April 19, 2018

Colorado Court of Appeals: Courts May Only Appoint Receivers for Marijuana Businesses who are Licensed Under Marijuana Code

The Colorado Court of Appeals issued its opinion in In re Marriage of Yates on Thursday, March 8, 2018.

Dissolution of Marriage—Receiver—Colorado Medical Marijuana Code—Retail Marijuana Code.

Petitioner-Appellee Yates filed a petition to dissolve her marriage to respondent-appellee Humphrey. She requested the appointment of a receiver over marital property, which included marijuana businesses. A number of these marijuana businesses were licensed medical and recreational marijuana entities. The court appointed Sterling Consulting Corporation, including its principal Richard Block, as the receiver. When the court entered the receivership order, neither Block nor his employees held the licenses required by the Colorado Medical Marijuana Code and the Colorado Retail Marijuana Code to own, operate, manage, control, or work in a licensed marijuana business.

After learning of the receivership order, the Colorado Department of Revenue, officially acting as the State Licensing Authority (SLA), moved to intervene and modify the receivership order by removing the receiver, at least until Block and his employees obtained the requisite licenses. The court granted the motion to intervene, but denied the motion to modify.

On appeal, SLA challenged the court’s authority to appoint receivers who are not licensed to operate marijuana businesses. A district court may only appoint a receiver for a marijuana business who complies with Colorado’s marijuana licensing laws.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Exoneration Statute Does Not Apply Where Misdemeanor Conviction Still Stands

The Colorado Court of Appeals issued its opinion in Abu-Nantambu-El v. State of Colorado on Thursday, March 8, 2018.

Sexual Assault—Kidnapping—Felony—Misdemeanor—Exoneration Statute—Wrongful Conviction—Compensation.

Defendant was convicted of first degree sexual assault (a class 3 felony), second degree kidnapping (a class 2 felony), and third-degree assault (a class 1 misdemeanor) in the same case, all arising out of an incident in which the victim claimed that defendant had raped her. Thereafter, the felony convictions were vacated based on defendant’s successful Crim. P. 35(c) motion claiming ineffective assistance of counsel. The district court denied the Crim. P. 35(c) motion as to the misdemeanor conviction. Based on the order vacating his felony convictions, defendant filed a petition for compensation pursuant to the Exoneration Statute. The State moved to dismiss and the district court granted the State’s motion.

On appeal, defendant contended that the district court erred when it concluded that his misdemeanor conviction precluded him from filing a petition for compensation. He argued that because the Exoneration Statute addresses only wrongly convicted felons, the legislature could not have meant to include misdemeanor convictions within its parameters. The Court of Appeals concluded that the General Assembly intended to require that all convictions in a case be vacated or reversed for a petition for compensation to qualify for the district court’s consideration.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Abused its Discretion by Failing to Apply Three-Part Test for Excusable Neglect

The Colorado Court of Appeals issued its opinion in Taylor v. HCA-HealthONE, LLC on Thursday, March 8, 2018.

Medical Malpractice—Service—C.R.C.P. 4(m)—C.R.C.P. 60(b)—Excusable Neglect.

Plaintiff filed a medical malpractice action but failed to serve defendants within the C.R.C.P. 4(m) deadline. The district court dismissed the action without prejudice, and because the statute of limitations had run, plaintiff could not refile the lawsuit. She moved to set aside the judgment under C.R.C.P. 60(b) based on excusable neglect. Without holding a hearing, the district court concluded that counsel’s docketing errors did not amount to excusable neglect and denied the motion.

On appeal, plaintiff first argued that the district court’s dismissal order was invalid under C.R.C.P. 4(m) because the delay reduction order was premature. Although the rule requires notice before dismissal, it does not require notice after expiration of the service deadline. Thus, plaintiff was not entitled to additional notice beyond the delay reduction order and the district court’s order of dismissal was valid.

Plaintiff also argued that the court erred in failing to apply the three-factor test in Craig v. Rider, 651 P.2d 397 (Colo. 1982), in evaluating her Rule 60(b) motion to set aside the order of dismissal. That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations. The district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part Craig test.

The order was vacated and the case was remanded to the district court to apply the Craig test.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Err in Not Allowing Courtroom Gallery to See Sexually Explicit Images of Minors

The Colorado Court of Appeals issued its opinion in People v. Robles-Sierra on Thursday, March 8, 2018.

