November 23, 2017

Archives for September 3, 2014

Don’t Delay, Submit VA Form 21a Today to Practice Before the Veterans’ Administration

flagThe Veterans’ Administration requires all attorneys who assist claimants in the preparation, presentation, and prosecution of claims for benefits to be accredited by the VA per 38 C.F.R. § 14.627(a). VA Form 21a is used to achieve accreditation, and it must be submitted prior to completing the second accreditation requirement, a three-hour CLE course regarding representation before the veterans’ administration, basic eligibility, claims and appeal procedures, and more.

Colorado Lawyers for Colorado Veterans and CBA-CLE will host a 3-hour accreditation course on January 9, 2015, presented by Michael Shea, Esq. This 3-hour course satisfies the VA requirement for CLE. It also satisfies VA continuing education requirements for attorneys who are already accredited.

Attorneys wishing to obtain Veterans’ Administration accreditation must submit VA Form 21a at least 90 days prior to taking the CLE course, as it can take up to 90 days for the VA to review the form and accredit the attorney. VA Form 21a can be downloaded here, and may be submitted via facsimile or as a PDF attachment to an email sent to ogcaccreditationmailbox@va.gov.

For more information on accreditation requirements, click here, and for more information on CLE’s “Practicing Before the Veterans’ Administration” class in 2015, click here.

 

Colorado Court of Appeals: Defendant Not Entitled to Withdraw Guilty Plea to Correct Purportedly Illegal Sentence

The Colorado Court of Appeals issued its opinion in People v. Fritz on Thursday, August 28, 2014.

Illegal Sentence—Plea Bargain—Moot.

Fritz admitted to sexually abusing his adopted daughter, J.F., more than 1,000 times over a three-year period. He pleaded guilty to aggravated incest, and the prosecution dropped the remaining charges. Fritz complied with the plea agreement until 2008, when he left Colorado without permission and travelled to the Philippines. The prosecution filed a complaint seeking to revoke his probation.

Fritz then filed a Crim.P. 35(a) motion to withdraw his guilty plea and a Crim.P. 35(c) motion to vacate an allegedly illegal sentence and conviction; both motions were denied by the court. Two months after Fritz filed a notice of appeal, he pleaded guilty to the probation violation. Both parties stipulated to a sentence of thirteen years in prison subject to discretionary parole. The trial court sentenced Fritz according to the new plea agreement.

On appeal, Fritz contended that he obtained an illegal sentence as part of his original plea bargain, thus entitling him to withdraw his guilty plea. However, Fritz was not materially induced to enter into a plea by the mandatory parole provision. If his original sentence was illegal, the only remedy is imposition of a new legal sentence. This appeal is moot because Fritz pleaded guilty to the probation violation and the trial court imposed a new legal sentence, thereby superseding the original sentence. Accordingly, the appeal was dismissed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Life Sentence Without Parole Unconstitutional for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Ruiz on Thursday, August 28, 2014.

Ineffective Assistance of Counsel—Sentence—Juvenile—Life Without Parole—Eighth Amendment.

While defendant was driving a car, his passenger (co-defendant) shot at a truck, wounding the driver. Co-defendant later shot at another car, killing the driver. Defendant was a juvenile at the time of his arrest. A jury convicted defendant of first-degree murder after deliberation and first-degree assault with a deadly weapon. The trial court sentenced him to life without parole on the murder count and to ten years and one day on the assault count.

Defendant raised a number of claims of ineffective assistance of trial counsel. However, these claims were procedurally barred. Defendant further contended that his appellate counsel failed to advise him of the one-year limitation period for filing a section 2254 petition. This did not warrant relief because appellate counsel did not have an obligation to advise appellant of this post-conviction option.

Defendant asserted, the People agreed, and the Court of Appeals concurred that defendant’s mandatory sentence to life imprisonment without the possibility of parole was unconstitutional. Defendant’s sentence of life without parole violates the Eighth Amendment because it was imposed without any opportunity for the sentencing court to consider whether this punishment is just and appropriate in light of defendant’s age, maturity, and the other factors. Accordingly, the case was remanded for resentencing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Plaintiff Failed to Exercise Due Diligence to Discover Theft; RICO Limitations Period Expired

The Tenth Circuit Court of Appeals issued its opinion in Robert L. Kroenlein Trust v. Kirchhefer on Monday, August 25, 2014.

Robert L. Kroenlein owned and operated J&B Liquors, a liquor store in Wyoming, through the Robert L. Kroenlein Trust. When Kroenlein died, his daughter became trustee, and his son-in-law, Eric Alden, took over management of the store. Alden lived in another town and left the operations of the store to another manager. During this time, the store purchased Anheuser Busch products from a distributor named Orrison through a salesman named Kirchhefer. Unbeknownst to Alden, Kirchhefer was operating a scheme in which he would order more beer than J&B needed and then steal the extra beer and sell it to other bars. As early as 2005, J&B’s accountants discovered that beer purchases exceeded sales. Eventually, Alden discovered that Kirchhefer was the thief, set up security cameras to capture the theft, and called law enforcement.

On August 15, 2011, Alden filed a complaint through the Kroenlein Trust against Kirchhefer, the bars to which he was selling the stolen beer, and the owners of the bars, alleging two state law claims and six RICO claims. According to the complaint, the defendants engaged in a pattern of racketeering by committing wire fraud. The district court granted summary judgment to defendants on the grounds that all of Kroenlein’s RICO claims were time-barred. The district court also determined that no “enterprise” existed between Kirchhefer and the other defendants, and therefore the RICO claims were barred on this alternative ground as well.

Kroenlein appealed, alleging the district court erred in determining its claims were time-barred. Kroenlein argued there was no way for it to have discovered its injury prior to August 31, 2007, and alternatively the limitations period was equitably tolled by defendants’ fraudulent concealment. The Tenth Circuit disagreed, concluding that had Kroenlein exercised due diligence it would have discovered the fraud as early as September 2005 under the injury-discovery rule. RICO’s four-year statute of limitations expired in 2009. RICO requires only discovery of harm, not discovery of the source of harm. Kroenlein’s equitable tolling for fraudulent concealment claims also failed because the undisputed evidence failed to support that by the exercise of due diligence plaintiff could not have known a cause of action may have existed.

The district court’s summary judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 9/2/2014

On Tuesday, September 2, 2014, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

Giuliano v. Colvin

Heavy Petroleum Partners, LLC v. Atkins

Scottsdale Insurance Co. v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania

Tabor v. Hilti, Inc.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.