April 18, 2015

Crowdfunding, Medical Testing of Assault Victims, and PERA Supplemental Needs Trust Bills Signed

As the 2015 legislative session continues, Governor Hickenlooper continues to sign legislation that crosses his desk. To date, the governor has signed 136 bills this legislative session. The bills signed in the past week are summarized here.

April 10, 2015

  • HB 15-1008 – Concerning the Classification of Agricultural Land When the Land is Destroyed by a Natural Cause, by Rep. Millie Hamner and Sen. Ellen Roberts. The bill allows agricultural land destroyed by natural causes to retain its agricultural classification for the year of destruction and four more property tax years.
  • HB 15-1256 – Concerning the Reclassification of Routt County to a Category II County for the Purpose of Establishing the Salaries of County Officers, by Rep. Diane Mitsch Bush and Sen. Randy Baumgardner. The bill recategorizes Routt County as a category II county for the purpose of setting salaries for county officers.
  • HB 15-1073 – Concerning Allowing a Driver to Challenge the Validity of a Law Enforcement Officer’s Initial Contact With the Driver, by Rep. Joseph Salazar and Sen. Jessie Ulibarri. The bill allows drivers who successfully challenge an officer’s initial stop in an administrative hearing to avoid revocation.
  • HB 15-1197 – Concerning Limitations on Indemnity Obligations in Public Construction Contracts, by Rep. Jack Tate and Sen. Cheri Jahn. The bill clarifies the manner in which indemnification clauses may be used in public construction contracts.
  • HB 15-1224 – Concerning Accounting for State Moneys Received by Public Postsecondary Institutions That Do Not Participate in the College Opportunity Fund Program, by Rep. Diane Mitsch Bush and Sens. Owen Hill & Nancy Todd. The bill separates the appropriation allocation for the two local district junior colleges affected.
  • HB 15-1183 – Concerning the Admission of a Child’s Statements Describing Attempted Acts of an Unlawful Sexual Offense, by Rep. Rhonda Fields and Sen. Lucia Guzman. The bill allows admission of a child’s statements regarding attempted sexual offenses.
  • HB 15-1191 – Concerning the Addition of Dentists to the “Physician Designation Disclosure Act,” by Rep. Brittany Pettersen and Sen. Kevin Grantham. The bill specifies that the standards and requirements for health care entities that assign designations to physicians based on performance assessments also apply to dentists.

Monday, April 13, 2015

  • HB 15-1245 – Concerning the Authority of the State Board of Land Commissioners to Use a Specified Portion of the Investment and Development Fund Moneys for Asset Maintenance, by Rep. Edward Vigil and Sen. Jerry Sonnenberg. The bill allows the State Board of Land Commissioners to spend up to $1 million from the Investment and Development Fund for certain maintenance projects.
  • HB 15-1246 – Concerning the Authorization of Crowdfunding of Intrastate Securities, by Reps. Pete Lee & Dan Pabon and Sens. Mark Scheffel & Owen Hill. The bill creates the Colorado Crowdfunding Act, which allows online investments in Colorado companies through a simple regulatory regime.

