July 21, 2018

Archives for April 25, 2018

Bills Signed Modifying Public Trustee Foreclosure Process, Lowering Mandatory Parole for Certain Felonies, and More

On Monday, April 23, 2018, Governor Hickenlooper signed 20 bills into law. To date, he has signed 169 bills and sent one to the Secretary of State without a signature. Some of the bills signed Monday include a bill modifying the Public Trustee Foreclosure process, a bill lowering mandatory parole for certain felonies, a bill allowing discretionary parole of special needs offenders, and more. The bills signed Monday are summarized here.

  • HB 18-1008 – “Concerning the Financing of the Division of Parks and Wildlife’s Aquatic Nuisance Species Program, and, in Connection Therewith, Creating an Aquatic Nuisance Species Stamp for the Operation of Motorboats and Sailboats in Waters of the State, Increasing Penalties Related to the Introduction of Aquatic Nuisance Species into the Waters of the State, and Combining Two Separate Funds Related to the Aquatic Nuisance Species Program into One Fund,” by Reps. Daneya Esgar & Jeni James Arndt and Sens. Kerry Donovan & Don Coram. The bill updates a legislative declaration concerning aquatic nuisance species to encourage the federal government to dedicate sufficient funding and resources to the detection, prevention, control, and eradication of aquatic nuisance species for federally owned or managed aquatic resources and water infrastructure in Colorado.
  • HB 18-1025 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Alcohol Beverages from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12, and, in Connection Therewith, Making an Appropriation,” by Rep. Leslie Herod and Sens. John Cooke & Bob Gardner. The bill creates Title 44 and relocates laws related to the regulation of alcohol beverages to the new Title 44.
  • HB 18-1029 – “Concerning Lowering the Period of Mandatory Parole from Five Years to Three Years for Certain Felony Offenses,” by Rep. Mike Weissman and Sen. Kevin Lundberg. Under current law, the length of a mandatory parole sentence for a class 2 and 3 felony is 5 years. The bill lowers the length of mandatory parole for a class 2 felony if the offense is not a crime of violence and a class 3 felony to 3 years.
  • HB 18-1047 – “Concerning Technical Modifications to the ‘Fair Campaign Practices Act’ to Facilitate its Administration,” by Rep. Susan Lontine and Sen. Bob Gardner. The bill makes technical modifications to the “Fair Campaign Practices Act” (FCPA) to facilitate its administration.
  • HB 18-1065 – “Concerning Discipline of a Department of Human Services Employee when the Employee is Found to have Mistreated a Vulnerable Person,” by Reps. Susan Beckman & Janet Buckner and Sens. Kent Lambert. Current law specifies when an employee of the Department of Human Services will be suspended or dismissed after being charged with specified criminal offenses. However, the Department has encountered difficulty in suspending, dismissing, or otherwise disciplining employees through the administrative process when the employee was involved in an egregious incident of mistreatment of a vulnerable person but was not convicted of a criminal offense. The bill specifies that in considering a disciplinary action against an employee for engaging in mistreatment, abuse, neglect, or exploitation, against a vulnerable person, the appointing authority shall give weight to the safety of vulnerable persons over the interests of any other person.
  • HB 18-1098 – “Concerning the Expanded Ability of the Colorado Oil and Gas Conservation Commission to Finance the Remediation of Oil and Gas Locations,” by Reps. Lori Saine & Matt Gray and Sen. Vicki Marble. Under current practice, expenditures by the Colorado Oil and Gas Conservation Commission to address the mitigation of adverse environmental impacts of oil and gas operations are paid from the environmental response account of the oil and gas conservation and environmental response fund, and the year-end balance of the account transfers into the fund. The bill specifies that the year-end balance of the account remains in the account.
  • HB 18-1109 – “Concerning Discretionary Parole of Special Needs Offenders,” by Rep. Mike Weissman and Sen. John Cooke. The bill makes several changes to the process of determining parole for special needs offenders.
  • HB 18-1191 – “Concerning a Local Authority’s Ability to Alter Speed Limits Within the Local Authority’s Jurisdiction,” by Rep. Faith Winter and Sens. Beth Martinez Humenik & John Kefalas. Current law requires county and municipal authorities (authorities) to conduct a traffic investigation or survey before increasing or decreasing the speed limits within the authority’s jurisdiction. The bill allows the authority to also consider certain other factors.
  • HB 18-1227 – “Concerning the Authority of the Real Estate Commission to Issue Licenses for an Initial Period of Less than Three Years,” by Reps. Leslie Herod & Cole Wist and Sen. John Cooke. The bill authorizes the Real Estate Commission to issue licenses that expire on December 31 of the year of issuance.
  • HB 18-1242 – “Concerning the Salary Categorization of Locally Elected Officers in Specified Counties,” by Reps. KC Becker & Donald Valdez and Sens. Larry Crowder & Randy Baumgardner. Current law categorizes each county for purposes of establishing the salaries of elected county officials in the county. The statutory salary amounts are adjusted every 2 years for inflation and take effect for terms commencing after any change is made. The bill modifies the categories of 4 counties with the accompanying percentage increase in salary.
