May 22, 2019

Archives for June 9, 2014

Colorado Court of Appeals: Doctrine of Laches Barred Appellate Review of 24-Year-Old Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Lanari on Thursday, June 5, 2014.

Crim P.35(c)—Doctrine of Laches—Prejudice.

In 1987, a jury convicted Lanari of first-degree murder, attempted first-degree murder, and four crime of violence sentencing enhancers. On November 2, 2010, Lanari filed a pro se Crim.P. 35(c) motion, alleging that trial and appellate counsel were ineffective for various reasons. The People moved to dismiss the motion, arguing that it was barred by the doctrine of laches. After a hearing, the district court agreed and dismissed the Crim.P. 35(c) motion.

On appeal, Lanari argued in his opening brief that his Crim.P. 35(c) motion was not barred by the doctrine of laches. There is no statutory time limit to file a post-conviction motion if a defendant has been convicted of a class 1 felony. However, the doctrine of laches is still available to bar such motions based on prejudice to the prosecution. Here, Lanari conceded that he knew about the facts underlying his ineffective assistance of trial counsel claims either before or by the conclusion of his trial in 1987. Additionally, he knew about the facts that formed the basis of his ineffective assistance of appellate counsel claims by the conclusion of his appeal in 1997. The People were not required to show that they detrimentally relied on Lanari’s failure to file a post-conviction motion within a reasonable time. Because Lanari filed his post-trial motion almost twenty-four years after his trial in January 1987, the district court did not abuse its discretion in finding that the People were prejudiced by such delay. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Evidence of Gangs Inadmissible as Res Gestae and Under CRE 404(b); Reversal Required

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, June 5, 2014.

Speedy Trial—Continuance—Witness—Gang Evidence—CRE 404(b)—Res Gestae Evidence.

A jury found defendant guilty of second-degree kidnapping, robbery, third-degree assault, and menacing. On appeal, defendant contended that his convictions must be dismissed because the trial court granted the prosecution a continuance beyond his speedy trial deadline to obtain the testimony of a crucial witness (Gonzales). The prosecution moved to continue defendant’s trial to secure Gonzales’s testimony, which was crucial to the People’s case. Further, the record supports the prosecution’s exercise of due diligence to secure Gonzales’s testimony. The prosecution asserted that a plea agreement with Gonzales would soon be reached, after police could confirm her statements, and that this agreement would require her to testify against her accomplices. Therefore, the trial court did not err in continuing the trial to allow the prosecution to secure Gonzales’s testimony.

Trujillo further argued that his convictions should be reversed because the trial court erroneously admitted excessive evidence about gangs over his objection. The prosecution introduced gang evidence through Gonzales’s testimony, plus the testimony of a police detective gang specialist, a police officer, and a gang expert, and through photographs of Trujillo’s gang tattoos. The gang expert’s testimony about the size and structure of the Sureños gang, the Sureños culture, and the rules of the Sureños, as well as Gonzales’s testimony about Trujillo’s tattoos, the meaning of “green light,” and the shooting of another gang member, were inadmissible under CRE 404(b) and as res gestae evidence, because the prosecution did not show the connection between the charged crimes and the evidence presented. This error was not harmless, so the judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Empaneled Jurors Did Not Form Pretrial Determination of Defendant’s Guilt So Venue Proper

The Colorado Court of Appeals issued its opinion in People v. Hankins on Thursday, June 5, 2014.

Change of Venue—Jury Selection—Preemptory Challenges.

In August 2007, defendant was arrested for the murder of his wife in Craig, Colorado, which is in Moffat County. Defendant moved for a change of venue, citing extensive coverage of the case in the Craig Daily Press. Defendant’s motion was denied, the case was tried in Moffat County, and defendant was convicted of first-degree murder and abuse of a corpse.

On appeal, defendant contended that the trial court’s denial of his motion for a change of venue violated his right to a fair trial. As shown by the record, the pretrial publicity in this case was extensive but not so massive, pervasive, and prejudicial as to create a presumption that defendant was denied a fair trial. Additionally, the record does not show prejudice. Only one impaneled juror said he had formed an opinion about defendant’s guilt, and he adamantly declared that he could set it aside. The remaining eleven jurors said they had not formed an opinion as to defendant’s guilt. Therefore, the trial court did not abuse its discretion when it denied the motion for change of venue.

