March 21, 2019

Archives for March 7, 2011

Indigency Determination and Income Eligibility Guidelines Amended by Colorado Supreme Court

The Colorado Supreme Court has amended four Chief Justice Directives, which were adopted and effective as of March 2010. The changes were made to Attachments A and/or B of the following directives:

CJD 04-06 – “Court Appointments Through the Office of the Child’s Representative”

CJD 04-05 – “Appointment and Payment Procedures for Court Appointed Counsel, Guardians ad Litem, Child and Family Investigators, and Court Visitors”

CJD 04-04 – “Appointment of State-Funded Counsel in Criminal and Juvenile Delinquency Cases and for Contempt of Court”

CJD 98-01 – “Costs for Indigent Persons in Civil Matters”

Attachment A concerns “Procedures for the Determination of Eligibility for Court Appointed Counsel and Guardians ad Litem Representation on the Basis of Indigency.”

Attachment B concerns “Income Eligibility Guidelines.”

Colorado Court of Appeals: A Withdrawing Attorney’s Claim in Quantum Meruit Against Former Co-Counsel Accrues at the Time the Withdrawing Attorney Knows or Should Know of the Recovery

The Colorado Court of Appeals issued its opinion in Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP on March 3, 2011.

Fee Sharing Agreement—Statute of Limitations—Quantum Meruit.

The Hannon Law Firm, LLC (Hannon) appealed the trial court’s judgment on the pleadings in favor of defendants, Melat, Pressman & Higbie, LLP (Melat) and Howarth & Smith (Howarth). Melat and Howarth appealed the trial court’s order denying their motion to dismiss Hannon’s claim. The judgment was reversed, the order was affirmed, and the case was remanded for further proceedings.

Melat entered into a fee-sharing agreement that provided that Howarth would receive 40 percent of the total fees obtained in the litigation, and that all three firms each would receive 20 percent, to represent certain clients in a tort action. The relationship between Hannon and Howarth became strained, and Hannon withdrew, with court approval, from representation in the case. After the underlying tort case settled, Melat paid Hannon for the costs Hannon had incurred before withdrawal, but refused to pay any compensation for the services that Hannon had rendered. A little less than three years after being notified of the settlement, Hannon filed the complaint in this action, asserting a single claim for quantum meruit against Melat and Howarth for the reasonable value of the services it had provided before withdrawal.

On appeal, Hannon contended that the trial court erred in granting judgment on the pleadings against it because the quantum meruit claim could not accrue, for statute of limitations purposes, until at least the time Hannon learned or should have learned of the recovery under the contingent fee agreement. The statute of limitations applicable to a quantum meruit claim is three years from the date the claim accrues. When multiple law firms represent clients under a contingent fee agreement, a withdrawing attorney’s claim in quantum meruit against former co-counsel accrues at the time the withdrawing attorney knows or should know of the recovery. Because Hannon’s appeal was filed within three years from the time it received notice of the recovery, its appeal was not time-barred. Therefore, the trial court erred in entering judgment on the pleadings in favor of Melat and Howarth.

Melat and Howarth contended that Hannon’s claim against them cannot succeed because a similar claim against the client in this case would be barred by C.R.C.P. Chapter 23.3, Rule 5(d). However, Rule 5(d) applies only to claims in quantum meruit brought against a client. Accordingly, the trial court’s order denying Melat’s and Howarth’s motion to dismiss Hannon’s claim was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Jurisdiction Proper Because Juvenile Court Had Not Conducted a Transfer Hearing Before Prosecution Directly Filed Delinquency Petition Information

The Colorado Court of Appeals issued its opinion in People v. Pino on March 3, 2011.

Juvenile Delinquency Petition—Jurisdiction—District Court—Direct Filing—Transfer Hearing.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree assault. The judgment was affirmed.

