December 12, 2017

Colorado Court of Appeals: Parties Cannot Waive Statutory Time Period for Record Sealing

The Colorado Court of Appeals issued its opinion in Robertson v. People on Thursday, November 16, 2017.

Plea Agreement—Menacing—Consumption of Marijuana—Possession of Drug Paraphernalia—Consumption of Alcohol—Deferred Judgment—Petition to Seal—Statutory Waiting Period.

In 2014, Robertson was charged in three separate cases with (1) misdemeanor menacing; (2) consumption of marijuana and possession of drug paraphernalia; and (3) consumption and possession of alcohol by a person under 21. Robertson entered into a global plea agreement whereby he pleaded guilty to the menacing charge and received a deferred judgment lasting one year, the drug and alcohol cases were dismissed, and Robertson was permitted to seal the records of all three cases. After Robertson completed the deferred judgment, his guilty plea was withdrawn and the case was dismissed. He petitioned the court to seal the records in all three cases, which the court granted.

On appeal, the prosecution contended that the district court erred by granting Robertson’s petitions to seal the records in the drug and alcohol cases because C.R.S. § 24-72-702(1)(a)(III)(A) prohibits such sealing until at least 10 years have passed. Where a statute prohibits a court from sealing criminal records until 10 years have passed since the disposition of the criminal proceedings, as in this case, the parties may not waive this requirement and authorize the court to seal the records earlier. Therefore, the district court lacked authority to seal the criminal records in the drug and alcohol cases. The records in the menacing case, however, were eligible for sealing because that case was completely dismissed after Robertson completed the deferred judgment. However, the existing record in the menacing case was not sufficient to support the order.

The orders in the drug and alcohol cases were vacated. The order in the menacing case was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

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.

Tenth Circuit: District Court Erred in Manner It Denied Defendants’ Motion to Unseal DEA File

The Tenth Circuit Court of Appeals published its opinion in United States v. Pickard on Tuesday, November 5, 2013.

In 2003, a jury convicted Defendants of several drug offenses. At the trial, one of Defendants’ accomplices, Gordon Skinner, testified against them. Skinner acted as a confidential informant for the DEA during when he was involved with Defendants in their criminal conduct. During the trial, the court ordered the Government to turn that file over to the defense. At the same time, the court ordered the DEA file sealed. Eight years later, Defendants filed a motion to have the DEA file on Skinner unsealed so they could use this information in ongoing litigation under the Freedom of Information Act (FOIA). The district court denied Defendants’ motion to unseal the DEA records. Defendants appealed.

The Tenth Circuit concluded the district court erred in the manner in which it denied Defendants’ motion to unseal the file, for three reasons: The court (1) failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed; (2) did not apply the presumption that judicial records should be open to the public; and (3) did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed. Courts have long recognized a common-law right of access to judicial records.

For these reasons, the court REVERSED the district court’s decision to deny Defendants’ motion to unseal the records and REMANDED for the district court’s further consideration of that motion.

Protection Order Forms, Forms to Seal Juvenile Records Amended by State Judicial

In August and September 2013, the Colorado State Judicial Branch overhauled its Protection Order forms and issued revised forms in several different categories. State Judicial’s Probate forms were also amended in August, as previously reported by Legal Connection.

Forms are available for download here in PDF format by clicking the links below. State Judicial’s forms page has forms in PDF, Word, and Word template.

ADOPTION

  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 8/13)

CRIMINAL

  • JDF 475 – “Order to Discontinue Sex Offender Registration” (revised 9/13)

DOMESTIC

  • JDF 1099 – “Instructions for Filing a Dissolution of Marriage or Legal Separation if there are No Children of This Marriage or Children are Emancipated” (revised 8/13)
  • JDF 1100 – “Instructions for Filing a Dissolution of Marriage or Legal Separation with Children of This Marriage” (revised 8/13)
  • JDF 1266 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union if there are No Children of This Civil Union or Children are Emancipated” (revised 8/13)
  • JDF 1267 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union with Children of This Civil Union” (revised 8/13)

FILING FEES

  • JDF 202 – “Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees” (revised 8/13)

GARNISHMENTS

  • JDF 82 – “Instructions for Collecting a Judgment and Completing a Writ of Garnishment” (revised 8/13)
  • Form 26 – “Writ of Continuing Garnishment” (revised 8/13)
  • Form 29 – “Writ of Garnishment with Notice of Exemption and Pending Levy” (revised 8/13)
  • JDF 89 – “Notice to Garnishee, Application of Funds to Judgment, and Release of Funds to Judgment Creditor” (revised 8/13)

PROTECTION ORDERS

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 396 – “Instructions for Protected Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 8/13)
  • JDF 393 – “Verbal Emergency Protection Order” (revised 8/13)
  • JDF 394 – “Emergency Protection Order” (revised 8/13)
  • JDF 397 – “Motion to Modify or Dismiss Temporary or Permanent Protection Order” (revised 8/13)
  • JDF 398 – “Citation and Temporary Civil Protection Order” (revised 8/13)
  • JDF 399 – “Permanent Civil Protection Order” (revised 8/13)
  • JDF 401 – “Incident Checklist” (revised 8/13)
  • JDF 410 – “Order Modifying Protection Order” (revised 8/13)
  • JDF 413 – “Verified Motion for Contempt Citation” (revised 8/13)
  • JDF 440 – “Mandatory Protection Order” (revised 8/13)
  • JDF 442 – “Information Sheet for Registering a Protection Order” (revised 8/13)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile “JD” Case or Criminal “CR” Case (revised 8/13)
  • JDF 302 – “Petition for Expungement of Records” (revised 8/13)
  • JDF 304 – “Order for Expungement of Records” (revised 8/13)

Click here for all of State Judicial’s JDF forms.

