August 26, 2019

Archives for May 17, 2010

Colorado Court of Appeals: People v. O’Hara III

The Colorado Court of Appeals issued its opinion in People v. O’Hara III on May 13, 2010.

Wiretap—Authorization—CRS § 16-15-102.

Defendant Thomas Lynn O’Hara III appealed the judgment of conviction entered on a jury verdict finding him guilty of distribution of a schedule II controlled substance. The case was remanded for further findings.

Task force officers, in conjunction with the local district attorney’s office, applied for and received orders authorizing wiretaps on two phones belonging to R.P., a suspected drug dealer. Evidence gathered from these wiretaps implicated defendant as R.P.’s supplier of methamphetamine.

Defendant argued that the application for the wiretap was fatally defective because the applicant was a Drug Enforcement Agency (DEA) task force officer, not the elected district attorney. CRS § 16-15-102 requires that the attorney general or a district attorney authorize a specific wiretap application; however, the elected official need not sign or personally submit the application. Here, the wiretap application submitted to the issuing judge was prepared by a DEA agent and a deputy district attorney. Neither the district attorney nor the deputy district attorney testified at the suppression hearing, and there was no finding by the trial court that the district attorney specifically authorized the wiretap application. Therefore, the case was remanded for further proceedings to determine whether the elected district attorney authorized the wiretap application. If the trial court determines that the wiretap and its extensions were authorized by the elected district attorney, the judgment of conviction must be affirmed. However, if the trial court determines that the elected district attorney did not authorize the wiretap or extensions, the conviction must be reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: People v. Brooks, Jr.

The Colorado Court of Appeals issued its opinion in People v. Brooks, Jr. on May 13, 2010.

Crim. P. 35 Motion—Juvenile—Revocation—Illegal Sentence—Restitution.

Defendant Keith Clayton Brooks, Jr. appealed the district court’s orders denying his Crim.P. 35 motions in two cases. The orders were affirmed and the case was remanded to correct the mittimus in each case.

In January 2000, pursuant to a plea agreement in case number 99JD1799, defendant pled guilty to committing acts that, if committed by an adult, would constitute attempted first-degree aggravated motor vehicle theft. In March 2000, the juvenile court sentenced defendant to two years of probation and ordered him to pay restitution. In April 2000, defendant pled guilty to second-degree burglary in case number 00CR737 and was sentenced to four years of probation and ordered to pay restitution. Defendant’s probation was revoked in 99JD1799, and he was sentenced to ninety days in jail. In January 2001, defendant’s probation in 00CR737 was revoked and he was resentenced to two years in community corrections. In April 2001, defendant’s community corrections sentence in 00CR737 was revoked and he was resentenced to two years in the Department of Corrections (DOC).

Defendant contended that his current sentence in 00CR737 was illegal, because the district court lacked authority to include his juvenile restitution obligation in its sentence, and because the juvenile court lacked authority to transfer such obligation to his adult sentence. A district court does not have the authority to include, as part of a direct sentence to community corrections or DOC, a restitution order from an unrelated juvenile case. Accordingly, defendant’s current sentence was illegal, and the case was remanded to the district court with directions to remove the amount of restitution owed in 99JD1799 from the mittimus in 00CR737. However, the juvenile restitution order remains a valid order over which the court in 99JD1799 continues to have jurisdiction. Thus, until defendant satisfies his juvenile restitution obligation or the court issues an order specifically terminating such obligation, the court in 99JD1799 will have jurisdiction over the original order.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: People v. Gladney

The Colorado Court of Appeals issued its opinion in People v. Gladney on May 13, 2010.

First-Degree Murder—State Court—Federal Court—Racketeer Influenced and Corrupt Organizations Act—Double Jeopardy—Evidence—Other Offenses—Prosecutorial Misconduct.

Defendant William Lawrence Gladney appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree murder. The judgment was affirmed.

