December 18, 2014

Tenth Circuit: No Conflict Between Exempting Certain Conduct from Criminal Liability and Using that Conduct to Enhance Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hoyle on Tuesday, May 13, 2014.

Defendant Hoyle appealed from the remand proceedings of his prior appeal (see United States v. Hoyle, 697 F.3d 1158 (10th Cir. 2012), affirming Hoyle’s conviction but remanding for resentencing). Hoyle appealed again, challenging the district court’s denial of his motion for a new trial on remand and consideration of prior state convictions at resentencing. Hoyle’s conviction stemmed from an incident where he pointed a gun at a woman, Ms. Hall, and threatened to shoot. Ms. Hall called 911, and Hoyle was subsequently arrested and charged with being a felon in possession of a firearm. On appeal, the Tenth Circuit determined that Hoyle’s two felony convictions from 1994 did not qualify as predicate convictions for purposes of the Armed Career Criminal Act because his civil rights had been restored under Kansas law. The Tenth Circuit accordingly remanded for resentencing. In preparation for resentencing, the probation officer prepared a presentence investigation report (PSR) and took into account the two prior felony convictions in order to arrive at a base level and criminal history category. Hoyle objected, arguing that because his civil rights had been restored, his prior criminal activity could not be used to arrive at his base level or criminal history category. The district court adopted the PSR and sentenced Hoyle to 120 months’ imprisonment followed by three years’ supervised release.

Hoyle appealed the use of the prior convictions in calculating his sentence to the Tenth Circuit and also asserted two new points of error: he claimed that the district court erred by denying him a new trial due to Brady violations and by finding that he possessed the weapon in connection with the Kansas felony “criminal threat.” The Tenth Circuit rejected Hoyle’s assertions of Brady violations and determined that the district court properly denied Hoyle’s motion for a new trial. As to Hoyle’s argument that the prior convictions could not be used in calculating his sentence under the Sentencing Guidelines, the Tenth Circuit disagreed, noting that “Unless Congress has specifically directed otherwise, there is no conflict between exempting certain conduct from criminal liability under a statute and not exempting that same conduct from sentencing consideration,” because the provisions serve different purposes. Finally, the Tenth Circuit found that there was sufficient evidence to support the four-level offense increase for possession of the weapon in connection with felony criminal threat. Hoyle contended that Ms. Hall’s testimony was not credible because she had a prior misdemeanor conviction; however, the district court found that Ms. Hall’s prior conviction did not undermine her credibility. The Tenth Circuit affirmed the district court.

Colorado Supreme Court News: Two New Cases to Decide Seven Issues

Stuart-StullerBy Stuart Stuller

The Colorado Supreme Court agreed to review two cases covering seven different issues, six of them raised in one case.

Criminal Sentencing Based on Prior Offenses

The case with one issue, Jarrod Ralph Rutter v. The People of the State of Colorado (No. 13SC523), focuses on Colorado’s habitual criminal sentencing statute under which the sentence of a person convicted of a crime is quadrupled if the person has three prior convictions of a certain class of crimes. Because the multiplier is formulaic, there is a possibility that the resulting sentence could be grossly disproportionate to the underlying criminal conduct, violating the Eighth Amendment’s prohibition against cruel and unusual punishment. As a result, such a sentence is subject to a proportionality review to determine whether it is constitutional.

Jarrod Rutter was convicted on charges relating to the manufacture of methamphetamine. Rutter had three prior convictions for possession and use of controlled substances, exposing him to the habitual criminal sentence enhancement. In the interim, the Colorado General Assembly had reduced possession and use drug crimes to misdemeanors, but if the crimes were felonies at the time of the fourth offense, they still would be counted toward habitual criminal status. With only the manufacture conviction, Rutter would have faced a 24-year sentence. Because of the possession and use offenses, Rutter’s sentence was quadrupled to 96 years.

Rutter argued that while the possession and use convictions could be counted toward the statutory sentence enhancement, the fact that the General Assembly had reduced the possession and use crimes to misdemeanors should be considered in the proportionality inquiry. The court of appeals, in an unpublished opinion by Judge Hawthorne, Judge Taubman concurring, rejected the argument. Judge Graham concurred in part and dissented in part.

School Vouchers

The six-issue case, Taxpayers for Public Education et al. v. Douglas County School District et al, (No. 13SC233), arises out of a statutory and constitutional challenge to a private school voucher program funded by the Douglas County School District under which public school funding is used to pay some students’ tuition at private schools, many of which are religious schools.

