October 22, 2014

SB 14-163: Revising Statutes Related to Sentencing of Persons Convicted of Drug Crimes to Conform to SB 13-250

On March 20, 2014, Sen. Pat Steadman introduced SB 14-163 – Concerning Clarifying Changes to Provisions Related to the Sentencing of Persons Convicted of Drug Crimes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly adopted SB 13-250, which created a new sentencing structure for drug crimes. The bill makes clarifying and conforming changes to the statutes based on last year’s legislation.

On March 26, the Judiciary Committee approved the bill and moved it to the Senate Consent Calendar for consideration on 2nd Reading.

Since this summary, the bill passed the Senate on second and third readings, with amendments on second reading. The bill was introduced in the House and assigned to the Judiciary Committee.

HB 14-1266: Adjusting Penalties for Certain Value-Based Crimes

On February 4, 2014, Rep. Beth McCann and Sen. Linda Newell introduced HB 14-1266 – Concerning the Penalties for Certain Value-Based Offenses. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Recently the penalties for theft changed based on the value of the loss. As introduced, the bill changes the penalties for criminal mischief, fraud by check, defrauding a secured creditor, and unauthorized use of a financial transaction device and computer crime. The changes create new threshold loss levels for a full range of penalties from a class 2 felony down to a petty offense or a low level misdemeanor.

On March 11, the Judiciary Committee amended the bill and referred it to the Appropriations Committee.

HB 14-1273: Repealing and Reenacting Certain Statutory Provisions Regarding Human Trafficking

On February 6, 2014, Rep. Beth McCann and Sen. Linda Newell introduced HB 14-1273 – Concerning Human Trafficking. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts, with amendments, existing provisions concerning human trafficking.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means another person for the purpose of coercing the other person to perform labor or services commits human trafficking for involuntary servitude. Human trafficking of an adult for involuntary servitude is a class 3 felony. Human trafficking of a minor for involuntary servitude is a class 2 felony.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means a person for the purpose of coercing the person to engage in commercial sexual activity commits human trafficking for sexual servitude. Human trafficking of an adult for sexual servitude is a class 3 felony. Human trafficking of a minor for sexual servitude is a class 2 felony.

In any prosecution for human trafficking of a minor for sexual servitude, it is not a defense that:

  • The minor consented to being sold, recruited, harbored, transported, transferred, isolated, induced, enticed, provided, received, obtained, or maintained by the defendant for the purpose of engaging in commercial sexual activity;
  • The minor consented to participating in commercial sexual activity; or
  • The defendant did not know the minor’s age or reasonably believed the minor to be 18 years of age or older, or that the minor or another person represented the minor to be 18 years of age or older.

Human trafficking of a minor for sexual servitude is a “sex offense against a child” for the purposes of the statute of limitations. This means that there is no limit to the period of time within which criminal proceedings may be initiated against an offender.

The bill creates the Colorado human trafficking council (council) within the department of public safety (department). The bill establishes the membership of the council and sets forth the duties of the council.

In any criminal prosecution for a human trafficking offense or for any offense relating to child prostitution, evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, or opinion evidence of the victim’s or a witness’s sexual conduct, or reputation evidence of the victim’s or a witness’s sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, may only by admitted under specific circumstances.

For a conviction for human trafficking for involuntary servitude or for human trafficking for sexual servitude, the court shall order restitution, if appropriate, even if the victim is unavailable to accept payment of restitution. If the victim is deceased or unavailable for 5 years after the date of the restitution order, the defendant shall pay the ordered restitution to the prostitution enforcement cash fund.

The bill makes conforming amendments.

On March 11, the Judiciary Committee amended the bill and referred it to the Appropriations Committee; the bill is scheduled to be heard by the Appropriations Committee on Friday, April 4 at 7:30 a.m.

Colorado Court of Appeals: Defendant’s Tattoo Evidence Relevant Under CRE 404(b)

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, March 27, 2014.

