August 19, 2019

Archives for October 23, 2012

Finalists Selected for Judgeship in Fourth Judicial District

On Tuesday, October 23, 2012, the Fourth Judicial District Nominating Commission announced the selection of three finalists to fill a vacancy created by the retirement of Judge Kirk Samelson, effective October 8, 2012.

The nominees for the bench are Michael A. Kirtland of Woodland Park, Marla Prudek of Colorado Springs, and Gail Warkentin of Colorado Springs. The nominees were selected by the commission on October 22, 2012.

Under the Colorado Constitution, the governor has 15 days from October 23, 2012 to appoint one of the nominees as District Court Judge for the Fourth Judicial District, which covers El Paso and Teller counties.

Comments about the nominees may be submitted to the governor via email at judicial.appointments@state.co.us. Contact information for the nominees can be found here.

Tenth Circuit: California First-Degree Burglary Conviction Constitutes Violent Felony for Sentencing Enhancement Under ACCA

The Tenth Circuit issued its opinion in United States v. Maldonado on Monday, October 22, 2012.

In 2008, Defendant Maldonado pled guilty to being a felon in possession of a firearm. The presentence report concluded that the Armed Career Criminal Act (ACCA) applied as a result of three prior burglary convictions, subjecting him to a mandatory sentencing enhancement. Under the enhancement, instead of zero to 10 years, Mr. Maldonado would receive a mandatory minimum sentence of 15 years to life. Mr. Maldonado objected, arguing that one of his prior convictions, a first-degree burglary conviction in California, was not a violent felony under the ACCA. He argued that, because California, unlike most states, defines first-degree burglary without an element of unlawful or unprivileged entry, his burglary conviction was not a violent felony for ACCA purposes. The district court overruled the objection and sentenced Mr. Maldonado to the ACCA-mandated minimum sentence of 15 years. Mr. Maldonado appealed.

The sole issue on appeal was whether first-degree burglary under California’s statute is a violent felony under the ACCA. The parties agreed that Mr. Maldonado’s first-degree burglary conviction did not qualify as an ACCA enumerated felony, either categorically or modified categorically. Therefore, the Tenth Circuit considered only whether the district court erred in determining that California’s first-degree burglary statute qualifies as a violent felony under the ACCA’s residual clause. The Tenth Circuit had not yet determined this issue.

The Court held that California’s first-degree burglary statute qualifies as a violent felony under ACCA’s residual clause.  To reach this conclusion, the Court: (A) reviewed how the ACCA defines “violent felony”; and (B) analyzed the California statute under the ACCA’s residual clause definition of violent felony to show that California first-degree burglary is a violent felony because (1) the California offense creates a serious potential risk of injury and (2) is roughly similar to generic burglary.

Sentence AFFIRMED.

Tenth Circuit: Appeal of Conditional Guilty Plea to Possession of Cocaine and Possession with Intent to Distribute Dismissed: Deportation Mandatory

The Tenth Circuit issued its opinion in United States v. Salas-Garcia on Monday, October 22, 2012.

Jose Salas-Garcia entered a conditional plea of guilty to one count of conspiring to possess with the intent to distribute more than 500 grams of cocaine and one count of possessing more than 500 grams of cocaine with the intent to distribute. Prior to his plea, he moved to suppress the drugs found in the vehicle he was driving, as well as statements he made to police, arguing that he was illegally arrested and the evidence subsequently obtained was the fruit of a constitutional violation. The district court denied his motion to suppress. Thereafter, Salas-Garcia sought to withdraw his guilty plea, stating he did not fully understand the immigration consequences of his plea. (Salas-Garcia was a legal permanent resident of the United States, and deportation to his home country was mandatory because he was pleading guilty to two aggravated felonies.) The district court denied his motion to withdraw his guilty plea and sentenced Salas-Garcia to concurrent terms of sixty months’ imprisonment and a four-year term of supervised release. Mr. Salas-Garcia appealed.

