October 17, 2017

Colorado Court of Appeals: Announcement Sheet, 10/12/2017

On Thursday, October 12, 2017, the Colorado Court of Appeals issued no published opinion and 37 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Payments for Vendor Tables at Republican Convention Were Not Political Contributions

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog v. Colorado Republican Committee on Thursday, October 5, 2017.

Administrative Law Judge—Campaign Contributions—Value of Services—Reportable—C.R.S. §§ 1-45-108(1)(a)(I) and -103(6)(b).

An administrative law judge (ALJ) held a hearing and determined that the Colorado Republican Committee (CRC) improperly failed to report three payments for vendor tables at its 2016 Republican Party assembly and convention. The CRC was fined and sanctioned for failing to report contributions.

On appeal, CRC contended that the ALJ erred in determining that the three payments for vendor tables at the convention were reportable contributions under state law and not properly reported by CRC. C.R.S. § 1-45-108(1)(a)(I) requires political committees to report receipt of contributions of $20 or more and to report expenditures and obligations. C.R.S. § 1-45-103(6)(b), which defines “contribution,” applies to all contributions “for which the contributor receives compensation or consideration,” and thus applies to the payments at issue here. Under the plain language of this section, political parties are required to report only that portion of payments for services that exceeds the value of the services rendered. Here, Campaign Integrity Watchdog provided no evidence that the value of the vendor tables was actually less than the $350 CRC charged. Therefore, the ALJ erred in finding that the payments at issue were reportable contributions under state law.

The part of the order imposing a fine and sanctions against CRC for failing to disclose the relevant payments was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Dying Declaration Admissible Regardless of Whether Testimonial or Non-Testimonial

The Colorado Court of Appeals issued its opinion in People v. Cockrell on Thursday, October 5, 2017.

Dying Declarations Statute—Evidence—Confrontation Clause.

The victim was shot 11 times and was found by bystanders, who asked him questions. The victim answered their questions but did not provide the shooter’s name. On the way to the hospital, the victim identified Cockrell as the shooter to an officer who rode in the ambulance. The victim died soon thereafter during surgery. No DNA, fingerprint, or other forensic evidence tied Cockrell to the victim’s murder. The primary evidence against him was the victim’s dying declaration identifying Cockrell as the shooter and a bystander’s statement that he saw a car leaving the area around the same time the victim was found that matched the description of the car Cockrell drove. The trial court denied Cockrell’s motion to suppress the dying declaration and to find C.R.S. § 13-25-119 unconstitutional. Cockrell was found guilty of first degree murder and two crime of violence sentence enhancers.

On appeal, Cockrell contended that C.R.S. § 13-25-119, the dying declaration statute, is unconstitutional on its face because it violates the Confrontation Clause. Dying declarations are an exception to the hearsay rule because of their guarantee of trustworthiness, and precluding their admission would in many cases result in a failure of justice. The court of appeals held that dying declarations are an exception to the Confrontation Clause and the dying declaration statute is constitutional.

Cockrell also contended that the victim’s statement did not satisfy the statutory requirements for admission of dying declarations. The first statutory requirement was satisfied because the parties agreed that the victim believed he was going to die; he had 11 gunshot wounds and death was imminent, and he made statements indicating he feared he was going to die. As to the other three requirements, Cockrell argued that (1) the statements were not voluntary; (2) the statements were made in response to questions calculated to lead the deceased to make the particular statement; and (3) the victim was not of sound mind when he made the statements. However, the record supports the trial court’s finding that (1) the victim’s statements were voluntarily made; (2) the questions asked of the victim were designed to gather facts with no apparent pretense; and (3) although the victim was in a great deal of pain and had trouble breathing, he was conscious and alert and answered questions appropriately, and thus was of sound mind when he identified Cockrell as his shooter.

Lastly, Cockrell contended that there was insufficient evidence to support his first degree murder conviction. Based on the evidence presented, it was rational for the jury to have found Cockrell guilty as charged.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 10/5/2017

On Thursday, October 5, 2017, the Colorado Court of Appeals issued three published opinions and 30 unpublished opinions.

