March 29, 2015

Bills Allowing Licensed Naturopaths to Treat Young Children, Prohibiting Microbeads in Cosmetics, Permitting Earphones While Driving, and More Signed

On Thursday, March 26, 2015, Governor Hickenlooper signed ten bills into law. To date, he has signed 78 bills this legislative session. The bills signed Thursday are summarized here.

  • HB 15-1012 – Concerning a Sales and Use Tax Exemption for Dyed Diesel, by Rep. Jon Becker and Sen. Jerry Sonnenberg. The bill expands the sales and use tax exemption for dyed diesel, which is only used for off-road vehicles.
  • HB 15-1055 – Concerning the Participation of People Who Are Not State Employees in the State Employee Assistance Program Established by the State Personnel Director, by Rep. Daneya Esgar and Sen. Kevin Grantham. The bill allows dependents of state employees to participate in the state’s employee assistance program as long as the dependent’s participation benefits the employee.
  • HB 15-1075 – Concerning the Authority for a Registered Naturopathic Doctor to Treat Children, by Rep. Joann Ginal and Sen. Larry Crowder. The bill allows registered naturopathic doctors to treat children under the age of 2 if certain conditions are met.
  • HB 15-1117 – Concerning the Clarification of the Application of the “Uniform Electronic Transfers Act” to the Conduct of the Internal Affairs of Domestic Entities, by Rep. JoAnn Windholz and Sen. Lucia Guzman. The bill allows electronic signatures under the Colorado Corporations and Associations Act.
  • HB 15-1137 – Concerning Requests for Multiple Booking Photographs, by Rep. KC Becker and Sen. John Cooke. The bill allows a person requesting multiple booking photographs to sign one release per year for the photographs.
  • HB 15-1144 – Concerning the Prohibition of Synthetic Plastic Microbeads in Personal Care Products, by Rep. Dianne Primavera and Sen. Nancy Todd. The bill prohibits the production, sale, manufacture, or promotion of personal care products containing microbeads. The bill phases in the prohibition between January 1, 2018 and January 1, 2020.
  • HB 15-1192 – Concerning the Ability of Specified Establishments Licensed to Serve Alcohol Beverages for On-Premises Consumption to Become Part of an Entertainment District Authorized by a Local Government, by Rep. KC Becker and Sen. Tim Neville. Senate Bill 11-273 allowed municipalities to create entertainment districts. This bill allows entertainment districts to obtain liquor licenses for specific purposes.
  • HB 15-1207 – Concerning the Use of Earphones While Driving, by Rep. Jovan Melton and Sen. Nancy Todd. The bill allows the use of earphones while driving, as long as only one ear is covered.
  • HB 15-1211 – Concerning License Requirements for Durable Medical Equipment Suppliers, by Rep. Dave Young and Sen. Jerry Sonnenberg. The bill makes several changes to licensing requirements for durable medical equipment providers.
  • SB 15-055 – Concerning State Engineer Administration of Tailwater Ditches, by Sen. Mary Hodge and Reps. Jeni James Arndt & Jon Becker. The bill allows a person using an irrigation ditch system to use a tailwater ditch to return water to a stream in variable amounts.

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

Minor Change to Colo. R. Crim. P. 44 Announced

On Thursday, March 26, 2015, the Colorado Supreme Court announced Rule Change 2015(03), which amended Rule 44 of the Colorado Rules of Criminal Procedure. The change affects subsection (a) of the rule, and the only change was to update a cross-reference from C.R.C.P. 226 to C.R.C.P. 205.7. For a redline of the rule change, click here.

Colorado Supreme Court: Totality of Circumstances Illustrates Miranda Waiver Knowing and Intelligent

The Colorado Supreme Court issued its opinion in People v. Thames on Monday, March 23, 2015.

Suppression Order—Knowing and Intelligent Waiver of Miranda rights—Totality of the Circumstances.