The statutory challenges are brought under the Public School Finance Act, which regulates the sourcing and distribution of funding for public education. The initial question is whether citizens have the ability, or standing, to raise such a challenge, an issue that the court held turned on whether the Finance Act gives rise to an implied private right of action.

If the Finance Act challenge is permitted, the next question will be whether the voucher program violates the Act by allowing the school district to include students who are enrolled in private schools in the enrolled student count that the district submits to the state for funding.

The remaining four questions focus on constitutional challenges brought under three different provisions of the Colorado Constitution.

One question extends to all three provisions, that is, whether the voucher program is entitled to a presumption of constitutionality that can be rebutted only by proof “beyond a reasonable doubt.”

The first constitutional challenge is that the voucher program violates the constitutional provision that money from the state public education fund shall remain “inviolate and intact.” The trial court’s Judge Michael Martinez determined that state fund money, which comprises 2 percent of the funding received by the district, was diverted to private schools; therefore, this violated the constitution. The court of appeals, in an opinion by Judge Jones with Judge Graham concurring and Judge Bernard dissenting, relied on the constitutional presumption to assume that the voucher program was funded entirely with the remaining 98 percent of the district’s funding.

The second challenge arises from a provision in Colorado’s Bill of Rights that lacks both the brevity of the federal constitution’s religious clauses and the well-developed case law. The pertinent part of the provision states that no person shall be “required to attend or support any ministry, or place of worship, religious sect or denomination against his consent.” The trial court held that the program violated the Bill of Rights by using taxpayer money to support religious instruction. The court of appeals reversed, holding that the federal constitution forbids state constitutional law from turning on inquiries into the extent to which private schools are religious in character.

The final constitutional challenge is anchored to a provision that prohibits public entities from using public funds to support sectarian purposes using terms that go well beyond the usual constitutional proscription of “shall,” that is, the provision states in pertinent part that no public entity “shall ever make any appropriation, or pay from any public fund . . . anything in aid of any church or sectarian society, or for any sectarian purpose . . . whatsoever.”

Motions to exceed word and page limits are expected.

Stuart Stuller practices appellate, litigation, constitutional, employment discrimination, and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

SB 14-206: Relocating and Amending the Statutes Related to the Sealing of Criminal Records

On April 17, 2014, Sen. Pat Steadman introduced SB 14-206 – Concerning Criminal Record Sealing Provisions, and, in Connection Therewith, Relocating the Record Sealing Provisions in a New Part, Clarifying When an Arrest Record Can be Sealed, and Making Other Clarifying Changes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill moves the sealing of criminal records statutes into a new part and reorganizes the statutes. The bill allows a person to seal an arrest record if they are not charged with a crime, and the statute of limitations has not run, but the person is no longer being investigated by law enforcement.

On April 23 the Judiciary Committee amended the bill and sent it to the full Senate for consideration on 2nd Reading. On April 25, the bill passed 2nd Reading with amendments.

Since this summary, the bill passed the Senate on Third Reading, with no amendments.

Colorado Court of Appeals: Defendant Entitled to One Extra Day of Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Houston on Thursday, April 24, 2014.

Presentence Confinement Calculation.

The question in this case was whether the trial court erred in granting defendant 130 days of presentence confinement credit (PSCC) rather than the 724 days sought by defendant. CRS § 18-1.3-405 provides that “[a] person who is confined for an offense prior to the imposition of a sentence for said offense is entitled to credit against the term of his or her sentences for the entire period of such confinement.” There must be a “substantial nexus” between the offense and the period of confinement for which PSCC is sought.

On December 22, 2009, defendant was served an arrest warrant in Larimer County, and on November 5, 2010, he was sentenced to probation and released (first period). Defendant argued that he was entitled to 319 days of PSCC for this period, but the People argued he was entitled to only eighty-four days, reflecting the amount of time he was in custody in Jefferson County for a separate offense. The Court of Appeals agreed with the People. During the first period, defendant was in custody in Jefferson County for eighty-four days, and he was entitled to PSCC for that time. However, defendant was not entitled to PSCC for the remaining time he was confined in Larimer County, because the conduct for which he was confined was unrelated to this case and he was confined in a different jurisdiction.

The second period was from December 19, 2010, when defendant was arrested based on a revocation complaint filed in this case, to February 3, 2011, when the district court declined to revoke his probation and released him to probation. The only dispute was whether the amount of PSCC was properly calculated as forty-seven days or forty-six days. The district court granted forty-six days.

