August 17, 2018

Colorado Court of Appeals: Supervising Attorney Must Be Present in Courtroom at All Critical Stages of Case

The Colorado Court of Appeals issued its opinion in People v. McGlaughlin on Thursday, August 8, 2018.

Civil ProcedureStudent AttorneySixth AmendmentRight to Counsel. 

McGlaughlin pleaded guilty to third degree assault and violation of a protection order. He was represented by a law student extern practicing under C.R.C.P. 205.7. Thereafter, McGlaughlin moved to vacate his plea and the resulting convictions, claiming that he was deprived of his Sixth Amendment right to effective assistance of counsel when he was represented only by a law student, not a licensed lawyer, at his plea hearing. The postconviction court denied McGlaughlin’s Crim. P. 35(c) motion without a hearing, concluding that the record disproved McLaughlin’s claim.

On appeal, McGlaughlin argued that his plea was constitutionally invalid under the Sixth Amendment because he was not represented by a licensed lawyer at a critical stage of his criminal case. When a criminal defendant is represented by a student attorney under C.R.C.P. 205.7, a supervising attorney must be physically present in the courtroom during all critical stages of the criminal case. If the supervising attorney is not present during a critical stage, the defendant is denied his Sixth Amendment right to counsel. The record here did not clearly establish that the supervising attorney was present during defendant’s plea hearing.

The order was reversed and the case was remanded to the postconviction court for an evidentiary hearing and further findings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentence Lawful Beyond Life with Possibility of Parole After 40 Years for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, August 8, 2018.

Criminal LawJuvenileMotion to SuppressWaiverRight to TestifySentencingEighth Amendment.

When Davis was 17 years old, he and McGrath robbed the victim, McGrath’s former coworker. The victim was transporting money to a bank from the restaurant at which he and McGrath had worked. In the course of the robbery, the victim was shot and killed. Davis was convicted of first degree murder after deliberation, felony murder, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first degree murder, and conspiracy to commit aggravated robbery. As required by statute, the trial court sentenced him to life in the custody of the Department of Corrections with the possibility of parole after 40 years (LWPP-40) on the murder after deliberation count. Additionally, the trial court imposed a consecutive sentence of eight years and one day on the aggravated robbery count. The sentences imposed for the remaining counts were ordered to run concurrently with the sentences to life plus eight years and a day. The felony murder conviction was merged with the conviction for murder after deliberation. Davis filed two Crim. P. 35(c) motions, which the district court denied in a series of orders.

On appeal, Davis contended that the trial court violated his constitutional rights when it denied his motion to suppress statements he made during police interrogation, arguing that the Denver detective violated his right to counsel by continuing an interrogation after he asked for an attorney. Davis’ statements were admissible because although Davis had previously asked for an attorney, he had voluntarily reinitiated the interrogation by asking the Denver detective whether McGrath had been arrested. Even assuming that the trial court erred in denying the motion, any error was harmless beyond a reasonable doubt in light of the relative insignificance of the statements to the People’s case and the substantial evidence of guilt.

Davis also argued that reversal is required because he never executed an on-the-record waiver of his right to testify. Where the trial court’s on-the-record advisement includes the five essential elements set forth in People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), as occurred here, the record conclusively demonstrates that defendant made a valid waiver of the right to testify. Further, Davis did not present any evidence to show that despite the Curtis advisement, his waiver was nonetheless invalid. Thus, the district court did not err in concluding that Davis knowingly, voluntarily, and intelligently waived his right to testify.

Davis next contended that his sentence of LWPP-40 together with a sentence of eight years plus one day is unconstitutional. LWPP-40 is a constitutional sentence, and the trial court did not abuse its discretion in sentencing Davis to eight years and one day to run consecutively to his LWPP-40 sentence. Further, Colorado’s parole system provides juveniles sentenced to LWPP-40 a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Evidence Sufficient to Show Defendant Had No Possessory Interest in Apartment

The Colorado Court of Appeals issued its opinion in People v. Joosten on Thursday, August 8, 2018.

