November 21, 2017

Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director

The Colorado Court of Appeals issued its opinion in Gandy v. Raemisch on Thursday, August 10, 2017.

C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.

Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.

On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.

Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.

Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.

Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.

The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.

Summary available courtesy of Colorado Lawyer.

HB 17-1125: Eliminating Duty of Correctional Facilities to Provide Certain Services

On January 26, 2017, Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn introduced HB 17-1125, “Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities.”

Legislative Audit Committee.

Current law requires the division of correctional industries in the department of corrections to establish programs that are responsible for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities. The bill removes this requirement.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

Colorado Court of Appeals: Prison Inmate Not Barred from Asserting Castle Doctrine

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

Prison Cell—Prisoner—“Make-My-Day” Statute—Dwelling—Immunity.

Alaniz is an inmate in the Colorado Department of Corrections. The people filed the charges in this case after another inmate was found dead in a cell shared by Alaniz and another inmate. After the court held an evidentiary hearing, it dismissed the charges against defendant based on Colorado’s “make-my-day” statute, which provides that under certain circumstances an occupant of a dwelling who uses any degree of physical force, including deadly physical force, against an intruder will be immune from prosecution.

On appeal, the People contended that Alaniz was not entitled to immunity under section C.R.S. § 18-1-704.5 because a prison cell is not a dwelling for purposes of that statute. Alaniz’s prison cell meets the definition of a dwelling in C.R.S. § 18-1-901(3)(g) because it was used by persons for habitation. Further, the definition of dwelling in C.R.S. § 18-1-901(3)(g) applies to the immunity provisions of C.R.S. § 18-1-704.5.

The People next contended that the court erred in dismissing the charges because Alaniz failed to prove that he used physical force against the victim. Alaniz was merely required to establish that circumstances justifying the charged use of force were present, as set forth in C.R.S. §§ 18-1-704.5(2) and (3). Nothing in the language of that statute supports the People’s assertion that he was required to explain the entirety of his actions at the hearing in order to obtain immunity. Accordingly, the court did not err in granting Alaniz’s motion to dismiss the charges.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Fiduciary Access to Digital Assets, Tampering with Deceased Human Bodies, and More Bills Signed

On Thursday, April 7, 2016, Governor Hickenlooper signed five bills into law. To date, he has signed 78 bills into law this legislative session. The bills signed Thursday include a bill creating a new crime of tampering with deceased human bodies, a bill promoting the Revised Uniform Fiduciary Access to Digital Assets Act, a bill regarding the Department of Corrections’ authority to distribute medication, and more. The bills signed Thursday are summarized here.

  • SB 16-010 – Concerning the Purchase of an Off-Highway Vehicle by a Dealer, by Sen. Randy Baumgardner and Rep. Jon Becker. The bill allows a powersports dealer to purchase a used off-highway vehicle without a title if it was purchased in a jurisdiction that does not issue titles for such vehicles or if it was purchased in Colorado prior to January 1, 2014.
  • SB 16-034 – Concerning Tampering with a Deceased Human Body, by Sen. Jerry Sonnenberg and Reps. Rhonda Fields & Polly Lawrence. The bill creates a new crime of tampering with a deceased human body in order to impair its appearance or availability for an official proceeding.
  • SB 16-088 – Concerning the “Revised Uniform Fiduciary Access to Digital Assets Act,” by Sen. Pat Steadman and Rep. Yeulin Willett. The bill sets forth conditions under which certain fiduciaries may access a decedent’s electronic communications, a catalog of communications sent or received by a principal or decedent, or any other digital asset in which a decedent had a right.
  • HB 16-1152 – Concerning the Authority of the Department of Corrections to Distribute Medication, by Rep. Mike Foote and Sen. John Cooke. The bill authorizes the Department of Corrections to distribute compounded and prepackaged medications to its pharmacies.
  • HB 16-1353 – Concerning Payment of Expenses of the Legislative Department, by Reps. Crisanta Duran & Brian DelGrosso and Sens. Mark Scheffel & Lucia Guzman. The bill provides FY 2016-17 appropriations to the legislative department.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Colorado Court of Appeals: District Court Properly Considered Prison Grievance Complaint Under C.R.C.P. 106(a)(4)

The Colorado Court of Appeals issued its opinion in Brooks v. Raemisch on Thursday, March 10, 2016.

State prisoner Keith Brooks filed multiple frivolous prison grievances. In May 2011, he was sanctioned for the frivolous grievances by only being allowed to file one grievance per month for the next 60 days. When the sanction period expired, he filed 14 more frivolous grievances, and was sanctioned a second time with a 6-month filing restriction. Brooks then filed a complaint in district court challenging the DOC’s jurisdiction to impose the restrictions.