Child Pornography—Constitutional Law—Sixth Amendment—Public Trial—Distribution—Publishing—File Sharing Software—Expert Testimony—Jury Instruction.

Sheriff’s department detectives found over 600 files of child pornography—in both video recording and still image form—on various electronic devices defendant owned. In each instance, defendant had downloaded someone else’s file to his computer using ARES peer-to-peer file sharing software. Defendant downloaded the files in such a way that other users downloaded hundreds of defendant’s files. Defendant admitted that he’d downloaded and looked at the sexually exploitative material, but stated as a defense that he hadn’t knowingly violated the law because he did not know how ARES software works. A jury found defendant guilty of four counts of sexual exploitation of a child.

On appeal, defendant challenged all the convictions. He first argued that the district court violated his constitutional right to a public trial by closing the courtroom during the presentation of parts of certain exhibits. Two of the prosecution’s witnesses testified about videos and still images taken from defendant’s devices, describing them in graphic terms. Over defense counsel’s objection, the prosecutor displayed the videos and still images using a screen that could be seen by the witnesses and the jurors, but not by anyone in the courtroom gallery. That portion of a trial when evidence is presented should be open to the public, but that right does not extend to the viewing of all exhibits by the public as those exhibits are introduced or discussed. The right concerns the public’s presence during or access to the trial; where no one is excluded from the courtroom, the right is not implicated. Here, the district court didn’t exclude any member of the public during the presentation of the evidence. Because the court didn’t close the courtroom, there wasn’t any violation of defendant’s right to a public trial.

Defendant also challenged all convictions on the basis that the district court erred by allowing the prosecution’s experts to testify to ultimate legal conclusions that were the jury’s sole prerogative to decide. Even assuming all of the challenged testimony was improper, any error fails the plain error test.

Defendant further challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the prosecution’s theories of publishing and distributing were “legally insufficient.” He alleged that the mere downloading of sexually exploitative material to a share-capable file isn’t publication or distribution, and because we don’t know if the jury convicted on either basis or some proper basis, the verdicts on these counts can’t stand. The Court of Appeals analyzed the meaning of “publishing” and “distribution” and concluded that defendant’s downloading of sexually exploitative material to his computer using peer-to-peer file sharing software, and his saving of that material in sharable files or folders accessible by others using the same software, constituted both publishing and distributing the material within the meaning of the statute.

Finally, defendant challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the jury instruction defining “offer” had the effect of directing a verdict against him on these charges. Here, the instruction was an accurate statement of the law and described a factual circumstance that would constitute an offer. The fact that the jury could have found that factual evidence existed from the evidence presented doesn’t mean the instruction directed a verdict.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/8/2018

On Thursday, March 8, 2018, the Colorado Court of Appeals issued nine published opinions and 30 unpublished opinions.

People v. Robles-Sierra

Taylor v. HCA-HealthONE LLC

Abu-Nantambu-El v. State of Colorado

In re Marriage of Yates

Meardon v. Freedom Life Insurance Co. of America

Crocker v. Greater Colorado Anesthesia, P.C.

In re Marriage of Boettcher

White v. Estate of Soto-Lerma

People v. Ray

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: Body-Worn Cameras Are Not “Personal Safety and Health Equipment” and Therefore Do Not Mandate Collective Bargaining

The Colorado Court of Appeals issued its opinion in Denver Police Protective Association v. City & County of Denver on Thursday, February 22, 2018.

Labor Relations—Collective Bargaining—Body-Worn Cameras—Summary Judgment.

The City and County of Denver (Denver) and the Denver Police Protective Association (DPPA) are parties to a collective bargaining agreement. That agreement implements the City and County of Denver Charter (Charter), which sets forth Denver’s obligations regarding collective bargaining with certain of its employees. A category in the Charter that is not required to be subject to collective bargaining is officer health and safety matters, except for personal safety and health equipment.

In 2015, the Denver Police Department (DPD) promulgated, without bargaining or consultation with DPPA, a policy regarding the use of body-worn cameras (BWCs). The policy required “patrol officers and corporals assigned to all six police Districts, the Gang Unit and Traffic Operations” to wear and use BWCs. DPPA immediately contended that this was a mandatory subject of collective bargaining and demanded that Denver bargain. Denver refused.

DPPA sued, alleging Denver violated the collective bargaining agreement by implementing the BWC policy without first bargaining in good faith with DPPA. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of DPPA and ordered Denver to bargain over the implementation of the BWC policy.

