     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 7, 2019

                                2019COA34

No. 18CA0041, People v. Knoeppchen — Criminal Procedure —
Postconviction Remedies — Correction of Illegal Sentence —
Sentence Imposed in an Illegal Manner

     A division of the court of appeals considers whether a

postconviction appeal of a district court’s order denying a motion to

vacate a restitution order involves a claim that the defendant’s

sentence is not authorized by law or is a challenge to the manner in

which sentence was imposed. Because the division concludes that

the motion is an illegal manner claim under Crim. P. 35(a) and the

challenge is untimely, the division concludes that the petition was

time barred, and thus affirms the order.
COLORADO COURT OF APPEALS                                         2019COA34


Court of Appeals No. 18CA0041
Larimer County District Court No. 13CR335
Honorable Susan J. Blanco, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Billy Joe Knoeppchen,

Defendant-Appellant.


                              ORDER AFFIRMED

                                   Division I
                            Opinion by JUDGE TOW
                        Taubman and Berger, JJ., concur

                           Announced March 7, 2019


Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lance Thibert, Deputy State
Public Defender, Fort Collins, Colorado, for Defendant-Appellant
¶1    Defendant, Billy Joe Knoeppchen, appeals the district court’s

 order denying his motion to vacate the restitution order. His appeal

 requires us to determine whether his challenge involves a claim that

 his sentence is not authorized by law or is a challenge to the

 manner in which sentence was imposed. Because we decide it is

 the latter, and the challenge is untimely, we affirm.

                           I.    Background

¶2    On August 22, 2013, Knoeppchen pleaded no contest to third

 degree assault and was sentenced to probation. As part of the plea

 agreement, Knoeppchen agreed to pay restitution. However,

 because the prosecution did not have complete information

 regarding restitution at the time, the district court reserved the

 restitution determination for ninety days. 1

¶3    On November 29, 2013, 100 days later, the prosecution moved

 for an order imposing restitution. Knoeppchen did not file any

 response to the motion. The district court adopted the proposed

 order filed by the prosecution. This order noted, “[t]he above stated



                      ———————————————————————
 1 The court was statutorily authorized to reserve restitution for

 ninety-one days. § 18-1.3-603(1)(b), C.R.S. 2018. However, the
 prosecutor only requested ninety days.

                                    1
 amount is the current amount due, but not a final amount due.

 The defendant is ordered to pay restitution covering the actual costs

 of the ongoing or future treatment of [the victim] for treatment to

 his mouth, teeth[,] and jaw.” The amount of restitution owed to the

 victim compensation fund was also left to be determined. On May

 21, 2014, the prosecution moved to amend the restitution amount,

 reducing the total amount due. Again, Knoeppchen filed no

 response. The district court granted this motion as well.

¶4    More than three years later, Knoeppchen filed a motion to

 vacate the restitution order. Although he did not explicitly refer to

 Crim. P. 35, or to any other statute or rule under which he was

 proceeding, he “attack[ed] the restitution order itself as a matter of

 law,” asserting that the proposed order was filed by the prosecution

 and adopted by the district court after the ninety-day deadline, and

 that the prosecution did not establish good cause for its tardy

 request. The district court denied the motion, finding that good

 cause existed for filing the motion for restitution late, despite not

 having made any express finding of good cause when it entered the

 original order.




                                    2
                              II.   Analysis

¶5    Knoeppchen now appeals the district court’s order denying his

 motion to vacate the restitution order. As a preliminary matter, the

 People argue that (1) this court lacks jurisdiction to review the order

 because it is not a final, appealable order denying postconviction

 relief; and (2) even if the motion to vacate the restitution order is a

 final, appealable order seeking postconviction relief, the motion was

 time barred. Although we disagree that this court lacks jurisdiction

 to review the order, we agree that the motion was time barred.

 Thus, we affirm the district court’s order, but on grounds other

 than those relied on by the district court.