People v. Kadell

People v. Cockrell

Campaign Integrity Watchdog v. Colorado Republican Committee

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.

Colorado Court of Appeals: Announcement Sheet, 9/28/2017

On Thursday, September 28, 2017, the Colorado Court of Appeals issued no published opinion and 18 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: District Court Erred in Calculating Defendant’s Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Jim on Thursday, September 21, 2017.

Sentencing—Presentence Confinement Credit—Residential Community Corrections Placement.

Defendant was sentenced to 18 months in community corrections. He escaped two months after reporting to community corrections. Following his arrest, the district court resentenced him to 18 months in the custody of the Department of Corrections (DOC), and he was given 67 days of presentence confinement credit (PSCC) for the time he was confined in the county jail before his initial sentencing and 23 days of PSCC for the time he spent in jail between his arrest and resentencing. The court denied defendant’s request for PSCC related to the time he spent in community corrections because he had escaped.

On appeal, defendant contended and the People conceded that the court erred by not awarding him PSCC for the time he spent in the residential community corrections program. Time spent by a defendant in jail, in a DOC facility, or as a resident in a community corrections facility constitutes confinement under C.R.S. § 18-1.3-405, because those facilities limit an individual’s liberty. Thus, when a defendant is resentenced to DOC custody after revocation of a direct sentence to community corrections, he is entitled to credit for time served in a residential community corrections placement. Here, defendant is entitled to 62 days of PSCC for the 62 days he spent in a residential community correction placement. Further, his escape from community corrections did not negate his right to PSCC because C.R.S. §18-1.3-301(1)(k) does not apply to PSCC awards.

The order was reversed and the was case remanded for the district court to correct the mittimus to reflect that defendant is entitled to a total of 152 days of PSCC.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Not Required to Impose Consecutive Sentences for Attempted Murder Counts

The Colorado Court of Appeals issued its opinion in People v. Espinoza on Thursday, September 21, 2017.

Arson—Attempted Murder—Custody—Motion to Suppress—Consecutive Sentences—Identical Evidence—Crime of Violence—Concurrent Sentences—Discretion.

Espinoza set fire to an apartment complex. As part of the investigation, police transported Espinoza to the police station, where he waited for several hours before being interviewed. Police ended the interview when Espinoza invoked his right to counsel. Espinoza filed a motion to suppress his statements from the videotaped interview with police, alleging that he was in custody and police failed to give him Miranda warnings. The trial court denied the motion. A jury found Espinoza guilty of 10 counts of attempted murder, 23 counts of first degree arson, 10 crime of violence counts, and multiple misdemeanors.

On appeal, Espinoza contended that the trial court failed to consider several factors in finding that he was not in custody at the police station, including the several-hour wait in the interview room, the presence of two armed detectives during the interview, and the confrontational question near the end of the interview. The record showed that Espinoza agreed to speak with the detectives, consented to a pat-down search, and rode unrestrained to the police station. The detectives told Espinoza that he was not under arrest and was free to leave, Espinoza was not physically restrained, and the tone of the interview was conversational. The trial court’s detailed factual findings, supported by the record, show that Espinoza was not in custody when interviewed by the detectives.

Espinoza next contended that the trial court misapprehended the applicable law when it ruled that it was required to impose consecutive sentences for his attempted first degree murder convictions. Despite naming different victims, Espinoza’s 10 attempted murder convictions were supported by identical evidence because the same evidence (the single act of fire-setting) formed the basis of each conviction. The court of appeals held that separately named victims do not create separate crimes of violence under C.R.S. § 18-1.3-406(1)(a) when identical evidence supports each conviction, and in such circumstances, a court has discretion to impose concurrent sentences under C.R.S. § 18-1-408(3). Here, the trial court imposed consecutive sentences under the mistaken belief that it had no discretion to impose concurrent sentences.

