May 24, 2013

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Tenth Circuit: 28 U.S.C. § 2255 Motion Challenging Federal Sentence Not Second Motion So Prior Authorization to File Not Required

May 17, 2013 by Leave a Comment

The Tenth Circuit published its opinion in In re Weathersby on Tuesday, May 14, 2013.

Keith V. Weathersby filed a motion for authorization to file a second or successive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Weathersby was convicted of two federal drug offenses in March 2002 and sentenced to 292 months in prison. The Tenth Circuit affirmed his conviction and sentence on direct appeal. He then filed a § 2255 motion for relief that the district court dismissed as untimely. After filing other motions and appeals, Weathersby alleged he successfully attacked six state court convictions that were used in calculating his federal sentence and sought to file another § 2255 motion challenging his federal sentence.

The Antiterrorism and Effective Death Penalty Act (AEDPA) limits second or successive motions under § 2255, requires that a defendant obtain circuit-court authorization before filing a second or successive motion, and limits the grounds for authorization. The Tenth Circuit found persuasive the reasoning of the Eleventh Circuit in a similar case and held that if the state court did not vacate Weathersby’s convictions until after his first § 2255 proceeding was concluded, this motion would not be a second motion. Given that the basis for challenging his federal sentence did not exist until the state court vacated the sentences, his proposed § 2255 claim did not exist at the time of the first § 2255 motion. The court dismissed the motion for authorization as unnecessary.

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Colorado Court of Appeals: Defendant Violated Terms of Bonds When He Spat in the Face of a Police Officer

May 13, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Luna, Jr. on Thursday, May 9, 2013.

Assault—Evidence—Violation of Bond—Jury Questions.

Defendant Arturo Luna, Jr. appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of second-degree assault (in jail/bodily fluids), two counts of violating his bond conditions, resisting arrest, and disorderly conduct. The judgment was affirmed.

When questioned by police regarding an alleged assault, Luna acted aggressively, spat in the direction of the officers, and then spat in the face of one of the officers. Luna was found guilty of all charged counts.

On appeal, Luna asserted that insufficient evidence existed to support his convictions of violating the terms of his bonds, because the prosecution did not present evidence to prove that his bonds were in effect at the time of the events giving rise to his conviction. Luna posted bonds in relation to two charges, one on August 28, 2009 and another February 15, 2010. The conditions of both bonds prohibited any further violations of the law. The prosecution was required to prove beyond a reasonable doubt that the terms of the bonds were in effect at the time of the alleged illegal conduct. The prosecution presented circumstantial evidence, which when taken in the light most favorable to the prosecution, established that the bonds were in effect at the time of the charged conduct. Accordingly, the jury could reasonably infer that the bonds continued to be in effect at the time of the charged conduct.

Luna also argued that the trial court erred by issuing a misleading answer to jury questions, which asked whether the bonds were in effect on the date of the offense. In response to the jury’s question as to whether the bonds were still in effect, the trial court correctly declined to address the merits of the questions, and instead referred the jury back to the elements of each charge. Accordingly, the trial court did not commit plain error in responding to the jury’s questions.

Luna further argued that there was insufficient evidence to support his conviction of second-degree assault, because the prosecution did not prove that he was “lawfully confined in a detention facility” at the time of the assault. CRS § 18-3-203(1)(f.5) applies to an individual lawfully confined in a vehicle who is lawfully held in custody and whose victim is a law enforcement officer. Therefore, the prosecution presented sufficient evidence to support Luna’s conviction for second-degree assault.

Summary and full case available here.

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Colorado Court of Appeals: Defendant’s Daughter Rightly Named as Protected Person Under Mandatory Protection Order Despite Dismissal of Charge

May 13, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Sterns on Thursday, May 9, 2013.

Mandatory Protection Order—Victim—Plea Agreement—Sentencing Range.

Defendant appealed from the trial court’s mandatory protection order and sentence. The order and sentence were affirmed.