                   A.    This Court Has Jurisdiction

¶6    We first address, and reject, the People’s assertion that the

 district court’s order is not a final, appealable order. According to

 the People, because Knoeppchen did not explicitly invoke Rule 35 or

 its statutory counterpart, section 18-1-410, C.R.S. 2018, the

 district court lacked authority to treat the matter as a

 postconviction challenge. However, courts have long considered the

 substantive issues raised in a motion, rather than the label placed

 on such motion, to determine how the matter should be


                                    3
 characterized. See Dodge v. People, 178 Colo. 71, 73, 495 P.2d 213,

 214 (1972). Knoeppchen’s collateral attack on the three-year-old

 restitution order clearly sought postconviction relief in the form of

 vacating the restitution order.2 Thus, the challenge to the propriety

 of the district court’s resolution of that claim is properly before us.

              B.   Knoeppchen’s Claims Are Time Barred

¶7    The People’s second procedural argument is more availing. As

 noted, Knoeppchen’s motion levies an attack on the restitution

 award “as a matter of law.” In substance, he asserts that

 restitution was not legally imposed. Which provision of Rule 35

 governs Knoeppchen’s claim depends on whether he asserts an

 illegality of constitutional dimension. If it is a claim that the

 sentence is illegal in a way that does not invoke constitutional

 protections, it is cognizable under Rule 35(a). See People v. Dunlap,

 222 P.3d 364 (Colo. App. 2009) (construing the defendant’s

 argument that the district court failed to consider and fix the

 restitution amount as a claim that his sentence was illegal under


                       ———————————————————————
 2 Of course, Knoeppchen could have appealed the district court’s
 original order granting restitution had he chosen to do so in a
 timely fashion. He did not. Consequently, the only avenue that
 remained available to him was a postconviction challenge.

                                     4
 Rule 35(a)). If it is a claim that the sentence violates constitutional

 rights, it is cognizable under Rule 35(c). See People v. Wenzinger,

 155 P.3d 415, 419 (Colo. App. 2006) (holding that a challenge to an

 aggravated range sentence as contrary to the Sixth Amendment

 right to a jury determination of all facts that impact the maximum

 sentence falls within the ambit of Rule 35(c)).

                1.    Challenges to an Illegal Sentence

¶8    Rule 35(a) governs two distinct types of challenges to the

 legality of a sentence: (1) a claim that a sentence was not authorized

 by law or was imposed without jurisdiction and (2) a claim that the

 sentence was imposed in an illegal manner. Crim. P. 35(a). A

 sentence is not authorized by law if it is “inconsistent with the

 statutory scheme outlined by the legislature.” People v. Rockwell,

 125 P.3d 410, 414 (Colo. 2005).

¶9    In contrast, a sentence may be imposed in an illegal manner,

 notwithstanding the district court’s authority to impose a particular

 sentence, if it “‘ignores essential procedural rights or statutory

 considerations in forming the sentence.’” People v. Bowerman, 258

 P.3d 314, 316 (Colo. App. 2010) (quoting 15 Robert J. Dieter &




                                    5
  Nancy J. Lichtenstein, Colorado Practice Series, Criminal Practice

  and Procedure § 21.10 n.10 (2d ed. 2004)).

¶ 10   The line between an unauthorized sentence claim and an

  illegal manner claim is not always easily discernable. The broadest

  reading of Rockwell, for example, might suggest that even a

  procedural error would give rise to an unauthorized sentence claim,

  since the improper procedure would be “inconsistent with the

  statutory scheme.” However, a division of this court has

  characterized the language in Rockwell more narrowly. Wenzinger,

  155 P.3d at 418.

¶ 11   Indeed, a closer view of Rockwell does not support a broad

  application. In employing the “statutory scheme” language,

  Rockwell cited People v. District Court, 673 P.2d 991, 995 (Colo.

  1983). There, the supreme court held that “[a] court may not

  impose a sentence that is inconsistent with the terms specified by

  statutes.” Id. The sentence under review in that case involved an

  attempt by the sentencing court, through the combination of a

  suspended prison sentence and a sentence to a fixed period in the

  county jail work release program, to impose quasi-probationary

  conditions without actually imposing probation. Id. at 995-96.


                                    6
  Because such a structure was not authorized by the sentencing

  statutes, the sentence was illegal. Id. at 996.