Defendant, then age 17, punched the victim in the mouth. The physician who removed the victim’s two fractured teeth opined that he had sustained serious bodily injury. The prosecution filed a juvenile delinquency petition alleging that defendant had committed acts that, if committed by an adult, would constitute the offense of second-degree assault. The prosecution requested a transfer hearing to district court. Without conducting a transfer hearing, the juvenile court ordered defendant to appear in district court. The prosecution presented the district court with a motion to dismiss the juvenile case, a petition to directly charge defendant in district court, and an information charging him with a single count of second-degree assault. After defendant was convicted at trial, he filed this appeal challenging the district court’s jurisdiction.

Defendant contended that the district court was without jurisdiction because the prosecution first filed a delinquency petition in the juvenile court and did not directly file this information in the district court until after the deadline for requesting a transfer hearing had expired. Under the plain language of CRS §§ 19-2-104(1)(b), 517(2), and -518(2), a prosecutor has discretion to proceed by means of a direct filing in district court until such time as the juvenile court actually conducts a transfer hearing. Because only conducting a transfer hearing vests the juvenile court with exclusive jurisdiction, it is immaterial whether a prosecutor has requested a transfer hearing in the juvenile court before directly filing charges. Accordingly, even though more than thirty days had elapsed since defendant initially was advised in juvenile court, the district court had jurisdiction because the juvenile court had not conducted a transfer hearing before prosecution directly filed the information.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: No Double Jeopardy or Merger Required when Sufficient Evidence Exists to Charge Defendant with Two Counts Arising from Two Sexual Assault Crimes on Victim

The Colorado Court of Appeals issued its opinion in People v. Greer on March 3, 2011.

Sexual Assault on a Child—Unanimity—Merger—Crim.P. 16—Expert Witness.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of one count of sexual assault on a child, one count of sexual assault as part of a pattern of sexual abuse, and five counts of unlawful sexual contact that the district court merged into one count. The judgment was reversed in part and affirmed in part, and the case was remanded with directions.

Defendant argued that his convictions for counts 1 and 2 should be merged because he was charged with multiple offenses within the same unit of prosecution, in violation of his rights against double jeopardy under both the U.S. and Colorado Constitutions. The prosecution had sufficient evidence to charge defendant with two counts arising from two sexual assault crimes on S.D. Accordingly, the prosecution’s separate charges were not improper based on the evidence, and defendant was not placed in jeopardy of being charged and convicted twice for the same offense.

Defendant also contended that the trial court abused its discretion because the People’s election of the specific act defendant committed for count 1 was insufficient to allow the jury to reach a unanimous decision. Because defendant’s defense was general and designed to show that none of the incidents alleged by S.D. occurred, it was sufficient for the prosecution to designate the act of touching S.D., even though there were several incidents of defendant touching S.D.

Defendant contended that his conviction on the count 2 pattern of abuse sentencing enhancer should be reversed. The People adequately elected the specific acts underlying each count that constituted the pattern of sexual abuse. Therefore, any error the trial court may have committed in not also providing a modified unanimity instruction for the pattern interrogatory was harmless.

Defendant argued that the trial court erred in merging counts 4 through 8, because the merger did not resolve the unanimity problem created by the court’s rejection of his proposed modified unanimity instruction. The People did not elect specific acts for counts 4 through 8, and the verdict forms are otherwise silent in this respect. Because evidence was presented that would have allowed the jurors to rely on different acts in deciding to convict on the five separate counts, and the jury rejected a finding of unanimity with respect to each of the five counts, defendant’s conviction on counts 4 through 8 was reversed.

Defendant contended that his convictions should be reversed because he was deprived of his due process rights to a fair trial under both the U.S. and Colorado Constitutions when the trial court allowed a prosecution-endorsed lay witness to testify as an expert. Defendant did not preserve his due process argument, and Crim.P. 16 does not set forth a specific requirement that an expert be identified as an expert. Therefore, the court did not err.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: An Insurer Will Be Found to Have Acted in Bad Faith Only if It Intentionally Denied or Failed to Process Claim Without Reasonable Basis

The Colorado Court of Appeals issued its opinion in Zolman v. Pinnacol Assurance on March 3, 2011.