Thursday, April 16, 2015

  • SB 15-005 – Concerning Medical Testing for Certain First Degree Assault Cases, by Sen. John Cooke and Rep. Mike Foote. The bill requires a defendant in a first degree assault to submit to blood testing for communicable diseases if his or her bodily fluids contact another person.
  • SB 15-015 – Concerning a Clarification of Benefits for Autism Spectrum Disorders in Health Benefit Plans Issued in this State, by Sen. John Kefalas and Rep. Dianne Primavera. The bill allows mental health benefits under health benefit plans for autism spectrum disorders, and removes caps on the number of visits.
  • SB 15-030 – Concerning Removing Culpability for Prostitution for a Victim of Human Trafficking, by Sen. Morgan Carroll and Rep. Mike Foote. The bill creates an affirmative defense of human trafficking for those charged with prostitution and establishes a procedure to petition courts to seal records.
  • SB 15-058 – Concerning Statewide Policies and Procedures for Law Enforcement Agencies that Conduct Eyewitness Identifications, by Sen. Lucia Guzman and Rep. Elena Kagan. The bill requires law enforcement agencies to develop policies and procedures regarding eyewitness identifications.
  • SB 15-097 – Concerning the Eligibility of a Supplemental Needs Trust to Receive Certain Public Employees’ Retirement Association Benefits, by Sen. Irene Aguilar and Rep. Lois Landgraf. The bill allows a PERA member to designate a supplemental needs trust as a co-beneficiary.
  • SB 15-099 – Concerning Eliminating Certain Duties for Probation Officers, by Sen. John Cooke  and Rep. Polly Lawrence. The bill eliminates  certain duties of probation officers to conform to actual practice.
  • SB 15-105 – Concerning the Continuation of the Regulation of Respiratory Therapists by the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations of the Department in its Sunset Review of and Report on the Profession, by Sen. Beth Martinez Humenik and Rep. Diane Primavera. The bill makes changes to licensing of respiratory therapists as recommended by the sunset review committee.
  • SB 15-126 – Concerning Medical Tests for Victims of Crimes of Assault, by Sens. John Cooke & Michael Johnston and Rep. Mike Foote. The bill requires defendants in second or third degree assault cases to undergo medical testing for communicable diseases if their bodily fluids came in contact with another person.
  • SB 15-171 – Concerning the Continuation of the “Private Occupational Education Act of 1981″, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Review by the Department of Regulatory Agencies, by Sen. Owen Hill and Rep. Dominick Moreno. The bill extends the Private Occupational School Board and the Division of Private Occupational Schools.
  • SB 15-186 – Concerning the Exemption of Yoga Teacher Training from Regulation Under Statutes Governing Private Occupational Education and, in Connection Therewith, Reducing an Appropriation, by Sen. Laura Woods and Reps. Timothy Dore & Alec Garnett. The bill exempts yoga teacher training from the Private Occupational Education Act.
  • SB 15-187 – Concerning Authorization for the High-Performance Transportation Enterprise to Deposit Money Received as a Loan from the State Highway Fund to a Separate Account Within the Statewide Transportation Enterprise Special Revenue Fund, by Sen. Kevin Grantham and Rep. Dave Young. The bill allows money loaned from the State Highway Fund to the High Performance Transportation Enterprise to be deposited into the Statewide Transportation Enterprise Operating Fund.
  • SB 15-188 – Concerning the Use of the First Tier of Statutorily Allocated Tobacco Litigation Settlement Money, and in Connection Therewith, Making an Annual Statutory Allocation of Such Money to the Tobacco Settlement Defense Account of the Tobacco Litigation Settlement Cash Fund and Making an Offsetting Reduction in the Annual Statutory Allocation of Such Money to the Children’s Basic Health Plan Trust, Authorizing the Department of Revenue to Use Money in the Tobacco Settlement Defense Account for Settlement Enforcement Related Activities, and Making an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill allocates tobacco settlement funds from the Children’s Basic Health Plan Trust to the defense fund for tobacco litigation.
  • SB 15-189 – Concerning the Repeal of Consolidated Tobacco Settlement Program Monitoring and Reporting Requirements and, in Connection Therewith, Reducing an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill repeals the current requirement that the State Board of Health monitor programs receiving funding from the state’s tobacco settlement fund.
  • SB 15-190 – Concerning the Repeal of the Requirement that the Executive Director of the Department of Personnel Promulgate Rules to Establish State Archives’ Fees, by Sen. Kevin Grantham and Rep. Millie Hamner. The bill eliminates a statutory requirement that fees for the State Archives must be established through a formal rulemaking process.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

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

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

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

Colorado Court of Appeals: Cost of Installing Bars on Victim’s Window Improperly Assigned as Restitution

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, April 9, 2015.