Defendants moved to dismiss, arguing the district court lacked subject matter jurisdiction because the decisions to restrict Brooks’ grievance filing were not quasi-judicial and subject to review under C.R.C.P. 106(a)(4). The district court denied the motion, finding jurisdiction under C.R.C.P. 106(a)(4) to address Brooks’ complaints, but the district court upheld both grievance restrictions.

Brooks appealed, and the Colorado Court of Appeals affirmed as to the September 2011 restriction but dismissed the complaint regarding the May 2011 restriction as untimely. The court of appeals held that Rule 106(a)(4) applies to the DOC’s decisions to limit grievance filing, because the decisions are quasi-judicial, but the court also held that at the time of the actions, Rule 106 imposed a 30-day timeline for appealing the quasi-judicial decisions. Brooks’ complaint was timely as to the September 2011 decision but not the May 2011 decision.

The court affirmed the district court as to the September 2011 DOC decision but dismissed the complaint as to the May decision.

Colorado Court of Appeals: Trial Court Has Authority to Allow Defense Discovery of Crime Scene

The Colorado Court of Appeals issued its opinion in People in Interest of E.G. on Thursday, February 26, 2015.

Sexual Assault of a Child—Juvenile Offender—Access to Crime Scene—Privacy Interests—Cross-Examination—Sentence.

E.G. was charged with two counts of sexual assault of a child and two pattern of abuse sentence enhancers for sexually assaulting his younger cousins over a two-year period in the home of their mutual grandmother. Because E.G. was a juvenile, his case originated in juvenile court. E.G. was later charged as an aggravated juvenile offender and his case was transferred to district court.

On appeal, E.G. argued that the trial court erred when it denied, based on lack of authority, his motion requesting court-ordered access to the crime scene in the basement of his grandmother’s home. A trial court has the authority to allow discovery of a crime scene to the defense, even if the discovery implicates constitutionally protected privacy rights of a nonparty, provided that the defendant’s justification for the information, which derives from his constitutional rights to due process and to present a defense, outweighs the privacy interests. Because E.G. previously lived at the home and was provided photographs of the crime scene before trial, he failed to meet this standard. The trial court, therefore, properly denied E.G.’s motion.

E.G. next contended that the trial court reversibly erred in limiting E.G.’s cross-examination of the forensic interviewer. Because the forensic interview tapes were already in evidence and counsel had already impeached the victims during prior cross-examination of them, it was needless to question the forensic interviewer on her recollection of those same interviews or what the forensic interviewer did and did not ask. Therefore, the court did not abuse its discretion in excluding the evidence as cumulative. It was also not an abuse of discretion to exclude cross-examination that did not show actual bias of the forensic interviewer.

E.G. also contended that the trial court reversibly erred when it sentenced him directly to Department of Corrections (DOC) custody absent statutory authority to do so. A trial court must sentence an aggravated juvenile offender according to CRS § 19-2-601. Here, however, because E.G. was 22 years old at the time of sentencing, he had already aged out of Department of Human Services (DHS) custody and DHS could not exercise jurisdiction over him. Therefore, certain portions of § 19-2-601(8), which do not require the participation of DHS, may apply to defendants who fall within the statute’s gap. Because the record does not include the court’s consideration of all requirements under § 19-2-601(8), the case was remanded for additional findings concerning the missing factors to determine whether the court’s decision to sentence E.G. directly to DOC custody was proper.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Inmate’s Challenge to DOC Policies Not Barred by 30-Day Claims Limit

The Colorado Court of Appeals issued its opinion in Garcia v. Harms on Thursday, November 6, 2014.

Timely Filing—Code of Penal Discipline Claim.

Garcia was charged with assault under the Code of Penal Discipline (COPD) after a corrections officer accidentally pricked herself on a sewing needle he kept in his cell. Garcia was not present at the time, but he was charged and found culpable and disciplined. He was also required to pay restitution.

Garcia challenged his conviction, claiming: (1) his disciplinary hearing did not comply with constitutional due process requirements; (2) the COPD definition of “assault” was unconstitutionally vague on its face as applied to him; (3) the Colorado Department of Corrections (CDOC) exceeded its authority when it ordered him to pay restitution; (4) CRS §17-1-111, which exempts CDOC from certain provisions of the Administrative Procedure Act, violates constitutional separation of powers principles; and (5) the collection of restitution unjustly enriched CDOC. The district court dismissed Garcia’s complaint—filed nearly two years after his COPD conviction became final—as time-barred under CRCP 106.5.

Garcia challenged the dismissal, except as to claims one and five. He arguedthat claims two through four challenged “CDOC’s establishment of policies and general application of those policies” and not his disciplinary conviction and therefore were not barred under CRCP 106.5. The Court of Appeals agreed as to Garcia’s fourth claim and portions of his second and third claims.

