February 18, 2019

Archives for September 28, 2018

Chad C. Miller Appointed to 4th Judicial District Court; John E. Scipione Appointed to 18th Judicial District Court

On Thursday, September 20, 2018, Governor Hickenlooper appointed Chad C. Miller to the 4th Judicial District Court and John E. Scipione to the 18th Judicial District Court. Miller will fill a vacancy created by the retirement of Hon. Theresa M. Cisneros, effective January 8, 2019, and Scipione will fill a vacancy created by the retirement of Hon. Kurt Horton, effective September 29, 2018.

Miller is currently at the Office of the State Public Defender in Colorado Springs, where he represents clients facing felony charges, including murder, sexual assault, kidnapping, child abuse, robbery, and other crimes of violence, and where he supervises other public defenders. Prior to his work at the public defender’s office, he worked at Sherman and Howard LLC and Hoffman, Reilly, Pozner, and Williamson LLP (now Reilly Pozner LLP). He received his undergraduate degree from Lehigh University and his law degree from the University of Denver Sturm College of Law.

Scipione is currently an Arapahoe County Court judge, where he oversees a docket of misdemeanor and traffic matters. Previously, he was a District Court Magistrate in the 18th Judicial District, and prior to his work as magistrate he was managing partner of the Denver office of Taussig, Scipione & Taussig, P.C. He has practiced in the areas of family law, dependency and neglect, criminal defense, commercial litigation, medical negligence, catastrophic injury and wrongful death, products liability, and employment/Title VII matters in both state and federal courts. He has also spoken at family law and litigation programs for CBA-CLE. He received his undergraduate degree from State University of New York at Binghamton and his law degree from the University of Colorado Law School.

For more information about these appointments, click here.

Colorado Court of Appeals: Four-part Gallion Test Properly Applied in Determining Driver’s Attempt to Retract Refusal Untimely

The Colorado Court of Appeals issued its opinion in Schulte v. Colorado Department of Revenue on Thursday, September 20, 2018.

Criminal Law—Motor Vehicle—Express Consent—Blood or Breath Test—Refusal Untimely as a Matter of Law.

Police responded to a report of a car parked in the middle of a field. When an officer arrived, he found Schulte asleep in the car with the engine running. A deputy sheriff contacted Schulte and had him perform voluntary roadside maneuvers. Schulte did not perform the tests like a sober person, so the deputy asked him to submit to a chemical test under Colorado’s express consent law. Schulte refused. The deputy later arrested him, drove him to jail, turned him over to booking officers, and drove back to the scene. When the deputy returned to the jail, he completed the license revocation paperwork and began to serve Schulte with the notice of revocation. Before he could do so, Schulte asked to take a blood test. The deputy told him that it was too late. Schulte requested a Division of Motor Vehicles hearing to contest his license revocation. The hearing officer revoked his driving privileges, and the district court upheld the revocation.

On appeal, Schulte contended that the hearing officer and the district court erred when they decided, as a matter of law, that his retraction of his refusal was untimely. Colorado’s express consent law requires a driver to cooperate with law enforcement’s request to take a blood or breath test. If a licensee refuses to submit to a test, law enforcement must serve a notice of revocation on him or her and then take possession of the driver’s license. If a licensee does not offer to retract an initial refusal while the officer remains engaged in requesting or directing the completion of the test, the attempted retraction is untimely as a matter of law. Here, substantial evidence supports the hearing officer’s determination that Schulte did not cooperate with the deputy while the deputy was engaged in requesting or directing the test. The retraction of the refusal was untimely as a matter of law.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Imposition of Valid Sentence Ends Criminal Court’s Subject Matter Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Chavez on Thursday, September 20, 2018.

Criminal Procedure—Post-Conviction Remedies—Search Warrant—Crim. P. 35—Return of Property—Sentencing—Jurisdiction.

In 2004, the police obtained a warrant to search Chavez’s house as part of an investigation and seized evidence they used to charge Chavez in five separate criminal cases, none of which underlie this appeal. In the case underlying this appeal, Chavez pleaded guilty to both sexual assault and kidnapping and was sentenced for those crimes. Three years later, Chavez moved the criminal court for the return of the items seized during the search of his house. The district court denied the motion on the merits.

On appeal, Chavez contended that the district court erred in denying his motion for return of property. The imposition of sentence ends a criminal court’s subject matter jurisdiction, with the sole exception of motions brought under Crim. P. 35. Because a motion for return of property is not authorized by Crim. P. 35, criminal courts do not have jurisdiction over such motions made after sentencing. Thus, the criminal court lacked jurisdiction to address the merits of Chavez’s motion.

The order denying Chavez’s motion was vacated for lack of jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Court Need Not Make Findings Regarding Whether Restitution Would Cause “Serious Hardship or Injustice” to Juvenile

The Colorado Court of Appeals issued its opinion in People in Interest of A.V. on Thursday, September 20, 2018.

Juvenile Delinquency—Sentencing—Restitution—Waiver—Evidence—Reasonableness.

A.V. was arrested in connection with a series of home and business burglaries. The victim businesses included Animal Attractions Pet Store (Animal Attractions) and the Country Inn Restaurant (Country Inn). Country Inn sustained extensive fire damage in the burglary, and the fire destroyed most of the business. As part of a global case disposition, A.V. pleaded guilty to some counts in exchange for dismissal of other counts, stipulating to a factual basis and agreeing to pay restitution to all victims, including those in the dismissed cases. The juvenile court ordered restitution of $1,000 to Country Inn’s owner for the deductible and $681,600 to Country Inn’s insurer for the repair work. The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims’ losses to order restitution in the amount requested.

On appeal, A.V. contended that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. Here, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.’s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count.

A.V. next contended that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn’s insurer, rather than actual costs incurred to date. Here, the prosecution presented competent evidence of the estimated expenses, which A.V. did not rebut. Therefore, the juvenile court did not err.

A.V. also contended that the invoices submitted with Animal Attractions’ victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. The restitution statute does not require the prosecution to present evidence in the form of testimony. Here, because the documents support the court’s order and A.V. offered no rebuttal evidence, the juvenile court’s order was not an abuse of discretion.

A.V. last contended that the juvenile court was required to make specific reasonableness findings before ordering restitution and that $692,806.20 was not a reasonable amount of restitution to be awarded against an incarcerated juvenile. However, the statute’s plain language mandates that the juvenile court order full restitution for the victims’ losses, and the juvenile court is not required to make specific reasonableness findings before imposing restitution.

The restitution orders were affirmed.

Summary provided courtesy of Colorado Lawyer.