July 17, 2019

Archives for November 22, 2016

Colorado Gives: Volunteers Needed for Sturm College of Law’s Tribal Wills Project

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona or Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2017, twenty students and four supervising attorneys will travel to two reservations outside of Phoenix, Arizona. Similar groups will travel to New Mexico in March and Montana in May. It costs approximately $15,000 to fund each trip, which is funded primarily by donations.

TWP is actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Colorado Supreme Court: Announcement Sheet, 11/20/2016

On Monday, November 21, 2016, the Colorado Supreme Court issued two published opinions.

People v. Cooper

People v. Adams

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Two Different Sentence Enhancements Can Be Applied Together

The Colorado Supreme Court issued its opinion in People v. Adams on Monday, November 21, 2016.

Curtis Adams was found guilty of assaulting a corrections officer. Because he committed that crime while serving another sentence, the district court imposed an aggravated sentence of 12 years to be served consecutively with Adams’ other remaining sentences. Thus, Adams’ sentence was enhanced twice: once by the aggravated range and once by required consecutive sentencing.

Adams appealed, and the court of appeals concluded Adams was not subject to the term of years sentence. The court of appeals followed a decision of a different panel and determined that the aggravated range did not apply because the second degree assault statute contained its own enhancement—the requirement for consecutive sentencing. The court of appeals affirmed Adams’ conviction but reversed his sentence.

The People appealed, contending the trial court was required to apply both enhancements by the statutory language. The supreme court analyzed the statutory text and determined that because the different aspects of the sentence could be applied together without conflict, both applied. Adams argued that the consecutive sentencing requirement applies to the exclusion of the aggravated range, but the supreme court disagreed.

The supreme court reversed the part of the court of appeals’ decision vacating the sentence and remanded for further proceedings consistent with its opinion.

Colorado Supreme Court: Warrant Establishes Long String of Criminal History Despite Lack of Specific Dates

The Colorado Supreme Court issued its opinion in People v. Cooper on Monday, November 21, 2016.

In September 2015, officers requested and obtained a search warrant for Lonnie Cooper’s residence and vehicles based for illegal drugs. The affidavit supporting the warrant contained information from a confidential informant about the drug activity, but did not contain any specific dates when the activity occurred. An Alamosa County magistrate signed the warrant the day it was presented, and police searched Cooper’s home, finding controlled substances, drug paraphernalia, and weapons. Cooper was charged with multiple counts.

Cooper moved to suppress the results of the search warrant, arguing that the supporting affidavit was so lacking in indicia of probable cause that no reasonable officer could, in good faith, rely on it. The trial court granted the motion. The trial court was particularly concerned about the affidavit’s “staleness,” or the lack of exact dates. The State filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.

The State argued that even if the warrant was stale and issued in error, the good faith exception to the exclusionary rule should apply. The supreme court agreed. The court focused on the “bare bones” situation where the good faith exception would not apply, namely “where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Because in this case there was considerable evidence of ongoing drug trafficking activity, an officer could have a reasonable, good faith belief that the warrant was proper.

The Colorado Supreme Court reversed the trial court’s suppression order. Justice Hood concurred, and Justice Marquez joined in the concurrence.

Tenth Circuit: Unpublished Opinions, 11/21/2016

On Thursday, November 21, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Wilkins v. Chrisman

Krebs v. Williams

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