23CA0353 Peo v Pike 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0353
El Paso County District Court No. 10CR2483
Honorable Laura N. Findorff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tnias Dmitri Pike,
Defendant-Appellant.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE YUN
Moultrie and Davidson*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Tnias Dmitri Pike, Pro Se
*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
¶ 1 Tnias Dmitri Pike appeals the postconviction court’s order
denying his Crim. P. 35(a) motion for postconviction relief without a
hearing. We affirm and remand for the district court to correct the
mittimus.
I. Background
¶ 2 In 2011, Pike pleaded guilty to second degree murder as part
of a global plea agreement. Under this agreement, Pike agreed to
pay restitution for all the counts in the case, including dismissed
counts. The plea agreement provided that the “District Attorney’s
Office will act in good faith to provide correct information
establishing the amount of restitution within 90 days of
sentencing.”
¶ 3 The district court accepted the plea agreement. At a later
hearing, the court sentenced Pike to a total of forty-nine years in
the custody of the Department of Corrections for all of the cases in
the global plea agreement.
¶ 4 Thirty-eight days after Pike was sentenced, the People
submitted a proposed restitution order that individually listed each
victim and their respective amount of restitution. Fifteen days
later, Pike filed an objection to the proposed order and requested
2
discovery. A restitution hearing was initially set for the following
week. But for reasons not in the record, the hearing was vacated
and reset for the next month, ninety-four days after the sentencing
hearing. At the beginning of the hearing, Pike withdrew his
objection to restitution. As a result, the district court vacated the
remaining part of the hearing and entered the People’s proposed
restitution order.
¶ 5 Eleven years later, Pike, appearing pro se, filed motions to
correct an illegal sentence under Crim. P. 35(a) and to withdraw a
guilty plea under Crim. P. 32(d). Pike argued that his sentence was
illegal because the district court issued its restitution order more
than ninety days
1
after he was sentenced, see § 18-1.3-603(1)(b),
C.R.S. 2011, and because the court awarded restitution to what he
claimed were non-victims — the Office of the Staff Judge Advocate,
a hospital, and other medical offices, see § 18-1.3-602(4)(a), C.R.S.
1
The current statutory deadline is ninety-one days. § 18-1.3-
603(1)(b), C.R.S. 2023; see Ch. 208, sec. 112, § 18-1.3-603(2), 2012
Colo. Sess. Laws 867. The postconviction court’s order refers to the
current ninety-one-day deadline even though the statute in effect at
the time of the restitution order provided a ninety-day deadline.
But because the restitution order was entered ninety-four days after
sentencing, this difference has no bearing on the resolution of this
appeal.
3
2023. Pike asserted that these contentions were properly construed
as Crim. P. 35(a) “illegal sentence” claims — that his sentence “was
not authorized by law” and “was imposed without jurisdiction” —
that can be raised “at any time.” And Pike argued that his motion
to withdraw his guilty plea, ordinarily required by Crim. P. 32(d) to
be filed “before sentence is imposed or imposition of sentence is
suspended,” could thereafter be timely filed between when the
postconviction court vacated his purportedly illegal sentence and
imposed a legal one.
¶ 6 The postconviction court denied both motions. Regarding the
Crim. P. 35(a) motion, the court concluded that Pike’s challenge to
the timeliness of the restitution order was an “illegal manner” claim
that needed to be raised within 126 days
2
of sentencing, see
Crim. P. 35(a), (b), and, thus, was itself untimely. The court ruled
that Pike’s contention that non-victims were awarded restitution
2
The version of Crim. P. 35 in effect when Pike was convicted
required an “illegal manner” claim to be brought within 120 days
from the date of sentencing. See Crim. P. 35(a), (b) (2011); Rule
Change 2011(19), Colorado Rules of Procedure (Amended and
Adopted by the Court En Banc, Dec. 14, 2011),
https://perma.cc/6SFN-GLQA. This difference again has no
bearing on the resolution of this appeal.