Identification—Physician–Patient Privilege—Restitution.

The victim awoke one morning to a noise outside her second-floor bedroom. She walked to the bathroom and saw a man standing on her roof, trying to enter the bathroom window. Seeing the victim, the man ran away. Defendant was found by police hiding in a row of bushes near the victim’s house, and the victim positively identified defendant at the scene as the person who attempted to enter her residence. Defendant was convicted of attempted first-degree criminal trespass, third-degree criminal trespass, and criminal mischief

On appeal, defendant claimed that the district court erred when it admitted evidence that the victim previously identified him as the man she saw in her window and allowed her to identify him again at trial. “One-on-one show-ups” are disfavored because they tend to be suggestive, but they are not per se invalid. Here, the victim had a good opportunity to view defendant trying to enter her residence, she described defendant to the police when they arrived at the scene, she immediately identified defendant when the police presented him to the victim at the scene, and the police did not make any suggestive comments during the procedure. Therefore, the district court did not err in denying defendant’s motion to suppress the identification evidence.

Defendant argued that the district court erred when it allowed Dr. Stafford, the physician who treated defendant at the hospital that evening for a fractured right heel, to testify because defendant had not waived the physician-patient privilege. A physician who treats an injury that he has reason to believe involves a criminal act has a duty to report the injury to the police, which abrogates the privilege as to the medical examination and diagnosis, but not as to any statements made by the patient. Dr. Stafford had reason to believe defendant’s injury involved a criminal act. In addition, his testimony was limited to his examination and diagnosis and he did not disclose any statements defendant made in the course of his treatment. Therefore, Dr. Stafford’s testimony fell within the exception created by the reporting statute.

Defendant further argued that the district court erred when it ordered restitution of $489 for the cost of installing bars on the victim’s bathroom window because there was no showing that his conduct proximately caused the expense. Expenses resulting from a general feeling of insecurity are too attenuated to qualify as restitution. Here, the court failed to find that the expense of installing bars was the result of a specific, ongoing threat related to defendant’s conduct as opposed to a general feeling of insecurity. Therefore, this part of the restitution order was vacated.

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

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

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

Colorado Court of Appeals: Abbreviated Miranda Warning Does Not Adequately Advise Suspect of Rights

The Colorado Court of Appeals issued its opinion in People v. Carter on Thursday, April 9, 2015.

Miranda Warning—Police Interview—Jury Access to Video Interview.

Ray and Owens were attendees at a barbecue and rap festival. When a fight broke out in the parking lot, Owens shot and killed an individual who attempted to break up the fight, and Ray shot and injured Marshall-Fields and another person. After the shooting, Ray and Owens fled in Ray’s car. Ray and Owens were charged in connection with the homicide.

About one year after the shooting, Owens instructed Carter to approach Marshall-Fields, who was at a sports bar, and discourage him from testifying—either by offering him money or threatening him. Carter entered the bar and spoke to Marshall-Fields. The following night, Marshall-Fields and his fiancée were shot and killed in their car by the occupants of a passing vehicle. A jury convicted Carter of conspiracy to commit first-degree murder, intimidating a witness, and unlawful distribution of a controlled substance.

On appeal, Carter contended that the district court erred in admitting evidence of his videotaped interrogation because the police failed to adequately advise him of his Miranda right to have a lawyer present. A warning that provides that a custodial suspect has “the right to have an attorney,” without more, does not adequately inform a suspect of his or her right to the presence of an attorney before and during the interrogation. However, because Carter never confessed and did not otherwise incriminate himself during the interview, the admission of his videotaped interview was ultimately harmless beyond a reasonable doubt and did not affect the outcome of the trial. Therefore, the court’s error did not warrant reversal.

Carter also contended that the district court erred in allowing the jury to have unfettered access to the video-recording of his interrogation. A district court may allow “unrestricted jury access during deliberations to a defendant’s voluntary and otherwise admissible confession.” Although the lack of Miranda warning prohibited admission of this evidence, any error was harmless. The judgment was affirmed.

