April 22, 2019

Colorado Court of Appeals: Prosecution Not Entitled to Withdraw from Plea Bargain Regardless of Prosecutorial Misconduct

The Colorado Court of Appeals issued its opinion in People v. Mazzarelli on Thursday, March 10, 2016.

Mazzarelli was charged with child abuse in violation of C.R.S. § 18-6-401(1)(a), a class 3 felony, but entered into a plea agreement in which he agreed to plead guilty to a reduced charge of class 4 felony child abuse in exchange for a stipulated sentencing range of 2 to 8 years. The trial court accepted the plea agreement at the initial hearing but delayed sentencing until it could review the presentence report.

At the next hearing, the prosecution proposed a five-year sentence, arguing that the defendant was unemployed and was playing video games when the incident in question occurred. The trial judge, who was also presiding over the accompanying dependency and neglect proceeding, informed the prosecution that it disliked the sentence because the father’s incarceration would not be in the child’s best interest, further saying he was not going to accept the plea agreement. The judge offered the parties a chance to withdraw the agreement at that time.

After that hearing, Mazzarelli filed a motion for a special prosecutor due to “blatantly false statements” made by the People. At the third hearing, the People clarified the misstatements, saying that defendant had been employed when the abuse occurred and was not playing video games as they had previously represented. The People requested to withdraw the plea agreement and set the case for trial, but the trial court denied the request and sentenced Mazzarelli to 36 months supervised probation.

The People appealed, contending the trial court should be bound by the plea agreement because it did not inform the parties that it was not inclined to accept the proposed sentencing, and that the court erred when it found prosecutorial misconduct and would not allow the People to withdraw from the plea agreement. The court of appeals disagreed with the People’s arguments but did not address the prosecutorial misconduct issue because the People had no right to withdraw from the plea agreement, further finding that the trial court had decided not to sentence the defendant pursuant to the plea agreement prior to having knowledge of the prosecutorial misconduct.

The court of appeals affirmed.

Tenth Circuit: Appeal Moot When Requested Remedy Has Already Been Obtained

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fisher on Tuesday, November 10, 2015.

Jerold D. Fisher filed false W-2 forms for his business and Forms 1040s for himself, and received U.S. Treasury checks and electronic deposits totaling $3,866,021. He was indicted on two counts of violating 18 U.S.C. § 287, which prohibits knowingly presenting “false, fictitious, or fraudulent” claims to any federal agency or department. Fisher entered into a plea agreement with the government in which he agreed to cooperate with the government and help recover some of the assets. In exchange, the government agreed to not file any additional charges against him, recommend a sentence of 36 months, and recommend a two- or three-level reduction for acceptance of responsibility. The plea agreement also contained an appeal waiver.

At the sentencing hearing, the district court asked the government how much of the nearly $4 million it had recouped. When the government reported that only a fraction had been returned, the judge continued the sentencing hearing to give Fisher an opportunity to “think about it some more and think about maybe there’s some other information he might be able to offer.” Fisher exclaimed as he was exiting the courtroom that he’d already told the government he lost $3 million in the stock market. The government filed a motion to determine whether defendant had breached the plea agreement, seeking to be released from its obligation not to file further charges on the ground that Fisher had not accepted responsibility. The government specifically alleged that Mr. Fisher had failed to provide documentation of the stock market losses, and that he had been trying to get assistance in prison to move some of the money under his control.

After two sentencing hearings in which the government presented evidence of Fisher using another inmate’s PIN to make phone calls that were not monitored in order to conceal money, the district court granted the government’s motion for release from its obligations under the plea agreement based on its assumption that Fisher had not disclosed the failed stock market transactions until his excited utterance at the hearing. The government indicted Fisher on seven structuring charges the following month. However, both parties agreed that Fisher had provided the documentation of his failed stock market transactions prior to entering into the plea agreement. Based on the court’s misunderstanding, Fisher filed a motion for reconsideration of the release from the plea agreement, and the court granted his motion.

Fisher then filed a motion for Guidelines variance to time served, arguing the government had breached the plea agreement by filing a new indictment. As a remedy for the breach, Fisher sought to be relieved of his obligations under certain paragraphs of the plea agreement regarding cooperating with the government and disclosing assets. Fisher also accused the government of vindictive prosecution and sought a sentence of time served as a remedy. At the fourth and final sentencing hearing, the court did not consider Fisher’s arguments about vindictive prosecution, remarking that they were better heard by the judge presiding over the structuring case, and sentenced him to 41 months in prison followed by three years’ supervised release, ordering him to pay $4,039,781 in restitution to the IRS. After the fourth sentencing hearing, the government moved to dismiss the structuring charges.