The Court was not certain, but believed the dispute was whether the PSCC should have included both the date of defendant’s arrest and the date of his release to probation. The Court concluded that defendant was entitled to credit for both dates, and therefore the trial court erred by one day in its PSCC calculation for the second period.

The third period was from December 28, 2011, when defendant was arrested in Denver County, to December 20, 2012, when he was sentenced to prison in this case. Defendant argued he was entitled to 358 days of PSCC for this entire period, and the People argued he was not entitled to any.

On March 24, 2011, another revocation complaint was filed in this case (second revocation complaint) and a warrant was issued for defendant’s arrest. In April 2011, a revocation complaint was also filed in the Larimer County case. Defendant was arrested in Denver County, and the record suggests he was arrested on the warrant in this case. During the third period, he was transferred to Jefferson County a number of times on writs from either Denver County or Larimer County. On July 3, 2012, an addendum to the second revocation complaint was filed, which added as a basis for revocation the charge filed against him in Denver County (the amended second revocation complaint). A new arrest warrant was issued on July 5, 2012. The district court ultimately revoked probation in this case and sentenced defendant to four years in prison.

During the third period, the amount of time defendant was in Denver, Larimer, or Jefferson Counties was unclear, and therefore there was no basis for the Court to allocate the PSCC due based on time in each jurisdiction. The Court held that the time defendant was confined in Denver County was based on defendant’s alleged failure to register as a sex offender in Denver County and not the second revocation complaint in this case. The Court found that the time defendant was confined in Larimer County was based on the revocation complaint filed in the Larimer County case. The Court declined to consider the time defendant was confined in Jefferson County, because defendant did not present any argument in the district court or on appeal that he was entitled to PSCC on the basis of his confinement in Jefferson County during the third period.

The order was affirmed in part and reversed in part. The case was remanded for the district court to award defendant one additional day of PSCC.

Summary and full case available here.

Colorado Court of Appeals: Under Totality of Circumstances, No Error for Prosecution to Request Fifth Amendment Advisement for Defense Witness

The Colorado Court of Appeals issued its opinion in People v. Paglione on Thursday, April 24, 2014.

Theft—Fair Trial—Use Immunity.

Defendant, a mortgage broker and banker, helped the victim refinance his house to obtain cash needed to purchase a second house to use as a rental property. Later, defendant helped the victim take out a home equity loan on the rental property. The net proceeds of the home equity loan were approximately $76,000. Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented he was an agent for the mortgage lender. The victim requested statements, and defendant generated his own receipts and statements for the victim. When the victim attempted to pay the remaining balance of both loans in the amount he believed was outstanding, he discovered the mortgages had not been fully paid and reported defendant to the police for theft.

Defendant testified he had received the victim’s money from the home equity loan but did not apply it to the victim’s primary residence, claiming the victim loaned him the $76,000 in a transaction outside the home equity loan closing. Defendant claimed this loan was evidenced by a promissory note, which he was unable to produce. Defendant also testified he had paid interest to the victim and to victim’s mortgage lender. A jury found defendant guilty of theft of $20,000 or more and sentenced him to five years of probation.

On appeal, defendant claimed he was denied his constitutional rights to a fair trial and to present evidence on his own behalf. He also alleged it was error not to require the prosecutor to request use immunity for a defense witness.

At trial, defendant called to testify a former employee of the title company, who was the closer of the second loan. The prosecutor asked for a bench conference, during which he advised the court that the employee should be advised of her Fifth Amendment rights because if she testified that she notarized the loan documents, the victim and his father were prepared to testify she wasn’t there when he signed. Following additional colloquy in chambers, the court advised the closer of the possible penalties for a first-degree perjury conviction. The court offered to appoint counsel for the loan closer, and she agreed. Following consultation with the attorney, she exercised her Fifth Amendment right and refused to testify.

The Court of Appeals looked to the totality of the circumstances to determine whether the prosecution’s actions constituted substantial governmental interference with a defendant’s right to present a defense. The Court reviewed six factors and concluded that defendant had not established by a preponderance of the evidence that this perjury warning and advisement deprived him of a fair trial.

Defendant also had requested that the court grant immunity to the loan closer or, alternatively, order the prosecutor to request immunity for the loan closer pursuant to CRS § 13-90-118. The court denied the request, and the prosecutor stated it would be “inappropriate” to grant immunity. The Court agreed that only the prosecutor may request immunity for a witness and neither the court nor the defense can require the prosecutor to make such a request.

