May 21, 2018

Colorado Court of Appeals: District Court Retains Jurisdiction Over Allocation of Parental Responsibilities while Prior Order on Appeal

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning W.C. on Thursday, May 3, 2018.

Parental Responsibilities—Jurisdiction—Appeal—Motion to Modify—Changed Circumstances.

In this allocation of parental responsibilities case, father appealed the district court’s permanent orders granting mother sole decision-making authority and majority parenting time. Though his appeal is pending with this court, father filed verified motions to modify parenting time and decision-making in the district court. The district court concluded that it lacked jurisdiction to consider those motions while the appeal was pending; it decided to take no action on father’s motions unless and until the Court of Appeals finds that the district court has jurisdiction or remands and gives the court authority to consider the motions.

The Court determined that under Colorado’s Uniform Dissolution of Marriage Act, a district court retains continuing jurisdiction over motions to modify parental responsibilities while the current allocation order is on appeal, as long as those motions are based on a material change in circumstances that occurred after the original order was entered.

Father’s motion to clarify was granted and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/9/2018

On Wednesday, May 9, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Sepulveda

Case summaries are not provided for unpublished opinions.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

Colorado Court of Appeals: Statutory Amendment Deprived State of Authority to Prosecute Conviction on Appeal

The Colorado Court of Appeals issued its opinion in People v. Cali on Thursday, May 3, 2018.

Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c)(2)(VI)—Postconviction Remedies.

Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.

On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.

The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Disposition of Stolen Property Governed by Restitution Agreement, Not UCC or Conversion Principles

The Colorado Court of Appeals issued its opinion in People v. Madison on Thursday, May 3, 2018.

Restitution Agreement.

Madison stole scores of bottles of expensive wine from multiple liquor stores. He pleaded guilty, and the court sentenced him to a two-year term of probation and ordered restitution. As part of the restitution agreement, Madison was permitted to take possession of the stolen property if he paid restitution to the victims within a contractual period of time. (The liquor stores declined to accept the recovered wine because the storage method could not be confirmed, and thus the wine was not marketable.) Madison and the prosecution also entered into an “Evidence Disposition Agreement.” Defendant did not pay the restitution and, five years later, the sheriff’s office moved for an order authorizing it to destroy the stolen property. The motion was granted by the court.

On appeal, Madison argued that he had an ownership interest in the wine. He contended that the court should have either permitted him to sell the wine or ordered the sheriff’s office to sell it, with any proceeds applied to his restitution obligation. Disposition of the wine was governed by the restitution agreement, which expressly provided for the destruction of the wine if Madison failed to both pay the restitution and pick up the wine within 90 days. Because Madison failed to meet that deadline, the sheriff’s office had the right to dispose of the wine without seeking approval from the court or notifying Madison. Further, the agreement did not give Madison the right to determine the particular disposition of the wine or to demand that any proceeds from the disposition be distributed to the victims and then applied to reduce his restitution balance.

Madison also contended that the agreement gave him an ownership interest in the wine, notwithstanding his failure to satisfy its requirements, based on the Uniform Commercial Code (UCC) and conversion principles. Disposition of the stolen property is governed by the agreement, not by the UCC or conversion principles. Madison had a right to obtain the property only upon satisfaction of conditions precedent, which he failed to satisfy.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Finding of Half-empty Schnapps Bottle in Vehicle Did Not Negate Police Officers’ Reasonable Suspicion

The Colorado Court of Appeals issued its opinion in People v. Kessler on Thursday, May 3, 2018.

DUI—Evidence—Possession of a Controlled Substance—Search and Seizure—Search Incident to Arrest—Motor Vehicle—Reasonable Suspicion—Cross-Examination.