Fisher filed a timely notice of appeal. The government sought to enforce the appeal waiver and also sought dismissal for mootness. The Tenth Circuit first evaluated Fisher’s argument that the district court erred in declining to rule on whether the government breached the plea agreement. The Tenth Circuit found that, because Fisher had already received his requested relief in the form of release from his cooperation obligations, the issue was moot and the Tenth Circuit lacked Article III jurisdiction based on the case-or-controversy requirement.

The Tenth Circuit declined to consider Fisher’s vindictive prosecution claim due to inadequate briefing, finding also that the claim was forfeited in district court. The Tenth Circuit noted that its local rules require a party to present its claims in a way that does not require the court to “scavenge through the brief for traces of argument.” The Tenth Circuit also held that Fisher should have argued in his opening brief that the district court committed error, and since he did not, he forfeited the argument.

The Tenth Circuit dismissed the appeal.

Tenth Circuit: District Court Lacked Jurisdiction to Take Any Action After Sentencing on Guilty Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Spaulding on Tuesday, September 1, 2015.

In May 2011, ATF agents learned that A.J. Aldridge was willing to sell firearms and methamphetamine. An undercover agent arranged to purchase a gun and some meth from Aldridge, and met with Aldridge and his supplier, Robert Blankenship. Blankenship declined to sell the agent a gun because he was concerned the agent was an undercover officer, but he sold some meth. A short time later, the agent again contacted Blankenship and arranged to buy more meth. Blankenship said he would send a relative to deliver the meth. When the agent arrived at the pickup location, Michael Spaulding pulled into the parking lot and the agent completed the transaction. Spaulding, Blankenship, and Aldridge were subsequently arrested and charged with distribution of methamphetamine and conspiracy to distribute methamphetamine. Spaulding entered into a plea deal with the government, agreeing to plead guilty to distribution and to cooperate in the prosecution of his co-defendants. In exchange, the government agreed to recommend a three-level decrease in Spaulding’s offense level and move for a downward departure for substantial assistance, creating an advisory sentencing range of 77 to 96 months.

Spaulding entered his guilty plea and the district court judge requested the preparation of a presentence report (PSR). The PSR computed Spaulding’s guidelines range as 110 to 137 months. At the sentencing hearing in December 2012, the government moved for a downward departure, which the district court nominally granted. The district court denied Spaulding’s motions for downward departure and adjustment for acceptance of responsibility. The district court sentenced Spaulding to 137 months, the top of the guidelines range, because of his extensive criminal history. When the government asked the district court to consider its § 5K1.1 motion, the district court said it had considered it and was not following the government’s recommendation. Spaulding then moved to correct the sentence or to alternatively allow him to withdraw his guilty plea. The district court granted his motion to withdraw his guilty plea, and Spaulding entered into another plea agreement with the government, again with the goal of reaching a guidelines range of 77 to 96 months. At the subsequent sentencing hearing, the district court entered two sentences of 137 months each to run concurrently. Spaulding appealed to the Tenth Circuit, contending the district court erred in rejecting his second plea agreement and refusing to consider the guidelines in sentencing.

On appeal, the Tenth Circuit noticed a jurisdictional defect and requested that the parties brief the issue of whether the district court had jurisdiction under Rule 11(e) to take any action after entering sentence on the first guilty plea. The government argued that the district court had lost jurisdiction after entering Spaulding’s sentence, and that the proper remedy would be to remand to the district court to vacate all orders entered after the December 2012 sentencing hearing. Spaulding argued that since the district court had entered its order allowing him to withdraw his guilty plea nunc pro tunc it had retained jurisdiction over subsequent actions, and also that his motion to withdraw was a collateral attack on his conviction and collateral attacks do not implicate Rule 11(e).

