October 30, 2014

Colorado Court of Appeals: Trial Court Cannot Sua Sponte Certify Question for Interlocutory Review

The Colorado Court of Appeals issued its opinion in People in Interest of M.K.D.A.L. on Thursday, October 23, 2014.

CAR 4.2—Sua Sponte Certification of an Issue for Interlocutory Review.

J.A.A.U., the biological father of M.K.D.A.L., petitioned under CRS § 15-14-304(1) for his appointment as a permanent guardian. According to the petition, “[r]espondent is unable effectively to communicate in the English language to the extent that he lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance.”

The trial court denied the petition, finding that, as a matter of law, speaking English is not a requirement for competency. The court also stated that, pursuant to CAR 4.2, it “will stay this order for 14 days and certify that there is no current case law on this point and that determination of this issue will determine the case.” Petitioner timely filed a petition for interlocutory appeal. There was no motion or stipulation for certification.

Under CAR 4.2(c), the appealing party must move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed. The trial court then has discretion to certify the order as immediately appealable; however, if all parties stipulate, the trial court must certify the order. No case interpreting CAR 4.2 has addressed a petition to appeal based on a trial court’s sua sponte certification.

The Court of Appeals concluded that a trial court cannot certify sua sponte an issue for interlocutory review.The Court recognized that a case may arise in which, despite the parties’ inaction, the trial court perceives that its order clearly involves “a controlling and unresolved question of law,” immediate review of which would “promote a more orderly disposition or establish a final disposition of the action,” as provided by CAR 4.2(b). However, the rule only empowers trial courts to grant or deny a motion for certification, not to initiate certification. Accordingly, the petition was dismissed.

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

Colorado Court of Appeals: Separate Property Remained Separate Despite Use to Pay Marital Debts

The Colorado Court of Appeals issued its opinion in In re Marriage of Corak on Thursday, October 23, 2014.

Marital Property—Marital Debt Allocations.

Husband and wife entered into a prenuptial agreement identifying separate property that each had acquired before the marriage. This separate property included a parcel of husband’s property (Shoshone property). The agreement stated that all separate property would remain as such.

Shortly after marrying, husband and wife jointly bought a piece of property (Pinyon property). Husband pledged the Shoshone property as collateral for a home equity line of credit for the down payment on the Pinyon property and the funds to remodel it. Husband and wife agreed to apply $16,000 from the credit line to retire one of wife’s premarital credit card debts. Husband and wife agreed that wife would make payments toward the line of credit.

Wife testified at the permanent orders hearing that she had made all of the payments on the credit line during the marriage, even beyond the amount she had used to retire her separate debt. She also testified that she had paid down some of her other premarital debts. Husband testified he paid down his separate debt during his marriage and admitted he had not disclosed the debt in the prenuptial agreement.

The district court ruled that husband’s act of pledging the Shoshone property as collateral for the line of credit turned a portion of it into marital property. The Court of Appeals found this to be an issue of first impression in Colorado. In looking to other jurisdictions, the Court found cases concluding that using separate property to secure a loan does not change the pledged property into marital property. The case was remanded for the trial court to determine the division of marital property and marital debt after setting aside all of the Shoshone property as husband’s separate property.

The Court agreed with husband that he had initially asked the trial court to restore the marital funds wife had spent to retire her separate premarital debt to the marital estate and credit them to her. However, after review of the record, the Court concluded that husband had intentionally abandoned this argument. Because the Court found husband had abandoned his claim to have these funds allocated differently, the Court will not disturb the trial court’s findings on appeal.

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

Colorado Court of Appeals: Department of Revenue’s Challenge to Conservation Easement Tax Credits Barred by Statute of Limitations

The Colorado Court of Appeals issued its opinion in Markus v. Brohl, Exec. Dir. of Colorado Department of Revenue on Thursday, October 23, 2014.

Conservation Easement Tax Credits—Review Period by Department of Revenue—Summary Judgment.

In 2004, three pairs of landowners created conservation easements (CEs) on their lands, had them appraised, and sold them to the Otero County Land Trust for a portion of their appraised value. They applied part of the CE tax credits to their 2004 income tax liability. The landowners (CE donors) carried forward the remainder of the CE credits, some for personal use and some for the use of third parties.

