June 27, 2017

Colorado Supreme Court: Guilty Plea Cannot be Withdrawn Once Deferred Judgment Completed

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Eloisa Roman pleaded guilty to criminal impersonation and received a two-year deferred judgment. She successfully completed her deferred judgment, and her plea was withdrawn and the case was dismissed. In 2013, she filed a motion under Crim. P. 32(d) seeking to withdraw her plea. The trial court denied her motion, and the court of appeals reversed, holding that Rule 32(d) authorized the district court to withdraw Roman’s previously withdrawn plea. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Roman’s plea. Accordingly, the court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Successful Completion of Terms of Deferred Judgment Automatically Withdraws Guilty Plea by Operation of Law

The Colorado Supreme Court issued its opinion in Flores-Heredia v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim. P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jesus Flores-Heredia pleaded guilty to inducement and conspiracy to sell and possess with intent to sell a schedule II controlled substance, and he received a one-year deferred judgment in 1990. Although he successfully completed the deferred judgment in 1991, no court ever ordered his plea withdrawn or the action against him dismissed pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment]” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2014, Flores-Heredia filed a motion to withdraw his plea pursuant to Crim. P. 32(d). The district court concluded that because no order had been entered withdrawing Flores-Heredia’s plea and dismissing the charge under C.R.S. § 18-1.3-102(2), it would enter such an order. The court then denied the Rule 32(d) motion, concluding that it could not withdraw the plea because the plea had already been withdrawn.

The supreme court held that C.R.S. § 18-1.3-102(2) requires that a plea be deemed withdrawn and the charge dismissed once the deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law as mandated by C.R.S. § 18-1.3-102(2). Therefore, Flores-Heredia’s plea was withdrawn by operation of law when he successfully completed the deferred judgment in 1991. Further, for the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Flores-Heredia’s plea. Accordingly, the Court affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Costs of SANE Exam Extraordinary and Therefore May Be Recovered as Restitution

The Colorado Supreme Court issued its opinion in Teague v. People on Monday, June 5, 2017.

Criminal Law—Sentencing and Punishment—Costs Taxable Against Defendant.

In this consolidated opinion, the supreme court addressed whether sexual offenders must shoulder the cost of their victims’ forensic medical examinations as criminal restitution. By statute, such restitution may include “extraordinary direct public . . . investigative costs.” The court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is “extraordinary” for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Encounter with Police Deemed Consensual Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Shoen on Monday, June 5, 2017.

Fourth Amendment—Consensual Encounters.

In this case, the Supreme Court considered whether defendant’s encounter with

police, during which he confessed to possessing a controlled substance, was consensual or whether it constituted an impermissible seizure under the Fourth Amendment. The Court concluded that under the totality of the circumstances, the encounter was consensual. Accordingly, the Court reversed the trial court’s order suppressing evidence from the encounter, and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy ofThe Colorado Lawyer .

Colorado Supreme Court: Miranda Advisement Adequately Conveyed to Defendant Right to Attorney

The Colorado Supreme Court issued its opinion in Carter v. People on Monday, June 5, 2017.

Criminal Law—Miranda Warnings—Jury Deliberations.

Carter petitioned for review of the court of appeals’ judgment in People v. Carter, 2015 COA 36, ___ P.3d ___, which affirmed, among others, his conviction of conspiracy to commit first-degree murder. With regard to a videotaped interrogation by the police, the district court denied a motion to suppress defendant’s statements, rejecting all of his Fifth and Fourteenth Amendment claims, including his assertion that he had not been adequately advised, as required by Miranda v. Arizona, of his right to have an attorney present during interrogation. It also denied defendant’s motion to limit access to that videotape during jury deliberations. In a fractured opinion, in which all three members of the division of the court of appeals wrote separately, the intermediate appellate court affirmed with regard to both of these assignments of error.

The supreme court affirmed the judgment of the court of appeals. Because the Miranda advisement of defendant reasonably conveyed that he had a right to consult with counsel, both before and during any interrogation by the police, and because the district court did not abuse its discretion in permitting the jury unrestricted access to both a video recording and transcript of defendant’s custodial interrogation, the trial court did not err.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Properly Denied Request for Lesser-Included-Offense Instruction where Lesser Offense Not Included

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, June 5, 2017.