Criminal Law—Jury Instructions—Theory of the Case—Evidence—Burglary.

After Joosten and his girlfriend broke up, Joosten moved out of their shared apartment, but continued to frequently spend the night there and keep some of his belongings there.  Joosten subsequently returned to the apartment and kicked down the door, which hit the girlfriend’s new roommate in the face. After the girlfriend escaped, Joosten went back into his girlfriend’s room, where he cut up her driver’s license and bank card and cut the cords of her hair dryer and curling iron. The trial court denied Joosten’s tendered theory of the case instruction regarding the burglary charge. A jury convicted Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief.

On appeal, Joosten first contended that the evidence was insufficient to convict him of second degree burglary because the prosecution failed to prove that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful. Here, there was sufficient evidence to support Joosten’s burglary conviction, including the fact that he always knocked before entering, did not have a key to the apartment, and kicked down the door on the occasion in question.

Joosten also argued that the court erred in rejecting his theory of the case instruction. A criminal defendant is entitled to a theory of the case instruction. None of the exceptions to that rule were applicable in this case. The trial court erred when it refused Joosten’s tendered instruction and failed to work with Joosten’s counsel to craft a permissible instruction. But the error was harmless given the evidence regarding the manner of Joosten’s entry into the apartment.

Lastly, Joosten contended and the Attorney General conceded that the mittimus incorrectly reflects that the jury convicted him of two counts of class 2 misdemeanor criminal mischief. The court of appeals agreed that the mittimus is incorrect.

The judgment of conviction was affirmed. The case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Properly Reviewed Count Regardless of Whether Defendants Would Have Been Entitled to Probable Cause Review

The Colorado Court of Appeals issued its opinion in People v. Soto-Campos on Thursday, August 8, 2018.

Criminal Law—Grand Jury Indictment—Probable Cause Review—C.R.S. § 16-5-204(4)(k)—Sentence Enhancer.

The prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales, for their alleged involvement in a heroin distribution enterprise. Defendants’ attorneys filed motions requesting that the district court conduct a probable cause review under C.R.S. § 16-5-204(4)(k) for count sixty-one, Special Offender—Within 1000 Feet of a School. After review, the court dismissed that count. The prosecution then asked the court to reconsider, arguing that defendants were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense. The district court denied the motions.

On appeal, the People contended that the district court erred in conducting the probable cause review because, considering legal principles governing preliminary hearings, the sixty-first count is a “stand-alone” sentence enhancer, and thus not subject to review under C.R.S. § 16-5-204(4)(k). C.R.S. § 16-5-204(4)(k) is not limited to substantive offenses, but instead broadly requires a district court to dismiss “any indictment” based on a probable cause finding that lacks record support. Therefore, the district court properly reviewed the sixty-first count under C.R.S. § 16-5-204(4)(k) and did not abuse its discretion in dismissing this count for lack of record support.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 8/16/2018

On Thursday, August 16, 2018, the Colorado Court of Appeals issued no published opinion and 22 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Where Parent Indicates Desire to Relocate with Minor Children, Magistrate Has No Authority to Order Shared Parenting Time in Colorado

The Colorado Court of Appeals issued its opinion in In re Marriage of Morgan on Thursday, August 8, 2018.

Dissolution of Marriage—Relocation—Parenting Time.

In this dissolution of marriage proceeding, mother notified the magistrate well before the permanent orders hearing that she wished to move with the children to California. She sought orders that would name her the children’s primary residential parent and decision-maker. Dr. Albert was appointed as an expert to conduct a parental responsibilities evaluation (PRE). He recommended that the children be allowed to relocate to California with mother and that she should have sole decision-making responsibility. At father’s request, the magistrate appointed Lieberman to perform a supplemental PRE. Lieberman recommended that the children remain in Colorado with father with shared decision-making responsibilities with mother. After a two-day evidentiary hearing, the magistrate ordered the children to remain in Colorado, finding that their best interests would be served if the parents exercised equal parenting time with mutual decision-making responsibilities.

