April 19, 2018

Colorado Supreme Court: Trial Court Did Not Abuse Discretion by Failing to Appoint GAL Sua Sponte

The Colorado Supreme Court issued its opinion in Ybanez v. People on Monday, March 12, 2018.

Ybanez petitioned for review of the court of appeals’ judgment affirming his conviction of first degree murder and directing that his sentence of life without the possibility of parole be modified only to the extent of permitting the possibility of parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014). In an appeal of his conviction and sentence, combined with an appeal of the partial denial of his motion for postconviction relief, the intermediate appellate court rejected Ybanez’s assertions that the trial court abused its discretion and violated his constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was denied the effective assistance of counsel both because his counsel’s performance was adversely affected by a non-waivable conflict of interest under which that counsel labored and because he was prejudiced by a deficient performance by his counsel; and that he was entitled to an individualized determination regarding the length of his sentence rather than merely the possibility of parole after forty years.

The supreme court affirmed the judgment of the court of appeals and remanded the case with directions to return it to the trial court for resentencing consistent with the supreme court opinion, for the reasons that Ybanez lacked any constitutional right to a guardian ad litem and the trial court did not abuse its discretion in not appointing one as permitted by statute; that Ybanez failed to demonstrate either an adverse effect resulting from an actual conflict of interest, even if his counsel actually labored under a conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell below the required standard of competent representation; and that Ybanez is constitutionally and statutorily entitled only to an individualized determination whether life without the possibility of parole or life with the possibility of parole after forty years is the appropriate sentence.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Previously Unresolved Issues Decided Against Defendant’s Position

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, July 13, 2017.

Statutory DUI Affirmative Defense Instruction Not Given Sua Sponte—C.R.S. § 42-4-1301(2)(a)—Jury Instruction—Jury Questions—Invited Error.

In 2014 COA 149, the Colorado Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Colorado Supreme Court reversed and remanded to the court of appeals. Before the supreme court’s mandate was issued, defendant requested that the court of appeals decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The court of appeals granted the request.

Defendant first argued that the trial court erred in failing to sua sponte instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.

It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the supreme court stated in Montoya v. People, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the court found no error in the trial court’s failure to instruct the jury sua sponte on the affirmative defense.

Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.

Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the court declined to reconsider whether the prosecution disproved the affirmative defense.

The court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the court concluded any error was invited.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Inconsistent Jury Verdicts Necessitate New Trial

The Colorado Court of Appeals issued its opinion in People v. Delgado on Thursday, December 1, 2016.

The victim was drinking at a bar and left, drunk, around closing time. He went back to the bar, but the doors were locked. The victim began pounding on the door and the bar personnel called the police. The victim eventually gave up and started walking away. He saw two men walking toward him and turned around. He was attacked from behind; someone hit and kicked him until he collapsed, unconscious.

An officer responding to the bar’s call saw Delgado bending over the unconscious victim, going through his pockets. The officer shouted at Delgado to stop, but he took off running. Backup officers arrived in time to chase and arrest Delgado.

At trial, the prosecution argued that Delgado could be convicted of both robbery and theft from the person of another. The trial court gave instructions on each, and the jury convicted Delgado of both offenses. The robbery instruction informed that Delgado could be found guilty if he 3. knowingly, 4. took anything of value, 5. from the person or presence of another, 6. by the use of force, threats, or intimidation. The theft from the person of another instruction informed that Delgado could be found guilty if he 3. knowingly, a. obtained or exercised control over, b. anything of value, c. which was the property of another person, d. without authorization or by threat or deception, and 4. with intent to permanently deprive the other person of the use or benefit of the thing of value, and 5. the thing of value was taken, a. from the person of another, b. by means other than the use of force, threats or intimidation.

On appeal, Delgado argued that the verdicts were legally and logically inconsistent. Both parties agreed the inconsistent verdict issue was not preserved, so the court of appeals reviewed for plain error. The court of appeals concluded that the force elements of the two crimes were legally and logically inconsistent, since the robbery count required use of force, threats, or intimidation, whereas the theft count required that the theft be committed by means other than the use of force, threats, or intimidation. The court found the error was plain because it casts serious doubt on the reliability of the conviction.

