August 19, 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.

Tenth Circuit: Retroactive Sentence Reduction Inappropriate for Successive Motion on Identical Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Green on April 6, 2018.

Green appealed the district court’s decision to deny his second motion for reducing his sentence. Green’s appeal was based on his view that the district court abused its discretion in not considering all of the facts and circumstances of his case for reducing his sentence.

In 2011, Green was sentenced to 130 months’ imprisonment after pleading guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Green was initially indicted on seven counts of possession of cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. He pleaded guilty for the three communication-facility counts, and the district court imposed 130 months’ imprisonment. One of the reasons for the higher sentence was the Defendant’s extensive criminal history spanning over 30 years and including a manslaughter conviction, convictions for distribution of cocaine base, violation of protective order, and distribution of crack cocaine.

Three years later, the base offense level for many drug offenses was reduced by two levels when the U.S. Sentencing Commission promulgated Amendment 782, which was retroactive.

Citing Amendment 782, Green then filed another motion to reduce his sentence under 18 U.S.C § 3582(c)(2), arguing he was eligible for a reduction based on the amendment and the progress he had made while in prison as shown by his transcript listing the courses he had completed. The district court denied the motion, and the Tenth Circuit affirmed the district court’s denial.

Fifteen months after the first appeal, Green filed another motion to reduce his sentence under § 3582(c)(2), again citing Amendment 782 and based on the courses he completed while in prison. With the exception of additional courses, the second appeal was the same as the first appeal. The district court denied this second motion, explaining that Amendment 782 did not mandate relief and that completion of courses did not make a reduction appropriate. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case, including his clean disciplinary record while incarcerated.

When assessing whether the district court had jurisdiction to consider Defendant’s second motion to modify his sentence under Amendment 782, the Tenth Circuit determined whether 18 U.S.C. § 3582(c)(2) contained a jurisdictional bar to second motions based on the same guidelines amendment, and stated it was a question “of considerable practical importance for judges and litigants.” It noted that courts have an ongoing obligation to determine whether adjudicating a particular case is within their subject-matter jurisdiction, even if neither party argues the court lacks jurisdiction.

In consideration of the Supreme Court’s caution against reckless use of the term “jurisdictional,” the Tenth Circuit Court of Appeals relied on 18 U.S.C. § 3582 for guidance. The government contended § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the government argued that the district court lacked jurisdiction to consider his second motion to modify his sentence under this same amendment.

Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, the Court held § 3582(c)(2) did not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment. The government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar, therefore, this issue was do not addressed.

The Tenth Circuit used a two-step inquiry to determine whether the defendant was eligible for a sentence reduction, and whether a sentence reduction was warranted in accordance with the 18 U.S.C. § 3553(a) factors. The parties did not dispute that Defendant was eligible for a reduced sentence under § 3582(c)(2). Defendant only argued the district court erred in the second step of the § 3582(c)(2) inquiry by holding that a reduced sentence was not warranted upon consideration of the § 3553(a) factors, more specifically that the district court did not consider the courses he completed while he was in prison.

The Tenth Circuit found the district court’s considerations of these factors as “unquestionably appropriate.” The district court then determined that Defendant’s coursework while in prison and certificates of completed coursework did not overcome these considerations. The Tenth Circuit concluded that this determination was well within the district court’s discretion.

Additionally, Defendant argued in his initial pro se brief that the district court did not consider his clean disciplinary record while in prison. The disciplinary record was not presented to the district court, so the Tenth Circuit did not consider Defendant’s clean disciplinary record.

Defendant argued that the Circuit should have remanded to the district court so that the district court may consider the Defendant’s disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.

The Tenth Circuit affirmed the district court’s order.

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

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.

Colorado Court of Appeals: Trial Court Erred in Refusing to Grant Continuance

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

Criminal Law—Witness—Subpoena—Motion for Continuance—Bench Warrant.

The prosecution charged defendant with aggravated robbery and menacing against a single victim, M.T. When M.T., who was a necessary witness and was under subpoena, did not appear at trial, the prosecution requested that the trial court issue a bench warrant and grant a brief continuance to secure the M.T.’s attendance. The trial court denied both requests and, at defendant’s request, dismissed the charges.

On appeal, the People argued that the trial court erred by denying its motion for a continuance and dismissing the case. The trial court abused its discretion in denying the continuance because it (1) misapplied the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness, and (2) failed to consider the factors relevant to the prosecutor’s motion to continue. Those factors included whether the prosecutor was diligent in securing the witness’s attendance, whether a continuance would be effective in securing the witness’s attendance, and the prejudice that a continuance would cause both parties.