The Court reviewed and rejected a number of other arguments made by defendant concerning jury instructions, challenge for cause, juror misconduct, and cumulative error. The judgment was affirmed.

Summary and full case available here.

SB 14-193: Requiring Governmental Entity to Obtain a Warrant Before Obtaining Location Information from an Electronic Device

On April 14, 2014, Sen. Morgan Carroll introduced SB 14-193 – Concerning Conforming Colorado Law on Location Information with the Fourth Amendment as Interpreted by the United States Supreme Court in United States v. Jones. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A United States supreme court decision held that the use of a GPS device to monitor a vehicle’s movement constituted a search requiring the government to obtain a search warrant. With certain specified exceptions, the bill prohibits a governmental entity from obtaining location information from an electronic device without first obtaining a search warrant.

If location information or evidence derived from location information is used in a court proceeding, all parties must receive a copy of the search warrant and application at least 10 days prior to the proceeding. A judge may waive the 10-day requirement in certain circumstances.

The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, amended, to the Senate Committee of the Whole.

SB 14-190: Creating a Statewide Criminal Discovery Sharing System

On April 10, 2014, Sen. Kent Lambert introduced SB 14-190 – Concerning Criminal Discovery, and, in Connection Therewith, Creating a Statewide Discovery Sharing System, a Criminal Discovery Surcharge, Civil Immunity for District Attorneys that Make a Good-Faith Effort to Redact Information from Discovery Documents, and Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee.

In 2013, a discovery task force (task force) was convened to develop recommendations regarding criminal discovery systems and costs. The task force recommended creating a statewide discovery sharing system (system). The bill turns the task force into the discovery project steering committee (committee). The committee shall develop a request for proposal and selection process for choosing a vendor to develop the system. The committee shall make a recommendation to the Colorado district attorneys council (CDAC) regarding the vendor after the application process is complete. CDAC shall select a vendor to develop the system after the application and selection processes are complete. The committee shall develop benchmarks and contractual requirements for the project. CDAC shall enter into a contract with the selected vendor to complete the system by June 30, 2016.

The general assembly shall appropriate moneys to the judicial department for allocation to CDAC for development and maintenance of the system. The bill creates a criminal surcharge to fund the development and maintenance of the system. A $10 surcharge applies to each felony conviction, and a $5 surcharge applies to each misdemeanor conviction if the defendant is represented by private counsel or appears pro se.

The bill gives civil immunity to district attorneys who make a good-faith effort to redact all information legally required to be redacted and provide discovery documents that contain information that should have been redacted.

The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, amended, to the Finance Committee.

Colorado Court of Appeals: Defendant’s Successful Objection to Joinder of Two Cases at Trial Barred Joinder of Dismissal

The Colorado Court of Appeals issued its opinion in People v. Marshall on Thursday, April 10, 2014.

Joinder—Objection—Waiver Dismissal.

A grand jury indicted defendant in November 2009 for securities fraud, theft, conspiracy, and organized crime. In February 2012, the prosecution filed a second case by information that contained numerous similar counts. The prosecution moved to join the two cases, but defendant objected, and the court denied the prosecution’s motion. A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case should have been joined with the first case. The court agreed with defendant’s argument and granted his request.

The People argued on appeal that the trial court erred in dismissing the second case against defendant. Defendant’s successful objection to the prosecution’s motion to join the two cases barred his subsequent motion to dismiss the second case, because it was not joined with the first. Therefore, defendant waived his joinder rights under Crim.P. 8(a)(1) and CRS § 18-1-408(2). The judgment dismissing this case was reversed, and the case was remanded to the trial court to reinstate the charges against defendant.

Summary and full case available here.

Tenth Circuit: In Consolidated Appeal, Trial Court’s Rulings Upheld as to All Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morgan on Wednesday, April 8, 2014.

Tracy Morgan, Killiu Ford, and Augustus Sanford (“Defendants”) concocted an elaborate plan to rob a man, Mr. Armendariz. The plan was carried out, and Mr. Armendariz was bound while Ford and two other men questioned him about where he kept his money. His wife was confronted separately, and, after Morgan put a gun to her 3-year-old’s head, the wife gave Morgan the location of the money. Morgan found about $30,000, and the conspirators left. The three co-conspirators had arguments about how to split the money. Eventually they were arrested and tried.

All three defendants were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. After consideration of all the separate and collective appeals, the Tenth Circuit affirmed on all counts.

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.