The prosecution argued that the court of appeals should enforce the more serious conviction for robbery and vacate the theft conviction. The court of appeals disagreed, finding that when jury verdicts are legally and logically inconsistent, there is no way to know what the jury actually found. It is not possible to discern the jury’s intent. The court thus remanded for a new trial.

The court of appeals reversed the judgment and sentence and remanded for a new trial with the prosecution choosing to retry Delgado on either the robbery count or the theft count, and, if the prosecution chooses to submit both counts, the jury must be instructed that it can choose one count or the other but not both.

Colorado Court of Appeals: District Court Lacked Authority to Rule on People’s Motion

The Colorado Court of Appeals issued its opinion in People v. Wood on Thursday, September 22, 2016.

Felony Murder—Second Degree Murder—Habeas Corpus Petition—State District Court—Federal Court—Jurisdiction.

In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past 10 years, Wood has sought to remove his felony murder conviction. The Tenth Circuit conditionally granted Wood’s habeas corpus petition, noting that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. Thereafter, the state district court granted the People’s request to vacate the second degree murder conviction, rather than the felony murder conviction.

On appeal, Wood contended that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. The People had the authority to file their request to notify the state district court of the federal district court’s conditional grant of habeas corpus relief and request that the state court vacate the conviction. Though the district court had subject matter jurisdiction, it did not have the authority to vacate Wood’s second degree murder conviction. The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood’s mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Accordingly, the state district court’s order was vacated, and the case was remanded with instructions for the state district court to vacate Wood’s felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Err in Considering Unredacted Invoices on Remand

The Colorado Court of Appeals issued its opinion in Thompson v. United Securities Alliance, Inc. on Thursday, September 8, 2016.

Judgment—Garnishment—Mandate—Prejudgment Interest—Post-judgment Interest.

Plaintiffs obtained a judgment against United Securities Alliance, Inc. (United), and then instituted garnishment proceedings against Catlin Insurance Company (UK) Ltd. (Catlin), United’s insurer. The district court deducted from the policy limit the amount of attorney fees incurred by Catlin in defending the underlying arbitrations against United, and entered judgment for plaintiffs for the remainder of the policy. The court denied plaintiffs’ requests for pre- and post-judgment interest.

On appeal, plaintiffs contended that the district court acted beyond the scope of the court of appeals’ mandate because, by considering the unredacted attorney fees invoices submitted after the mandate, the district court expressly disregarded the mandate’s instruction to review “the existing record.” Given the unusual procedural posture of this case and the largely “indiscernible” unredacted invoices, the language to review “the existing record” was permissive rather than restrictive, and the remand order meant that the district court could rely exclusively on the existing record to calculate reasonable fees, not that it had to. Accordingly, the district court did not err in considering the unredacted invoices.

Plaintiffs next contended that the district court erred in declining to award prejudgment interest pursuant to C.R.S. § 5-12-102(1). This statute, however, governs contract and property damage cases. Because garnishment actions do not result in damages to the garnishor, prejudgment interest is not appropriate.

Plaintiffs also argued that an award of post-judgment interest was mandatory under C.R.S. § 5-12-106(1)(b) and the district court erred by denying their request. Because the court of appeals’ mandate did not direct the district court to award post-judgment interest and plaintiffs did not request that the court amend its mandate, the district court correctly held that it lacked jurisdiction to make such an award.

The judgment was affirmed.

Summary available courtesy of The Colorado Lawyer.

Tenth Circuit: Remand Order Non-Reviewable Where Based on Lack of Unanimity

The Tenth Circuit Court of Appeals issued its opinion in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation on Thursday, August 13, 2015.

Ryan Harvey and other plaintiffs filed a complaint in Utah state court against the Ute Indian Tribe of the Uintah and Ouray Reservation, seeking a declaration regarding the authority of the Tribe over non-Indian businesses operating on certain categories of land. Plaintiffs also alleged three individuals affiliated with the Uintah Tribal Employment Rights Office had harassed and extorted Plaintiffs. Defendants filed a motion to dismiss, arguing that service of process had been insufficient, the state court lacked jurisdiction in the absence of a valid waiver of tribal immunity, the Tribe and its officers were immune from suit but were indispensable parties, and Plaintiffs failed to exhaust administrative remedies in tribal court. Following a hearing on the motion to dismiss, the state court ordered further briefing regarding whether the defendants’ motion constituted a general appearance. The court granted Plaintiffs’ motion to amend its complaint to add defendants.

