November 22, 2014

Tenth Circuit: Guilty Plea Does Not Waive Defendant’s Right to Contest Evidence Admission for Other Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Farmer on Wednesday, November 5, 2014.

Joseph Farmer was pulled over on I-40 in Oklahoma in June 2012. The officer who stopped him smelled marijuana and asked to search the car. During the search, the officer found a loaded .357 revolver under the front edge of the driver’s seat. Based on these facts, a jury convicted Farmer of being a felon in possession of a firearm, and he was sentenced to 60 months’ imprisonment followed by three years’ supervised release. Farmer appealed, contending the evidence of his 2010 firearm possession should have been suppressed because the evidence was obtained in an unlawful search.

The Tenth Circuit examined the prior firearm possession charge, and determined that although Farmer had pled guilty to the possession charge, thereby waiving his right to appeal that charge, he did not waive the right to assert that the search was unlawful for other purposes. The Tenth Circuit found that it was error for the district court to rule that Farmer had waived his right to challenge the search by pleading guilty. However, it found that the error was harmless beyond a reasonable doubt. Farmer’s defense at trial was that he did not know that the firearm was in the car. The government presented evidence that Farmer tried to distract the officer while he was searching the driver’s side of the car, muttered about the gun while the officer was searching, and tried to get his passenger to claim the gun as hers. These facts overwhelmingly support the conviction, regardless of the evidence of the prior conviction.

Farmer also argued the prosecutor’s closing remarks deprived him of a fair trial. During closing, the prosecutor made statements that the deputy had nothing to gain by planting a gun in Farmer’s car, which Farmer argued impermissibly vouched for the officer’s credibility. The Tenth Circuit disagreed, finding instead that the prosecutor was addressing the defense’s argument that the officer had planted the gun. The Tenth Circuit found that the prosecutor’s other remarks were harmless beyond a reasonable doubt.

The Tenth Circuit affirmed Farmer’s conviction.

Various JDF Forms Amended in October and November

The Colorado State Judicial Branch continued amending JDF forms in October and November 2014, with updated forms released in the criminal, domestic relations, FED, probate, and miscellaneous categories. Forms are available for download here in PDF format, and are available in Word or PDF from the State Judicial forms page.

CRIMINAL

  • JDF 219 – “Juvenile Delinquency – Application for a Public Defender” (issued 11/14)

DOMESTIC RELATIONS

  • JDF 211 – “Request to Reduce Payment for ODR Services and Supporting Affidavit” (revised 10/14)

FORCIBLE ENTRY & DETAINER (FED)

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 11/14)
  • JDF 140 – “Instructions for Forcible Entry and Detainer (FED)/Eviction for Owner Occupied Mobile Home” (revised 11/14)

MISCELLANEOUS

  • JDF 450 - “Order re: Appointment of Counsel at State Expense Other Than the Public Defender in a Criminal or Juvenile Delinquency Proceeding” (revised 11/14)

PROBATE

  • JDF 906 – “Instructions for Probate With a Will” (revised 10/14)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 10/14)

For all of State Judicial’s JDF forms, click here.

Tenth Circuit: States Have Wide Latitude to Determine Which Offenses are Serious for ACCA Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Titley on Tuesday, November 4, 2014.

John Ervin Titley pled guilty to being a felon in possession of a firearm. He was sentenced, and his sentence was enhanced due to the provisions of the Armed Career Criminal Act (ACCA), due to his three prior felony convictions. Although Mr. Titley agrees his Missouri armed robbery conviction qualifies for ACCA purposes, he argues that his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma should not qualify because in 19 other states and the District of Columbia those crimes would not have constituted “serious drug offenses.” Mr. Titley argued this violates the Equal Protection clause.

The Tenth Circuit, applying rational basis review, analyzed whether the challenged ACCA provision is rationally related to a legitimate government purpose, and found that it was. ACCA’s purpose is to incapacitate repeat offenders who possess firearms and deter such conduct in others. Mr. Titley does not challenge the purpose, but instead argues ACCA violates equal protection because it does not apply uniformly to similarly situated defendants. The Tenth Circuit found that Congress afforded the states wide latitude in determining which crimes they regarded as serious. Rational basis does not require uniformity.