On September 28, 2009, the Colorado Department of Revenue (Department) disallowed the entire CE tax credit of one pair of landowners because of a purported deficiency in the appraisal. For the same reason, in April 2010, the Department disallowed the claims of CE tax credits of the each of the second pair of landowners. The disallowances, under a four-year limitations period, affected only the donors’ use of claimed CE credits in the 2005–08 tax years.

On cross-motions for summary judgment, the CE donors argued that the four-year limitations period had expired before the Department acted to disallow their tax credits. The Department argued that the limitations period commenced each time a CE donor or transferee applied a CE tax credit to his or her tax liability and that it could evaluate the original claims for purposes of disallowing the use of credits for the 2005–08 tax years. The district court entered summary judgment in favor of the CE donors.

On appeal, the Department argued that the district court erred in its limitations determination, and that there was a genuine issue of material fact precluding summary judgment as to whether the CE donors had filed false or fraudulent tax returns. The Court of Appeals found that the applicable general statute of limitations was four years, and the time period commenced at the filing of a tax return. Under this system, the Court was inclined to side with the Department.

However, CRS § 39-22-522 specifically addresses the tax consequences of a CE. Under that statute, claimed CE tax credits may be transferred to third parties, who are then bound by “the same statute of limitations” as the CE donor. The Court supported an interpretation where a purchaser–transferee would have a low risk of disallowance of the CE credits by the Department. Here, because the Department did not challenge the validity and value of the CE tax credits prior to April 15, 2009, it was barred from disallowing them.

The Department also argued that there was a genuine issue of material fact as to whether the CE donors filed false or fraudulent tax returns that precluded summary judgment. After reviewing the record, the Court found no genuine dispute of any material fact. The judgment was affirmed.

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

Colorado Court of Appeals: Laches Does Not Apply to Actions to Recover Past-Due Child Support

The Colorado Court of Appeals issued its opinion in In re Marriage of Johnson on Thursday, October 23, 2014.

Child Support Arrearages.

Father’s marriage to mother ended in 1983. He was ordered to pay $400 in monthly child support for their two children. In September 2012, mother requested that judgment enter for $893,285 in child support arrearages and interest. Father objected, asserting that under the applicable twenty-year statute of limitations, mother could collect arrearages accruing only after September 1992. He requested a hearing to make that determination. The magistrate entered judgment for mother for the full amount requested, without addressing father’s contention or his hearing request.

Father petitioned for district court review of the order. The court ruled that the twenty-year statute of limitations applied, vacated the magistrate’s order, and remanded the matter for an evidentiary hearing. After the hearing, the magistrate rejected father’s argument that child support had terminated when their last child turned 19 in July 1995 and that lachesbarred mother’s right to collect interest. The magistrate entered judgment for $23,260 for arrearages between September 1992 and July 1997, when the parties’ last child turned 21, plus interest, resulting in a judgment of $155,000. The district court adopted the order.

On appeal, father argued that child support automatically terminated on July 17, 1995 and that the finding of $23,260 in arrearages lacked record support. At the time of the dissolution, child support was owed until a child emancipated, which presumptively was at age 21. In 1991, the applicable statute was amended to provide that emancipation occurs and child support terminates when a child turns 19. The amendment applied to all child support obligations established before July 1, 1991. Therefore, father’s child support obligation terminated on July 17, 1995, when the last child turned 19.

Father also argued that it was error to hold that laches did not apply as to the right to collect interest. Under CRS § 14-14-106, interest is specified on arrearages in child support and it is not discretionary. The Court of Appeals has previously held that laches does not apply “to actions for the recovery of past due child support.” At the hearing, father had acknowledged that he owed $4,800 in arrearages for the period between July 1994 and July 1995. On remand, the court was ordered to calculate interest under CRS § 14-14-106 on the $4,800 and enter judgment for mother accordingly.

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

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

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

Colorado Court of Appeals: Insufficient Findings on Batson Challenge Warranted Reversal

The Colorado Court of Appeals issued its opinion in People v. Beauvais on Thursday, October 23, 2014.

