December 11, 2017

Archives for March 8, 2017

Colorado Rules of Criminal Procedure Amended by Rule Change 2017(02)

On Wednesday, March 8, 2017, the Colorado State Judicial Branch announced Rule Change 2017(02), affecting the Colorado Rules of Criminal Procedure. The rule change amends Crim. P. 49.5 by changing the website for the court’s electronic filing system. The Comment to Rule 49.5 was also changed, and a 2017 comment was added as follows:

 [4] Effective November 1, 2016, the name of the court authorized service provider changed from the “Integrated Colorado Courts E-Filing System” to “Colorado Courts E-Filing” (www.jbits.courts.state.co.us/efiling/).

Rule Change 2017(02) was adopted and effective March 2, 2017. The full text of the rule change is available here. For all the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Trial Court Cannot Impose Probationary Sentence Without Defendant’s Consent

The Colorado Supreme Court issued its opinion in Veith v. People on Monday, March 6, 2017.

Probation—Sentencing.

The Colorado Supreme Court considered whether a defendant has consented to a probationary sentence imposed in addition to a sentence of incarceration when he or she requested probation in lieu of incarceration. The court held that a trial court cannot impose a sentence of probation without the defendant’s consent.

Accordingly, the supreme court held that in this case the trial court exceeded the scope of Veith’s consent when it imposed a 10-year prison sentence in addition to the probationary sentence. The  judgment of the court of appeals was reversed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Prison Sentence Cannot be Solely Based on Need for Rehabilitation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Thornton on Friday, January 20, 2017.

In 2014, Christopher Thornton pled guilty to possession of a firearm as a felon. Under the Federal Sentencing Guidelines, possible imprisonment for that offense ranges from 77 to 96 months. Thornton requested a downward variance to 38 months based on mitigating factors such as his youth and the nonviolent nature of his criminal history. The district court denied the motion and imposed a sentence of 78 months’ imprisonment. The district court offered several reasons for its decision not to grant the downward variance, including community safety concerns and that Thornton “[needed] enough time in prison to get treatment and vocational benefits.” The district court specifically stated, “He’s got mental health issues, and he needs treatment.”

Thornton appealed to the Tenth Circuit, arguing a violation of Tapia v. United States, 564 U.S. 319, 335 (2011), which held that federal judges may not use imprisonment as a means to promote defendants’ correction or rehabilitation. The issue on appeal was whether the district court committed procedural error by basing the length of Thornton’s sentence, in part, on the amount of time required to complete treatment and vocational services he would receive in prison.

The Sentencing Reform Act commands federal judges to generally consider several factors when determining an appropriate sentence. These factors include the nature and circumstances of the offence, the public’s need for punishment, and deterrence. The Act states that imprisonment is not meant to promote correction and rehabilitation. The Supreme Court in Tapia held that sentencing courts could consider all of the factors listed in the Act for determining the length of imprisonment, but determination of the length of imprisonment cannot be based on enabling the offender to complete a treatment program or the promotion of rehabilitation.

In the district court, Thornton failed to make an objection concerning the district court’s violation of Tapia. Because this was a new argument on appeal, the Tenth Circuit reviewed for plain error. The Tenth Circuit divided its analysis into two parts. The first addressed whether there was error. The second addressed whether that error was plain. The Tenth Circuit determined that the district court erred and that this error was not plain due to particular nuances in the Tapia analysis that have not been clearly established by precedent.

For the first part of its analysis, the Tenth Circuit concluded that the district court erred because it based Thornton’s sentence, at least partially, on the desire to promote his rehabilitation.

The Tenth Circuit rejected the government’s four arguments for why Tapia should not control in this case. First, the government argued that motions for downward-variances are not subject to Tapia error. The Tenth Circuit held that because the district court was determining the length of the sentence when ruling on the motion for a downward variance, Tapia must govern it. Therefore, downward variance motions are treated the same as other decisions impacting sentence length.

Second, the government claimed that because it relied on other factors when denying Thornton’s motion for downward variance, including his criminal history and community safety, the district court did not err. The Tenth Circuit rejected this argument, concluding that a court violates Tapia even when it only partially bases the length of a sentence on rehabilitation. The existence of alternative grounds for sentence length determination does not cure the error.

Third, the government asserted that reference to treatment or other services is not enough to violate Tapia. Instead, it argued, there must be a direct link between the length of the sentence and specific treatment programs in prison. The Tenth Circuit also rejected this argument, stating that no direct link is required for Tapia to apply. The Tenth Circuit interpreted Tapia to prohibit sentence lengths based on enabling “an offender to complete a treatment program or otherwise to promote rehabilitation.” The “or otherwise” language reveals a prohibition against more than just basing the sentence length on a specific rehabilitation program. It has never been held that a direct connection is required.

Lastly, the government argued that the district court only discussed rehabilitation programs in response to Thornton’s argument that he only required a sentence of 38 months to benefit from in-prison treatment, thereby mitigating any threat he posed to the public. The Tenth Circuit determined that the district court went further than simply addressing Thornton’s argument. The sentence issued was motivated by a desire to give Thornton the benefits of treatment in prison. Mere discussion of the consequences of undergoing in-prison treatment on an aggregating factor is not prohibited. Tapia only “precludes lengthening a prison sentence for the purpose of providing an offender with perceived rehabilitative benefits.” Without the motivation “to improve an offender’s lot” by issuing a lengthier sentence, no Tapia violation occurs. Here, the district court expressed its desire to give Thornton enough time to complete the programs offered in prison and imposed a sentence, in part, on that desire. Thus, the district court erred.

After finding error, the Tenth Circuit discussed why that error was not plain. According to United States v. Ruiz-Gea, an error is plain “when it is contrary to well-settled law.” The rule that precludes consideration of rehabilitation when determining the length of a prison sentence is clear. However, this case involved two issues that made existing precedent unclear: (1) whether Tapia is only violated when the court direct links the length of a prison sentence to a specific treatment plan, and (2) whether the court violates Tapia when it references rehabilitation only after the defendant injects rehabilitation into sentence length determination on his own initiative.

Here, the Tenth Circuit held that Tapia does not require a direct link, but that there was no binding case that held so before the instant case. It then determined that there was no clear guidance before the instant case on how to consider rehabilitation-based arguments raised by defendants. The Tenth Circuit held that a district court may address rehabilitation in evaluating a defendant’s arguments that such rehabilitation would justify a shorter sentence, but may not base the length of a sentence on a desire to promote the defendant’s rehabilitation. Before the ruling of this case, there was no controlling authority that clearly spelled out this delimitation. Therefore, the district court could not be faulted and the error was not plain.

Therefore, in abiding by the plain-error doctrine on appeal, because there was no well-established precedent on the two issues discussed, the Tenth Circuit held that the district court’s consideration of rehabilitation as a part of its sentencing calculus was erroneous, but not plainly so. The Tenth Circuit affirmed the sentence.

Tenth Circuit: Unpublished Opinions, 3/7/2017

On Tuesday, March 7, 2017, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Barlor v. Patton

United States v. Ramos

United States v. Drage

Fisher v. State of Oklahoma

Liberty Bank v. D.J. Christie, Inc.

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