Trafficking in Children—Pimping—Prostitution—Res Gestae Evidence.

The victim, a 17-year-old girl, met defendant, an 18-year-old man, at a rave. They became friends and entered into an agreement whereby defendant would post advertisements offering the victim to provide massages with the ultimate goal for the victim to engage in sexual acts for money. The jury convicted defendant of trafficking in children, pimping an adult, pimping a child, pandering a child, and inducing child prostitution.

On appeal, defendant contended that the trial court erred when it denied his motion for judgment of acquittal on the trafficking in children charge because the evidence was not sufficient to support a conviction on that charge. To prove that a defendant has violated CRS § 18-3-502(1)(a), the prosecution must establish that the defendant sold a child, exchanged a child, bartered a child, or leased a child. Here, there was no evidence that defendant facilitated the transfer of the victim’s physical or legal custody to the callers. Because the evidence in the record does not support defendant’s conviction for trafficking in children, the conviction and sentence on that charge were reversed and vacated, and the case was remanded to the trial court to enter a judgment of acquittal on that charge.

Defendant also contended that the trial court erred when it admitted evidence about his tattoo. The victim’s friend testified that she was with defendant when he got the tattoo, which occurred during the same period when the victim and the friend were engaged in defendant’s prostitution ring. The friend stated that defendant told her the “MOB” tattoo meant “money over bitches.” The prosecution argued at trial that the term “money over bitches” showed that defendant had a “calculated plan to exploit” the victim and her friend, that he “put a price tag” on them, and that the phrase was “a sex trafficker’s motto.” Thus, the tattoo evidence was relevant, it was res gestaerather than CRE 404(b) evidence, and it was not unduly prejudicial. Accordingly, the trial court did not err when it admitted evidence about defendant’s tattoo.

Summary and full case available here.

Colorado Court of Appeals: No Error to Allow Prosecution to Add Charges on Remand to Trial Court

The Colorado Court of Appeals issued its opinion in People v. Cook on Thursday, March 27, 2014.

Sexual Crimes Against Children—Amendment of Information—Rape Shield Statute—Alternative Suspect Evidence—CRE 404(b)—Continuance.

Defendant was convicted and sentenced on multiple charges of sexual crimes against children. The victims were defendant’s daughter (C.C.), the daughter of his former girlfriend (S.G.), and other unnamed children.

On appeal, defendant contended that the trial court erred in permitting the prosecution to add fourteen counts on remand following his successful appeal. The trial court had discretion to permit the information to be amended before trial, and it did not err by adding counts based on new evidence that did not exist before the first trial. Therefore, the court properly allowed the additional counts to the information.

Defendant asserted that the trial court erred in denying his motion to pierce the rape shield statute, thereby denying him the opportunity to present evidence of an alternate suspect. Where a defendant seeks to introduce alternate suspect evidence to show motive and opportunity, there must be proof that the alternate suspect committed an act directly connecting him to the crime. Where the alternate suspect evidence seeks to challenge the identity of the perpetrator, the alternate suspect’s prior act or crime must be similar to the present crime to be relevant and admissible. The trial court did not abuse its discretion in concluding that defendant’s offer of proof fits no stated exception and was not otherwise relevant to a material issue in the case.

Defendant also contended that the trial court erroneously permitted the prosecution to introduce CRE 404(b) evidence related to acts for which he had been acquitted in Boulder County. The prosecution proffered the evidence from the Boulder County case of C.C.’s interviews in 2004 and the child pornography found on defendant’s computers in Boulder, to show proof of identity, absence of mistake or accident, common plan or scheme, and also to demonstrate that the purpose of defendant’s conduct was relevant to this case. Therefore, the admission of the evidence offered by the prosecution was proper.

