March 23, 2019

Colorado Supreme Court: Eyewitness’ In-Court Identification Allowed Despite Previous Failure to Identify Defendant in Photo Array

The Colorado Supreme Court issued its opinion in Garner v. People on Monday, March 18, 2019.

Eyewitnesses—Identification Evidence and Procedures—In-Court Identification.

The supreme court reviewed whether due process or the Colorado Rules of Evidence required the exclusion of victim-witnesses’ in-court identifications of defendant, where each witness had failed to identify defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations. The court held that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to prescreen the identification for reliability. Here, because defendant alleged no impropriety regarding the pretrial photographic arrays, and the record revealed nothing unusually suggestive about the circumstances of the witnesses’ in-court identifications, the in-court identifications did not violate due process. The court further held that defendant’s evidentiary arguments were unpreserved, and the trial court’s admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Postconviction Claim Is Illegal Manner Claim Under Crim. P. 35(a) and Therefore Time-Barred

The Colorado Court of Appeals issued its opinion in People v. Knoeppchen on Thursday, March 7, 2019.

Criminal Procedure—Restitution—Sentence Imposed in Illegal Manner—Timeliness—Due Process.

Defendant pleaded no contest to third degree assault and was sentenced to probation. As part of the plea agreement, he agreed to pay restitution. At the time of the agreement, the prosecution did not have complete information regarding restitution, so the district court reserved the restitution determination for 90 days. The prosecution moved for an order imposing restitution 100 days later. Defendant filed no response, and the district court granted the motion, stating that the amount was not final because the amount of restitution owed to the victim compensation fund had yet to be determined. The prosecution later moved to amend the restitution amount, reducing the total amount due. Defendant again filed no response, and the district court granted this motion as well. More than three years later, defendant filed a motion to vacate the restitution order, which was denied.

On appeal, defendant claimed that the district court did not address good cause in a timely fashion, thus ignoring essential procedural rights or statutory considerations. Defendant’s claim was a challenge to the manner in which the sentence was imposed rather than a claim that his sentence was not authorized by law. A claim that a sentence was imposed in an illegal manner must be raised within 126 days of the imposition of the sentence. Because defendant filed his motion to vacate the restitution order well beyond the 126-day limit, his motion was time barred.

Defendant also asserted that the district court violated his due process right by making a post hoc finding of good cause in permitting the tardy restitution request and relying on information presented by the prosecution long after the restitution order was entered. This is a challenge to the constitutionality of the restitution component of the sentence. As such, this claim is cognizable under Crim. P. 35(c). However, a Rule 35(c) challenge to a misdemeanor conviction or sentence must be brought within 18 months of the conviction. Because defendant’s motion was filed after this deadline, his due process challenge is also time barred.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury Instruction Defining “Hesitate to Act” Did Not Lower Prosecution’s Burden of Proof

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, March 11, 2019.

Jury Instructions—Reasonable Doubt—Burden of Proof—Due Process.

In this case, the supreme court considered whether the trial court’s jury instruction defining “hesitate to act” lowered the prosecution’s burden of proof in violation of due process. The court held that the instruction did not lower the prosecution’s burden of proof in violation of due process. Because the instruction was nonsensical, given only once during voir dire, not referenced by either party at any time, and flanked by the proper instruction regarding the burden of proof at the beginning and end of trial, there is not a reasonable likelihood that the jury understood the instruction and applied it in a manner that lowered the prosecution’s burden.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Supreme Court’s Complicity Reasoning in Rosemund Does Not Apply to Colorado’s Complicity Statute

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, November 15, 2018.

Criminal Law—Complicity—Jury Instructions—Demonstrative Evidence—Partial Reconstruction—Prosecutorial Misconduct.

Brown agreed to sell her friend Goggin five pounds of marijuana, which he intended to sell to Sandoval. Brown delivered the marijuana to Goggin and his girlfriend. Sandoval arrived, accompanied by his cousin Palacios. Sandoval, Palacios, and Goggin each had guns, and after a struggle Goggin was fatally shot. Palacios grabbed the marijuana and ran to the vehicle outside where Sandoval was waiting. Sandoval was found guilty of one count of murder in the first degree, one count of aggravated robbery, two counts of accessory to crime, and one count of felony menacing.

On appeal, Sandoval contended that the trial court violated his constitutional right to due process when it declined to instruct the jury in accordance with Rosemond v. United States, 572 U.S. 65 (2014), that an alleged felony murder complicitor must know in advance of the occurrence of the predicate felony that another participant intends to commit. Sandoval alleged that, because he was unaware of his cousin’s intent to rob and kill Goggin before the crimes occurred, he was not guilty of robbery and felony murder. However, Rosemond relied on language in the federal aiding and abetting statute that is not present in Colorado’s complicity statute; thus Rosemond does not apply to Colorado’s complicity statute, and Sandoval’s due process rights were not violated.

