September 21, 2017

Colorado Court of Appeals: Statute of Limitations Tolled While Defendant Incarcerated in Minnesota

The Colorado Court of Appeals issued its opinion in People v. Butler on Thursday, September 7, 2017.

Sexual Assault—Child—Statute of Limitations—Tolling—Out-of-State.

In 1995, Butler was convicted in Colorado and sentenced to 14 years’ imprisonment for sexually assaulting a child. In 1999, the Colorado Department of Corrections (DOC) placed Butler in a Minnesota prison, where he served the remainder of his Colorado sentence until he was released in 2006. A month after his release, Butler attempted to contact L.W., prompting L.W. to report abuse he had allegedly suffered as a child between January 1992 and May 1995. Charges were then brought against Butler in the present case based on L.W.’s allegations of sexual assault, and he was convicted. Butler filed a Crim. P. 35(c) motion asserting that the charges were barred by the applicable 10-year statute of limitations. The postconviction court denied Butler’s motion based on tolling of Colorado’s limitations period while Butler was incarcerated and thus “absent from the state of Colorado.” Butler did not raise the statute of limitations argument on direct appeal.

The people initially contended that Butler was barred from pursuing his statute of limitations claim in a postconviction proceeding under the abuse of process rule. However, under an exception to the abuse of process rule, any claim that the sentencing court lacked subject matter jurisdiction may be pursued in a postconviction proceeding. Consequently, Butler’s claim was not barred.

On appeal, Butler contended that the postconviction court erred in ruling that the trial court had subject matter jurisdiction for purposes of the statute of limitations’ tolling provision because he was absent from Colorado while he was incarcerated in Minnesota for his prior Colorado convictions. The Colorado Court of Appeals concluded that a defendant is “absent” from Colorado for statute of limitations purposes when he has been transferred by the DOC to an out-of-state facility to serve out the remainder of a Colorado sentence. Consequently, the applicable 10-year limitations period was tolled while Butler was in Minnesota. Additionally, under the circumstances here, the prosecution’s failure to plead Butler’s absence from the state did not deprive the court of jurisdiction to proceed.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: “Legal Disability” Means Inability to Bring Lawsuit Due to Some Policy of Law

The Colorado Court of Appeals issued its opinion in T.D. v. Wiseman on Thursday, August 10, 2017.

“Legal Disability” for Tolling Statute of Limitations—C.R.S. § 13-80-103.7(3.5)(a).

T.D.’s complaint alleged she had endured 10 years of sexual and physical abuse from defendant, her former stepfather. She alleged that she was 7 years old when the abuse began and that it continued until about 1990, when she was in high school. She alleged that the abuse caused her to become dependent on drugs and alcohol, and she suffered from post-traumatic stress disorder, psychological disorders, self-mutilation, eating disorders, depression, and a cycle of abusive relationships.

In August 2005, T.D. disclosed defendant’s alleged abuse to the doctors who had been treating her. She attempted suicide in 2012. Thereafter she was able to maintain sobriety. T.D. filed a lawsuit in 2015 asserting assault, battery, sexual assault and battery, extreme and outrageous conduct, and false imprisonment. Defendant filed a motion for summary judgment, asserting that T.D.’s claims had accrued in 2005 when she disclosed the alleged abuse to her doctors. Consequently, her claims were time-barred by the six-year statute of limitations in C.R.S. § 13-80-103.7(1). T.D. argued that the record contained genuine issues of material fact concerning whether she had been a “person under disability” until 2012 because of her addictions and psychiatric disorder, so the statute would have been tolled until her disability was lifted. The trial court granted the motion for summary judgment, finding no genuine issues of material fact in the record about when her claims accrued or whether the statute of limitations barred those claims.

The court of appeals determined that the issue of when the claim accrued was not properly before it, and assumed it accrued at the latest in 2005. The court then considered whether there was a factual dispute about whether the applicable statute of limitations was tolled because T.D. was a “person under disability.” Under C.R.S. 13-80-103.75(3.5)(a), a “person under disability” is a person who is (1) a minor under 18 (2) “declared mentally incompetent”; (3) “under other legal disability and who does not have a legal guardian”; or (4) “in a special relationship with the perpetrator of the assault” and “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.” T.D. was 43 when the trial court granted the summary judgment motion, so she was not a minor from 2005 to 2011, when the statute of limitations was running. The record did not contain disputed facts about whether she was mentally incompetent during the years during which the statute of limitations ran. The court concluded that “legal disability” denotes an inability to bring a lawsuit based on a “policy of the law.” No facts in the record indicated that T.D. lacked the power to timely bring her suit. Lastly, while a familial relationship can constitute a “special relationship,” T.D. did not demonstrate that she was “psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm.”