On appeal, the court of appeals considered whether the BWCs are “personal safety and health equipment” subject to collective bargaining as claimed by DPPA and agreed to by the district court, or if they are equipment that relates to “officer safety and health matters,” as Denver argued, and therefore are not a mandatory subject of collective bargaining.

Analyzing the Charter, the court concluded that it is reasonable to restrict the definition of “personal safety and health equipment” to equipment whose principal purpose is the safety of officers. The case thus turned on whether the principal purpose of BWCs is officer safety. While BWCs may incidentally impact officer safety, their principal purpose is not to increase the safety of the officer. The court therefore concluded that BWCs are not “personal health and safety equipment” under the Charter and are not a mandatory subject of collective bargaining.

The judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Notice Should be Sent to All Tribes in Ancestral Group if Only Ancestral Group Indicated

The Colorado Court of Appeals issued its opinion in People in Interest of L.H. on Thursday, February 22, 2018.

Dependency and Neglect—Indian Child Welfare Act—Notice Requirement.

In this dependency and neglect proceeding, mother initially denied Native American heritage but then informed the Jefferson County Department of Human Services (Department) that her biological brother is registered with “Navajo-Deni.” The Department sent six separate notices to the Navajo Nation at six different addresses. The Navajo Nation responded that there was no record of the family with the Navajo Nation, and therefore the child was not enrolled or eligible for enrollment with the Navajo Nation. Based on this response, at the termination hearing the trial court found that the Indian Child Welfare Act (ICWA) did not apply in this case.

Mother appealed the judgment terminating the parent–child legal relationship with her child. Based on its review of the record, the Court of Appeals could not determine whether the Department complied with the ICWA. A review of the Bureau of Indian Affairs (BIA) list of Tribal Agents by Affiliation shows that the Colorado River Indian Tribes are also tribes historically affiliated with the Navajo. The Court concluded that because mother had made a general reference to Navajo, and not just the Navajo Nation, the Department was required to also notify the Colorado River Indian Tribes. The notice to only the Navajo Nation was insufficient to satisfy the ICWA’s notice requirement.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Colorado River Indian Tribes.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Summarily Dismissing Conversion and Unjust Enrichment Claims

The Colorado Court of Appeals issued its opinion in Scott v. Scott on Thursday, February 22, 2018.

Torts—Conversion—Unjust Enrichment—Life Insurance Proceeds—Motion to Dismiss under C.R.C.P. 12(b)(5) and (6)—Attorney Fees and Costs.

Roseann’s marriage to Melvin Scott was dissolved. Their separation agreement provided that Melvin’s life insurance policies were to be maintained until Roseann remarried, and at that time the beneficiaries could be changed to the children of the parties. Upon emancipation of the children, if Roseann had remarried, Melvin could change the beneficiary to whomever he wished. A Prudential life insurance policy was the policy at issue in this case.

After the divorce, Melvin married Donna and remained married to her until his death. Roseann never remarried. A few years before Melvin died and decades after his divorce from Roseann, Melvin changed the named beneficiary on his life insurance policies to Donna. Melvin died and Donna received the proceeds from his life insurance policies. Roseann sent a demand letter to Donna, requesting the proceeds pursuant to the separation agreement. The proceeds were placed in a trust account pending the outcome of this litigation.

Roseann sued Donna in Mesa County District Court, alleging civil theft, conversion, and unjust enrichment/constructive trust. Donna did not answer but removed the case to federal district court based on administration of the veteran life insurance policies by the federal government. She then moved to dismiss Roseann’s claims under a theory of federal preemption. Ultimately, the federal court agreed with the preemption argument and dismissed Roseann’s claims with prejudice as to the veteran policies but remanded the remaining claims to the Mesa County District Court for resolution regarding the Prudential policy.

Donna filed a motion in the district court to dismiss under C.R.C.P. 12(b)(5) and (6), arguing that Roseann’s claims failed to state a claim upon which relief could be granted and that she had failed to join Melvin’s estate, a necessary party. The district court granted the motion and a subsequent motion for attorney fees and costs.