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

Tenth Circuit: Mandatory Victim Restitution Act Requires Verified Proof of Actual Losses

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ferdman on Friday, February 13, 2015.

Joshua Ferdman and three co-conspirators concocted a plan in which they obtained account information for several corporate customers of Sprint. Defendant impersonated account representatives and purchased cell phones from various Sprint stores, charging them to the corporate accounts. After he was caught, he pled guilty to a two-count indictment. He was sentenced to 15 months in prison and ordered to pay $48,715.59 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The court calculated the restitution amount based on what Sprint referred to as the “retail unsubsidized price” of 86 stolen phones, plus Sprint’s shipping and investigative costs. Defendant appeals the restitution order, arguing the government’s proof of loss was insufficient to support the award.

The Tenth Circuit first analyzed the MVRA in detail in light of last term’s Supreme Court decision in Paroline. The Tenth Circuit emphasized that restitution is intended to make victims whole, not unjustly enrich them or provide them a windfall. The Tenth Circuit determined the MVRA is intended to compensate for actual losses, not merely speculated losses, but does not preclude a district court’s exercise of discretion in determining actual loss. The government bears the burden of proof to demonstrate the actual amount of loss.

In this case, Sprint’s regional manager of investigations submitted an unverified letter setting forth Sprint’s losses, basing its calculations on the “retail unsubsidized price” of each fraudulently obtained phone, $449 to $549 per phone. The letter also listed estimated shipping costs, travel expenses, investigatory expenses, and GPS activation expenses, listing Sprint’s estimated total loss as $48, 715.59.

Defendant argued the better measure of actual loss was the price he paid per phone, or $149 to $199 per phone, and repeatedly questioned the government’s evidence of actual losses. Defendant pointed out that the government did not present any evidence his crimes caused Sprint to lose retail sales or attendant profits. The district court denied an evidentiary hearing on the restitution amount, and found the MVRA’s “value of the property” language broad enough to cover lost profits.

The Tenth Circuit found that the government’s complete lack of verified evidence precluded a restitution award. Because the MVRA requires proof of actual losses, the Tenth Circuit vacated the district court’s restitution award and remanded for further proceedings.

Colorado Supreme Court: Court of Appeals Had Jurisdiction to Entertain Expedited Bond Revocation Appeal

The Colorado Supreme Court issued its opinion in In re People v. Jones on Monday, April 6, 2015.

Appeal of Bail Bond Orders—Conditions of Bail Bond.

Jones petitioned for relief pursuant to CAR 21 from a district court order granting the prosecution’s motion to revoke his bail bond in its entirety and order that he be held without bond pending resolution of charges in a different district. The district court reasoned that it was granted the power to do so by CRS § 16-4-105(3), upon concluding that another court had found probable cause to believe Jones committed a felony while released on bond. Jones appealed to the court of appeals according to the expedited procedure of CRS § 16-4-204, but that court found itself to be without jurisdiction to entertain an expedited appeal from an order entered pursuant to CRS § 16-4-105(3).

The Supreme Court held that the court of appeals erred in concluding that it lacked jurisdiction to entertain Jones’s appeal. Colorado’s statutory scheme governing release on bail entitled Jones to an expedited review of the district court’s order revoking his existing bond and declining to set another pending trial.

The Court further held that the district court erred in revoking Jones’s existing bond and denying him a right to pretrial release altogether. CRS § 16-4-105(3) merely empowered the district court to have Jones brought before it for purposes of modifying the conditions of his pretrial release.

The rule was made absolute. The matter was remanded to the district court with directions to reinstate Jones’s bail bond or change any condition of the bond, as authorized by statute.

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

Bills Regarding Vesting of Real Estate Title, Audit of Health Exchange, and More Signed

On Friday, April 3, 2015, Governor Hickenlooper signed 13 bills into law. To date, the governor has signed 102 bills this legislative session. The bills signed Friday are summarized here.