¶ 12   Notably, the court in Rockwell addressed a prior version of

  Rule 35(a). Prior to July 1, 2004, the rule provided that a court

  could “correct an illegal sentence at any time . . . .” Rule Change

  2004(2), Colorado Rules of Criminal Procedure (Amended and

  Adopted by the Court En Banc, Jan. 29, 2004),

  https://perma.cc/J7PK-XYNW. The rule now authorizes a court to

  “correct a sentence that was not authorized by law or that was

  imposed without jurisdiction at any time . . . .” In Wenzinger, a

  division of this court concluded that the amendment “merely

  codifie[d] case law defining ‘illegal sentence.’” 3 155 P.3d at 418.

  The division further explained that this language of the rule must

  be read to exclude mere procedural flaws in sentencing, lest the

  rule “blur the distinction between sentences that are void because

  they were imposed in excess of the court’s statutory authority and



                          ———————————————————————
  3 Alternatively, if the language in Rockwell was intended to have a
  more expansive reach, the subsequent amendment clearly narrowed
  its application to only scenarios where the sentence is inconsistent
  with the terms and conditions authorized by statute, or where the
  sentencing court lacked jurisdiction to act.

                                     7
  sentences that are voidable because they were ‘imposed in an illegal

  manner . . . .’” Id. (citation omitted).

¶ 13   Such a narrow reading is consistent with prior appellate

  decisions applying either version of the rule, which have found

  sentences to be illegal — or not authorized by law — only when

  there have been substantive deviations from the statutory scheme.

  In Rockwell, for example, the supreme court held that the district

  court announced an illegal sentence when it imposed a period of

  mandatory parole when the statute provided for discretionary parole

  for the particular offense involved. 125 P.3d at 414; see also

  Delgado v. People, 105 P.3d 634, 636 (Colo. 2005) (same). In

  Downing v. People, 895 P.2d 1046 (Colo. 1995), the district court

  resentenced a defendant who was being transferred from

  community corrections to the Department of Corrections and

  imposed a longer term than originally imposed, in derogation of the

  then-existing statutory prohibition on doing so. Id. 1049-50. And

  in People v. White, 179 P.3d 58 (Colo. App. 2007), the district court

  entered an illegal sentence because it permitted the sentence to run

  concurrently with another sentence when the statute required it to

  run consecutively. Id. at 60-61.


                                      8
¶ 14   In contrast, in People v. Collier, 151 P.3d 668 (Colo. App.

  2006), the defendant claimed that “he was not given the complete

  range of psychological and physiological testing required for his sex

  offender evaluation before he was sentenced.” Id. at 673. The

  defendant argued that this testing was required by sections 16-

  11.7-104 and 16-11.7-105, C.R.S. 2006. Notwithstanding the fact

  that the claim arguably rested on a deviation from the statutory

  scheme, a division of this court treated the claim as a challenge to

  the manner in which the sentence was imposed. Collier, 151 P.3d

  at 673.

¶ 15   And in People v. Bowerman, the defendant challenged the

  restitution component of her sentence. She argued that her

  sentence was not authorized by law because the prosecution did

  not prove by a preponderance of the evidence that she had stolen

  items in addition to the specific items mentioned in the information.

  258 P.3d at 317. A division of this court rejected the defendant’s

  characterization of the claim. Instead, the division concluded that

  because the defendant challenged the outcome of the factfinding

  process, rather than the general authority of the court to order

  restitution, the claim was an illegal manner claim. Id.


                                    9
¶ 16    We agree with the division in Wenzinger that the language in

  Rockwell regarding inconsistency with the statutory scheme does

  not encompass mere procedural inconsistencies. Indeed, the

  supreme court in Rockwell further characterized illegal sentence

  claims as encompassing “questions [concerning] the trial court’s

  authority to issue a particular sentence . . . .” 125 P.3d at 414. A

  procedural challenge to the sentence does not challenge the court’s

  authority, but rather the way in which the court’s authority was

  exercised — in other words, the manner in which the sentence was

  imposed.

       a.   The District Court’s Authority and Obligation to Impose
                                  Restitution

¶ 17    The question whether Knoeppchen’s claim challenges the

  district court’s authority to impose the sentence or simply the

  manner in which it did so requires us to consider the nature of the

  district court’s authority to impose restitution.

¶ 18    In every criminal prosecution, at the time sentence is imposed,

  the district court must address restitution. § 18-1.3-603(1), C.R.S.