Insurance—Bad Faith—Summary Judgment—C.R.C.P. 59.

In this insurance bad-faith case, plaintiff Charlotte Zolman appealed the district court’s summary judgment in favor of defendant Pinnacol Assurance (Pinnacol). The judgment was affirmed.

Zolman was employed as a personal companion by Horizon Home Care, LLC (Horizon). She injured her lower back while she was lifting a client’s wheelchair up a step. She filed a workers’ compensation claim with Pinnacol, which was Horizon’s workers’ compensation insurance carrier at the time. Zolman subsequently filed a complaint in district court alleging that Pinnacol breached its duty of good faith and fair dealing by unreasonably denying and delaying authorization for her medical care. Pinnacol moved for summary judgment, which was granted by the district court.

On appeal, Zolman contended that the district court erred by granting Pinnacol’s motion for summary judgment. In a bad-faith claim against the insurer for its alleged misconduct with its own insured, the insured must prove that (1) the insurer’s conduct was unreasonable under the circumstances, and (2) the insurer either knowingly or recklessly disregarded the validity of the insured’s claim. An insurer will be found to have acted in bad faith only if it intentionally has denied, failed to process, or failed to pay a claim without a reasonable basis.

The evidence in the record is uncontroverted that Pinnacol reasonably relied on the medical opinions of four other physicians. Thus, the district court did not err when it concluded that Zolman failed to establish a triable issue of fact as to either prong of a bad-faith claim with respect to Pinnacol’s actions prior to the administrative law judge’s (ALJ) order. Also, there were no genuine issues of material fact as to the reasonableness of Pinnacol’s conduct after the ALJ’s order concerning Zolman’s request for a change in physicians and continued treatment after she had reached maximum medical improvement (MMI). Therefore, because Zolman’s claim for post-MMI injections and requests for a change in physician were fairly debatable, Pinnacol acted reasonably as a matter of law. Accordingly, Pinnacol was entitled to judgment as matter of law that it did not act in bad faith in handling Zolman’s workers’ compensation claim.

Zolman also contended that the district court erred by denying her motion for reconsideration pursuant to C.R.C.P. 59. Because the newly discovered evidence offered by Zolman concerning Pinnacol’s financial motives likely would not change the result, the district court did not abuse its discretion in denying Zolman relief under C.R.C.P. 59. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Burden of Proof Is on the Employer to Demonstrate that Claimant Was Not Employee for Tax Liability Purposes

The Colorado Court of Appeals issued its opinion in SZL, Inc. v. Industrial Claim Appeals Office on March 3, 2011.

Unemployment Tax Liability—“Employment” Under the Colorado Employment Security Act—CRS § 8-70-115(1)(b).

In this unemployment tax liability case, petitioner SZL, Inc. (SZL) sought review of a final order of the Industrial Claim Appeals Office (Panel) holding that services performed for SZL by claimant constituted covered employment for tax purposes. The order was affirmed.

Claimant performed services for SZL as an over-the-road truck driver for approximately three months under a written agreement between the parties and using a truck he leased from SZL. After he filed for unemployment benefits, a deputy found that he was not free from control and direction in the performance of these services and that he was not customarily engaged in an independent trade or business related to these services. The deputy determined that claimant’s services constituted covered employment under CRS § 8-70-115(1)(b) and, as such, SZL was responsible for unemployment taxes concerning these services. The hearing officer also found that claimant was an employee of SZL. SZL appealed to the Industrial Claim Appeals Office (Panel), which affirmed the hearing officer’s decision.

On appeal, the Court of Appeals rejected SZL’s challenges to the Panel’s determination that claimant’s services constituted covered employment for unemployment tax liability purposes. The burden of proof is on the employer to demonstrate that claimant was not an employee by showing that (1) the individual “is free from control and direction in the performance of the service,” and (2) the individual “is customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” The record contained substantial evidence to support the Panel’s finding on this issue.

