March 18, 2018

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: 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 Supreme Court: Trial Court Did Not Abuse Discretion by Failing to Appoint GAL Sua Sponte

The Colorado Supreme Court issued its opinion in Ybanez v. People on Monday, March 12, 2018.

Ybanez petitioned for review of the court of appeals’ judgment affirming his conviction of first degree murder and directing that his sentence of life without the possibility of parole be modified only to the extent of permitting the possibility of parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014). In an appeal of his conviction and sentence, combined with an appeal of the partial denial of his motion for postconviction relief, the intermediate appellate court rejected Ybanez’s assertions that the trial court abused its discretion and violated his constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was denied the effective assistance of counsel both because his counsel’s performance was adversely affected by a non-waivable conflict of interest under which that counsel labored and because he was prejudiced by a deficient performance by his counsel; and that he was entitled to an individualized determination regarding the length of his sentence rather than merely the possibility of parole after forty years.

The supreme court affirmed the judgment of the court of appeals and remanded the case with directions to return it to the trial court for resentencing consistent with the supreme court opinion, for the reasons that Ybanez lacked any constitutional right to a guardian ad litem and the trial court did not abuse its discretion in not appointing one as permitted by statute; that Ybanez failed to demonstrate either an adverse effect resulting from an actual conflict of interest, even if his counsel actually labored under a conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell below the required standard of competent representation; and that Ybanez is constitutionally and statutorily entitled only to an individualized determination whether life without the possibility of parole or life with the possibility of parole after forty years is the appropriate sentence.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Regarding Continuation of Family Medical Benefits After Death of State Worker, Creating a Crime of Cruelty to Police Horse, and More

On Wednesday, March 7, 2018, the governor signed 10 bills into law. To date, he has signed 40 bills this legislative session. The bills signed Wednesday included a bill to continue family medical benefits after the death of a state employee, a bill adding free-standing emergency rooms to Colorado’s safe haven laws, a bill creating the crime of cruelty to a working police horse, a bill removing the 30-day waiting period for importation of alcoholic beverages, and more. The bills signed Wednesday are summarized here.

  • HB 18-1010 – “Concerning Youth Committed to the Department of Human Services, and, in Connection Therewith, Requiring the Department to Report Certain Data and Adding Members to the Youth Restraint and Seclusion Working Group,” by Reps. Pete Lee & James Wilson and Sen. Don Coram. The bill requires the Department of Human Services to annually collect recidivism data and calculate the recidivism rates and educational outcomes for juveniles committed to the custody of the department who complete their parole sentences and discharge from department supervision.
  • HB 18-1024 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Racing from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill creates Title 44 and moves statutes related to the regulation of racing from title 12 to the new title.
  • HB 18-1026 – “Concerning the Nonsubstantive Relocation of the Law Creating the Liquor Enforcement Division and State Licensing Authority Cash Fund from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sens. John Cooke & Bob Gardner. The bill creates Title 44 and moves statutes creating the liquor enforcement division and state licensing authority cash fund from title 24 to the new title.
  • HB 18-1041– “Concerning Adding Certified Police Working Horses to the Crime of Cruelty to a Service Animal or a Certified Police Working Dog,” by Rep. Marc Catlin and Sen. Don Coram. The bill adds a definition for “certified police working horse” to statute and adds certified police working horses to the crime of cruelty to a service animal or a certified police working dog.
  • HB 18-1048 – “Concerning the Expenditure of Money from the Hesperus Account by the Board of Trustees of Fort Lewis College,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill eliminates the requirement that spending from the Fort Lewis College Hesperus account is subject to an appropriation by the general assembly.
  • HB 18-1105 – “Concerning the Unlicensed Sale of Vehicles,” by Reps. Larry Liston & Jovan Melton and Sen. Jack Tate. The bill clarifies that money received as fines for certain violations may be deposited in the auto dealers license fund.
  • SB 18-025 – “Concerning Modernization of Election Procedures for the Urban Drainage and Flood Control District to Conform with the Current Requirements of State Law,” by Sen. Kevin Priola and Rep. James Coleman. The bill makes several changes to statutory provisions related to flood control district elections.
  • SB 18-050 – “Concerning Including Staff of Free-standing Emergency Facilities as Part of Colorado’s Safe Haven Laws,” by Sen. Jim Smallwood and Reps. James Coleman & Marc Catlin. The bill expands Colorado’s safe haven laws to include staff members of community clinic emergency centers as persons allowed to take temporary physical custody of infants 72 hours old or younger when the infant is voluntarily surrendered by its parent or parents.
  • SB 18-124 – “Concerning the Removal of the Thirty-day Waiting Period Related to the Sale of Imported Alcohol Beverages,” by Sen. Owen Hill and Rep. Dan Pabon. Current law requires a manufacturer or importer of imported alcohol beverages to file a statement and notice of intent to import with the state licensing authority at least 30 days before the import or sale of the imported alcohol beverages. The bill removes the 30-day waiting period requirement.
  • SB 18-148 – “Concerning the Continuation of Certain Benefits Through the ‘State Employee Group Benefits Act’ for Dependents of a State Employee who Dies in a Work-related Death,” by Sens. Beth Martinez Humenik & Dominick Moreno and Reps. Polly Lawrence & Tony Exum. The bill specifies that dependents of an employee who dies in a work-related death are automatically qualified for the continuation of dental or medical benefits through the act for 12 months from the end of the month in which the work-related death occurred, so long as the dependents had dental or medical benefits pursuant to the act at the time of the employee’s work-related death.

