October 16, 2017

Archives for August 7, 2017

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Did Not Err in Confirming Arbitration Award

The Colorado Court of Appeals issued its opinion in Pacitto v. Prignano on Thursday, July 27, 2017.

Uniform Arbitration Act—Award—Motion to Vacate—Deadline—Confirmation.

The Prignanos asserted multiple claims against Pacitto, a registered representative, in a Financial Industry Regulatory Authority securities industry arbitration. Pacitto raised several counterclaims. The arbitration panel denied the Prignanos’ claims and awarded Pacitto compensatory damages, punitive damages, and fees solely against Mr. Prignano. Many months later, when Mr. Prignano had not paid the award, Pacitto filed a combined complaint and motion to confirm the arbitration award in district court. Among other things, the Prignanos filed a motion to vacate the award and an amended answer that included a counterclaim for a declaratory judgment vacating the award. The district court order confirmed the arbitration award and found that the Prignanos filed the motion to vacate well past the 91-day deadline, thus waiving their right to object to confirmation of the award.

On appeal, the Prignanos asserted that the district court erred in applying the 91-day deadline in C.R.S. § 13-22- 223(2) and in failing to extend the deadline for filing a counterclaim for one year pursuant to C.R.S. § 13-80-109, when it confirmed the award. Under the Uniform Arbitration Act (UAA), a motion to vacate an arbitration award must be filed within 91 days after the movant receives notice of the award. The parties agreed that the Prignanos filed their motion to vacate and raised their declaratory judgment counterclaim well after the 91-day period for challenging arbitration awards. The more specific limitation period of C.R.S. § 13-22 223(2) that applies only to arbitration proceedings prevails over the more general limitation period contained C.R.S. § 13-80-109, which applies to any civil suit.

The Prignanos also argued that an equitable tolling exception should be read into the UAA. The court of appeals rejected this argument, stating that the notice of the arbitration decision made them aware of their responsibility to challenge the decision in a permitted format and by a statutory deadline. They were aware of all the grounds they could assert on appeal when the arbitration concluded.

The judgment was affirmed and the case was remanded for a calculation of Pacitto’s reasonable attorney fees and costs incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Statement She Was Sorry Sufficient Evidence to Prove Guilt

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, July 27, 2017.

Theft—Evidence—C.R.S. § 18-4-401(4)(a) —Jury Interrogatories—Lesser Included Offense.

Defendant was treasurer of the Bennett Elementary School Parent, Teacher, and Student Association (PTSA). The PTSA held the Believe Fundraiser, and defendant failed to deposit all of the proceeds from the fundraiser into the PTSA’s bank account. The verdict form required the jury to find whether defendant was guilty of theft (two or more within six months) for cash taken from three different fundraisers and instructed the jury to answer three interrogatories. The jury found defendant guilty, but it answered yes to only the Believe Fundraiser interrogatory.

On appeal, defendant contended that the evidence was insufficient to convict her of theft from the Believe Fundraiser. Based on evidence that defendant told the PTSA secretary that she had deposited $19,760.65 into the PTSA account when only $16,473.21 was actually deposited, and defendant’s statement later to the secretary that she was sorry and wanted to make it right, a reasonable person could conclude that defendant knowingly retained funds from the Believe Fundraiser and intended to permanently deprive the PTSA of the value of the funds.

Defendant also contended that the trial court erred in rejecting her proposed instruction paragraph for the verdict form. C.R.S. § 18-4-401(4)(a) required the prosecution to prove all of the thefts aggregated into a single count. Because the jury only answered yes to one of the interrogatories, its verdict conflicts with the statute. Therefore, the jury improperly convicted defendant of aggregated theft without finding that she committed all three of the thefts aggregated in one count. But a single act of theft is a lesser included offense of aggregated theft under C.R.S. § 18-4-401(4)(a), and the prosecution proved the elements of the lesser included offense.

Defendant further contended that the trial court erred in admitting the PTSA secretary’s testimony. However, the PTSA secretary properly gave lay opinion testimony under CRE 701.

The judgment of conviction for theft under C.R.S. § 18-4-401(4)(a) was vacated and the case was remanded to the trial court with directions to enter a conviction for a single count of theft under C.R.S. § 18-4-401(1) and (2)(f).

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/4/2017

On Friday, August 4, 2017, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Lucas v. Office of the Colorado State Public Defender

Zivkovic v. Hood

Folsom v. Knutson

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

Tenth Circuit: Unpublished Opinions, 8/3/2017

On Thursday, August 3, 2017, the Tenth Circuit Court of Appeals issued no published and six unpublished opinions.

United States v. Brown

Stoedter v. Gates

Campbell v. Bear

Brooks v. Archuleta

Charity v. Colorado Springs Police Department

United States v. Gramajo-Giron

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