The Court also rejected SZL’s argument that imposing unemployment tax liability conflicts with other statutory and regulatory provisions concerning the trucking industry set forth in CRS §§ 40-11.5-101 and -102 and 49 C.F.R. § 376. Specifically, SZL argued that the statutory provisions authorize it to lease its truck to claimant and that the federal regulations require it to do so. The Court found no conflict between these provisions and the determination under § 8-70-115(1)(b) that claimant was an employee rather than an independent contractor.

The Court noted that the federal regulations specifically state that “[n]othing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee.” Similarly, the statutory provisions cited provide authorized lease provisions that may be used by independent contractors and do not require the relationship to be that of an independent contractor. The Court also noted that it is legally permissible for an individual to be considered an employee for unemployment tax liability purposes but still be considered an independent contractor for other purposes under other laws.

The Court rejected SZL’s argument that the provisions of CRS § 8-70-140.8 govern the determination of whether claimant’s services for SZL constituted covered employment for unemployment tax liability purposes, rather than § 8-70-115(1)(b), and that claimant was not in covered employment because he performed the services as a sole proprietor. The hearing officer found that claimant was not acting as a sole proprietor and was not engaged in a separate business venture in performing the services. Therefore, § 8-70-140.8 was inapplicable.

SZL argued that the determination that claimant was in covered employment is preempted by 49 U.S.C. § 14501 and its prohibition against a state enforcing a law related to an interstate motor carrier’s prices, routes, or services. The Court rejected this argument, holding that nothing in the federal regulation indicates an intent to preempt state unemployment law. The Panel’s order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Default Termination of Parental Rights Was Void when Mother Intentionally Misrepresented that She Did Not Know the Father’s Identity

The Colorado Court of Appeals issued its opinion in In re the Petition of C.L.S., in the Interest of E.N.S., and Concerning J.O. on March 3, 2011.

Termination of Parental Rights—Due Process—CRS § 19-5-105(4)—C.R.C.P. 60(b)(2).

Father, allegedly the biological father of the child, appealed pro se from an order denying his motion for relief from a judgment terminating his parental rights. The order was reversed, the judgment was vacated, and the case was remanded with directions.

Before the child was born, mother retained the services of Lutheran Family Services (LFS) to assist her in placing the child for adoption. She represented to LFS and later in court that the child was the product of a rape committed in Douglas County and that she did not know the father’s surname or how to contact him. However, mother sent father e-mails and text messages that the child had died.

Immediately after the birth of child, LFS placed her with adoptive parents. LFS then filed a petition for expedited relinquishment in Larimer County, where LFS is located. LFS gave notice to the allegedly unknown father by publication in a newspaper in Douglas County.

The district court granted the petition, terminated both parents’ rights, and granted LFS legal custody and guardianship of the child, with authority to place her for adoption. The adoption proceedings took place in Jefferson County, where the adoptive parents lived. The final adoption decree was entered on June 23, 2008, and the child has remained in the adoptive parents’ care.

On February 1, 2009, mother sent father a text message telling him the child was alive and had been adopted. In September 2009, father filed a paternity action in Arapahoe County, where mother lived. A magistrate dismissed the case without prejudice, finding a lack of jurisdiction to vacate the Larimer County termination order or the Jefferson County adoption decree.

On November 2, 2009, father filed a paternity action in Larimer County, which was held in abeyance pending resolution of father’s pro se motion to vacate the termination order that he filed on December 4, 2009. Father alleged that he was unaware of the relinquishment and adoption proceedings because mother told him the child had died. He provided documents establishing that mother knew his identity and whereabouts and was in contact with him during the relinquishment proceedings. He alleged he first learned the child was alive and had been adopted on March 29, 2009, when he accessed a computer and read mother’s text message of February 1, 2009. The district court denied father’s motion to vacate as time-barred by the statutory ninety-day deadline for vacating a relinquishment/termination order and the six-month deadline under C.R.C.P. 60(b)(2) for challenging judgments obtained by fraud.