  • SB 15-002 – Concerning an Extension of the Date by which the Executive Director of the Department of Public Safety Must Submit to the Joint Budget Committee a Report Regarding Statewide Radio Communications, by Sen. Ellen Roberts and Rep. J. Paul Brown. The bill extends the time in which the Department of Public Safety must report to the Joint Budget Committee regarding statewide radio communications.
  • SB 15-013 – Concerning Extending the Deadline for Peace Officers to Complete Dog Encounter Training to June 30, 2015, by Sen. David Balmer and Reps. Lois Court & Don Coram. The bill postpones the deadline for mandatory peace officer dog training to June 30, 2015.
  • SB 15-019 – Concerning the Authority of the State Auditor to Conduct a Performance Audit of the Colorado Health Benefit Exchange, by Sens. Jerry Sonnenberg & Cheri Jahn and Rep. Dan Nordberg. The bill gives the Office of the State Auditor authority to conduct a full performance evaluation of the Colorado health benefits exchange.
  • SB 15-043 – Concerning Clarifying Changes to the Prosecution Fellowship Program, by Sen. Rollie Heath and Rep. Dan Pabon. The bill clarifies that fellows in the prosecution fellowship program are contract employees.
  • SB 15-047 – Concerning Notification to Legislators About the Adoption of Executive Branch Agency Rules that Implement Newly Enacted Legislation, by Sen. Pat Steadman and Rep. Beth McCann. The bill allows members of the General Assembly to opt out of notifications from the Office of Legislative Legal Services when bills they have sponsored advance.
  • SB 15-049 – Concerning the Vesting of Title to Real Estate in a Grantee that is an Entity that has Not Yet Been Formed Once the Entity Has Been Formed, by Sen. Beth Martinez Humenik and Rep. Jon Keyser. The bill allows title to real estate to vest in an entity once the entity has been formed, prior to incorporation.
  • SB 15-051 – Concerning Legal Recourse for a Student Who is Sanctioned or Found Ineligible to Participate in an Extracurricular Activity, by Sen. Nancy Todd and Rep. Kevin Priola. The bill changes procedures for appeals by students who are sanctioned or found ineligible to participate in extracurricular activities.
  • SB 15-053 – Concerning the Ability to Furnish a Supply of Emergency Drugs for Purposes of Treating Individuals Who May Experience an Opiate-Related Drug Overdose Event, by Sen. Irene Aguilar and Reps. Beth McCann & Susan Lontine. The bill allows licensed opiate prescribers and dispensers to dispense overdose prevention drugs to relatives or others who will in good faith help the opiate addict.
  • SB 15-071 – Concerning the Ability of a Pharmacist to Substitute an Interchangeable Biological Product for a Prescribed Biological Product when Certain Conditions are Satisfied, by Sens. Cheri Jahn & Owen Hill and Reps. Beth McCann & Lois Landgraf. The bill permits pharmacists to substitute similarly equivalent and interchangeable biological products.
  • SB 15-103 – Concerning Continuation of the Compliance Advisory Panel, and, in Connection Therewith, Implementing the Recommendations of the Department of Regulatory Agencies as Contained in the 2014 Sunset Report, by Sen. Kevin Lundberg and Rep. KC Becker. The bill continues the Compliance Advisory Panel until September 1, 2026, and implements the panel’s recommendations.
  • SB 15-111 – Concerning the Continuous Appropriation to the Department of Education of Moneys in the Educator Licensure Cash Fund, by Sen. Kent Lambert and Rep. Millie Hamner. The bill grants the Department of Education continuous appropriation of funds in the Educator Licensure Cash Fund, rather than making the appropriation annually.
  • SB 15-116 – Concerning Needle-Stick Prevention, by Sen. Pat Steadman and Rep. Alec Garnett. The bill creates an exception for arrests for drug possession or drug paraphernalia possession when a person voluntarily relinquishes hypodermic needles with drug residue.
  • SB 15-161 – Concerning a Supplemental Appropriation to the Department of Revenue, by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes a supplemental appropriation to the Department of Revenue.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Appropriations, Adoption Records, Crime Victim Compensation, and More Bills Signed

On Monday, March 30, 2015, Governor Hickenlooper signed 11 bills into law. To date, he has signed 89 bills in this 2015 legislative session. The bills signed Monday are summarized here.

