May 30, 2017

Archives for July 19, 2016

Hon. John F. Stavely to Retire from Boulder County Court

StavelyOn Monday, July 18, 2016, the Colorado State Judicial Branch announced the retirement of Hon. John F. Stavely from the Boulder County Court, effective January 10, 2017. Judge Stavely was appointed to the Boulder County Court in August 2001, where he handles a docket of traffic, misdemeanor criminal, felony criminal, civil, and small claims cases. Prior to his appointment to the bench, he was a partner at Chrisman, Bynum & Johnson in Boulder for 19 years. He also served as a Louisville Municipal Court judge. He received his law degree from the University of North Dakota Law School and his undergraduate degree from the University of Colorado.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Boulder County and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website or from the ex officio chair of the Twentieth Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on August 12, 2016, and anyone wishing to nominate another must do so no later than August 5, 2016.

For more information about the vacancy, click here.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Properly Instructed on Elements of Theft

The Colorado Court of Appeals issued its opinion in People v. Stellabotte on Thursday, July 14, 2016.

John Arthur Stellabotte is the owner of J&J Towing. After several incidents where J&J towed cars without authorization and charged high fees for return of the vehicle, Stellabotte was charged with six counts of aggravated motor vehicle theft, four counts of theft, and five habitual criminal counts. He was convicted of one count of aggravated motor vehicle theft, two class 4 felony counts of theft, one class 2 misdemeanor count of theft. He was sentenced to 24 years on all felony theft counts and one year on the misdemeanor count, to run concurrently.

On appeal, Stellabotte raised two contentions related to jury instructions, argued that his sentence should be halved because of new legislation reducing the severity of the offenses, and argued the 24-year sentences were grossly disproportionate to the severity of the offenses. The court of appeals analyzed the jury instructions and found no error; the instructions correctly stated the law despite formatting differences. The court also disagreed with Stellabotte that the trial court erred in using the dictionary definition of “authorization.” The court of appeals found no abuse of discretion in the trial court’s definition. However, the court of appeals agreed with Stellabotte that he should receive the benefit of the legislative changes. Because the General Assembly reduced the theft offenses to class 5 felonies, Stellabotte should have been sentenced under the legislative scheme in effect at the time of sentencing.

The court vacated Stellabotte’s sentences and remanded for the court to resentence him in the correct presumptive range. The court emphasized that this decision did not affect the aggravated motor vehicle theft or misdemeanor counts, only the class 4 felony theft convictions. Finally, the court of appeals rejected Stellabotte’s argument that the sentences were disproportionate to the severity of his crimes.

Judge Dailey concurred in part and dissented in part; he would have affirmed the sentences on the theft counts since the incidents occurred when the old sentencing scheme was in effect.