On appeal, father argued that mother’s fraudulent misrepresentations to LFS and the court deprived him of notice and an opportunity to be heard. The Court of Appeals construed this as an argument that the proceedings violated his constitutional right to due process. The Court agreed and held that the judgment terminating his parental rights by default was void. It was undisputed that mother intentionally misrepresented to LFS and the court that she did not know father’s identity and whereabouts so she could avoid notifying him of the relinquishment proceedings. It was undisputed that father did not have notice of the proceedings. Thus, the termination judgment by default was void.

The Court also held that because the judgment was void, neither the limitations period under CRS § 19-5-105(4) nor C.R.C.P. 60(b) applied. The Court also held that C.R.C.P. 60(b) was inapplicable because subsection (2) allows a court to set aside a judgment for fraud on the court. Here, the undisputed facts show that mother committed a fraud on the court by lying about her knowledge of father’s identity and whereabouts. Accordingly, the Court reversed the order denying father’s motion, vacated the judgment terminating his parental rights by default, and remanded the case for a contested relinquishment hearing.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Trial Court Erred by Characterizing a Waiver Defense as a Renunciation Defense

The Colorado Court of Appeals issued its opinion in Glover, Personal Representative of the Estate of Noren v. Innis on March 3, 2011.

Summary Judgment—Uniform Commercial Code—Defenses of Renunciation and Waiver.

Defendants Norma Innis, Richard Innis, and their son Dain Innis appealed the trial court’s summary judgment in favor of plaintiff, the personal representative of the Estate of Juel Noren (decedent). The judgment was reversed and the case was remanded for further proceedings.

Defendants and decedent, with his wife who predeceased him, owned adjacent residential property in Mesa County. The Norens divided their time between Colorado and Nevada. Defendants contended that they and the Norens become friends and that they looked after the Norens’ property when they were in Nevada. Sometime after the death of Mrs. Noren, decedent and defendants had an attorney draft a promissory note payable by defendants to decedent in the principal amount of $250,000, with a related agreement and warranty deed conveying decedent’s Mesa County property (property). The draft agreement recited decedent had sold his property to himself and Dain and Norma Innis as joint tenants in consideration for the note.

The note and agreement were signed by defendants in November 2003 and sent with the unsigned warranty deed to decedent in Nevada. A year and a half later, decedent signed the agreement and deed and retained the note. The note required defendants to pay the $250,000 in monthly installments commencing January 1, 2007. Decedent died before any payments were due, and defendants never made any payments. Defendants claimed decedent never accepted the note, waived payment under it, and repeatedly expressed his intent to give them the property.

Plaintiff filed this action. The trial court denied plaintiff’s motion for summary judgment that the transaction was illusory, but granted partial summary judgment on the note with interest. The trial court then held a bench trial on breach of a provision in the agreement establishing a bank account and for an accounting. The trial court found in defendants’ favor. Defendants moved for post-trial relief to reduce the amount of prejudgment interest under the note, which the trial court denied.

On appeal, defendants argued it was error to characterize their waiver defense as a renunciation defense under CRS § 4-3-604 and then to reject it. The Court of Appeals agreed.

Defendants pleaded waiver as a defense, and the trial court observed “[w]hat Defendants call a waiver is more commonly called a renunciation.” The trial court held there was no evidence that decedent had renounced his rights under the note and therefore granted plaintiff’s motion for partial summary judgment.

The Court agreed that decedent did not renounce his rights to collect under the note for purposes of § 4-3-604 of the Uniform Commercial Code (UCC). However, § 4-3-601(a) permits the obligation of a party to pay under an instrument to be discharged under the UCC or by any act or agreement that would discharge an obligation to pay under a simple contract.