Defendant was charged with first-degree murder. Before he was brought to trial on this charge, he was indicted, tried, and convicted in federal court for violating the Racketeer Influenced and Corrupt Organizations Act (RICO), based on seven acts of racketeering, one of which was the murder of the victim in this case.

Defendant contended that, because a federal jury, by special verdict, found him guilty of the victim’s murder, the subsequent state prosecution for the same conduct violated his constitutional right to be free from double jeopardy. Both the state and federal governments may prosecute a person for the same offense without violating the double jeopardy prohibition of the U.S. Constitution. Further, the murder of the victim was prosecutable as an “offense” under Colorado law, but not under federal law. Also, the federal RICO crime requires proof of facts not necessary for a Colorado murder conviction. Finally, the federal RICO statute seeks to prohibit a substantially different evil than does Colorado’s murder statute. For these reasons and contrary to defendant’s assertion, double jeopardy did not bar his prosecution.

Defendant next contended that the trial court erroneously admitted evidence of the victim’s purchase of and complaints about drugs he obtained from defendant’s girlfriend. Evidence of other offenses or acts that form part of the criminal episode or transaction with which a defendant is charged is admissible to provide the fact-finder with a full understanding of the events surrounding the crime. Here, the evidence presented at trial established that defendant and the victim were involved in a disputed drug deal, about which they were arguing immediately before the shooting. This conduct was so closely connected to the main criminal transaction that evidence of it was necessary to complete “the story of the crime.” Accordingly, it was not error to admit this evidence.

Defendant also contended that the prosecution committed prosecutorial misconduct in its closing argument. Here, however, the prosecution argued the reasonable inferences to be drawn from the evidence. Therefore, reversal was not warranted based on prosecutorial misconduct.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: People v. Drew

The Colorado Court of Appeals issued its opinion in People v. Drew on May 13, 2010.

Convicted as an Artificial Person—Due Process—Frivolous.

Defendant Donald James Drew appealed the order denying his “Petition by Special Appearance by Plaintiff Pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.” The order was affirmed.

Defendant pled guilty to first-degree kidnapping and conspiracy to distribute a schedule II controlled substance. His argument on appeal was that he was born Donald James Drew, and the person charged in this matter was named in capital letters as DONALD JAMES DREW. Thus, defendant argued that he was convicted as an artificial person and was denied due process. Claims so premised are patently frivolous and without merit. Therefore, the order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: Franz v. Industrial Claim Appeals Office

The Colorado Court of Appeals issued its opinion in Franz v. Industrial Claim Appeals Office on May 13, 2010.

In this workers’ compensation action, claimant Vincent S. Franz sought review of the final order of the Industrial Claim Appeals Office (Panel) upholding the medical utilization review (MUR) order directing a change in claimant’s treating physician. The Panel’s order was affirmed.

Claimant sustained an admitted work-related injury in 1989. In 1997, employer, Brookharts, Inc., and its insurer, Pinnacol Assurance (collectively, employer), admitted claimant was permanently and totally disabled as a result of the injury. After receiving treatment, employer requested an MUR of claimant’s treatment. Claimant filed an objection on the ground that the medical professional who performed the review had a conflict of interest. The Director determined that the medical professional had no conflict and permitted the MUR to continue. The Director thereafter issued an MUR order directing a change of treating physician, which was affirmed by the administrative law judge (ALJ). The Panel affirmed the ALJ’s order, and this appeal followed.

Claimant contended that the Panel erred in affirming the ALJ’s decision to uphold the MUR to change his medical provider. Specifically, he argued that his due process rights were violated because he was denied an opportunity to conduct discovery and to present evidence to the MUR committee at a hearing before the recommendation to change his physician was entered. However, a claimant has no right to an evidentiary hearing before a change of provider is ordered in an MUR. Based on the same analysis, claimant has no right to obtain discovery, present evidence, and argue the conflicts of interest of the MUR members.

