August 30, 2015

Colorado Court of Appeals: Announcement Sheet, 8/27/2015

On Thursday, August 27, 2015, the Colorado Court of Appeals issued four published opinions and 34 unpublished opinions.

Wisdom Works Counseling Services, P.C. v. Colorado Department of Corrections

People in Interest of J.O.

Colorado Springs Citizens for Community Rights v. City of Colorado Springs, Colorado

People in Interest of P.K.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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

Colorado Court of Appeals: Foreign-Country Judgment Improperly Served so No Recognition Required

The Colorado Court of Appeals issued its opinion in Ledroit Law v. Kim on Thursday, August 13, 2015.

Ontario Judgment Enforceability—Uniform Enforcement of Foreign Judgments Act—Uniform Foreign-Country Money Judgments Recognition Act.

Ledroit Law, a Canadian law firm, filed this action seeking recognition of an Ontario court’s assessment of legal fees against Snell & Wilmer, L.L.P., an Arizona law firm with offices in Colorado, and Eugene Kim, a former associate at Snell & Wilmer. In 2011 and 2012, Snell & Wilmer represented two related Ontario entities in a civil suit they filed against an American corporation in federal court in Colorado. Kim was a first-year associate who worked on the case. Ledroit represented at least one of the Ontario entities in related proceedings in Canada.

Defendants stated that the principals of the Ontario entities instructed Snell & Wilmer to have Ledroit serve subpoenas duces tecumin Ontario related to the federal suit in Colorado. Kim communicated with Ledroit by telephone and e-mail to coordinate service. In March 2012, Ledroit sent Snell & Wilmer a bill for legal services of over $15,000 Canadian for their attempts to serve the subpoenas. There was no retainer agreement, and Snell & Wilmer stated that the Ontario entities were responsible for the bill.

In September 2012, Ledroit filed an action in the Ontario Superior Court of Justice to recover the legal fees. A “Notice of Appointment for Assessment of Costs” was sent by regular mail to Kim’s office in Colorado. The Ontario court issued an assessment in the amount of $15,829.99 Canadian against Kim and Snell & Wilmer following their non-appearance.

Ledroit filed this action in district court seeking enforcement of the assessment in Colorado under the Uniform Enforcement of Foreign Judgments Act (Enforcement Act). The district court entered an order domesticating the assessment under the Enforcement Act.

Defendants moved to vacate the order on the basis that the Enforcement Act only applies to judgments entered by sister states within the United States and that the Uniform Foreign-Country Money Judgments Recognition Act (Recognition Act) governs the recognition of foreign-country money judgments. The district court vacated its order and ultimately recognized the Ontario assessment under both the Recognition Act and common law principles of comity.

On appeal, defendants argued it was error to recognize the Ontario judgment under the Recognition Act because the Ontario court lacked personal jurisdiction over them. The Court of Appeals agreed. Under the Recognition Act, CRS § 13-62-104(2)(b), a Colorado court “may not recognize a foreign-country judgment if . . . [t]he foreign court did not have personal jurisdiction over the defendant.”

The Court found that defendants were not validly served with process by the attempt at service by regular mail. Service under Ontario law requires either service through the central authority in the contracting state or “in a manner that is permitted by the [Hague] Convention and that would be permitted by these rules if the document were being served in Ontario.” Because service by mail was not proper under the Ontario rules, the Ontario court lacked personal jurisdiction over defendants when it issued the assessment.

The Court also agreed with defendants’ contention that the district court erred in relying on principles of comity. The Recognition Act requires a Colorado court to deny recognition if the foreign court lacked personal jurisdiction. Here, where the Recognition Act applied, the Colorado court was required to deny recognition of the assessment. The order was reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Adverse Inference Instruction Allowable where Non-Party Invokes Fifth Amendment

The Colorado Court of Appeals issued its opinion in McGillis Investment Company, LLP v. First Interstate Financial Utah, LLC on Thursday, August 13, 2015.

Fifth Amendment Privilege Invoked in Front of Jury by Nonparty—Adverse Inference Instruction.

This appeal, as stated by the Court, “follows a long and complicated history, ncluding prior litigation in Utah, an earlier appeal to this court, an eight-day trial, and a series of motions brought before, during, and after the trial and verdict. A voluminous record, spanning thousands of pages, contains an exhaustive rendition of the facts.”