This interlocutory appeal challenged the trial court’s order suppressing statements defendant made during custodial interrogation. Investigators gave defendant an oral Miranda advisement during the interrogation. Defendant confirmed that he understood his Miranda rights and signed a written waiver form before making certain statements that the prosecution wanted to use in its case-in-chief. The trial court concluded that defendant did not knowingly and intelligently waive his Miranda rights after a speech language pathologist and audiologist testified that defendant had trouble understanding spoken paragraphs regarding abstract concepts. Under the totality of the circumstances, the Supreme Court reversed the trial court’s suppression order, holding that defendant knowingly and intelligently waived his Miranda rights.

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

Bill to Add Judge in 12th Judicial District and More Signed

On Friday, March 20, 2015, Governor Hickenlooper signed ten bills into law. To date, he has signed 68 bills into law. The bills signed Friday are summarized here.

  • HB 15-1059 – Concerning the Board of Directors of the Denver Health and Hospital Authority, by Rep. Alec Garnett and Sen. Lucia Guzman. The bill adds two board members to the Denver Health and Hospital Authority board, removes outdated language, and dictates a new process for removing board members.
  • HB 15-1122 – Concerning Limiting Eligibility for Parole, and, in Connection Therewith, Amending Certain Provisions Concerning the Revocation of Parole for Certain Inmates, by Rep. Rhonda Fields and Sen. John Cooke. The bill aligns procedures for parole of offenders under the statute to current DOC practice.
  • HB 15-1029 – Concerning Coverage Under a Health Benefit Plan for Health Care Services Delivered Through Telehealth in Any Area of the State, by Reps. Perry Buck & Joann Ginal and Sens. John Kefalas & Beth Martinez Humenik. The bill requires all health benefit plans in Colorado to provide telemedicine options when telemedicine is considered an equal standard of care.
  • HB 15-1034 – Concerning an Increase in the Number of District Court Judges in the Twelfth Judicial District, and, in Connection Therewith, Making an Appropriation, by Rep. Ed Vigil and Sen. Larry Crowder. The bill adds a district court judge in the Twelfth Judicial District.
  • HB 15-1032 – Concerning the Addition of Licensed Mental Health Professionals as Authorized Providers of Mental Health Services to Minors who are At Least Fifteen Years of Age, by Rep. Jonathan Singer and Sen. Irene Aguilar. The bill expands the definition of qualified mental health providers for involuntarily committed minors to include licensed social workers, licensed professional counselors, and licensed addiction counselors.
  • HB 15-1078 – Concerning Immediate Reporting of Missing Children who are in the Custody of a State Agency to Law Enforcement for Inclusion in National Crime Databases, by Reps. Dan Nordberg & Beth McCann and Sens. Cheri Jahn & Laura Woods. The bill requires reporting of missing children to law enforcement within 24 hours of noticing the child is missing when the child is in the custody of county or state departments of human services.
  • HB 15-1174 – Concerning the Confidentiality of Personal Information for Participants in the Address Confidentiality Program and, in Connection Therewith, Protecting Victims of Domestic Violence, Sexual Assault, and Stalking, by Rep. Terri Carver and Sen. Laura Woods. The bill prevents the state from knowingly disclosing the address of a person in the address confidentiality program, including unique identifying information about his or her residential, work, or school address.
  • HB 15-1070 – Concerning Changes to the Crime Profits Distribution Statute, by Rep. John Buckner and Sen. Beth Martinez Humenik. The bill makes several changes regarding the distribution of crime profits.
  • HB 15-1094 – Concerning Restorative Justice, by Rep. Pete Lee and Sens. John Cooke & Linda Newell. The bill makes several changes to the judicial department’s restorative justice programs, including adding members, allowing gifts to support restorative justice, and expanding eligibility to juveniles.
  • HB 15-1060 – Concerning Protection Orders in Sex Offense Cases, by Rep.  Millie Hamner and Sen. John Cooke. The bill requires a defendant in a sexual offense case to acknowledge any protection orders in court and in writing prior to release on bond.

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

Bills Regarding Trustee Notification, Recorded Documents, and More Signed

On Wednesday, March 18, 2015, Governor Hickenlooper signed nine bills into law. Governor Hickenlooper has now signed 58 bills this legislative session. The bills signed Wednesday are summarized here.