Sandoval also asserted that the trial court violated his constitutional rights to a fair trial and impartial jury when it allowed the prosecutor to use a partial reconstruction of the crime scene as a demonstrative aid to assist witnesses in explaining their testimony. Here, (1) the partial reconstruction was authenticated by the prosecution’s criminalist; (2) the demonstrative aid was relevant because it assisted the jury in understanding Brown’s testimony; and (3) though the prosecution conceded that there were discrepancies in the partial reconstruction, those discrepancies were disclosed to the jury and Sandoval had an opportunity to cross-examine the prosecution’s criminalist about them. Thus, the trial court did not abuse its discretion in determining that the reconstruction was a fair and accurate representation of the crime scene. Further, the trial court did not abuse its discretion in finding that the probative value of the partial reconstruction was not substantially outweighed by its danger of unfair prejudice. Sandoval’s rights were not violated.

Sandoval further alleged that the prosecutor committed misconduct by misstating the law of complicity as well as key evidence to undermine the defense. The prosecutor’s statements were fairly based on the evidence presented and the inferences drawn were not inappropriate. There was not improper conduct that would warrant reversal.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Due Process Violated When Jury Could Not See Defendant During Children’s Testimony

The Colorado Court of Appeals issued its opinion in People v. Aldridge on Thursday, September 20, 2018.

Criminal Law—Right to Confrontation—Right to be Present During Trial—Child Testimony—Closed Circuit Television.

C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather. At the time, C.O. was 4 years old and L.A. was 9 years old. Both girls alleged that they had touched Aldridge’s penis during the camping trip and that it got stiff. A jury found Aldridge guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust—victim under 15, four counts of sexual assault on a child, and two counts of aggravated incest. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections.

On appeal, Aldridge contended that the trial court erred by excluding him from the courtroom while C.O. and L.A. testified. Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television under C.R.S. § 16-10-402. Over Aldridge’s objection, the trial court granted the motion. Neither the trial court nor the parties indicated that Aldridge, rather than the children, would be removed from the courtroom. At trial, rather than having the witnesses testify from another room, the trial court permitted the children to testify in the courtroom while the judge and defendant watched from the judge’s chambers. The jury could not see or hear defendant during the children’s testimony. Aldridge’s exclusion from the courtroom during the children’s testimony, in the absence of a stipulation, violated C.R.S. § 16-10-402, and this procedure violated defendant’s due process right to be present because he was denied an opportunity to exert a psychological influence on the jury. This error was not harmless beyond a reasonable doubt.

The judgment and sentence were reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Amendment to C.R.S. § 30-10- 506 Largely Preserves At-Will Employment Doctrine for Deputy Sheriffs

The Colorado Court of Appeals issued its opinion in Arapahoe County Sheriff’s Office v. Cummings on Thursday, September 6, 2018.

Employment Termination—Wrongful Discharge—Implied Contract of Employment—Summary JudgmentInterlocutory AppealSheriff’s Policies—CRS § 30-10-506.

Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings’ employment, asserting that he violated the Sheriff’s employee manual (the Manual) and was dishonest during the investigation of the original charges against him. Cummings exhausted his remedies within the Sheriff’s department and sued for (1) wrongful discharge in violation of public policy, and (2) breach of an implied contract of employment, based on the policies in the Manual. The Sheriff moved to dismiss the wrongful termination claim based on governmental immunity, and the district court dismissed the claim with prejudice. The district court denied the Sheriff’s motion to dismiss the implied contract claim, and the Sheriff moved for summary judgment. The district court denied the motion for summary judgment, holding that there was an implied contract of employment and disputed issues of material fact existed. The Sheriff brought an interlocutory appeal under C.A.R. 42 challenging the denial of summary judgment.

On appeal, the Sheriff contended that the trial court erred in denying his motion for summary judgment. He argued that the at-will employment concept in C.R.S. § 30-10-506 requires the court to hold that all policies promulgated by a sheriff relating to termination of deputy sheriffs’ employment are only precatory, and to conclude otherwise would mean that the sheriff lacks the power to terminate at-will employees. C.R.S. § 30-10-506 requires a sheriff to promulgate written employment policies, and the sheriff must give deputies the rights of notice and opportunity to be heard. A sheriff’s other employment policies may be, but are not required to be, binding. If the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable according to their terms.

