June 20, 2019

Archives for April 2013

U.S. Supreme Court Justice Sonia Sotomayor to Dedicate Ralph L. Carr Judicial Center

sotomayorU.S. Supreme Court Justice Sonia Sotomayor will be in Denver for the May 2nd dedication of the new Ralph L. Carr Colorado Judicial Center. The Colorado State Judicial Branch will live-stream coverage of the public dedication on May 2 from 1:30 pm to 3:30 pm. The stream will be available in English and Spanish; click here to stream the live coverage.

Additionally, Justice Sotomayor will hold an event from 8 am to 10 am on the morning of the dedication where she will meet with one hundred 8th, 9th, and 10th graders from across Colorado who have been selected by the Colorado Youth Advisory Council. Justice Sotomayor will meet with the students, talk with them about her life and experiences and answer their questions.

The Colorado Supreme Court announced that the Colorado Court of Appeals and Supreme Court will be closed to the public on May 1 and 2. The clerks’ offices for both courts will remain open. Emergency court filings that cannot be mailed or e-filed will be accepted via the information desk in the lobby of the Ralph L. Carr Office Tower. Regular business will resume on May 3.

Get Down & Derby at the Barristers Benefit Ball This Saturday

web-BBBBy Jaci Casey and Michelle Ferguson

The Denver Bar Foundation invites you to join us at the 25th Annual Barristers Benefit Ball on Saturday, May 4, at the Hyatt Regency in downtown Denver.

Attending the Barristers Benefit Ball is a tradition within the legal community. This year’s theme, “Down & Derby,” is sure to top the charts as one of the most fun-filled evenings among those we’ve held over the past several years. Please join us this year to celebrate the 25th anniversary of the ball—derby style!

The Barristers Benefit Ball is the Denver Bar Association’s primary fundraiser to support its flagship program, Metro Volunteer Lawyers (MVL). Celebrating its 47th year of service, MVL has been operating continuously since 1966 and is the oldest pro bono legal services program of its kind in the United States. MVL is a nonprofit organization whose mission is to bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver metro area to people who could not otherwise afford legal services for their civil legal issues.

The staff at MVL includes one full-time Executive Director (attorney), a full-time Legal Services Coordinator, a full-time Family Law Court Program Coordinator (attorney), one full-time Program Coordinator, the part-time Rovira Scholar Fellow (attorney), and several invaluable volunteers and interns. Donating time as an MVL volunteer serves the needs of those less fortunate, advances the reputation of the legal community, and allows attorneys to fulfill the recommendations of Rule 6.1 of the Colorado Rules of Professional Conduct, which seeks to have every attorney complete at least 50 hours of pro bono legal work annually. MVL has 450 volunteer attorneys who take approximately three cases each year.

Your attendance at the Barristers Benefit Ball helps MVL maintain its staff and pay its operating expenses, both of which are vital to sustaining and expanding its capacity to serve our community. By providing much needed pro bono legal services, MVL’s donors and volunteers provide access to justice and help stabilize families, save taxpayers money, reduce the number of cases clogging the courts, and help people move toward self-sufficiency and full participation in society.

e-Legislative Report, 4/29/13

Michael Valdez, the Director of Legislative Relations for the Colorado Bar Association, issued his weekly e-Legislative Report on Monday, April 29, 2013. In this issue, he discusses some of the bills at the Capitol and summarizes several “late” bills of interest.

At the Capitol

Boxscores:

Monday, April 22

  • SB 13-197. Concerning preventing persons who have committed domestic violence from possessing firearms, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the House.
  • SB 13-195. Concerning requiring certain applicants for concealed handgun permits to complete a handgun training class on the physical grounds where the certified instructor of the course offers the course. Passed on 3rd Reading in the House.
  • SB 13-26. Concerning expansion of the “Michael Skolnik Medical Transparency Act of 2010” to require additional health care providers to disclose information about their practice history, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the House.
  • SB 13-7. Concerning the repeal date of the Colorado commission on criminal and juvenile justice, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the House.
  • HB 13-1265. Concerning the income tax credit for business facility employees under the “Urban and Rural Enterprise Zone Act.” Passed on 3rd Reading in the Senate.
  • SB 13-258. Concerning a clarification that each application included in the definition of development permit constitutes a stage in the development permit approval process. Passed on 3rd Reading in the Senate.
  • HB 13-1225. Concerning additional protections for homeowner’s insurance policyholders in Colorado, and, in connection therewith, enacting the “Homeowner’s Insurance Reform Act of 2013.” Passed on 3rd Reading in the Senate.
  • HB 13-1272. Concerning the modification of a special district’s sales and use tax base to make it the same as the state’s sales and use tax base. Passed on 3rd Reading in the Senate.