Defendant was charged with three counts of solicitation to commit second-degree murder for contracting to have his daughter, his ex-wife, and her current husband killed. Before trial, defendant and the prosecution reached a plea agreement in which defendant agreed to plead guilty to an added count of second-degree attempted murder, with his ex-wife and her husband as the only named victims, as well as a crime of violence sentence enhancer, in exchange for dismissal of all other charges. At the plea hearing, the trial court accepted defendant’s plea and entered a mandatory protection order, naming defendant’s ex-wife, her husband, and defendant’s daughter as protected persons.

On appeal, defendant contended that the trial court lacked statutory authority to name his daughter as a protected person in the mandatory protection order. Adding or dropping a single charge within a multi-charge case does not dispose of the case. Thus, when the trial court dismissed the charge involving defendant’s daughter, it did not thereby dispose of the action against defendant. The action continued pursuant to the plea agreement. Accordingly, the trial court’s mandatory protection order properly included defendant’s daughter.

Defendant also contended that the trial court abused its discretion by sentencing him to a twenty-four-year term of imprisonment. Because this sentence falls within the range agreed to under defendant’s plea agreement, defendant is not entitled to appellate review of this issue.

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HB 13-1323: Requiring Clarification by Court if Mittimus Does Not Specify Whether Sentences to be Served Consecutively or Concurrently

May 8, 2013 by Leave a Comment

On April 29, 2013, Rep. Claire Levy and Sen. Lucia Guzman introduced HB 13-1323 - Concerning Requiring the Department of Corrections to Obtain Clarification if a Court-Issued Mittimus Omits Instruction Concerning Whether a Defendant’s Sentences are to be Served Consecutively or Concurrently. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill states, as amended, if the state department of corrections (department) receives custody of a defendant who is sentenced to serve two or more terms of incarceration in the custody of the department, and any mittimus concerning the defendant’s sentence or sentences does not clearly indicate whether the defendant’s sentences are to be served consecutively or concurrently, the department shall seek clarification in writing from the court regarding the defendant’s sentence or sentences. The department shall seek such clarification not more than two business days after the department’s receipt of the mittimus.

A court that receives a written request for clarification from the department shall respond to the department and clarify the mittimus in writing not more than two business days after receiving the request. The court shall provide a copy of the court’s response to the counsel of record for the prosecution and the defense.

Until the department obtains clarification of the mittimus from the court, the department shall not make any determination of the defendant’s parole eligibility date or mandatory release date.

Before remitting any mittimus to the department of corrections sentencing a defendant to the custody of the department, a court shall confirm that the mittimus properly reflects the sentencing order of the court and includes all necessary information regarding the sentence and any information as to whether a sentence is to be served concurrent with, or consecutive to, the sentence for any other count or any other case.

The bill was introduced in the House on April 29 and passed out of the Judiciary Committee on April 30. The House approved the bill on 2nd Reading May 2 and the 3rd Reading on May 3. The bill was introduced in the Senate on May 3 and passed out of the Judiciary Committee and 2nd Reading on the same day. The bill awaits 3rd Reading in the Senate on Monday, May 6.

Since this summary, the bill passed Third Reading in the Senate and will be sent to the governor for signature.

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Tenth Circuit: District Court Did Not Err in Denying Deputy’s, Sheriff’s and Warden’s Motion to Dismiss § 1983 Action Based on Qualified Immunity

May 7, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Wilson v. Montano on Friday,  May 3, 2013.

On December 18, 2010, Deputy Montano arrested Michael Wilson without a warrant. Montano asked Deputy Fred Torres to transport Wilson to the Valencia County Detention Center (“VCDC”). Prior to booking Wilson into the VCDC, Montano prepared a criminal complaint listing the charge against Wilson as a misdemeanor offense. Neither Montano nor Torres ever filed the criminal complaint in a court with jurisdiction or brought Wilson before a judicial officer for a probable cause determination during the time he was held at the VCDC. Eleven days after his arrest, Wilson was released from the VCDC by order of a magistrate judge. In the order, the magistrate noted no complaint had been filed. On January 4, 2010, after Wilson was released, Montano filed the misdemeanor criminal charge. The district attorney’s office dismissed the charge due to insufficient evidence.

