August 19, 2018

Archives for 2018

Public Trustees Appointed in Boulder and Jefferson Counties

On Wednesday, August 16, 2018, the governor appointed public trustees in Boulder County and Jefferson County. The public trustees facilitate foreclosures and public transactions on real property, and oversee the administration of deeds of trust.

The appointments of the new public trustees were occasioned by the resignation of Jim Martin of Boulder. The new public trustee for Boulder County is Sheryl Anne Del Rosario of Erie, and the new public trustee for Jefferson County is Catherine A. Bortles of Golden.

For more information about the appointments, click here.

Colorado Court of Appeals: Supervising Attorney Must Be Present in Courtroom at All Critical Stages of Case

The Colorado Court of Appeals issued its opinion in People v. McGlaughlin on Thursday, August 8, 2018.

Civil ProcedureStudent AttorneySixth AmendmentRight to Counsel. 

McGlaughlin pleaded guilty to third degree assault and violation of a protection order. He was represented by a law student extern practicing under C.R.C.P. 205.7. Thereafter, McGlaughlin moved to vacate his plea and the resulting convictions, claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel when he was represented only by a law student, not a licensed lawyer, at his plea hearing. The postconviction court denied McGlaughlin’s Crim. P. 35(c) motion without a hearing, concluding that the record disproved McLaughlin’s claim.

On appeal, McGlaughlin argued that his plea was constitutionally invalid under the Sixth Amendment because he was not represented by a licensed lawyer at a critical stage of his criminal case. When a criminal defendant is represented by a student attorney under C.R.C.P. 205.7, a supervising attorney must be physically present in the courtroom during all critical stages of the criminal case. If the supervising attorney is not present during a critical stage, the defendant is denied his Sixth Amendment right to counsel. The record here did not clearly establish that the supervising attorney was present during defendant’s plea hearing.

The order was reversed and the case was remanded to the postconviction court for an evidentiary hearing and further findings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentence Lawful Beyond Life with Possibility of Parole After 40 Years for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, August 8, 2018.

Criminal LawJuvenileMotion to SuppressWaiverRight to TestifySentencingEighth Amendment.

When Davis was 17 years old, he and McGrath robbed the victim, McGrath’s former coworker. The victim was transporting money to a bank from the restaurant at which he and McGrath had worked. In the course of the robbery, the victim was shot and killed. Davis was convicted of first degree murder after deliberation, felony murder, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first degree murder, and conspiracy to commit aggravated robbery. As required by statute, the trial court sentenced him to life in the custody of the Department of Corrections with the possibility of parole after 40 years (LWPP-40) on the murder after deliberation count. Additionally, the trial court imposed a consecutive sentence of eight years and one day on the aggravated robbery count. The sentences imposed for the remaining counts were ordered to run concurrently with the sentences to life plus eight years and a day. The felony murder conviction was merged with the conviction for murder after deliberation. Davis filed two Crim. P. 35(c) motions, which the district court denied in a series of orders.

On appeal, Davis contended that the trial court violated his constitutional rights when it denied his motion to suppress statements he made during police interrogation, arguing that the Denver detective violated his right to counsel by continuing an interrogation after he asked for an attorney. Davis’ statements were admissible because although Davis had previously asked for an attorney, he had voluntarily reinitiated the interrogation by asking the Denver detective whether McGrath had been arrested. Even assuming that the trial court erred in denying the motion, any error was harmless beyond a reasonable doubt in light of the relative insignificance of the statements to the People’s case and the substantial evidence of guilt.

Davis also argued that reversal is required because he never executed an on-the-record waiver of his right to testify. Where the trial court’s on-the-record advisement includes the five essential elements set forth in People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), as occurred here, the record conclusively demonstrates that defendant made a valid waiver of the right to testify. Further, Davis did not present any evidence to show that despite the Curtis advisement, his waiver was nonetheless invalid. Thus, the district court did not err in concluding that Davis knowingly, voluntarily, and intelligently waived his right to testify.

