August 18, 2017

Archives for May 23, 2016

Bills Regarding Residential Drug Treatment for Probationers, Enhancing Cybersecurity, and More Signed

On Friday, May 20, 2016, Governor Hickenlooper signed seven bills into law. To date, he has signed 199 bills this legislative session. Some of the bills signed Friday include a bill to extend the transitional jobs program, a bill to allow persons on probation for any offense to engage in residential drug treatment, and a bill to increase state cybersecurity. The bills signed Friday are summarized here.

  • HB 16-1097 – Concerning Regulation of Medicaid Nonemergency Transportation Providers, and, in Connection Therewith, Making and Reducing an Appropriation, by Reps. Don Coram & Dominick Moreno and Sen. Ray Scott. The bill allows providers of non-emergency transportation to Medicaid clients to operate under a limited regulation permit from the Public Utilities Commission.
  • HB 16-1197 – Concerning a Requirement that State Agencies Implement a Program to Streamline the Granting of Occupational Credentials to Veterans Based on Military Training, and, in Connection Therewith, Making an Appropriation, by Reps. Terri Carver & Jovan Melton and Sens. Nancy Todd & Larry Crowder. The bill requires each state agency that certifies, licenses, or registers an occupation to publish a summary of pathways available to military veterans by evaluating the extent to which military training meets state requirements, identifying reciprocity mechanisms in other states, and determining if occupational examinations are available that authorize a veteran to practice; consult with community colleges and other post-secondary education institutions about courses or programs that fill the gap between military and civilian occupational training, and refresher courses for lapsed occupational training; and consider adopting a national credentialing examination.
  • HB 16-1267 – Concerning the “Colorado Veterans’ Service-to-Career Pilot Program”, and, in Connection Therewith, Creating a Grant Program Through the Department of Labor and Employment to Aid Work Force Centers in Supporting Veterans and their Spouses Seeking New Employment and Careers, and Making an Appropriation, by Reps. Pete Lee & Rhonda Fields and Sens. Laura Woods & Morgan Carroll. The bill creates the Colorado Veterans’ Service-to-Career Pilot Program. Through CDLE and in partnership with nonprofit agencies, workforce centers throughout the state may apply for grants to develop and expand career services for veterans, spouses, and eligible participants. Eligible participants include a veteran’s dependent child under age 27 and a veteran’s caregiver over age 18.
  • HB 16-1278 – Concerning Residential Drug Treatment for Persons on Probation, by Rep. Pete Lee and Sen. John Cooke. The bill allows the court to require a defendant to participate in drug treatment when sentenced to probation for any offense, rather than just drug offenses.
  • HB 16-1288 – Concerning the Creation of an Industry Infrastructure Grant Program Within the State Work Force Development Council, by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Jack Tate & Michael Merrifield. The bill creates the Industry Infrastructure Grant Program within the Colorado Workforce Development Council (CWDC). The purpose of the program is for the CWDC to partner with eligible nonprofit entities to develop industry competency standards to support businesses in their implementation of work site training programs.
  • HB 16-1290 – Concerning an Extension of the Transitional Jobs Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daneya Esgar & Tracy Kraft-Tharp and Sens. Andy Kerr & Owen Hill. The bill extends the sunset of the transitional jobs program until June 30, 2022, and requires the Department of Human Services to stop offering transitional jobs after December 31, 2021.
  • HB 16-1453 – Concerning Measures to Enhance Cybersecurity, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kent Lambert. The bill creates the Colorado Cybersecurity Council in the Department of Public Safety, which is to operate as a steering group to develop cybersecurity policy guidance for the Governor; develop comprehensive goals, requirements, initiatives, and milestones; and to coordinate with the General Assembly and the Judicial Department regarding cybersecurity.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Colorado Supreme Court: Announcement Sheet, 5/23/2016

On Monday, May 23, 2016, the Colorado Supreme Court issued four published opinions.

Open Door Ministries v. Lipschuetz

Carson v. Reiner

People in Interest of J.G.

E.S.V. v. People in Interest of C.E.M.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Formal Ethics Opinion 95, “Funds of Missing Clients,” Withdrawn

The Colorado Bar Association Ethics Committee withdrew Formal Opinion 95, “Funds of Missing Clients.” This opinion addressed what to do with funds that were held in a lawyer’s trust account but the client’s whereabouts were no longer known to the attorney. The opinion recommended obtaining an advance agreement from the client to donate unclaimed funds, or to allow the lawyer to withdraw small amounts of the funds to use in locating the client, or to proceed under the Unclaimed Property Act. The opinion was withdrawn on Saturday, May 21, 2016.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Colorado Court of Appeals: Amendment of Restitution Award Not “Ministerial” Because it Affects Sentence

The Colorado Court of Appeals issued its opinion in People v. McLain on Thursday, May 19, 2016.

Defendant pleaded guilty to one count of theft and was sentenced to five years in community corrections. The prosecution requested restitution in the amount of $1,000 for the victim and $2,852.98 for the victim’s insurance company, to which the defendant did not object. The court granted the prosecution’s restitution request. Ten months later, the prosecution filed a Crim. P. 36 amended motion to impose restitution, maintaining she had made a clerical error and had neglected to request the $8,159.91 in losses sustained by the victim. The court granted the prosecution’s motion without waiting for a response from defendant. Five days later, Defendant filed an objection to the prosecutor’s request for additional restitution, arguing the request was untimely under the restitution statute and Crim. P. 36 did not apply. After a short hearing, the court determined it could correct the prosecution’s “ministerial error” and amended the restitution order.

On appeal, Defendant argued the court could not amend a final order of restitution to increase his obligation. The court of appeals agreed. The court noted that restitution is part of a sentence, and once a sentence is imposed and the defendant begins serving it, an increase in restitution violates the prohibition against double jeopardy. Although the prosecution argued that it had reserved the right to increase the restitution amount, the court of appeals disagreed, finding instead that the prosecution had proposed a concrete figure without any reservation and the figure was accepted by the district court. The court of appeals further found that Crim. P. 36 could not be applied in this case since the restitution increase amended the sentence itself.

The court vacated the judgment and remanded with directions to reinstate the original restitution award.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Tenth Circuit: Unpublished Opinions, 5/20/2016

On Friday, May 20, 2016, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Bird v. Wilson

Jones v. Colvin

United States v. Rodriguez-Vejar

Kostich v. McCollum

United States v. Garcia

United States v. Morales

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