Defendant’s assertion that the trial court erred in denying his motion for a fourth continuance was discounted. The expert was able to complete his report, and there was no indication that defense counsel was unprepared for trial. Hence, defendant showed no actual prejudice resulting from the court’s ruling. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: No Violation of Equal Protection to Charge Someone as Complicitor

On Thursday, March 27, 2014, the Colorado Court of Appeals issued its opinion in People v. Firm.

Aggravated Robbery—Complicitor—Equal Protection Clause.

On the day of the charged incident, defendant and his son went to the victims’ house to collect an unpaid debt. The victims refused to pay the debt. Defendant’s son lifted up his shirt in front of the victims to reveal that he had a gun under the shirt, and both defendant and his son threatened to kill the victims if they called the police. Defendant then took some of the victims’ personal property, ostensibly as collateral for the debt. Defendant was convicted of aggravated robbery under CRS §18-4-302(1)(b), among other crimes not relevant here.

In this appeal, defendant contended that his conviction and sentence for aggravated robbery resulted in his being denied equal protection of the law. It is not a violation of equal protection to apply CRS §18-4-302(1)(b) to a complicitor charged under that section. Further, subsections (1)(b) and (1)(c) proscribe different conduct, so defendant’s equal protection claim fails. Accordingly, defendant’s conviction and sentence did not violate the Equal Protection Clause, and the judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Outcome-Determinative Test Mandatory in Determining if Criminal Conviction Should Be Overturned Based on Peremptory Challenges

The Colorado Supreme Court issued its opinion in People v. Alfaro on Monday, March 17, 2014.

Criminal Law—Jury.

The People petitioned for review of the court of appeals’ judgment in People v. Alfaro, No. 06CA314 (Colo.App. May 12, 2011) (not published pursuant to CAR 35(f)), which reversed defendant’s various convictions for murder, burglary, and attempted kidnapping. On direct appeal, the court of appeals found that the trial court erred by allowing defendant fewer peremptory challenges than authorized by statute and rule. Although defendant failed to object to the trial court’s interpretation of the applicable statute, the court of appeals found that the trial court’s error rose to the level of plain error, and ordered defendant’s convictions reversed and his sentences vacated.

The Supreme Court reversed the court of appeals’ judgment. The Court found that the court of appeals did not apply the outcome-determinative standard, which the Court’s holding in People v. Novotny, 2014 CO 18, makes mandatory for good-faith errors impairing a defendant’s capacity to shape the jury through peremptory challenges.

Summary and full case available here.

Colorado Supreme Court: Automatic Reversal of Criminal Conviction Not Allowed in Absence of Structural Error or Outcome-Determinative Analysis

The Colorado Supreme Court issued its opinion in People v. Novotny and People v. Vigil on Monday, March 17, 2014.

Criminal Law—Jury.

The People petitioned for review of the court of appeals’ judgments reversing convictions in People v. Novotny, ___ P.3d ___, ___ No. 06CA2204 (Colo.App. March 18, 2010), and People v. Vigil, No. 08CA1748 (Colo.App. May 12, 2011) (not published pursuant to CAR 35(f)). In each case, the intermediate appellate court applied a rule requiring automatic reversal as the remedy for any erroneous ruling on a challenge for cause adversely impacting defendant’s ability to shape the jury through peremptory challenges. In the former case, the district court denied a defense challenge to an assistant attorney general on the ground that he was employed by a law enforcement agency. In response, defendant removed the prospective juror with a peremptory challenge and ultimately exercised all of his peremptory challenges. In the latter case, the district court granted a prosecution challenge for cause on the ground of bias, with the effect that the prosecution was able to exercise all of its peremptory challenges on other prospective jurors.

The Court overruled its previous holdings and concluded in this consolidated opinion that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained. The Court further concluded that allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, does not, in and of itself, amount to structural error. The Court therefore reversed the judgments of the court of appeals and remanded the cases for the court of appeals to consider whether the error in each case was harmless under the proper outcome-determinative test.

Summary and full case available here.