The defense of waiver, pleaded by defendants, arises when a party to a contract is entitled to assert a particular right, knows the right to exist, and intentionally abandons that right. Waiver may be implied by a party’s conduct. Therefore, the trial court erred by failing to consider defendants’ waiver defense independent of renunciation. The partial summary judgment was reversed and the case was remanded.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Subsequent Ordinance Rendered Potential Annexation of Land Ineffective

The Colorado Court of Appeals issued its opinion in Grandote Golf and Country Club, LLC v. Town of La Veta on March 3, 2011.

Motion to Dismiss—Strict Compliance With Annexation Requirements.

Plaintiff Grandote Golf and Country Club, LLC (Grandote) appealed the district court’s judgment granting defendant Town of La Veta’s (Town) motion to dismiss. The judgment was affirmed.

In 1984, the Town adopted Ordinance No. 131 to annex certain property in Huerfano County after Grandote’s predecessor in interest and property owner, Grandote Golf and Country Club (GGCC), petitioned it to do so. In 1985, GGCC filed a court action seeking to require the Town to file two certified copies of the ordinance with the county clerk and recorder, which it claimed was required to render the annexation effective. In exchange for GGCC dismissing the lawsuit, the Town adopted Ordinance No. 144 to repeal No. 131. In 1987, the Town adopted No. 154 to annex a portion of the property after GGCC petitioned it to do so.

In 2009, Grandote filed this action seeking declaratory judgment that No. 144 was void. Grandnote argued that the Town had not complied with statutory disconnection requirements; therefore, all the property No. 131 purported to annex remained part of the Town. The Town filed a motion to dismiss, arguing that two statutes of limitation barred Grandote’s complaint.

The district court granted the Town’s motion to dismiss, finding that Grandote’s declaratory judgment action accrued on No. 144’s effective date in 1985 and thus was barred by the applicable two-year statute of limitations. In the alternative, the court found that No. 144 had repealed No. 131 and that GGCC’s subsequent petition for and the Town’s adoption of No. 154 indicated that both GGCC and the Town understood the property was not in the Town.

On appeal, the Court of Appeals rejected all of Grandote’s arguments, concluding that the annexation contemplated by No. 131 never became effective. It was undisputed that two certified copies of No. 131 were not filed with the county clerk and recorder as required by statute. It also was undisputed that the county clerk and recorder never filed a copy of the ordinance with the division of local government as required by statute. The Court held that strict compliance was required; thus, No. 131 never became effective. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Counsel May Have Duty to Investigate Relevant Immigration Laws and Advise Accordingly when Plea Could Lead to Deportation

The Colorado Court of Appeals issued its opinion in People v. Kazadi on March 3, 2011.

Crim.P. 35(c)—Ineffective Assistance of Counsel.

Defendant Yanick Kazadi, a legal permanent resident who came to the United States from the Congo with his parents when he was 13 years old, appealed the district court’s order denying without a hearing his Crim.P. 35(c) motion for post-conviction relief. The order was reversed in part and vacated in part, and the case was remanded with directions.

Kazadi pleaded guilty to possession with intent to distribute marijuana, a felony, as well as to possession of a schedule V controlled substance (codeine), a misdemeanor. In their plea agreement, the parties stipulated to a deferred judgment and sentence on the felony but entry of judgment and a probationary sentence on the misdemeanor. On the day of the district court’s providency hearing, Kazadi signed a Crim.P. 11 advisement form that warned of immigration consequences associated with pleading guilty if he was not a citizen of the United States.

After discovering Kazadi’s drug possession convictions, Immigration and Customs Enforcement instituted removal proceedings. Kazadi filed a Crim.P. 35(c) motion, challenging his drug possession convictions on the ground that he received constitutionally ineffective assistance of counsel during the plea process. He alleged he would not have pleaded guilty had he known it could lead to deportation, because he had no connections in the Congo and was engaged to a U.S. citizen with whom he had a 6-month-old child.