4
was an “illegal sentence” claim that could be brought at any time,
see Crim. P. 35(a), but found that the Office of the Staff Judge
Advocate, the hospital, and the medical offices were properly named
as victims because they each had a contractual relationship with
the victims of Pike’s crime, see § 18-1.3-602(4)(a)(III). In addition,
the court rejected the Crim. P. 32(d) motion as untimely.
¶ 7 Pike appeals the postconviction court’s order.
II. Analysis
¶ 8 Pike contends that the postconviction court erred by
concluding that (1) his challenge to the timeliness of the restitution
order was an untimely illegal manner claim; and (2) the Office of the
Staff Judge Advocate, the hospital, and the medical offices qualified
as victims under section 18-1.3-602(4)(a)(III). We reject both
contentions, albeit for reasons slightly different than those relied on
by the postconviction court.
A. Standard of Review and Applicable Law
¶ 9 We review de novo the legality of a sentence and the summary
denial of a Crim. P. 35 motion. People v. Tennyson, 2023 COA 2,
¶ 9 (cert. granted Sept. 11, 2023). “We may affirm the
postconviction court’s ruling on any ground supported by the
5
record, whether or not the postconviction court relied on or
considered that ground.” People v. Cooper, 2023 COA 113, ¶ 7.
¶ 10 Under Crim. P. 35(a), the court may correct a sentence that
was “not authorized by law or that was imposed without jurisdiction
at any time.” But the court may correct a sentence imposed “in an
illegal manner” only if the motion is filed, as relevant to Pike, within
120 days after the judgment of conviction is affirmed. Id.; Crim.
P. 35(b) (2011). Thus, because Pike filed his motion years after the
120-day deadline expired, the timeliness of that motion turns on
whether his claims are “illegal sentence” or “illegal manner” claims.
¶ 11 The substance of a postconviction motion, and not its label,
controls its designation under Crim. P. 35. See People v. Collier,
151 P.3d 668, 670 (Colo. App. 2006). A sentence is “illegal,” or “not
authorized by law,” when it is “inconsistent with the terms specified
by statutes.” Tennyson, ¶ 10 (citation omitted). A sentence is
imposed “in an illegal manner” when the court “ignores essential
procedural rights or statutory considerations in forming the
sentence.” Id. at ¶ 11 (citation omitted). A challenge to the amount
of restitution a defendant is obligated to pay is an illegal manner
claim. People v. Bowerman, 258 P.3d 314, 317 (Colo. App. 2010).
6
¶ 12 Because Pike is proceeding pro se, and did so in the
postconviction proceedings, we “broadly construe” his pleadings “to
effectuate the substance, rather than the form, of those pleadings.”
People v. Cali, 2020 CO 20, ¶ 34. But we may not rewrite his
arguments or act as his advocate. Id. Nor may we consider claims
he did not make in his motion. Id.
B. Timeliness of Restitution
¶ 13 Relying on People v. Weeks, 2021 CO 75, Pike contends that
the restitution portion of his sentence “was not authorized by law”
or “was imposed without jurisdiction” because the district court
entered its restitution order more than ninety days after he was
sentenced. Therefore, Pike argues, the postconviction court erred
by treating his claim as an untimely “illegal manner” claim instead
of an “illegal sentence” claim that can be raised at any time. We are
not persuaded.
¶ 14 As Weeks clarifies, section 18-1.3-603(1) requires that every
order of conviction “shall include one or more of the following”:
(a) An order of a specific amount of restitution
be paid by the defendant;
(b) An order that the defendant is obligated to
pay restitution, but that the specific amount of
7
restitution shall be determined within the
ninety-one days immediately following the
order of conviction, unless good cause is
shown for extending the time period by which
the restitution amount shall be determined;
(c) An order, in addition to or in place of a
specific amount of restitution, that the
defendant pay restitution covering the actual
costs of specific future treatment of any victim
of the crime; or
(d) Contain a specific finding that no victim of
the crime suffered a pecuniary loss and
therefore no order for the payment of
restitution is being entered.
§ 18-1.3-603(1); Weeks, ¶ 3.