Wilson brought suit under 42 U.S.C. § 1983. Wilson alleged the deputies deliberately detained him without filing a criminal complaint or bringing him before a judicial officer for a probable cause determination. He further asserted that, prior to his detention, there were numerous incidents in which VCDC held individuals without filing criminal charges or otherwise allowing them to appear before a magistrate judge. Wilson alleged his detention was the result of a policy established by Warden Chavez in which individuals were routinely held without the filing of criminal charges. Wilson made substantially similar claims against Sheriff Rivera.

Defendants jointly filed a motion to dismiss Wilson’s claims, arguing Wilson’s complaint failed to state a claim against any of the defendants in their individual capacities and each of the defendants was entitled to qualified immunity. The district court denied the motion, and this appeal followed.

To survive a motion to dismiss based on qualified immunity, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.  A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This court requires a plaintiff to allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.

Appellants do not dispute that Wilson had a Fourth Amendment right to a prompt probable cause determination, and that such a right was clearly established at the time of Wilson’s detention.  Appellants argue they are entitled to qualified immunity because there is no clearly established law delineating which of them had the obligation to provide Wilson with a probable cause hearing.

The Tenth Circuit rejected this argument and examined the allegations in the complaint as to each individual appellant to determine whether a plausible claim for relief was stated. The Court considered  New Mexico state law insofar as it bore on the scope of each appellant’s responsibility to ensure a prompt probable cause determination.

Wilson’s complaint lacked sufficient allegations to state a plausible claim that Torres was personally involved in the violation of his right to a prompt probable cause determination. The district court therefore erred in denying the motion to dismiss as to Torres. The complaint alleged sufficient personal involvement on Montano’s part to state a plausible claim for under § 1983, and the district court correctly denied appellants’ motion to dismiss as to Montano.

New Mexico law charged Sheriff Rivera with the responsibility of running the VCDC and ensuring arrestees received a prompt probable cause determination. Under New Mexico law, both Warden Chavez and Sheriff Rivera were responsible for the policies or customs that operated and were enforced by their subordinates and for any failure to adequately train their subordinates.

The complaint alleged Warden Chavez established a policy or custom of holding citizens without pending criminal charges until the court filed orders of release sua sponte. The complaint further alleged Warden Chavez’s policy of holding citizens without court orders caused the violation of Wilson’s Fourth Amendment right to a prompt probable cause determination. That is, because Warden Chavez failed to require the filing of written complaints, detainees, including Wilson, were held at the VCDC without receiving prompt probable cause determinations. The complaint also alleged Warden Chavez inappropriately trained his employees, which led to the violation of Wilson’s right to a prompt probable cause determination. These allegations, taken as true, sufficiently established Warden Chavez promulgated policies that caused the constitutional harm of which Wilson complains, i.e., his prolonged detention without a probable cause hearing.

The complaint also alleged sufficient facts to establish Warden Chavez acted with the requisite mental state. To establish a violation of § 1983 by a defendant-supervisor, the plaintiff must establish, at minimum, a deliberate and intentional act on the part of the supervisor to violate the plaintiff’s legal rights. The complaint alleged Warden Chavez acted with deliberate indifference to routine constitutional violations occurring at the VCDC. This allegation is supported by Wilson’s assertions that there were numerous prior occasions in which individuals were subject to prolonged warrantless detention.

The allegations in the complaint as to Sheriff Rivera are similar to those against Warden Chavez. As with Warden Chavez, these allegations, if proven, are sufficient to establish Sheriff Rivera’s individual liability for Wilson’s unconstitutional detention, and the district court did not err in denying the motion to dismiss as to Sheriff Rivera.

The district court erred in denying the motion to dismiss as to Torres. The district court correctly denied the motion to dismiss as to Montano, Chavez, and Rivera.

AFFIRMED in part and REVERSED in part.

