Larimer County District Court No. 13CR335 Honorable Susan J.
Blanco, Judge
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
OPINION
TOW
JUDGE.
¶
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 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.
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 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 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 ...