The Tenth Circuit evaluated Rule 11(e) and determined it is jurisdictional. Rule 11(e) advises “After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.” Because the court had imposed its sentence in December 2012, it lacked jurisdiction to allow Spaulding to withdraw his guilty plea. The Tenth Circuit found it was of no consequence that the district court’s sentence was entered orally. The Tenth Circuit addressed Spaulding’s argument that Rule 11(e) was not implicated in this case and disagreed. The Circuit found that although the district court’s order allowing Spaulding to withdraw his guilty plea was issued nunc pro tunc, it did not have jurisdiction to consider the motion because of Rule 11(e)’s bar. The Tenth Circuit found that the appropriate remedy was to remand to the district court to vacate all actions taken after the December 2012 sentence was entered. At that time, Spaulding would be able to file a direct appeal.

The Tenth Circuit remanded to the district court to reinstate its December 2012 sentence and vacate all other orders issued after that date. Judge Gorsuch wrote a thoughtful dissent, noting that some circumstances justify allowing case-by-case evaluation of jurisdiction.

Tenth Circuit: District Court Abused Discretion by Rejecting Plea Bargain Based on Appeal Waiver

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vanderwerff on Wednesday, June 10, 2015.

Timothy Vanderwerff was indicted in the District of Colorado on three child pornography-related counts: Count 1 charged him with receipt of child pornography and Counts 2 and 3 charged him with possession. Vanderwerff entered into a plea agreement with the government wherein he would plead guilty to Count 2, which carried a statutory sentencing range of zero to ten years, in exchange for dismissal of Counts 1 and 3. The plea agreement contained an appeal waiver. The district court rejected the plea agreement, citing a “tectonic shift” in jurisprudence following the Supreme Court’s decision in Lafler v. Cooper which suggested the court should be a participant in the plea bargaining process. The district court also relied on United States v. Booker to support its finding that sentencing requires a court to consider context and apply criteria instead of performing mechanical judgment. The district court suggested that some of the judges on the Tenth Circuit were not “paying attention to their obligations” in reviewing lower court decisions. The district court rejected the proposed plea agreement.

Vanderwerff sought review of the district court’s rejection of the first plea agreement, but the Tenth Circuit determined it lacked jurisdiction because the issues were premature. The parties then negotiated a new plea agreement, wherein Vanderwerff would plead guilty to Count 1 in exchange for dismissal of Counts 2 and 3. Notably, the new plea agreement did not contain an appeal waiver. The statutory sentencing range for Count 1 was five to twenty years’ imprisonment. The district court sentenced Vanderwerff to 108 months’ imprisonment, and Vanderwerff timely appealed.

On appeal, the government agreed that the district court abused its discretion in rejecting the first plea agreement. The Tenth Circuit appointed pro bono amicus counsel to independently assess the legal propriety of the district court’s sentence decision. The amicus also agreed that the district court abused its discretion. The Tenth Circuit similarly concluded the district court abused its discretion in rejecting the plea agreement based on the appeal waiver, since its decision was premised on legally erroneous and irrelevant considerations. The Tenth Circuit opined that the district court’s reading of Lafler as a basis for rejecting the plea agreement evinced a serious misunderstanding of the case. The Tenth Circuit did not read Lafler to introduce a new role for the judiciary in the plea bargaining process.

The Tenth Circuit also disagreed with the district court’s interpretation of Booker, finding nothing in the case to suggest that district courts were obligated to exercise a wider scope of discretion in evaluating plea agreements. The Tenth Circuit noted the core holding of Booker was that the Guidelines are advisory, and found the district court seriously misconstrued Booker‘s mandate, constituting an abuse of discretion. In fact, the Tenth Circuit found nothing in Booker that spoke to appellate waivers at all, much less anything that allowed the district court to restrict a defendant’s ability to knowingly and voluntarily waive his or her appellate rights.

Finally, the Tenth Circuit disapproved of the district court’s use of the § 3553(a) factors as a basis for its rejection of the appeal waiver. The Tenth Circuit found the court committed serious error by applying the sentencing factors to the entry of guilt phase. The Tenth Circuit also did not appreciate the suggestion that it was not paying attention to its obligations to review the decisions of district court judges, and noted that it had its responsibilities firmly in hand. The Tenth Circuit found that plea bargaining was strongly favored and the appellate waiver was an important bargaining tool for a defendant.

The district court’s judgment was reversed and remanded. Judge Hartz separately concurred.

Tenth Circuit: No Error in Allowing Government to Use Rule 410 Evidence Against Defendant Who Withdrew Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jim on Tuesday, May 12, 2015.