McGillis Investment Company, LLP’s (MIC) principal, McGillis, and First Interstate Financial Utah, LLC’s and First Interstate Financial LLP’s (FIF) principal, Thurston, worked to finance a multitude of commercial real estate loans between 1995 and 2009. This dispute concerns a 2003 loan made by MIC and FIF to Kersey Commercial Park, LLC (Kersey Commercial) for $1.85 million (Kersey Loan) to purchase sixty-three acres of property to develop an industrial park (Kersey Property). When Thurston recommended that MIC finance the Kersey Loan, MIC did not know that the purchasers were involved in a series of transactions of questionable legitimacy surrounding the Kersey Property.

Kersey Commercial never made a payment on the Kersey Loan and was in default by May 2004. Thurston, on behalf of MIC and FIF, executed a Dry-Up Agreement on July 29, 2004, which sold certain Water Rights of the Kersey Property to Lower Latham Reservoir Company in return for a payment of $785,000 to one of the developers. In October 2004, MIC and FIF commenced foreclosure proceedings and on May 12, 2005 purchased the Kersey Property at foreclosure for $1.6 million. On June 6, 2006, FIF sued the appraisers. On November 8, 2006, Thurston had MIC execute an assignment of the Property (Assignment) from McGillis Investments to FIF (though the purpose of the Assignment is disputed). In 2012, FIF settled the appraiser litigation for $438,500 and remitted the proceeds to MIC.

In February 2009, FIF sued Sytech Development (one of the developers) over the Kersey Loan. After McGillis’s son took over MIC in 2008, he concluded that FIF had breached its fiduciary duty to MIC in a variety of transactions, and in April 2009, MIC filed suit in Utah against FIF. In October 2012, the jury returned a verdict in MIC’s favor for $1.25 million. Three days after the Utah verdict, FIF recorded the Assignment with the Weld County Clerk and Recorder. FIF settled the Sytech litigation on November 17, 2012 for $20,000.

On June 1, 2011, MIC filed this lawsuit against FIF, seeking to quiet title to the Kersey Property and damages for breach of fiduciary duty for FIF’s recording the Assignment and settling the Sytech litigation. On cross-motions for summary judgment, the trial court granted partial summary judgment based on claim preclusion in favor of FIF as concerned the validity of the Assignment and quieted title to the Kersey Property in FIF. MIC appealed, and a division of the Court of Appeals affirmed in part and reversed in part, vacating the decree quieting title and reversing the summary judgment on claim preclusion. Following trial on remand, the jury returned a verdict for MIC for $1,300,625 and found that MIC owned the Kersey Property.

In this appeal, FIF argued that the trial court did not follow the Court’s mandate on remand by failing to determine whether MIC knew or should have known of the Assignment’s validity when it filed the Utah action and that it was error to allow the Sysum brothers to invoke their Fifth Amendment privilege against self-incrimination in front of the jury and in giving an adverse inference instruction. In civil cases, an adverse inference may be drawn against a party who invokes the Fifth Amendment privilege against self-incrimination. The Court found no Colorado case addressing whether a nonparty witness’s invocation of the Fifth Amendment privilege constitutes admissible evidence. It adopted the analysis set forth in LiButti v. United States, 107 F.3d 110, 123 (2d Cir. 1997): the admissibility of a nonparty’s invocation of the Fifth Amendment privilege and concomitant drawing of adverse inferences should be considered on a case-by-case basis to ensure any inference is reliable, relevant, and fairly advanced. The overarching concern is whether the adverse inference is trustworthy and will advance the search for the truth.

Based on the record before it, the Court found no error in the trial court’s having decided that one of the brothers could answer a generic question, to which he invoked his Fifth Amendment right, and that there was enough evidence presented to give the adverse inference instruction as to him. The Court found it was error to allow the other brother to invoke his Fifth Amendment privilege because there wasn’t enough evidence to involve him in the alleged fraud. However, the trial court remedied this error when it did not give the adverse inference instruction as to this brother but told the jury to disregard his invocation of the privilege.

FIF also argued that it was error for the trial court not to have determined whether MIC knew or should have known there was a dispute concerning the Assignment’s validity when it filed the Utah action. The jury did consider this issue, but FIF argued it should have been the trial court that made the determination. The Court disagreed. The law of the case established in MIC I was to determine what MIC knew or should have known and there was an interrogatory to the jury that covered this issue. The jury’s answering of the interrogatory resolved the factual dispute dispositive of claim preclusion against FIF and that satisfied the law of the case.

