April 19, 2014

Tenth Circuit: District Court Does Not Err by Referring to Sentencing Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Grigsby on Tuesday, April 15, 2014.

Defendant Grigsby pled guilty to eight counts of sexual exploitation of a nine-year-old child for the purpose of producing visual depictions, one count of possessing with intent to view child pornography, and one count of being a felon in possession of a firearm, and was sentenced to 260 years in prison. He appealed his 260-year sentence imposed pursuant to the child pornography production guideline, U.S.S.G. § 2G2.1. Defendant contended that the guideline is “defective” because it routinely generates offense levels that result in a recommended guideline sentence in excess of the statutory maximum, and fails to distinguish between levels of culpability by establishing enhancements for conduct present in most cases and thus undeserving of punishment beyond the core offense.

Based on a total offense level of 43 and a criminal history category of II, Defendant’s initial guideline imprisonment range under the 2012 version of the Guidelines was life. But because the statutory maximum sentence of 260 years was less than life, U.S.S.G. § 5G1.2(b) established the former term as the recommended guideline sentence. Following that recommendation, the district court sentenced Defendant to 260 years imprisonment. In deciding Defendant’s sentence was sufficient but not greater than necessary to meet the sentencing factors identified in § 3553(a)(2), the court referred to the emotional damage Defendant caused his victim, the antisocial behavior Defendant had engaged in over the course of his life, and the public’s need for protection from Defendant.

A district court does not err by deferring to the Guidelines where the sentence imposed is justified in light of the factors set forth in 18 U.S.C. § 3553(a). The Tenth Circuit affirmed Defendant’s sentence.

SB 14-178: Defining “Drug-Endangered Child” for Purposes of Child Abuse or Neglect in the Criminal Code

On April 1, 2014, Sen. Andy Kerr introduced SB 14-178 – Concerning the Definition of a Drug-Endangered Child for Purposes of Cases of Child Abuse or Neglect in the Criminal Code. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes a definition, as formulated by the state substance abuse trend and response task force, for a ”drug-endangered child” for purposes of cases of child abuse or neglect in the criminal code. The bill creates the crime of child abuse for a person who is responsible for creating a situation or unreasonably permitting a child to be placed in a situation in which a child is drug-endangered and establishes penalties.

On April 9, the Senate Judiciary Committee took testimony and delayed action on the bill for a later date.

Since this summary, the Senate Judiciary Committee referred the bill, amended, to the Senate Committee of the Whole.

SB 14-177: Defining “Drug-Endangered Child” for Purposes of Child Abuse or Neglect in the Children’s Code

On April 1, 2014, Sen. Andy Kerr introduced SB 14-177 – Concerning the Definition of a Drug-Endangered Child for Purposes of Cases of Child Abuse or Neglect in the Children’s Code. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes a definition for a “drug-endangered child” for purposes of cases of child abuse or neglect in the children’s code.

On April 9, the Senate Judiciary Committee took testimony and delayed action on the bill for a later date.

Since this summary, the Senate Judiciary Committee referred the bill, amended, to the Senate Committee of the Whole.

Tenth Circuit: Fourth Amendment Does Not Require Abandonment of Common Sense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Romero on Tuesday, April 15, 2014.

Defendant Romero was convicted by a jury of assaulting and killing Naayaitch Friday. He appealed the district court’s refusal to suppress evidence found after searches of the car he drove and his bedroom, claiming that the warrant to search the car was based on an affidavit lacking a substantial basis for probable cause, and that his stepfather did not have authority to consent to the search of his bedroom.

The Tenth Circuit noted that the supporting affidavit for the search of the car contained ample reason to believe a search would uncover evidence, stating “[t]he Fourth Amendment does not require the abandonment of common sense. The officers would have been derelict in their duties had they not sought to search the [car].” The Tenth Circuit also affirmed the trial court’s allowance of evidence recovered from the search of Defendant’s bedroom, finding that under Tenth Circuit precedent, when a child lives with his or her parent, there is a presumption that the parent retains control for most purposes over the property. Since Defendant lived with his parents and there was nothing to rebut the presumption of parental control of the property, his stepfather’s consent to the search of his bedroom was sufficient.

The judgment of the trial court was affirmed.