Portions of Garcia’s second and third claims challenged only quasi-judicial action. However, the part of claim two asserting that the COPD definition of assault under which Garcia was convicted was unconstitutionally vague on its face, as well as the portion of claim three asserting the CDOC has adopted a monetary restitution policy that violates the Separation of Powers Clause, are not related to quasi-judicial actions. Also, claim four asserted that CRS §17-1-111 facially violates separation of powers principles. The Court held that these claims were covered by CRS §13-80-102(1)(h) as “actions against any public or governmental entity . . . ” insofar as defendants Governor Hickenlooper and the State of Colorado are concerned, and were subject to the one-year statute of limitations under the exceptions listed in CRS §13-80-103 insofar as CDOC officials and employees were concerned.

Accordingly, the Court affirmed the order dismissing Garcia’s as applied constitutional challenges in claims two and three and the remaining clams against the executive director of the CDOC, the warden of the Sterling Correctional Facility, the hearing officer who presided over his disciplinary hearing, and two unnamed correctional officers. It reversed the order dismissing Garcia’s fourth claim against Governor Hickenlooper and the State of Colorado. It also reversed the dismissal of Garcia’s facial constitutional challenge against those defendants in claim two and his facial constitutional challenge to CDOC policies in claim three. The case was remanded for further proceedings.

Summary and full case available here, courtesy of  The Colorado Lawyer.

Colorado Court of Appeals: Inmate Correctly Charged with Possessing Contraband Under Language of Code of Penal Discipline

The Colorado Court of Appeals issued its opinion in Dawson v. Executive Director of the Colorado Department of Corrections on Thursday, May 22, 2014.

Prison Disciplinary Conviction.

In September 2012, Dawson was assisting another inmate with a legal matter. On his way back to the living area, Dawson was carrying the other inmate’s legal papers, but was not accompanied by the inmate. Prison officials charged Dawson with unauthorized possession, a class 2 violation of the Code of Penal Discipline (Code).

The hearing officer determined that the legal papers became contraband when Dawson possessed them outside the presence of the inmate to whom the papers belonged. He was found guilty of unauthorized possession, and the conviction was upheld on administrative review.

Dawson challenged his disciplinary conviction in district court under CRCP 106(a)(4). The district court affirmed. On appeal, Dawson argued that his conduct did not violate the Code. The Court of Appeals disagreed.

Review was limited to whether prison officials exceeded their jurisdiction or abused their discretion. A disciplinary decision must be upheld if there is some evidence to support it.

The Code defines “contraband” as any item that an offender is not specifically authorized to have in his or her possession. The regulation clearly covers possessing another inmate’s legal documents outside the presence of the owner. Because the evidence supported that Dawson possessed contraband in violation of the Code, Dawson was guilty of unauthorized possession and the judgment was affirmed.

Summary and full case available here.

HB 14-1355: Directing the Department of Corrections to Develop Programs to Decrease Recidivism

On April 3, 2014, Rep. Daniel Kagan and Sen. Lucia Guzman introduced HB 14-1355 – Concerning Department of Corrections Reentry Initiatives for Successful Reintegration of Adult Offenders into the Community, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

On and after July 1, 2014, the Dept. of Corrections (department) shall develop and implement initiatives specifically designed to decrease recidivism, enhance public safety, and increase each offender’s chances of achieving success upon his or her release to the community.

Subject to appropriations, on and after July 1, 2014, the department shall:

  • Develop and implement initiatives specifically designed to assist offenders in a correctional facility to prepare for release to the community;
  • Develop and implement initiatives specifically designed to assist each offender’s transition from a correctional facility into the community; and
  • Make necessary operational enhancements and develop and implement initiatives specifically designed to ensure that the department has the proper equipment, training, and programs to properly supervise offenders in the community to enhance public safety.

On and after January 1, 2015, the department shall develop and implement a grant program to provide funding to eligible community-based organizations that provide reentry services to offenders in the community. On or before January 1, 2015, the executive director shall develop policies for the administration of the grant program.

The grant program is repealed, effective September 1, 2018. Before such repeal, the department of regulatory agencies shall conduct a sunset review of the grant program.

On and after January 1, 2016, during its annual presentation before the joint judiciary committee of the general assembly, or any successor joint committee, the department shall include a status report regarding the progress and outcomes of reentry planning and program initiatives developed and implemented by the department during the preceding year.

The bill makes an appropriation.

On April 21, the bill passed out of the House on 3rd Reading. The bill is assigned to the Judiciary Committee in the Senate.

Since this summary, the Senate Judiciary Committee referred the bill, unamended, to Appropriations.