The Court also rejected FIF’s arguments that MIC could not re-litigate anything concerning the Kersey Loan transaction other than the issue concerning the validity of the Assignment and the settlement of the Sytech litigation. The Court determined that this argument was based on a fundamental misunderstanding of the prior ruling in MIC I on the part of FIF. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: First in Time Charging Order Issued in Colorado Takes Priority

The Colorado Court of Appeals issued its opinion in McClure v. JP Morgan Chase Bank, NA on Thursday, August 13, 2015.

Charging Order Priority.

In July 2013, JP Morgan Chase Bank NA (Chase) obtained an Arizona judgment of roughly $20 million against Reginald D. Fowler and Spiral, an Arizona corporation. In November 2013, the Arizona court issued charging orders in favor of Chase, charging Fowler’s membership interests in three Colorado LLCs. In December 2013, the Chase charging orders were served on the LLCs, and the Denver District Court entered an order domesticating Chase’s Arizona judgment. In March 2014, the McClures obtained a $1.5 million judgment in Arizona against Fowler and Spiral. In April 2014, the McClures domesticated their Arizona judgment in Colorado by filing it in the Arapahoe County District Court. During May through June 2014, the Arapahoe Court issued charging orders in favor of the McClures, charging Fowler’s and Spiral’s membership interests in the same Colorado LLCs as those charged in the Chase charging orders, and the McClures served the orders on the LLCs. In August 2014, the Denver District Court entered an order domesticating Chase’s Arizona charging orders.

The LLCs paid Fowler’s distributions into the Arapahoe County District Court registry. The McClures filed a motion for release of the funds and Chase intervened in opposition. The district court ruled that because the McClures’ charging orders were issued by a Colorado court, they “were the first enforceable charging orders served on the [LLCs] and, hence, they have priority over [Chase’s] Arizona charging orders.”

On appeal, Chase argued it was error to rule that its Arizona charging orders were unenforceable in Colorado until they had been domesticated. The Court disagreed, holding that until it had domesticated the charging orders, they were unenforceable in Colorado.

Chase also argued that its first-in-time but (not yet) domesticated charging orders took priority over the McClure’s later-in-time but Colorado-issued charging orders. The Court held the priority of charging orders issued against Colorado LLCs is determined by first-in-time service of charging orders enforceable in Colorado. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 8/20/2015

On Thursday, August 20, 2015, the Colorado Court of Appeals issued no published opinion and 46 unpublished opinions.

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

Colorado Court of Appeals: No Error in Denial of Presentence Confinement Credit for Nonresidential Corrections Program

The Colorado Court of Appeals issued its opinion in People v. Pimble on Thursday, August 13, 2015.

Sentence—Presentence Confinement Credit—Nonresidential Community Corrections Program.

Defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance and attempted first-degree aggravated motor vehicle theft. The court initially sentenced her to twelve years in community corrections and later reduced this sentence to six years. Her community corrections placement was subsequently terminated. The court then resentenced defendant to six years in the custody of the Department of Corrections (DOC) and granted defendant credit for time served. However, the court did not give credit for her time served in the nonresidential program.

On appeal, defendant contended that she was entitled to presentence confinement credit (PSCC) for time spent in a nonresidential community corrections program, and the court erred by refusing to amend the mittimus to include this as time served. A defendant resentenced to DOC custody is entitled to PSCC for any time served in a residential community corrections facility. However, a defendant must be confined to receive PSCC. Because defendant was not confined in the nonresidential program, she was not entitled to PSCC for this period of time. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Refusal to Bake Cake Because of Opposition to Same-Sex Marriage Discriminatory

The Colorado Court of Appeals issued its opinion in Craig v. Masterpiece Cakeshop, Inc. on Thursday, August 13, 2015.

Public Accommodations Law—Same-Sex Marriage—Freedom of Speech—Free Exercise of Religion—Relation Back Doctrine of CRCP 15 (c)—CRS § 24-34-306(2)(b)(II).

This appeal arose from an administrative decision by the Colorado Civil Rights Commission (Commission), which upheld the decision of an administrative law judge (ALJ), who ruled in favor of Craig and Mullins (complainants) and against Masterpiece Cakeshop, Inc. (Masterpiece) and its owner, Phillips, on cross-motions for summary judgment. In July 2012, complainants visited Masterpiece and asked Phillips to design and create a cake to celebrate their same-sex wedding. Phillips declined, stating he doesn’t create wedding cakes for same-sex weddings because of his religious beliefs.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division (Division), alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA). Following a finding of probable cause, complainants filed a formal complaint with the Office of Administrative Courts, alleging Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation, in violation of CRS § 24-34-601(2).