K.T. had a get-together with some friends at her home on the Navajo Nation, and one of her friends invited Derrick Jim. The group drank alcohol and socialized under K.T.’s carport. Around 1 a.m., K.T. went inside to sleep on her couch. Jim followed her inside, turned off the interior lights and locked the doors, dragged her down the hallway, and forcibly raped her vaginally and anally while K.T. tried to fight him off. As a result of these events, the United States charged Jim with one count of aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2)(A). Jim initially entered into a plea agreement with the government. He pleaded guilty, but before the district court could accept the plea agreement, Jim sent a pro se letter to the district court requesting new counsel because he felt pressured into accepting the plea agreement and did not realize that by entering a plea he would not be allowed to go to trial. The district court appointed new counsel, allowed Jim to withdraw his guilty plea, and allowed him to proceed to trial, where he was found guilty of two counts: the original count plus aggravated sexual abuse—anal penetration by force. He received two concurrent 360-month sentences. On appeal, Jim argued the government should not have been allowed to use FRE 410 evidence against him because his plea was not knowing and voluntary. The government cross-appealed, arguing the district court should have applied a two-level sentence enhancement for causing serious bodily injury.

The Tenth Circuit addressed the Rule 410 contention first. Jim’s argument was that because his plea was not knowing and voluntary, the Rule 410 waiver he signed (allowing the government to use evidence from the plea agreement process during trial) was not valid. Although Jim was required to prove his plea was not knowing and voluntary, he asserted he should be held to a lesser burden based on a line from a Supreme Court decision. Reading the decision as a whole, the Tenth Circuit rejected his argument, finding that Jim offered no proof that his plea was not knowing and voluntary. Jim signed the plea agreement, which adequately apprised him that by doing so he waived his Rule 410 rights, he had a high school education with some college credits, and he had previously signed two other plea agreements related to drunk driving. The Tenth Circuit found no error in the district court’s decision to allow the government to use Rule 410 evidence against Jim.

Next, the Tenth Circuit evaluated the government’s contention that the district court erred by disregarding a two-level sentence enhancement for crimes causing serious bodily injury. The district court, relying on the application note for U.S.S.G. § 2A3.1(b)(4)(B), decided it was not allowed to consider serious bodily injuries caused during sexual assaults in applying the sentence enhancement. The Tenth Circuit, however, analyzed the definition of “serious bodily injury” and determined that the application note referred only to the second definition. If the prosecution proved serious bodily injury under the first definition, the two-level enhancement could still apply. The Tenth Circuit remanded for the district court to determine if Jim’s actions caused serious bodily injury and to resentence if appropriate.

The district court’s judgment was affirmed in part, reversed in part, and remanded for consideration of whether Jim’s conduct caused serious bodily injury to the victim.

Tenth Circuit: District Court Free to Resentence Remaining Counts De Novo When One Count Set Aside or Vacated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Catrell on Monday, December 22, 2014.

Ronald Catrell was indicted in Kansas on several fraud-related counts with an understanding that he would plead guilty. However, he fled after posting bond. When he was returned to Kansas the following year, he entered a different, binding plea agreement, agreeing to a sentence of 120 months. Before sentencing, however, the district court allowed Catrell to withdraw his guilty plea. The government then procured an indictment with over 12 new criminal counts. Catrell and the government entered into a new binding plea agreement, where Catrell would plead guilty to the same four crimes as before and receive 132 months in prison. To reach the 132 months, the parties agreed to a 24-month sentence for aggravated identity theft and a combined 108-month sentence for the other three counts to run consecutively. Defendant subsequently pled guilty and affirmed approximately 12 times that he was doing so of his own free will. The court accepted the agreement and sentenced Defendant to 132 months, but crafted the sentence differently — 54 months for aggravated identity theft and 78 months for the other three charges. Defendant appealed his aggravated identity theft charge and asserted prosecutorial vindictiveness for withdrawing his initially-agreed-upon plea for 120 months.

The Tenth Circuit first addressed Defendant’s assertion of prosecutorial vindictiveness, and found none. The Tenth Circuit noted that binding precedent foreclosed Defendant’s arguments on review, because as long as the accused is free to take or leave the government’s plea offer, there is no element of punishment or revenge.