The sentence was affirmed.

Tenth Circuit: Government’s Late Filing Bars District Court Jurisdiction for Sentence Reduction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Baker on Tuesday, October 28, 2014.

Defendant Frederick Baker and co-defendant Mark Akins were indicted on a fraudulent investment scheme. The trials were separate, and Baker was eventually sentenced to 41 months’ imprisonment, the low end of the Guidelines range. Three weeks after sentencing, Baker met with prosecutors and provided them information about his and Akins’ role in the fraud and offered to testify against Akins. An assistant U.S. attorney told Baker he would recommend a sentence reduction to the court based on Baker’s proffered information. Twice during the year following his sentencing, Baker and his attorney asked the government to file a Crim. P. 35(b) motion for sentence reduction. The government did not do so, instead waiting until the completion of Akins’ restitution, which fell outside Rule 35(b)’s one year time limit for requests for sentence reduction. Eventually, the government did petition the district court for a sentence reduction under Rule 35(b)(2)(B), but the district court denied the motion as time-barred. Baker appealed.

The Tenth Circuit examined Rule 35(b), which allows the government to petition the court within one year of sentencing for a sentence reduction for defendants who provide information that materially assists the government. The government filed its motion under 35(b)(2)(B), which allows an exception for the one-year time bar for defendants whose information did not become useful until after the expiration of the one-year period. In its motion, the government said that Baker’s information was useful both before and after the expiration of the one-year period, but the district court found that it lacked jurisdiction to hear the motion due to Rule 35’s one-year time bar. The Tenth Circuit, though sympathetic to Baker, could find no reason to reverse the district court’s finding. The ruling was affirmed.

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

Colorado Court of Appeals: Inmate’s Challenge to DOC Policies Not Barred by 30-Day Claims Limit

The Colorado Court of Appeals issued its opinion in Garcia v. Harms on Thursday, November 6, 2014.

Timely Filing—Code of Penal Discipline Claim.

Garcia was charged with assault under the Code of Penal Discipline (COPD) after a corrections officer accidentally pricked herself on a sewing needle he kept in his cell. Garcia was not present at the time, but he was charged and found culpable and disciplined. He was also required to pay restitution.

Garcia challenged his conviction, claiming: (1) his disciplinary hearing did not comply with constitutional due process requirements; (2) the COPD definition of “assault” was unconstitutionally vague on its face as applied to him; (3) the Colorado Department of Corrections (CDOC) exceeded its authority when it ordered him to pay restitution; (4) CRS §17-1-111, which exempts CDOC from certain provisions of the Administrative Procedure Act, violates constitutional separation of powers principles; and (5) the collection of restitution unjustly enriched CDOC. The district court dismissed Garcia’s complaint—filed nearly two years after his COPD conviction became final—as time-barred under CRCP 106.5.

Garcia challenged the dismissal, except as to claims one and five. He arguedthat claims two through four challenged “CDOC’s establishment of policies and general application of those policies” and not his disciplinary conviction and therefore were not barred under CRCP 106.5. The Court of Appeals agreed as to Garcia’s fourth claim and portions of his second and third claims.

Portions of Garcia’s second and third claims challenged only quasi-judicial action. However, the part of claim two asserting that the COPD definition of assault under which Garcia was convicted was unconstitutionally vague on its face, as well as the portion of claim three asserting the CDOC has adopted a monetary restitution policy that violates the Separation of Powers Clause, are not related to quasi-judicial actions. Also, claim four asserted that CRS §17-1-111 facially violates separation of powers principles. The Court held that these claims were covered by CRS §13-80-102(1)(h) as “actions against any public or governmental entity . . . ” insofar as defendants Governor Hickenlooper and the State of Colorado are concerned, and were subject to the one-year statute of limitations under the exceptions listed in CRS §13-80-103 insofar as CDOC officials and employees were concerned.

