August 13, 2018

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.

Colorado Court of Appeals: Statutory Amendment Deprived State of Authority to Prosecute Conviction on Appeal

The Colorado Court of Appeals issued its opinion in People v. Cali on Thursday, May 3, 2018.

Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c)(2)(VI)—Postconviction Remedies.

Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.

On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.

The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Amendment of Information to Add Crime of Violence Designation would Require Proof of Additional Element and Carry Harsher Sentence

The Colorado Court of Appeals issued its opinion in People v. Palmer on Thursday, March 22, 2018.

Murder—Arson—Amendment of Information—Crime of Violence—Crim. P. 7(e)—Discovery Violation.

When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. Palmer was charged with five counts of attempted first degree murder and one count of first degree arson. After the trial began, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation. The amended information alleged that Palmer committed arson by means of a deadly weapon (a lighter and lighter fluid). Because of the amendment, Palmer faced a longer prison sentence if convicted. The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon.

On appeal, Palmer contended that the trial court abused its discretion by allowing the prosecutor to amend the information. She argued that the amendment was one of substance and thus had to be made before trial. Crim. P. 7(e) permits amendments only as to form once trial has begun and provides that the trial court may reject an amendment during trial if it charges an additional or different offense or prejudices the defendant’s substantial rights. Here, the amendment required proof of an additional element, use of a deadly weapon, and carried a harsher minimum and maximum sentence, so the trial court abused its discretion in granting the motion to amend once trial was underway.

Palmer also argued that the trial court should have granted her motion for mistrial because the prosecution failed to timely disclose two fire investigators’ reports. During testimony, the prosecution discovered and promptly disclosed two previously undisclosed reports from the fire lieutenants. The trial court found that the discovery violation was inadvertent. Instead of granting a mistrial, the trial court prohibited the prosecution from calling a second fire lieutenant and permitted Palmer to re-examine the first fire lieutenant based on the newly discovered information. The trial court did not abuse its discretion in denying Palmer’s motion for mistrial and imposing other remedies for the discovery violation.

The sentence was reversed and the case was remanded for resentencing. The judgment was affirmed in all other respects.

Summary provided courtesy of Colorado Lawyer.

Rule 41 of Colorado Rules of Criminal Procedure Amended in First Rule Change of 2018

The Colorado Supreme Court issued Rule Change 2018(01), amended and adopted by the court effective Thursday, January 11, 2018. The rule change affects Rule 41 of the Colorado Rules of Criminal Procedure, which deals with search, seizure, and confession. The amendments to the rule affect subsections (d)(5)(VI) and (VII). Subsection (d)(5)(VI) was amended to add information about the seizure of electronic media or electronically stored information:

(VI) A search warrant shall be executed within 14 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied. The judge upon request shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Subsection (d)(5)(VII) is new and also addresses electronic media or electronically stored information:

(VII) A warrant under Rule 41(b) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(d)(5)(VI) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

The rest of the rule is unchanged. For a redline and clean copy of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Rules of Criminal Procedure Amended in Rule Change 2017(08)

On Monday, September 11, 2017, the Colorado Supreme Court issued Rule Change 2017(08), amending Rules 4 and 9 of the Colorado Rules of Criminal Procedure. The rule change is effective immediately.

Rule 4 addresses warrant and summons issuance upon filing of a felony complaint. Rule 9 addresses warrant or summons issuance upon indictment or information. The changes to the two rules are similar. The amended rules generally address procedures for issuing warrants or summonses in criminal matters, changing phrasing in many instances but retaining the substance of the rules. The rules were also changed to update information to gender-neutral pronouns.

A redline and clean copy of Rule Change 2017(08) is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule 16 of Colorado Rules of Criminal Procedure Amended by Colorado Supreme Court

On Thursday, August 24, 2017, the Colorado State Judicial Branch announced Rule Change 2017(07), amending Colo. R. Crim. P. 16. The changes to Crim. P. 16 amend the prosecution’s discovery requirements, as follows:

(c) Cost and Location of Discovery.

(1) The prosecution’s costs of providing duplicating any material discoverable material electronically to the defense, electronically or otherwise, under this rule shall be funded as set forth in section 16-9-702(2), C.R.S.paid from funds allocated by the general assemblyborne by the party receiving the material, based on the actual cost of copying the same to the party furnishing the material. The prosecution Copies of any discovery provided to a defendant by court appointed counsel shall nototherwisecharge for discoverybe paid for by the defendant. For any materials provided to the prosecution as part of the defense discovery obligation, the cost shall be borne by the prosecution based on the actual cost of duplication. Copies of any discovery provided to a defendant by court appointed counsel shall be paid for by the defendant.

(2) The place of discovery and furnishing of for materials not capable of being provided electronically shall be at the office of the party furnishing it, or at a mutually agreeable location.

