May 24, 2018

Archives for April 6, 2011

Anticipating Possible Federal Shutdown, Chief Judge of U.S. District Court Issues Order Regarding Essential Employees

As uncertainty about the federal budget looms and the possibility of a government closure of all nonessential services becomes more, well, possible, many lawyers have wondered what this might mean at the federal courts.

While many things about a shutdown are still unclear, we have been in contact with the U.S. District Court of the District of Colorado and learned that the courts are given the discretion to identify “essential functions” that must be performed by staff in order to address the constitutional duty of the court to resolve cases, and that legislative or executive review of the courts’ determination is not required.

Along those lines, Chief Judge Wiley Y. Daniel of the U.S. District Court of the District of Colorado has issued General Order 2011-3, which states:

In accord with the Anti-Deficiency Act, 31 U.S.C., §§ 1341 and 1342 and The Guide to Judiciary Policy, Vol. 13, Ch.2, § 220.30, it is now

ORDERED that the functions performed by all employees and judicial officers of this court and the staffs of the judicial officers of this court are determined to be necessary and essential to address the court’s constitutional duty to hear and decide cases without interruption.

Unless so modified or revoked by the chief judge, this order shall remain in effect throughout the current fiscal year.

UPDATE: The United States Bankruptcy Court for the District of Colorado has indicated it has a similar order in the works.

U.S. Bankruptcy Court in Colorado to have CM/ECF Outage on April 17

On Sunday, April 17, CM/ECF will be unavailable on the United States Bankruptcy Court – District of Colorado’s e-filing system from 8:00 – 10:00 am.

The CM/ECF Online Case Management and Filing system is a comprehensive case management system that enables users to file electronically in cases pending before the United States Bankruptcy Court.

Colorado Supreme Court Recognizes 2010 As Most Productive Year Yet in Pro Bono Commitment Program

In 2010, attorneys across Colorado provided thousands of hours of pro bono legal services, helping to make it the most productive year yet in the Colorado Supreme Court’s Pro Bono Commitment Program.

In recognition of such a prolific year in pro bono legal work, ceremonies for those who committed to the program, and those who reached the goal, are scheduled throughout the state. The full 2011 Pro Bono Recognition list, including those who committed to the goal and those who met it, can be found here.

Since 2006, the court has encouraged Colorado law firms, solo practitioners, and in-house counsel groups to commit to providing an average of fifty hours of pro bono legal services per attorney. That goal is also included in the Colorado Rules of Professional Conduct; Rule 6.1 outlines the program, encouraging every lawyer to aspire to provide at least fifty hours of pro bono public legal services per year.

Calendar year 2010 saw 151 law firms, solo practitioners, and in-house counsel groups commit to trying to achieve the goal, with 115, or 76 percent, reaching the fifty-hours-per-attorney mark. In 2009, 120 firms, solo practitioners, and in-house counsel groups made the commitment and 94, or 78 percent, reached the goal. The program has grown steadily since it began five years ago.

“No matter the condition of our state’s economy, there always is an unmet need for access to justice for people who otherwise can’t afford legal representation. That need, though, becomes especially apparent in a deep recession like the one we’re recovering from now,” said Colorado Supreme Court Chief Justice Michael L. Bender. “The continued growth in this program is a very positive reflection on the fact that so many of us who chose the law as a profession did so in the interest of helping people.”

The Pro Bono Commitment Program was created to secure an enduring commitment from Colorado’s legal community to provide free legal services to indigent persons in civil matters and to annually recognize law firms, solo practitioners, and in-house counsel groups who give so generously of their time. Participants have until February 15 each calendar year to advise the Supreme Court whether they met the goal for the prior year.

Tenth Circuit: Opinions, 4/4/11

The Tenth Circuit on Monday issued two published opinions and six unpublished opinions.