On appeal, the Court of Appeals first considered whether on the misdemeanor count it was error for the district court to deny his motion that counsel was constitutionally ineffective without a hearing. The Court held that it was. The Court applied the two-prong test set out by the Supreme Court in Strickland v. Washington,466 U.S. 668 (1984). A defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel’s errors, he or she “would not have pleaded guilty and would have insisted on going to trial.”

After Kazadi pleaded guilty, the Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), which addressed whether as a matter of federal law defense counsel had to advise defendant that the offense to which he was pleading guilty would result in his removal from the country. The Supreme Court held where the terms of the relevant immigration statute are “succinct, clear, and explicit” in defining the removal consequences, counsel must give “correct advice.” Where the law is not succinct and straightforward, counsel “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

The Court held that regardless of whether Padilla brought about a new rule, Colorado law had long recognized the duties discussed in Padilla. In this case, Kazadi alleged his counsel knew (1) he was born in the Congo and was not a U.S. citizen; (2) came from the Congo when he was a child; and (3) has a foreign name and foreign accent. If true, these would be sufficient for his counsel to have a duty to investigate relevant immigration laws and advise accordingly.

The Court examined whether, if the foregoing alleged facts were true, prejudice was established. The Court held that the district court’s summary determination that Kazadi was not prejudiced based on his signing the Crim.P. 11 advisement was erroneous and he was entitled to a hearing.

The Court next considered whether Kazadi could collaterally attack his felony conviction. Because judgment did not enter on this count, but was deferred, the Court held it was not reviewable by the post-conviction court, not the Court of Appeals, under Crim.P. 35(c). A deferred judgment is not reviewable unless it is revoked and a judgment is entered.

The portion of the district court’s order relating to Kazadi’s challenge to his felony conviction was vacated, and the portion of the order relating to Kazadi’s challenge to his misdemeanor conviction was reversed. The case was remanded for further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: An Award is Not Subject to Confirmation or Challenge under the Uniform Arbitration Act of 1975 Unless It Entirely Disposes of the Case on the Merits

The Colorado Court of Appeals issued its opinion in American Numismatic Ass’n v. Cipoletti on March 3, 2011.

Arbitration—Final Award—Uniform Arbitration Act of 1975.

Respondent Christopher Cipoletti appealed the district court’s order denying his application to vacate the arbitrator’s dismissal of his case against petitioner American Numismatic Association (ANA), because he did not file it within thirty days of the dismissal order, as required by the Uniform Arbitration Act of 1975 (1975 Act). The order was affirmed.

After ANA terminated Cipoletti’s employment, he filed a demand for arbitration as required by his June 2002 employment agreement, claiming that ANA had breached the employment agreement. On May 27, 2009, the arbitrator issued a detailed written “Order RE: Respondent’s Motion to Dismiss,” granting ANA’s motion to dismiss Cipoletti’s “entire case.” The arbitrator directed the parties to submit briefs on the appropriateness of ANA’s requests for attorney fees and costs under the employment agreement. On July 29, 2009, the arbitrator issued  a “Final Award,” which awarded costs to ANA pursuant to the employment agreement.

On appeal, Cipoletti contended that the district court erred in denying his application to vacate the May 27, 2009 dismissal order as untimely, because that order was not an “award” subject to confirmation or challenge until the arbitrator ruled on ANA’s pending request for attorney fees and costs. The 1975 Act governs this case because the arbitration agreement was made before August 4, 2004. Under the 1975 Act, the arbitrator’s May 27, 2009 dismissal order and the July 29, 2009 costs order constituted separate awards from which the thirty-day period of former CRS § 13-22-214(2) began to run. An award is subject to confirmation or challenge under the 1975 Act if it entirely disposes of the case on the merits. An outstanding issue of attorney fees and costs under a fee- and cost-shifting provision does not affect the character of the decision on the merits as an award. Therefore, the arbitrator’s May 27, 2009 order was an award that triggered the time limit for judicial review under former § 13-22-214. Because Cipoletti did not file his application with the district court within thirty days of its delivery, the district court properly dismissed it.