On appeal, the court of appeals first examined whether Roseann had stated claims sufficient to withstand the plausibility standard required to survive a motion to dismiss under C.R.C.P. 12(b)(5). To state a claim for civil theft, a plaintiff must allege the elements of criminal theft, which requires the specific intent of the defendant to permanently deprive the owner of the benefit of his property. Roseann made a single, conclusory allegation, repeating the language in the statute, that Donna acted with the requisite intent to state a claim for civil theft. The court concluded that, without more, the allegation was not entitled to the assumption of truth, and the district court did not err in dismissing the civil theft claim.

Conversion, unlike civil theft, does not require that the convertor act with the specific intent to permanently deprive the owner of his property. Even a good faith recipient of funds who receives them without knowledge that they belonged to another can be held liable for conversion. Here, Roseann adequately alleged that Donna’s dominion and control over the Prudential policy proceeds were unauthorized because of the separation agreement language and Donna’s refusal to return the allegedly converted funds. Roseann pleaded each element of conversion sufficiently for that claim to be plausible and withstand a request for dismissal under C.R.C.P. 12(b)(5).

Similarly, the court concluded it was error to dismiss Roseann’s claim for unjust enrichment and constructive trust. In general, a person who is unjustly enriched at the expense of another is subject to liability in restitution. Here, Roseann alleged that Donna received a benefit that was promised to Roseann in the separation agreement and it would be inequitable for Donna to retain the funds. Roseann asked the court to impose a constructive trust on the assets. While this may be a difficult case in that two arguably innocent parties are asserting legal claims to the same insurance proceeds, resolution should be left to the fact finder and not resolved under a C.R.C.P. 12(b)(5) motion to dismiss.

It was not clear whether the district court had dismissed the claims for failure to join a necessary party under C.R.C.P. 12(b)(6), so the court addressed this issue as well. Here, the court held that Melvin’s estate was not a necessary party because Donna has possession of the proceeds at issue, and thus complete relief can be accorded between Roseann and Donna. In addition, the life insurance proceeds were never a part of Melvin’s estate assets and therefore the estate has no interest in those proceeds. Further, this is not an action for enforcement of the separation agreement, but is essentially an action in tort. The district court erred by dismissing the case under C.R.C.P. 12(b)(6).

Lastly, Roseann contended that Donna is not entitled to attorney fees and costs because the court erred in granting Donna’s motion to dismiss. The court agreed.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions. The award of attorney fees and costs was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Neither District Court Nor Counsel Required to Inform Defendant He Would Pay Interest on Restitution

The Colorado Court of Appeals issued its opinion in People v. Joslin on Thursday, February 22, 2018.

Criminal Procedure—Postconviction Motion—Restitution—Interest.

After entering into plea agreements, defendant was sentenced to 92 years to life in the custody of the Department of Corrections and ordered to pay over $14,000 in fees and $1,520 in restitution. When defendant did not pay the restitution within a year, he was charged interest on that unpaid restitution pursuant to C.R.S. § 18-1.3-603(4)(b). He then filed two nearly identical Crim. P. 35(c) motions, alleging that in each case he was never told that he would be charged interest on unpaid restitution. He claimed that he would never have pleaded guilty if he had known he would have to pay interest. The district court denied the motions without a hearing.

On appeal, defendant contended that he was entitled to postconviction relief because either the district court or his counsel (or both) was required to tell him that he would be required to pay interest on unpaid restitution and they failed to do so. Interest on unpaid restitution is a collateral consequence of a plea and neither the district court nor defendant’s counsel had a duty to advise defendant of this possibility. Therefore, defendant’s postconviction allegations, even if true, do not warrant relief, and the district court did not err in denying defendant’s motion without a hearing.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Had Jurisdiction to Consider Wife’s Motion Filed One Day Before Expiration of Jurisdictional Period

The Colorado Court of Appeals issued its opinion in In re Marriage of Runge on Thursday, February 22, 2018.

Dissolution of Marriage—Post-Decree—C.R.C.P. 16.2(e)(10)—Subject Matter Jurisdiction—Disclosures.

In this post-dissolution of marriage dispute, wife moved under C.R.C.P. 16.2(e)(10) to discover and allocate assets that she alleged husband did not disclose or misrepresented in the proceedings surrounding their 2011 separation agreement. Husband moved to dismiss wife’s motion and the district court granted the dismissal.