  2018. To discharge this duty, the district court must take one of

  four actions when issuing the order of conviction: (1) establish a



                                    10
  specific amount of restitution; (2) find that the defendant will be

  obligated to pay restitution, but reserve for ninety-one days the

  determination of the specific amount; (3) order that the defendant

  will be responsible for paying the costs of specifically designated

  ongoing treatment; or (4) find that no victim suffered a pecuniary

  loss, so no restitution is owed. Id. Any sentence imposed without

  one of these orders is an illegal sentence. People v. Smith, 121 P.3d

  243, 251 (Colo. App. 2005).

¶ 19   If the district court exercises the second option, reserving

  restitution, the statute requires the amount of restitution to be

  established within ninety-one days. § 18-1.3-603(1)(b).4 However,

  the district court can extend that time period upon a showing of

  good cause. Id.




                         ———————————————————————
  4 The statute appears to set up a bit of an inconsistency.
  Subsection (1)(b) requires the amount of restitution to be
  determined within ninety-one days; but subsection (2) sets the
  same ninety-one-day deadline for the prosecution to provide the
  information to the court. Compare § 18-1.3-603(1)(b), with § 18-
  1.3-603(2). It would appear that where the prosecution timely
  provides information to the court on or just before the ninety-first
  day, it will usually be impossible for the district court to rule on the
  restitution request within the same period, particularly because the
  court will need to afford the defendant an opportunity to respond.

                                     11
¶ 20   The ninety-one-day period is not jurisdictional. People v.

  Harman, 97 P.3d 290, 293 (Colo. App. 2004). However, where the

  prosecution fails to establish the amount of restitution within the

  ninety-one days, the district court lacks the authority to impose

  restitution unless good cause has been shown. People v. Turecek,

  2012 COA 59, ¶ 15.

              b.    Knoeppchen’s Challenge to Restitution

¶ 21   To apply the principles discussed above, we must determine

  whether Knoeppchen challenges the legality of the sentence or the

  manner in which it was imposed. Significantly, Knoeppchen does

  not argue that the district court lacked jurisdiction to impose

  restitution for this offense. As noted above, the district court not

  only has the authority, but the obligation, to order restitution. §

  18-1.3-603(1). Nor does he argue that the district court lost

  jurisdiction to impose restitution outside the ninety (or even the

  statutory ninety-one) days. See Harman, 97 P.3d at 293.

¶ 22   Rather, Knoeppchen argues that the district court failed to

  make a contemporaneous finding of good cause before permitting

  the late request for restitution. Unfortunately, just as he did in the

  district court, Knoeppchen asserts his claim without any reference


                                    12
  to Rule 35 at all, let alone any specific reference to whether the

  sentence was authorized by law. Instead, Knoeppchen relies on

  Turecek.

¶ 23   In Turecek, the prosecution initially filed a timely restitution

  request that was only an estimate because the insurer had not

  made a final coverage decision for the claim. Turecek, ¶ 3. The

  district court considered the amount requested “not to be accurate

  at this point” and declined to take any action on the request;

  instead, the court gave the prosecution ninety days to file a

  corrected request. Id. at ¶ 4. The prosecution took no further

  action for nine months, at which time it sought a ruling on the

  original request. Id. at ¶ 5. The district court granted the request.

¶ 24   On appeal, a division of this court concluded that because the

  prosecution “failed to establish (or even seek to establish) good

  cause for extending that time period,” the district court erred in

  imposing restitution. Id. at ¶ 15. Significantly, the defendant in

  Turecek timely filed a direct appeal of the restitution order.

  Consequently, the appellate court had no occasion to discuss

  whether the challenge was an illegal sentence claim or an illegal

  manner claim. It appears, however, that Knoeppchen believes that


                                    13
  the context of the appellate court’s discussion in Turecek speaks in

  terms of the district court’s authority, or lack thereof, to order

  restitution in those circumstances. See id. at ¶¶ 13-15.

¶ 25   As a threshold issue, we note that nothing in the statute

  explicitly requires the court to make an oral or written finding of

  good cause; rather, the statute merely requires good cause to be

  shown. Nor does Turecek clearly impose on the district court an

  obligation to make such an explicit finding. Compare id. at ¶ 15

  (stating the holding of the case, specifically that the district court

  erred in imposing restitution where the prosecution had not shown

  good cause), with id. at ¶ 20 (noting, in distinguishing Harman, that

  the district court had made no finding that the prosecution had

  established good cause).