Davis next contended that his sentence of LWPP-40 together with a sentence of eight years plus one day is unconstitutional. LWPP-40 is a constitutional sentence, and the trial court did not abuse its discretion in sentencing Davis to eight years and one day to run consecutively to his LWPP-40 sentence. Further, Colorado’s parole system provides juveniles sentenced to LWPP-40 a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/16/2018

On Thursday, August 16, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Duran v. Archuleta

United States v. Roman

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

Eric and Kevin’s Most Excellent Career Adventures


David Graeber’s book Bullshit Jobs is loaded with real-life job stories that meet his definition of “a form of employment that is so completely pointless, unnecessary, or pernicious that even the employee cannot justify its existence even though the employee feels obliged to pretend that this is not the case.” One of those stories rang a bell: turns out that “Eric” and I had the same job. The details are different, but our experiences involved the same issues of social capital and upward mobility.

Eric grew up in a working class neighborhood, left to attend a major British university, graduated with a history major, landed in a Big 4 accounting firm training program, and took a corporate position that looked like an express elevator to the executive suite. But then the job turned out to be… well, nothing. No one would tell him what to do. He showed up day after day in his new business clothes and tried to look busy while trying in vain to solve the mystery of why he had nothing to do. He tried to quit a couple times, only to be rewarded with raises, and the money was hard to pass up. Frustration gave way to boredom, boredom to depression, and depression to deception. Soon he and his mates at the pub back home hatched a plan to use his generous expense account to travel, gamble, and drink.

In time, Eric learned that his position was the result of a political standoff: one of the higher-ups had the clout to fund a pet project that the responsible mid-level managers disagreed with, so they colluded to make sure it would never happen. Since Eric had been hired to coordinate internal communication on the project, keeping him in the dark was essential. Eventually he managed to quit, kick his gambling and drinking habits, and take a shot at the artistic career he had envisioned in college.

My story isn’t quite so… um, colorful… but the themes are similar. I also came from a strong “work with your hands” ethic and was in the first generation of my family to go to college, where I joined the children of lawyers, neurosurgeons, professors, diplomats, and other upper echelon white collar professionals from all 50 states and several foreign countries, At the first meeting of my freshmen advisory group, my new classmates talked about books, authors, and academic disciplines I’d never heard of. When I tackled my first class assignment, I had to look up 15 words in the first two pages. And on it went. Altogether, my college career was mostly an exercise in cluelessness. But I was smart and ambitious, and did better than I deserved.

Fast forward nine years, and that’s me again, this time signing on with a boutique corporate law firm as a newly minted MBA/JD. I got there by building a lot of personal human capital, but my steel thermos and metal lunch bucket upbringing was still so ingrained that a few weeks after getting hired I asked a senior associate why nobody ever took morning and afternoon coffee breaks. He looked puzzled, and finally said, “Well… we don’t really take breaks.” Or vacations, evenings, weekends, or holidays, as it turned out.

A couple years later I hired on with a Big 4 accounting firm as a corporate finance consultant. My first assignment was my Eric-equivalent job: I was assigned to a team of accountants tasked with creating a new chart of accounts for a multinational corporation and its subsidiaries. Never mind that the job had nothing to do with corporate finance. Plus there were two other little problems: I didn’t know what a chart of accounts was, and at our first client meeting a key corporate manager announced that he thought the project was ridiculous and intended to oppose it. Undaunted, the other members of the consulting team got to work. Everybody seemed to know what to do, but nobody would tell me, and in the meantime our opponent in management gained a following.

As a result, I spent months away from home every week, trying to look busy. I piled up the frequent flyer miles and enjoyed the 5-star accommodations and meals, but fell into a deep depression. When I told the managing partner about it, he observed that, “Maybe this job isn’t a good fit for you.” He suggested I leave in two months, which happened to be when our consulting contract was due for a renewal. Looking back, I suspect my actual role on the team was “warm body.”

Graeber says that, at first blush, Eric’s story sounds like yet one more bright, idealistic liberal arts grad getting a real-world comeuppance:

Eric was a young man form a working-class background… fresh out of college and full of expectations, suddenly confronted with a jolting introduction to the “real world.”

One could perhaps conclude that Eric’s problem was not just that he hadn’t been sufficiently prepared for the pointlessness of the modern workplace. He had passed through the old educational system . . . This led to false expectations and an initial shock of disillusionment that he could not overcome.

Sounds like my story, too, but then Graeber takes his analysis in a different direction: “To a large degree,” he say, “this is really a story about social class.” Which brings us back to the issues of upward mobility and social capital we’ve been looking at. We’ll talk more about those next time.

In the meantime, I can’t resist a Dogbert episode:


Colorado Court of Appeals: Evidence Sufficient to Show Defendant Had No Possessory Interest in Apartment

The Colorado Court of Appeals issued its opinion in People v. Joosten on Thursday, August 8, 2018.

