Background
Johan Joshua Urzua-Hernandez pleaded guilty to attempted second degree murder under an agreement calling for a stipulated twenty-year prison sentence. The agreement said restitution and prosecution costs on the original and pleaded counts would be “as ordered by the Court.” At the providency hearing, the court said Urzua-Hernandez would be responsible for restitution as ordered and asked the prosecutor to investigate it.
At sentencing, the prosecutor did not request restitution. The court gave the prosecution ninety-one days to file a restitution notice, explaining that the prosecution might request victims’ out-of-pocket expenses and that, absent a timely objection, the court would order restitution. The prosecution later requested restitution, and the court entered orders totaling $7,110.37. Nine years later, Urzua-Hernandez moved under Crim. P. 35(a) to correct an illegal sentence, arguing that the court had not entered a required restitution order at sentencing.
The Court’s Holding
The Colorado Court of Appeals held that the sentence was illegal because the district court did not enter any of the four restitution orders required by section 18-1.3-603(1) at sentencing. It neither set a restitution amount, found Urzua-Hernandez liable while reserving the amount, ordered future-treatment costs, nor ordered that no restitution was owed.
Applying Snow v. People, the division rejected the Attorney General’s argument that the plea agreement, sentencing record, presentence report, mittimus, and later lack of objections established an implicit finding of restitution liability. The court’s statement that the prosecution could “potentially” seek restitution reserved the entire issue, rather than deferring only the amount. Under Snow, the later restitution orders could not cure that defect.
Key Takeaways
- A sentencing court must enter one of the restitution orders authorized by section 18-1.3-603(1) at or before sentencing.
- Giving the prosecution time to investigate or potentially seek restitution does not itself establish a defendant’s restitution liability.
- When no valid restitution order is entered at sentencing, later restitution orders must be vacated and the court must order that no restitution is owed.
Why It Matters
The decision applies the Colorado Supreme Court’s Snow remedy to a record where the prosecution never requested restitution at sentencing and the court did not expressly impose liability. It confirms that later restitution proceedings cannot substitute for the statutorily required sentencing order.
The division vacated the restitution order and remanded with directions to enter an order under section 18-1.3-603(1)(d) that no restitution is owed.