April 30, 2017

Colorado Court of Appeals: District Court Has Broad Jurisdiction Over Any Matter Essential to Resolving Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Owens on Thursday, April 20, 2017.

EstateJurisdictionConstructive TrustTestamentary CapacityUndue InfluenceJury TrialContempt.

Dr. Arlen E. Owens (the decedent) hired Dominguez as his private caregiver in 2010. The decedent died in July 2013. After the decedent’s death, his brother and only living heir, Owens, filed a petition for informal probate of the decedent’s will, and later a petition for determination of testacy and for determination of heirs, alleging that the will that the decedent had signed in 2012 was the product of undue influence by Dominguez and that the decedent had lacked the capacity to execute the will. He also filed a complaint for recovery of estate assets and asked the court to invalidate the will and order the decedent’s estate to be administered under intestate distribution statutes. In 2015, Owens also filed a petition to set aside non-probate transfers for three bank accounts for which Dominguez was payable-on-death (POD) beneficiary. The court imposed a constructive trust over the POD accounts. The court later upheld the will but found that the decedent had not had the capacity to execute the POD designations and had been unduly influenced by Dominguez. After issuance of the final judgment, the court issued a contempt order against Dominguez for violating the constructive trust that included the condition that she could purge the contempt by paying back the money from the bank accounts.

On appeal, Dominguez contended that the district court did not have jurisdiction to set aside the POD designations and impose a constructive trust on the POD accounts because Owens and the estate did not have standing to make such requests. A district court has jurisdiction to determine every legal and equitable question arising in connection with estates. The claims regarding the POD designations arose in connection with and were essential to the estate administration. Thus, the court had jurisdiction to impose a constructive trust, Owens had standing, and the court had jurisdiction to resolve the issues surrounding the POD designations.

Dominguez next asserted that the district court erred when it determined that the decedent had not had the testamentary capacity to designate Dominguez as beneficiary of the POD accounts and that Dominguez had unduly influenced the decedent to designate her as beneficiary of the three accounts. However, the record supports the court’s factual findings and its assessment of the credibility of each witness, and the court of appeals did not displace the district court’s conclusions.

Dominguez next argued that the district court erred when it prevented her from exercising her right to a jury trial. Because Dominguez had the opportunity to exercise her right to a jury trial and failed to do so, she waived her claims to such right.

Dominguez also contended that the district court erred in concluding that the existence of nonliquid assets can be the basis for determining that a contemnor has the present ability to pay. Here, Dominguez could not provide a coherent, consistent account of what had happened to the funds in the POD accounts. The contempt order was supported by analysis of evidence on the record. Thus, the court did not err in holding Dominguez in contempt.

The court of appeals also concluded that neither party was entitled to attorney fees.

The judgments were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/27/2017

On Thursday, April 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Diaz v. King

United States v. House

Larson v. Larson

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

Colorado Court of Appeals: Court Overrides Presumption of Fit Parent by Specifying Methods to be Used for Punishment

The Colorado Court of Appeals issued its opinion in In re Marriage of Dean and Cook on Thursday, April 20, 2017.

Parenting TimeContemptEvidenceTranscriptsMagistrateExceeding AuthorityHearingAttorney FeesReasonableness.

Dean (mother) and Cook (father) divorced in 2006. Father filed a contempt motion on the basis that mother denied his parenting time. On May 19, 2014, the court set the contempt hearing over and ordered mother to engage in therapy. On November 3, 2014, the court found mother in contempt of court, ordered that she could purge the contempt by allowing father to have the children during their 2014 Thanksgiving break, and ordered her to pay father’s attorney fees. Sentencing occurred on January 8, 2015, at which time the court ordered mother to pay father’s attorney fees.

On appeal, mother first contended that the magistrate improperly reconsidered the May 19 order when, on November 3, she changed the nature of the sanctions imposed. On May 19, the magistrate simply adopted the parties’ stipulation for mother to engage in therapy; the order was not imposed to force mother to comply with the parenting time stipulation. No sanctions were imposed until November 3, when the magistrate found mother guilty of remedial contempt.

Mother also challenged the evidence presented at the contempt and sentencing hearings, the weight the magistrate placed on that evidence, and the findings and inferences the magistrate made in her orders. Mother failed to provide a copy of the transcripts from the contempt and sentencing hearings to the district court when she sought review of the magistrate’s orders under C.R.M. 7(a). Therefore, it is presumed that the record supports the magistrate’s orders that mother failed to comply with the parties’ stipulation and was thus in remedial contempt.