Accordingly, the Court affirmed the order dismissing Garcia’s as applied constitutional challenges in claims two and three and the remaining clams against the executive director of the CDOC, the warden of the Sterling Correctional Facility, the hearing officer who presided over his disciplinary hearing, and two unnamed correctional officers. It reversed the order dismissing Garcia’s fourth claim against Governor Hickenlooper and the State of Colorado. It also reversed the dismissal of Garcia’s facial constitutional challenge against those defendants in claim two and his facial constitutional challenge to CDOC policies in claim three. The case was remanded for further proceedings.

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

Colorado Court of Appeals: Jurors Should Have Been Polled Regarding Exposure to News Report Prejudicial to Defense

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, November 6, 2014.

Poll the Jury—Media—Prejudice.

A jury convicted Jacobson of vehicular homicide, driving under the influence (DUI), and other related charges, all arising from a collision between her truck and a taxi cab. Two passengers in the taxi were killed.

During trial, defense counsel told the court that a report about the case had appeared the preceding night on Channel 4 newscast and the local television station’s website. Defense counsel requested to poll the jury concerning exposure to mid-trial publicity that included inadmissible, prejudicial information. The court denied the request.

On appeal, Jacobson argued that the court abused its discretion when it declined to poll the jury. The news report referred to Jacobson’s prior DUI conviction and prior accidents involving injury, alleged that she was driving without a license, and included an interview with someone involved in her previous accident. Due to the nature of this content, the court abused its discretion in failing to determine whether this information was inherently prejudicial and thereafter declining to poll the jury. Because this error was not harmless beyond a reasonable doubt, Jacobson’s convictions were reversed and the case was remanded for a new trial on all charges.

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

Tenth Circuit: No Reasonable Jurist Could Have Found Trial Counsel’s Performance Deficient

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodriguez on Wednesday, October 15, 2014.

Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine, and the district court sentenced him. The district court applied a career offender sentence enhancement based on Rodriguez’s two prior felony convictions involving crimes of violence or controlled substances. One of Rodriguez’s prior convictions was for simple assault under the Texas Penal Code. The parties disagree on whether the assault conviction constitutes a crime of violence. In an earlier appeal, Rodriguez’s attorney argued unsuccessfully that the conviction should not be considered a crime of violence. Rodriguez then sought collateral relief on a theory that his attorney had mishandled the issue. The district court recharacterized the request as a motion to vacate the sentence and denied it. Rodriguez then sought a Certificate of Appealability (COA), along with leave to amend his motion and a request to file in forma pauperis. The Tenth Circuit denied the COA and mooted the related requests.

The Tenth Circuit first noted that its prior ruling was the law of the case, and even if the current panel disagreed with the finding of the prior panel, it could not overturn that decision. Nevertheless, analyzing Rodriguez’s claim about the requisite mental state underlying his Texas assault offense, the Tenth Circuit found that the issue had been litigated in the prior ruling. The Tenth Circuit found that Rodriguez’s prior counsel advocated well for him, raising the claim that he did not have the requisite mental state, citing case law, and otherwise appropriately advocating, and declined to characterize Rodriguez’s appeal as anything other than an attempt to relitigate an already-decided issue.

The Tenth Circuit denied Rodriguez’s request for a COA and found moot his related requests to amend his motion and file in forma pauperis.

Tenth Circuit: Sex Offenders Have Continuing Duty to Keep Registration Information Up-to-Date

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lewis on Tuesday, September 30, 2014.

Marcus Lewis pleaded guilty to statutory rape in Missouri in 1996 and was sentenced to five years’ probation. He later served prison time because of a probation violation. Under the Sex Offender Registration and Notification Act (SORNA), Lewis was required for life to register as a sex offender. He last registered in Kansas in May 2011, and has not voluntarily registered in any state since then. SORNA requires sex offenders to register where they live, work, or attend school, and requires offenders to report any change in status to authorities.