Tuesday, April 23

  • SB 13-262. Concerning the exemption of representative services of enrolled agents from the definition of debt management services. Passed on 3rd Reading in the Senate.
  • HB 13-1200. Concerning the “Uniform Deployed Parents Custody and Visitation Act.” Passed on 3rd Reading in the Senate.
  • HB 13-1294. Concerning a clarification that the state’s judicial department is included within the definition of “public entity” for purposes of the “Colorado Governmental Immunity Act.” Passed on 3rd Reading in the House.
  • SB 13-137. Concerning system improvements to prevent fraud in the Medicaid program, and, in connection therewith, employing advanced data analytics. Passed on 3rd Reading in the House.
  • HB 13-1251. Concerning collection of a DNA sample from offenders convicted of a class 1 misdemeanor in the Colorado criminal code, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the House.

Thursday, April 25

  • SB 13-251. Concerning documentary evidence needed for an individual to be issued an identity document by the department of revenue, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the Senate.

Friday, April 26

  • HB 13-1319. Johnston—Concerning the establishment of the ratio of valuation for assessment for residential real property. Passed on 3rd Reading in the House.
  • HB 13-1300. Concerning nonsubstantive revisions of statutes in the Colorado Revised Statutes, as amended, and, in connection therewith, amending or repealing obsolete, inconsistent, and conflicting provisions of law and clarifying the language to reflect the legislative intent of the laws. “The Revisor’s Bill.” Passed on 3rd Reading in the House.
  • HB 13-1307. Concerning the effect of the inclusion of a legal description on the validity of documents affecting title to real property. Passed on 3rd Reading in the House.
  • HB 13-1302. Concerning a modification of the requirements governing proceedings to consolidate special districts. Passed on 3rd Reading in the House.
  • HB 13-1314. Concerning the transfer of the administration of long-term services for persons with intellectual and developmental disabilities to the department of health care policy and financing. Passed on 3rd Reading in the House.
  • HB 13-1242. Concerning a repeal of the mandatory sentencing requirement for violation of bail bond conditions for certain offenders. Passed on 3rd Reading in the House.
  • HB 13-1308. Concerning allowing a law enforcement agency to acquire call location information from a telecommunications device without a court order in an emergency situation. Passed on 3rd Reading in the House.
  • SB 13-216. Concerning youthful offenders within the state department of corrections. Passed on 3rd Reading in the House.
  • SB 13-244. Concerning a task force to study substance abuse. Passed on 3rd Reading in the House.
  • SB 13-200. Concerning an increase in the income eligibility for certain optional groups in the medicaid program to one hundred thirty-three percent of the federal poverty line, and, in connection therewith, making and reducing an appropriation. Passed on 3rd Reading in the House.
  • HB 13-1136. Concerning the creation of remedies in employment discrimination cases brought under state law. Passed on 3rd Reading in the Senate.
  • SB 13-282. Concerning a medical exemption from tiered electricity rates. Passed on 3rd Reading in the Senate.
  • HB 13-1129. Concerning creating the evidence-based practices implementation for capacity resource center, and, in connection therewith, making an appropriation. Passed on 3rd Reading in the Senate.
  • HB 13-1077. Concerning a driver’s right to challenge the lawfulness of a law enforcement officer’s initial contact in an administrative proceeding for a revocation of a driver’s license. Passed on 3rd Reading in the Senate.

Click here to read the full e-Legislative Report, and stay tuned for summaries of Bills of Interest.

Colorado Court of Appeals: Defendant Convicted of Child Abuse and Incarcerated Allowed to Seek Refund of Restitution Paid When Conviction Overturned

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, April 25, 2013.

Refund of Restitution—Overturned Conviction.

Defendant Shannon Nelson appealed from the district court’s order denying her motion for a refund of the restitution paid while she was incarcerated in the Department of Corrections (DOC). The order was reversed and the case was remanded.

Nelson was charged with forty counts related to the alleged sexual assault and physical abuse of her four children. Nelson appealed her convictions, and a division of the Court of Appeals reversed and remanded the case for a new trial. At her second trial, Nelson was acquitted of all of the remaining charges.