The Sheriff next argued that even if C.R.S. § 30-10-506 allows sheriffs to promulgate binding personnel policies, the disclaimers in the Manual and the yearly disclaimers that Cummings signed preclude, as a matter of law, the formation of an implied contract of employment. Except with respect to the rights expressly granted to deputy sheriffs by statute, these clear and conspicuous disclaimers preclude, as a matter of law, Cummings’ implied contract claims. But here, material facts are disputed on whether Cummings received the required notice of the charges that led to his dismissal.

The part of the summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by C.R.S. § 30-10-506 was affirmed. In all other respects, the summary judgment order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Including Landowners in Special District Violated Owners’ Rights to Due Process

The Colorado Court of Appeals issued its opinion in Landmark Towers Association, Inc. v. UMB Bank, N.A. on Thursday, May 31, 2018.

Special District—Taxation—Taxpayer’s Bill of Rights—Due Process—Injunction—Uniform Tax Clause of the Colorado Constitution—Mill Levy—Misappropriation of Bond Sales.

A developer created the Marin Metropolitan District, a special district, to comprise two separate projects, the Landmark Project and the European Village Project. The developer created the District as a means to use owners of condominiums in the Landmark Project to pay for improvements in the European Village Project. As part of his application to Greenwood Village for approval of the District, the developer submitted a Service Plan. Using dubious means and without notice to the Landmark Project buyers, the developer and his associates then voted in an election to organize the District and approve bonds and “taxes” to pay for the bonds. The District sold bonds to Colorado Bondshares. UMB Bank, N.A. held the bond sales proceeds in trust. Among other things, the Service Plan capped the debt service levy for the bonds at 49.5 mills, but the District imposed a levy of 59.5 mills. The developer drew on the funds, but the European Village Project infrastructure was never built.

Landmark Towers Association, Inc., a homeowners association, sued UMB, Bondshares, and the District (collectively, defendants), challenging the creation of the District. Landmark asserted that the special district can’t levy Landmark owners’ properties to pay for bonds issued by the special district, which funded improvements on other property, because the election organizing the special district, approving the bonds, and approving the levies paying for the bonds violated the Taxpayer’s Bill of Rights (TABOR) and the Landmark owners’ rights to due process. The district court ruled that the election was illegal; Landmark is entitled to injunctive relief preventing the District’s levy; the District’s mill levy rate exceeds the legal limit; Landmark owners are entitled to a refund of excessive assessments; and Landmark owners are entitled to a “refund” of misappropriated bond sale proceeds. It enjoined the District from trying to collect levies from the Landmark owners and ordered that the owners may recover bond proceeds misappropriated by the District’s creator under TABOR.

On appeal, defendants asserted that the district court erred in finding that including the Landmark Project in the District violated the Landmark owners’ rights to due process. Specifically, defendants argued that the levy was a tax, and property subject to a tax does not need to receive any benefit in return for the tax payments. Colorado law is clear that imposing a special assessment on property that doesn’t specially benefit from the funded improvements violates the due process rights of those property owners. Here, the Landmark project was included in the District only to use it as a payment source for improvements to other property, and Landmark receives no benefit from those improvements. Further, the “tax” is in substance a special assessment because it doesn’t defray the general expenses of government but funds a private venture’s infrastructure. Because the Landmark owners derive no benefit from the improvements, the special assessments violated the owners’ rights to due process.

Defendants also argued that the district court erred in weighing the equities in imposing the injunction. The district didn’t abuse its discretion in balancing the equities.

Defendants further contended that the injunction violated the Uniform Tax Clause of the Colorado Constitution because it means that only some of the property in the district can be taxed. First, it is undisputed that defendants raised this issue for the first time in their motion for reconsideration, which was too late. Second, the Uniform Tax Clause applies only to taxes, not special assessments. Third, the injunction doesn’t obligate the District to do anything with respect to other persons or property outside the Landmark Project. Fourth, the violation of the Landmark owners’ rights to due process under both the U.S. and Colorado Constitutions entitles them to the injunctive relief they request, as a matter of law. Therefore, the district court correctly ruled on this issue.

Defendants also contended that the district court erred in ruling that the District may not levy property taxes in excess of 50 mills. The mill levy rate imposed by the District exceeds that allowed by the statutorily required service plan approved by the City of Greenwood Village. Furthermore, it did not comply with the District’s Service Plan or the financing plan. Therefore, the 59.5-mill-rate levy was illegal.

