July 20, 2017

Tenth Circuit: 18 U.S.C. § 3583 Allows Sentences Greater than One Year for Violations of Terms of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Collins on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine if the maximum allowable term of incarceration following a second violation of the terms of supervised release under 18 U.S.C. § 3583(e)(3) refers to the original crime or the violation of the terms of the supervised release. Howard Collins was originally convicted of a Class B felony for knowingly and intentionally distributing more than five grams of (in this case) crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After his initial period of incarceration, he was granted supervised release. After violating his supervised release once before, upon his second violation of the terms of his release, the court sentenced him to one-year re-incarceration under the belief that § 3583(e)(3) permitted a one-year maximum term.

Section 3583(e)(3) stipulates the maximum allowable period of re-incarceration where supervised release has been revoked is the length of the supervised release authorized by statute for the offense that resulted in the supervised release. On appeal, the government asserted that the district court improperly read the statute to preclude a re-incarceration period over one year. The government argued that the language of the statute relating to the “offense that resulted in such term of supervised release” referred to the original offense for which Collins was convicted (which would allow for a three year maximum), not the violation of his supervised release. In interpreting the statute, the court noted that revocation of supervised release, while often leading to incarceration, is not in and of itself a crime and is only subject to a preponderance of the evidence standard. As incarceration for a criminal offense under a standard less than beyond a reasonable doubt would be a violation of the Due Process Clause, the court reasoned that the “offense” referenced in the statute was the original offense for which Collins was charged.

Looking to the holding in the Supreme Court case of Kellogg Brown & Root Servs. Inc. v. United States ex rel. Carter, the court stated that the interpretation of the term “offense” to be the original offense for which someone was convicted is applicable to the entirety of Title 18, (at issue here). At the outset, Collins argues that the court’s interpretation of the term original must, in his case, relate to his violation of the terms of supervised release because the phrase “resulted in” requires actual causation, and “but for” his first violation of supervised release he would no longer be on a term of supervised release to violate. The court rejects this contention, stating that Collins’ reading of the statute and the holding in Burrage v. United States to require actual and proximate cause, if adopted, would require the court to to over look the aforementioned due process issues. Furthermore, the court states that ‘but-for’ his original conviction, he could not have been sentenced to a term of supervised release upon either revocation.

In further opposition to the court’s interpretation, Collins supports his own interpretation by asserting that the statutory history of § 3583(e)(3) and (h), including its cross-reference to § 3553(a)(1) leads to an interpretation that the term ‘offense’ means violation of his supervised release. The court, again citing Kellogg to reject Collins’ interpretation, said that because the term ‘offense’ under Title 18 has been interpreted to mean the original offense for which he was convicted, the cross-reference to § 3553 (a)(1) would also carry that interpretation. In Collins’ final challenge to the court’s interpretation, he asserted that because prior to a 1994 amendment the statute referred to “the offense for which the person was convicted” (emphasis added), as opposed to the current iteration that replaced ‘convicted’ with ‘offense’, Congress specifically intended to include violations of the terms of statutory release. The court also rejected these arguments under Kellogg, stating that because Title 18 refers to crimes as the original ‘offense’, the term must be given the same meaning throughout the statutory scheme. Furthermore, the court added, the amendment worked to actually expand the sentencing court’s authority, and an interpretation that limited the court’s ability to sentence a term of imprisonment for revocation of supervised release would be inconsistent with that intention.

The Tenth Circuit Court of Appeals reversed the sentencing order of one-year, and remanded the case with the instruction that the court vacate its revocation judgment and resentence Collins.

Tenth Circuit: Sentencing Enhancement Properly Applied When Defendant Conceded to Crime of Violence

The Tenth Circuit Court of Appeals published its opinion in United States vSnyder on Tuesday, March 28, 2017.

Mr. Snyder pleaded guilty to possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) while on probation. The probation officer recommended a base offense level of 20 pursuant to United States Sentencing Guidelines (USSG) § 4B1.2(a)(2), because Mr. Snyder had a prior conviction of a crime of violence. Mr. Snyder sought a reduction to the base offense level pursuant to USSG § 2K2.1(b)(2). The district court held that Mr. Snyder’s prior conviction of voluntary manslaughter was a crime of violence and he was not entitled to a reduced sentence. Mr. Snyder appealed.