  • HB 15-1010 – Concerning a Presumption that a Trustee has Notified a Beneficiary when the Trustee has Adopted a Beneficiary Notification Procedure, and, in Connection Therewith, Clarifying that a Trustee May Deliver Information to Beneficiaries Electronically, by Reps. Tracy Kraft-Tharp & Dan Nordberg and Sen. Cheri Jahn. The bill creates a presumption that a beneficiary of a trust has received notifications about the status of a trust when the trustee has notification procedures in place, and also allows electronic notifications for beneficiaries who elect electronic notifications.
  • HB 15-1022 – Concerning Juveniles Charged with Certain Minor Offenses, by Rep. Beth McCann and Sens. Pat Steadman & John Cooke. The bill allows police officers to issue petty offense tickets to juveniles if certain conditions are met.
  • HB 15-1028 – Concerning Repeal of the Mercantile Licensing Standards, by Rep. Jon Keyser and Sen. Cheri Jahn. The bill repeals licensing requirements for merchants because the requirements are not enforced.
  • HB 15-1062 – Concerning Increasing the Penalties for Persons who Engage in Animal Fighting, by Reps. Jovan Melton & Steve Lebsock and Sens. David Balmer & Jerry Sonnenberg. The bill requires mandatory fines for convictions for animal fighting.
  • HB 15-1064 – Concerning Access to the Safe Deposit Box of a Decedent, and, in Connection Therewith, Limiting the Obligations of Custodians who Access the Box, by Rep. Dan Nordberg and Sen. Chris Holbert. The bill clarifies who has access to a decedent’s safe deposit box under the Colorado Probate Code and and clarifies that the custodian is not deemed to have knowledge about the contents of the box.
  • HB 15-1069 – Concerning Information Required to be Included in Recorded Written Instruments Filed with the County Clerk and Recorder to Claim a Homestead Exemption, by Rep. Su Ryden and Sen. Chris Holbert. The bill adds a requirement that a property owner’s name be included on a homestead exemption document.
  • HB 15-1071 – Concerning Clarification that, Following a Merger of Entities, the Surviving Entity is Entitled to Control the Premerger Attorney-Client Privileges of a Constituent Entity, by Rep. Jon Keyser and Sen. Owen Hill. The bill specifies that a corporation that merges with another entity inherits the attorney-client privilege from the other entity.
  • SB 15-057 – Concerning the Reporting Requirements of the Colorado Clean Claims Task Force, by Sen. David Balmer and Rep. Angela Williams. The bill changes the reporting requirements for the Colorado Medical Clean Claims Task Force so that the reports will go to the Commissioner of Insurance and the business committee of the General Assembly.
  • SB 15-142 – Concerning a Change in State Law to Make Requirements for Moneys Held in Escrow for the Payment of Ad Valorem Property Taxes the Same as the Requirements of the Federal “Real Estate Settlement Procedures Act of 1974″, by Sen. Ellen Roberts and Rep. Dan Pabon. The bill conforms state law to the requirements of the federal Real Estate Settlement Procedures Act, specifically repealing May 30 date for final settlement and changing the provision to reference RESPA.

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

Colorado Supreme Court: Nothing in Record Showed Defendant Could Read English Therefore Both Miranda Advisements Deficient

The Colorado Supreme Court issued its opinion in People v. Carrion on Monday, March 16, 2015.

Suppression Order—Inadequate Oral Miranda Advisement—Findings of Fact—Insufficient Evidence Native Spanish Speaker Could Read Written Miranda Advisement in English.

During a custodial interrogation, investigators provided Carrion, a native Spanish speaker, a written Miranda advisement in English. The Supreme Court held that the trial court’s factual findings were supported by the record and were not clearly erroneous. The trial court found that Carrion had difficulty with the English language and that there was insufficient evidence before the court that Carrion could read English. Accordingly, the trial court suppressed statements Carrion made during the custodial interrogation. Because the trial court’s factual findings were supported by the record, the Court affirmed the trial court’s suppression order.