Turning to the sentencing issue, the Tenth Circuit found that the district court had sentenced Defendant illegally by imposing a 54-month sentence for aggravated identity theft. The pertinent statute, 18 U.S.C. § 1028A, mandates a two-year sentence for each incident of aggravated identity theft. The Tenth Circuit reversed and remanded for correction of the illegal sentence. However, it rejected Defendant’s contention that the district court could not amend the rest of Defendant’s sentence. The Tenth Circuit’s “sentencing package doctrine” counsels that when one count of a sentence is set aside or vacated, a district court is free to reconsider sentencing de novo.

The Tenth Circuit remanded for resentencing with specific instructions for the district court to feel free to amend the entire sentence to retain the original 132-month agreement.

Tenth Circuit: Judge’s Comments Could Not Be Shown to Have Influenced Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Johnson on Wednesday, July 2, 2014.

Vanity Johnson pleaded guilty to aggravated identity theft and conspiracy to commit bank fraud, aggravated identity theft, and mail theft. As part of her plea agreement, Johnson admitted that she committed the criminal acts knowingly, voluntarily, and willingly, but asserted that she was a victim of violence at the hands of co-defendant Mario Diaz and that she was coerced into performing the acts because he would beat her if she did not perform them. Despite the appeal waiver in Johnson’s plea agreement, she appealed the imposition of the sentence against her, alleging that the district court injected gender bias into its sentencing decision and allowing the sentence would be a miscarriage of justice. However, she did not raise the gender bias issue at the sentencing hearing.

The Tenth Circuit reviewed the actions of the district court for plain error and found none. After sentencing, the district judge commented that he believed both parties were generally involved in domestic violence cases, and that as a mother of two young children she should obey all the laws, referencing Johnson’s repeated minor traffic violations. The Tenth Circuit noted that the remarks occurred after imposition of the sentence, and at best Johnson could only speculate that the remarks influenced her sentencing, which is not enough to show plain error. The judge remarked that he did not hold the domestic violence against Johnson, but that he felt probation was inappropriate based on her misconduct in the traffic violations, for which she would not have been coerced by Diaz.

The Tenth Circuit granted the government’s motion to enforce the appeal waiver. As to Johnson’s motion to seal her opposition to the motion to enforce, the Tenth Circuit instead allowed her to submit for filing a version of the motion with sensitive materials redacted.

Tenth Circuit: Waiver in Plea Agreement was Knowing and Voluntary

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rollings on Tuesday, May 20, 2014.

Terry Jo Rollings pled guilty to one count of possessing stolen goods and waived his right to appeal any part of the conviction as part of the plea agreement. After the court ordered significant restitution, Rollings appealed despite the waiver in the plea agreement, claiming that the guilty plea was not knowing and voluntary because he was not advised of the court’s authority to order restitution and because he was not aware of all of the elements of the crime charged.

The Tenth Circuit considered the entire plea agreement to determine if Rollings’ waiver was knowing and voluntary. The government argued that the Tenth Circuit should limit its review to the waiver portion of the plea agreement, since Rollings agreed not to appeal, but the Tenth Circuit reviewed the entire agreement as a whole. After a review of the entire plea and the court transcripts, the Tenth Circuit decided that Rollings had sufficient knowledge of the terms of the plea and granted the government’s motion to dismiss the appeal and deny as moot Rollings’ motion for release pending appeal.

Tenth Circuit: The Law Does Not Require that a Defendant be Informed of All Collateral Consequences of Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Muhammed on Wednesday, April 8, 2014.

Defendant Sevgi Muhammad was indicted on 24 counts of mail fraud, two counts of making a false statement, and one count of stealing public money. All the charges arose out of Defendant’s obtaining housing assistance through the Housing Choice Voucher Program of the United States Department of Housing and Urban Development (HUD). She pleaded no contest to one count of making a false statement. At the outset of her sentencing hearing, however, she moved to withdraw her plea. The district court later held an evidentiary hearing, denied the motion, and sentenced Defendant to serve three years of probation and pay $1,698 in restitution.

On appeal Defendant argues that her plea was not knowing and voluntary and that the district court erred when it denied her motion to withdraw the plea. She argues that her plea was not valid because she did not know (1) that a no-contest plea would have the same “attendant consequences” as a finding of guilt, Aplt. Br. at 9; (2) that the plea would result in a felony conviction and a finding of guilt; (3) that the conviction would make it difficult to obtain credit, employment, federal financial aid, and Section 8 housing; and (4) that the conviction would preclude her from firearm ownership and render her testimony in court suspect. But the law does not require a defendant to be informed of the collateral consequences of a plea, and the district court properly found that she knew that her plea would lead to a finding of guilt of the offense charged. The Tenth Circuit affirmed the district court.