On appeal, mother contended that the magistrate erred by entering a parenting time order requiring her to remain in Colorado. When, as here, a parent indicates before permanent orders that she intends to move, a district court has no statutory authority to order her to live in a specific location. Mother’s admission that she would not “abandon” her children and move without them did not relieve the magistrate of his obligation to make the difficult decision to allocate parenting time with mother in California and father in Colorado.

Mother also contended that the magistrate erred in ordering mutual decision-making responsibilities over her objection and in the absence of credible evidence that the parents could work together. However, the magistrate reviewed the evidence and did not abuse his discretion in finding that the parties could make joint decisions and in ordering joint decision making.

The part of the judgment allocating parenting time was reversed and the case was remanded with directions. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Appeal of Parenting Time Order Mooted When Subject Child Turns 18

The Colorado Court of Appeals issued its opinion in In re Marriage of Tibbetts on Thursday, August 8, 2018.

Dissolution of Marriage—Post-Decree—Parenting Time—18 Years of Age.

In this post-dissolution of marriage action father moved to have the parenting plan terminated to allow the parties’ 16–year-old child to determine her own parenting time schedule.  A district court magistrate denied father’s request, and while the appeal was pending, the child turned 18 years of age. On father’s petition for review to the district court, the court adopted the order.

Father filed his opening brief the day before the child turned 18. Mother moved to dismiss the appeal, contending that because the child is now an adult, the parenting time issues father raises on appeal cannot be resolved. Once the parties’ child turned 18, she attained the right to make her own decisions, including whether to visit her parents, rendering the issues father raises on appeal moot.

The appeal was dismissed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 8/9/2018

On Thursday, August 9, 2018, the Colorado Court of Appeals issued 10 published opinions and 12 unpublished opinions.

People v. Monroe

People v. Halaseh

People v. Jones

People v. Davis

People v. McGlaughlin

People v. Joosten

In re Marriage of Morgan

In re Marriage of Tibbetts

People v. Soto-Campos & Flores-Rosales

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: District Court May Not Consider Documents Outside Bare Allegations of Complaint when Ruling on C.R.C.P. 12(b)(5) Motion

The Colorado Court of Appeals issued its opinion in Prospect Development Co., Inc. v. Holland & Knight, LLP on Thursday, July 26, 2018.

C.R.C.P. 12(b)(5)—Matters Outside the Bare Allegations of the Complaint—C.R.C.P. 12(b)(5)—Statute of Limitations—Affirmative Defense.

Prospect Development Company, Inc. (Prospect) owned and sold undeveloped lots near Crested Butte. It relied on Holland & Knight, LLP (H&K) to prepare federally mandated property reports for prospective buyers. These reports stated that Prospect was responsible for the costs of constructing roads, sewage systems, and other infrastructure. They also stated that individual lot purchasers would not be responsible for these costs. The reports neglected to disclose that the special district in which the lots were located would purchase the infrastructure from Prospect using property tax revenue from the lots, effectively passing the cost of the infrastructure on to the lot owners.

In 2010, several lot owners complained they were not notified before they purchased that they would ultimately pay for the cost of infrastructure through property taxes. H&K assured Prospect that the reports complied with applicable law. Nevertheless, Prospect entered into a tolling agreement with the lot owners in 2010, agreeing to stay the running of any limitations period applicable to claims the lots owners might have against Prospect. In 2011, H&K withdrew from representing Prospect. In 2013, the lot owners sued Prospect based on its failure to make the required disclosures, and Prospect settled with them in 2015. Also in 2015, Prospect entered into a tolling agreement with H&K to toll claims that Prospect might have against H&K. Prospect sued H&K in 2016, alleging professional negligence. H&K did not answer the complaint but moved to dismiss under C.R.C.P. 12(b)(5), arguing that the statute of limitations barred the claims. H&K attached several exhibits from the underlying litigation between the lot owners and Prospect to support its assertion that the claims had accrued in 2011. Prospect opposed the motion and argued the trial court should disregard the exhibits, or, alternatively, if it did consider the exhibits, it should convert the motion to one for summary judgment and allow Prospect to present its own evidence. The district court granted the motion to dismiss, ruling the claims were time barred.