Claimant also contended that the MUR committee members’ associations with insurer and SelectNet created inherent conflicts of interest that should have precluded their participation in the process. A disqualifying conflict of interest is one in which the provider under review and the committee member have a relationship involving “[d]irect or substantial financial interest.” A physician’s mere relationship with either an insurer or a provider network, which is claimant’s basis for the objection, would not result in the disqualification of a physician. Here, claimant failed to demonstrate that the insurer had a financial relationship with any MUR committee member that would have resulted in a committee member’s disqualification under the rule. Therefore, no disqualifying conflict existed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: Cerbo v. Protect Colorado Jobs, Inc.

The Colorado Court of Appeals issued its opinion in Cerbo v. Protect Colorado Jobs, Inc. on May 13, 2010.

Issue Committee—Fair Campaign Practices Act.

The Fair Campaign Practices Act (Act) imposes registration and reporting requirements on issue committees. Article XXVIII, subsection 2(10)(a) of the Colorado Constitution defines “issue committee” for purposes of the Act. Such a committee must have “a major purpose of supporting or opposing any ballot issue or ballot question” and have “accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.”

Complainant appealed an administrative law judge’s (ALJ) order determining that Protect Colorado Jobs (PCJ) was not an issue committee because it did not have a major purpose of supporting a right-to-work initiative. The Court of Appeals reversed the order and remanded the case.

In early 2007, several individuals drafted a proposed right-to-work initiative. By May 2, 2007, the initiative was listed on the Secretary of State’s website and scheduled for a title board hearing. Two days later, one of the individuals incorporated PCJ as a nonprofit organization. On August 1, 2007, the title was set for the initiative. On September 11, 2007, the proponents withdrew the initiative and submitted a new one. The title board set that title on October 10, 2007. On November 19, 2007, the same individual who incorporated PCJ registered the Colorado Right to Work Committee (CRWC) as an issue committee for the initiative, specifically to obtain sufficient signatures to place it on the November 2008 ballot.

On December 7, 2007, Kennedy Enterprises contracted with PCJ to circulate petitions to place the initiative on the ballot. PCJ ultimately paid almost $300,000 for the petition circulation services. The initiative ultimately was placed on the November 2008 ballot as Amendment 47. PCJ never registered as an issue committee or submitted any reports of contributions and expenditures.

On April 8, 2008, a complaint was filed alleging that CRWC had violated the Act, in part by failing to report certain contributions from PCJ. An ALJ found CRWC had violated the Act’s reporting requirements; CRWC did not appeal.

On June 11, 2008, the same complainant filed a complaint alleging PCJ had violated the Act by failing to register as an issue committee and failing to file reports of its contributions and expenditures. The same ALJ who had held that CRWC violated the Act held that PCJ had not violated the Act, because its major purpose was not to support the initiative.

On appeal, the Court found no ambiguity in the phrase “a major purpose.” It concluded an organization has a major purpose of supporting a ballot issue if such support “constitutes a considerable or principal portion of the organization’s total activities.” Using that standard, the Court disagreed with the ALJ’s analysis of the facts and held that a major purpose of PCJ was to support the initiative in question. The order is reversed and the case is remanded.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: People v. Vondra

The Colorado Court of Appeals issued it opinion in People v. Vondra on May 13, 2010.

Crim.P. 35—Ineffective Assistance of Counsel in Making a Plea—Arguments Barred as Successive.

Defendant pled guilty to possession with intent to distribute between 450 and 1,000 grams of a schedule II controlled substance—second offense. Before sentencing, defendant moved to withdraw his plea pursuant to Crim.P. 32(d). Specifically, he claimed counsel (1) did not spend enough time with him discussing the facts of the case and potential defenses; (2) conducted an inadequate investigation; (3) gave him inaccurate and incomplete advice regarding the charges and possible sentencing consequences; and (4) pressured him into pleading guilty.

The court held a hearing at which defendant and plea counsel both testified, and defendant and his new attorney elaborated on the factual basis for his claims. The trial court denied the motion, addressing each of defendant’s claims. Defendant then was sentenced to twenty-four years and one day in prison.