In United States v. McHugh, the Court affirmed the district court’s decision. Petitioner pleaded guilty to possession of a firearm and ammunition by a felon, reserving his right to appeal the district court’s previous denial of his motion to suppress evidence; Petitioner contends that his Fourth Amendment rights were violated because the officer that detained him lacked reasonable suspicion to justify the investigatory stop. The Court found that nervous, evasive behavior, including fleeing from law enforcement, is a pertinent factor in determining reasonable suspicion; even though Petitioner’s behavior was in response to a security guard with an authoritative presence, and not a police officer, his behavior in response to the guard’s presence and questioning was relevant to the reasonable suspicion analysis. Therefore, reasonable suspicion existed to justify the investigatory stop at its inception as the facts available at the time “warranted an officer of ‘reasonable caution’ in believing ‘the action taken was appropriate.'”

In United States v. Flood, the Court affirmed the district court’s denial of Petitioner’s post-trial motions but remanded to vacate its ruling. Petitioner was convicted in Utah of making false or misleading statements to auditors, securities fraud, perjury, and conspiracy to commit securities fraud; Petitioner filed post-trial motions in the district court asserting that her convictions for certain offenses were barred by the applicable statute of limitations and that she received ineffective assistance of counsel because her trial counsel labored under actual conflicts of interest. The Court found that, regarding the statute of limitations claim, Petitioner improperly equated the waiver of the statute of limitations to the waiver of an indictment. However, because the record has not been sufficiently developed to determine whether Petitioner’s trial counsel labored under actual conflicts of interest, the Court found that Petitioner’s ineffective assistance of counsel claim cannot be considered on direct appeal. The Court remanded to vacate the district court’s ruling on the merits of the ineffective assistance of counsel claim so that it may be asserted in a collateral proceeding.


Wheeler v. BNSF Railway Co.

United States v. James

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney

Stemple v. Workman

United States v. Sturm

United States v. Dayton

Colorado Court of Appeals: Workers’ Compensation Insurance Company Lacks Standing to Attack Another Insurance Company’s Cancellation Procedures and Is Liable for Funeral Expenses

The Colorado Court of Appeals issued its opinion in First Comp Ins. v. Industrial Claim Appeals Office on March 31, 2011.

Workers’ Compensation—Statutory Employer—Direct Employer—Cancellation—Standing.

In this workers’ compensation insurance coverage dispute, petitioner First Comp Insurance (First Comp) sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming an administrative law judge’s holding that First Comp was liable for funeral expenses arising out of a workplace fatality. The appeal was dismissed.

First Comp, which insured the decedent’s statutory employer, contended that because Pinnacol Assurance (Pinnacol), the insurer for the decedent’s direct employer, failed to properly cancel the direct employer’s workers’ compensation insurance in accordance with CRS § 8-44-110, Pinnacol is responsible for the decedent’s funeral expenses. Pinnacol argued that First Comp lacked standing to raise the issue of Pinnacol’s compliance with statutory cancellation procedures. There is no language in the statute or the legislative scheme that confers on First Comp a legal right to challenge Pinnacol’s compliance with the statute. Therefore, any injury suffered by First Comp as a result of Pinnacol’s alleged failure to comply with the policy cancellation requirements of § 8-44-110 was not to a legally protected interest. Accordingly, First Comp lacked standing to challenge Pinnacol’s cancellation of decedent’s direct employer’s policy, and the appeal was dismissed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Summary Judgment Appropriate on Negligence and Gross Negligence Cliams When Parents Validly Limited Liability for Horseback-Riding Injury

The Colorado Court of Appeals issued its opinion in Hamill v. Cheley Colorado Camps, Inc. on March 31, 2011.

Negligence—Exculpatory Clause—Informed Consent—Public Policy—Gross Negligence.

Plaintiff Chelsea Hamill appealed the district court’s grant of summary judgment in favor of defendant Cheley Colorado Camps, Inc. (Cheley). The judgment was affirmed.