The judgments of conviction were affirmed. The sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 9/21/2017

On Thursday, September 21, 2017, the Colorado Court of Appeals issued two published opinions and 17 unpublished opinions.

People v. Espinoza

People v. Jim

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.

Hon. Dennis Graham to Retire from Colorado Court of Appeals

On Wednesday, September 20, 2017, the Colorado State Judicial Branch announced the retirement of Colorado Court of Appeals Judge Dennis Graham, effective February 12, 2018.

An esteemed figure in the legal community, Judge Graham attended Colorado State University, then went on to law school at the University of Nebraska. He was drafted in his first year, however, and spent three years in the Army before returning to finish law school. He worked as a civil litigation attorney focused on securities law and commercial transactions from 1976 to 2002. Judge Graham was appointed to the Colorado Court of Appeals in 2002. Judge Graham has served on the Colorado Judicial Ethics Advisory Board and the Judicial Personnel Board. He is an avid cyclist.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the State of Colorado and must have been admitted to practice law in Colorado for five years. Applications are available from the State Judicial website, or from the ex officio chair of the Supreme Court Nominating Commission, Chief Justice Nancy Rice. Applications must be received no later than 4 p.m. on October 23, 2017; anyone wishing to nominate another must do so no later than 4 p.m. on October 16, 2017.

For more information about Judge Graham, click here. For more information about the vacancy or application process, click here.

Colorado Court of Appeals: Announcement Sheet, 9/14/2017

On Thursday, September 14, 2017, the Colorado Court of Appeals issued no published opinion and 36 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: Restitution Statute Does Not Require Prosecution’s Requested Specificity for Setoff

The Colorado Court of Appeals issued its opinion in People v. Stanley on Thursday, September 7, 2017.

Traffic Accident—Unapportioned Settlement—Crime Victim Compensation Program—Restitution—Setoff—Burden of Proof.

Stanley’s automobile insurer, Geico Indemnity Co. (Geico), entered into a “Release in Full of All Claims” (release) with the victim and her husband. Under the settlement, Geico paid the victim $25,000 for all claims related to and stemming from the accident in exchange for a full and final release of all claims against Stanley and Geico. Thereafter, Stanley pleaded guilty to felony vehicular assault, driving under the influence, and careless driving. The prosecution filed a motion to impose restitution and attached a report from the Crime Victim Compensation Program (CVCP). It showed that the CVCP had paid the victim $30,000, the maximum amount allowable by statute, for pecuniary losses proximately caused by Stanley’s criminal conduct. The Court awarded Stanley a $25,000 setoff against restitution for the amount paid by Geico, and ordered him to pay the $5,000 net amount.

On appeal, the prosecution argued that Stanley should not receive a setoff for the settlement funds because the release was an unapportioned settlement that did not “earmark” the proceeds for the same expenses compensated by the CVCP, leaving open the possibility that the victim used the proceeds for losses not compensated by the CVCP. When a victim receives compensation from a civil settlement against a defendant, the defendant may request a setoff against restitution “to the extent of any money actually paid to the victim for the same damages.” For purposes of a setoff, however, the court cannot allocate proceeds from an unapportioned civil settlement agreement without “specific evidence that the settlement included particular categories of loss,” because in civil cases victims may recover both pecuniary losses covered by the restitution statute and other damages specifically excluded under the restitution statute. Because the information needed to determine whether a victim has been fully compensated or has received a double recovery is known only by the victim, once a defendant has shown that a civil settlement includes the same categories of losses or expenses as compensated by the CVCP and awarded as restitution, the defendant has met his burden of going forward, and the prosecution may then rebut the inference that a double recovery has occurred. Here, Stanley met his burden of proving a setoff, but the victim may have used some or all of the settlement proceeds for losses not compensated by the CVCP.

The order was affirmed, and the case was remanded to permit the prosecution to show that the victim did not receive a double recovery from the settlement proceeds and the CVCP payment.

Summary provided courtesy of Colorado Lawyer.