Tenth Circuit: Appellant Entited to Evidentiary Hearing on Ineffective Assistance of Counsel Claim

The Tenth Circuit Court of Appeals published its opinion in Milton v. Miller on Friday, March 7, 2014.

Appellant Antonio Milton is an Oklahoma state prisoner serving a life sentence without parole for drug-trafficking-related convictions. After exhausting his state court remedies, Milton filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his counsel on direct appeal was ineffective for failing to assert a claim of ineffective assistance of trial counsel, specifically that Milton’s trial counsel failed to inform Milton of a favorable pretrial plea offer. The district court denied Milton’s petition, but the Tenth Circuit granted Milton a certificate of appealability to challenge the district court’s ruling.

The Tenth Circuit concluded that the Oklahoma state courts’ resolution of Milton’s ineffective assistance claim could not survive scrutiny under 28 U.S.C. § 2254(d)(1), and that unresolved issues of fact prevented the court from completing its de novo review of the claim. The court concluded that reasonable jurists could debate the merit of Petitioner’s claim of ineffective assistance based on the counsel’s alleged failure to inform him of the plea offer.

Milton argued on appeal that the OCCA’s resolution of his ineffective assistance of appellate counsel claim was contrary to, or an unreasonable application of, clearly established federal law. In turn, Milton argued, he was entitled to a federal evidentiary hearing to resolve his claim.

Milton correctly identified Strickland v. Washington, 466 U.S. 668 (1984) as the clearly established federal law applicable to his ineffective assistance of appellate counsel claim. Milton challenged the Oklahoma Court of Appeals (OCCA’s) analysis of his ineffective assistance of appellate counsel claim, arguing that the OCCA’s decision was both contrary to and an unreasonable application of clearly established federal law because the OCCA misstated the legal tests governing the proper inquiry under federal law.

The Tenth Circuit agreed with Milton that the OCCA misstated the standard for analyzing the issue of whether appellate counsel’s performance was deficient. The result was the requirement that the Tenth Circuit review de novo Milton’s ineffective assistance of counsel claim, rather than deferring to the OCCA’s resolution of that claim.

In applying the two-pronged Strickland test, the Tenth Circuit agreed with Milton that Milton’s appellate counsel clearly performed deficiently in failing to promptly and meaningfully convey to Milton the existence of a plea offer made by the prosecution at some point prior to the October 30, 2007 preliminary hearing. The focus then turned to the second prong of the Strickland analysis, i.e., whether Milton was prejudiced by his appellate counsel’s deficient performance. The court concluded there was conflicting evidence in the record regarding the precise nature of the plea offer that was purportedly made by the prosecution prior to the October 30, 2007 preliminary hearing. The court concluded there was a reasonable probability that, had Milton’s appellate counsel raised on direct appeal the issue of whether trial counsel failed to inform Milton of the pre-preliminary hearing plea bargain, Milton would have prevailed on this issue in his direct appeal.

The Tenth Circuit held that Mr. Milton was entitled to a federal evidentiary hearing to resolve the disputed factual issues relating to his ineffective assistance of appellate counsel claim, since disputed issues of fact existed that precluded the court from completing its de novo review of Milton’s ineffective assistance of appellate counsel claim.

The Tenth Circuit REVERSED and REMANDED to the district court with directions to conduct an evidentiary hearing on, and to subsequently review on the merits, Milton’s ineffective assistance of appellate counsel claim.

Colorado Court of Appeals: Appropriate Remedy for Illegal Sentence is to Remand Case to Trial Court for Sentencing

The Colorado Court of Appeals issued its opinion in People v. Bassford on Thursday, February 27, 2014.

Sentence Illegal—Crim.P. 35(a)—Removal of Probation Requirement—Resentencing.