HB 14-1296: Clarifying that the Division of Liquor Enforcement is Responsible for Enforcing Criminal Statutes Regarding Designer Drugs

On February 27, 2014, Rep. Lois Landgraf and Sen. Irene Aguilar introduced HB 14-1296 - Concerning the Enforcement of Prohibitions Against Designer Drugs by the Division of Liquor Enforcement Within the Department of Revenue. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The division of liquor enforcement within the department of revenue is empowered to enforce criminal provisions prohibiting the use, possession, distribution, manufacturing, dispensing, sale, or cultivation of designer drugs.

The bill has been approved by the Judiciary and Appropriations Committees and on April 11, the bill passed 2nd Reading in the House.

Since this summary, the bill passed 3rd Reading in the House unamended. It was referred to the Senate and assigned to the Judiciary Committee.

e-Legislative Report: April 14, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

Friday, April 11
At the request of the Juvenile Law Section, the LPC voted to oppose HB 14-1362. Concerning great grandparent visitation with great-grandchildren. The bill is sponsored by Rep. Dominick Moreno.

At the Capitol—Week of April 7

A scorecard of the committee and floor work follows.

In the House

Monday, April 7

Passed on 3rd reading.

  • HB 14-1013. Concerning the creation of the advanced industries workforce development program, and, in connection therewith, making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1072. Concerning an income tax credit for child care expenses paid by a resident individual with a federal adjusted gross income of $25,000 or less, and, in connection therewith, making and reducing appropriations. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1199. Concerning changes to the regulation of consumer goods service contracts, and, in connection therewith, making and reducing appropriations. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1203. Concerning funding to maintain the infrastructure for the digital trunked radio system, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1173. Concerning continuation of the controlled substances abuse act, and, in connection therewith, the treatment of controlled substances abuse and making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1283. Concerning modifications to the electronic prescription drug monitoring program, and, in connection therewith, making an appropriation. Vote: 42 yes, 22 no, and 1 excused.
  • HB 14-1009. Concerning changing the wildfire mitigation income tax deduction to the wildfire mitigation income tax credit, and in connection therewith, making and reducing appropriations. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1029. Concerning a recodification of the laws governing reserved parking for persons with disabilities, and in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1278. Concerning continuation of the workers’ compensation accreditation program administered by the division of workers’ compensation, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies. Vote: 51 yes, 13 no, and 12 excused.
  • HB 14-1316. Concerning methods to determine whether disparities involving certain historically underutilized businesses exist within the state procurement process, and, in connection therewith, commissioning a study to make such determination, requiring the department of personnel to track contracts awarded to historically underutilized businesses, and making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court, and, in connection therewith, making an appropriation. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1095. Concerning the Colorado bureau of investigation’s authority to investigate computer crime, and, in connection therewith, making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1266. Concerning the penalties for certain value-based offenses, and, in connection therewith, reducing an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1011. Concerning the funding of advanced industry economic development programs. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1014. Concerning modifications to the job growth incentive tax credit, and, in connection therewith, reducing an appropriation. Vote 51 yes, 13 no, and 1 excused.

Tuesday, April 8

Passed 3rd Reading:

  • HB 14-1273. Concerning human trafficking, and, in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving. Vote: 64 yes, 0 no, and 1 excused.

Wednesday, April 9

Passed on 3rd reading.

  • HB 14-1330. Concerning an update of telecommunications terminology for intrastate telecommunications services. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1327. Concerning measures to expand the deployment of communication networks, and, in connection therewith, enacting the “Broadband Deployment Act.” Vote: 57 yes, 7 no, and 1 excused.
  • HB 14-1328. Concerning the deployment of broadband into unserved areas of Colorado through grant-making from moneys allocated from the Colorado high cost support mechanism, and, in connection therewith, making an appropriation. Vote: 47 yes, 17 no, and 1 excused.
  • HB 14-1127. Concerning disclosure of information for asset recovery, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1338. Concerning planning for the effective use of Colorado’s regional centers for persons with intellectual disabilities, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1211. Concerning ensuring access to quality complex rehabilitation technology in the medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 49 yes, 15 no, and 1 excused.

Thursday, April 10

Passed 3rd Reading:

  • HB 14-1354. Concerning the ability of a county clerk and recorder to seek judicial review of final action by the secretary of state relating to elections. Vote: 50 yes and 15 no.
  • HB 14-1159. Concerning a state sales and use tax exemption for components used in biogas production systems. Vote: 54 yes and 11 no.

