December 13, 2018

Archives for December 4, 2018

Matthew D. Grove Appointed to Colorado Court of Appeals

On Thursday, November 29, 2018, Governor Hickenlooper appointed Matthew D. Grove to the Colorado Court of Appeals. Grove will fill a vacancy created by the retirement of Chief Judge Alan M. Loeb, effective December 28, 2018.

Currently, Grove is a Senior Assistant Attorney General in the Public Officials Unit of the State Services Section of the Colorado Attorney General’s Office. He is also an Assistant Solicitor General for the Public Officials Unit, where he has served since 2009. Prior to his work at the Colorado Attorney General’s Office, Grove was an attorney with Bjork Lindley Little PC from 2007 to 2009, an Assistant Attorney General with the Appellate Division of the Colorado Attorney General’s Office from 2003 to 2007, and a law clerk to Hon. Nathan B. Coats of the Colorado Supreme Court. Grove received his law degree from the University of Colorado School of Law and his undergraduate degree from Duke University.

For more information about the appointment, click here.

Colorado Court of Appeals: Former Spouse Not Foreclosed on Standing Grounds from Seeking Reformation of Will

The Colorado Court of Appeals issued its opinion in In re Estate of Little on Thursday, November 29, 2018.

Family LawCommon Law MarriageProbateWillsReformation to Correct Mistakes.

Little’s will devised her estate to her spouse Curry, from whom she later divorced. After her death, Curry claimed that he was entitled to inherit under Little’s will because they had remarried at common law before she died. Alternatively, he sought reformation of the will, contending that Little intended to devise her estate to him regardless of their marital status. The trial court found that Curry failed to show he and Little remarried at common law, and Curry otherwise lacked standing to seek reformation of her will.

On appeal, Curry contended that the provisions in Little’s will devising her estate to him were revived by their common law remarriage under C.R.S. § 15-11-804(5). There was substantial evidence in the record to support the trial court’s findings that Curry and Little were not common law married after their divorce.

Alternatively, Curry contended that the trial court erroneously found he lacked standing to seek reformation of Little’s will under C.R.S. § 15-11-806 because when Little executed her will, she intended for him to inherit her estate regardless of their marital status. The court of appeals reviewed the statutory scheme and found no indication that the General Assembly intended to exclude a former spouse from pursuing reformation under C.R.S. § 15-11-806, or that it intended C.R.S. § 15-11-804(5) to be an ex-spouse’s sole and exclusive remedy for avoiding a statutory revocation due to a divorce. Accordingly, Curry had standing to pursue his reformation claim.

The order determining that Little and Curry were not common law remarried was affirmed. The dismissal of Curry’s reformation claim was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Language in Fee Agreement Insufficient to Terminate Counsel’s Representation

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, November 29, 2018.

Criminal ProcedureConstitutional LawSixth AmendmentNotice of AppealIneffective Assistance of CounselCrim. P. 44(e)Termination of Representation.

Newell represented Lancaster at a criminal trial. The fee agreement between Newell and Lancaster included a provision that representation terminated at the conclusion of trial. A jury found Lancaster guilty on six of seven counts and he was sentenced in 2007. Following trial, Newell informed Lancaster that he would not represent him on appeal, but Newell did not withdraw from the representation. Thereafter, Lancaster did not timely file a notice of appeal. In 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that Newell had been constitutionally ineffective by failing to file a notice of appeal. The motion was denied after a hearing.

On appeal, Lancaster contended that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. Trial counsel’s representation of a criminal defendant terminates only as provided under Crim. P. 44(e), notwithstanding the fee agreement; therefore, trial counsel’s duty to perfect the defendant’s appeal is not discharged until the representation terminates pursuant to Crim. P. 44(e). Here, Newell’s failure to either file a notice of appeal on Lancaster’s behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel. Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, he is entitled to pursue a direct appeal out of time pursuant to C.A.R. 4(b).

The order was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Officer’s Observation of Vehicle Weaving in Lane Sufficient to Create Reasonable Suspicion of DUI

The Colorado Court of Appeals issued its opinion in People v. Johnston on Thursday, November 29, 2018.

Constitutional Law—Fourth Amendment—Search and Seizure—Motor Vehicles.

A sheriff’s deputy noticed defendant’s car continuously weaving within the right-hand lane while traveling on Interstate 70. The deputy followed defendant for five to six miles before stopping him for suspicion of driving under the influence of alcohol. During the stop, the officer noticed signs of intoxication, administered roadside tests, and arrested defendant. Defendant was charged with aggravated driving after revocation prohibited and driving under the influence (DUI). Defendant filed a motion to suppress, which the trial court denied. A jury found defendant guilty of aggravated driving after revocation prohibited and the lesser included offense of driving while ability impaired.

On appeal, defendant argued that the trial court erred by denying his motion to suppress. He argued that his weaving within a single lane, without more, did not create a reasonable suspicion of DUI. The Fourth Amendment does not require that a police officer see the defendant commit a traffic violation before stopping him, and repeated intra-lane weaving can create reasonable suspicion of impaired operation. Whether there exists reasonable suspicion of intoxicated driving is based on the totality of the circumstances. Here, under the totality of the circumstances, the police officer’s observation of defendant’s vehicle weaving continuously within its own lane for over five miles was sufficient to create a reasonable suspicion that the driver was intoxicated. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/3/2018

On Monday, December 3, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Grigsby v. Baltazar

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