As an initial matter, husband contended that the district court lacked subject matter jurisdiction under C.R.C.P. 16.2(e)(10) because the five-year period during which it may reallocate assets expired the day after wife moved for such relief. C.R.C.P. 16.2(e)(10) does not limit the court’s jurisdiction to rule on timely motions if the five-year period expires before the ruling. Therefore, the district court had jurisdiction to rule on the motion because wife’s motion was timely filed within the five-year period under the rule.

On appeal, wife contended that the district court erred by not applying the “plausibility” standard announced in Warne v. Hall, 2016 CO 50, when granting husband’s motion to dismiss. The Warne “plausibility” standard does not apply here because wife’s motion was not a pleading and husband’s motion to dismiss was not pursuant to C.R.C.P. 12(b)(5).

Wife also contended that the district court erred by ruling that she did not state sufficient grounds in her motion and that the court should have allowed her to conduct discovery to prove her allegations. Wife did not allege that husband failed to disclose specific items mandated under C.R.C.P. 16.2(e)(10) and husband certified that he provided all such items. Instead, wife asserted suspicions and speculations that husband likely failed to disclose and misrepresented assets. In light of the information about husband’s assets that wife had pre-decree, and her choice to enter into a separation agreement rather than to evaluate this information, wife’s motion did not state sufficient grounds to trigger an allocation of misstated or omitted assets. Further, C.R.C.P. 16.2(e)(10) was not intended to create a right for an ex-spouse to conduct discovery into the other spouse’s assets post-decree.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Indeterminate Sentence for Juvenile Illegal Pursuant to Children’s Code

The Colorado Court of Appeals issued its opinion in People in Interest of J.C. on Thursday, February 22, 2018.

Juvenile—Delinquency—Indeterminate Sentence—Mandatory Sentence Offender—Repeat Juvenile Offender—Multiple Adjudications—Illegal Sentence.

J.C., a juvenile, pleaded guilty to charges in three separate cases, pursuant to a global plea agreement, on the same day during a hearing addressing all three cases. She pleaded guilty first to a third-degree assault charge, then to a second-degree criminal trespass charge, and finally to a second-degree assault charge. The court accepted the pleas and adjudicated J.C. delinquent in all three cases. The juvenile court sentenced J.C. to an indeterminate one-to-two-year term of commitment in the custody of the Division of Youth Corrections (DYC), with a mandatory minimum term of one year.

J.C. filed a motion to correct illegal sentence, arguing that the court lacked authority to sentence her to a mandatory minimum period of confinement as a mandatory sentence offender because the three adjudications required for the relevant statute to apply had all occurred at the same hearing. The court denied the motion. J.C. then filed for postconviction relief, alleging that she received ineffective assistance of plea counsel and that she hadn’t knowingly, voluntarily, or intentionally pleaded guilty. In denying the motion, as relevant here, the court ruled that because it was not shown that the court relied on the “mandatory sentence offender” classification, J.C. did not show prejudice.

On appeal, J.C. argued that the juvenile court erred by summarily denying her petition for postconviction relief because she had alleged that neither her lawyer nor the court had advised her that she would be sentenced as a repeat juvenile offender. She alleged that she was prejudiced by counsel’s deficient performance and the court’s failure to advise her because she wouldn’t have pleaded guilty if she’d known she would be sentenced to a mandatory minimum term of confinement. The court of appeals reviewed the entire juvenile sentencing scheme and concluded that a court may not sentence a juvenile to DYC for an indeterminate term. Because the court sentenced J.C. to one to two years in DYC, her sentence is indeterminate and therefore illegal.

Because the issue will likely arise on remand, the court also addressed whether the juvenile court may sentence J.C. to a mandatory minimum period of commitment. A mandatory minimum sentence to DYC commitment is authorized only if the juvenile qualifies as a special offender under C.R.S. § 19-2-908. Two categories of special offenders are relevant here: mandatory sentence offenders and repeat juvenile offenders. However, a juvenile doesn’t qualify as a mandatory sentence offender under C.R.S. § 19-2-516(1) or a repeat juvenile offender under C.R.S. § 19-2-516(2), when, as in this case, the multiple adjudications required by those provisions occurred in the same hearing. Therefore, the juvenile court couldn’t have legally sentenced J.C. to a mandatory minimum term of commitment as a mandatory sentence offender or repeat juvenile offender and cannot do so on remand.

The sentence was vacated and the case was remanded with directions to resentence J.C.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/1/2018

On Thursday, March 1, 2018, the Colorado Court of Appeals issued no published opinion and 32 unpublished opinions.

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