Hamill attended summer camp at Cheley in 2002, 2003, and 2004. Before attending camp each summer, Hamill and her parents signed a Liability/Risk Form (the agreement). In July 2004, when Hamill was 15 years old, she fell off a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had inappropriately saddled the horse she rode. The district court granted Cheley’s motion for summary judgment on the two negligence claims.

Hamill argued that the exculpatory clauses in the agreement do not bar her negligence claims. The Court of Appeals disagreed, finding the agreement valid for the following reasons: (1) the agreement did not implicate a public duty and did not involve an essential service; (2) Hamill’s mother voluntarily chose to sign the agreement, expressly giving permission for Hamill to participate in horseback riding activities; (3) the agreement was fairly entered into; and (4) the agreement plainly expressed the intent to release prospective negligence claims.

Hamill contended that her mother’s consent to release prospective negligence claims was not “informed,” as required by CRS § 13-22-107, because she did not understand the scope of the agreement. Although Hamill’s mother may not have contemplated the precise mechanics of her daughter’s fall, this does not invalidate the release and does not create a genuine issue of material fact. She knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity. Therefore, the district court did not err in granting summary judgment for Cheley.

Hamill further argued that public policy considerations render the agreement invalid. The governing statute promotes children’s involvement in horseback riding and approves the informed release of prospective negligence claims. Thus, Hamill’s public policy argument failed.

Finally, Hamill contended that genuine issues of material fact existed regarding her gross negligence claim. There is no evidence that Cheley’s wrangler was “willfully” incompetent, purposefully caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Thus, the district court was correct in dismissing the gross negligence claim on summary judgment.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Defendant Unsuccessful on Claims Except Court Did Err in Imposing Aggravated Sentence for Kidnapping Charge

The Colorado Court of Appeals issued its opinion in People v. Glasser, Jr. on March 31, 2011.

Sexual Assault and Kidnapping—Suppression of DNA Evidence—Illegal Sentence and Exclusionary Rule—Expert Testimony.

Defendant appealed the judgment entered on jury verdicts finding him guilty of first-degree sexual assault and second-degree kidnapping. He also appealed his sentence. The judgment was affirmed, the sentence was affirmed in part and reversed in part, and the case was remanded for resentencing.

On November 27, 1996, the victim was walking home from work in Denver when defendant pulled her by the neck into his van. Keeping a gun trained on her head, he removed the victim’s clothing and raped her. After the assault, defendant abandoned the victim next to a dumpster behind a building.

The next day, the victim was taken to the hospital for a rape kit examination. A semen sample was recovered, but the initial investigation yielded no suspects and the case was filed as inactive. Eight years later, the case was reopened and a DNA database search resulted in a DNA sample match to defendant.

Defendant was charged with aggravated first-degree sexual assault (physical force and violence), aggravated first-degree sexual assault (present threats); and second-degree kidnapping (victim of sexual assault). A jury found him guilty on all counts and also found that he had used a deadly weapon during the sexual assault. Defendant was sentenced in the aggravated range to thirty years in the Department of Corrections (DOC) and thirty years on the kidnapping count to run consecutively, followed by five years of parole.

On appeal, defendant argued it was error to deny his motion to suppress the DNA evidence used to identify him because it was obtained as the result of an illegal plea bargain. The Court of Appeals disagreed.

In 1998, defendant pleaded guilty to sexual assault on a child and to sexual assault on an at-risk adult. In accordance with the plea agreement and as a condition of his probation, defendant provided the DNA sample that led to his conviction in this case. Following violation of the terms of his probation, defendant moved to correct what was an illegal sentence under the terms of the statutes then in effect. The Arapahoe County court granted the motion, vacated defendant’s sentences, and ordered withdrawal of his guilty pleas. Defendant then moved the trial court in this case to suppress all evidence derivative of his illegal sentence, including the DNA. The court denied the motion, holding that the basis for the county court’s order was a statutory violation resulting in an illegal sentence rather than a constitutional violation, and declined to extend the exclusionary rule beyond police misconduct.

