August 20, 2019

Archives for March 27, 2019

Colorado Supreme Court: Trial Court Erred by Concluding Ex Parte Review of Defense’s Competency Motion Prohibited

The Colorado Supreme Court issued its opinion in In re People v. Roina on Monday, March 25, 2019.

Competency Proceedings.

The supreme court addressed whether a trial court erred in requiring the defense to provide a copy of its sealed motion raising competency to the prosecution before conducting an initial competency evaluation of defendant. Because C.R.S. § 16-8.5-102(2)(b) requires trial courts to consider defense motions raising competency without disclosing that motion to the prosecution, the court determined that the trial court erred in concluding that Rule 2.9(A) of the Colorado Code of Judicial Conduct prohibits the trial court from conducting an ex parte review of the defense’s motion. Accordingly, the court made its rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: District Court Erred in Treating Defendant’s Prior Convictions as “Violent Felonies” Under ACCA


The Tenth Circuit Court of Appeals issued its opinion in United States v. Bong on Monday, January 28, 2019.

Defendant Troy Bong was convicted of being a felon in possession of a firearm and sentenced to 293 months of imprisonment. Because Mr. Bong had prior Kansas state convictions for robbery and aggravated robbery, the district court found Mr. Bong was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). Mr. Bong filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255.

The district court granted a Certificate of Appealability (“COA”) on two of Mr. Bong’s grounds for relief, and denied Mr. Bong’s § 2255 motion. On appeal, the Court of Appeals granted a COA on two additional issues.

Mr. Bong first asserted that under Johnson v. United States, his prior convictions did not qualify as violent felonies, and he was therefore improperly sentenced under the ACCA. The district court rejected this argument, and concluded that the elements of robbery under Kansas law incorporated the physical force necessary to constitute a violent offense for purposes of the ACCA.

On appeal, the Court evaluated whether the Kansas robbery statute and the Kansas aggravated robbery statute have as an element the use, attempted use, or threated use of physical force against the person of another, and would thus be violent felonies for purposes of the ACCA. Citing to federal law, the Court of Appeals outlined the meaning of the ACCA’s elements clause as referring to the active, attempted, or threatened employment of violent force—force capable of causing physical pain or injury—against the person of another.

With respect to the Kansas robbery statute, the Court of Appeals first identified the minimum force required by Kansas law to constitute the crime of robbery. The Court found the Kansas state robbery statute may be violated with minimum actual force (i.e., a defendant may be convicted of robbery under Kansas law without using violence or the actual application of force to the person of another). The Court therefore held that the Kansas robbery statute does not qualify as a violent felony under the ACCA, and thus a conviction under the statute cannot serve as a predicate offense for purposes of the ACCA’s sentence enhancement provisions.

In evaluating the Kansas aggravated robbery statute, the Court found that the simple possession of a weapon, rather than the use of a weapon, is a sufficient means of being “armed” for purposes of a conviction under the statute. The Court noted that had the Kansas aggravated robbery statute required the use of a dangerous or deadly weapon, then a conviction under the statute would constitute a predicate offense under the ACCA. However, the Court found that merely being armed with a weapon during the course of a robbery is not sufficient to render the crime a violent crime for purposes of the ACCA.

The Court therefore held that Mr. Bong’s Kansas convictions for robbery and aggravated robbery did not constitute violent felonies for purposes of the ACCA. The Court therefore reversed the district court’s denial of Mr. Bong’s § 2255 motion, and remanded for further proceedings.

Mr. Bong next asserted that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The district court denied the claim. The Court of Appeals did not address the claim, having already concluded the district court erred in basing Mr. Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery convictions.

Mr. Bong also asserted his trial counsel was ineffective for failing to investigate the facts of the alleged crime. The district court rejected this claim, finding that Mr. Bong’s § 2255 motion failed to identify any material matters that trial counsel failed to investigate.

The Court of Appeals affirmed in part, finding that the district court properly rejected Mr. Bong’s allegation with one exception. While incarcerated, Mr. Bong allegedly discovered the existence of evidence in support of his argument that the firearm evidence was obtained in violation of his Fourth Amendment rights. The district court did not expressly address the claim in denying Mr. Bong’s § 2255 motion, concluding that it was a new claim and barred by the statute of limitations. The Court of Appeals reversed and remanded for further proceedings with respect to this issue, finding that in rejecting the claim as time-barred, the district court failed to consider the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Finally, Mr. Bong contended that the district court erred in dismissing his claim that the prosecution suppressed the evidence Mr. Bong discovered while incarcerated. The district court rejected this claim as time-barred. Citing again to the district court’s failure to consider that Mr. Bong’s § 2255 motion was filed within one year of Mr. Bong’s discovery of the existence of the evidence at issue, the Court of Appeals reversed and remanded for further consideration.


Tenth Circuit: Unpublished Opinions, 3/26/2019

On Tuesday, March 26, 2019, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

United States v. Plata Hernandez

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