¶ 15 Weeks held, among other things, that section 18-1.3-603(1)(b)
requires a district court to determine the amount of restitution
within ninety-one days of the judgment of conviction unless, before
the deadline expires, the court expressly finds good cause to extend
the deadline. Weeks, ¶¶ 4-5.
¶ 16 But Weeks involved a direct appeal of a restitution order and
does not address how to properly construe a postconviction
challenge under its holdings and section 18-1.3-603’s procedural
requirements. However, Tennyson squarely addresses this issue.
8
¶ 17 In Tennyson, the defendant, like Pike, claimed that his
postconviction challenge based on Weeks was not time barred
because it was properly construed as a Crim. P. 35(a) claim that his
sentence was not authorized by law. Tennyson, ¶¶ 15-16. The
division disagreed and held that where a defendant brings a
postconviction challenge regarding the procedures employed in
determining the appropriate restitution amount, the claim is
properly construed as an “illegal manner” claim under Crim. P.
35(a). Id. at ¶¶ 18-34. The division held that the defendant’s
postconviction motion, filed ten years after the restitution order was
issued, was therefore time barred. Id. at ¶¶ 35-38.
¶ 18 Contrary to Pike’s argument that Tennyson was wrongly
decided, we agree with the holding and reasoning in Tennyson and
follow it here. In this case, the district court entered its restitution
order in 2011, and Pike filed his postconviction motion eleven years
later in 2022. The motion is properly construed as raising an
“illegal manner” claim under Crim. P. 35(a) and is therefore time
barred. See Crim. P. 35(a), (b); Tennyson, ¶¶ 35-38.
9
C. Recipients of Restitution
¶ 19 Pike’s remaining contention is that the postconviction court
erred by concluding that the Office of the Staff Judge Advocate, the
hospital, and the medical offices were “victims” for restitution
purposes because the record does not contain evidence of
contractual relationships between them and the direct victims of
the crime. We conclude not only that Pike’s claim is time barred
because it is an “illegal manner” claim, but also that he is barred
from raising it under the doctrines of waiver and invited error.
¶ 20 “The Colorado restitution statutes require an offender to
‘mak[e] the victim whole to the extent practicable.’” People v.
Martinez, 2022 COA 28, ¶ 1 (quoting People v. Courtney, 868 P.2d
1126, 1128 (Colo. App. 1993)), aff’d on other grounds, 2024 CO 6M.
The statutory definition of “victim” includes other persons besides
the direct victim of the crime. Id. As relevant here, a victim
10
includes “[a]ny person[
3
] who has suffered losses because of a
contractual relationship with, including but not limited to, an
insurer . . . for a person [against whom any felony, misdemeanor,
petty, or traffic misdemeanor offense has been perpetrated or
attempted].” § 18-1.3-602(4)(a)(I), (III); see People v. McCarthy, 2012
COA 133, ¶ 9 (under the restitution statute, “victim” includes “any
person who has suffered losses because of a contractual
relationship with the primary victim of the crime”). “[A] ‘contractual
relationship’ is an agreement that creates legally enforceable
obligations and a legally recognized association between the parties
that changes their legal rights and duties of care.” People v. Oliver,
2016 COA 180M, ¶ 36. This contractual relationship can be formed
by any type of contract, regardless of whether there is a written
3
We also reject Pike’s argument that the Office of the Staff Judge
Advocate, the hospital, and the other medical offices are not entitled
to restitution because they are not human beings and therefore are
not victims under the second degree murder statute. The
restitution statute authorizes the award of restitution to persons
beyond the direct victim of the crime. And, for the purposes of the
restitution statute, the term “person” includes “any individual,
corporation, government or governmental subdivision or agency, . . .
or other legal entity.” § 2-4-401(8), C.R.S. 2023; see People v.
Martinez, 2022 COA 28, ¶ 34.
11
¶ 21 Pike’s claim that there is no evidence of contractual
relationships in the record is fundamentally a challenge to the
sufficiency of the evidence to support the restitution order. That is
an illegal manner claim. See Bowerman, 258 P.3d at 317
(concluding that an argument that the prosecution did not prove
the defendant stole certain items was an illegal manner claim);
Tennyson, ¶ 39 (holding that a claim that the prosecution failed to
present evidence to support its restitution request “is a challenge to
the legality of the manner in which [the] sentence was imposed”).