For all of the governor’s 2018 legislative actions, click here.

Governor Signs Bill to Correct Typographical Error

On Monday, March 5, 2018, the governor signed one bill into law. To date, he has signed 30 bills this legislative session. The bill signed Monday, SB 18-105, made a correction to last session’s bill, HB 17-1367. The summary is as follows:

  • SB 18-105 – “Concerning Clarifying Changes to Provisions that were Contained in House Bill 17-1367,” by Sen. Randy Baumgardner and Rep. Dan Pabon. House Bill 17-1367 required that a state, local, or municipal agency only employ or use the results of marijuana tests if the tests were conducted by an analytical laboratory that was both certified by the state marijuana enforcement division (MED) and accredited pursuant to the International Organization for Standardization/International Electrotechnical Commission standard (international standard). The requirement that an analytical laboratory be both certified by the MED and accredited pursuant to the international standard was an inadvertent error. The intent was that an analytical laboratory could either be certified by the MED or accredited pursuant to the international standard. The bill changes the ‘and’ to an ‘or’ in order to effectuate the original intent.

For all of the governor’s 2018 legislative decisions, click here.

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: 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.

Interview with Jason St. Julien: Former History Teacher, Current Assistant United States Attorney, Devoted Mentor

Editor’s Note: In honor of Black History Month, Mary Dilworth, CBA-CLE’s Marketing Manager, is conducting a series of interviews of some of our distinguished faculty and authors. Click here for the previous post.

Colorado Bar Association CLE (CBA-CLE) continues the interview series with some of our African-American faculty and authors. Our hope is that this series is able to inspire others by sharing the journey and achievements of these successful attorneys.

Jason St. Julien, a CBA-CLE faculty member, is a charismatic, engaging, and driven attorney who hails from St. Martinville, Louisiana. Currently an Assistant United States Attorney in Denver, he works in the Major Crimes Section of the Criminal Division. Prior to becoming an Assistant United States Attorney, Jason served as a Judicial Law Clerk to the Honorable Mary Ann Vial Lemmon, Senior Judge in the United States District Court for the Eastern District of Louisiana and the Honorable Wiley Y. Daniel, Senior Judge in the United States District Court for the District of Colorado.

Jason strives to affect positive change in the human condition each day. Prior to attending law school, Jason taught 7th Grade Reading and Texas History in Pearland, Texas where he was named New Teacher of the Year in Secondary Education. He continues his devotion to youth by serving as a mentor/facilitator with Denver Urban Scholars (formerly Colorado Youth at Risk). Jason is a graduate of the Urban Leadership Foundation of Colorado’s 2014 Chamber Connect Leadership Program and the Colorado Bar Association’s 2017 Leadership Training class. He is also the immediate past President of the Sam Cary Bar Association.

What inspired you to become an attorney? My cousin is a patent attorney in Houston, Texas. While I taught 7th grade in Pearland, a suburb of Houston, we discussed a possible career in law. I chose law school over pursuing a Ph.D. in psychology because I believed a J.D. would open more doors. My choice panned out well. Law brought me to Colorado in 2012 and my world is a bigger place because of my experiences here in Denver.

What do you enjoy about the practice of law? As a criminal prosecutor, I know that I affect positive change every day. I know with absolute certainty that what I do makes a difference in the lives of Colorado’s citizens. I have my hand on the pulse of something much greater than myself. For that, I am thankful.

What historical black figure do you admire? Harriet Tubman

What about someone from today who inspires you? President Obama

Favorite Book? The Alchemist by Paulo Coelho

Favorite Movie? Star Wars: A New Hope. Return of the Jedi is a close second.

What do you do in your spare time for fun (if there is any spare time!) I am on my Harley Davidson Road King any time the weather permits! I usually purchase a season ticket package for the Colorado Symphony and get out to listen to live jazz music. And there is never a bad time for a good book.

What advice would you give to new attorneys? Whatever you “think” is happening or going on, it is not that serious. Really, it’s not. Find your advancement in the advancement of others and you will become your firm’s most valuable asset.

Colorado Court of Appeals: Defendant Must be Prosecuted Under Specific Statute for Theft of Food Stamps

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

Criminal Law—Theft—Colorado Public Assistance Act—Food Stamps—Fraudulent Acts.

Rojas received food stamps. When requesting an extension of food stamp benefits, Rojas reported that she had no employment income, although she had been hired as a restaurant manager. While continuing to work as a restaurant manager, Rojas received $5,632 worth of food stamps to which she was not entitled. Rojas was found guilty of two counts under the general theft statute, CRS 18-4-401, and one count under CRS 26-2-305(1)(a), which criminalizes failing to report a change in financial circumstances that affects that participant’s eligibility for food stamps.