Jury Instructions—Lesser Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second-degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo. App. July 3, 2014). The trial court denied Rock’s request for an additional, lesser included offense instruction on second-degree criminal trespass, on the ground that second-degree criminal trespass is not an included offense of second-degree burglary. The court of appeals reversed, concluding that in denying Rock’s request, the trial court erred and that the error was not harmless with regard to either of Rock’s convictions. The supreme court reversed the judgment of the court of appeals because second-degree criminal trespass is not a lesser included offense of second-degree burglary under the strict elements test, as clarified in Reyna-Abarca v. People, 2017 CO 15, 390 23 P.3d 816.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Aggravated Incest Statute Constitutional As Applied to Stepchildren of Common Law Marriages

The Colorado Court of Appeals issued its opinion in People v. Perez-Rodriguez on Thursday, June 1, 2017.

Sexual Assault—Minor—Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process—Admission—Involuntary.

Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.

On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.

Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.

Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.

Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence Insufficient to Prove Photographs were “Erotic Nudity” and “Sexually Exploitative Material”

The Colorado Court of Appeals issued its opinion in People v. Henley on Thursday, June 1, 2017.

Sexual Exploitation of a Child—Erotic Nudity—Objective Standard.

A detective searched defendant’s computer and found over 90 images that he thought were sexually exploitative. The charged images that were introduced into evidence  show fully or partially naked children (sometimes accompanied by adults) talking, walking, and standing outside, posing in costumes, or participating in activities like body painting and games. The prosecution was also allowed to introduce uncharged images as relevant to show context. A jury found defendant guilty of 22 counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than 20 items).

On appeal, defendant contended that his convictions should be vacated because there was insufficient evidence that the charged images are “sexually exploitative” as required to support a conviction under C.R.S. § 18-6-403(3) because they weren’t “erotic nudity.” Under C.R.S. § 18-6-403(3)(b.5), a person commits sexual exploitation of a child if he knowingly possesses or controls sexually exploitative material. “Sexually exploitative material” is any photograph depicting a child engaged or participating in, observing, or being used for explicit sexual conduct. Explicit sexual conduct includes, as relevant in this case, “erotic nudity.” The People conceded that the charged images don’t depict “erotic nudity” if viewed objectively. When viewed objectively, images that are not “erotic nudity” don’t become so merely because a particular person—one not involved in the creation or distribution of the images—looks at them for the purpose of personal sexual gratification. Therefore, evidence that defendant viewed the charged images for sexual gratification was insufficient to support defendant’s convictions.

The judgment was vacated.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Law of the Case Doctrine Does Not Prohibit Officer from Requesting Warrant for Previously Illegally Obtained Evidence

The Colorado Court of Appeals issued its opinion in People v. George on Thursday, June 1, 2017.

Sexual Contact—Minor—Search—Suppression—Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—C.R.S. § 16-10-301(3).

George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.

On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the court of appeals.

George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.

George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and C.R.S. § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Sentences Amounting to Life for Juvenile Not Unconstitutional

The Colorado Supreme Court issued its opinion in Lucero v. People on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment—Colorado Rules of Criminal Procedure 35(b) and 35(c).

The Colorado Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S.Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. Graham holds that the Eighth Amendment to the U.S. Constitution prohibits the sentence of life without parole for a juvenile non-homicide offender. Miller bars mandatory life without parole for any juvenile offender. Because life without parole is a specific sentence imposed for a single offense, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court thus held that Graham and Miller do not apply to Lucero’s aggregate term-of-years sentence. The court also considered whether the court of appeals erred by treating Lucero’s Rule 35(b) motion for sentence reduction as a Rule 35(c) motion challenging the constitutionality of his sentence. Because a court may properly characterize a mischaracterized issue, and Lucero argued that his sentence must be reduced under Graham to meet constitutional standards, the court held that the court of appeals did not err. Accordingly, the supreme court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Term-of-Years Sentences for Juvenile Held Constitutional

The Colorado Supreme Court issued its opinion in People v. Rainer on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Rainer’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Graham and Miller Do Not Apply to Aggregate Term-of-Years Sentences

The Colorado Supreme Court issued its opinion in Armstrong v. People on Tuesday, May 30, 2017.

Life without parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Armstrong’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.