Nelson contended that the district court erred in concluding that it lacked the authority to order a refund of the restitution, fees, and costs that Nelson paid in connection with a conviction that was overturned when she was acquitted after retrial of all of the remaining charges against her. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail on remand to prove beyond a reasonable doubt the defendant’s guilt of the charged crimes. Such a defendant may seek the refund of restitution from the state in his or her criminal case without having to file a separate proceeding. Accordingly, Nelson was entitled to seek, and the district court was authorized to award, a refund of the fees, costs, and restitution that Nelson paid in connection with her now overturned conviction. The order was reversed and the case was remanded to the district court to consider on the merits Nelson’s motion for a refund of the restitution that she paid.

Summary and full case available here.

Colorado Court of Appeals: Defendant’s Conviction Affirmed But Case Remanded for Longer Sentence

The Colorado Court of Appeals issued its opinion in People v. Lahr on Thursday, April 25, 2013.

Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spototest for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

Summary and full case available here.

Tenth Circuit: Rules of Evidence Apply to Admission of First Trial’s Testimony at Second Trial; Dismissal Without Prejudice Proper for Violation for Speedy Trial Act

The Tenth Circuit published its opinion in United States v. Toombs on Friday, April 26, 2013.

In 2008, a jury found Marlo Toombs guilty on seven counts of drug and firearm felony offenses. On appeal, the Tenth Circuit reversed and remanded his case for violations of the Speedy Trial Act. After the district court dismissed Toombs’ indictment without prejudice, the government filed a new indictment and a jury subsequently found Toombs guilty of six charges.

On appeal, Toombs argued that the district court abused its discretion by admitting his entire testimony from the first trial into evidence at the second trial. The Tenth Circuit held that while the district court should have evaluated the first trial testimony under the Rules of Evidence before admitting it in the second trial, the admission was harmless error given the overwhelming evidence against Toombs and the limiting instruction given.

Toombs also argued the district court erred by dismissing the first indictment without prejudice. After considering the factors contained in 18 U.S.C. § 3162(a)(2) that govern dismissals for violation of the Speedy Trial Act, the court found no abuse of discretion in the decision to dismiss without prejudice. Toombs’ offenses were serious and he failed to establish the delay was “a result of intentional dilatory conduct or a pattern of neglect.”

Tenth Circuit: Unpublished Opinions, 4/29/13

On Monday, April 29, 2013, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

United States v. Herrera

Gomez v. Davis

United States v. Avitia-Bustamante

United States v. Aniles-Marquez

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

Tenth Circuit: Unpublished Opinions, 4/26/13

On Friday, April 26, 2013, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Jones v. Astrue

Nasious v. City & County of Denver

Mizusawa v. United States Dept of Labor

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

Realizing the Dream: Equality for All — Law Day Celebrations Across the State

I Have A DreamOn Wednesday, May 1, 2013, pro se litigants in the First Judicial District will have an opportunity to meet with an attorney for 15 minutes to discuss their civil, criminal, domestic, juvenile, or small claims case. There is no cost for the meeting. The event is part of 2013 Law Day celebrations, and it will run from 9 a.m. to 4 p.m. in the atrium of the Jefferson County Courts building (100 Jefferson County Parkway in Golden).

Law Day is celebrated nationally each year on May 1. President Dwight Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution (codified at 36 U.S.C. § 113) designating May 1 as the official date for celebrating Law Day. The theme of this year’s Law Day is “Realizing the Dream: Equality for All.” 2013 is the 150th anniversary of the emancipation proclamation, and the 50th anniversary of Rev. Dr. Martin Luther King, Jr.’s iconic “I Have a Dream” speech. The legacy of the Civil Rights Movement can be seen in the strides that have been made against discrimination based on race, gender, ethnicity, national origin, religion, age, disability, and sexual orientation.

The Colorado and Denver bar associations are also sponsoring events to celebrate Law Day. On May 1, there will be a special showing of the movie “Lincoln” at the Mayan Theater in Denver, with a CLE program presented by Hon. John Madden prior to the movie. Tickets are available through the CBA. On May 2, the DBA Young Lawyers Division will host a Law Day Reception at The Lobby, where the winners of the Law Day Art Contest will be recognized. RSVP to both events or either event by emailing lunches@cobar.org or calling the CBA at (303) 860-1115.

Students who participated in the DBA’s Law Day Art Contest will have their work featured at the Denver Art Museum through May. The winners of the art contest are featured on the cover of the May edition of The Docket, and all of the artwork from participating students is shown in the May edition. It is amazing and inspiring to view the adorable and creative works of these talented kids.

