April 18, 2019

Colorado Court of Appeals: Because Two Charges Would Have Been Tried Together But For Defendant’s Guilty Pleas, They Cannot Be Considered Separate Under Habitual Criminal Statute

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

Criminal Law—Photo Lineup—Sixth Amendment—Motion to Continue—Sentencing—Habitual Criminal.

Defendant robbed the victim, an Uber driver, at knifepoint in a Denver alleyway. After the jury returned its verdict, the trial court held a hearing to determine whether defendant was a habitual criminal. Based on defendant’s prior convictions for first degree assault (heat of passion) and two prior convictions for distribution of a Schedule II controlled substance, the trial court adjudicated him a habitual criminal and sentenced him to 64 years in prison.

On appeal, defendant argued that the pretrial photo lineup, from which the victim identified him, was impermissibly suggestive. He contended that he was older than the other men in the photo array and there were impermissible differences in the clothing and tattoos depicted. Here, defendant’s photo matched the victim’s description and the filler photos depicted men who generally fit the witness’s description. The number of photos in the array (six) and the details of the photos did not render the lineup impermissibly suggestive.

Defendant also contended that the trial court abused its discretion and violated his Sixth Amendment right to his counsel of choice by denying his motion for a continuance. The trial court considered the appropriate factors in balancing defendant’s right to have counsel of his choosing against the efficient and effective administration of justice. The trial court’s findings were supported by the record, and the court did not abuse its discretion in denying defendant’s motion for a continuance.
Defendant next contended that the trial court abused its discretion by denying his motion for a continuance to allow the People to complete fingerprint testing and that completed testing would have allowed for the production of exculpatory evidence. Here, the fingerprint results were inconclusive and the prosecution did not have possession or control of any exculpatory fingerprint comparison results. Considering the totality of the circumstances, there was no error in the trial court’s ruling on the motion.

Defendant further contended that the trial court erroneously sentenced him under the habitual criminal sentencing statute because two of his three prior felony convictions were permissively joined for trial. Defendant argued that because the two cases charging him with distribution of a Schedule II controlled substance were joined for trial under Crim. P. 13, they would have been tried together had he not entered guilty pleas, so his previous convictions for distribution should be treated as one conviction for habitual criminal purposes. Here, the offenses were joined for trial and would not have been tried separately. The prosecution failed to meet its burden to prove beyond a reasonable doubt that defendant’s predicate felonies were separately brought and would have been separately tried had defendant not entered guilty pleas. The guilty pleas resulted in one conviction for purposes of the habitual criminal sentencing statute and the trial court erred in sentencing defendant under that statute.

The judgment of conviction was affirmed. The case was remanded for the trial court to impose a new sentence and to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court May Only Increase Level of Distribution of Schedule II Substance Felony Based on Equal or More Severe Felony

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

Criminal Law—Uniform Controlled Substances Act—Sentence Enhancer—Distribution—Conspiracy to Distribute—Prior Conviction—Habitual Criminal—Double Jeopardy Clause.

A jury convicted defendant of distribution and conspiracy to distribute a schedule II controlled substance. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the distribution of a controlled substance conviction from a class 3 felony to a class 2 felony and found defendant was a habitual criminal. The court then sentenced defendant to 24 years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to 96 years in prison. On the conspiracy count, the court sentenced defendant to 12 years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to 48 years in prison, to be served concurrently with the sentence on the distribution count.

On appeal, defendant argued that the 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony. Here, the mittimus and amended mittimus in the 2007 case contain a mistake: they state that defendant pleaded guilty to a class 3 felony charge, but documents in the record from the 2007 case clearly show that defendant pleaded guilty to a class 4 felony. Pursuant to C.R.S. § 18-18-405(2)(a), a trial court may only increase the level of a class 3 distribution of a schedule II controlled substance felony based on an equal or more severe felony. Therefore, the trial court erred when it relied on defendant’s prior conviction to enhance his class 3 distribution felony to a class 2 felony.

Defendant also argued that one of the habitual criminal counts, which was based on the 2007 conviction, suffered from the same statutory defect. But any error involving the 2007 conviction was harmless because vacating one of defendant’s five habitual criminal counts would have no effect on his sentence, which only requires three prior felony convictions.

Defendant further contended that his convictions and sentences on both the distribution and conspiracy counts based on the same quantum of drugs violated the Double Jeopardy Clause. The prosecution conceded this contention, noting that, even under plain error review, the trial court obviously and substantially violated defendant’s right to avoid double jeopardy.