Defendant was pulled over by the police for speeding. Upon approaching the car with a flashlight, an officer spotted a half-empty schnapps bottle on the floor behind the passenger’s seat. The officer asked defendant for his license, registration, and proof of insurance multiple times before defendant presented his registration and proof of insurance. Defendant admitted he did not have a valid driver’s license. Because defendant showed signs of intoxication, the officer asked him to step out of the vehicle. Defendant needed to use the car door for support to get out of the car, and he eventually admitted he had drunk from the schnapps bottle. Defendant performed roadside sobriety maneuvers unsatisfactorily, and his breath test registered .154g/210L. Defendant was arrested for DUI and placed in the back of the police car. Two other officers then searched the car for further evidence of alcohol consumption and found a bag of cocaine in the console, inches from where defendant sat. Among other things, defendant was convicted of possession of a controlled substance (cocaine).

On appeal, defendant contended that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). He argued that he was not in exclusive possession of the car on the date in question and denied knowing the cocaine was on the car. The possibility that someone else was in the car earlier that day does not change the fact that defendant was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inference that he knowingly possessed the cocaine. Further, the location of the cocaine and defendant’s testimony that no one else had interacted with the console support the inference. There was sufficient evidence for the jury to convict him on this charge.

Defendant next contended that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty bottle of schnapps. The police are permitted to search a vehicle incident to a lawful arrest. Here, the officer had probable cause to arrest defendant on a DUI charge, defendant initially denied consuming alcohol, and it was likely the officers would find evidence of alcohol while searching defendant’s vehicle. The officers’ reasonable suspicion that the car contained alcohol did not evaporate once the officers found some alcohol. Therefore, the search that uncovered the cocaine was proper.

Finally, at trial, the amount of alcohol in the schnapps bottle when the officer discovered it was contested: the officer said it was half full, while defendant testified it was two-thirds full. During cross-examination, the prosecution asked defendant if the officer “made up” the amount of schnapps in the bottle. Although the prosecution’s question was improper, it did not cast doubt on the reliability of the conviction. The error was not substantial and did not warrant reversal under the plain error rule.

The judgment of conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/8/2018

On Tuesday, May 8, 2018, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Raup v. Vail Summit Resorts, Inc.

United States v. Jenkins

Davis v. State of California

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

Tenth Circuit: Unpublished Opinions, 5/7/2018

On Monday, May 7, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Quintana v. Hansen

Packard v. Goodrich

Oviatt v. Reynolds

Kerner v. City & County of Denver

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

Tenth Circuit: Unpublished Opinions, 5/4/2018

On Friday, May 4, 2018, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Arevalo-Lara v. Sessions

United States v. Lara

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

Tenth Circuit: Unpublished Opinions, 5/3/2018

On Thursday, May 3, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Duran v. Muse

United States v. Shane

Onyango v. Dowling

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

Colorado Court of Appeals: Announcement Sheet, 5/3/2018

On Thursday, May 3, 2018, the Colorado Court of Appeals issued seven published opinions and 29 unpublished opinions.

People v. Kessler

People v. Cali

People v. Madison

In re Parental Responsibilities Concerning W.C.

Bridge Family Trust v. Board of County Commissioners

Stor-N-Lock Partners #15, LLC v. City of Thornton

Curry v. Zag Built LLC

Summaries of these cases are forthcoming.

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, 5/2/2018

On Wednesday, May 2, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Truskolaski v. Allbaugh

United States v. Johnson

Sheff v. U.S. Department of Justice

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

Colorado Supreme Court: State May Not Terminate Parental Rights Under Relinquishment Statute when Dependency and Neglect Proceeding Underway

The Colorado Supreme Court issued its opinion in People in Interest of L.M. on Monday, April 30, 2018.

Children’s Code—Dependency and Neglect—Relinquishment—Termination of Parental Rights—C.R.S. § 19-3-602—C.R.S. § 19-5-105.

This case required the supreme court to determine whether the State may seek to terminate a parent’s parental rights under the relinquishment provision of the Colorado Children’s Code, C.R.S. § 19-5-105, when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, C.R.S. §§ 19-3-100.5 to -805.

The court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5.

The court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.