Cipoletti alternatively contended that if the May 27, 2009 dismissal order was an award, the arbitrator lacked jurisdiction to award costs to ANA. An award of attorney fees or costs is collateral to the merits of a dispute. Consequently, the arbitrator retained jurisdiction to enter the award of costs after she had entered the award on the merits.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.

Colorado Court of Appeals: Enticement of a Child May Be Proven by Showing Intention to Commit Unlawful Sexual Contact, With or Without Actual Touching

The Colorado Court of Appeals issued its opinion in People v. Walker on March 3, 2011.

Sexual Exploitation—Indeterminate Sentence—Unlawful Sexual Contact—Enticement of a Child—Amendment of Charges—Right to Jury Trial—Waiver.

Defendant appealed the judgment convicting him of thirty counts of sexual exploitation of a child, three counts of unlawful sexual contact, and two counts of enticement of a child. He also appealed the indeterminate sentences imposed on twenty-four of the sexual exploitation counts. The judgment and the sentences were affirmed, and the case was remanded with directions.

Defendant abused his position as a middle school teacher by developing relationships with male students A.W., T.W., and D.B., and engaging in inappropriate and unlawful behavior with them. On appeal, he contended that the indeterminate sentences on the twenty-four counts of sexual exploitation as to T.W. and D.B. must be vacated and that he must be resentenced with determinate sentences, because the prosecution failed to prove there was an assessment required by CRS § 18-1.3-1004(4)(a)(II). Prior to sentencing, defendant underwent a mental health sex offense-specific evaluation. Based on the results, the evaluator recommended that defendant receive an indeterminate sentence. This evidence was sufficient to satisfy the requirements of CRS § 18-1.3-1004(4). Therefore, the trial court properly exercised its discretion to sentence defendant to indeterminate sentences on twenty-four of the sexual exploitation counts.

Defendant claimed the evidence was insufficient to convict him of three counts of unlawful sexual contact, because the prosecution failed to prove the elements of this offense beyond a reasonable doubt. One count involved D.B. and was based on a nude photo session of D.B.; the other two counts involved T.W. and were based on two videos of T.W. that were recovered and admitted at trial. Based on this evidence, the trial court properly convicted defendant of three of the four charged counts of unlawful sexual contact under CRS § 18-3-404(1.5). Further, the evidence that defendant induced or coerced D.B. and T.W. to expose themselves was more than sufficient to sustain the unlawful sexual contact convictions.

Defendant contended that the evidence was insufficient to convict him of two counts of enticement of a child. Contrary to defendant’s argument, the prosecution was required to prove only that defendant intended to commit the offense of unlawful sexual contact, which may be committed with or without actual touching. Therefore, the evidence was sufficient to support the enticement convictions.

Defendant charged the trial court with abusing its discretion and committing reversible error by permitting the prosecution to amend the six exploitation counts as to A.W. during trial. However, the amendment did not cause defendant to be charged with an additional or different offense; it merely expanded the dates of the offenses charged to reflect the evidence. Further, defendant was not prejudiced by this amendment, because he had received sufficient notice of the time period well before trial. Therefore, the trial court did not err by permitting the prosecution to amend the dates in counts seven through twelve on the morning of trial.

Defendant argued that his waiver to the right to trial by jury was not made voluntarily, knowingly, and intelligently. Because the Court of Appeals did not have a factual basis to review the validity of the jury trial waiver, the case was remanded for a postconviction evidentiary hearing on this issue.

Defendant contended that the trial court erred by imposing indeterminate sentences because they were not actually charged in the information as sentence enhancers. The basic requirements of Crim.P. 7(b)(2) were met and the information identified the essential elements of the offense of sexual exploitation of a child. Therefore, the failure to charge the indeterminate sentences in the information does not constitute plain error requiring these sentences to be vacated and replaced with determinate sentences. However, resolution of this contention turns on the outcome of the evidentiary hearing on whether defendant properly waived his right to a jury trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on March 3, 2011, can be found here.