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

Colorado Supreme Court: Good Time Credits Only to be Used to Calculate Inmate’s Parole Eligibility

The Colorado Supreme Court issued its opinion in Ankeney v. Raemisch on Monday, March 16, 2015.

Mandatory Release Date—Applicability of Good Time, Earned Time, and Educational Earned Time.

The Department of Corrections (DOC) appealed directly to the Supreme Court from an order of the district court granting Ankeney habeas corpus relief. Complying with a remand order of the court of appeals from an earlier appeal, the district court interpreted various statutory provisions regarding good time and earned time credit to require Ankeney’s release from prison almost three years before the date calculated by the DOC. Crediting the time during which Ankeney remained unlawfully incarcerated against his subsequent, statutorily mandated period of parole, the district court found him to have completed his parole term and ordered his immediate release from parole supervision.

The Court reversed the district court’s judgment. It held that the lower courts erroneously concluded that for inmates convicted of crimes committed after July 1, 1993, good time credits awardable by CRS § 17-22.5-301 are to be applied against an inmate’s mandatory release date rather than calculated merely to determine his or her parole eligibility. A proper application of the statutory deductions from Ankeney’s sentence to which he is entitled demonstrates that he has not completed service of his required term of parole.

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

Colorado Supreme Court: Defense Counsel Failed to Object to Erroneous Statement of Law and No Plain Error

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, March 16, 2015.

Objections—Plain Error—Sufficiency of the Evidence.

In this case, the Supreme Court considered the effect of an erroneous deliberation instruction in a first-degree murder trial where defense counsel’s trial objection failed to identify the ground that rendered the deliberation instruction erroneous. The Court held that the plain error standard applies because the defense objection provided the trial court with no meaningful chance to avoid the instructional error. The Court concluded that the instructional error did not merit reversal under the plain error standard because overwhelming evidence proved that defendant deliberated, and the jury instructions as a whole adequately explained the law. The Court also held that there was sufficient evidence for the jury to convict defendant of first-degree murder after deliberation. The judgement of the court of appeals was affirmed and the case was remanded with instructions.

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

Colorado Court of Appeals: Judge’s Remarks Do Not Display Deep-Seated or Unequivocal Bias Against Defendant

The Colorado Court of Appeals issued its opinion in People v. Dobler on Thursday, March 12, 2015.

Sentencing Judge—Bias—Plea Agreement.

While on probation for a separate felony conviction, defendant sped through an accident scene, hitting and killing a tow truck driver. Defendant then fled, only to be apprehended by police several blocks away. Defendant pleaded guilty to vehicular homicide and leaving the scene of an accident involving death in exchange for the dismissal of charges of aggravated motor vehicle theft, violation of bail bond conditions, driving under the influence, evading or circumventing an ignition interlock device, reckless driving, and violation of a protective order. The sentencing court sentenced defendant to forty-eight years in the custody of the Department of Corrections (DOC), the maximum sentence available under his plea agreement.

On appeal, defendant argued that his constitutional right to have an impartial judge determine his sentence was violated. Defendant was sentenced to four years in the DOC by the same judge in the earlier felony case. After defendant completed a year in the DOC and successfully completed the DOC’s boot camp program, the court reviewed his sentence and placed him on intensive supervised probation. During a hearing on a related matter and at sentencing for this case, the judge made comments about how he felt guilty because a man was dead after he reconsidered defendant’s sentence. The Court of Appeals rejected defendant’s argument that reversal was required because the judge was biased. First, defendant’s failure to file a motion to disqualify waived his argument that the sentencing judge should have recused himself based on an appearance of partiality. Second, defendant did not establish actual bias requiring disqualification of the sentencing judge.

Defendant further contended that the sentencing court abused its discretion by imposing the maximum aggravated sentence on each count and ordering the sentences to run consecutively. Because the sentence imposed was within the range agreed on by the parties pursuant to a plea agreement, defendant was precluded from challenging the propriety of his sentence on appeal. The sentence was affirmed.