Defendant also sought reversal of his conviction because he did not receive the full number of peremptory challenges permitted by law. Because the record was completely silent on this issue, it appears that the trial court and the attorneys simply overlooked this issue. Because both parties received the same number of challenges, defendant’s right to be tried by a fair and impartial jury was not violated. The order was affirmed.

Summary and full case available here.

Tenth Circuit: No Agency Relationship Existed Between Purported Ministers and Church that would Supersede Tax Liability

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hartshorn on Monday, June 2, 2014.

Kevin Hartshorn was the head minister of the Church of Compassionate Service, which he founded in 2004. Hartshorn encouraged members to become “ministers,” whereby they would transfer all of their assets to the church and assign all of their income to the church. Hartshorn assured ministers that by transferring all of their assets and income to the church and taking a vow of poverty and obedience, they would be exempt from personal income tax liability. Approximately 90% of each minister’s earnings were returned to the minister as “local ministry funding.” The district court issued an injunction against Hartshorn under 26 U.S.C. § 7408, and Hartshorn appealed.

The Tenth Circuit analyzed the five factors for issuing injunctive relief: “(1) Defendant organized an entity, plan, or arrangement; (2) he made false or fraudulent statements concerning the tax benefits to be derived from the entity, plan, or arrangement; (3) he knew or had reason to know that the statements were false or fraudulent; (4) the false or fraudulent statements pertained to a material matter; and (5) an injunction was necessary to prevent recurrence of this conduct.” Only factors two and three were in dispute; Hartshorn argued that he did not believe the statements regarding non-payment of income taxes to be false or fraudulent. The Tenth Circuit considered whether a minister’s income is tax exempt only if he receives it as an agent of the church or whether it is sufficient that a minister assigns earnings to his church pursuant to a vow of poverty, and noted that all of the circuit courts that had considered the issue had determined that a minister must earn income as an agent of his church in order for his earnings to be tax exempt. Next, the Tenth Circuit examined the agency relationship between Hartshorn’s ministers and the church, and determined that there was no agency relationship – the ministers continued their life as usual with the sole exception that their paychecks were deposited in a church account instead of a personal account.

The Tenth Circuit affirmed the injunction, concluding a reasonable person in Hartshorn’s position would know that his representations regarding the tax consequences of the ministers’ actions were false. Judge O’Brien concurred eloquently.

Tenth Circuit: Career Offender Designation Must Be Based on Defendant and Not Hypothetical Worst Possible Offender

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brooks on Monday, June 2, 2014.

Defendant Brooks was sentenced as a career offender under the Federal Sentencing Guidelines based on two prior Kansas offenses. The district court relied on Tenth Circuit precedent in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify one of defendant’s two prior convictions as a felony because, under Kansas’ peculiar sentencing scheme, it was hypothetically punishable by more than one year in prison, even though defendant’s potential maximum sentence was seven months’ imprisonment and his actual sentence for that offense was six months. Defendant appealed his sentence, arguing that Hill was abrogated by the U.S. Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The Tenth Circuit agreed.

Kansas’ sentencing scheme has no statutory maximum sentence for offenses. Instead, sentencing is calculated by using a grid that examines the severity of the crime and the offender’s prior history. The Tenth Circuit noted that the language of the U.S. Sentencing Guidelines considers a defendant a “career offender” if defendant has committed two or more prior offenses punishable by imprisonment for more than one year, regardless of defendant’s actual sentences or whether the crimes are classified as felonies. Under the Hill precedent, the Tenth Circuit considered a hypothetical maximum sentence for the worst possible offender in determining whether an offense was to be considered for purposes of the Guidelines’ career offender provisions. However, because of the Supreme Court’s holding in Carachuri-Rosendo, the Tenth Circuit determined that the proper analysis is whether the actual defendant’s offense was punishable by more than one year’s imprisonment, not whether any hypothetical offender could be punished for the same crime with more than one year’s imprisonment. The Tenth Circuit noted that two other circuits had been instructed by the Supreme Court to reconsider holdings similar to Hill in light of its holding in Carachuri-Rosendo, and both circuits reversed their prior decisions, instead basing the career offender determination on the actual defendant’s potential maximum sentence and not the hypothetical maximum for the worst possible offender.

The Tenth Circuit reversed and remanded for resentencing consistent with the Supreme Court’s reasoning in Carachuri-Rosendo.

Tenth Circuit: Unpublished Opinions, 6/6/2014

On Friday, June 6, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Mayberry

Davis v. Nebraska Furniture Mart, Inc.

United States v. Donaldson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.