On appeal, Prospect argued that the district court erred by considering matters outside of the complaint in granting the C.R.C.P. 12(b)(5) motion. A defense based on a statute of limitations is an affirmative defense. H&K’s motion was based on a statutes of limitations defense. Thus, in ruling on H&K’s motion, the district court was not allowed to consider matters outside the bare allegations of the complaint. Here, the district court erred in considering two documents from the underlying litigation that were not part of the bare allegations of the complaint. If the district court wished to consider these documents, it was required to convert H&K’s motion to one for summary judgment. This error was not harmless because when viewed in the light most favorable to Prospect, the complaint’s allegations, and those in two documents that the complaint referred to, established that Prospect’s claims were timely.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Board Correctly Ruled that Contiguous Vacant Parcel Not “Used As a Unit” Within Residential Parcel

The Colorado Court of Appeals issued its opinion in Twilight Ridge, LLC v. Board of County Commissioners on Thursday, July 27, 2018.

Property Tax—C.R.S. § 39-1-102(14.4)(a)Used as a UnitVacant Land.

The Robinsons are the sole members of Twilight Ridge, LLC (Twilight), a Colorado limited liability company. In 2013 Twilight purchased two contiguous platted parcels of land in La Plata County. The first parcel has a home on it (the Residential Parcel). The second parcel is a 0.763 acre buildable but undeveloped lot (the Subject Parcel).

The La Plata County Assessor classified the Subject Parcel as vacant land. Twilight appealed the decision for the 2014 to 2015 tax years to the Board of County Commissioners of La Plata County and it appealed the decision for the 2016 tax year to the Board of Equalization for La Plata County, arguing to both bodies (collectively, the County) that the Subject Parcel should be reclassified as residential land. The County upheld the County Assessor’s classification.

Twilight appealed to the Board of Assessment Appeals (BAA). At a consolidated hearing, Mr. Robinson testified that he and his wife bought the two parcels together so that the Subject Parcel would give them privacy, serve as a buffer to prevent any potential house built on the subject property from impeding their views, and provide a place for their grandchildren to play when they visited. Further, although he was currently offering only the Residential Parcel for sale, Robinson intended to sell both parcels together.

Twilight also offered testimony by the Colorado Division of Property Taxation’s deputy director, who was designated by the Property Tax Administrator (PTA) to testify regarding the Division’s policies as embodied in the PTA’s Assessors’ Reference Library (ARL). The County provided the testimony of its appraisers, who had visited the parcels and seen no activity or evidence of use on the Subject Parcel when she visited. The La Plata County Assessor also testified that using the Subject Parcel as a place for children to play and protect a view were “incidental” uses and not the “integral” use of the Subject Parcel in conjunction with the residential improvements that would warrant classifying it as residential. The BAA upheld the County’s classification.

On appeal, Twilight argued that the BAA misconstrued the “used as a unit” element of C.R.S. § 39-1-102(14.4)(a) and made clearly erroneous findings of fact. The BAA’s conclusion that Twilight did not satisfy its burden of proving that the Subject Parcel was used as a unit with the residential parcel is consistent with the ARL and the testimony at the hearing that “used as a unit” contemplates integral, not merely incidental, use.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Refusal to Leave Ex-Girlfriend’s Residence Could Leave him Subject to Prosecution for Trespass and Burglary

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

Criminal Law—Trespass—Burglary—Assault—Landlord–Tenant Agreement—Evidence—Doctrine of Completeness—Credibility.

