Opinion
22CA2067
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Cody Wayne Miller, Defendant-Appellant.
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Zack Tennant, Deputy State Public Defender, Isabel Breit, Deputy State Public Defender, Centennial, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Arapahoe County District Court No. 20CR1988 Honorable Joseph Whitfield, Judge
Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Zack Tennant, Deputy State Public Defender, Isabel Breit, Deputy State Public Defender, Centennial, Colorado, for Defendant-Appellant
OPINION
TOW JUDGE.
¶ 1 Defendant, Cody Wayne Miller, appeals the district court's restitution order. We affirm.
I. Background
¶ 2 On May 6, 2022, Miller pleaded guilty to third degree assault. As part of the plea agreement, Miller admitted liability, stipulated to causation, and agreed to pay restitution for all pecuniary losses suffered by all victims for all charged counts. The plea agreement also provided that "[p]ursuant to . . . 18-1.3-603(1)(b), [C.R.S. 2023,] defendant waives objection to the final amount of restitution being determined within 91 days following the order of conviction." Additionally, as part of the plea agreement, the judge signed an order stating that Miller was obligated to pay restitution and that the specific amount of restitution would be determined within ninety-one days pursuant to section 18-1.3-603(1)(b). The order also stated that the People would have forty-five days to file information substantiating the amount of restitution.
¶ 3 The prosecutor filed a motion seeking $1,496 in restitution based on a restitution report from the local crime victim compensation board, which indicated that $1,496 was incurred for "medical/dental" expenses. On July 24, 2022, Miller objected to the restitution amount and requested "to set a subpoena duces tecum return date in approximately 30 days" and "a contested restitution hearing approximately 14 days after the return date." The court ordered the parties to contact the clerk to set a restitution hearing.
¶ 4 On November 14, 2022 - 193 days after the court accepted the plea - the court held a restitution hearing. That same day, the court issued an order stating that the People's restitution motion was moot because the court had already granted the order for restitution on May 6, 2022, and the People subsequently substantiated that amount. The order further stated that "[f]or Administrative purposes, the substantiated amount owed and previously ordered remains $1,496.00 and should be noted in the defendant's ledger."
II. Analysis
¶ 5 Miller contends that the court lacked authority to enter the November 14, 2022, order more than ninety-one days after accepting the plea agreement without a timely and express finding of good cause to extend that deadline and that the court violated his right against double jeopardy by entering the November 14, 2022, order. Because Miller invited the error he now raises, we discern no reversible error.
A. Standard of Review and Applicable Law
¶ 6 We begin by acknowledging that the People do not argue that Miller invited the error by requesting that the court set a restitution hearing beyond the ninety-one-day period. Nevertheless, "an appellate court has an independent, affirmative duty to determine whether a claim is preserved . . . regardless of the positions taken by the parties." Forgette v. People, 2023 CO 4, ¶ 15 (alteration omitted) (quoting People v. Tallent, 2021 CO 68, ¶ 11). We review de novo whether the invited error doctrine applies. People v. Becker, 2014 COA 36, ¶ 20.
¶ 7 We also review de novo questions of statutory construction. People v. Weeks, 2021 CO 75, ¶ 24. And we review de novo a claim that a conviction violates a defendant's constitutional protection against double jeopardy. People v. Arzabala, 2012 COA 99, ¶ 19.
¶ 8 When sentencing a defendant following a conviction, the district court must address restitution. § 18-1.3-603(1). One permissible method of doing so is to order that the defendant is obligated to pay restitution but defer determination of the amount of restitution. § 18-1.3-603(1)(b). When the district court takes this approach, the court must determine the amount of restitution within ninety-one days unless it finds good cause to extend that deadline. Id. Absent a good cause finding, the court loses its authority to order restitution if it does not do so by the deadline. Weeks, ¶¶ 7, 45. A defendant, however, may waive this deadline, thus permitting the court to act beyond the ninety-first day. People v. Babcock, 2023 COA 49, ¶¶ 13-14 (cert. granted Apr. 8, 2024).
B. Analysis
¶ 9 As a threshold matter, we - like the parties - treat the district court's November 14, 2022, order as the restitution order. Although the court stated in that order that the People's restitution motion was moot because the court had previously ordered restitution on May 6, 2022, it had not. The May 6, 2022, order obligated Miller to pay restitution but stated that the specific amount of restitution would be determined within ninety-one days. On November 14, 2022, the court ordered Miller to pay $1,496 in restitution. Thus, the November 14, 2022, order is the restitution order.
¶ 10 The parties do not dispute that the restitution order in this case was entered more than ninety-one days after the order of conviction. The People contend that Miller waived his right to challenge the timeliness of the restitution order in his plea deal; but we decline to consider that argument, concluding instead that Miller invited any error by requesting that the court set the restitution hearing beyond the ninety-one-day period. See 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.").
¶ 11 On July 24, 2022, Miller objected to the restitution amount and requested "to set a subpoena duces tecum return date in approximately 30 days" and "a contested restitution hearing approximately 14 days after the return date." By requesting a hearing forty-four days after July 24, 2022 - September 6, 2022 - Miller requested that the restitution hearing be set after the expiration of the ninety-one-day period - August 5, 2022. Indeed, even if the requested subpoena had been returnable the very next day, a hearing date fourteen days later would have been outside the ninety-one-day period. Thus, Miller's request created the very error he now seeks to challenge. By injecting the error into the case, Miller must forego any appellate claim that the restitution order was untimely. See Rediger, ¶ 3 (invited error bars appellate review); cf. Babcock, ¶ 11.
¶ 12 To the extent Miller's double jeopardy argument is not encompassed in his invited error, it must nevertheless fail. Contrary to Miller's assertion, he did not have any legitimate expectation of finality in the sentence within ninety-one days of the court accepting the plea deal because he requested that the court set a hearing outside the ninety-one-day period. Nor did the district court implicitly enter an order for $0 of restitution once the ninety-one-day deadline passed or increase the amount of restitution. As noted, the court's only restitution order specifying the amount of restitution was validly entered on November 14, 2022, for $1,496. This order did not increase an otherwise final sentence.
III. Disposition
¶ 13 The order is affirmed.
JUDGE GOMEZ and JUDGE KUHN concur.