Tenth Circuit: Knowing and Voluntary Waiver of Right to Appeal Enforced

The Tenth Circuit Court of Appeals published its opinion in United States v. Tanner on Friday, July 12, 2013.

Robert Clifton Tanner was charged with four counts of mail fraud. He entered into a plea agreement with the United States pursuant to F.R.Crim.P. 11(c)(1)(C) in which he agreed to plead guilty to one count of mail fraud for which he would receive a stipulated sentence of 30 months’ imprisonment. The district court accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’ imprisonment. As part of his plea agreement, Tanner waived his right to appeal unless the punishment imposed was greater than the parties had agreed. Despite this waiver and the imposition of the agreed sentence, Tanner brought this appeal claiming his sentence was illegal.

In considering the totality of the circumstances, either the express language of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and voluntary. Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together, demonstrated Tanner’s waiver to have been knowingly and voluntarily made. The court found this to be so despite the trial court’s failure to specifically mention the appellate waiver in its Rule 11 colloquy.

The government’s motion to enforce the waiver was granted and the appeal was dismissed.

Colorado Court of Appeals: Defendant’s Daughter Rightly Named as Protected Person Under Mandatory Protection Order Despite Dismissal of Charge

The Colorado Court of Appeals issued its opinion in People v. Sterns on Thursday, May 9, 2013.

Mandatory Protection Order—Victim—Plea Agreement—Sentencing Range.

Defendant appealed from the trial court’s mandatory protection order and sentence. The order and sentence were affirmed.

Defendant was charged with three counts of solicitation to commit second-degree murder for contracting to have his daughter, his ex-wife, and her current husband killed. Before trial, defendant and the prosecution reached a plea agreement in which defendant agreed to plead guilty to an added count of second-degree attempted murder, with his ex-wife and her husband as the only named victims, as well as a crime of violence sentence enhancer, in exchange for dismissal of all other charges. At the plea hearing, the trial court accepted defendant’s plea and entered a mandatory protection order, naming defendant’s ex-wife, her husband, and defendant’s daughter as protected persons.

On appeal, defendant contended that the trial court lacked statutory authority to name his daughter as a protected person in the mandatory protection order. Adding or dropping a single charge within a multi-charge case does not dispose of the case. Thus, when the trial court dismissed the charge involving defendant’s daughter, it did not thereby dispose of the action against defendant. The action continued pursuant to the plea agreement. Accordingly, the trial court’s mandatory protection order properly included defendant’s daughter.

Defendant also contended that the trial court abused its discretion by sentencing him to a twenty-four-year term of imprisonment. Because this sentence falls within the range agreed to under defendant’s plea agreement, defendant is not entitled to appellate review of this issue.

Colorado Court of Appeals: Defendant Who Entered Guilty Plea Waived Right to Appeal Procedural Defect

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, February 28, 2013.

County Court—Re-Filing Complaint—Jurisdiction—Statement of Good Cause—Crim.P. 5(a)(4)(VII).

Defendant appealed the order of the district court concluding it had jurisdiction to accept his guilty plea. The order was affirmed.

On August 28, 2008, the People filed a complaint against defendant in Alamosa County Court, alleging assault in the second degree. The complaint was dismissed after the prosecution was unable to produce witnesses for a preliminary hearing. On December 12, 2008, the People re-filed the complaint in Alamosa County Court. Defendant waived his right to a preliminary hearing, and on April 6, 2009, he pleaded guilty to felony menacing in Alamosa District Court.

Defendant argued that the prosecution was not permitted to re-file the charges in county court and, alternatively, that failure to include a statement of good cause with the re-filing of felony criminal charges in county court pursuant to Crim.P. 5(a)(4)(VII) created a jurisdictional bar to his prosecution. First, Crim.P. 5(a)(4)(VII) now authorizes the re-filing of charges in county court. Next, the prosecutor’s failure to file a statement of good cause was not a jurisdictional defect but a procedural defect, which defendant waived when he pleaded guilty.

Summary and full case available here.