Colorado’s second-highest court turned aside a defendant’s challenge earlier this month to a judge’s decade-old order that he pay $28,518 in crime victim restitution, even though the judge failed to comply with state law in doing so.

In Colorado, as part of sentencing, judges must consider whether defendants owe financial restitution to their victims. If so, prosecutors generally need to provide the requested amount by the time of sentencing or within 91 days of sentencing. Judges must also impose the restitution amount within 91 days of sentencing. If judges need to extend either deadline, they must find extenuating circumstances or good cause.

In a major decision, People v. Weeks, the state Supreme Court ruled in November 2021 that judges’ historical process of awarding compensation to crime victims did not comply with Colorado law. The justices noted a lackadaisical approach had taken hold in the trial courts that neglected the clear deadlines and procedural requirements. Consequently, if trial judges fail to follow the law, they lose authority to issue a restitution order.

After Thomas Andrew Huntley pleaded guilty to a pair of offenses in 2014, the prosecution in Douglas County submitted its restitution request nearly 80 days after Huntley’s sentencing. Huntley did not object and then-District Court Judge Paul A. King ordered the restitution amount 118 days after sentencing — without finding good cause to exceed the deadline.

Only in 2022, and after the Supreme Court decided Weeks, did Huntley file a motion to overturn the faulty restitution order. But by 2-1, a three-judge Court of Appeals panel determined Huntley was obligated to file his challenge within 126 days of the original order.

“Huntley’s motion challenging the restitution order as being entered in an illegal manner, filed seven and a half years after the order entered, is therefore untimely,” wrote Judge W. Eric Kuhn in the May 1 opinion.

Judge Timothy J. Schutz dissented. He believed Huntley’s restitution order was not just issued in an illegal manner, but King’s noncompliance rendered the sentence itself illegal and, therefore, open to challenge at any time.

“The majority opinion attempts to excuse the sentencing court’s failure to meet its obligations,” he wrote, “based on the fact that this sentence was entered in 2014, seven years before the supreme court issued the Weeks decision. But Weeks did not create new law.”

Previously, a precedent-setting Court of Appeals opinion addressed whether defendants could mount postconviction challenges to years-old restitution orders that violated Weeks. The opinion held such challenges addressed only the “illegal manner” in which a judge imposed restitution. That “procedural deficiency” did not render the sentence itself illegal.

That decision — which is not binding on other Court of Appeals panels — is currently in front of the Supreme Court for review along with other legal questions addressing the fallout from Weeks. Schutz acknowledged the justices’ upcoming ruling could affect whether Huntley is ultimately successful, or whether Schutz’s own views on the subject “will be obsolete.”

Huntley’s challenge alleged multiple flaws with his restitution order. Apart from King’s violation of the 91-day deadline, he pointed out King, at the time of sentencing, did not explicitly say whether Huntley would owe restitution.

In 2022, District Court Judge Theresa Slade initially agreed King’s order, 118 days after sentencing, was “entered without jurisdiction” — while inexplicably quoting a non-existent line from Weeks. But she believed the proper time to challenge restitution was after Huntley was resentenced a few years prior for a probation violation.

The Court of Appeals panel’s majority distanced itself from that rationale, instead holding that Huntley had 126 days to challenge the faulty restitution order after King issued it.

“Huntley challenges the procedure that preceded the district court’s determination of the amount he must pay to the victims. A challenge to the procedure used to reach a restitution amount is an illegal manner claim, not an illegal sentence claim,” wrote Kuhn for himself and Judge Craig R. Welling.

Kuhn added “the better practice” would have been for King to explicitly state at sentencing that Huntley would need to pay crime victim restitution, but the context of his plea agreement made clear that restitution would be a factor.

Schutz, who has been critical of deviations from the process the Supreme Court envsionsed in Weeks, saw otherwise. He noted state law did not authorize King to issue a sentencing order that was ambiguous about whether Huntley even owed restitution.

“The obligation to enter such an order, along with the corresponding obligation to ensure that restitution is resolved within ninety-one days,” he wrote, “rests solely on the sentencing court’s shoulders. The sentencing court here did neither.”

The case is People v. Huntley.