Defendants filed a notice of removal in the U.S. District Court for the District of Utah, stating that certain defendants consented to removal and the others would consent. All except one eventually consented to removal. Plaintiffs then filed a motion to remand, arguing the initial defendants waived their right to remove by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and the federal court lacked subject matter jurisdiction. The district court granted the motion to remand, finding the initial defendants waived their right to consent to removal because they manifested an intent to litigate in state court, and the unanimity requirement could not be met.

The Tenth Circuit first noted that 28 U.S.C. § 1447(d) specifies that a district court order remanding to state court is “not reviewable on appeal or otherwise.” Following Supreme Court precedent establishing that some orders are reviewable despite the statute’s plain language, the Tenth Circuit noted that § 1447(d) has been interpreted to preclude review only for lack of subject matter jurisdiction or defects in removal procedure. The Tenth Circuit commented that although the circuits are split on whether remand based on waiver is reviewable, it would only address remand for lack of unanimity. The Tenth Circuit evaluated whether the remand was based on lack of unanimity and found that it was. The Tenth Circuit declined to review the remand order.

The Tenth Circuit granted appellees’ motion to dismiss and dismissed the appeal.

Colorado Court of Appeals: Remand Necessary Where Mother Improperly Vouched for Child’s Veracity

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

Sexual Assault on a Child—Testimony—Veracity.

For a number of years, defendant lived with his female cousin and her young daughter, I.W. I.W. was friends with J.K. According to J.K., when she was between the ages of 6 and 8 years old, defendant, on numerous occasions while she was sleeping, sexually assaulted her. I.W. also reported that defendant sexually assaulted her when she was 8 years old. A jury found defendant guilty of three counts of sexual assault on a child and sexual assault on a child (pattern of abuse).

On appeal, defendant contended that the trial court erred in permitting J.K.’s mother, C.D., to essentially testify that J.K. was not lying when J.K. first reported that defendant had sexually assaulted her. A witness may not opine with respect to whether another person was telling the truth on a specific occasion. Here, when C.D. testified that J.K. did not engage in her typical “lying” behavior on that occasion, it implied C.D.’s opinion that J.K. was telling the truth on that occasion. Therefore, the evidence elicited by the prosecution in this case was improper. Because there was no physical evidence of, or eyewitness testimony to, the alleged sexual assaults against J.K., and defendant did not admit to sexually assaulting her, J.K.’s credibility was the critical issue before the jury in determining whether the sexual assaults had occurred. Consequently, the error was not harmless. Defendant’s convictions were reversed and the case was remanded for a new trial.

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

Tenth Circuit: Defendant’s Safety Valve Proffer Not Untimely at Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Figueroa-Labrada on Tuesday, March 24, 2015.

Jesus Figueroa-Labrada (Figueroa) was convicted by a jury of conspiring to distribute methamphetamine, and the district court attributed the entire amount of meth involved in the conspiracy to Figueroa. On direct appeal, the Tenth Circuit remanded for the district court to determine what amount should be attributed to Figueroa, and the district court changed the amount to a quantity carrying a five year mandatory minimum sentence. Before his resentencing hearing, Figueroa argued that he qualified for a “safety valve” sentence reduction under 18 U.S.C. § 3553(f). The government supported his request, but the district court decided that the language of § 3553(f)(5) precluded Figueroa’s use of the safety valve, since he had not been truthful before the original sentencing hearing.

As a matter of first impression, the Tenth Circuit determined that the plain language of § 3553(f) required the district court to consider the defendant’s proffered safety valve information if it was offered before resentencing. In this case, the district court held that because Figueroa had not provided the safety valve information before the initial sentencing hearing, he was not entitled to its use. The Tenth Circuit found the statutory language did not necessitate that the safety valve be invoked before the initial sentencing hearing, but rather before the sentencing hearing at issue.