  • HB 18-1254 – “Concerning the Modification of the Foreclosure Process on Property that is Encumbered by a Deed of Trust,” by Rep. Kevin Van Winkle and Sen. Jim Smallwood. The bill makes several modifications to the public trustee foreclosure process, including eliminating the authority of the holder’s attorney to specify a newspaper for publication, allowing an amended combined notice to be omitted in certain circumstances, modifying the amounts of deposits required for fees and costs of the public trustee, and more.
  • HB 18-1327 – “Concerning the All-Payer Health Claims Database, and, in Connection Therewith, Making an Appropriation,” by Rep. Dave Young and Sen. Dominick Moreno. The bill authorizes the General Assembly to appropriate general fund money to the Department of Health Care Policy and Financing to pay for expenses related to the all-payer health claims database.
  • HB 18-1330 – “Concerning a Supplemental State Payment Relating to Certain Office-Administered Oncology-Related Drugs for Qualified Providers under the Medical Assistance Program who Experienced a Reduction in Reimbursement Payments in the 2017-18 State Fiscal Year as a Result of the Implementation of the Federal Final Rules for Covered Outpatient Drugs, and, in Connection Therewith, Making an Appropriation,” by Rep. Dave Young and Sen. Dominick Moreno. The bill authorizes a supplemental payment of state-only money to providers under the medicaid program of certain office-administered drugs relating to oncology who experienced a decrease in aggregate reimbursements in the 2017-18 fiscal year as a result of the implementation of the federal department of health and human services final rule for covered outpatient drugs, 81 FR 5169, published in the federal register on February 1, 2016.
  • SB 18-014 – “Concerning Requiring the Department of Corrections to Disclose the Location of Inmates who are Relocated to Facilities Outside of the State,” by Sens. Rhonda Fields & John Cooke and Reps. Cole Wist & Leslie Herod. The bill states that if the Department of Corrections relocates an inmate for incarceration or contracts with another state for the incarceration of an inmate in a penal institution in another state, then not later than 48 hours after such relocation, the Department shall notify the prosecuting attorney and any registered victim of crimes for which the inmate is serving his or her sentence of the name and location of the penal institution where the inmate is to be housed, with certain exceptions.
  • SB 18-026 – “Concerning Measures to Make Sex Offender Registration More Effective,” by Sen. Daniel Kagan and Reps. Pete Lee, Leslie Herod, and Yeulin Willett. The bill makes several changes to the sex offender registration process.
  • SB 18-055 – “Concerning the Crimes Against Children Surcharge in Cases Involving Trafficking of Children,” by Sen. Tim Neville and Reps. Kevin Van Winkle & Edie Hooten. Current law requires each person who is convicted of a crime against a child to pay a surcharge to the clerk of the court for the judicial district in which the conviction occurs. The bill adds the crime of human trafficking of a minor for sexual servitude to the definition of crime against a child for purposes of the surcharge.
  • SB 18-149 – “Concerning Records of the Board of Directors of the Denver Health and Hospital Authority,” by Sen. Bob Gardner and Reps. Matt Gray & Leslie Herod. The bill specifies that certain reports, statements, agreements, bonds, guidelines, manuals, handbooks, and accounts of the authority are public records. The bill also specifies that the content of an electronic medical record system and individual medical records or medical information are not public records.
  • SB 18-151 – “Concerning Department of Education Research to Develop Bullying Prevention Policies,” by Sens. Rhonda Fields & Kevin Priola and Reps. Janet Buckner & James Wilson. The bill requires the Department of Education to research approaches, policies, and practices in other states related to bullying prevention and education, and to develop a model bullying prevention and education policy after considering its research.
  • SB 18-174 – “Concerning Liability of Entities that Provide Services to Persons with Developmental Disabilities in Residential Settings,” by Sen. Bob Gardner and Rep. Lang Sias. The bill defines ‘case management agency’ and adds a case management agency to the definition of ‘provider’ that provides services and supports to persons with developmental disabilities. The bill requires providers and service agencies to operate pursuant to department of health care policy and financing rules.
  • SB 18-188 – “Concerning Agricultural Commodities, and, in Connection Therewith, Adding Millet to the Definition of an Agricultural Commodity and Allowing the Commissioner of Agriculture to Determine Marketing Order Public Announcement Requirements,” by Sen. Jerry Sonnenberg and Reps. Jeni James Arndt & Jon Becker. The bill adds millet to the definition of an agricultural commodity in the “Colorado Agricultural Marketing Act of 1939.” The bill removes the requirement that marketing order issuance, suspension, amendment, or termination be posted in the office of the commissioner of agriculture and published in a newspaper.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Witness’s Probationary Status Alone Does Not Implicate Defendant’s Right to Cross-Examine

The Colorado Court of Appeals issued its opinion in People v. Margerum on Thursday, April 19, 2018.