The ALJ found in favor of complainants on cross-motions for summary judgment; the Commission affirmed and issued a cease and desist order requiring that Masterpiece (1) take remedial measures to ensure compliance with CADA, and (2) file quarterly compliance reports for two years with the Division.

On appeal, Philips claimed error in denying a motion to dismiss, alleging the Commission lacked jurisdiction to adjudicate the charges against him because only Masterpiece was named in the initial charge of discrimination with the Commission. The ALJ applied the relation back doctrine of CRCP 15(c) and found that adding Philips was permissible. The Court agreed and held that the relation back doctrine applied to a CADA charging document.

On the merits, Masterpiece argued it was error for the ALJ to conclude that its refusal to create a wedding cake was due to respondents’ sexual orientation, not its opposition to same-sex marriage. The Court disagreed. Because the act of same-sex marriage is closely correlated to respondents’ sexual orientation, it was not error for the ALJ to find that the refusal to create the wedding cake was because of their sexual orientation, in violation of CADA.

The Court considered whether the Commission’s application of the law violated Masterpiece’s rights to freedom of speech and free exercise of religion. Masterpiece argued that wedding cakes convey a celebratory message about marriage and therefore it was being unconstitutionally compelled to convey a celebratory message about same-sex marriage in conflict with its religious beliefs. The Court disagreed. The order merely requires that Masterpiece not discriminate against potential customers in violation of CADA, and such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Masterpiece also contended that the Commission’s order unconstitutionally infringed on its right of free exercise of religion. The Court concluded that CADA is a neutral law of general applicability and therefore offends neither the First Amendment nor article II, § 4, of the Colorado Constitution. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Default Judgment Must Be Set Aside When Defendants Not Served

The Colorado Court of Appeals issued its opinion in Burton v. Colorado Access on Thursday, August 13, 2015.

Employee Retirement Income Security Act of 1974—Process Service.

Burton was formerly employed by a company known as Colorado Access. Colorado Access sponsored the Colorado Access Long Term Disability Plan (plan), which was issued and administered by Unum Life Insurance Company of America (Unum). Burton sought benefits from Unum under the plan, and Unum paid her benefits for approximately two years before terminating them. Burton filed a complaint against the plan, claiming entitlement to additional benefits under the Employee Retirement Income Security Act of 1974 (ERISA). Instead of serving the complaint on the plan, she served the complaint on the Secretary of the U.S. Department of Labor. Burton sought a default judgment against the plan, which the district court entered but later set aside. The district court also entered summary judgment in favor of the plan.

On appeal, Burton argued that the trial court erred in finding that she did not properly serve the plan administrator when she served the Secretary of Labor. A party intending to sue a plan must serve the plan administrator where it is designated as the agent for service of process. It is only where the summary plan description designates neither the plan administrator nor some other person as the agent for service of process that service on the Secretary of Labor is allowed. Given that Colorado Access was the plan administrator, and the plan designated Colorado Access as its agent for service of process, Burton could not properly serve process on the plan by serving the Secretary of Labor under § 1132(d)(1) of ERISA. Therefore, the district court did not err in determining that Burton failed to properly serve the plan.

Burton also argued that the district court erred in entering summary judgment in favor of the plan. The only proper defendants in an ERISA claim to recover plan benefits are those entities that make eligibility or payment decisions or are obligated to pay benefits. In this case, Unum (the insurer) made all decisions regarding eligibility for and payment of benefits, and made all such decisions with respect to Burton. Further, only Unum was obligated to pay any benefits owed to Burton under the plan. Therefore, the plan was not a proper defendant as to Burton’s ERISA benefits claim, and the trial court properly entered summary judgment in the plan’s favor.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Peremptory Challenges Can Only Be Used on Newly Empaneled Jurors After Waiver

The Colorado Court of Appeals issued its opinion in People v. Terhorst on Thursday, August 13, 2015.

Peremptory Challenge—Waiver—Motion to Suppress—Evidence—Exigent Circumstances—Underage Drinking.

Defendant held a birthday party for his 17-year-old son at their large multistory home in Lakewood. Hundreds of teenagers attended the party, alcohol was present, and some of the teenagers were intoxicated. Police responded to the party after a neighbor reported that “underage kids” were drinking alcohol at defendant’s home. A jury found defendant guilty of four counts of contributing to the delinquency of a minor.

On appeal, defendant argued that he was improperly denied a fifth peremptory challenge during jury selection. Defendant was entitled to five peremptory challenges pursuant to CRS § 16-10-104. Defendant’s counsel used peremptory challenges to strike two potential jurors and waived the third and fourth peremptory challenges. Under Crim.P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Because no jurors were called into the jury box after defendant’s counsel’s waiver of the fourth peremptory challenge, defense counsel lost his ability to use any additional peremptory challenges.