The Tenth Circuit found that the district court’s error was not harmless and remanded. Judge Phillips dissented, finding instead that the district court considered and rejected Figueroa’s safety valve disclosures as untimely and there was no error.

Tenth Circuit: District Court Free to Resentence Remaining Counts De Novo When One Count Set Aside or Vacated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Catrell on Monday, December 22, 2014.

Ronald Catrell was indicted in Kansas on several fraud-related counts with an understanding that he would plead guilty. However, he fled after posting bond. When he was returned to Kansas the following year, he entered a different, binding plea agreement, agreeing to a sentence of 120 months. Before sentencing, however, the district court allowed Catrell to withdraw his guilty plea. The government then procured an indictment with over 12 new criminal counts. Catrell and the government entered into a new binding plea agreement, where Catrell would plead guilty to the same four crimes as before and receive 132 months in prison. To reach the 132 months, the parties agreed to a 24-month sentence for aggravated identity theft and a combined 108-month sentence for the other three counts to run consecutively. Defendant subsequently pled guilty and affirmed approximately 12 times that he was doing so of his own free will. The court accepted the agreement and sentenced Defendant to 132 months, but crafted the sentence differently — 54 months for aggravated identity theft and 78 months for the other three charges. Defendant appealed his aggravated identity theft charge and asserted prosecutorial vindictiveness for withdrawing his initially-agreed-upon plea for 120 months.

The Tenth Circuit first addressed Defendant’s assertion of prosecutorial vindictiveness, and found none. The Tenth Circuit noted that binding precedent foreclosed Defendant’s arguments on review, because as long as the accused is free to take or leave the government’s plea offer, there is no element of punishment or revenge.

Turning to the sentencing issue, the Tenth Circuit found that the district court had sentenced Defendant illegally by imposing a 54-month sentence for aggravated identity theft. The pertinent statute, 18 U.S.C. § 1028A, mandates a two-year sentence for each incident of aggravated identity theft. The Tenth Circuit reversed and remanded for correction of the illegal sentence. However, it rejected Defendant’s contention that the district court could not amend the rest of Defendant’s sentence. The Tenth Circuit’s “sentencing package doctrine” counsels that when one count of a sentence is set aside or vacated, a district court is free to reconsider sentencing de novo.

The Tenth Circuit remanded for resentencing with specific instructions for the district court to feel free to amend the entire sentence to retain the original 132-month agreement.

Colorado Court of Appeals: Question of Prospective Harm Inappropriate for Summary Judgment in Dependency and Neglect

The Colorado Court of Appeals issued its opinion in People in Interest of S.N. on Thursday, September 11, 2014.

Parental Rights—Termination—Dependency and Neglect—Summary Judgment—Prospective Harm.

The Boulder County Department of Human Services (Department) removed S.N. from her parents’ custody at birth because a hearing on termination of parental rights involving the parents’ three older children was pending. The trial court adjudicated S.N. dependent and neglected by summary judgment based entirely on a theory of prospective harm.

On appeal, the parents argued that the trial court erred by granting summary judgment on the Department’s petition for dependency and neglect regarding S.N. There were material facts that could affect the determination of whether S.N. should be adjudicated dependent and neglected. Therefore, the question of prospective harm was inappropriate for summary judgment because the parent’s prior conduct alone can never be sufficiently predictive of future conduct to take the question from a trier of fact by summary judgment. The judgment was reversed and the case was remanded with directions.

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

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 Court of Appeals: Claims of Error Not Raised in Original Appeal Outside Scope of Appeal on Remand

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

Sentence—CAR 28(k)—Issue on Appeal—Plain Error.

As the result of the prosecution’s appeal of defendant’s initial sentence in Notyce I, this case was specifically remanded to the trial court for resentencing to the twenty-four-year sentence required under the habitual criminal statute. Defendant appealed from that remand proceeding.

Specifically, defendant challenged the way in which the court imposed his sentence on remand. Defendant failed to indicate, however, where he raised this issue in the trial court pursuant to CAR 28(k). Any error in this case was not obvious and, therefore, not plain error. Accordingly, the Court of Appeals declined to address the merits of defendant’s sentencing contention, and the sentence was affirmed.

Summary and full case available here.