In August 2011, a sheriff’s deputy in Kansas tried to locate Lewis for a warrant unrelated to his previous sex offense. The deputy used Lewis’s last known address from the sex offender registry, but learned that Lewis no longer lived there. Unable to find Lewis, the deputy alerted U.S. Marshals, who found a car associated with Lewis at the residence of his relatives in Missouri. Over a year later, Lewis was arrested in Atlanta on the Kansas warrant. In an interview with a U.S. Marshal, Lewis admitted that he had not registered because of the outstanding warrants. A federal grand jury indicted Lewis on one count of failing to register, and after a bench trial, Lewis was convicted. Following the conviction, Lewis filed a motion for judgment of acquittal, claiming improper venue and that the evidence was insufficient to support a conviction. His motion was denied, and Lewis appealed.

Lewis contended that venue in Kansas was improper, because he abandoned his home in Kansas, traveled through Missouri, and eventually settled in Georgia. Lewis argued that any SORNA violation occurred outside Kansas. The Tenth Circuit disagreed, finding that under SORNA, Lewis was required to report within three days that he had abandoned his Kansas residence or register in a new location within three days, so venue was proper in the departure district. Lewis also argued that he had abandoned his Kansas residence before the date listed on the indictment, but the Tenth Circuit found this argument flawed, as Lewis had a continuing requirement to update his information. Lewis next argued that his next registration date had not occurred at the time the sheriff discovered his abandonment of the Kansas residence, but the Tenth Circuit disagreed with his reasoning, as the purpose of SORNA is to keep registrations current regardless of where the offender resides, not to maintain one registration and allow the offender to be transitory as long as that one registration is maintained. Finally, Lewis argued that the government’s theory of the case was inherently flawed because it required a sex offender to notify the departure state of any change in location. The Tenth Circuit, however, determined that this was only partially true — sex offenders have a continuing requirement to update their registration, and if the offender does not re-register within three days of departure, the offender has the duty to notify the departing location of his departure.

The Tenth Circuit affirmed the district court’s judgment.

Colorado Supreme Court: “Actual Notice” Means “Actual Knowledge” Under UMDDA

The Colorado Supreme Court issued its opinion in People v. McKimmy on Monday, October 27, 2014.

Uniform Mandatory Disposition of Detainers Act—Actual Notice.

The Supreme Court clarified the process for invoking one’s rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA or Act), CRS §§ 16-14-101 to -108. Even when prisoners do not strictly comply with the UMDDA’s requirements, the Court previously determined that they invoke their rights under the Act if (1) their request substantially complies with the Act’s requirements, and (2) the prosecution receives “actual notice” of their request.

Here, the Court held that, for purposes of substantial compliance under the UMDDA, “actual notice” means “actual knowledge.” Therefore, the Court reversed the judgment of the court of appeals and remanded the case with instructions to return the case to the trial court for further fact-finding. Specifically, the trial court should determine: (1) when the prosecution gained actual knowledge of defendant’s UMDDA requests in each of his cases, at which point defendant would have effectively invoked his rights under the Act; and (2) whether any UMDDA violations subsequently occurred.

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

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

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

Colorado Court of Appeals: Insufficient Findings on Batson Challenge Warranted Reversal

The Colorado Court of Appeals issued its opinion in People v. Beauvais on Thursday, October 23, 2014.

Jury Selection—Peremptory Challenge—Batson Challenge.

A jury found Beauvais guilty of one count of stalking under CRS § 18-3-602(1)(c) after she repeatedly called, e-mailed, and sent text messages to a man she met on the Internet. On appeal, she contended that the trial court committed reversible error in the jury selection process, and that CRS § 18-3-602)(1)(c) is unconstitutional.

Beauvais first contended that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender [Batson v. Kentucky, 476, U.S. 79 (1986)]. The record refutes several of the prosecutor’s explanations for excusing potential jurors. The prosecutor did not attempt to excuse several males on the panel that had the same characteristics for which the prosecutor claimed he excused the female jurors. However, the prosecutor also claimed that each of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. However, the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Because the record was insufficient to determine whether the trial court’s ruling was clearly erroneous, the matter was remanded to the trial court for additional findings.

Beauvais next contended that, on its face, CRS § 18-3-602(1)(c) (the stalking statute)is unconstitutionally vague and overbroad. The Colorado Supreme Court and a division of the Court of Appeals have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. Therefore, Beauvais’s facial challenge was rejected.

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