The rule change is effective August 24, 2017. For the complete text of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Crim. P. 32 Does Not Authorize Withdrawal of Guilty Plea After Completion of Deferred Judgment

The Colorado Supreme Court issued its opinion in People v. Corrales-Castro on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Osvaldo Corrales-Castro pleaded guilty to criminal impersonation and received a one-year deferred judgment. He successfully complied with the terms of the deferred judgment, and in May 2010, the court withdrew his guilty plea and the charge was dismissed with prejudice pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment],” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2013, Corrales-Castro filed a motion to withdraw his guilty plea pursuant to Crim. P. 32(d), which authorizes “a motion to withdraw a plea of guilty . . . before sentence is imposed or imposition of sentence is suspended.” The district court denied the motion and the court of appeals reversed, holding that Crim. P. 32(d) authorizes the withdrawal of an already withdrawn plea. The supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Corrales-Castro’s plea. Accordingly, the supreme court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Completion of Deferred Judgment Withdraws Guilty Plea as Matter of Law

The Colorado Supreme Court issued its opinion in Espino-Paez v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jose Espino-Paez pleaded guilty to the use of a schedule II controlled substance and received a deferred judgment. When he successfully completed the terms of the deferred judgment, his guilty plea was withdrawn and the charge was dismissed with prejudice. In 2012, Espino-Paez filed a motion to withdraw his plea pursuant to Crim. P. 32(d). The district court denied the motion, and the court of appeals affirmed, holding that the district court had no authority to withdraw the plea because it had already been withdrawn. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Espino-Paez’s plea. Accordingly, the supreme court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Motion to Withdraw Guilty Plea Properly Denied After Completion of Deferred Judgment

The Colorado Supreme Court issued its opinion in Zafiro-Guillen v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Edgar Zafiro-Guillen pleaded guilty to possession of one gram or less of a schedule II controlled substance in exchange for a two-year deferred judgment. In 2009, upon successful completion of the terms of the deferred judgment, the district court withdrew Zafiro-Guillen’s guilty plea and dismissed the case with prejudice. In 2013, Zafiro-Guillen filed a motion to withdraw his guilty plea pursuant to Crim. P. 32(d). The district court denied the motion, holding it lacked jurisdiction. The court of appeals affirmed. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Zafiro-Guillen’s plea. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Guilty Plea Cannot be Withdrawn Once Deferred Judgment Completed

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Eloisa Roman pleaded guilty to criminal impersonation and received a two-year deferred judgment. She successfully completed her deferred judgment, and her plea was withdrawn and the case was dismissed. In 2013, she filed a motion under Crim. P. 32(d) seeking to withdraw her plea. The trial court denied her motion, and the court of appeals reversed, holding that Rule 32(d) authorized the district court to withdraw Roman’s previously withdrawn plea. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Roman’s plea. Accordingly, the court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Successful Completion of Terms of Deferred Judgment Automatically Withdraws Guilty Plea by Operation of Law

The Colorado Supreme Court issued its opinion in Flores-Heredia v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim. P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jesus Flores-Heredia pleaded guilty to inducement and conspiracy to sell and possess with intent to sell a schedule II controlled substance, and he received a one-year deferred judgment in 1990. Although he successfully completed the deferred judgment in 1991, no court ever ordered his plea withdrawn or the action against him dismissed pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment]” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2014, Flores-Heredia filed a motion to withdraw his plea pursuant to Crim. P. 32(d). The district court concluded that because no order had been entered withdrawing Flores-Heredia’s plea and dismissing the charge under C.R.S. § 18-1.3-102(2), it would enter such an order. The court then denied the Rule 32(d) motion, concluding that it could not withdraw the plea because the plea had already been withdrawn.

The supreme court held that C.R.S. § 18-1.3-102(2) requires that a plea be deemed withdrawn and the charge dismissed once the deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law as mandated by C.R.S. § 18-1.3-102(2). Therefore, Flores-Heredia’s plea was withdrawn by operation of law when he successfully completed the deferred judgment in 1991. Further, for the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Flores-Heredia’s plea. Accordingly, the Court affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Rules of Criminal Procedure Amended by Rule Change 2017(02)

On Wednesday, March 8, 2017, the Colorado State Judicial Branch announced Rule Change 2017(02), affecting the Colorado Rules of Criminal Procedure. The rule change amends Crim. P. 49.5 by changing the website for the court’s electronic filing system. The Comment to Rule 49.5 was also changed, and a 2017 comment was added as follows:

 [4] Effective November 1, 2016, the name of the court authorized service provider changed from the “Integrated Colorado Courts E-Filing System” to “Colorado Courts E-Filing” (www.jbits.courts.state.co.us/efiling/).

Rule Change 2017(02) was adopted and effective March 2, 2017. The full text of the rule change is available here. For all the Colorado Supreme Court’s adopted and proposed rule changes, click here.