Defendant’s ex-girlfriend (the victim) asked him to come to her house to help with an errand. The couple had dated “on and off” for about two years, and defendant had stayed frequently at the house, but the two had broken up about two-and-a-half weeks earlier. Defendant entered the victim’s house, and the two got into an argument. The victim told defendant to leave. Defendant threatened the victim, ripped off her clothes, and tried to sexually assault her. At that moment, a friend of the victim showed up. Defendant chased him into the street. The victim locked the door behind defendant and called 911. Defendant yelled at the victim to let him back in the house, but she refused. He then broke a window on the front door trying to get back inside. Defendant was found guilty of first degree burglary, trespass, third degree assault, false imprisonment, attempted sexual assault, attempted second degree burglary, and criminal mischief.

On appeal, defendant contended that the court provided an inaccurate jury instruction defining “enters unlawfully” and “remains unlawfully,” and that it abused its discretion by refusing his tendered instruction explaining those concepts. The basis for defense counsel’s objection to the prosecutor’s added instruction and for his requested instruction was his argument that defendant wasn’t on the premises unlawfully because he lived there. However, defendant failed to present any evidence of a landlord–tenant agreement between him and the victim, and he didn’t pay rent. Therefore, defendant was not a tenant and didn’t have a possessory interest in the premises other than that the victim allowed. The district court did not need to provide the type of instruction that defense counsel tendered.

Defendant further contended that the district court erred by denying his motions for a judgment of acquittal based on insufficiency of the evidence. The record contains sufficient evidence to support the jury’s finding that defendant knowingly entered or remained in the victim’s house unlawfully with the intent to assault and sexually assault the victim, and that he attempted to sexually assault the victim.

Defendant also contended that the district court erred by ruling that if he introduced certain of his recorded statements pursuant to the doctrine of completeness, his credibility would be implicated, and the prosecution could use his Montana deferred judgment to impeach his credibility. He argued that as a result of these rulings, the district court infringed on his right to a fair trial and to confront witnesses, because he was dissuaded from introducing his statements and cross-examining the prosecution’s investigator. Defendant’s statements were self-serving and were inadmissible under the doctrine of completeness. Further, defendant waived his contention that his testimony couldn’t be impeached by the Montana judgment. Alternatively, had defendant not waived this issue, the Montana judgment constituted an admissible felony conviction, and any error wasn’t plain.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Erred in Ruling Defendant Knew of Bond Condition Prohibiting Travel

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

Criminal Law—Bond Conditions—Failure to Appear—Mens Rea.

Defendant was arrested and charged with a felony. During his court appearance, the judge set bond and announced his court date. Defendant subsequently posted bond and was released from jail. The bond paperwork provided that, as a condition of his release, defendant was prohibited from leaving Colorado without court approval. Defendant failed to appear in court, and he was arrested in Mississippi five weeks later. A jury convicted defendant of knowingly violating a condition of bond by leaving Colorado and knowingly failing to appear for trial or other proceedings.

On appeal, defendant contended that the prosecution failed to establish beyond a reasonable doubt that he knew of his court date and knowingly failed to appear. However, defendant was present when the court announced the court date, and there was sufficient evidence to permit the jury to reasonably infer that defendant was aware of the court date and that he knowingly failed to appear.

Defendant also contended that the prosecution failed to establish beyond a reasonable doubt that he knew of the bond condition that prohibited him from leaving Colorado. Here, there was no evidence that the bond condition was announced or discussed in open court; it was set forth only in the bond paperwork. The prosecution failed to present any evidence showing that defendant had personally signed the bond paperwork or that he was otherwise aware of the bond condition that prohibited out-of-state travel. Therefore, the evidence was insufficient to establish defendant’s knowledge of the specific bond condition therein beyond a reasonable doubt.

The judgment and sentence were affirmed in part and vacated in part.

Summary provided courtesy of Colorado Lawyer.