The Court agreed that suppression of evidence generally is available only for a constitutional violation but not for a statutory violation. In this case, however, the constitutional violation alleged was that the prosecution violated his due process rights when it promised a suspended sentence in consideration for his guilty plea, a promise that could not be fulfilled because of its illegality. The DNA sample would not have been taken but for defendant’s agreement to submit to it as a condition of probation. The Court therefore agreed that the DNA sample derived from the unconstitutionally obtained plea and conviction that violated his due process rights under the Fourth Amendment. However, the Court agreed with the trial court that the DNA sample is not subject to the exclusionary rule.

The exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights through its deterrent effect. Here, the Court found two reasons that the rule did not apply. First, the constitutional error did not involve the police. The constitutional violation was that of due process related to the improperly obtained plea. Second, the prosecutor did not act “flagrantly,” given that defense counsel and the trial court accepted the pleas.

Defendant also argued that it was error to admit evidence of other sexual acts. The Court disagreed. Defendant only challenged the other acts evidence on the grounds that its probative value was substantially outweighed by the danger of unfair prejudice. In this case, the similarity of the prior acts of isolating vulnerable females in his vehicle for the purpose of sexual gratification was sufficiently similar to the act charged to uphold the trial court’s finding that its probative value outweighed its prejudicial nature.

Defendant argued that it was error to deny his motion to dismiss based on a violation of the Uniform Mandatory Disposition of Detainers Act (UMDDA). The Court disagreed. Under the UMDDA, it is the duty of the superintendent of the institution where the prisoner is confined to respond to a written request for a final disposition of the charges by forwarding it to the court and prosecutor. A trial must occur within 180 days after receipt of the request. If the trial does not occur in that time frame, the court must dismiss the charges with prejudice. A violation of the prompt notification requirement, if it occurs within the first year after filing, entitles the defendant to dismissal unless the prosecution can demonstrate a lack of prejudice as a result of the violation. Here, the Court found the prosecution had shown that the delay in notification did not prejudice defendant.

Defendant further argued that it was error to allow the People’s expert witness to testify. The Court disagreed, finding no abuse of discretion in the trial court’s decision to admit expert testimony on the typical behavior of a sexual assault victim.

The Court also rejected defendant’s contention that the trial court erred by imposing consecutive rather than concurrent sentences. The trial court found that the kidnapping greatly increased the risk and danger of the sexual assault and therefore was a separate offense. There was no abuse of discretion in the trial court’s finding.

The Court agreed with defendant that the trial court erred by imposing an aggravated sentence for the kidnapping charge. The jury found defendant used a deadly weapon during the sexual assault but not during the kidnapping. Without such a finding, it was an abuse of discretion to consider the deadly weapon in the context of the kidnapping sentence.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Prosecution’s Application for Revocation Abandoned When No It Made No Reasonable Efforts to Obtain an Expeditious Ruling on Its Motion

The Colorado Court of Appeals issued its opinion in People v. Walker on March 31, 2011.

Deferred Judgment—CRS § 18-1.3-102(1)—Abandonment.

On May 8, 2000, defendant, represented by appointed counsel, pleaded guilty to possession of a schedule II controlled substance. In exchange, the prosecution dismissed two counts and, at the request of the prosecution and defendant, the court deferred judgment and sentence for two years. Following a hearing, the district court revoked defendant’s deferred judgment, entered the felony conviction, and sentenced defendant to three days in jail. Defendant appealed the judgment of conviction and imposition of the sentence. The judgment and sentence were vacated and the case was remanded with directions.

Under CRS § 18-1.3-102(1), a defendant and the prosecution may agree to defer judgment and sentencing and stipulate to conditions with which the defendant must comply to successfully complete the deferment.

If the defendant does not comply with the stipulated conditions, the district attorney or probation officer may apply for entry of judgment and imposition of sentence “at any time within the term of the deferred judgment or within thirty days thereafter.”