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Tenth Circuit: District Court Lacked Jurisdiction to Modify Defendant’s Sentence Under Fed. R. Crim. P. 35(a)

May 7, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.

In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.

Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.

More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.

On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.

Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.

The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.

In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.

The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).

In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”

Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.

Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.

Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.

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Colorado Court of Appeals: Death Row Inmate’s Challenge to Procedure for Lethal Injection Denied

May 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Dunlap v. Colorado Department of Corrections on Thursday, April 25, 2013.

Death by Lethal Injection—Administrative Procedure Act—CRS § 17-1-111.

Nathan J. Dunlap, a death row inmate in the custody of the Colorado Department of Corrections (DOC), appealed the district court’s judgment denying his challenge to the DOC’s regulation establishing the procedure for carrying out the death penalty by lethal injection. The judgment was affirmed.

Colorado law provides for imposition of the death penalty by lethal injection. The implementation of such a sentence is entrusted to the DOC. The Executive Director promulgated Administrative Regulation 300-14 (regulation), effective June 1, 2011, “to establish procedures, consistent with Colorado statutes, governing death penalty executions.”

Dunlap was sentenced to death for murdering four people at a Chuck E. Cheese restaurant in Aurora in 1993. He filed a complaint under § 24-4-106(4) of the Administrative Procedure Act (APA), claiming that the DOC had violated the APA in promulgating this regulation. Specifically, he alleged that the DOC had failed to comply with the rule-making procedures of § 24-4-103.

Defendants moved to dismiss under CRCP 12(b)(1) and (5). The subject matter argument was based on § 17-1-111, which exempts the regulation from the procedural requirements of § 24-4-103 of the APA. The district court granted the motion to dismiss for lack of subject matter jurisdiction.

On appeal, Dunlap argued that § 17-1-111 should not apply because the Executive Director’s statutory authority to administer the death penalty is found in Title 18 of the Colorado Revised Statutes, not Title 17. The Court of Appeals disagreed. The fact that the source of the authority to carry out a death sentence is found in Title 18 is not dispositive of whether the regulation relates to a matter within Title 17.

Dunlap also argued that the phrase “placement, assignment, management, discipline, and classification of inmates” in § 17-1-111 has nothing to do with the implementation of a death sentence. The Court disagreed. In the context of Title 17, this language clearly encompasses determinations concerning the conditions under which sentences served by DOC inmates are to be carried out. The judgment was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Defendant’s Conviction Affirmed But Case Remanded for Longer Sentence

April 30, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lahr on Thursday, April 25, 2013.

Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spototest for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Whose Conviction was Overturned is Entitled to Refund of Restitution Paid

April 29, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Madden on Thursday, April 25, 2013.

Refund of Restitution—Overturned Conviction.

Defendant Louis Madden appealed the district court’s order denying his request for a refund of restitution. The order was reversed and the case was remanded.

Madden was convicted of attempted patronizing of a prostituted child and attempted third-degree sexual assault by force, and he was ordered to pay restitution in the amount of $910. The Supreme Court ultimately reversed his conviction for attempted patronizing of a prostituted child, and the attempted third-degree sexual assault conviction was later vacated due to constitutionally ineffective trial counsel.

Madden argued that the trial court erred in denying his request for a refund of the restitution paid after his conviction was vacated, and the Court of Appeals agreed. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail to prove on remand the defendant’s guilt of the charged crimes beyond a reasonable doubt. Therefore, Madden was entitled to a refund of the restitution that he paid in connection with his now overturned conviction, and he was permitted to request a refund by filing a motion in this case. Therefore, the order was reversed and the case was remanded to the district court to award Madden a refund of the restitution that he paid in this case.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Who Committed Non-Homicide Crimes as a Juvenile Sentenced Correctly Because Opportunity Exists for Parole

April 17, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lucero Jr. on Thursday, April 11, 2013.

Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole.

Defendant appealed the trial court’s order denying his Crim.P. 35(b) post-conviction motion seeking reduction of his aggregate eighty-four-year sentence for non-homicide crimes he committed as a juvenile. The order was affirmed.