  • SB 15-191 – Concerning Payment of Expenses of the Legislative Department, by Sens. Mark Scheffel & Morgan Carroll and Reps. Crisanta Duran & Brian DelGrosso. This is the appropriations bill, setting the budget for the 2015-16 state fiscal year.
  • HB 15-1254 – Concerning the Elimination of the General Appropriations Act Limitation in the Definition of “Total Governing Board Appropriation” for the Treatment of Higher Education Appropriations, by Rep. Millie Hamner and Sen. Kent Lambert. The bill clarifies the definition of “Total Governing Board Appropriation” used in the description of higher education funding formulas.
  • HB 15-1188 – Concerning Clarifications to the State Vocational Rehabilitation Program, by Reps. Su Ryden & Dianne Primavera and Sen. Tim Neville. The bill makes several changes to the state vocational rehab program for persons with disabilities.
  • HB 15-1106 – Concerning the Clarification of Access by Eligible Persons to Unredacted Adoption Records that Contain Identifying Information, by Rep. Lori Saine and Sen. Jerry Sonnenberg. The bill clarifies that persons who are able to request and receive certain adoption records under the law may receive unredacted versions of those records.
  • HB 15-1035 – Concerning Changes to Crime Victim Compensation, by Rep. Rhonda Fields and Sen. John Cooke. The bill makes several changes to the crime victim compensation program.
  • HB 15-1004 – Concerning Authorization for Firefighter License Plates to be Issued for Motorcycles and, in Connection Therewith, Making an Appropriation, by Rep. Max Tyler and Sen. Nancy Todd. The bill creates a special firefighter license plate for motorcycles.
  • HB 15-1031 – Concerning a Ban on Powdered Alcohol, by Rep. JoAnn Windholz and Sen. Nancy Todd. The bill prohibits the use, possession, sale, purchase, transfer, or manufacture of powdered alcohol.
  • HB 15-1048 – Concerning Authority of the Commissioner of Insurance to Adopt Principle-Based Life Insurance Reserve Requirements for Life Insurance Policies, by Rep. Angela Williams and Sen. David Balmer. The bill enacts National Association of Insurance Commissioners model legislation that requires the insurance commissioner to adopt the NAIC Standard Valuation Model.
  • HB 15-1209 – Concerning the Highway Maintenance Division of the Department of Transportation, by Rep. Max Tyler and Sen. Ray Scott. The bill updates state law to reflect actual operations of the Department of Transportation, clarifies powers and duties of CDOT’s executive director and chief engineer, and clarifies that annual reports will be filed with the highway maintenance division.
  • HB 15-1150 – Concerning Annual Tier 2 Transfers from the Severance Tax Operational Fund to an Existing Special Account in the General Fund Established by the Mined Land Reclamation Board for the Purpose of Funding Reclamation of Lands that were Obligated to be Reclaimed Under Permits Upon Which Financial Warranties Have Been Forfeited, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill provides funding for the Division of Reclamation, Mining, and Safety to conduct reclamation projects at mine sites with insufficient or failed bonds.
  • SB 15-128 – Concerning Reports to Law Enforcement by Medical Facilities with the Consent of a Victim of Sexual Assault, by Sen. Morgan Carroll and Reps. Lois Landgraf and Dianne Primavera. The bill adds nurses to the list of medical personnel required to report sexual assaults to law enforcement. The bill also clarifies the types of reports required and allows a victim to speak anonymously to law enforcement.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Tenth Circuit: Two Incidents of Producing Child Pornography Satisfy “Pattern of Activity” Requirement for Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Evans on Thursday, April 2, 2015. The Tenth Circuit originally issued its opinion in Evans on March 3, 2015, as an unpublished opinion, but granted Evans’ petition to publish.

