defendant to pay $14,759.48 as restitution. This figure included $7542.74 to be paid to an insurance company to reimburse it for payments to the victim. The remaining $7216.74 was to be paid to the victim to reimburse her for losses that were not covered by the insurance company.
The total amount of restitution was based on the victim's statement that many items were missing, and that defendant must have stolen them. Defendant's counsel contended that defendant did not steal all those items, and that she had only taken property worth about $3000.
The district court sentenced defendant to the custody of the Department of Corrections, but then suspended that sentence on the condition that she comply with the terms of probation. These terms included an order that defendant pay the total amount of restitution requested by the prosecution.
Defendant did not appeal.
In June 2008, defendant filed a motion citing, as its legal basis, Crim. P. 35(a) and 35(c). She alleged that her sentence was illegal. She claimed that the trial court did not require proof that her conduct was the proximate cause of the loss of all the items upon which the restitution order was based. The crux of this argument was as follows:
The transcript of the restitution “hearing” reveals that the Court merely listened to and accepted as proven the allegations of the victim concerning her opinion as to what [defendant] was responsible for. No other testimony was taken. The victim was not placed under oath, nor was cross-examination allowed. No exhibits were admitted. Indeed, the basis for the victim's assumptions as to [defendant's] responsibility for more than [an American Contemporary] “vacuum cleaner, Kodak camera and a Fantom [vacuum] cleaner” was nothing more than unsubstantiated hearsay, for which no declarant was named (the victim did not observe any of the alleged thefts).
Defendant also contended that (1) the process followed at the restitution hearing was “legally and constitutionally inadequate” to determine restitution; (2) the restitution proceeding denied defendant her due process and equal protection rights; and (3) the restitution order was arbitrary and capricious, constituting an abuse of discretion.
The prosecution filed a written response, which asked the court to deny defendant's motion. The court denied the motion in a written order issued in November 2008. Part of the order stated:
[Defendant] did not question or challenge the procedure at the sentencing hearing. [Defendant] did not request that statements be taken under oath. [Defendant] did not request a right to cross-examine [the victim]. [Defendant] did not offer any exhibits. [The court] did permit [defendant] and defense counsel to address the restitution issue and imposed no limits or restrictions on them. Any objection to the procedure followed has been waived.
Defendant raises one argument on appeal, and it is narrower than those she made below. Here, she contends only that the court's restitution order constituted an “illegal” sentence because the prosecution did not prove, by a preponderance of the evidence, that she stole items beyond those originally listed in the information. As a result, she continues, her sentence was “not authorized by law.” Therefore, she maintains, we should reverse the restitution order, and remand to the trial court to enter a restitution order based only on the specified items that she admitted stealing.
Crim. P. 35(a) (Correction of Illegal Sentence) states:
The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
A division of this court discussed this language in People v. Wenzinger, 155 P.3d 415, 418 (Colo.App.2006). Relying on supreme court precedent interpreting a prior version of Crim. P. 35(a), the division held that a sentence is “not authorized by law” if it is inconsistent with the legislatively established statutory scheme, and “imposed without jurisdiction” if it is within the statutory range, but it was “otherwise imposed in excess of the court's subject matter jurisdiction.” Wenzinger, 155 P.3d at 418.
The Wenzinger division recognized another concept that is relevant to our discussion. Crim. P. 35(a) authorizes courts to determine whether a sentence was imposed in an illegal manner.
Although claims that a sentence was not authorized by law or was imposed without jurisdiction may be raised at any time, a claim that a sentence was imposed in an illegal manner must be raised within 120 days of the imposition of the sentence. Crim. P. 35(a), (b); Wenzinger, 155 P.3d at 418–19. A sentence may be imposed in an illegal manner “when the trial court ignores essential procedural rights or statutory considerations in forming the sentence.” 15 Robert J. Dieter & Nancy J. Lichtenstein, Colorado Practice Series, Criminal Practice and Procedure § 21.10 n. 10 (2d ed. 2004).
Sentences imposed in an illegal manner include those where a defendant was denied his right to allocution, see People v. Garcia, 752 P.2d 570, 576 (Colo.1988); where the court did not consider factors established by statute, see People v. Walker, 724 P.2d 666, 669 (Colo.1986); where the defendant was not given the complete range of testing required by statute before being sentenced as a sex offender, People v. Collier, 151 P.3d 668, 672 (Colo.App.2006); or where the manner of imposing a sentence in a sexual assault case resulted in a denial of procedural due process, People v. Sisson, 179 P.3d 193, 196 (Colo.App.2007). See also State v. Olson, 115 Conn.App. 806, 811, 973 A.2d 1284, 1287 (2009) ().
Section 18–1.3–603(1), C.R.S.2009, mandates that, after every felony conviction, trial courts must answer the question whether the defendant should pay the victim restitution. The failure to make this necessary finding results in an illegal sentence. People v. Smith, 121 P.3d 243, 251 (Colo.App.2005); see also People v. Dunlap, 222 P.3d 364, 368 (Colo.App.2009) ().
Several divisions of this court have held that a sentence may be illegal because of other issues relating to restitution. People v. Brooks, 250 P.3d 771, 773 (Colo.App.2010) (); People v. Pagan, 165 P.3d 724, 731–32 (Colo.App.2006) (); People v. Wright, 18 P.3d 816, 818–19 (Colo.App.2000) ().
Divisions of this court have also concluded that certain restitution orders did not constitute illegal sentences. People v. Suttmiller, 240 P.3d 504, 506 (Colo.App.2010) (); People v. McCann, 122 P.3d 1085, 1088 (Colo.App.2005) ().
Based on the foregoing authority, we conclude that defendant's claim does not raise the issues whether the restitution order was “authorized by law” or “imposed without jurisdiction,” as those terms were interpreted in Wenzinger, an interpretation with which we agree.
First, the restitution order was within the legislatively established statutory scheme. See § 18–1–603(1). Unlike the cases, cited above, in which the divisions concluded that restitution orders constituted illegal sentences, the trial court here imposed a restitution order at the time of sentencing; it did not subsequently increase...
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