22CA0688 Peo v Muth 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0688
El Paso County District Court No. 19CR3025
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Willow Muth,
Defendant-Appellant.
ORDERS AFFIRMED
Division III
Opinion by JUDGE YUN
Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
1
¶ 1 Willow Muth appeals the postconviction court’s orders denying
her Crim. P. 35(a) and Crim. P. 35(c) motions for postconviction
relief. We affirm.
I. Background
¶ 2 In 2019, Muth pleaded guilty to violating a bail bond condition
in exchange for a stipulated probationary sentence, the dismissal of
a forgery count, and the dismissal of charges in another case.
Under the plea agreement, Muth agreed to pay restitution for all
counts in both cases, including dismissed counts. The agreement
provided that the “District Attorney’s Office will act in good faith to
provide correct information establishing the amount of restitution
within 91 days of sentencing.”
¶ 3 The district court accepted the plea agreement and entered the
stipulated sentence on July 8, 2019, noting that the “DA’s office has
91 days to calculate and submit a restitution payout order.”
Eighty-seven days later, on October 3, 2019, the People submitted a
proposed restitution order requesting $103.33 for one victim and
$8,825 for another. The proposed order included a notice to Muth
that, if she objected to the restitution amount, she had thirty days
to request a hearing.
2
¶ 4 The district court waited thirty-five days. When Muth did not
object, it entered the People’s proposed restitution order on
November 7, 2019 — 122 days after Muth’s judgment of conviction.
¶ 5 Two years later, our supreme court decided People v. Weeks,
2021 CO 75. It held that, under section 18-1.3-603(1)(b), C.R.S.
2023, when a district court enters a preliminary order requiring the
defendant to pay restitution but notes that the specific amount will
be determined later, the court must determine the amount of
restitution within ninety-one days of the judgment of conviction
unless, before this deadline expires, it makes an express good cause
finding for extending the deadline. Weeks, ¶¶ 4-5.
¶ 6 In September 2021, Muth filed a pro se motion for
postconviction relief under Crim. P. 35(c), arguing that her counsel
had been ineffective for failing to object to the untimely restitution
order. In March 2022, court-appointed postconviction counsel filed
a motion to correct an illegal sentence pursuant to Crim. P. 35(a),
arguing that, under section 18-1.3-603(1)(b) and Weeks, the district
court had no authority to enter the restitution order more than
ninety-one days after Muth’s judgment of conviction absent a good
cause finding.
3
¶ 7 After two separate hearings, the postconviction court denied
both motions.
II. Analysis
¶ 8 Muth contends that the postconviction court erred by
concluding that (1) the untimely restitution order was not an illegal
sentence under Crim. P. 35(a) and (2) her counsel did not provide
ineffective assistance by following the “standard practices in [the]
entire judicial district” at the time. We reject both contentions.
A. Timeliness of Restitution
¶ 9 We first address Muth’s argument that the postconviction
court erred by denying her Crim. P. 35(a) claim. We conclude that
this claim is time barred because it is an “illegal manner,” not an
“illegal sentence,” claim.
1. Standard of Review and Governing Law
¶ 10 “The legality of a sentence is a question of law that we review
the postconviction court’s ruling on any ground supported by the
record, whether or not the postconviction court relied on or
considered that ground.” People v. Cooper, 2023 COA 113, ¶ 7.
4
¶ 11 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 Muth,
within 126 days after the sentence is imposed. Crim. P. 35(a), (b).
Thus, because Muth filed her motion after the 126-day deadline
expired, the timeliness of that motion turns on whether her claim is
an “illegal sentence” or an “illegal manner” claim.
¶ 12 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” within the meaning of Crim. P. 35(a), “if any of
the sentence’s components fail to comply with the sentencing
statutes.” People v. Baker, 2019 CO 97M, ¶ 19. A sentence is
imposed “in an illegal manner” when the court “ignores essential
procedural rights or statutory considerations in forming the
sentence.” People v. Bowerman, 258 P.3d 314, 316 (Colo. App.
2010) (citation omitted). A challenge to the amount of restitution a
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2. Discussion
¶ 13 Relying on Weeks, Muth argues that the restitution portion of
her sentence “was not authorized by law” because the district court
entered its restitution order more than ninety-one days after she
was sentenced, in violation of section 18-1.3-603(1)(b). 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
[to] be paid by the defendant;
(b) An order that the defendant is obligated to
pay restitution, but that the specific amount of
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.
6
¶ 15 As discussed above, 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 that the court did not comply with section 18-1.3-603’s
procedural requirements. However, People v. Tennyson, 2023 COA
2, ¶ 9 (cert. granted Sept. 11, 2023), squarely addresses this issue.