Jury Selection—Peremptory Challenge—Batson Challenge.

A jury found Beauvais guilty of one count of stalking under CRS § 18-3-602(1)(c) after she repeatedly called, e-mailed, and sent text messages to a man she met on the Internet. On appeal, she contended that the trial court committed reversible error in the jury selection process, and that CRS § 18-3-602)(1)(c) is unconstitutional.

Beauvais first contended that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender [Batson v. Kentucky, 476, U.S. 79 (1986)]. The record refutes several of the prosecutor’s explanations for excusing potential jurors. The prosecutor did not attempt to excuse several males on the panel that had the same characteristics for which the prosecutor claimed he excused the female jurors. However, the prosecutor also claimed that each of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. However, the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Because the record was insufficient to determine whether the trial court’s ruling was clearly erroneous, the matter was remanded to the trial court for additional findings.

Beauvais next contended that, on its face, CRS § 18-3-602(1)(c) (the stalking statute)is unconstitutionally vague and overbroad. The Colorado Supreme Court and a division of the Court of Appeals have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. Therefore, Beauvais’s facial challenge was rejected.

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

Colorado Court of Appeals: Improper Jury Instruction Amounted to Directed Verdict for Prosecution

The Colorado Court of Appeals issued its opinion in People v. Bertrand on Thursday, October 23, 2014.

Sexual Assault—Evidence—CRS §18-3-402(1)(b)—Asleep—Jury Instruction.

Defendant is the cousin of K.B., the alleged victim. K.B. suffered from developmental disabilities, and lived with her parents because she was unable to care for herself. On several occasions while defendant lived with K.B. and her family, defendant got into bed with K.B. and had sexual intercourse with her. K.B. later told her mother that defendant had had sex with her, but that she did not want to have sex with him. The family made a report to police, and a jury ultimately convicted defendant of two counts of sexual assault.

On appeal, defendant contended that there was insufficient evidence to show that K.B. was incapable of appraising the nature of her conduct as required by CRS § 18-3-402(1)(b). K.B. suffered from cognitive difficulties, and she took medication before bedtime that made her groggy and sleepy. The jury could have reasonably inferred from this evidence that she was incapable of appraising the nature of her conduct when defendant was having sex with her. The jury could also have reasonably concluded that defendant knew that K.B. was unable to appraise the nature of her conduct. Therefore, the evidence was sufficient to sustain defendant’s conviction under CRS § 18-3-402(1)(b).

Defendant also contended that one of the jury instructions improperly directed a verdict in favor of the prosecution. The jury instruction stated that “[a] person is incapable of appraising the nature of her conduct when she is asleep or partially asleep during an assault.” The instruction should have stated that a person “may be” incapable.Because the error was not harmless, the conviction was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Two Convictions for Same Incident Violated Rights Against Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Frye on Thursday, October 23, 2014.

Miranda Rights—Suppression—Jury Question—Double Jeopardy—Controlled Substances—CRS § 18-8-203(1).

Defendant was arrested on outstanding warrants. While she was being booked into the Jefferson County jail, drugs were found on her person. A jury convicted her of multiple charges related to the drugs.

On appeal, defendant contended that the trial court erred in refusing to suppress her statement that she did not possess any drugs, which she made at the jail before having been advised of her right to remain silent. Although the trial court erred, the error was harmless beyond a reasonable doubt; evidence of defendant’s guilt was overwhelming.

Defendant also contended that the trial court erred in responding to a jury question dealing with an officer’s right to request identification from a passenger during a routine traffic stop. However, there was no reasonable probability that the error contributed to defendant’s conviction, because (1) the evidence of defendant’s guilt was overwhelming; (2) the court instructed the jury that it was not an issue for them to determine; and (3) it did not bolster the officer’s credibility regarding any material issue.