Forms Regarding Protection Orders and Sealing Juvenile Cases Amended by State Judicial

The Colorado State Judicial Branch released several amended forms in August 2013, in the categories of filing fees, protection orders, and sealing cases. The forms can be downloaded here, or from State Judicial’s individual forms pages.

All forms are available in Adobe PDF format, and some are also available as Microsoft Word documents and templates.

FILING FEES

  • JDF 202 – “Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees” (revised 8/13)

PROTECTION ORDERS

  • JDF 395 – “Instructions for Restrained Person to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 396 – “Instructions for Protected Person to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 8/13)
  • JDF 393 – “Verbal Emergency Protection Order” (revised 8/13)
  • JDF 394 – “Emergency Protection Order” (revised 8/13)
  • JDF 397 – “Motion to Modify or Dismiss Protection Order” (revised 8/13)
  • JDF 398 – “Citation and Temporary Civil Protection Order” (revised 8/13)
  • JDF 399 – “Permanent Civil Protection Order” (revised 8/13)
  • JDF 401 – “Incident Checklist” (revised 8/13)
  • JDF 402 – “Verified Complaint/Motion for Civil Protection Order” (revised 6/13)
  • JDF 404 – “Affidavit Regarding Children” (revised 6/13)
  • JDF 410 – “Order Modifying Protection Order” (revised 8/13)
  • JDF 413 – “Verified Motion for Contempt Citation” (revised 8/13)
  • JDF 440 – “Mandatory Protection Order” (revised 8/13)
  • JDF 442 – “Information Sheet for Registering a Protection Order” (revised 8/13)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement – Juvenile “JV” Case or Criminal “CR” Case” (revised 8/13)
  • JDF 302 – “Petition for Expungement of Records” (revised 8/13)
  • JDF 304 – “Order of Expungement of Records” (revised 8/13)

For a complete listing of JDF forms, visit the Colorado State Judicial Branch website, or click here.

Colorado Court of Appeals: Statute Unclear About Sealing Records When Traffic and Non-Traffic Offenses Charged Together

The Colorado Court of Appeals issued its opinion in In re Petition of R.C. on Thursday, May 30, 2013.

Petition to Seal Records—Traffic Offenses—Non-Traffic Offenses.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The Court of Appeals reversed the order and remanded the case with directions.

Petitioner was charged with possession of marijuana (a class 2 petty offense), possession of drug paraphernalia (a class 2 petty offense), and unsafe lane change. After successful completion of a juvenile diversion program, all of the charges were dismissed with prejudice.

Petitioner argued that the court erred when it denied his petition to seal his records after all of the charges against him were dismissed with prejudice. Although CRS § 24-72-308 specifically prohibits the sealing of traffic infractions, the statute does not appear to contemplate petitions to seal records for cases that include both traffic offenses and non-traffic offenses. Therefore, if the district court “finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” as to the drug offenses, it should seal the criminal records as to those charges. Therefore, the order was reversed and the case was remanded for further proceedings consistent with this opinion.

Summary and full case available here.

Colorado Court of Appeals: Remand to Trial Court to Determine Whether Drug Charges Harm Defendant More than they Protect the Public

The Colorado Court of Appeals issued its opinion in Cox v. People on Thursday, May 9, 2013.

Seal Records of Non-Traffic Offense Charges—CRS § 24-72-308.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The judgment was reversed and the case was remanded with directions.

Petitioner was charged in the Douglas County Court with possession of marijuana (a class 2 petty offense); possession of drug paraphernalia (a class 2 petty offense); and unsafe lane change (a class A traffic offense). He successfully completed a juvenile diversion program and all charges were dismissed with prejudice.

Petitioner then filed a verified petition requesting that the records of the case be sealed. The prosecution objected, relying on Clark v. People, 221 P.3d 447 (Colo.App. 2009). At the hearing, both parties agreed that Clarkwas controlling, but petitioner argued the dissent in that case was a better-reasoned approach to interpreting CRS § 24-72-308. The district court disagreed and petitioner appealed. The Court of Appeals reversed.

Judge Russel’s dissent in Clark agreed with the majority that the court cannot seal “records pertaining to” traffic infractions. However, he did not agree that it foreclosed relief, because (1) he saw no practical impediment to offense-specific sealing; (2) he believed that offense-specific sealing would further legislative policy; and (3) he concluded that the statute does not prohibit offense-specific sealing.

The Court stated that the purpose of the statute is to relieve a very limited number of persons charged with criminal offenses from the stigma that comes with having been charged with an offense but not convicted of it. Here, petitioner requested sealing of the entire criminal record, and the Court found that the statutory purpose could be satisfied by sealing records of non-traffic offenses in a criminal record that contained both. Petitioner lost one job and was denied another based on his criminal record, and the Court did not believe it was because of the routine traffic offense.

Therefore, the Court reversed the judgment. On remand, the district court must determine, as to the drug offenses, whether “the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” and, if so, whether the court should seal the criminal record as to those charges.

Summary and full case available here.