The Tenth Circuit ordered supplemental brief to determine whether the residual clause of USSG § 4B1.2(a)(2) provided a basis for Mr. Snyder’s sentencing enhancement if his prior conviction of voluntary manslaughter was a crime of violence. Mr. Snyder’s supplement brief conceded that his prior conviction was a crime of violence. Further, the Supreme Court reasoned in Beckles “the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence with the statutory range.”

The court concluded that the district court properly applied the sentencing enhancement and affirmed Mr. Snyder’s sentence.

Colorado Court of Appeals: Remand Granted for Extended Proportionality Review

The Colorado Court of Appeals issued its opinion in People v. Oldright on Thursday, June 29, 2017.

First Degree AssaultAbbreviated Proportionality ReviewHabitual CriminalPrior ConvictionsExtended Proportionality Review.

A jury convicted Oldright of first degree assault based on evidence that he hit the victim in the head with a metal rod. Following trial, the court conducted an abbreviated proportionality review, adjudicated Oldright a habitual criminal, and sentenced him to 64 years in prison. Oldright’s prior offenses included aggravated driving after revocation prohibited, forgery, fraud by check, theft by receiving, and theft.

On appeal, Oldright contended that the court erred in finding that the triggering offense was grave or serious. Oldright’s triggering offense, first degree assault, is a grave and serious offense because the legislature deems it a crime of violence and an extraordinary risk crime, Oldright used a deadly weapon to commit the crime, and the victim suffered serious bodily injury.

Oldright also argued that the court erred in concluding that all of his prior convictions were serious simply because they were felonies. Although first degree assault is a grave and serious offense, not all of Oldright’s prior offenses were serious because the General Assembly had reclassified three his prior felony convictions as misdemeanors (making them an ineligible basis for habitual sentencing), and one of the prior felonies from a class 4 felony to a class 5 felony. Because the court failed to consider these legislative changes in determining whether Oldright’s sentence was disproportionate, the sentence was vacated and the case was remanded for an extended proportionality review of Oldright’s habitual criminal sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statutory Continuous Sentence Requirement Applies to Both Concurrent and Consecutive Sentences

The Colorado Supreme Court issued its opinion in Executive Director of the Colorado Department of Corrections v. Fetzer on Monday, June 26, 2017.

Parole Eligibility.

The Department of Corrections petitioned for review of the court of appeals’ judgment reversing an order of the district court that denied Fetzer’s petition pursuant to C.R.C.P. 106(a)(2). Fetzer’s petition sought an order compelling the recalculation of his parole eligibility date, asserting that the Department’s “governing sentence” method, which calculated his parole eligibility date solely on the basis of the longest of his concurrent sentences, violated the statutory requirement that his multiple sentences be treated as one continuous sentence. The court of appeals reversed and remanded for recalculation, reasoning both that, contrary to the Department’s understanding, the statutory continuous sentence requirement applies to concurrent as well as consecutive sentences and that the Department’s “governing sentence” method of calculation could not apply to Fetzer’s sentences because they were all subject to the same statutory parole provisions.

The supreme court held that, because the “governing sentence” theories that have previously been sanctioned by this court have served to determine the statutory parole and discharge provisions applicable to a single continuous sentence and the manner in which those provisions can be meaningfully applied to it, rather than as an alternative to the statutory continuous sentence requirement itself, the Department erred in simply substituting Fetzer’s longest sentence for the required continuous sentence. Because, however, Fetzer’s multiple sentences are not all subject to the same statutory parole provisions, as indicated in the court of appeals’ opinion, reference to a governing sentence, or some comparable means of determining the applicable incidents of his parole, may remain necessary to the calculation of Fetzer’s parole eligibility date. The judgment of the court of appeals reversing the district court’s order was therefore affirmed. Its remand order, directing the Department to recalculate Fetzer’s parole eligibility date in accordance with its opinion, however, was reversed, and the case was remanded with directions that it be returned to the district court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Sentences Amounting to Life for Juvenile Not Unconstitutional

The Colorado Supreme Court issued its opinion in Lucero v. People on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment—Colorado Rules of Criminal Procedure 35(b) and 35(c).