On appeal, Rojas challenged the trial court’s denial of her motion to dismiss the general theft counts. She argued that the trial court erred in finding that she could be prosecuted for theft of food stamps under the general theft statute. The prosecution is barred from prosecuting under a general criminal statute when the legislature evinces a clear intent to limit prosecution to a more specific statute. CRS 26-2-305(1)(a) creates a more specific criminal offense, theft of food stamps by a fraudulent act, than the general theft statute, and the General Assembly intended it to supplant the general theft statute.

The convictions under the general theft statute were vacated.

Summary provided courtesy of Colorado Lawyer.

Income Eligibility Guidelines Updated; Several CJDs Affected

On Thursday, February 22, 2018, the Colorado State Judicial Branch released revisions to the Income Eligibility Guidelines. Several Chief Justice Directives were affected by these revisions:

  • CJD 98-01 – “Costs for Indigent Persons in Civil Matters”
  • CJD 04-04 – “Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court”
  • CJD 04-05 – “Appointment and Payment Procedures for Court-appointed Counsel, Guardians ad litem, Child and Family Investigators, and Court Visitors paid by the Judicial Department in proceedings under Titles 12, 13, 14, 15, 19 (special respondents in dependency and neglect only), 22, 25.5, and 27, C.R.S.”
  • CJD 04-06 – “Court Appointments Through the Office of the Child’s Representative”
  • CJD 14-01 – “Appointment of State-Funded Counsel in Juvenile Delinquency Cases”
  • CJD 16-02 – “Court Appointments Through the Office of Respondent Parents’ Counsel”

All of the Colorado Supreme Court’s Chief Justice Directives can be accessed here.

Colorado Supreme Court: Admission of Victim’s Out-of-Court Statements to Officer Did Not Affect Outcome of Trial

The Colorado Supreme Court issued its opinion in Pernell v. People on Tuesday, February 20, 2018.

Criminal Law—Harmless Error.

The supreme court reviewed the court of appeals’ opinion affirming defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses. The court of appeals held that although the trial court erred by admitting a victim’s out-of-court statements as excited utterances under CRE 803(2), the trial court’s error did not require reversal because the statements were admissible as prior consistent statements to rehabilitate the victim’s credibility after defense counsel attacked it during his opening statement. The court concluded that any error in the admission of the victim’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to defendant’s conviction. Accordingly, the court declined to address whether defense counsel’s opening statement opened the door to the admission of the victim’s out-of-court statements and expressed no opinion on this issue. The court therefore affirmed the judgment of the court of appeals, albeit on different grounds.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Use of Partially Completed Puzzle to Illustrate Reasonable Doubt was Misconduct

The Colorado Court of Appeals issued its opinion in People v. Van Meter on Thursday, February 8, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Reasonable Doubt—Mistrial—Prosecutorial Misconduct—Jury Instruction—Possession—Evidence.

Van Meter pleaded guilty to multiple crimes and served time in the Department of Corrections’ custody. After Van Meter was released on parole, his employer told Van Meter’s parole officer that Van Meter had a gun in his car and was possibly using heroin and stealing from customers. When Van Meter arrived at work he was arrested, and officers found a loaded semi-automatic handgun inside a toolbox in the trunk of his car. A jury found Van Meter guilty of possession of a weapon by a previous offender (POWPO).

On appeal, Van Meter argued that the trial court reversibly erred in failing to declare a mistrial after a prospective juror stated in front of the panel that he was aware of the underlying case because he was a deputy sheriff and had transported Van Meter to court. The record supports the trial court’s determination that the challenged comments did not taint the entire panel because they did not necessarily imply that the deputy sheriff transported Van Meter to court for the underlying case rather than a previous case, and the POWPO charge required the jury to learn that Van Meter had a prior felony conviction. The trial court did not abuse its discretion in declining to declare a mistrial.

Van Meter next asserted that the trial court reversibly erred by allowing the prosecutor to show the jury a picture of a partially completed puzzle of an iconic and easily recognizable space shuttle image to explain the concept of reasonable doubt. There was no contemporaneous objection. The challenged behavior constituted prosecutorial misconduct. However, because all the elements of the POWPO charge were clearly proven, and the error was neither obvious nor substantial, the trial court did not plainly err in allowing the prosecutor’s improper conduct.

Van Meter also argued that the trial court erroneously instructed the jury on the definition of “possession” in the context of the POWPO charge. The trial court gave the definition of “possession” from the new criminal jury instructions, and defense counsel affirmatively declined to object to the challenged instruction three times. The challenged instruction was not incorrect or otherwise confusing to the extent that it constituted plain error.

Van Meter next contended that the trial court reversibly erred in allowing evidence that the gun found in his vehicle was stolen and that Van Meter was allegedly using illicit drugs. Here, defense counsel offered no contemporaneous objections and strategically chose to elicit CRE 404(b) evidence, and there was overwhelming evidence of Van Meter’s guilt. Any error in allowing the challenged evidence did not rise to the level of plain error.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.