October 16, 2017

Colorado Court of Appeals: District Court Did Not Err in Summarily Denying Defendant’s Petition for Postconviction Relief

The Colorado Court of Appeals issued its opinion in People v. Phipps on Thursday, December 30, 2016.

Sexual Assault on a Child—Ineffective Assistance of Counsel.

Police discovered child pornography on Phipps’s computer by using LimeWire, a peer-to-peer file sharing application. Phipps pleaded guilty to sexual assault on a child and was sentenced to an indeterminate prison term of 17 years to life. He sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Phipps asserted that the district court was required to hold a hearing on his motion and erred in rejecting his claims of ineffective assistance of counsel. A district court may deny a post-conviction motion without a hearing where allegations are bare and conclusory, directly refuted by the record, or, even if proven true, would fail to establish one of the prongs of the Strickland test to determine whether there has been ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must establish that (1) counsel’s performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. To satisfy the prejudice prong, a defendant must show that there is a reasonable probability that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Phipps argued that his counsel should have challenged the validity of the initial, remote search of his computer. Phipps claimed that he did not know that the files stored on his computer were publicly accessible through LimeWire. Consistent with other courts that have considered the matter, the Colorado Court of Appeals held that Phipps had no reasonable expectation of privacy in the files he made available for public viewing through LimeWire. Thus his counsel’s failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.

Phipps also argued that his counsel was ineffective when he waived the preliminary hearing. This decision was a matter of strategy. In addition, the evidence of Phipps’s guilt was overwhelming. The waiver of the preliminary hearing could not have constituted ineffective assistance of counsel.

Phipps further argued that his counsel failed to investigate several aspects of his case. Even if this claim were true, it fails the prejudice test. Phipps admitted to possessing child pornography on his computer and he produced a video of him sexually assaulting his underage stepdaughter.

Phipps next contended that his counsel misadvised or failed to advise him of the consequences of his guilty plea. The court carefully examined each of Phipps’s contentions in this regard and found them all without merit.

Lastly, Phipps argued that the district court “redacted” his Crim. P. 35(c) motion and the transcript of his sentencing hearing was falsified. The court found no evidence to support these arguments.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statements in Police Interviews Were Not Voluntary and Should Not Have Been Admitted

The Colorado Court of Appeals issued its opinion in People v. Springsted on Thursday, December 30, 2016.

Statements—Police Interviews—Involuntary.

In this murder case, the prosecution presented evidence that the victim was shot by two people. The primary issue at trial was the identity of the second shooter. The shooting occurred inside the home of codefendant Malory (Popeye), who was the first shooter. Springsted was present during the incident. Within an hour of the shooting, Springsted was interviewed by police in a police interview room. Over the next four days, the police interviewed Springsted five more times over the course of more than 11 hours. While some evidence implicated Springsted as the second shooter, the serological evidence implicated only Popeye as a shooter. Springsted was convicted of one count of first degree murder, one count of conspiracy to commit first degree murder, and two counts of violent crime.

On appeal, Springsted challenged the court’s admission of his statements from the police interviews, alleging that they were obtained involuntarily. When a defendant seeks to suppress statements as involuntary, the prosecution must prove by a preponderance of the evidence that the statements resulted from the maker’s free and unconstrained choice. After a careful review of the totality of the circumstances of the more than 11 hours of videotape, the Colorado Court of Appeals determined that the statements from the first two interviews were voluntary and admissible. However, Springsted’s statements in the remaining interviews were involuntary and should have been suppressed. Because there was a reasonable possibility that the statements from these interviews contributed to Springsted’s convictions, the error was not harmless.

The judgments were reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Police Department Can Be “Victim” For Restitution Purposes

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, December 15, 2016.

Murder—Officer—Restitution—Victim—Workers’ Compensation Benefits—Beneficiaries.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Two Different Sentence Enhancements Can Be Applied Together

The Colorado Supreme Court issued its opinion in People v. Adams on Monday, November 21, 2016.

Curtis Adams was found guilty of assaulting a corrections officer. Because he committed that crime while serving another sentence, the district court imposed an aggravated sentence of 12 years to be served consecutively with Adams’ other remaining sentences. Thus, Adams’ sentence was enhanced twice: once by the aggravated range and once by required consecutive sentencing.

Adams appealed, and the court of appeals concluded Adams was not subject to the term of years sentence. The court of appeals followed a decision of a different panel and determined that the aggravated range did not apply because the second degree assault statute contained its own enhancement—the requirement for consecutive sentencing. The court of appeals affirmed Adams’ conviction but reversed his sentence.

The People appealed, contending the trial court was required to apply both enhancements by the statutory language. The supreme court analyzed the statutory text and determined that because the different aspects of the sentence could be applied together without conflict, both applied. Adams argued that the consecutive sentencing requirement applies to the exclusion of the aggravated range, but the supreme court disagreed.

The supreme court reversed the part of the court of appeals’ decision vacating the sentence and remanded for further proceedings consistent with its opinion.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Within Statutory Authority to Sua Sponte Set Sentencing Hearing

The Colorado Court of Appeals issued its opinion in People v. Reyes on Thursday, June 30, 2016.

Revocation of Probation—Resentencing—Hearing—Separation of Powers—Sua Sponte—Equal Protection—Discretion.

Reyes was serving a sentence. A revocation of probation complaint was filed, Reyes entered into a plea agreement, and the district court resentenced him to four years in community corrections. Reyes was subsequently terminated from the community corrections program for violating its policies. The court held a resentencing hearing sua sponte and resentenced Reyes to five years in the custody of the Department of Corrections.