Defendant also argued that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home. Exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. An underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance because there is a real threat that the alcohol, which is the evidence of underage drinking, will be destroyed. Accordingly, the police officers’ entry into defendant’s home was legally justified, and the trial court did not err in admitting the evidence derived from that entry.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retroactive Application of Marijuana Decriminalization Appropriate for Non-Final Sentences

The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.

Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.

An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.

Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.

Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Improperly Instructed that “Any Note” is a Security; Reversal Required

The Colorado Court of Appeals issued its opinion in People v. Mendenhall on Thursday, August 13, 2015.

Promissory Note—Securities Fraud—Colorado Securities Act—Jury Instructions—Testimony—Prosecutorial Misconduct.

Defendant was employed as a salesperson by an insurance company that specializes in low-risk insurance products for retirement-age persons. Defendant also was licensed to sell securities through an affiliated broker–dealer. Defendant obtained loans from clients or customers whom he had met through his employment to fund his personal real estate investments, giving each of them a promissory note. He was convicted by a jury of multiple counts of securities fraud and theft.

On appeal, defendant argued that the trial court erred in instructing the jury that any note is a security. One of the elements of securities fraud under the Colorado Securities Act (CSA) is that the defendant engaged in fraud in connection with a security. If there is no security, there cannot be securities fraud. The CSA defines “security” to include “any note.” Because sometimes notes are not securities, however, the court’s instruction constituted error. Because this instructional error was not harmless beyond a reasonable doubt, defendant’s securities fraud convictions were reversed.

Defendant also argued that the trial court erred in admitting the testimony of the district attorney’s investigator regarding his process for investigating someone suspected of criminal activity; under what circumstances he recommended pursuing criminal charges; and the specific investigation of, and decision to pursue charges against, defendant. Because probable cause to charge defendant was not at issue here, the investigator’s statements regarding how many potential cases he received each year and in how many of those cases charges were brought constituted inadmissible evidence. However, because there was overwhelming evidence that defendant was guilty of theft and the investigator’s comments were minimal, any error was harmless.

Defendant further contended that the prosecutor committed misconduct in closing argument when he likened defendant to Bernie Madoff and referred to the victims as members of the “greatest generation.” The Court concluded that the prosecution’s mention of Madoff was referencing a victim’s testimony, and referring to the victims as the “greatest generation” did not rise to the level of plain error.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentences May Constitute De Facto Life Sentence for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Ellis on Thursday, August 13, 2015.

Juvenile—Murder—Life Sentence—Eighth Amendment—Possibility of Parole—Life Expectancy—Direct Transfer Hearing—Jury Selection—Batson Challenge.

Ellis was 17 years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend’s car. Defendant was found guilty of the charges against him for these crimes. He was sentenced to life with the possibility of parole after forty years on the first-degree murder conviction and a thirty-two-year consecutive sentence for the attempted first-degree murder–extreme indifference conviction.

On appeal, Ellis contended that his sentence to life with the possibility of parole after a minimum of forty years’ imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment, is the equivalent of life without the possibility of parole and, therefore, unconstitutional. The Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. Ellis’s sentence would constitute a de facto life sentence without the possibility of parole, and therefore would be unconstitutional, if it left Ellis without a meaningful opportunity for release. However, because Ellis’s contention depended on a factual determination of his life expectancy, which the trial court did not previously conduct, the case was remanded to the trial court to make this determination.

Ellis contended that the trial court erred when it denied his request for a direct transfer hearing. CRS § 19-2-517(1)(a)(I) permits prosecutors to charge juveniles 16 years old or older as adults, without a transfer hearing, if their charges include a class 1 or 2 felony. The reenacted statute included a provision allowing juveniles charged by direct filing to file a motion with the district court seeking transfer to juvenile court. However, the reenacted statute became effective three days after a jury convicted Ellis. Therefore, the trial court did not err when it denied Ellis’s reverse transfer motion as untimely.

Ellis also contended that the trial court abused its discretion when it denied his Batson challenge to the prosecution’s use of peremptory challenges to excuse two potential jurors on account of their race. The prosecution provided a race-neutral explanation, the court found the prosecutor’s reasons believable, and the trial court’s ruling is supported by the record. Therefore, the trial court did not clearly err when it denied Ellis’s Batson challenges.

Summary and full case available here, courtesy of The Colorado Lawyer.