Friday, April 11

No bills were heard on 3rd Reading.

In the Senate

Monday, April 7

No bills were heard on 3rd Reading.

Tuesday, April 8

Passed on 3rd Reading:

  • HB 14-1057. Concerning the Colorado fraud investigators unit. Vote: 30 yes and 5 no.
  • HB 14-1176. Concerning the state audit cycle of the emissions program for motor vehicles. Vote: 20 yes and 15 no.

Wednesday, April 9

Passed on 3rd Reading:

  • HB 14-1299. Concerning the repeal of the six-year limitation on applying a salvage brand to a motor vehicle whose cost of being repaired exceeds the value of the vehicle without the recent damage. Vote: 22 yes, 12 no, and 1 excused.

Thursday, April 10

No bills were heard on 3rd Reading.

Friday, April 11

No bills were heard on 3rd Reading.

Colorado Court of Appeals: Defendant’s Successful Objection to Joinder of Two Cases at Trial Barred Joinder of Dismissal

The Colorado Court of Appeals issued its opinion in People v. Marshall on Thursday, April 10, 2014.

Joinder—Objection—Waiver Dismissal.

A grand jury indicted defendant in November 2009 for securities fraud, theft, conspiracy, and organized crime. In February 2012, the prosecution filed a second case by information that contained numerous similar counts. The prosecution moved to join the two cases, but defendant objected, and the court denied the prosecution’s motion. A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case should have been joined with the first case. The court agreed with defendant’s argument and granted his request.

The People argued on appeal that the trial court erred in dismissing the second case against defendant. Defendant’s successful objection to the prosecution’s motion to join the two cases barred his subsequent motion to dismiss the second case, because it was not joined with the first. Therefore, defendant waived his joinder rights under Crim.P. 8(a)(1) and CRS § 18-1-408(2). The judgment dismissing this case was reversed, and the case was remanded to the trial court to reinstate the charges against defendant.

Summary and full case available here.

Colorado Court of Appeals: Correct Burden of Proof Applied in Determining Whether Counsel’s Assistance was Ineffective

The Colorado Court of Appeals issued its opinion in People v. Washington on Thursday, April 10, 2014.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Burden of Proof—Prejudice—Evidence.

The victim was shot and killed outside an auto parts store. According to eyewitness accounts, after the shooting, the shooter ran from the store to a car, and the car drove away. One witness viewed a photo lineup and identified defendant Kevin Washington as the person who ran from the store. A jury subsequently convicted Washington of first-degree murder. Thereafter, Washington filed a pro se Crim.P. 35(c) motion alleging ineffective assistance of trial counsel. The post-conviction court rejected Washington’s claims.

On appeal, Washington contended that the post-conviction court reversibly erred in applying the incorrect burden of proof on the prejudice prong of his ineffective assistance claim. The Court of Appeals concluded that the post-conviction court applied the correct burden of proof. Specifically, the Court stated that for Washington to prove prejudice under the 1984 U.S. Supreme Court ruling in Strickland v. Washington, 466 U.S. 668, 8 687-94, he must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court further found that Washington’s claims of prejudice were pure speculation. Accordingly, the court did not err.

Washington also contended that contrary to the post-conviction court’s findings, the evidence at the post-conviction hearing conclusively established that his trial counsel was ineffective. The evidence, however, supported the post-conviction court’s finding that Washington failed to show how trial counsel’s choice not to introduce evidence or present testimony regarding this case, or not to investigate and introduce alibi evidence concerning a 1995 incident, was outside the range of professionally competent assistance. Further, Washington failed to demonstrate any prejudice arising from counsel’s alleged failure to object to the prior acts evidence when it was offered at trial. Therefore, the post-conviction court did not err in finding that trial counsel was not ineffective. The trial court’s judgment was affirmed.

Summary and full case available here.

SB 14-176: Defining Crimes Related to Chop Shops

On March 31, 2014, Sen. Michael Johnston introduced SB 14-176 – Concerning Crimes Related to Entities that Trade in Stolen Vehicles. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill defines a chop shop as any building, lot, facility, or other structure or premise where:

  • Any person or persons possess, receive, store, disassemble, or alter, including the alteration or concealment of any identifying feature or number, an unlawfully obtained motor vehicle or major component motor vehicle part for the purpose of using, selling, or disposing of the motor vehicle or major component motor vehicle part; or
  • Two or more unlawfully obtained motor vehicles are present for the purpose of alteration, sale, or disposal; or
  • Six or more unlawfully obtained major component motor vehicle parts from two or more motor vehicles are present for the purpose of alteration, sale, or disposal.