Finally, defendants contended that the district court erred in ruling that the misappropriation of bond sale proceeds violated TABOR and in ordering a refund of those proceeds because the bond proceeds aren’t “revenue.” The bond proceeds at issue are borrowed funds, not “revenue” within the meaning of the relevant TABOR provision. Further, they aren’t subject to refund because they were lent to the District by a private, outside entity and not collected from property owners. Therefore, the owners may not recover bond proceeds misappropriated by the District’s creator under TABOR. Nor may the owners recover those misappropriated funds under other provisions of the Colorado Constitution because the District is not subject to those provisions. Therefore, the district court erred in ordering refunds of the misappropriated money.

The portion of the judgment ordering TABOR refunds was reversed. The remainder of the judgment was affirmed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Social Workers Held to Have Qualified Immunity on Foster Child’s Special-Relationship Claims

The Tenth Circuit Court of Appeals issued its opinion in Dahn v. Amedei on Monday, August 14, 2017.

This case concerns an exception to the general rule that states are not liable for harm caused by private actors. This exception, called the special-relationship doctrine, makes a state or its agents liable under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs. In this case, the Tenth Circuit Court of Appeals decided whether the geographical reach of the special-relationship doctrine crosses state lines.

A foster child, James Dahn, sued two Colorado social workers responsible for investigating reports that he was being abused. Dahn had been in Oklahoma’s custody until, in 2008, a Colorado adoption agency (Adoption Alliance) placed him for adoption with a foster father, Jeremiah Lovato, in Colorado. The foster father physically abused Dahn before and after adopting him. Many reports of suspicious abuse were reported to employees of the Moffat County Department of Social Services, Audrey Amedei and Amanda Cramer. Amedei and Cramer responded to the reports from Dahn’s school regarding Dahn’s suspicious bruising and significant, twenty-eight-pound weight loss, by interviewing Dahn and speaking with Lovato, via telephone. The reports of abuse were then determined to be unfounded. After further reports of suspicious bruising, Cramer chose not to speak with Dahn or Lovato, but instead called Vicki little, an independent contractor hired by Adoption Alliance to act as Dahn’s caseworker. Little visited the home, only speaking with Dahn alone for a few minutes, and shrugged off the concerns, determining Dahn was doing well. After two more visits where Little failed to speak to Dahn alone, she recommended that Lovato be allowed to adopt Dahn.

In 2010, the physical abuse from Lovato had escalated to the point where Dahn had to protect himself by running away. Dahn was taken to the hospital, where it was discovered that Lovato had broken Dahn’s arm months earlier, there was still ongoing abuse resulting in bruising, internal injuries, and bleeding, as well as open lesions. Lovato was tried and convicted of criminal child abuse in Colorado and sentenced to 119 ½ years-to-life in prison.

In 2013, Dahn sued Adoption Alliance, Little, Tem (Little’s supervisor), Amedei, and Cramer for his injuries. Dahn alleged (1) all defendants violated his Fourteenth Amendment substantive due process rights, under a special-relationship theory; (2) all defendants violated his Fourteenth Amendment substantive due process rights, under a state-created-danger theory; and (3) that defendants Adoption Alliance, Tem, and Amedei failed to properly train and supervise their employees in evaluating, monitoring, and investigating the prospective adoptive placement for abuse, resulting in violations of Dahn’s Fourteenth Amendment substantive-due-process rights. Dahn also brought state-law claims for negligence and outrageous conduct against all defendants. The issue decided by the Circuit was whether the district court erred in concluding that Amedei and Cramer had a special relationship with Dahn, and whether the law on this issue was clearly established.

Due process claims built on the special-relationship doctrine have four elements. First, the plaintiff must demonstrate the existence of a special relationship, meaning that the plaintiff completely depended on the state to satisfy basic human needs. Second, the plaintiff must show that the defendant knew that the plaintiff was in danger or failed to exercise professional judgment regarding that danger. Third, the plaintiff must show that the defendant’s conduct caused the plaintiff’s injuries. And, fourth, the defendant’s actions must shock the conscience. The question the Circuit decided was whether a foster child in the custody of one state can, after being placed by a private adoption agency with a foster father in a different state, establish a special custodial relationship with that second state when the second state takes on the duties to investigate evidence suggesting abuse.

The Tenth Circuit found that the law does not clearly extend constitutional liability under the special-relationship doctrine to employees of a state that did not deprive Dahn of his liberty or supply his basic needs, even though they were social workers in the county where he resided. Although the Circuit stated that Amedei and Cramer owed some duty to Dahn, as they investigated the suspected abuse but failed to take any action to remove Dahn from Lovato’s custody, the court found that Dahn had failed to show clearly established law that created a special-relationship between him, Amedei, and Cramer. This conclusion comes from a previous case which noted that the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf. Because the state had not deprived the child of his liberty, it did not have a custodial relationship with him that required the state to protect him from harm. The Circuit declined to address the other element of his claim, which is whether Amedei and Cramer acted in an unprofessional and conscience-shocking manner.