The enhancement of defendant’s class 3 felony distribution conviction and prison sentence for that conviction were reversed. The conviction and sentence for conspiracy to distribute a schedule II controlled substance were also reversed, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Noncustodial Escape Convictions Precluded from Use as Current Conviction for Habitual Offender Purposes

The Colorado Court of Appeals issued its opinion in People v. Jompp on Thursday, September 6, 2018.

Criminal Law—Speedy Trial—Insufficient Evidence—Robbery—Assault—Noncustodial Escape—Jury Instructions—Lesser Nonincluded Offense—Resisting Arrest—Sixth Amendment—Habitual Criminal.

Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. After they picked up C.P., they later pulled the vehicle over and a fight broke out between Jompp and the victim. Jompp, B.B., and C.P. left the victim unconscious on the ground, and the victim later died of his injuries. Days later, police found Jompp. After the police handcuffed Jompp, he took off running. After a short chase he was caught and taken to jail. A jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison.

On appeal, Jompp contended that the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested. Here, the trial court acted within its discretion by relying on the prosecution’s offer of proof that they were diligently trying to find B.B. to secure her testimony at trial and by finding that there was a reasonable possibility that B.B. would be available to testify. Therefore, there was sufficient record evidence to support the court’s granting of the prosecution’s request for a continuance. Further, the trial court didn’t plainly err because Jompp’s constitutional right to a speedy trial wasn’t obviously violated.

Jompp also contended that the prosecution presented insufficient evidence that he committed robbery, as either a principal or accomplice. Here, after Jompp attacked the victim, B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. admitted that she went through the victim’s pockets to get money at Jompp’s direction and she gave him the money she found. Further, the court of appeals rejected Jompp’s argument that the prosecution had to show that the force he used against the victim was calculated to take the victim’s money. The record contained sufficient evidence to support the jury’s conclusion beyond a reasonable doubt that Jompp robbed the victim.

Jompp next contended that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. Here, the undisputed record evidence showed that Jompp was in custody. He had already submitted to the police officer’s instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail before he ran from the officer. Therefore, the court didn’t abuse its discretion by declining to instruct the jury on the crime of resisting arrest.

Finally, Jompp contended that the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. Jompp failed to preserve this issue at trial, and the prior conviction exception remains well-settled law, so the trial court did not err.

Finally, Jompp contended that his sentence is illegal because his noncustodial escape conviction can’t be deemed a current offense under the habitual criminal statute. The court held that C.R.S. § 18-1.3-801(5) (2013) precluded a noncustodial escape conviction from being used as a current conviction for adjudicating a defendant a habitual criminal under subsection (2) of that section. Therefore, the trial court erred in adjudicating Jompp a habitual criminal on his noncustodial escape conviction.

The judgment of conviction was affirmed. The part of the sentence based on Jompp’s escape conviction was vacated and the case was remanded for resentencing on that conviction. The remainder of the sentence was affirmed.

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: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempts to Tamper with Witness Need Not Actually be Communicated to Victim

The Colorado Court of Appeals issued its opinion in People v. Brooks on Thursday, June 15, 2017.

Assault—Witness Tampering—Evidence—Attempt—Judicial Notice—Plea of Guilty—Grossly Disproportionate.

Brooks discovered that his girlfriend (the victim) was pregnant with another man’s child, and then argued with and assaulted her. While in jail, Brooks repeatedly telephoned the victim and others in an attempt to persuade them either to not testify against him on the domestic violence charge or to give false testimony. He also wrote letters to the victim to persuade her either to not testify or to testify falsely on his behalf. These letters were intercepted by a jail officer, and as a result, the victim did not receive them. Brooks was convicted of two counts of assault in the third degree against the victim, two counts of assault in the second degree against a peace officer, resisting arrest, violation of a protective order, and two counts of tampering with a witness or victim. The second tampering count was based on the letters. The court adjudicated Brooks a habitual criminal and imposed a mandatory 24-year sentence. Brooks requested and received an abbreviated proportionality review of the mandatory sentence. After that hearing the district court concluded that Brooks’s sentence was not disproportionate and denied him an extended proportionality review.

On appeal, Brooks argued that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. The tampering with a witness or victim statute does not require that the “attempt” to tamper actually be communicated to the victim or witness. Therefore, the evidence was sufficient to convict Brooks on this charge.

Brooks also argued that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice, there was insufficient evidence to support the habitual criminal adjudication. The registers of actions relevant to this case showed that Brooks’s two prior felony convictions were for distinct criminal offenses that occurred months apart. Thus, sufficient evidence supported his habitual criminal conviction.

