August 19, 2017

Archives for January 5, 2017

Colorado Court of Appeals: List of Examples for Notice in Statute Not Exclusive

The Colorado Court of Appeals issued its opinion in People v. Patton on Thursday, December 30, 2016.

Unauthorized Use of a Financial Instrument—Notice—Theft—Consecutive Sentence—Concurrent Sentence—–Statutory Amendment.

Patton purchased over $8,000 worth of consumer electronics from Ultimate Electronics using a Wells Fargo debit card that was issued to him. The card was declined during the transaction, and Patton used a false override authorization code to force the sale. Ultimate Electronics then received a “charge-back” from Wells Fargo, meaning it was not paid for the purchase. At trial, a Wells Fargo representative testified that the card had been cancelled before the transaction when Patton called the bank and reported that he had neither received it nor made purchases on it. The representative also testified that the bank employee would have told Patton that the card was cancelled and the bank would not have given an override code for the card. Patton was convicted of unauthorized use of a financial instrument and theft. He received a sentence of six years for theft and a consecutive sentence of three years for unauthorized use of a financial instrument.

On appeal, Patton argued that the trial court erred by denying his motion for judgment of acquittal after the prosecution failed to prove that he received notice in person or in writing that the debit card had expired or had been revoked or cancelled. The unauthorized use of a financial instrument statute does not require notice only in person or in writing. There was sufficient evidence to support a conclusion beyond a reasonable doubt that Patton received notice by telephone that his card was cancelled, revoked, or expired.

Patton also contended that the court committed plain error by imposing consecutive sentences because his crimes were based on identical evidence. When a defendant is convicted of multiple crimes based on the same act or series of acts in the same criminal episode and the evidence supporting each conviction is identical, the sentence must be concurrent. Here, the use of the cancelled debit card for the purchases without payment was part of the theft. Because the convictions were supported by identical evidence, the statute required the trial court to impose concurrent rather than consecutive sentences.

Patton further argued that his sentence should be reduced based on a change in the theft statute. At the time of his offenses in 2009, the value of the items Patton stole constituted a class 4 felony. In 2013, the statute was amended to reduce the offense to a class 5 felony. Because Patton was sentenced in 2014, he was entitled to the benefit of the amended statute.

Patton finally contended that the court improperly entered a conviction for a class 4 felony against him without a finding of actual value by the jury, and that instead he should only be convicted of a class 1 misdemeanor. There was evidence at trial that Patton had stolen items exceeding $8,000 in value, and Patton did not contest the value. Therefore, the record supports the conviction.

The judgment of conviction was affirmed, the consecutive sentences were vacated, the felony theft sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: High School Student’s Tweets Did Not Constitute True Threats or Fighting Words

The Colorado Court of Appeals issued its opinion in People in Interest of R.D. on Thursday, December 30, 2016.

Social Media—Juvenile Delinquent—Harassment—First Amendment—Right to Free Speech—True Threats—Fighting Words.

R.D., a high school student, argued with a student from a different high school through tweets on the social networking website Twitter. The People filed a petition in delinquency against R.D., and the district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.

On appeal, R.D. argued that C.R.S. § 18-9-111(1)(e) as applied to his conduct violated his First Amendment right to free speech. The People responded that R.D.’s statements were not protected by the First Amendment because they were true threats and fighting words. While the language of R.D.’s tweets was violent and explicit, R.D.’s tweets did not constitute true threats because they were not “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Fighting words can occur only when the speaker is in close physical proximity to the recipient. R.D. was not in close physical proximity to A.C. at the time of the incident. Because R.D.’s statements were neither true threats nor fighting words, the statute as applied violated his First Amendment rights.

The judgment was reversed and the case was remanded with directions to vacate the adjudication of juvenile delinquency and dismiss the proceeding.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “Wobbler” Statute Contemplates Vacation of Conviction Only, Not Sentence

The Colorado Court of Appeals issued its opinion in People v. DeBorde on Thursday, December 30, 2016.

Possession of a Controlled Substance“Wobbler” StatuteSurchargeSentenceFelonyMisdemeanorInability to Pay.

DeBorde pleaded guilty to one count of possession of a controlled substance, a level 4 drug felony. The court imposed a mandatory $1,500 felony drug offender surcharge as part of his sentence. When DeBorde completed his community corrections sentence, the court vacated his felony conviction and entered a conviction for a class 1 misdemeanor.

On appeal, DeBorde contended that once his conviction was reduced to a misdemeanor, the court should have likewise reduced his drug offender surcharge to the misdemeanor amount of $1,000. CRS § 18-1.3-103.5(2)(a), the “wobbler” statute, contemplates vacation of only the felony conviction, not the sentence. Accordingly, the amount of the drug offender surcharge was properly determined by the initial conviction.

DeBorde also argued that the district court should have waived all or part of the felony drug offender surcharge based on a finding that DeBorde was unable to pay it. While evidence in the presentence report may have supported a finding of DeBorde’s present inability to pay, there was no evidence in the record of DeBorde’s future inability to pay the surcharge. Further, DeBorde had an opportunity to supplement the record with additional evidence of his inability to pay, but he declined the district court’s invitation to do so.

Lastly, DeBorde contended that under the wobbler statute, the court erred by placing the burden on him to show his entitlement to the misdemeanor conviction in place of the felony conviction. The Court concluded this claim was moot because DeBorde was already granted relief on his motion to apply the wobbler statute.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/4/2017

On Wednesday, January 4, 2017, the Tenth Circuit Court of Appeals issued seven published opinions and four unpublished opinions.

Winick v. Colvin

United States v. Crump

Muhammad v. Hall

TCR Sports Broadcasting Holding, LLP v. Cable Audit Associates, Inc.

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