The Tenth Circuit Court of Appeals REVERSED the district court’s order denying Amedei and Cramer’s motion to dismiss Dahn’s special-relationship claim against them, and REMANDED for further proceedings.

Colorado Court of Appeals: No Constitutional Violation by Using ALJs in Workers’ Compensation Proceedings

The Colorado Court of Appeals issued its opinion in Sanchez v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation Act of Colorado—Constitutionality—Separation of Powers—Equal Protection.

Claimant sustained a back injury at work lifting a hydraulic unit from his truck. Within two months he was back to work and placed at maximum medical improvement. Soon thereafter he complained of excruciating lower back pain, but both his original doctor and a specialist concluded that this new lumbar strain was not work-related but related to normal age-related degenerative changes.

Claimant sought temporary partial disability (TPD) benefits from the date of his injury and temporary total disability (TTD) benefits from when his low back pain flared up. An  administrative law judge (ALJ) rejected the request for benefits, finding that (1) his lower back pain was unrelated to his work injury, and (2) because he had continued working, claimant had not suffered a wage loss and was not entitled to either TPD or TTD benefits. The ALJ dismissed his requests. The Industrial Claim Appeals Office (Panel) affirmed but remanded the case to the ALJ to determine whether claimant was entitled to change his physician.

On appeal, claimant argued the separation of powers doctrine is violated by having workers’ compensation cases heard in the executive branch. In rejecting this argument, the court of appeals followed Dee Enterprises v. Industrial Claim Appeals Office, which held that the statutory scheme for deciding workers’ compensation cases does not violate the separation of powers doctrine.

Claimant then argued his equal protection claims should be analyzed under the strict scrutiny standard. The court held that the rational basis test applies to equal protection challenges in the workers’ compensation context. Under that test, “a statutory classification is presumed constitutional and does not violate equal protection unless it is proven beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose.”

Claimant argued that his and other workers’ compensation litigants’ rights to equal protection were violated because workers’ compensation cases are not heard by judges. The court concluded that legitimate governmental goals provide a rational basis for employing executive branch ALJs and the Panel to decide workers’ compensation cases. The court rejected claimant’s contention that his right to equal protection was violated because his claim was heard by an ALJ and the Panel.

Claimant then contended that the Panel’s dual role as decision-maker and then-named litigant if a case is appealed “reeks of impropriety.” The requirement that the Panel be added as a party is not arbitrary and serves the purpose of the Workers’ Compensation Act of ensuring thorough and expeditious review and enforcement of ALJ and Panel orders.

Claimant also challenged on equal protection grounds C.R.S. § 8-43-404(5)(a)(II)(A), which exempts governmental entities and health care providers from providing an injured worker with a list of four physicians from whom the worker may seek medical care for his injury. The court concluded that a rational basis exists for excluding employees of those two types of employers from the four-physician referral requirement. Thus, there was no equal protection violation.

The court rejected claimant’s three non-constitutional arguments, which were that: (1) the exemption from the four-physician referral requirement did not apply because claimant’s employer did not meet the requirements of C.R.S. § 8-43-404(5)(a)(II)(A); (2) substantial evidence did not support the ALJ’s factual findings; and (3) the ALJ made numerous evidentiary errors.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff

The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Had Right to Be Present at Competency Hearing but Was Not Prejudiced by Absence

The Colorado Court of Appeals issued its opinion in People v. Wingfield on Wednesday, December 31, 2014.

Attempted Escape—Competency Hearing—Due Process—Waiver—Choice-of-Evils Defense.

Wingfield shared a cell with two other inmates at the Arapahoe County Jail. The three men were caught by the guards digging a trench around the perimeter of the window in an attempt to escape. The guards found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank. Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and sentenced him to eighteen years in the custody of the Department of Corrections.

The Court of Appeals agreed with Wingfield that the trial court improperly allowed his defense counsel to waive his right to presence at the competency hearing. However, Wingfield failed to show how his presence would have been useful to his defense. Therefore, the trial court did not violate his constitutional rights by holding the competency hearing in his absence.

Further, the trial court did not abuse its discretion or violate Wingfield’s due process rights by denying his request for a second competency examination. First, Wingfield never made an offer of proof about what evidence could be presented to establish his incompetence. Second, the trial court had ample opportunity to observe Wingfield’s actions and general demeanor throughout trial to determine his compentency.

Wingfield also contended that the trial court erred when it denied his choice-of-evils defense. He argued that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. The trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Therefore, the trial court did not err in denying the defense. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.