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: No Sixth Amendment Violation where Court Disallowed Questioning Regarding Victim’s Mental Health

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted after a jury trial of one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “ An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tent Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Colorado Supreme Court: Costs of SANE Exam Extraordinary and Therefore May Be Recovered as Restitution

The Colorado Supreme Court issued its opinion in Teague v. People on Monday, June 5, 2017.

Criminal Law—Sentencing and Punishment—Costs Taxable Against Defendant.

In this consolidated opinion, the supreme court addressed whether sexual offenders must shoulder the cost of their victims’ forensic medical examinations as criminal restitution. By statute, such restitution may include “extraordinary direct public . . . investigative costs.” The court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is “extraordinary” for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

Summary provided courtesy of The Colorado Lawyer.

HB 17-1109: Expanding Permissible Venues for Prosecution of Child Sexual Assault Pattern Offenses

On January 20, 2017, Reps. Terri Carver & Jessie Danielson and Sens. John Cooke & Rhonda Fields introduced HB 17-1109, “Concerning Prosecuting in One Jurisdiction a Person who has Committed Sexual Assaults Against a Child in Different Jurisdictions.”

In current law, several sex-assault-on-a-child crimes are designated ‘pattern’ offenses, meaning that the defendant has a pattern of sexually assaulting the same child repeatedly. When such assaults occur in more than one jurisdiction, the district attorney in each such jurisdiction must prosecute a case for the incident that occurred in his or her jurisdiction.

The bill allows a prosecutor to charge and bring a pattern-offense case for all such assaults in any jurisdiction where one of the acts occurred. The bill allows the prosecution of a defendant charged with sex-assault-on-a-child pattern offense or sex-assault-on-a-child-in-a-position-of-trust pattern offense to be tried:

  • In a county where at least one or more of the incidents of sexual contact occurred;
  • In a county where an act in furtherance of the offense was committed; or
  • In a county where the victim resided during all or part of the offense.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

Colorado Court of Appeals: No Time Limit Exists for Prosecuting Sexual Assaults Where DNA Proves Defendant’s Identity

The Colorado Court of Appeals issued its opinion in People v. Shores on Thursday, September 8, 2016.

Sexual Assault—Statute of Limitations—CRE 404(b) Evidence.

In 1994, an elderly woman was found badly beaten and sexually assaulted. No suspect was initially identified. The victim died in 2000 from cancer. In 2010, the DNA evidence from the victim’s case was matched to Shores’s DNA, but the district attorney’s office chose not to file charges against Shores at that time. Several years later, the Denver Police Department learned that Shores had been tied, through DNA, to a 2013 sexual assault of a woman, D.B., in Texas. This information led to the 2014 charges against Shores for first degree sexual assault and a crime of violence enhancer. Shores was convicted as charged.

On appeal, Shores argued that the trial court erred in denying his motion to dismiss for failure to file charges within the 10-year statute of limitations in effect in September 1994. The change in the statute, however, provides that there is no time limit for prosecuting certain sexual assaults committed after July 1, 1991, if (1) the defendant’s identity is determined in whole or in part by DNA and (2) the offense is reported to a law enforcement agency within 10 years after its commission. Shores conceded that his identity was determined by DNA but argued that the second prong was not met because the victim herself did not report the crime to law enforcement. The statute does not require that the victim be the person who reported the offense, only that the offense was reported. Here, the police had known about the physical assault on the victim from their response to the initial call, and they received further information from the hospital about her condition, including the results of the sexual assault examination kit.  Accordingly, there was no statutory time limit in which to file charges against Shores, and the trial court correctly denied his motion to dismiss.

Shores next argued that the trial court abused its discretion in admitting CRE 404(b) evidence of the 2013 sexual assault in Texas. The evidence relating to D.B. was probative of the ultimate fact of whether Shores committed the offense charged and was logically relevant independent of bad character evidence because it had a tendency to make it more probable that the victim did not consent than it would be without the evidence. The court acted within its discretion in determining that the danger of unfair prejudice did not outweigh the probative value of this evidence.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Enhancement Requires Proof of At Least Two Distinct Instances

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, February 11, 2016.

William Edward Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Johnson had anally raped her earlier that day and had been sexually abusing her for years. Johnson was charged with one count of sexual abuse on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of abuse. The jury found Johnson guilty of the anal rape but none of the other listed incidents of sexual assault. The jury convicted Johnson of the pattern of abuse enhancer based on the anal rape and another incident where Johnson was asleep and woke up ejaculating as R.B. was “grinding” on him. The trial court merged all the convictions into the sexual assault on a child as a pattern of abuse conviction and sentenced Johnson to 20 years to life.