Brooks further argued that his plea of guilty to felony theft from a person was constitutionally invalid and thus could not support his habitual criminal conviction. Brooks’s plea to theft was constitutionally valid because he entered it voluntarily and knowingly. The district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.

Finally, Brooks argued that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. Tampering with a witness or victim is not a per se “grave or serious” offense. However, the facts underlying these crimes were grave or serious. The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Brooks continued tampering with the victim after the prosecution charged him with the first count of tampering and his phone privileges were discontinued. His conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense. The Court of Appeals considered all of the convictions and the underlying circumstances as a whole and concluded that Brooks’s mandatory sentence was not grossly disproportionate.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

SB 17-010: Revising the Habitual Criminal Sentencing Statutes

On January 11, 2017, Sen. Daniel Kagan introduced SB 17-010, “Concerning the Identification of Habitual Criminals for Sentencing Purposes.”

Current law provides that, with certain exceptions, every person convicted of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within 10 years of the date of the commission of the felony, has been twice previously convicted of a felony or a crime which, if committed within this state, would be a felony is an habitual criminal and shall receive an aggravated sentence. The bill states that:

  • A conviction for any class 4, 5, or 6 felony may not be used for the purpose of adjudicating a person as an habitual criminal unless the conviction was for a crime of violence; and
  • A conviction for any level 2, 3, or 4 drug felony may not be used for the purpose of adjudicating a person as an habitual criminal.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 1, 2017, at 1:30 p.m.

Colorado Court of Appeals: Trial Court Impermissibly Usurped Jury’s Role in Finding Facts

The Colorado Court of Appeals issued its opinion in People v. Jaso on Thursday, October 9, 2014.

Civil Protection Order—Domestic Violence—Sixth Amendment—Habitual Offender—Jury.

A.K. received a civil protection order against defendant after he attacked her while she was holding her infant son. The orderprevented defendant from contacting A.K. directly or through a third person except by use of text message. After defendant sent A.K. a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody, he was charged with violation of the protection order, a class 1 misdemeanor, and a habitual domestic violence offender sentence enhancer (HDVO statute), a class 5 felony.

The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. Pursuant to the HDVO statute, the trial court convicted defendant of a class 5 felony and sentenced him to thirty months in the custody of the Department of Corrections.

On appeal, defendant argued that the trial court violated his Sixth Amendment right to a jury trial. “The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.” Here, because the trial court and not the jury found the facts necessary to sentence defendant as a habitual offender, it violated his Sixth Amendment rights. Accordingly, the judgment of conviction was reversed and the case was remanded to the trial court for entry of judgment of conviction and resentencing on a class 1 extraordinary risk misdemeanor.

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

Colorado Court of Appeals: Double Jeopardy Prohibited Retrial of Habitual Criminal Counts

The Colorado Court of Appeals issued its opinion in People v. Porter on Thursday, September 12, 2013.

Robbery—Burglary—Attempted Sexual Assault—Not Guilty by Reason of Insanity Defense—Evidence—Habitual Criminal—Double Jeopardy.

Defendant Reginald Marcus Porter appealed the judgment of conviction entered following a bench trial in which the court found him guilty of first-degree burglary, aggravated robbery, vehicular eluding, and attempted sexual assault. The prosecution cross-appealed the trial court’s dismissal of Porter’s habitual criminal counts. Porter’s conviction was affirmed, and the Colorado Court of Appeals disapproved of the trial court’s dismissal of the habitual criminal counts.

In 2002, Porter robbed and attempted to sexually assault a female casino employee, and then attempted to escape capture in a police chase. The trial court rejected Porter’s not guilty by reason of insanity (NGRI) defense and found him guilty of most of the substantive charges; it later dismissed the habitual criminal counts.

On appeal, Porter contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he was sane at the time of the offenses. The record supports that Porter’s behavior was driven in part by his use of drugs and in part by his antisocial nature. Thus, the record also supports a finding that Porter was not insane.

The prosecution contended that (1) the trial court erred in dismissing Porter’s habitual criminal counts; and (2) double jeopardy principles do not prevent the reinstatement of those counts. Here, Porter’s challenge to the habitual criminal counts was based on the same grounds that were asserted and rejected in his previous post-conviction appeal. Thus, the doctrine of collateral estoppel barred Porter from relitigating the issue, and, therefore, the trial court erred in dismissing the habitual criminal counts. However, jeopardy attached for Porter’s substantive counts when the first prosecution witness was sworn in at the bench trial. Consequently, jeopardy attached for Porter’s habitual criminal counts at that time, as well. Therefore, double jeopardy prohibited retrial of the habitual criminal counts.

Summary and full case available here.