Criminal Law—Jury Instructions—Theory of the Case—Evidence—Burglary.

After Joosten and his girlfriend broke up, Joosten moved out of their shared apartment, but continued to frequently spend the night there and keep some of his belongings there.  Joosten subsequently returned to the apartment and kicked down the door, which hit the girlfriend’s new roommate in the face. After the girlfriend escaped, Joosten went back into his girlfriend’s room, where he cut up her driver’s license and bank card and cut the cords of her hair dryer and curling iron. The trial court denied Joosten’s tendered theory of the case instruction regarding the burglary charge. A jury convicted Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief.

On appeal, Joosten first contended that the evidence was insufficient to convict him of second degree burglary because the prosecution failed to prove that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful. Here, there was sufficient evidence to support Joosten’s burglary conviction, including the fact that he always knocked before entering, did not have a key to the apartment, and kicked down the door on the occasion in question.

Joosten also argued that the court erred in rejecting his theory of the case instruction. A criminal defendant is entitled to a theory of the case instruction. None of the exceptions to that rule were applicable in this case. The trial court erred when it refused Joosten’s tendered instruction and failed to work with Joosten’s counsel to craft a permissible instruction. But the error was harmless given the evidence regarding the manner of Joosten’s entry into the apartment.

Lastly, Joosten contended and the Attorney General conceded that the mittimus incorrectly reflects that the jury convicted him of two counts of class 2 misdemeanor criminal mischief. The court of appeals agreed that the mittimus is incorrect.

The judgment of conviction was affirmed. The case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Properly Reviewed Count Regardless of Whether Defendants Would Have Been Entitled to Probable Cause Review

The Colorado Court of Appeals issued its opinion in People v. Soto-Campos on Thursday, August 8, 2018.

Criminal Law—Grand Jury Indictment—Probable Cause Review—C.R.S. § 16-5-204(4)(k)—Sentence Enhancer.

The prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales, for their alleged involvement in a heroin distribution enterprise. Defendants’ attorneys filed motions requesting that the district court conduct a probable cause review under C.R.S. § 16-5-204(4)(k) for count sixty-one, Special Offender—Within 1000 Feet of a School. After review, the court dismissed that count. The prosecution then asked the court to reconsider, arguing that defendants were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense. The district court denied the motions.

On appeal, the People contended that the district court erred in conducting the probable cause review because, considering legal principles governing preliminary hearings, the sixty-first count is a “stand-alone” sentence enhancer, and thus not subject to review under C.R.S. § 16-5-204(4)(k). C.R.S. § 16-5-204(4)(k) is not limited to substantive offenses, but instead broadly requires a district court to dismiss “any indictment” based on a probable cause finding that lacks record support. Therefore, the district court properly reviewed the sixty-first count under C.R.S. § 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 8/16/2018

On Thursday, August 16, 2018, the Colorado Court of Appeals issued no published opinion and 22 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 8/15/2018

On Wednesday, August 15, 2018, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

Lebere v. Trani

Harvey v. Thompson

Crowder v. Martin

Acosta v. Foreclosure Connection, Inc.

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

Colorado Court of Appeals: Where Parent Indicates Desire to Relocate with Minor Children, Magistrate Has No Authority to Order Shared Parenting Time in Colorado

The Colorado Court of Appeals issued its opinion in In re Marriage of Morgan on Thursday, August 8, 2018.

Dissolution of Marriage—Relocation—Parenting Time.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Appeal of Parenting Time Order Mooted When Subject Child Turns 18

The Colorado Court of Appeals issued its opinion in In re Marriage of Tibbetts on Thursday, August 8, 2018.

Dissolution of Marriage—Post-Decree—Parenting Time—18 Years of Age.

In this post-dissolution of marriage action father moved to have the parenting plan terminated to allow the parties’ 16–year-old child to determine her own parenting time schedule.  A district court magistrate denied father’s request, and while the appeal was pending, the child turned 18 years of age. On father’s petition for review to the district court, the court adopted the order.

Father filed his opening brief the day before the child turned 18. Mother moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved. Once the parties’ child turned 18, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot.

The appeal was dismissed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/14/2018

On Tuesday, August 14, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Harper v. C.R. England, Inc.

Martin v. State of Oklahoma

303 Creative LLC v. Elenis

Fowler v. Bank of America Corp.

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