On appeal, Johnson argued the evidence was insufficient to support the sentence enhancer, and the court of appeals agreed. The jury had rejected all of the incidents listed by the prosecution except the anal rape and instead wrote in the incident where R.B. was grinding on Johnson while he slept. The court disagreed with Johnson’s contention that the jury was bound to consider only the specifically listed incidents, finding instead that the jury need only agree unanimously that the defendant committed the same act or acts or all of the acts described by the victim. However, evaluating the incident in question, the court found insufficient evidence to support his conviction based on that incident, because he was asleep at the time of the incident and therefore could not have knowingly committed the act. Therefore, only one of the specific incidents found by the jury qualified as sexual assault, and the enhancer could not apply. The court of appeals remanded for resentencing.

Johnson also argued the trial court erred in denying his request for substitute counsel based on his dissatisfaction with the level of communication present with current counsel. The trial court denied Johnson’s motion, finding that counsel’s failure to visit Johnson in prison did not indicate deficient performance, and also noting that it had observed counsel in other trials and she had always provided effective assistance. The court of appeals affirmed the trial court’s denial of Johnson’s motion for substitute counsel, finding that mere difficulties in communication do not constitute deficient performance.

Next, the court evaluated Johnson’s claim that the jury’s access to the videotaped interview of R.B. was unduly prejudicial. The trial court in this case understood its obligation to consider certain restrictions on the jury’s view of the videotape and imposed restrictions. Because the court considered its duty and restricted the jury’s access, the court of appeals found no error.

The court of appeals remanded for resentencing based on the insufficient evidence to support the sentence enhancer and affirmed on all other counts.

Colorado Court of Appeals: “Sufficient Consequence” Language in Sexual Assault Statute Not Unconstitutionally Vague

The Colorado Court of Appeals issued its opinion in People v. Komar on Thursday, December 3, 2015.

Sexual Assault—Unconstitutionally Vague—Jury Instructions—Mens Rea—Prior Inconsistent Statements.

M.A., the victim, celebrated her 21st birthday with several others and later went to bed in a severely intoxicated state. M.A. testified that she awoke to find defendant engaging in sexual intercourse with her. She told him to stop, screamed for help, and defendant continued the assault until M.A.’s friends pulled defendant off of her. The jury found defendant guilty of sexual assault by causing the victim’s submission through means of sufficient consequence to overcome her will, a class 4 felony.

On appeal, defendant argued that the “sufficient consequence” language of the sexual assault statute, CRS § 18-3-402(1)(a), is unconstitutionally vague, both on its face and as applied to him. When the statute is read as a whole, a reasonable person is put on notice that a class 4 sexual assault is committed when causing submission by “means of sufficient consequence.” Further, the evidence supporting defendant’s conviction showed, at a minimum, that defendant continued to sexually penetrate M.A. after she explicitly and forcefully instructed him to stop. Imposing sexual penetration despite clear and affirmative non-consent paradigmatically constitutes sexual penetration “by means of sufficient consequence reasonably calculated to cause submission.” Accordingly, this statute is not unconstitutionally vague on its face or as applied to defendant.

Defendant also argued that the district court erred by failing to instruct the jury that the mens rea element of “knowingly” applies to the fourth element of sexual assault. Although the instruction did not specifically tie “knowingly” to the last element of the offense, it did inform the jury that to convict it must find the sexual penetration had been achieved by means “reasonably calculated to cause submission against the victim’s will.” Hence, the district court adequately instructed the jury.

Defendant next argued that the district court reversibly erred by sustaining the prosecutor’s objection to testimony concerning M.A.’s prior inconsistent statements and by limiting defense counsel’s questions concerning those statements. On direct examination by defense counsel, M.A. testified that she had never accused anyone other than defendant of sexual assault and no other individual had sexually assaulted her. Defense counsel called Stone as a witness to impeach M.A.’s in-court testimony and to show that M.A. had previously made false accusations of sexual assault. The trial court abused its discretion when it excluded Stone’s testimony concerning M.A.’s prior statements; however, any error was harmless.

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

Colorado Supreme Court: Enhanced Indeterminate Sentence Appropriate for Per Se Crime of Violence

The Colorado Supreme Court issued its opinion in Chavez v. People on Monday, November 2, 2015.

Mandatory Sentencing—Crimes of Violence—Colorado Sex Offender Lifetime Supervision Act.

Defendant appealed his indeterminate sentence of imprisonment for 15 years to life on a class 3 felony conviction for sexual assault on a child by one in a position of trust—pattern of abuse. A class 3 felony carries a presumptive penalty range of four to 12 years’ imprisonment. The Supreme Court held that where a defendant is convicted of a sex offense that is also a crime of violence, he must be sentenced to an indeterminate sentence of  incarceration with a minimum term in the enhanced, crime-of-violence range. The trial court was therefore required to sentence defendant to incarceration for a minimum term of eight to 24 years, and a maximum term of his life. Because defendant’s sentence satisfies those requirements, the Court affirmed the court of appeals’ judgment upholding the legal sentence.