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

Colorado Court of Appeals: Self-Employed Director of Private School Not “Public Employee”

The Colorado Court of Appeals issued its opinion in People v. Rediger on Thursday, March 12, 2015.

Public Employee—Public Building—CRS § 18-9-110(1)—Jury Instructions—Waiver.

Believing that Rediger had stolen hay from their property, the victim and her husband asked the district attorney to bring charges against him. While school was in session, Rediger drove to the Rocky Mountain Youth Academy (Academy), where the victim worked as owner–director, to discuss the charges. Redigerwas convicted by a jury of interfering with a public employee in a public building, in violation of CRS § 18-9-110(1), and interfering with staff, faculty, or students of an educational institution, in violation of CRS § 18-9-109(2).

On appeal, Rediger argued that because the victim was not a “public employee” and the Academy was not a “public building,” his conviction cannot stand under CRS § 18-9-110(1). The record does not show that any governmental entity had the right to hire or fire Academy employees. In addition, because the victim testified that she drew her salary from the budget that she controlled, the state did not have any direct control over her salary. Moreover, the record does not contain sufficient evidence for any reasonable juror to conclude that the Academy was a public building. Because these errors were obvious, the trial court erred by not sua sponte dismissing the charge.

Rediger also argued that the prosecution made an improper constructive amendment of the second charge by tendering an elemental instruction under CRS § 18-9-109(1)(b) rather than under CRS §18-9-109(2), as charged in the information. Because Rediger’s trial counsel affirmatively agreed to the jury instructions, he waived any right to appeal the instructions. Accordingly, the judgment of conviction on the § 18-9-110(1) count was reversed, and the judgment of conviction on the § 18-9-109(2) count was affirmed.

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

Colorado Court of Appeals: Statute with “Other Apparatus” Category Not Unconstitutionally Vague As Applied to Gym Lockers

The Colorado Court of Appeals issued its opinion in People v. Nerud on Thursday, March 12, 2015.

Third-Degree Burglary Statute—Vagueness Challenge—Sufficiency of the Evidence—Jury Instructions—Closing Argument.

Nerud stole money and a backpack from three lockers at a 24 Hour Fitness Center on three occasions. He was apprehended on the third theft and eventually admitted to all three thefts, but denied breaking any locks to enter the lockers. He claimed he rummaged through belongings in unlocked lockers until he found money to take. Nerud was charged with two counts of third-degree burglary related to the first two incidents and three counts of theft. The jury found him guilty on all counts.

On appeal, Nerud argued that the third-degree burglary statute, CRS § 18-4-204(1), is unconstitutionally vague on its face and as applied to him because it prohibits entering or breaking into “other apparatus or equipment.” The Court of Appeals reviewed the case law interpreting the phrase and held the statute is not vague on its face because “other apparatus and equipment” is limited to containers with the same characteristics as the other items listed in the statute (specifically, containers designed and used for the safekeeping of money or valuables). The Court found the lockers were clearly “other apparatus and equipment” because they were used to safeguard personal valuable items while members worked out in the gym and a person of ordinary intelligence would not have to guess at this meaning. Thus, the statute was not unconstitutionally vague as applied.

Nerud argued that the evidence presented was insufficient to prove the lockers were “other apparatus or equipment” that were locked. The Court found copious evidence in the record to support the findings of the jury; the testimony of the victims alone was sufficient.

Nerud argued that the jury instruction on “other apparatus or equipment” was improper. The Court disagreed, finding that the jury instruction correctly defined the phrase.

Nerud argued that the jury instruction on the inference that may be drawn from a defendant’s unexplained, exclusive possession of stolen property was error. The Court found any error harmless; Nerud conceded the theft but only contested whether the lockers he had stolen from were locked.

Nerud further argued that the prosecutor in his closing argument improperly offered personal opinions about witness credibility and drug paraphernalia found in Nerud’s backpack. The Court found no reversible error. It first noted no contemporaneous objection and therefore a plain error standard of review applied, and then reviewed the objected to statements and found no plain error. The judgment was affirmed.

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

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.