The Colorado Supreme Court announced last week that it will hear an appeal out of El Paso County questioning how criminal defendants can challenge the validity of an order to pay restitution to their victims, if the order occurs beyond the legal deadline.

At least three of the court’s seven members must agree to review a case on appeal.

The justices also narrowly turned down a pair of additional cases, which drew interest from two members each. One case involved a criminal trial in Denver that happened outside the window required by law and, therefore, required reversal of the defendant’s convictions. The second revolved around an Arapahoe County judge’s order for a man to pay $1 million for an expert in his divorce case.

Belated restitution

Under Colorado law, most criminal convictions require judges to consider whether a defendant should pay

monetary restitution to victims. The process typically calls for prosecutors to request a specific dollar amount within 91 days of sentencing, and for the trial judge to decide on the restitution figure within those same 91 days. Either deadline can be extended, as long as the judge makes findings to justify an extension.

Two years ago, the Supreme Court handed down its ruling in People v. Weeks, where the court cautioned that judges and prosecutors were taking a loose approach to those deadlines and not complying with the law. Trial judges who fail to abide by the requirements will lose the authority to impose restitution, the Supreme Court concluded.

Several years before Weeks, Audrey Lee Tennyson pleaded guilty to two aggravated robbery charges in El Paso County. In 2008, District Court Judge David Gilbert sentenced him to nearly three decades in prison. The prosecution also requested over $12,000 in restitution, which Gilbert approved four months after sentencing — and beyond the restitution deadline.

In 2018, Tennyson requested post-conviction relief, claiming the restitution portion of his sentence was illegal. While his case was pending before the Court of Appeals, the Supreme Court decided Weeks.

A three-judge panel for the appellate court concluded Tennyson was not challenging the legality of his sentence, but the legality of the “manner in which the sentence was imposed.” Because the rules provided him 120 days for such a challenge following his sentencing, the courts could not consider his request.

In doing so, the panel excused the fact that Gilbert omitted any restitution directive from Tennyson’s conviction document, and it minimized the “broad language” in Weeks that suggested Gilbert lacked authority to impose restitution when he acted beyond the deadline.

“Because the amount of restitution is not a component of a defendant’s sentence,” reasoned Judge Sueanna Johnson, “any procedural deficiency in determining the amount cannot implicate the legality of the restitution component of the defendant’s sentence.”

Tennyson appealed to the Supreme Court. Backing his appeal, the Office of the Alternate Defense Counsel argued the Court of Appeals panel had substituted its own rules for the high court’s decision in Weeks. Moreover, its conclusion that the amount of restitution is not actually part of a defendant’s sentence was “an untenable distinction,” wrote the office’s attorneys.

The Supreme Court will address whether Tennyson could challenge his restitution order after all.

‘I don’t have to plead’

Denver prosecutors charged Edward Martin Jones with attempted murder and assault. He represented himself at trial and a jury found him guilty.

On multiple occasions between his arrest and his trial, Jones acted defiantly in court. During his arraignment in March 2019, District Court Judge A. Bruce Jones asked Edward Jones to enter a plea. Edwards Jones replied, “I don’t have to plead.”

Judge Jones entered a plea of not guilty on Edward Jones’ behalf, which state law requires under the circumstances. He then removed Edward Jones from the courtroom for his misbehavior. Afterward, the defense’s “standby counsel” — whose purpose was to represent Edward Jones only if he became exceedingly disruptive — asked for more time to review the case.

Judge Jones agreed he would rescind the not guilty plea. Two months later, when Edward Jones again refused to plead, Judge Jones entered a not guilty plea.

In Colorado, the government generally has six months from the time of a not guilty plea to bring a defendant to trial, as part of the constitutional right to a speedy trial. The General Assembly has established one consequence for a violation: dismissal of the charges and a prohibition on further prosecution.

Last December, the Court of Appeals agreed the government violated Edward Jones’ speedy-trial right. Although the October 2019 trial fell within the deadline when measured from the not guilty plea in May, it was outside the deadline starting from the not guilty plea in March.

Because the standby counsel was not actually representing Edward Jones, “the district court had no authority to retract the not guilty plea during the March arraignment,” wrote Judge Ted C. Tow III. Therefore, the March plea was the only valid plea, which started the speedy-trial clock.

Justices Carlos Samour Jr. and Maria Berkenkotter indicated they would have taken up the prosecution’s appeal to determine if the complete dismissal of Edward Jones’ case was appropriate.

$1 million fee

After Louis Oswald III and Crystal Oswald divorced in 2010, there was a discovery of undisclosed oil and gas assets traceable to Louis Oswald. An outside company retained to investigate the issue found a “significant” amount of assets existed, but was unable to complete its report.

In January, then-Arapahoe County District Court Judge Cynthia Mares ordered Louis Oswald to pay a new expert investigator $1 million to pick up the investigation. She reasoned it was Oswald’s responsibility to disclose his assets, and he should pay for the additional work needed.

Oswald attempted to appeal to the Court of Appeals, but the court dismissed his petition on the grounds that Mares had not issued a “final, appealable order.”

Justices William Hood III and Melissa Hart indicated they would have reviewed Oswald’s appeal. Noting that certain child support orders are immediately appealable, they would have addressed whether the $1 million fee for an expert in a divorce case deserved the same type of consideration.