On March 5, 2002, defendant’s diversion supervisor stated in an affidavit that defendant had not complied with the terms of the deferment. She requested an arrest warrant be issued because she did not know defendant’s whereabouts despite diligent efforts to find her.

On March 12, 2002, the People filed a motion to revoke the deferred judgment and attached the supervisor’s affidavit and a certificate of mailing to defendant’s counsel of record. The next day, the court granted a motion for an arrest warrant, which issued on March 15, 2002.

The next entry in the record of action was June 21, 2005, more than three years after the warrant issued. It indicated the court reviewed the file and conducted a hearing. No record of the hearing or whether a notice was sent was in the record of action. The next entry was dated February 14, 2007 and reflected another review by the court and another hearing. Again, there was no indication of the purpose or result of the hearing or whether a notice was sent.

Defendant was arrested on May 23, 2008, more than six years after the warrant was issued and more than eight years after she entered her plea. On May 27, she was released from custody and a hearing date was set. Revocation hearings were twice scheduled and continued.

On July 14, 2008, a revocation hearing was held. Defendant’s new appointed counsel informed the court that defendant’s diversion file had been destroyed; the supervisor was not present to testify; and defendant’s drug treatment counselor was no longer employed by the treatment center and could not be found. Defendant requested that the court dismiss the case.

The court heard testimony from defendant and a diversion officer who worked with the supervisor. The court “expressed considerable dissatisfaction with the circumstances and urged the parties to seek a mutually agreeable resolution.” They were not able to do so. The court found by a preponderance of the evidence that defendant had violated the conditions of the deferment and thus was required to revoke the deferment. The court entered judgment and sentenced defendant to three days in jail, credited her for three days served, and closed the case.

On appeal, defendant argued that the prosecution abandoned its motion for entry of judgment of conviction because it did not act on the motion for more than six years. The Court of Appeals agreed.

The Court noted that although the motion and warrant were timely, there was no indication that the warrant was returned to the court with information about efforts to serve it, and whether those efforts were successful. The record did not reflect that the prosecution ever tried to set the matter for a hearing. There was no allegation or record support that defendant was voluntarily absent from the jurisdiction or imprisoned on another offense. On the contrary, it was undisputed that defendant lived at the same address of record throughout the proceedings.

The Court concluded that the prosecution did not make reasonable efforts to obtain an expeditious ruling on its motion. The Court therefore deemed the prosecutio

Colorado Court of Appeals: Prosecution’s Application for Revocation Abandoned When No It Made No Reasonable Efforts to Obtain an Expeditious Ruling on Its Motion

n’s application for revocation to have been abandoned before defendant was arrested in May 2008. The judgment of conviction and sentence were vacated.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Error to Designate Defendant as Sexually Violent Predator and Admit Expert Testimony, but DNA Evidence Was Properly Admitted

The Colorado Court of Appeals issued its opinion in People v. Valencia on March 31, 2011.

Sexual Assault—Foundation for Opinion Testimony—Sexually Violent Predator—Fruit of Illegal Search.

Defendant appealed the judgment entered on jury verdicts finding him guilty of sexual assault, first- and second-degree assault (merged), first-degree burglary, and false imprisonment. The judgment was reversed and the case was remanded for a new trial.

Defendant was the ex-boyfriend of the victim. While the victim was out drinking with friends, defendant entered her house without permission and hid in her bedroom closet. The victim testified that when she returned home in the early morning hours, defendant burst from the closet and attacked her. He punched her and slashed her with a knife. He cut her chin and neck and stuck the knife down her throat. She grabbed at the knife and cut her hands. Defendant grabbed her by the hair and pulled her into the shower, where she lost consciousness. When she awoke, defendant forced her to have sex with him. He then cleaned portions of the house and fled after she promised not to call the police and gave him a check for $150.

