Peo v. Melendez-Carrera
21CA1146
| Colo. Ct. App. | Aug 15, 2024
Opinion Summary

Facts

  1. Aaron Gero pleaded guilty in 2016 to distributing heroin, resulting in a 59-month prison sentence and five years of supervised release [lines="71-73"].
  2. After beginning supervised release in 2019, Gero violated its terms multiple times, leading to three prior revocations [lines="75-76"].
  3. Gero was sentenced to two years of imprisonment and a new seven-year term of supervised release following a no contest plea to a domestic assault charge [lines="78-79"].
  4. The district court emphasized public safety as a key reason for imposing the additional supervised release [lines="129-131"].
  5. Gero's history of violent behavior was noted, particularly a prior serious domestic assault that raised concerns about community safety [lines="162-169"].

Issues

  1. Did the district court commit procedural error by not separately explaining the rationale for the seven-year term of supervised release? [lines="90-92"].
  2. Was the imposition of the seven-year term of supervised release substantively unreasonable given Gero’s prior offenses and circumstances? [lines="181-182"].

Holdings

  1. The court found no procedural error as the district court sufficiently articulated its reasons for the term of supervised release, focusing on public safety [lines="126-128"].
  2. The seven-year term of supervised release was substantively reasonable considering Gero’s record of violence and the nature of his offenses [lines="205-206"].

OPINION

21CA1146 Peo v Melendez-Carrera 08-15-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1146
Adams County District Court No. 20CR1011
Honorable Caryn A. Datz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ruben Melendez-Carrera,
Defendant-Appellant.
ORDER VACATED
Division III
Opinion by JUDGE DUNN
Yun and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 15, 2024
Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Ruben Melendez-Carrera, appeals the trial court’s
restitution order. We vacate the order.
I. Background
¶ 2 Melendez-Carrera pleaded guilty to second degree assault and
agreed to pay “any Court-ordered restitution.”
¶ 3 On December 17, 2020, the trial court sentenced Melendez-
Carrera and granted the prosecution’s request to “reserve
restitution” for ninety-one days.
¶ 4 On February 26, 2021 — seventy-one days after sentencing —
the prosecution filed its restitution motion. A few days later, the
court granted the prosecution’s request that any objection be filed
within thirty-five days.
¶ 5 On March 26 — less than thirty-five days later but one
hundred days after sentencing — Melendez-Carrera objected to the
restitution motion, arguing, among other things, that under section
18-1.3-603(1)(b), C.R.S. 2023, and People v. Weeks, 2020 COA 44
(Weeks I), the trial court “lack[ed] jurisdiction to impose restitution”
because it hadn’t done so within the statutory ninety-one-day
deadline. The prosecution never responded to this particular
argument, and the court never addressed it.
2
¶ 6 Ultimately, on June 18 — one hundred and eighty-four days
after sentencing — the court ordered Melendez-Carrera to pay
$5,678.40 in restitution.
II. The Trial Court Lacked Authority Under the Restitution
Statute and Weeks
¶ 7 Melendez-Carrera contends that the trial court lacked
authority to enter the restitution order more than ninety-one days
after his sentencing because it didn’t make an express good cause
finding to extend that deadline as required by section 18-1.3-
603(1)(b) and People v. Weeks, 2021 CO 75, ¶ 5 (Weeks II). We
agree.
¶ 8 We review de novo whether a trial court complied with the
restitution statute. See Weeks II, ¶ 24; see also People v. Roddy,
2021 CO 74, ¶ 23.
¶ 9 Weeks II, ¶¶ 4-5, plainly requires that when a trial court defers
determination of the restitution amount at sentencing, it must
either (1) determine the amount of restitution within ninety-one
days of the order of conviction or (2) make an express finding of
good cause for extending that deadline before the deadline expires.
Absent an express and timely good cause finding, the trial court
3
lacks authority to order restitution after the ninety-one-day
deadline. Id. at ¶ 45; People v. Brassill, 2024 COA 19, ¶¶ 56-58;
People v. Roberson, 2023 COA 70, ¶ 12 (cert. granted Apr. 8, 2024).
¶ 10 It is undisputed that the trial court here entered restitution
long after the ninety-one-day deadline expired. And the
responsibility to enter a timely restitution order falls to the court —
not the defendant. See Brassill, ¶ 20 (“[T]he [restitution] statute
places an obligation on the sentencing court to ensure that
restitution is resolved within ninety-one days from the entry of the
order of conviction.”); see § 18-1.3-603(1)(b) (referring to the court’s
obligation to enter a timely restitution order).
¶ 11 We reject the People’s suggestion that Melendez-Carrera
somehow waived the ninety-one-day deadline or “invited” the
untimely restitution order. Melendez-Carrera didn’t ask for an
extension of the restitution deadline, nor did he ask that the
restitution hearing be set outside the ninety-one-day deadline. He
4
simply pointed out the violation of the ninety-one-day deadline, and
he did so within the briefing schedule set by the court.
1
¶ 12 That leaves only the question of whether the trial court made
an express and timely good cause finding to extend the deadline
before the deadline expired. See Weeks II, ¶¶ 39-40. It did not.
The only order the court entered before the statutory restitution
deadline passed was an order adopting the prosecution’s request
that any objection be filed within thirty-five days. That order didn’t
acknowledge the ninety-one-day deadline, let alone include any
express good cause findings to extend it. And because any express
good cause findings had to be made before the ninety-one-day
deadline passed, we don’t agree with the People’s contention that
later events somehow established good cause to extend the
deadline. See id. at ¶ 7 (noting that neither belated requests nor
belated orders “may act as a defibrillator to resuscitate an expired
deadline”).
1
Even assuming Melendez-Carrera had some obligation to assert
the right to a timely restitution determination, the failure to assert
such a right would be a forfeiture, not a waiver. See People v.
Turner, 2022 CO 50, ¶ 14 (A forfeiture is “the failure to make the
timely assertion of a right.”) (citation omitted).
5
¶ 13 Because the trial court didn’t impose the amount of restitution
within the ninety-one-day deadline and didn’t make a good cause
finding to extend that deadline, it lacked authority to enter the
restitution order. And because the entry of an order that the court
lacked authority to enter, “by definition, is not harmless,” People v.
Mickey, 2023 COA 106, ¶ 11, we also reject the People’s contention
that vacatur isn’t required because any error was harmless. See
Weeks II, ¶¶ 45-47 (vacating a restitution order that was entered
after the ninety-one-day deadline because the court “lacked
authority” to enter it); see also Roberson, ¶ 32 (observing that when
Weeks II vacated the restitution order, “it did not consider
harmlessness”).
¶ 14 We therefore must vacate the restitution order. Having so
concluded, we needn’t consider Melendez-Carrera’s remaining
challenges to the restitution order.
III. Disposition
¶ 15 The restitution order is vacated.
JUDGE YUN and JUDGE MOULTRIE concur.
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