A person commits a class 4 felony if he or she knowingly owns or operates a chop shop, knowing that it is a chop shop, or conspires with another person to own, operate, or conduct a chop shop, knowing that it is a chop shop.

A person commits a class 5 felony if he or she knowingly:

  • Transports an unlawfully obtained motor vehicle or major component motor vehicle part to or from a chop shop, knowing that it is a chop shop; or
  • Sells or transfers to, or purchases or receives from, a chop shop, knowing that it is a chop shop, an unlawfully obtained motor vehicle or major component motor vehicle part.

A person commits altering or removing a vehicle identification number if, except as necessary to effect legitimate repairs, he or she knowingly:

  • Removes, changes, alters, counterfeits, defaces, destroys, disguises, falsifies, forges, or obliterates the vehicle identification number, manufacturer’s number, or engine number of a motor vehicle or major component motor vehicle part; or
  • Possesses, purchases, disposes of, sells, or transfers a motor vehicle or a major component motor vehicle part that contains a removed, changed, altered, counterfeited, defaced, destroyed, disguised, falsified, forged, or obliterated vehicle identification number, manufacturer’s number, or engine number.

Altering or removing a vehicle identification number is a class 5 felony.

The bill is assigned to the Judiciary Committee.

SB 14-174: Creating the Prosecution Fellowship Program

On March 31, 2014, Sen. Rollie Heath introduced SB 14-174 – Concerning the Creation of the Prosecution Fellowship Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the prosecution fellowship program (program) in the department of higher education. The program will provide money to the Colorado district attorneys’ council to fund six fellows at rural district attorneys’ offices in the state. The fellows will receive a five-day training prior to beginning work.

The bill creates the prosecution fellowship committee, which will select the fellowships and district attorneys’ office locations and match the fellows with a district attorney’s office.

The bill is assigned to the Judiciary Committee.

Tenth Circuit: In Consolidated Appeal, Trial Court’s Rulings Upheld as to All Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morgan on Wednesday, April 8, 2014.

Tracy Morgan, Killiu Ford, and Augustus Sanford (“Defendants”) concocted an elaborate plan to rob a man, Mr. Armendariz. The plan was carried out, and Mr. Armendariz was bound while Ford and two other men questioned him about where he kept his money. His wife was confronted separately, and, after Morgan put a gun to her 3-year-old’s head, the wife gave Morgan the location of the money. Morgan found about $30,000, and the conspirators left. The three co-conspirators had arguments about how to split the money. Eventually they were arrested and tried.

All three defendants were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. After consideration of all the separate and collective appeals, the Tenth Circuit affirmed on all counts.

Tenth Circuit: The Law Does Not Require that a Defendant be Informed of All Collateral Consequences of Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Muhammed on Wednesday, April 8, 2014.

Defendant Sevgi Muhammad was indicted on 24 counts of mail fraud, two counts of making a false statement, and one count of stealing public money. All the charges arose out of Defendant’s obtaining housing assistance through the Housing Choice Voucher Program of the United States Department of Housing and Urban Development (HUD). She pleaded no contest to one count of making a false statement. At the outset of her sentencing hearing, however, she moved to withdraw her plea. The district court later held an evidentiary hearing, denied the motion, and sentenced Defendant to serve three years of probation and pay $1,698 in restitution.

On appeal Defendant argues that her plea was not knowing and voluntary and that the district court erred when it denied her motion to withdraw the plea. She argues that her plea was not valid because she did not know (1) that a no-contest plea would have the same “attendant consequences” as a finding of guilt, Aplt. Br. at 9; (2) that the plea would result in a felony conviction and a finding of guilt; (3) that the conviction would make it difficult to obtain credit, employment, federal financial aid, and Section 8 housing; and (4) that the conviction would preclude her from firearm ownership and render her testimony in court suspect. But the law does not require a defendant to be informed of the collateral consequences of a plea, and the district court properly found that she knew that her plea would lead to a finding of guilt of the offense charged. The Tenth Circuit affirmed the district court.