August 20, 2018

Archives for August 1, 2018

Colorado Court of Appeals: 32-Year Habitual Offender Sentence Does Not Raise Inference of Gross Disproportionalilty

The Colorado Court of Appeals issued its opinion in People v. Loris on Thursday, July 26, 2018.

Criminal Law—Possession—Intent to Distribute—Controlled Substance—Manslaughter—Habitual Criminal Statute—Sentencing—Drug Felonies—Gross Disproportionality.

Defendant sold methamphetamine to three individuals. As part of the deal, she agreed to accept a handgun for the drugs. After the parties had been drinking and smoking methamphetamine, defendant handled the gun and it went off. The bullet struck the victim in the head, killing him. Defendant pleaded guilty to possession with intent to distribute a controlled substance, manslaughter, and four habitual criminal counts. The four habitual criminal counts were based on prior state felony convictions. Applying the habitual criminal sentence multiplier, the district court sentenced defendant to concurrent sentences of 32 years for possession with intent to distribute and 24 years for manslaughter.

On appeal, defendant contended that her 32-year sentence raises an inference of gross disproportionality and therefore requires a remand for an extended proportionality review. Here, defendant’s triggering offense of possession with intent to distribute a controlled substance was per se grave or serious. Defendant’s underlying conviction for conspiracy to distribute a controlled substance is also a per se grave or serious offense. The gravity of defendant’s offenses as a whole compared to the severity of her 32-year habitual criminal sentence does not merit a remand for an extended proportionality review. Defendant’s 32-year sentence does not raise an inference of gross disproportionality.

Defendant also contended that the district court lacked authority under the habitual criminal statute to sentence her to a 32-year sentence for a level 2 drug felony. The sentence multiplier of the habitual criminal statute applies to convictions “for any felony.” The district court had authority to sentence defendant to a term of 32 years under the habitual criminal statute.

The sentence was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court’s Late Imposition of Drug Offender Surcharge Did Not Violate Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Yeadon on Thursday, July 27, 2018.

Criminal Law—Driving Under Restraint—Failure to Report an Accident or Return to the Scene—Possession—Methamphetamine—Evidence—Prosecutorial Misconduct—Drug Offender Surcharge—Illegal Sentence—Double Jeopardy.

Police officers responded to a rollover crash where the driver had abandoned the vehicle. The car had been reported stolen two weeks earlier. After an expert matched Yeadon’s DNA to the deployed driver’s airbag in the crashed vehicle, a jury found Yeadon guilty of driving under restraint, failure to report an accident or return to the scene, and possession of less than two grams of a controlled substance (methamphetamine), which was found in the crashed vehicle. The district court sentenced Yeadon to 16 months in the custody of the Department of Corrections and, 11 days later, imposed a $1,250 drug offender surcharge.

On appeal, Yeadon contended that the prosecution presented insufficient evidence to support his conviction for possession. Here, the CBI expert testified that Yeadon was the major source of the DNA found on the driver’s side airbag and that such evidence suggested that he was sitting in the driver’s seat when the airbag deployed. Therefore, the prosecution presented sufficient evidence that Yeadon was the driver of the car at the time of the crash. Further, the evidence showed that Yeadon was in close proximity to the bag of methamphetamine and the scale found on the front seat, and that he fled from the accident. There was sufficient evidence to support Yeadon’s conviction for possession of less than two grams of a controlled substance.

Yeadon also argued that certain statements made by the prosecutor during closing argument constituted misconduct. However, the prosecution’s comments were reasonably supported by the evidence and did not improperly affect the verdict.

Yeadon further argued that the district court’s late imposition of the drug offender surcharge violated his right against double jeopardy. Because C.R.S. § 18-19-103(1) mandates that the drug offender surcharge be imposed in all cases in which a defendant is convicted of a drug offense, failure to impose the surcharge renders a sentence illegal. Yeadon’s sentence did not include the surcharge and was not accompanied by a district court finding of his financial inability to pay, so the sentence was contrary to the statute and illegal, and the district court was required to correct defendant’s sentence by including the surcharge. The late imposition of the surcharge was a permissible correction to an illegal sentence and thus did not violate Yeadon’s double jeopardy rights.

The judgment and sentence were affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Person Whose Property was Unlawfully Seized by Law Enforcement Has Standing to Bring Claim for Return of Property

The Colorado Court of Appeals issued its opinion in Boudette v. State of Colorado on Thursday, July 26, 2018.

Crim. P. 41(e)StandingMotion for Return of Property.

Boudette was a caretaker of a farm during the owner’s absence. An officer of the Southwest Drug Task Force obtained a search warrant from the Montezuma District Court. The officer signed an affidavit that accompanied the warrant. The affidavit stated that law enforcement believed the owner and his son used the farm as an illegal marijuana growing operation. The warrant described the items to be seized.

While the owner was away, law enforcement executed the warrant and allegedly seized property owned by Boudette, including a cellphone; a computer; notebooks; antique muskets; titles to his truck, motorcycles, and trailer; British pounds; Euros; and Boudette’s passport. No charges were ever filed against Boudette.

Boudette filed a motion for return of his property citing Crim. P. 41(e). He stated the warrant was insufficient on its face; the property seized was not described in the warrant; and there was not probable cause to believe the existence of the grounds on which the warrant was issued. He served the motion on the district attorney. The district court, sua sponte, issued an order dismissing Boudette’s case for lack of standing because he filed a criminal motion and there was no criminal case against him.

On appeal, Boudette contended that he has standing to bring his claim. Boudette alleged an injury-in-fact, the unlawful seizure of his property, and harm to a legally protected interest, because Crim. P. 41(e) permits him to bring a claim for the return of his unlawfully seized property. Although there was no criminal complaint filed against Boudette, Rule 41(e) is still applicable because (1) the Colorado Rules of Criminal Procedure govern all criminal proceedings, which include proceedings before a criminal complaint or information has been filed, and (2) Rule 41(e) does not require that a person be a criminal defendant to file a motion under that rule.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/31/2018

On Tuesday, July 31, 2018, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Sayed v. Virginia

United States v. Norwood

Sause v. Bauer

Alvis v. Schilling

Ford v. Jefferson County Sheriff’s Office

United States v. Nguyen

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