October 24, 2017

Colorado Court of Appeals: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Late Filing Not Allowed Under Excusable Neglect Because Claim Not Meritorious

The Colorado Supreme Court issued its opinion in Sebastian v. Douglas County on Monday, February 29, 2016.

Hearing and Determination—Pleading—Civil Procedure.

In his action under 42 USC § 1983, plaintiff alleged that his Fourth Amendment rights were violated when he was bitten by a K-9 police dog. His claim was dismissed after he failed to respond to a motion to dismiss. Thereafter, he filed a motion to set aside the judgment under CRCP 60(b)(1), asserting that his failure to respond was caused by excusable neglect. The trial court denied the Rule 60(b)(1) motion, and the court of appeals affirmed, concluding that plaintiff failed to demonstrate that he had alleged a meritorious claim or defense, the second factor to be considered under Rule 60(b)(1). The court of appeals reasoned that plaintiff failed to allege an intentional seizure by the government as required under Brower v. County of Inyo, 489 U.S. 593, 596 (1989). More specifically, the court of appeals reasoned that an intentional seizure occurs when an officer releases a K-9 into a particular “space” and the plaintiff is bitten within that space.

The Supreme Court affirmed, but on narrower grounds. The Court rejected the court’s “space” analysis and instead found that the allegation regarding an intentional seizure in plaintiff’s complaint amounts to a legal conclusion, which is insufficient to allege a meritorious claim under Rule 60(b)(1).

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

Colorado Court of Appeals: Unique Circumstances Doctrine Disfavored; Appeal Dismissed as Untimely

The Colorado Court of Appeals issued its opinion in Heotis v. Colorado Department of Education on Thursday, January 14, 2016.

In this appeal after remand, Heotis was a teacher who had criminal charges filed against her and entered into a plea agreement with a deferred judgment. In 2011, after fulfilling the conditions of her plea agreement, the court allowed Heotis to withdraw her guilty plea and dismissed the criminal case. Heotis sought to renew her teaching license in 2012 and discovered the Department had revoked her license based on her involvement in the criminal case. Heotis sought reinstatement of her teaching license.

In mid-January 2013, Heotis filed a motion in district court to seal the records in her criminal case, which was referred to a magistrate. The magistrate recommended against sealing the records, and the district court adopted the magistrate’s recommendations. Heotis appealed, and a panel of the court of appeals remanded with instructions for the magistrate to consider four factors in its review, adding that Heotis could appeal the magistrate’s decision to the district court and then the court of appeals.

On remand, the magistrate again recommended against sealing the records, and Heotis appealed to the district court within 14 days. The district court ruled on her motion 33 days later, and Heotis filed her appeal with the court of appeals 49 days after that. The court of appeals dismissed Heotis’ appeal as untimely, ruling that because her case was governed by C.R.M. 7(b), she should have immediately appealed to the court of appeals and had a 49-day deadline in which to do so. Even providing for excusable neglect, Heotis must have filed her appeal within 84 days, which she did not. The court refused to apply the unique circumstances doctrine based on the first panel’s incorrect statement about Heotis’ appeal rights, noting that the doctrine was disfavored by the U.S. Supreme Court.

Heotis’ appeal was dismissed.