Colorado Court of Appeals: Plaintiff Who Requested Audio Recordings of Trial Proceedings Should Not Have Been Charged for Written Transcript

The Colorado Court of Appeals issued its opinion in Marymee v. Executive Director of Colorado Department of Corrections on Monday, April 14, 2014.

Unauthorized Absence From Employment—In Forma Pauperis Motion—Due Process—Right to Call Witnesses—Evidence.

Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), was employed at Correctional Industries (CI), a for-profit division of the CDOC. On November 30, 2011, at approximately 3:45 p.m., plaintiff ended his work day without authorization from his supervisor.

Because plaintiff’s supervisor had not excused plaintiff from work, prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC’s Code of Penal Discipline (COPD). Plaintiff was found guilty.

On appeal, plaintiff contended that the district court abused its discretion in denying his motion to proceed in forma pauperis. However, plaintiff had sufficient funds in his inmate account to pay the filing fee, so the trial court was required to deny his motion.

Plaintiff argued that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. Neither CRCP 106 nor 106.5 require that, to obtain judicial review, a written transcript must be prepared. Therefore, the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing. CDOC was ordered to credit plaintiff’s inmate account for the cost incurred for the preparation of the hearing transcript.

Plaintiff further alleged that he was denied his due process right to call his case manager as a witness and present a defense. The case manager, however, was not present during the incident, his testimony would not have been relevant to the disciplinary charge, and his testimony was based on hearsay. Accordingly, plaintiff’s due process rights were not violated by denying his request to call his case manager as a witness.

Plaintiff also argued that the CDOC lacked jurisdiction to decide the merits and evidence before it because the incident report was untimely filed. Due process requires only that an inmate be provided written notice of the charges against him. Therefore, even if the incident report was untimely filed, it does not rise to the level of a due process violation.

Finally, plaintiff contended that there was insufficient evidence to support the disciplinary conviction. Because the record contains “some evidence” that plaintiff left work without permission on November 30, 2011, the hearing officer’s decision finding plaintiff guilty of the charged disciplinary violation was affirmed.

The Court of appeals affirmed the judgment and order. The case was remanded to the district court with directions to refund the cost of the hearing transcript.

Summary and full case available here.

SB 14-064: Disallowing the Use of Long-Term Isolated Confinement for Seriously Mentally Ill Prisoners

On Tuesday, January 14, 2014, Sen. Jessie Ulibarri introduced SB 14-064 – Concerning Restricting the Use of Long-Term Isolated Confinement for Inmates with Serious Mental Illness. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the department of corrections to review the status of all offenders held in long-term isolated confinement within 90 days after the effective date of the bill. If the review determines that the offender is seriously mentally ill, the department shall move the offender from long-term isolated confinement to a mental health step-down unit, prison mental hospital, or other appropriate housing that does not include long-term isolated confinement. The department may not place a seriously mentally ill offender in long-term isolated confinement and must do a mental health evaluation prior to placing an inmate in long-term isolated confinement prior to placement to determine whether the placement is allowed.

The bill dictates the type and manner that discipline is applied to seriously mentally ill inmates. The bill provides seriously mentally ill inmates with the opportunity for therapy and out-of-cell time.

The bill is assigned to the Judiciary Committee.

Colorado Court of Appeals: No Error in Denial of Inmate’s Petition to Proceed In Forma Pauperis After Previous Frivolous Filings

The Colorado Court of Appeals issued its opinion in Farmer v. Raemisch, Executive Director, Colorado Department of Corrections on Thursday, January 2, 2014.

Inmate’s Civil Complaint—CRS § 13-17.5-102.7—Ineligibility to Proceed Without Prepayment of Filing Fee—Denial of Access to Courts.

Plaintiff D. Thomas Farmer, a state inmate, filed a complaint alleging that unnamed prison employees had used excessive force against him, causing him various physical and psychological injuries. Farmer requested to proceed in forma pauperis—without prepaying the filing fee applicable to civil cases. The court determined that on three occasions, civil complaints filed by Farmer had been dismissed as frivolous, groundless, or malicious, or for failure to state a claim on which relief could be granted, or because they sought monetary relief from persons immune from such liability. The district court denied Farmer’s request and dismissed his complaint for failing to pay a filing fee.

On appeal, Farmer argued that CRS § 13-17.5-102.7 violates his right to access to the courts as guaranteed by the U.S. Constitution. The Court of Appeals disagreed. Because each of Farmer’s previous complaints was dismissed for at least one reason expressly identified by § 13-17.5-102.7, each qualifies as a dismissal. The trial court therefore did not err in denying Farmer’s request to proceed in forma pauperis. The order was affirmed.

Summary and full case available here.