¶ 22 We are not convinced that Oliver suggests that any challenge
to whether a person qualifies as a victim under section
18-1.3-602(4)(a) is cognizable as an “illegal sentence” claim. Oliver
dealt with a question of law: Can governmental agencies be
considered insurers entitled to restitution under section
18-1.3-602(4)(a)(III)? Oliver, ¶ 25. In contrast, Pike does not
contend that the Office of the Staff Judge Advocate, the hospital,
and the medical offices can never satisfy section 18-1.3-602(4)(a)(III)
as a matter of law; he argues that the record does not contain
sufficient evidence of their contractual relationship with the victims.
In other words, “[r]ather than raising the question whether the . . .
12
restitution was ‘authorized by law,’ [Pike’s] argument directly
challenges the outcome of the fact-finding process conducted within
the boundaries of the statutory scheme.” Bowerman, 258 P.3d at
317.
¶ 23 Thus, Pike was required to bring this claim within 120 days of
People v. Bryce, 2020 COA 57, ¶ 3. Because he did not do so, the
claim is time barred.
¶ 24 Moreover, we conclude that Pike is barred from raising the
lack of evidence supporting these contractual relationships under
the doctrines of waiver and invited error. See People v. Garcia, 2024
CO 41, ¶ 28 (“Waiver is ‘the intentional relinquishment of a known
right or privilege,’” and “an appellate court may not review a waived
error.” (quoting Forgette v. People, 2023 CO 4, ¶ 28)) (emphasis
omitted); People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of
invited error prevents a party from complaining on appeal of an
error that he or she has invited or injected into the case; the party
must abide the consequences of his or her acts.”).
¶ 25 Pike’s counsel initially objected to the People’s proposed
restitution order and requested discovery on it. The district court
13
scheduled a restitution hearing, and the People complied with Pike’s
request for discovery. As the restitution hearing was set to begin,
Pike’s counsel stated that he “received all of the discovery related to
[the restitution order] and did have a chance to speak with Mr. Pike
regarding it; and, at this time, we would withdraw our objection to
restitution.” Consequently, the court vacated the evidentiary
hearing and entered the proposed restitution order.
¶ 26 Thus, Pike was afforded a restitution hearing — the
opportunity for evidence such as contractual relationships to be
presented and contested before the district court — but he
knowingly and intentionally waived it. See Garcia, ¶ 29; People v.
Martinez, 166 P.3d 223, 224 (Colo. App. 2007) (“A defendant waives
his or her objections to the amount of restitution by failing to go
forward with evidence when given the opportunity to do so.”). That
the record does not contain evidence of contractual relationships is
a direct consequence of Pike’s waiver.
¶ 27 Further, Pike’s counsel invited any error by telling the court
that, after reviewing the discovery and consulting with Pike, he was
withdrawing his objections to the proposed restitution order that
specifically awarded restitution to the Office of the Staff Judge
14
Advocate, the hospital, and the medical offices. See Horton v.
Suthers, 43 P.3d 611, 614, 618-20 (Colo. 2002) (holding that the
director of the Department of Corrections invited error when he
expressly agreed that the district court had jurisdiction and stated
that he did not oppose the relief requested but took the opposite
position on appeal). Pike cannot now complain that these entities
are not victims when he expressly agreed with the proposed order
listing them as such. See id.; Rediger, ¶ 34.
III. Disposition
¶ 28 The postconviction court’s order is affirmed. However, the
mittimus does not reflect the terms of the restitution order.
Accordingly, we remand the case for the court to correct the
mittimus. See Weeks, ¶¶ 9, 44; see also People v. Esparza-Treto,
282 P.3d 471, 480 (Colo. App. 2011) (“When the mittimus is
incorrect, we must remand to allow the trial court to correct it.”).
JUDGE MOULTRIE and JUDGE DAVIDSON concur.