Defendant further contended that one conviction for introducing contraband into a detention facility must be vacated or merged because she could not be convicted twice for introducing two types of drugs at the same time. The search of defendant at the jail revealed methamphetamine, cocaine, and oxycodone. The jury convicted her on two of these counts and acquitted her on one of them, and the trial court imposed concurrent sentences on the two convictions. Because defendant’s entry into the jail occurred at the same time and place, without the influence of any intervening events, her convictions were a violation of her rights against double jeopardy. The case was remanded to vacate one of the convictions.

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

Colorado Court of Appeals: Prosecutor’s Improper Statements Did Not Constitute Error

The Colorado Court of Appeals issued its opinion in People v. Castillo on Thursday, October 23, 2014.

Initial Aggressor—Self Defense—Jury Instructions—Burden of Proof—Prosecutorial Misconduct.

Defendant went to a club in downtown Denver. After leaving the club, he engaged in a confrontation with an unidentified male in a busy parking lot, and police were called. Defendant began driving out of the parking lot, stopped his car, and got a shotgun out of his trunk. He began firing at the unidentified male and shot one of the officers, who had been returning fire at defendant. A jury convicted defendant of two counts of attempted second-degree murder and one count of second-degree assault.

Defendant argued that because no evidence supported an initial aggressor instruction, the trial court erred by instructing the jury that he was not entitled to self-defense if he was the initial aggressor. There was conflicting testimony from witnesses as to whether defendant was the initial aggressor. Based on these facts and because the prosecution needed to make only a minimal showing to support an instruction on an exception to self-defense, the trial court did not err in giving the initial aggressor instruction to the jury. Further, the jury instructions as a whole informed the jury that the prosecution had the burden of proving this exception to self-defense beyond a reasonable doubt.

Defendant argued that the trial court erred by instructing the jury that self-defense is not an affirmative defense if defendant, “with intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that person.” This instruction should not have been given because there was no evidence to support it. There was no evidence that the error misled the jury, however, so the error was harmless.

Defendant contended that numerous statements made by the prosecutor in closing argument were misleading as to both the facts of this case and the law of self-defense. Some of the prosecutor’s statements regarding the facts and law were improper, but the statements did not constitute reversible error. Moreover, the court instructed the jury that the prosecutor’s arguments were not evidence and that the jury should follow the jury instructions regarding the applicable law. The judgment was affirmed.

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

Colorado Court of Appeals: Applying Novotny to Case Pending on Appeal Not a Retroactive Application

The Colorado Court of Appeals issued its opinion in People v. Maestas on Thursday, October 23, 2014.

Challenge for Cause—Peremptory Challenge—Constitutional Right to Impartial Jury.

A jury found defendant guilty of aggravated robbery, menacing, and eluding police. A division of the Court of Appeals overturned defendant’s conviction and remanded the case for a new trial after determining the trial court had erred by denying one of defendant’s for-cause challenges. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in People v. Novotny, 2014 CO 18, which held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not “harmless under the proper outcome-determinative test.”

The Court first rejected defendant’s contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Applying Novotny to a case pending on appeal is not a retroactive application of the law and does not offend due process.

The Court agreed with defendant that the trial court abused its discretion by denying his challenges for cause to two prospective jurors, Juror F and Juror H, who indicated they would hold it against defendant if he refused to testify. The trial court denied defendant’s challenges for cause as to Jurors F and H, and defendant used a peremptory challenge to remove Juror H from the jury. Defendant had exhausted his peremptory challenges, so Juror F ultimately served on the jury. Because Juror F, a biased juror, sat on the panel, defendant’s constitutional right to an impartial jury was implicated, and reversal was required. The case was remanded for a new trial.

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

Colorado Court of Appeals: Announcement Sheet, 10/23/2014

On Thursday, October 23, 2014, the Colorado Court of Appeals issued 10 published opinions and 18 unpublished opinions.

People v. Maestas

People v. Castillo

People v. Frye

People v. Bertrand

People v. Beauvais

People v. Calderon

In re Marriage of Johnson

Markus v. Colorado Department of Revenue

In re Marriage of Corak

People in Interest of M.K.D.A.L.

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: Announcement Sheet, 10/16/2014

On Thursday, October 16, 2014, the Colorado Court of Appeals issued no published opinion and 39 unpublished opinions.

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