In 2008, defendant was convicted of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The sentences for all were aggravated as crimes of violence. Defendant was 15 at the time of the incident giving rise to his convictions, but he was charged and tried as an adult.

On appeal, defendant asserted that his sentence violates the Cruel and Unusual Punishments Clause of the federal constitution’s Eighth Amendment and article II, § 20 of the Colorado Constitution. In Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010),the U.S. Supreme Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his sentence constitutes a de facto LWOP sentence. Defendant will be eligible for parole when he is 57 years old. Because defendant’s sentence provides a meaningful opportunity for release, however, it does not amount to LWOP.

Summary and full case available here.

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Colorado Court of Appeals: Retroactive Application of Supreme Court Decision Prevents Life Sentence for Juvenile Offender

April 16, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Rainer on Thursday, April 11, 2013.

Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole—Retroactive Application.

Defendant Atorrus Leon Rainer appealed the trial court’s order denying his Crim.P. 35(c) motion asserting that his 112-year sentence was unconstitutional. The order was reversed, defendant’s sentence was vacated, and the case was remanded for resentencing.

In 2000, when he was 17 years old, Rainer burglarized an apartment. During the incident, he shot two victims multiple times with a handgun, seriously injuring them and leaving them in critical condition. Rainer was arrested and was charged and tried as an adult in the district court. Following a jury trial in 2001, the jury found Rainer guilty of two counts of attempted first-degree murder, two counts of first-degree assault, one count of first-degree burglary, one count of aggravated robbery, and sentence enhancement counts for crimes of violence.

On appeal, defendant contended that his sentence violates the Cruel and Unusual Punishments Clause of the federal constitution’s Eighth Amendment. Defendant filed his Crim.P. 35(c) motion after the Supreme Court held in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010), that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his 112-year sentence constitutes a de facto LWOP sentence because his life expectancy is between 63.8 years and 72 years (based on Center for Disease Control life expectancy tables).

The rule announced in Grahamis a new substantive rule that must be applied retroactively to all cases involving juvenile offenders under the age of 18 at the time of the offense, including those cases on collateral review. Therefore, the trial court erred when it found that Graham did not retroactively apply to defendant’s sentence.

In addition, although defendant’s motion was untimely, it was based on the new substantive rule of law announced in Graham. Therefore, he established justifiable excuse, his claim was not successive, and his motion was considered on its merits.

Finally, defendant’s aggregate sentence did not offer him, as a juvenile non-homicide offender, a “meaningful opportunity to obtain release” before the end of his expected life span. Thus, it constituted the functional equivalent of a life sentence without parole and was unconstitutional under Grahamand its reasoning.

Summary and full case available here.

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Colorado Court of Appeals: No Violation of Defendant’s Speedy Trial Rights When UMDDA Request Improperly Filed and Counsel Requested Continuances

April 15, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Roberts III on Thursday, April 11, 2013.

Uniform Mandatory Disposition of Detainers Act—Speedy Trial.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act (COCCA); conspiracy to commit computer crime (two counts); conspiracy to commit theft; conspiracy to commit forgery; computer crime (two counts); theft (four counts); forgery (seventeen counts); and possession of a forged instrument (two counts). The judgments were affirmed.

Defendant contended that his convictions must be vacated because he was not brought to trial within the period allowed by the applicable version of the Uniform Mandatory Disposition of Detainers Act (UMDDA). However, defendant improperly filed his UMDDA request while represented by counsel and improperly served this request. The court and prosecutor did not receive notice of defendant’s UMDDA request until November 10, 2005. Consequently, defendant’s 180-day UMDDA period commenced that day.

Although defendant did not waive his UMDDA rights, the time for bringing defendant to trial was properly extended beyond the May 9, 2006 date as a result of two continuances requested by his attorneys. These continuances, which did not require the personal consent of defendant, were necessary to protect defendant’s constitutional right to effective assistance of counsel, and the length of the continuances were proper, as well. Therefore, there was no violation of defendant’s UMDDA or speedy trial rights.

Summary and full case available here.

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