Defendant was charged in Denver District Court (case No. 02CR5403) with one count of violating the Colorado Organized Crime Control Act (COCCA), and with multiple counts of securities fraud and felony theft. He later was charged in Denver District Court (case No. 03CR4422) with one count each of felony theft, defrauding a secured creditor, and forgery. The cases were consolidated for trial, and a jury found defendant guilty of all counts ultimately tried.

The court sentenced defendant to twelve years in Department of Corrections (DOC) custody and then to twelve years of probation. On appeal, the forgery conviction was vacated, but the judgment and sentence were affirmed as to all other counts. Thereafter, defendant filed a Crim.P. 35(a) motion, claiming that the probation portion of his sentence was illegal. The trial court vacated the original sentence and then resentenced defendant to twenty-two years in DOC custody, plus mandatory parole; suspended the entire DOC sentence (giving defendant credit for a little more than twelve years of time served); and imposed twelve years of probation with the economic crime unit.

On appeal, defendant contended that his original sentence was illegal because the court ordered him to complete probation after his release from DOC custody, and that the district court erred by resentencing him rather than simply removing the probation requirement. Defendant’s original sentence was illegal, and the court was without statutory authority to suspend ten years of the eighteen-year DOC sentence on the condition that defendant complete economic crime probation after the initial eight years in the DOC. Although Crim.P. 35(b) authorizes a district court to reduce a sentence, the district court erred in relying on Crim.P. 35(b) to modify defendant’s sentence, because the court did not reduce his sentence. However, because defendant’s original sentence was illegal in its entirety, the appropriate remedy was to remand the case to the trial court for resentencing.

Summary and full case available here.

Colorado Supreme Court: For Purposes of Parole Eligibility, Rules of Statutory Construction Require DOC to Construe All Sentences as One Continuous Sentence

The Colorado Supreme Court issued its opinion in Nowak v. Suthers on Monday, February 24, 2014.

Parole Eligibility Date—Statutory Interpretation.

In this habeas corpus appeal, the Supreme Court evaluated for the first time the relationship between CRS §§ 17-22.5-101 and -403(1) of article 22.5, which governs inmate and parole time computation. The Court held that, for the purpose of computing an inmate’s parole eligibility date, § 17-22.5-101 requires the Department of Corrections to construe all sentences as one continuous sentence when the inmate has been committed under several convictions with separate sentences, even when doing so results in the inmate becoming parole eligible before serving at least 50% of the second sentence. Accordingly, the Court affirmed the trial court’s judgment.

Summary and full case available here.

Colorado Court of Appeals: Period In Which Competency Evaluation Being Completed Excluded from Speedy Trial Timeline

The Colorado Court of Appeals issued its opinion in People v. Naqi on Thursday, February 13, 2014.

Violation of Right to Speedy Trial—Competency Evaluation—Crime of Violence—Sentencing.

On January 10, 2011, while represented by the public defender, defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust–pattern of abuse. In March 2011, defendant filed a pro semotion seeking to obtain a different attorney, which was denied. On June 1, 2011, the original defense counsel filed a motion to continue the case; defendant objected. The court gave defendant the option of proceeding pro se or waiving the speedy trial date and proceeding with either the original defense counsel or alternate defense counsel. Defendant chose to proceed pro se and was found competent to proceed after a court-ordered competency evaluation. A jury convicted him as charged.

On appeal, defendant contended that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. A defendant must be brought to trial within six months of entering a not-guilty plea. However, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. Here, the record supports the conclusion that defendant might not have been competent to proceed to trial. Therefore, the court did not abuse its discretion in ordering a competency evaluation, and the period of time to complete the evaluation was properly excluded from the speedy trial period.

Defendant also contended that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes. Defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. Therefore, the prosecution was not required to prove a crime of violence to aggravate the sentencing range in accordance with the crime of violence statute. Although the sentencing range should not have been aggravated as an extraordinary risk crime, the sentence fell within the corrected sentencing range. Therefore, the judgment and sentence were affirmed.

Summary and full case available here.