In 2012, authorities found 4,800 images of child pornography in Jesse Evans’ possession, at least 100 of which depicted his own minor daughters and his minor niece. He eventually pled guilty to production of child pornography, and admitted in his plea that he had produced child pornography of two minor victims between January 2010 and November 25, 2011. Over Evans’ objection, the district court applied a five-point sentence enhancement pursuant to Guidelines § 4B1.5(b), specifically finding that Evans had produced child pornography on November 5, 2011 and November 25, 2011, satisfying the “pattern of activity” element of 4B1.5(b). Evans’ Guidelines range was 360 months, and the judge varied downward and sentenced him to 252 months.

Evans appealed, arguing § 4B1.5(b) does not apply to him because the “pattern of activity” requirement was not met, and also the district court erred because the government did not request the sentence enhancement so it should not have been applied in the interest of fairness. The Tenth Circuit first found that Evans had preserved his objection at the sentencing hearing, then evaluated the language of the application notes to § 4B1.5(b), finding Evans’ conduct clearly satisfied the criteria for a “pattern of activity.” The Tenth Circuit similarly rejected Evans’ argument that the district court should not have applied the sentence enhancement in the interest of fairness, noting the court was not bound by Evans’ plea agreement.

The Tenth Circuit affirmed Evans’ sentence, and granted his motion to permanently seal Attachment B to the government’s opening brief.

Colorado Court of Appeals: Defendant who Violated Conditions of Youthful Offender Sentence Did Not Complete Sentence

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, March 26, 2015.

Youthful Offender System—Revocation—Jurisdiction—Motion for Reconsideration—Evidence.

On April 30, 2007, defendant, a juvenile at the time, pleaded guilty to first-degree assault. He received a sentence of eighteen years in the custody of the Department of Corrections (DOC), suspended pending successful completion of a six-year sentence to Youthful Offender System (YOS). On January 18, 2012, while serving the community supervision portion of his YOS sentence, defendant walked away from his YOS residential center. On March 6, 2012, after an administrative hearing, defendant was found guilty of escape without force. The date defendant’s YOS sentence was set to expire (May 12, 2012) passed without the prosecution filing any documents related to revocation proceedings against defendant in Arapahoe County. The prosecution later moved to revoke defendant’s YOS sentence. The trial court denied the prosecution’s motion for lack of jurisdiction.

On appeal, the People contended that the district court erred when it concluded it did not have jurisdiction to revoke defendant’s YOS sentence. By violating conditions of his YOS sentence before the anticipated completion date, defendant did not successfully complete his YOS sentence. Further, the arrest and custodial status of an offender alleged to have violated the terms and conditions of a YOS sentence toll the discharge date of the YOS sentence pending resolution of the charges. Accordingly, the district court retained jurisdiction to revoke defendant’s YOS sentence and impose the original DOC sentence. The Court of Appeals disapproved those portions of the district court’s orders deciding to the contrary.

However, in its order on the prosecution’s motion to reconsider, the trial court ruled in the alternative that if it retained jurisdiction to revoke defendant’s sentence, it was exercising its discretion to dismiss the revocation proceeding based on the DOC’s failure to comply with the provisions of the YOS statute. Because the district court retained discretion to fashion a remedy it deemed appropriate for the statutory violation, the trial court did not abuse that discretion in determining dismissal was the appropriate remedy.

The People further contended that the district court erred when it refused to consider new evidence attached to their motion for reconsideration. Because the applicable rules of criminal and civil procedure did not allow for the introduction of new evidence and the prosecution failed to establish an extraordinary circumstance entitling it to relief under CRCP 60(b)(5), the district court did not abuse its discretion in denying the prosecution’s motion altogether. The order was affirmed and the ruling was disapproved in part.

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