The Colorado Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S.Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. Graham holds that the Eighth Amendment to the U.S. Constitution prohibits the sentence of life without parole for a juvenile non-homicide offender. Miller bars mandatory life without parole for any juvenile offender. Because life without parole is a specific sentence imposed for a single offense, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court thus held that Graham and Miller do not apply to Lucero’s aggregate term-of-years sentence. The court also considered whether the court of appeals erred by treating Lucero’s Rule 35(b) motion for sentence reduction as a Rule 35(c) motion challenging the constitutionality of his sentence. Because a court may properly characterize a mischaracterized issue, and Lucero argued that his sentence must be reduced under Graham to meet constitutional standards, the court held that the court of appeals did not err. Accordingly, the supreme court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Term-of-Years Sentences for Juvenile Held Constitutional

The Colorado Supreme Court issued its opinion in People v. Rainer on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Rainer’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Graham and Miller Do Not Apply to Aggregate Term-of-Years Sentences

The Colorado Supreme Court issued its opinion in Armstrong v. People on Tuesday, May 30, 2017.

Life without parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Armstrong’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Constitutional Violation for Juvenile’s Aggregate Term-of-Years Sentence for Multiple Violations

The Colorado Supreme Court issued its opinion in Estrada-Huerta v. People on Monday, May 22, 2017.

Life without parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court therefore held that Graham and Miller do not apply to Estrada-Huerta’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Abuse of Discretion by Imposing Within-Guidelines Sentence after Variance Request

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-United States Sentencing Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines  set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly every child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error.  The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments.  If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support.  The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Crime of Violence Sex Offense Sentence Cannot be Reduced to Probation

The Colorado Court of Appeals issued its opinion in People v. Al-Turki on Thursday, April 6, 2017.

Colorado Sex Offender Lifetime Supervision Act—Probation—C.R.S. § 18-1.3-406(1)(a) and (b)—Crime of Violence—Sex Offender.

Al-Turki was convicted under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA) of 12 counts of unlawful sexual contact through use of force, intimidation, or threat. The district court ultimately sentenced him to indeterminate prison terms of six years to life. Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under C.R.S. § 18-1.3-406(1)(a). The trial court denied the motion.

On appeal, Al-Turki contended that he was eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, C.R.S. § 18-1.3-406(1)(b), modified to probation under C.R.S. § 18-1.3-406(1)(a). The mandatory sentencing for violent crimes statute, C.R.S. § 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses (C.R.S. § 18-1.3-406(1)(b)) and those that do not involve sex offenses (C.R.S. § 18-1.3-406(1)(a)). C.R.S. § 18-1.3-406(1)(b) provides that defendants convicted of a sex offense that is a crime of violence “shall” be sentenced to an indeterminate term of incarceration. Thus, a crime-of-violence sex offender is not eligible for probation. Al-Turki was convicted of a sex offense that is a crime of violence. Therefore, the district court did not err in concluding that C.R.S. § 18-1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to probation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Challenge to Sentence Moot when Court Affirmed on Evidentiary Complaints

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, April 6, 2017.

Murder—Robbery—DNA Evidence—Collateral Estoppel—Expungement—Constitutionality—Katie’s Law—Surveillance Camera—Evidence—Jury.

A jury convicted Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. Valdez was sentenced to life without the possibility of parole on the first degree murder count, was consecutively sentenced to 32 years on the aggravated robbery count, and received concurrent sentences on the other counts.

On appeal, Valdez argued that the match of his DNA to the DNA evidence from the crime scene was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge in a traffic case. Valdez’s DNA sample was taken during his arrest for aggravated driving under restraint—habitual offender. Although Valdez pleaded guilty to a misdemeanor in that traffic case and was eligible to apply for DNA expungement under C.R.S. § 16-23-105 (part of Katie’s Law), he failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea. The constitutionality of Katie’s Law was not determined in the traffic case. Because Katie’s Law, as applied to Valdez, is constitutional, the trial court did not err in denying his motion to suppress.

Valdez also argued that the district court erred in admitting a surveillance camera video of the robbery in progress depicting the owner’s dying moments because it was unfairly prejudicial, and further erred by improperly giving the jurors unfettered access to replay all of the videos during deliberations. The recording of the robbery in progress showed the actual crime. Therefore, it was not unfairly prejudicial, and the trial court did not abuse its discretion by admitting the surveillance video from the overhead camera. Additionally, the videos were played for the jurors only after their request, and the court clerk supervised the playback. Therefore, the trial court did not abuse its discretion in declining to limit the number of times the jury could view the videos or in refusing to impose other restrictions on the jury’s consideration of them.

Having affirmed Valdez’s convictions on all charges, including first degree murder, Valdez’s argument that it was error to impose a lesser sentence consecutively rather than concurrently is moot.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.