December 11, 2017

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: “Wobbler” Statute Contemplates Vacation of Conviction Only, Not Sentence

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

Possession of a Controlled Substance“Wobbler” StatuteSurchargeSentenceFelonyMisdemeanorInability to Pay.

DeBorde pleaded guilty to one count of possession of a controlled substance, a level 4 drug felony. The court imposed a mandatory $1,500 felony drug offender surcharge as part of his sentence. When DeBorde completed his community corrections sentence, the court vacated his felony conviction and entered a conviction for a class 1 misdemeanor.

On appeal, DeBorde contended that once his conviction was reduced to a misdemeanor, the court should have likewise reduced his drug offender surcharge to the misdemeanor amount of $1,000. CRS § 18-1.3-103.5(2)(a), the “wobbler” statute, contemplates vacation of only the felony conviction, not the sentence. Accordingly, the amount of the drug offender surcharge was properly determined by the initial conviction.

DeBorde also argued that the district court should have waived all or part of the felony drug offender surcharge based on a finding that DeBorde was unable to pay it. While evidence in the presentence report may have supported a finding of DeBorde’s present inability to pay, there was no evidence in the record of DeBorde’s future inability to pay the surcharge. Further, DeBorde had an opportunity to supplement the record with additional evidence of his inability to pay, but he declined the district court’s invitation to do so.

Lastly, DeBorde contended that under the wobbler statute, the court erred by placing the burden on him to show his entitlement to the misdemeanor conviction in place of the felony conviction. The Court concluded this claim was moot because DeBorde was already granted relief on his motion to apply the wobbler statute.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Felony Murder Instruction Adequately Apprised Jury of Elements of Kidnapping

The Colorado Supreme Court issued its opinion in Esquivel-Castillo v. People on Monday, January 25, 2016.

Sufficiency of an Information—Notice of Charges—Felony Murder.

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the “seized and carried” alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the Supreme Court, the court of appeals rejected Esquivel-Castillo’s assertion that the more specific kidnapping charge necessarily limited the scope of the more generally charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The Supreme Court affirmed the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the Court determined that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count. Therefore, jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

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

Colorado Court of Appeals: Entry of Guilty Plea Equates to “Found Guilty” for School Board Vacancy Statute

The Colorado Court of Appeals issued its opinion in Esquibel v. Board of Education Centennial School District on Thursday, January 14, 2016.

Augustine Esquibel was a director on the Centennial School Board. In 2011, while he was on the board, he pleaded guilty to resisting arrest and felony cocaine possession and received a deferred judgment. Approximately two weeks after he entered his plea, the Board declared his seat vacant based on a director vacancy statute that provides a seat shall be deemed vacant if a director is found guilty of a felony. Esquibel sought a preliminary injunction to prevent enforcement of the Board’s declaration, arguing that he would only be “found guilty of a felony” if he failed to comply with his plea agreement. The district court disagreed and ruled Esquibel was not likely to prevail on the merits. On appeal, the court of appeals analyzed the statutory language and determined that Esquibel was “found guilty” when he entered his guilty plea.

The court of appeals affirmed the district court. Judge Hawthorne dissented; he would have excluded a plea of guilty from the meaning of “found guilty of a felony” in the director vacancy statute.

 

Colorado Supreme Court: Felony Murder Charge Cannot Stand Where Acquitted of Predicate Offense

The Colorado Supreme Court issued its opinion in Doubleday v. People on Monday, January 11, 2016.

Felony Murder—Affirmative Defenses—Duress.

A jury found John Andrew Doubleday guilty of felony murder, despite finding him not guilty, based on the affirmative defense of duress, of the charged predicate offense. Under the plain language of CRS § 18-3-102(1)(b), to be convicted of felony murder, a defendant must have committed or attempted to commit one of the enumerated predicate offenses. The question presented in this case is whether Doubleday can be said to have committed the charged predicate offense of attempted aggravated robbery when he was acquitted of that offense based on the affirmative defense of duress. The Supreme Court concluded that to establish that a defendant committed a predicate offense within the meaning of the felony murder statute, the prosecution must prove beyond a reasonable doubt all of the elements of the predicate offense, including the inapplicability of any properly asserted affirmative defense to the predicate offense. Because the prosecution did not meet this burden here, Doubleday’s felony murder conviction cannot stand.

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

Colorado Court of Appeals: Amendments to Direct Filing Statute Did Not Negate District Court Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, September 10, 2015.

Juvenile—Direct Filing Statute—Sentence.

Nelson was charged with aggravated cruelty to animals, cruelty to animals, and underage possession of alcohol after a 2011 incident in which he killed his mother’s dog. Nelson was a juvenile at the time of the offense, but he was charged as an adult under Colorado’s direct filing statute. Nelson pleaded guilty to aggravated cruelty to animals, and at his sentencing hearing, asked the district court to apply the direct filing statute’s amended sentencing provisions. He argued that he had been convicted of an offense that is no longer eligible for direct filing and, therefore, he should be sentenced as a juvenile. The district court denied his request and sentenced Nelson in accordance with the adult felony sentencing scheme.

On appeal, Nelson argued that the district court erred by failing to apply the amended direct filing statute to his case and remanding his case to the juvenile court for sentencing. House Bill 12-1271 did not change the district court’s discretion to sentence Nelson as an adult. Therefore, the judgment of conviction and sentence were affirmed.

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

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

HB 13-1214: Reclassifying Certain DUI Offenses as Felonies and Requiring Alcohol Monitoring and Use of Vehicle Interlock Devices

On February 1, 2013, Rep. Mark Waller introduced HB 13-1214 – Concerning the Classification of Certain Drunken Driving Offenses as Felonies, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a conviction for DUI, DUI per se, or DWAI is considered a misdemeanor offense. The bill states that such an offense is a class 5 felony if:

  • The violation occurred not more than seven years after the first of two prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; or vehicular assault; or
  • The violation occurred after three prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; vehicular assault; or any combination thereof.

Under current law, when a person is sentenced to a period of probation as part of a second or subsequent conviction for DUI, DUI per se, or DWAI, the court:

  • May require the person to use an approved ignition interlock device during the period of probation at the person’s own expense; and
  • May require the person to submit to continuous alcohol monitoring using such technology or devices as are available to the court for such purpose.

Under the bill, the court is required to impose these conditions on such offenders.

If a person is sentenced to a period of probation pursuant to a class 5 felony conviction of DUI, DUI per se, or DWAI, the court shall not grant early termination of probation before the person has successfully completed at least two years of probation.

The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. On Feb. 21, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.