The El Paso County Bar Association is also hosting many Law Day events beginning on April 27 with Ask-A-Lawyer for Senior Citizens at the Colorado Springs Senior Center. On Saturday, May 4, they are hosting a Waldo Canyon Fire Tree Planting Service Project; download the registration form here. On Thursday, May 16, KKTV Channel 11 will host a Call-A-Lawyer event. To volunteer, email Pikes Peak pro bono. There will be a Law Day Race on May 17 at Monument Valley Park; registration will be on www.active.com. Finally, on Tuesday, May 21, there will be a Law Day Luncheon and awards ceremony in the Grand Ballroom of the Mining Exchange Hotel. Click here to RSVP.

For more information on Colorado’s Law Day events, click here. To see the CBA press release regarding Law Day, click here. For the ABA page about Law Day 2013, click here.

Colorado Court of Appeals: Reliance on Previous Exclusionary Order by Trial Court Error Where Balancing Test Under CRE 403 Not Performed

The Colorado Court of Appeals issued its opinion in People v. Osorio-Bahena on Thursday, April 25, 2013.

Sexual Assault Against an At-Risk Adult—Rape Shield Statute—Prior Sexual Conduct—Mental Capacity—Competency—Involuntary Psychiatric Evaluation.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. The judgment was affirmed.

St. Paul’s House is a residential-care facility for boys with developmental and mental health issues. In 2007, S.S., an 18-year-old resident of the facility with the mental capacity of a 5-year-old, reported that defendant, who worked at the facility, had sexually assaulted him. Defendant was charged with sexual assault against an at-risk adult.

Defendant contended that the exclusion of evidence that described S.S.’s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.’s sexual knowledge, was an abuse of discretion. Evidence of S.S.’s prior sexual conduct was not relevant to show an alternative source of S.S.’s sexual knowledge because (1) S.S.’s limited mental capacity may have given rise to an inference of a lack of sexual knowledge; (2) evidence of prior incidents may show an alternative source of sexual knowledge, regardless of whether the prosecution injects the issue into the trial; and (3) the dissimilarities here did not tend to negate such knowledge. The case was remanded to the trial court to evaluate the admissibility of the evidence under CRE 403.

Defendant contended that the trial court erred by denying his motion for an involuntary psychiatric competency evaluation of S.S. and finding that S.S. was competent to testify. The pretrial testimony by the director of the facility and the videotaped interviews of S.S. both support the trial court’s findings that S.S. could recall the incident and understand the difference between the truth and a lie. Accordingly, the trial court did not abuse its discretion in refusing to order an involuntary examination or finding S.S. competent to testify.

Defendant also contended that the trial court erred by allowing the jury to view a photograph of his bare chest, taken during trial but outside the jury’s presence. He asserted that taking the photograph violated Crim.P. 41.1 and his Fifth Amendment right against self-incrimination. The Court ruled that the photograph was relevant merely to support S.S.’s statements about defendant, and thus rejected defendant’s assertions.

Defendant further argued that the trial court erred when it rejected his request to allow his wife to testify that he was uncircumcised. However, because S.S. was never asked about this particular fact, the evidence was not relevant.

Summary and full case available here.

Colorado Court of Appeals: Defendant Whose Conviction was Overturned is Entitled to Refund of Restitution Paid

The Colorado Court of Appeals issued its opinion in People v. Madden on Thursday, April 25, 2013.

Refund of Restitution—Overturned Conviction.

Defendant Louis Madden appealed the district court’s order denying his request for a refund of restitution. The order was reversed and the case was remanded.

Madden was convicted of attempted patronizing of a prostituted child and attempted third-degree sexual assault by force, and he was ordered to pay restitution in the amount of $910. The Supreme Court ultimately reversed his conviction for attempted patronizing of a prostituted child, and the attempted third-degree sexual assault conviction was later vacated due to constitutionally ineffective trial counsel.

Madden argued that the trial court erred in denying his request for a refund of the restitution paid after his conviction was vacated, and the Court of Appeals agreed. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail to prove on remand the defendant’s guilt of the charged crimes beyond a reasonable doubt. Therefore, Madden was entitled to a refund of the restitution that he paid in connection with his now overturned conviction, and he was permitted to request a refund by filing a motion in this case. Therefore, the order was reversed and the case was remanded to the district court to award Madden a refund of the restitution that he paid in this case.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 4/25/13

On Thursday, April 25, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Ford

Esparza v. Bowman

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