Police responded to the scene and the victim identified defendant as her attacker. She was then transported to the hospital. Later that evening, officers arrested defendant without a warrant as he waited outside the victim’s sister’s house. While he was in custody, and again without a warrant, officers swabbed a speck of blood in his ear and, at a later date, they also obtained buccal swabs from him. Those items, along with the victim’s rape kit, were forwarded to the Colorado Bureau of Investigations (CBI), where they were purportedly subjected to DNA and serological testing.

At trial, the prosecution presented evidence that the swabs and rape kit were suitably packaged, marked for identification, and delivered to the CBI. An expert testified that the blood on defendant’s ear was that of the victim and that defendant’s sperm was found in the victim’s vagina. This testimony was based on the expert’s examination of certain items, which she had received from an “analyst” at the CBI. However, she did not describe the items themselves nor the packaging in which they were contained.

The items examined by the expert were not introduced as evidence, and defendant objected to the witness’s testimony on the ground that there had not been a sufficient foundation laid to receive that testimony. Defendant contended that the trial court abused its discretion by allowing the witness to testify, absent a proper identification of the items she examined. The Court of Appeals agreed and reversed the trial court’s judgment.

C.R.E. 703 provides that “[t]he facts or data . . . upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.” Thus, an expert may acquire knowledge of facts on which to base an opinion through first-hand observation, through facts presented at trial, or through facts that are outside the record that, although not personally observed by the expert, are of a type reasonably relied on by experts in the same field.

Here, it was clear that the expert had no personal knowledge of the origin of any of the objects she tested. Accordingly, the identity of those items needed to be established by other means, which did not happen. The admission of this evidence was not harmless error because the only other evidence connecting defendant with the assaults was the victim’s testimony, and that testimony was unclear on many points.

The Court addressed several other of defendant’s arguments as they might arise on remand. Defendant asserted that it was error to designate him a sexually violent predator. The Court agreed. The victim was not a stranger to defendant and defendant did not establish a relationship with her for the primary purpose of sexual victimization. Both conditions are prerequisites to a designation as a sexually violent predator.

Defendant argued that any DNA evidence resulting from the swab of his ear should have been suppressed as the fruit of an illegal search. The Court disagreed. In Colorado, a peace officer may make a warrantless arrest if he or she has probable cause to believe that an offense has been committed and that the offense was committed by the person to be arrested. This determination is a practical one to be discerned from the totality of the circumstances known to the arresting officer. When a victim gives information to the police, that information is presumed sufficiently reliable to establish probable cause for an arrest. If an arrest is valid, so too is the search of the person arrested.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: No-Contact Provision of Probation Was Sufficiently Clear to Warn Defendant

The Colorado Court of Appeals issued its opinion in People v. Devorss on March 31, 2011.

Revocation of Probation—No-Contact Provision for Sex Offender.

On September 25, 1998, the prosecution charged defendant with one count of sexual assault on a child, one count of sexual assault on a child by one in a position of trust, and one count of sexual assault on a child—pattern of sexual abuse. The charges were based on allegations that he sexually assaulted his girlfriend’s young daughter. The parties entered into a plea agreement, and on November 3, 1998, defendant pleaded guilty to one count of sexual assault on a child and one added count of sexual assault in the third degree. The trial court sentenced defendant to a ninety-day jail term and eight years’ probation for the first count and a concurrent one-year jail term for the second count.

In July 2001, a probation officer filed a complaint alleging that defendant violated a condition of his probation by failing to timely make a restitution payment. The complaint was withdrawn after defendant made the payment. In August 2002, a probation officer filed a complaint alleging defendant violated his probation by pleading guilty to one count of third-degree assault in an unrelated case. After a hearing, the court revoked and reinstated defendant’s probation and sentenced defendant to two days in county jail.

Less than a year later, a probation officer alleged multiple violations by defendant, including failure to timely register as a sex offender, failure to make timely restitution payments, curfew violations, nightly call-in violations, and poor progress in his required sex offender treatment program. The officer requested modification of defendant’s probation sentence to include 120 days of electronic GPS monitoring. The court granted the request.