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

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Colorado Court of Appeals: Sentence Longer than Three Times Presumptive Range Illegal

The Colorado Court of Appeals issued its opinion in People v. Isom on Thursday, July 2, 2015.

Sexual Assault on a Child—Habitual Sexual Offender—Sentence—Extraordinary Aggravating Circumstances.

In 2003, a jury found defendant guilty of sexual assault on a child, enticement of a child, and contributing to the delinquency of a minor based on evidence that he had given a 14-year-old girl alcohol and then sexually assaulted her. The district court adjudicated him a habitual sex offender against children, and imposed consecutive sentences of forty years to life in prison on the sexual assault on a child count, and five years to life in prison on each of the counts of enticement of a child and contributing to the delinquency of a minor. The court later corrected the sentence for contributing to the delinquency of a minor to a determinate sentence of five years in prison.

On appeal, defendant argued that his sentence of forty years to life for sexual assault on a child is illegal. CRS §§ 18-3-412(2) and 18-1.3-1004(1)(c) require a district court to sentence a habitual sex offender against children to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under CRS § 18-1.3-401, in which case the lower term can be up to six times the maximum of the presumptive range. Thus, under CRS § 18-1.3-1004(1)(c), the statutory minimum for the bottom end of defendant’s indeterminate sentence for this class 4 felony was eighteen years, and if extraordinary aggravating circumstances existed, the court could have imposed a bottom-end sentence of no more than thirty-six years. Because the court sentenced defendant to a bottom-end term of forty years, it was an illegal sentence. The sentence was vacated and the case was remanded for resentencing.

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

Tenth Circuit: No Error in Allowing Government to Use Rule 410 Evidence Against Defendant Who Withdrew Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jim on Tuesday, May 12, 2015.

K.T. had a get-together with some friends at her home on the Navajo Nation, and one of her friends invited Derrick Jim. The group drank alcohol and socialized under K.T.’s carport. Around 1 a.m., K.T. went inside to sleep on her couch. Jim followed her inside, turned off the interior lights and locked the doors, dragged her down the hallway, and forcibly raped her vaginally and anally while K.T. tried to fight him off. As a result of these events, the United States charged Jim with one count of aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2)(A). Jim initially entered into a plea agreement with the government. He pleaded guilty, but before the district court could accept the plea agreement, Jim sent a pro se letter to the district court requesting new counsel because he felt pressured into accepting the plea agreement and did not realize that by entering a plea he would not be allowed to go to trial. The district court appointed new counsel, allowed Jim to withdraw his guilty plea, and allowed him to proceed to trial, where he was found guilty of two counts: the original count plus aggravated sexual abuse—anal penetration by force. He received two concurrent 360-month sentences. On appeal, Jim argued the government should not have been allowed to use FRE 410 evidence against him because his plea was not knowing and voluntary. The government cross-appealed, arguing the district court should have applied a two-level sentence enhancement for causing serious bodily injury.

The Tenth Circuit addressed the Rule 410 contention first. Jim’s argument was that because his plea was not knowing and voluntary, the Rule 410 waiver he signed (allowing the government to use evidence from the plea agreement process during trial) was not valid. Although Jim was required to prove his plea was not knowing and voluntary, he asserted he should be held to a lesser burden based on a line from a Supreme Court decision. Reading the decision as a whole, the Tenth Circuit rejected his argument, finding that Jim offered no proof that his plea was not knowing and voluntary. Jim signed the plea agreement, which adequately apprised him that by doing so he waived his Rule 410 rights, he had a high school education with some college credits, and he had previously signed two other plea agreements related to drunk driving. The Tenth Circuit found no error in the district court’s decision to allow the government to use Rule 410 evidence against Jim.

Next, the Tenth Circuit evaluated the government’s contention that the district court erred by disregarding a two-level sentence enhancement for crimes causing serious bodily injury. The district court, relying on the application note for U.S.S.G. § 2A3.1(b)(4)(B), decided it was not allowed to consider serious bodily injuries caused during sexual assaults in applying the sentence enhancement. The Tenth Circuit, however, analyzed the definition of “serious bodily injury” and determined that the application note referred only to the second definition. If the prosecution proved serious bodily injury under the first definition, the two-level enhancement could still apply. The Tenth Circuit remanded for the district court to determine if Jim’s actions caused serious bodily injury and to resentence if appropriate.

The district court’s judgment was affirmed in part, reversed in part, and remanded for consideration of whether Jim’s conduct caused serious bodily injury to the victim.