The People also contended that the trial court erred in dismissing the charges after denying the continuance. Because the trial court erred in denying the motion for continuance, and the dismissal of the charges was a direct result of that erroneous decision, the trial court erred in dismissing the case.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: 32-Year Habitual Offender Sentence Does Not Raise Inference of Gross Disproportionalilty

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

Criminal Law—Possession—Intent to Distribute—Controlled Substance—Manslaughter—Habitual Criminal Statute—Sentencing—Drug Felonies—Gross Disproportionality.

Defendant sold methamphetamine to three individuals. As part of the deal, she agreed to accept a handgun for the drugs. After the parties had been drinking and smoking methamphetamine, defendant handled the gun and it went off. The bullet struck the victim in the head, killing him. Defendant pleaded guilty to possession with intent to distribute a controlled substance, manslaughter, and four habitual criminal counts. The four habitual criminal counts were based on prior state felony convictions. Applying the habitual criminal sentence multiplier, the district court sentenced defendant to concurrent sentences of 32 years for possession with intent to distribute and 24 years for manslaughter.

On appeal, defendant contended that her 32-year sentence raises an inference of gross disproportionality and therefore requires a remand for an extended proportionality review. Here, defendant’s triggering offense of possession with intent to distribute a controlled substance was per se grave or serious. Defendant’s underlying conviction for conspiracy to distribute a controlled substance is also a per se grave or serious offense. The gravity of defendant’s offenses as a whole compared to the severity of her 32-year habitual criminal sentence does not merit a remand for an extended proportionality review. Defendant’s 32-year sentence does not raise an inference of gross disproportionality.

Defendant also contended that the district court lacked authority under the habitual criminal statute to sentence her to a 32-year sentence for a level 2 drug felony. The sentence multiplier of the habitual criminal statute applies to convictions “for any felony.” The district court had authority to sentence defendant to a term of 32 years under the habitual criminal statute.

The sentence was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court’s Late Imposition of Drug Offender Surcharge Did Not Violate Double Jeopardy

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

Criminal Law—Driving Under Restraint—Failure to Report an Accident or Return to the Scene—Possession—Methamphetamine—Evidence—Prosecutorial Misconduct—Drug Offender Surcharge—Illegal Sentence—Double Jeopardy.

Police officers responded to a rollover crash where the driver had abandoned the vehicle. The car had been reported stolen two weeks earlier. After an expert matched Yeadon’s DNA to the deployed driver’s airbag in the crashed vehicle, a jury found Yeadon guilty of driving under restraint, failure to report an accident or return to the scene, and possession of less than two grams of a controlled substance (methamphetamine), which was found in the crashed vehicle. The district court sentenced Yeadon to 16 months in the custody of the Department of Corrections and, 11 days later, imposed a $1,250 drug offender surcharge.

On appeal, Yeadon contended that the prosecution presented insufficient evidence to support his conviction for possession. Here, the CBI expert testified that Yeadon was the major source of the DNA found on the driver’s side airbag and that such evidence suggested that he was sitting in the driver’s seat when the airbag deployed. Therefore, the prosecution presented sufficient evidence that Yeadon was the driver of the car at the time of the crash. Further, the evidence showed that Yeadon was in close proximity to the bag of methamphetamine and the scale found on the front seat, and that he fled from the accident. There was sufficient evidence to support Yeadon’s conviction for possession of less than two grams of a controlled substance.

Yeadon also argued that certain statements made by the prosecutor during closing argument constituted misconduct. However, the prosecution’s comments were reasonably supported by the evidence and did not improperly affect the verdict.

Yeadon further argued that the district court’s late imposition of the drug offender surcharge violated his right against double jeopardy. Because C.R.S. § 18-19-103(1) mandates that the drug offender surcharge be imposed in all cases in which a defendant is convicted of a drug offense, failure to impose the surcharge renders a sentence illegal. Yeadon’s sentence did not include the surcharge and was not accompanied by a district court finding of his financial inability to pay, so the sentence was contrary to the statute and illegal, and the district court was required to correct defendant’s sentence by including the surcharge. The late imposition of the surcharge was a permissible correction to an illegal sentence and thus did not violate Yeadon’s double jeopardy rights.

The judgment and sentence were affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

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.