Mother also contended that the magistrate exceeded her authority when she ordered mother to restrict the children’s privileges if they did not comply with her instructions to go to father’s home for parenting time. By specifying the methods mother must employ to obtain the children’s compliance, the magistrate’s order improperly disregards the presumption that fit parents act in the best interests of their children. Therefore, that portion of the order was stricken.

Mother further argued that the magistrate demonstrated bias against her and should have been disqualified. Mother’s allegations were based only on the magistrate’s legal rulings and the resolution of conflicting evidence, which are not bases for disqualification. Further, mother did not seek to have the magistrate disqualified under C.R.C.P. 97.

Lastly, mother argued that the magistrate should have held a hearing on the reasonableness of father’s attorney fee affidavit. Mother objected to father’s fee affidavit on the basis that it was ambiguous and lacked clarity, and she requested a hearing on the issue of reasonableness. Once she raised these assertions, the magistrate should have held a hearing on this issue.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Vacation and Sick Leave are Pecuniary Losses Compensable to Victim Under Restitution Act

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

RestitutionVacationSick LeaveProximate CausePecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Administrative Fire Chief Engaged in Fire Protection Duties Under FPPA

The Colorado Court of Appeals issued its opinion in Dolan v. Fire & Police Pension Association on Thursday, April 20, 2017.

FirefighterInjuryOccupational Disability BenefitsFire and Police Pension AssociationPolicemen’s and Firemen’s Pension Reform ActFire ChiefAmended Complaint.

Dolan joined North Metro Fire Rescue in 1986, and in 2007, he sustained an injury that prevented him from passing the physical tests for firefighting duties. After approximately two years of attempted rehabilitation, North Metro terminated Dolan. Dolan promptly filed for occupational disability benefits with the Fire and Police Pension Association (FPPA).

While working for North Metro, Dolan also worked for the Elk Creek Fire Protection District: he was Elk Creek’s paid fire chief from 1998 through 2003; he returned as a volunteer in 2008; and in 2010, he was again hired as a paid fire chief.

Dolan initially received disability benefits, but these were later revoked based on a finding that because his position at Elk Creek had involved fire protection, he was ineligible for benefits under the Policemen’s and Firemen’s Pension Reform Act (the Act). A hearing officer recommended that Dolan repay the benefits he received after he signed his employment contract with Elk Creek in 2010, and the FPPA’s Board of Director’s (Board) affirmed the recommendation. Dolan filed for C.R.C.P. review of the Board’s decision in district court and also asserted several common law claims against FPPA. The district court affirmed the Board’s decision. Dolan then moved to amend his complaint, which was denied as untimely, and a trial was held on his remaining common law claims. The court found for FPPA and entered final judgment against Dolan.

On appeal, Dolan argued that the Board and the district court misapplied the law in discontinuing his disability benefits because, since his termination from North Metro, he was never re-employed in a position directly involved with the provision of fire protection under the Act. Re-employment in a full-time salaried position that directly involves the provision of fire protection precludes a firefighter from collecting disability benefits. Because Dolan acted in a command capacity at the scenes of fires and accidents, the hearing officer concluded it was not necessary to find that he was involved in “hands on” firefighting or medical care to conclude that his position was directly involved with the provision of fire protection. The Board adopted the hearing officer’s conclusions of fact and law that Dolan’s duties as Elk Creek fire chief directly involved fire protection. Because nothing in the Act suggests that re-employment at a position directly involved with the provision of fire protection must be limited to physically fighting fires, the district court and the Board did not misapply the law in determining that Dolan was no longer eligible for disability benefits after re-employment at Elk Creek.

Dolan also argued that the district court erred in denying his motion to amend his complaint when it determined his claim was untimely. Dolan sought leave to amend his complaint on August 30, 2013, approximately one year after he filed his initial complaint, seven months after the district court initially found in favor of the FPPA, and four months after the district court finalized its C.R.C.P. 106 order. Because Dolan presented the district court with an as-applied challenge to the FPPA regulations, the court correctly determined that claim was time barred by C.R.C.P. 106(b). Further, even if Dolan’s claim presented a facial challenge to the FPPA regulations, the court’s denial of his claim was not error because Dolan failed to show that his delay in bringing the claim was justified.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 4/27/2017

On Thursday, April 27, 2017, the Colorado Court of Appeals issued no published opinion and 33 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 4/26/2017

On Wednesday, April 26, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Craine v. National Science Foundation

Kincaid v. Bear

United States v. Batton

United States v. Thomas

Baker v. City of Loveland

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

Colorado Court of Appeals: Robberies Were Sufficiently Similar for Joinder of Criminal Trials

The Colorado Court of Appeals issued its opinion in People v. Butson on Thursday, April 20, 2017.