¶ 17 In Tennyson, the defendant, like Muth, 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
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postconviction motion, filed ten years after the restitution order was
issued, was therefore time barred. Id. at ¶¶ 35-38.
¶ 18 Contrary to Muth’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 2019, and Muth filed her Crim. P. 35(a) motion more than
two 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.
B. Ineffective Assistance of Counsel
¶ 19 Next, we turn to Muth’s argument that the postconviction
court erred by denying her Crim. P. 35(c) ineffective assistance of
counsel claim. We again disagree.
1. Standard of Review and Governing Law
¶ 20 In reviewing the denial of a Crim. P. 35(c) motion after a
hearing, we review conclusions of law de novo but defer to the
postconviction court’s findings of fact if they are supported by the
evidence. People v. Villanueva, 2016 COA 70, ¶ 28. “The weight
and credibility to be given the testimony of witnesses in a Crim. P.
35(c) hearing is within the province of the [postconviction] court and
8
when there is sufficient evidence in the record to support the
court’s findings, its ruling will not be disturbed on review.”
People v. Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).
¶ 21 To establish a claim of ineffective assistance of counsel, a
defendant must show that (1) counsel’s performance was deficient
and (2) counsel’s deficient performance prejudiced her.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Ardolino v.
People, 69 P.3d 73, 76 (Colo. 2003). An ineffective assistance claim
fails if the defendant does not satisfy either prong. Strickland,
¶ 22 To establish deficient performance, the defendant bears the
burden of showing that, “in light of all the circumstances, the
identified acts or omissions [of counsel] were outside the wide range
of professionally competent assistance.” Id. at 690. In evaluating
such a claim, the court must avoid “the distorting effects of
hindsight,” People v. Trujillo, 169 P.3d 235, 238 (Colo. App. 2007),
and “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
Ardolino, 69 P.3d at 76. To establish prejudice, in turn, the
defendant must demonstrate a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694.
2. Discussion
¶ 23 Muth argues that her counsel performed deficiently by failing
to object to the entry of the restitution order 122 days after her
judgment of conviction when section 18-1.3-603(1)(b) provides that
“the specific amount of restitution shall be determined within the
ninety-one days immediately following the order of conviction”
unless good cause is shown for an extension. We are not
persuaded.
¶ 24 At the hearing on her Crim. P. 35(c) motion, Muth’s plea
counsel testified that he followed his standard practice at the time
regarding restitution in her case. He testified that “restitution . . .
was reserved like in all plea agreements” and that there was an
“opportunity to object once a restitution request was filed,” but that
he did not consider objecting on the basis that the “restitution order
was granted 122 days after [Muth’s sentence] was entered.” The
postconviction court found that Muth’s plea counsel was a credible
witness and that he had not performed deficiently by following “the
standard practice here in the Fourth Judicial District” at the time
10
and failing to “predict[] in 2019 what the Colorado Supreme Court
would . . . order[] [in Weeks] in 2021.”
¶ 25 Muth argues that it is “irrelevant” that Weeks had not yet been
decided at the time of the restitution order in her case because the
language of section 18-1.3-603 is unambiguous and the supreme
court’s analysis in Weeks was thus “hiding in plain sight.” But
Weeks begins by acknowledging that the practice followed in Muth’s
case — of reserving restitution for ninety-one days and then giving
the defendant an opportunity to object to the amount — was
standard at the time and that, “[i]n fairness to our colleagues
litigating and presiding over criminal cases, section 18-1.3-603 is
not a paragon of clarity.” Weeks, ¶¶ 1-2. In setting forth a new
standard, the supreme court overruled ten court of appeals
decisions to the extent they were inconsistent with its opinion. Id.
at ¶ 47 n.16.
¶ 26 The Constitution guarantees criminal defendants a competent
attorney, but it “does not insure that defense counsel will recognize
and raise every conceivable” claim. People v. Houser, 2020 COA
128, ¶ 37 (quoting Engle v. Isaac, 456 U.S. 107, 134 (1982)).
“Specifically, a lawyer does not perform deficiently by ‘failing to raise
11
novel arguments that are unsupported by then-existing precedent.’”
Cir. 2019)). “Nor does counsel fall below Strickland’s standard of
reasonableness by failing to anticipate changes in the law, or to
argue for an extension of precedent.” Id. (quoting Morris, 917 F.3d
at 823). Under these circumstances, we cannot conclude that
Muth’s counsel performed deficiently by “maneuver[ing] within the
existing law,” id. at ¶ 37 (citation omitted), and following the
district’s “longstanding” practice, Weeks, ¶ 2.
¶ 27 We thus conclude that the postconviction court did not err by
denying Muth’s ineffective assistance of counsel claim.
III. Disposition
¶ 28 The orders are affirmed.
JUDGE DUNN and JUDGE MOULTRIE concur.