On appeal, Mr. Salas-Garcia first argued that the arresting officers exceeded the scope of the Terry stop and lacked probable cause to handcuff and detain him prior to questioning. Accordingly, Salas-Garcia argued, his responses to his subsequent questioning and the drugs seized from the truck were fruits of the poisonous tree and should be suppressed. The Court found that placing Salas-Garcia in handcuffs was reasonable under the circumstances, and his detention was not an arrest that had to be supported by probable cause. The handcuffing of Salas-Garcia did not exceed the bounds of an investigatory detention and thus he was not illegally arrested. Consequently, there was no basis for suppressing his statements to law enforcement or the drugs seized from the truck as fruits of the poisonous tree.

Second, Mr. Salas-Garcia argued that, although he pled guilty before a magistrate judge, he should be allowed to withdraw his guilty plea because his plea had not been accepted. However, the Tenth Circuit found that the magistrate judge was clear in accepting Salas-Garcia’s guilty plea; there was no indication that his guilty plea was accepted on a “conditional” or “provisional” basis.

Finally, Mr. Salas-Garcia argued that, even if the district court had accepted his guilty plea, there is a fair and just reason to withdraw his plea because the consequence of his plea would mean deportation. However, the record revealed that the immigration consequences of his plea could not have been clearer. Accordingly, the Court concluded Salas-Garcia knowingly and voluntarily entered into the plea agreement.

The district court’s denial of Salas-Garcia’s motion to suppress is AFFIRMED and Salas-Garcia’s appeal from the district court’s denial of his motion to withdraw his guilty plea is DISMISSED.

Tenth Circuit: Unpublished Opinions, 10/22/12

On Monday, October 22, 2012, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Spearman v. Collins

Sola Salon Studios v. Heller

Blakely v. USAA Casualty Insurance

Friedman v. Barajas

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Conducting a Client Intake — A Five-Minute Mentor Video

In celebration of Legal Professionalism Month, the Colorado Bar Association is issuing weekly five-minute mentor videos on topics related to professionalism. This week’s video is presented by Peter Goldstein, the co-chair of the CBA’s Professionalism Coordinating Counsel. In this video, he discusses the client intake and potential areas of concern for practitioners.

Client Intake by Peter Goldstein from Colorado Bar Association on Vimeo.

Colorado Supreme Court: Quantum Meruit Claim Allowed Against Former Co-Counsel Even When Barred as Against Former Client

The Colorado Supreme Court issued its opinion in Melat, Pressman, and Higbie, L.L.P. v. Hannon Law Firm, L.L.C. on Monday, October 22, 2012.

Quantum Meruit Recovery From Former Co-Counsel—Time of Accrual—Statute of Limitations—Contingent Fee Agreements—CRCP Ch. 23.3.

The Supreme Court held that, where multiple attorneys are co-counsel in a contingent fee agreement, CRCP Chapter 23.3 does not bar a withdrawing attorney from pursuing a quantum meruit action against former co-counsel for a share of attorney fees obtained in the case, even though that attorney is barred from pursuing such an action against the former client. The claim accrues at the time the withdrawing attorney knows or should know of the occurrence of the settlement or judgment that will result in the payment of attorney fees.

Summary and full case available here.

Colorado Supreme Court: Delay in Providing Notice to Co-Defendant Permissible Under Relation-Back Doctrine and C.R.C.P. 15(c)

The Colorado Supreme Court issued its opinion in In re Garcia v. Schneider Energy Services, Inc. on Monday, October 22, 2012.

Commencement of Proceedings—Notice—Relation Back—CRCP 15(c)

In this original CAR 21 proceeding, the Supreme Court reviewed the trial court’s grant of summary judgment after it found that seventy-one days was not a reasonable time for purposes of “relating back” an amended complaint under CRCP 15(c). Pursuant to Dillingham v. Greeley Publishing Company, 701 P.2d 27, 31 (Colo. 1985), the proper measure for relation back under CRCP 15(c) is the time between the filing date of the original complaint and the date when the party related back receives notice—in this case, 116 days. Accordingly, the trial court’s judgment was vacated.

Summary and full case available here.