Bank RobberyJoinderSpecial ProsecutorStatements to PoliceSettlement NegotiationsCRE 408.

Butson was charged in three cases with bank robbery and conspiracy to commit bank robbery. Butson was interviewed by police, waived his Miranda rights, and provided details about the planning and commission of the robberies. He later moved to suppress his statements on the theory that he made them during the course of settlement discussions and therefore they were inadmissible at trial under CRE 408. The trial court denied the motion. Butson was also charged with witness tampering based on a letter he sent to a witness. Because the prosecutor in the bank robbery cases had handled the letter, Butson contended that he was entitled to a special prosecutor in all of his cases. The court determined that the prosecutor was not a potential witness in the witness tampering case and denied Butson’s request for a special prosecutor. The prosecution moved to join the three bank robbery cases for trial, which motion was granted, and a jury found Butson guilty of all but two counts. The witness tampering case was later dismissed.

On appeal, Butson first contended that the district court erred by joining the three bank robbery cases for trial. A trial court may try two or more criminal complaints together if the offenses could have been joined in a single complaint. Two or more offenses may be charged in the same charging document if the offenses are of the same or similar character or are based on two or more connected acts or transactions or are part of a common scheme or plan. Here, Butson and his sons committed all of the robberies during the course of a few months, all involved the same banks in relatively close proximity to each other, and all were sufficiently similar in planning and execution. Accordingly, the district court did not abuse its discretion in joining the cases for trial.

Butson next contended that where the lead prosecutor in the consolidated bank robbery cases was endorsed as a witness in the later-filed witness tampering case, the district court erred in denying his motion for a special prosecutor. Butson argued that a special prosecutor was necessary to prevent the appearance of impropriety created by the prosecutor’s potential appearance as a witness in the related witness tampering case. However, appearance of impropriety is not a basis for disqualification, and Butson failed to show any prejudice. The district court did not abuse its discretion in denying Butson’s motion for a special prosecutor.

Butson also contended that his statements to police during a custodial interrogation constituted settlement negotiations, or an offer to compromise a claim, and therefore the interview was inadmissible under CRE 408 to prove his guilt. Generally, Rule 408 bars the admission in a criminal proceeding of statements made in connection with the settlement of a civil claim. As Butson acknowledges, his statements to police, even if construed as an offer to compromise, were made during discussions concerning criminal charges, not a civil claim. Moreover, his statements, which he made to a government agent, would be admissible under an exception to the rule. Therefore, the district court did not err in denying his motion to suppress the statements.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Failure to Properly Advise Defendant of Immigration Consequences was Deficient Performance

The Colorado Court of Appeals issued its opinion in People v. Sifuentes on Thursday, April 20, 2017.

Felony—Plea Agreement—Immigration—Deportation—Ineffective Assistance of Counsel—Prejudice.

The prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to 42 months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation under federal law.

Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel based on the erroneous advice regarding deportation. The postconviction court denied the petition. Although the court agreed that plea counsel failed to properly advise defendant, it determined that defendant did not suffer prejudice because due to the purported evidence against him, even if defendant had known the consequences of his plea, it would not have been rational for him to reject the plea offer. The court further concluded that even if he had established prejudice, defendant was not entitled to relief due to the circumstances of his providency hearing.

On appeal, defendant contended that the district court erred in determining that his plea counsel’s deficient performance did not prejudice him. When an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he will in most cases be permitted to withdraw the plea. Here, defendant presented some objective corroborating evidence of his prejudice claim (e.g., his plea counsel’s testimony confirming defendant’s concerns about deportation and her erroneous advice about deportation). Although the prosecution’s case against defendant appeared to be strong, it cannot be concluded that a conviction would have resulted if defendant went to trial. The court of appeals concluded that rejecting the guilty plea offer and going to trial would have been a rational decision for defendant. Because defendant established a reasonable probability that his plea counsel’s deficient performance affected the outcome of the plea process, he was allowed to withdraw his guilty plea.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/25/2017

On Tuesday, April 25, 2017, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. Grigsby

United States v. De Rangel

Blaurock v. State of Kansas

Farris v. Burton

Lessard v. Cravitz

Pledger v. State of Kansas

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