On appeal, Reyes contended that the court lacked the statutory authority to set a resentencing hearing without a request from one of the parties. The district court can increase an offender’s sentence as long as it holds a resentencing hearing, and there is no statutory requirement that one of the parties must request that hearing.

Reyes also contended that the sua sponte hearing violated separation of powers because the prosecutor did not request the hearing. Discretion to request a resentencing hearing does not lie solely with the prosecutor, and the district court did not violate separation of powers principles.

Additionally, Reyes argued that the court violated his equal protection right by singling him out from other defendants and setting a resentencing hearing just because it disagreed with the prior judge’s four-year sentence. The Court of Appeals found that the court’s decision to set a resentencing hearing was rationally related to a legitimate governmental objective and did not violate Reyes’s right to equal protection.

Finally, Reyes asserted that even if the court did not violate his equal protection right, it abused its discretion by setting the resentencing hearing because its decision was manifestly arbitrary and abrogated the previous judge’s sentence, which was the law of the case. Here, the court’s decision to set a hearing was rationally based on Reyes’ particular circumstances, and the court did not abuse its discretion.

The five-year sentence was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Interrogation in Open Kitchen with Defendant’s Husband Present was Non-Custodial

The Colorado Court of Appeals issued its opinion in People v. Travis on Thursday, June 16, 2016.

Assault—Interview—Miranda—Motion to Suppress—Request for New Counsel—Continuance—Prosecutorial Misconduct.

Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.

On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Miranda rights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.

Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.

Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

The judgment was affirmed in part and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deferred Judgment Is Not Final for Purposes of Appeal

The Colorado Court of Appeals issued its opinion in People v. Sosa on Thursday, June 16, 2016.

Deferred Judgment—Crim. P. 35(c)—Withdrawal of Guilty Plea—Crim. P. 32(d)—Final Judgment—Appeal.

Defendant entered into a plea agreement to a deferred judgment. Later, he filed a motion to withdraw his guilty pleas under Crim. P. 32(d) and 35(c).

Regarding the appeal of the district court’s denial of defendant’s Crim. P. 32(d) motion, no final, appealable judgment exists because defendant’s deferred judgment has not yet been revoked and he has not been sentenced. Therefore, defendant’s appeal of his Crim. P. 32(d) motion was dismissed, without prejudice, for lack of jurisdiction.

Regarding his appeal of the denial of his Crim. P. 35(c) motion, defendant raised no argument on appeal. Therefore, this argument was not considered and the district court’s order denying defendant’s Crim. P. 35(c) motion was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: At-Risk Status of Victim Need Not Be Known to Defendant to Apply

The Colorado Court of Appeals issued its opinion in People v. Nardine on Thursday, June 2, 2016.

C.R.S. § 18-6.5-103(7)(c)—Mens Rea Element—At-Risk Juvenile—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

Nardine was convicted of unlawful sexual conduct on an at-risk juvenile.

On appeal, Nardine contended that C.R.S. § 18-6.5-103(7)(c) has an implied mens rea element that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The court of appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” in order to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.

Nardine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction. Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.

Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person,” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Aggravated Sentence Upheld Where Jury Would Have Found Supporting Facts

The Colorado Court of Appeals issued its opinion in People v. Mountjoy on Thursday, June 2, 2016.

Consecutive Sentencing—Aggravated Range—Jury—Evidence.

Defendant was convicted of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively.

On appeal, defendant first contended that each of his aggravated range sentences violated Apprendi v. New Jersey and Blakely v. Washington. Answering a novel question, the court of appeals determined that if a trial court sentences in the aggravated range based on facts not found by a jury, the sentence may be affirmed based on harmless error if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts had the jury been requested to do so by special interrogatory. Based on the overwhelming evidence of guilt in this case, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences, and therefore any error was harmless beyond a reasonable doubt.

Defendant also contended that the trial court abused its discretion in sentencing him consecutively on each conviction. A trial court may impose either concurrent or consecutive sentences where a defendant is convicted of multiple offenses. But when two or more offenses are supported by identical evidence, the sentences must run concurrently. Here, separate acts supported defendant’s convictions for manslaughter and illegal discharge of a weapon. Further, the facts supporting the tampering with evidence conviction did not involve the same acts as either the illegal discharge or manslaughter convictions. Because the record shows that each conviction was supported by distinct evidence, the trial court did not abuse its discretion in imposing consecutive sentences.

The sentences were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Community Corrections Resident Has Little to No Expectation of Privacy

The Colorado Court of Appeals issued its opinion in People v. Triplett on Thursday, June 2, 2016.

Residential Community Corrections Facility—Search—Reasonable Expectation of Privacy—Fourth Amendment—Fifth Amendment—Voluntary Statements.

Triplett was serving a sentence at a residential community corrections facility. A community justice officer conducted an unscheduled search of Triplett’s clothing while he was showering and discovered a vial of drugs. Triplett was convicted of possession of a controlled substance.

On appeal, Triplett contended that the trial court erred in denying his motion to suppress  (1) the drugs found in his clothing, because this find resulted from an unconstitutional search, and (2) his statements to the police officer who questioned him about the drugs, because the statements should have been suppressed as “fruit of the poisonous tree” and were involuntary. The court of appeals found that the search was proper because, as an inmate, Triplett had no reasonable expectation of privacy in his clothing while at the residential community corrections facility, and the search was reasonable under the Fourth Amendment. Because the search was reasonable, Triplett’s argument that the statements he made to the police officer were fruit of the poisonous tree failed.

Alternatively, Triplett contended that his statements to the police officer should have been suppressed under the Fifth Amendment as involuntary under the totality of the circumstances. The court disagreed, finding the statements were voluntary and admissible.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.