Defendant directly appealed, arguing the sentence was illegal and unconstitutional under Apprendi [Apprendi v. New Jersey, 530 U.S. 466 (2000)] and Blakely and [Blakely v. Washington, 542 U.S. 296 (2004)]. A division of the Court of Appeals affirmed the sentence.

In this appeal, defendant argued his plea was not knowing, voluntary, and intelligent, because plea counsel provided ineffective assistance. The Court of Appeals disagreed, but on different grounds than the trial court. The arguments made by defendant in his post-conviction motion are essentially the same as those presented in his direct appeal of the illegal sentence and therefore are successive under Crim.P. 35(c)(3)(VII). The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: Bailey v. Airgas Intermountain, Inc.

The Colorado Court of Appeals issued its opinion in Bailey v. Airgas Intermountain, Inc. on May 13, 2010.

Summary Judgment—Rejected C.R.C.P. 56(f) Request.

This case presented an unresolved issue of summary judgment practice in Colorado: The question arises whether, when a trial court properly rejects a C.R.C.P. (Rule) 56(f) affidavit, the court may simultaneously enter summary judgment, or must first afford the nonmovant an opportunity to address the merits of the motion. The Court of Appeals held that a trial court may “collapse its denial of Rule 56(f) relief into entry of summary judgment,” and such action is reviewable for abuse of discretion. In this case, the Court found no abuse and affirmed.

Plaintiffs and their spouses appealed summary judgment in favor of plaintiffs’ former employer, Airgas-Intermountain, Inc., and four supervisors (collectively, Airgas). Airgas leases office space in a building allegedly contaminated by mold. Plaintiffs asserted that they became ill from exposure to mold while working for Airgas. Their spouses alleged loss of consortium.

Sixty days after the complaint was filed and following two extensions, Airgas moved under Rule 12(b)(5) for “partial dismissal,” asserting that the exclusivity provision of the Colorado Workers’ Compensation Act (WCA) barred all of plaintiffs’ claims. Plaintiffs responded that relief based on WCA exclusivity could be granted only under Rule 56, and attached an affidavit of counsel. Airgas did not challenge the assertion that the motion to dismiss must be converted to a motion for summary judgment. Airgas argued that the affidavit did not satisfy Rule 56(f) and that it was not in control of evidence relevant to the contention that any right of plaintiffs to recover workers’ compensation benefits had been compromised.

The motion remained pending for nine months and the case then was assigned to another judge. Two months later, the court issued an order denying the Rule 56(f) request and granting the motion for summary judgment based on WCA exclusivity. Plaintiffs moved for reconsideration, reiterating that their response had sought deferral of the ruling pursuant to Rule 56(f) and attached affidavits of the five plaintiffs, three of whom stated or implied that a workers’ compensation claim had not been filed because of acts or omissions of Airgas. The trial court denied reconsideration and held the affidavits could not be considered.

The Court of Appeals noted that a trial court abuses its discretion in denying a Rule 56(f) request when the movant has demonstrated that the proposed discovery is necessary and could produce facts that would preclude summary judgment. Here, the affidavit was vague and conclusory. In addition, plaintiffs, not Airgas, would have had sufficient knowledge to file an affidavit if they had not filed a workers’ compensation claim because of misconduct of Airgas. Thus, there was no abuse of discretion in denying Rule 56(f) relief.

Plaintiffs argued the trial court erred in entering summary judgment without affording them an opportunity to address the merits after having denied the Rule 56(f) relief. The Court held that a trial court has discretion to enter summary judgment while simultaneously denying the nonmovant’s request for Rule 56(f) relief and appellate review is available for abuse of discretion. In this case, the Court found no such abuse and affirmed the summary judgment.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Colorado Court of Appeals: Moss v. Members of the Colorado Wildlife Commission

The Colorado Court of Appeals issued its opinion in Moss v. Members of the Colorado Wildlife Commission on May 13, 2010.

Firearm Hunting—Exhaustion of Administrative Remedies.