¶ 26   Even if we assume Turecek stands for the proposition that a

  good cause finding is integral to the district court’s authority to

  order restitution, Knoeppchen’s reliance on Turecek is misplaced.

  Here, unlike in Turecek, the prosecution asserted, and the district

  court found, that there was good cause for extending the time

  period. Knoeppchen argues that this finding of good cause is

  invalid because it was not made when the district court initially


                                     14
  ordered restitution. However, he cites to no authority, and we have

  found none, that requires the showing (or finding) of good cause to

  occur at any particular time. Rather, the statute merely requires

  that a showing be made. § 18-1.3-603(1)(b).

¶ 27   The essence of Knoeppchen’s claim, then, is not that the

  prosecution failed to show good cause for extending the period, but

  rather that the court did not address good cause in a timely

  fashion. In 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). Knoeppchen’s

  claim, therefore, must be addressed as a challenge to the manner in

  which the sentence was imposed.

¶ 28   This distinction is fatal to Knoeppchen’s claim. While an

  illegal sentence may be corrected at any time, the district court can


                                    15
  only correct “a sentence imposed in an illegal manner within the

  time provided herein for the reduction of sentence.” Crim. P. 35(a).

  Thus, a claim that a sentence was imposed in an illegal manner

  must be raised within 126 days of the imposition of the sentence.

  Crim. P. 35(a), (b). Because Knoeppchen filed his motion to vacate

  the restitution order well beyond the 126-day limit, his motion was

  time barred.

                       2.   Due Process Challenge

¶ 29   Knoeppchen’s second argument is also time barred. He

  asserts that the district court violated his right to due process by

  making a post hoc finding of good cause in permitting the tardy

  restitution request and relying on information presented by the

  prosecution long after the restitution order was entered. This is a

  challenge to the constitutionality of the restitution component of the

  sentence. As such, this claim is cognizable under Rule 35(c).

  Wenzinger, 155 P.3d at 419.

¶ 30   Knoeppchen was convicted of, and sentenced for, a

  misdemeanor. A Rule 35(c) challenge to a misdemeanor conviction

  or sentence must be brought within eighteen months of the

  conviction. § 16-5-402(1), C.R.S. 2018. Where there is no appeal,


                                    16
  this period begins to run when the district court enters judgment

  and the sentence is imposed. People v. Pennington, 989 P.2d 230,

  231 (Colo. App. 1999).

¶ 31   Knoeppchen’s conviction entered when he was sentenced on

  August 22, 2013. It is unclear whether the subsequent order fixing

  restitution would restart the commencement of the statutory filing

  period. See People v. Metcalf, 979 P.2d 581, 583 (Colo. App. 1999)

  (holding that a modification of sentence pursuant to Rule 35(b) does

  not restart the clock for a Rule 35(c) motion). Even if we assume it

  did, the district court entered the initial order imposing restitution

  on January 8, 2014, and the order amending restitution on July 8,

  2014. Knoeppchen first sought to challenge the restitution order on

  September 15, 2017, more than three years after the last restitution

  order was issued. Thus, Knoeppchen’s due process challenge is

  also time barred.

            C.   An Appellate Court May Raise Untimeliness

¶ 32   We acknowledge that the People did not argue that

  Knoeppchen’s motion was time barred under section 16-5-402 in

  the district court. However, so long as the untimeliness is clear

  from the motion and the record, an appellate court may deny relief


                                    17
  on such grounds even if the issue was not raised in the district

  court. § 16-5-402(1.5). Further, we can affirm a district court’s

  ruling on any ground supported by the record. People v. Quintana,

  882 P.2d 1366, 1375 (Colo. 1994).

¶ 33   Because Knoeppchen’s motion was untimely, we affirm the

  district court’s denial of the motion, albeit for different reasons than

  those relied on by the district court.

                             III.   Conclusion

¶ 34   The order is affirmed.

       JUDGE TAUBMAN and JUDGE BERGER concur.




                                     18