Assault—Menacing—Sixth Amendment—Confrontation Clause—Cross-Examination—Probationary Status.

Defendant was alone in a friend’s apartment with the friend’s girlfriend, E.S. When E.S. rejected defendant’s sexual advances, defendant became angry and forced E.S. onto the bed, climbing on top of her and kissing and groping her. Then defendant tried to remove E.S.’s clothing. Eventually he stopped and let E.S. leave the apartment. Defendant then texted his sister, T.M., to come to the apartment. He told her he had a bag of clothes he wanted to give her. T.M. went to defendant’s apartment with her son. Without warning, defendant grabbed her around the neck and began choking her. Defendant then pinned T.M. underneath him and began groping her body. T.M. grabbed a glass candleholder and hit defendant on the back of the head, which allowed her to escape with her son. A jury convicted defendant of unlawful sexual contact without physical force as to E.S., and third-degree assault and menacing with a deadly weapon as to T.M.

On appeal, defendant argued that the trial court violated his rights under the Confrontation Clause by not allowing him to cross-examine E.S. concerning her probationary status. A witness’s probationary status alone does not implicate a defendant’s constitutional right to cross-examine the witness on potential bias or motive. Rather, some logical connection between the probationary status and the witness’s motive for testifying is required. Here, at the time of defendant’s trial, E.S. was serving a one-year probation in another county for a forgery conviction. Defendant pointed to no other facts that would logically connect E.S.’s probationary status with her testimony at his trial. Accordingly, the trial court did not err in denying defendant’s request to cross-examine E.S. regarding her probationary status because these facts do not show that E.S.’s testimony might have been influenced by a promise or expectation of leniency in exchange for favorable testimony.

Defendant next argued that there was insufficient evidence to support his menacing conviction. He contended that (1) the menacing statute requires that a defendant place the victim in fear before any actual injury, and (2) the conduct underlying his menacing conviction cannot be the same single act as the conduct underlying his assault conviction. The statute does not require that the victim be placed in fear before she in injured; it is thus irrelevant whether the victim is injured before, during, or after she is placed in fear of imminent bodily harm, if defendant’s actions place or attempt to place her in such fear. Defendant presented no basis to depart from established law that a person can commit two crimes with one act. The evidence supports defendant’s menacing conviction.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment under Crim. P. 32(d)

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, April 19, 2018.

Deferred Judgment—Crim. P. 32(d)—Jurisdiction—Immigration Consequences—Ineffective Assistance of Counsel—Withdrawal of Plea.

As relevant to this appeal, defendant pleaded guilty to possession of a schedule II controlled substance. The parties stipulated to a two-year deferred judgment. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea, arguing that his counsel failed to advise him of the clear immigration consequences of the plea and claiming that if he had been properly advised, he would have rejected the offer. After an evidentiary hearing, the district court denied the motion.

On appeal, the People argued that the court of appeals did not have jurisdiction to review the trial court’s order because the motion challenged a non-final judgment. Although a deferred judgment may not be subjected to either Crim. P. 35 or direct review while it is still in effect, a defendant may challenge an unrevoked deferred judgment under Crim. P. 32(d). Further, the Court had jurisdiction to review the district court’s denial of a motion to withdraw a guilty plea because that motion challenged a deferred judgment still in effect.

Defendant argued that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. Here, the record supports the district court’s finding that defendant’s criminal attorney and immigration attorney both told defendant on multiple occasions that a guilty plea to a drug felony would result in deportation. Because counsel’s performance was not deficient, the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

Defendant also argued that counsel should have advised him that he would be held in custody during the removal proceeding. The court found no authority that would require counsel to give this advice, and defendant failed to explain how such an advisement would have affected his decision to accept the plea offer.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/24/2018

On Tuesday, April 24, 2018, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

United States v. Gehrmann

United States v. McMahan

United States v. Cone

Nealis v. CoxCom, LLC

Tennyson v. Raemisch

United States v. Salazar Benitez

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