Since 1980, Sugar Loaf Mountain Area (Sugar Loaf) has been subject to a Boulder County Board of Commissioners (County) resolution restricting the discharge of firearms adopted under CRS § 30-15-302. The Colorado Division of Wildlife (Division) nonetheless has continued to issue licenses and permits for big game hunting with firearms in the game management unit that includes Sugar Loaf. The complaint alleged confrontations between hunters and residents arising from discharge of firearms near homes and roads.

Plaintiffs sought (1) declaratory relief that all firearm hunting is unlawful in Sugar Loaf; mandamus relief to compel the Division to give effect to the County’s resolution; and injunctive relief prohibiting the Division from issuing licenses and permits for hunting in Sugar Loaf. The Division moved to dismiss because plaintiffs failed to exhaust their administrative remedies. Plaintiffs moved for summary judgment, arguing that exhaustion was unnecessary; the County resolution effectively bans all firearm hunting in Sugar Loaf as a matter of law, and the Division therefore has no discretion. The trial court, without taking evidence, dismissed the case against the Division.

While the appeal was pending, plaintiffs unsuccessfully petitioned the Division to restrict hunting in Sugar Loaf. Supplemental briefs were filed on mootness and both parties agreed that the question of failure to exhaust was moot. Plaintiffs, however, asserted that the Court should resolve the exhaustion question and it chose to do so.

Plaintiffs argued that failure to exhaust their administrative remedies was excused because CRS § 30-15-302 banned all firearm hunting in those areas restricted by a county and thereby displaced the regulatory discretion of the Division. The Court of Appeals noted, and the plaintiffs conceded, that the Division has broad regulatory power over wildlife management throughout the state. The statutory section allows the discharge of firearms on private grounds, and such discharge could include hunting. The section does not restrict firearm hunting, only the discharge of firearms. The section does not refer to or limit the Division’s broad regulatory power. In short, the section does not ban all firearm hunting within designated county areas, contrary to plaintiffs’ argument.

Because regulating firearm hunting in Sugar Loaf is within the Division’s expertise and discretion, plaintiffs were required to exhaust their administrative remedies. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 13, 2010, can be found here.

Update: State Supremes Modify Proposed Colorado Code of Judicial Conduct

Colorado Supreme Court Justice Michael L. Bender has posted to State Judicial the latest draft of the proposed Colorado Code of Judicial Conduct.

Justice Bender chairs the court’s Colorado Code of Judicial Conduct Revision Committee, which is charged with recommending Code changes based on the ABA’s own revision of its Model Code of Judicial Conduct. The Colorado Code redline issued last week reflects the latest proposed revisions coming out of committee.

Tenth Circuit: Opinions, 5/14/2010

The Tenth Circuit on Friday issued no published opinions and three unpublished opinions.

Unpublished

Jackson v. Jackson

Todd v. Oklahoma Attorney General

United States v. Akers

Colorado Supreme Court: People v. Loveall

The Colorado Supreme Court issued its opinion in People v. Loveall on May 17, 2010.

Jurisdiction of Appellate Courts—Collateral Attacks on Sentence—Due Process Right to Confrontation—Probation Revocation Hearing.

The Colorado Supreme Court affirmed the judgment of the Colorado Court of Appeals. The Court held that the court of appeals is barred from hearing a defendant’s collateral attacks on his or her original sentence following the expiration of the three-year statute of limitations established by CRS § 16-5-402(1).

The Court further held that a prosecutor may use hearsay evidence at a probation revocation hearing to prove that a defendant violated the terms of probation by a non-criminal act provided that: (1) the defendant has an opportunity to present witnesses and testify on his or her own behalf; (2) the prosecution witnesses who introduce the hearsay evidence are subject to cross-examination; and (3) the prosecutor reveals the identity of the declarants to the defendant prior to the hearing so that the defendant may reasonably test the accuracy of the hearsay evidence. Where one or more probation violations are set aside on appeal due to the prosecutor’s improper use of hearsay evidence and another violation remains, the appellate court will remand to the trial court for further review, unless the record clearly shows that the trial court would have reached the same result even without consideration of the improper evidence.