In November 2004, a probation officer alleged defendant tested positive for methamphetamine and failed to abide by requirements of the sex offender treatment program. Defendant agreed to plead guilty to the drug test violation in return for the officer requesting revocation and reinstatement of probation, as opposed to revocation and a sentence to the Department of Corrections (DOC). The court agreed and sentenced defendant to five years of supervised probation commencing that day.

On August 22, 2006, a probation officer alleged defendant had direct contact with a child under the age of 18 and had not successfully completed a sex offender treatment program. At the hearing, defendant testified that he and a co-worker went to a restaurant for their lunch break. It was the co-worker’s birthday and the co-worker’s mother would be joining them. Defendant testified that he didn’t notice a boy sitting in the booth with them until he put his plate down. The child was the co-worker’s nephew and was between 13 and 15 years old.

Coincidentally, defendant’s probation officer also was at the restaurant. Defendant went to the probation officer to ask her what he should do. She suggested he could switch seats with his co-worker, but noted that she could not advise him further because she was not his supervising officer. Defendant didn’t change his seat, but called his support person to discuss the situation because he still felt uncomfortable. Defendant disclosed the entire incident to his supervising probation officer at their next meeting.

The trial court found defendant had violated the “no-contact” provision of his probation. On May 23, 2007, the court revoked defendant’s probation and sentenced him to eight years in the DOC and three years of mandatory parole. The DOC sentence was suspended for five years on the condition that he serve six months in county jail and remain on supervised probation for the remainder of the five-year suspension.

On appeal, defendant argued that the no-contact condition of his probation was unconstitutionally vague as applied to him. It was undisputed that he did not look at, talk to, or physically touch the child he sat next to. The Court of Appeals noted that a law is unconstitutionally vague “only if it specifies no standard of conduct at all, and not if it requires a person to conform his or her conduct to an imprecise, but comprehensible normative standard.” A condition of probation is vague if it does not, with sufficient clarity, prohibit the conduct against which it is to be enforced.

The Court held that the no-contact provision was sufficiently clear to warn defendant that he was prohibited from sitting in close proximity to a child under the age of 18. Moreover, all of defendant’s actions indicated that he was aware that he was doing something that could be considered a violation of the probation condition. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Abuse of Discretion to Deny Motion for Continuance When Court Did Not Make Findings as to Propriety of Reasons for Request

The Colorado Court of Appeals issued its opinion in People v. Brown on March 31, 2011.

Replacing Appointed Counsel Before Trial—Sixth Amendment Right to Counsel.

Defendant Eric Brown appealed the judgment entered on jury verdicts finding him guilty of second-degree kidnapping, sexual assault, and criminal attempt to commit unlawful sexual contact. The judgment was reversed and the case was remanded with directions.

Brown was arrested in March 2005 and the trial court appointed a public defender to represent him. In September, Brown requested a continuance because tests from the Colorado Bureau of Investigation had not been completed. The prosecutor joined in the request. The trial was reset for December, but that date was continued at the request of the prosecutor because the victim was unavailable. The new date, January 10, 2006, was continued at Brown’s request because the court granted the prosecutor’s motion to reconsider an earlier ruling, and allowed the introduction of significant C.R.E. 404(b) evidence. The trial was reset for February 14, 2006.

On February 2, newly retained private counsel for Brown entered an appearance and sought a continuance to prepare for trial, agreeing to waive Brown’s right to a speedy trial. At the hearing, the new counsel explained that Brown had always wanted private counsel, but that it had taken time to raise the funds for his retainer. He also indicated that he was ready to work on the case and that he didn’t believe Brown had done this to cause delay. The prosecutor objected because of the previous continuances.

The trial court refused to continue the trial, and private counsel withdrew on the basis that he couldn’t be ready for trial on such a short notice. Brown was convicted on a jury verdict of second-degree kidnapping, two counts of sexual assault, and criminal attempt to commit unlawful sexual contact. The Court of Appeals held that it would not reverse the trial court’s decision absent a showing of an abuse of discretion, and found that the circumstances of this case appeared to be one of first impression in Colorado.

Based on the facts of the case, the Court concluded it was an abuse of the trial court’s discretion to have denied Brown’s motion for a continuance. First, the trial court did not make findings, or seem to consider, the following: (1) whether Brown was properly exercising his right to choose counsel, as opposed to attempting to manipulate the court’s schedule; (2) that the record indicated that Brown’s motive was not dilatory or contrived; and (3) that two of the three prior continuances were not attributable to Brown and the third was due to a circumstance beyond his control. In addition, retained counsel represented that he was prepared to work on the case, had ordered discovery, and had hired an investigator. The trial court didn’t inquire into how soon retained counsel could be prepared for trial, nor did it make findings as to whether a continuance would adversely affect its docket. Finally, the prosecutor did not argue specific prejudice, and the court didn’t inquire as to whether another continuance would cause prejudice as opposed to mere inconvenience. Accordingly, the judgment was reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.

Colorado Court of Appeals: Plaintiff Was Precluded from Using Safe Harbor Clause to Return to a Vacant Traditional Pay Plan Position

The Colorado Court of Appeals issued its opinion in Kirkmeyer v. Colorado Dep’t of Local Affairs on March 31, 2011.

State Employment—Senior Executive Service—Safe Harbor Clause—Contract—CRS § 24-50-104(5)(c)—Unconstitutional—Standing.

Plaintiff Barbara Kirkmeyer appealed the summary judgment upholding her separation from state employment in favor of defendants Colorado Department of Local Affairs (DOLA); Susan E. Kirkpatrick, in her capacity as DOLA’s Executive Director; and Richard Gonzales, in his capacity as Executive Director of the Department of Personnel and Administration. The judgment was reversed and the case was remanded.

Kirkmeyer, formerly a state employee serving in the senior executive service (SES), a special pay plan, sought return to a vacant position in the traditional pay plan to which she had been certified, when her most recent annual SES contract expired. When Kirkmeyer’s contract ended, she was not returned to a position in the traditional pay plan. The trial court concluded that the safe harbor clause (SHC) in Kirkmeyer’s SES contract was illegal and unenforceable because it did not comply with CRS § 24-50-104(5)(c), Rules 2-11(C) and 2-13.

Kirkmeyer contended that if § 24-50-104(5)(c) (“[a]ny person in the senior executive service shall have no right to a position outside of the senior executive service”) precludes her return to a position in the traditional pay plan, it is unconstitutional on its face because it creates a parallel state personnel system not subject to article XII, § 13 of the Colorado Constitution. She also contended it was unconstitutional as applied because refusal to return her to a vacant position in the traditional pay plan on expiration of her third SES contract defeated her right to remain a state employee during efficient service. However, Kirkmeyer lacked standing to attack § 24-50-104(5)(c) on its face because the statutory preclusion of an “outside” position applies to employees only while in the SES, not to an employee whose SES contract has expired, and she neither seeks relief for any injury suffered while she was in the SES nor any longer holds an SES position. Further, the Court of Appeals declined to address the constitutionality of the statute as applied to Kirkmeyer because it was moot based on their interpretation of the statute.

DOLA contended that independent of the statute, Rules 1-19, 2-11(C), and 2-13 preclude Kirkmeyer from using the SHC to demand return to a vacant traditional pay plan position. Because the SHC is ambiguous, however, the Colorado State Personnel Board must conduct a hearing to ascertain Kirkmeyer’s rights under it. Accordingly, the Board’s decision was affirmed except to the extent that it adopted the administrative law judge’s decision limiting the hearing to Kirkmeyer’s right to compete for open positions.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 31, 2011, can be found here.