July 15, 2019

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 Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

The Colorado Court of Appeals issued its opinion in People v. Melnick on Thursday, February 21, 2019.

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Postconviction Matters for County Court Felony Criminal Matter Resolved in County Court, Not District Court

The Colorado Court of Appeals issued its opinion in People v. Vargas-Reyes on Thursday, December 28, 2018.

Criminal Law — Commencement of Prosecution — Felony Complaint in County Court; Criminal Procedure — Appeals From County Court

A division of the court of appeals considers whether, when a felony case is commenced in county court pursuant to section 16-5- 101(1)(c), C.R.S. 2018, and resolved with a plea agreement involving only misdemeanor pleas, the plea and any subsequent postconviction matters are handled by the county court or by the district court. We conclude that unless the matter is formally bound over to the district court before the plea is accepted, it remains a county court matter for purposes of appeal. Because this appeal involves a challenge to the denial of a postconviction motion issued by the county court, this court lacks jurisdiction and the appeal is dismissed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Facing Probation Revocation has Statutory Right to Effective Counsel

The Colorado Court of Appeals issued its opinion in People v. Timoshchuk on Thursday, November 1, 2018.

Criminal ProcedurePostconviction RemediesImmigrationProbationRight to Counsel.

Timoshchuk was a lawful permanent resident of the United States. He was charged with forgery. As part of a plea agreement, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases. Timoshchuk’s probation officer filed a complaint in district court alleging that Timoshchuk had violated the two conditions of his probation. Timoshchuk then entered into an agreement resolving all four cases: he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk’s probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections concurrent with his other sentences.

The Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony. Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged and later denied his request for asylum. Timoshchuk then filed a Crim. P. 35(c) postconviction motion alleging he was denied effective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Timoshchuk argued that the court erred in denying his Crim. P. 35(c) motion without a hearing. He contended that his probation revocation counsel failed to sufficiently investigate and advise him of the specific immigration consequences of his plea. The court of appeals held that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel. Here, it was clear that Timoshchuk could be subject to removal for his aggravated felony conviction, and his probation revocation counsel should have advised him with certainty that his admission and resulting sentence could subject him to removal. Further, Timoshchuk became ineligible for asylum when he was sentenced to three years in prison for the forgery conviction, and his counsel should have advised him with certainty of the immigration consequences of his admission. If Timoshchuk did not receive an advisement from his counsel of the specific immigration consequences of his plea, he may be entitled to relief. Therefore, Timoshchuk alleged sufficient facts to warrant a hearing on the adequacy of the advice he received.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentence Lawful Beyond Life with Possibility of Parole After 40 Years for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, August 8, 2018.

Criminal LawJuvenileMotion to SuppressWaiverRight to TestifySentencingEighth Amendment.

When Davis was 17 years old, he and McGrath robbed the victim, McGrath’s former coworker. The victim was transporting money to a bank from the restaurant at which he and McGrath had worked. In the course of the robbery, the victim was shot and killed. Davis was convicted of first degree murder after deliberation, felony murder, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first degree murder, and conspiracy to commit aggravated robbery. As required by statute, the trial court sentenced him to life in the custody of the Department of Corrections with the possibility of parole after 40 years (LWPP-40) on the murder after deliberation count. Additionally, the trial court imposed a consecutive sentence of eight years and one day on the aggravated robbery count. The sentences imposed for the remaining counts were ordered to run concurrently with the sentences to life plus eight years and a day. The felony murder conviction was merged with the conviction for murder after deliberation. Davis filed two Crim. P. 35(c) motions, which the district court denied in a series of orders.

On appeal, Davis contended that the trial court violated his constitutional rights when it denied his motion to suppress statements he made during police interrogation, arguing that the Denver detective violated his right to counsel by continuing an interrogation after he asked for an attorney. Davis’ statements were admissible because although Davis had previously asked for an attorney, he had voluntarily reinitiated the interrogation by asking the Denver detective whether McGrath had been arrested. Even assuming that the trial court erred in denying the motion, any error was harmless beyond a reasonable doubt in light of the relative insignificance of the statements to the People’s case and the substantial evidence of guilt.

Davis also argued that reversal is required because he never executed an on-the-record waiver of his right to testify. Where the trial court’s on-the-record advisement includes the five essential elements set forth in People v. Curtis, 681 P.2d 504, 514 (Colo. 1984), as occurred here, the record conclusively demonstrates that defendant made a valid waiver of the right to testify. Further, Davis did not present any evidence to show that despite the Curtis advisement, his waiver was nonetheless invalid. Thus, the district court did not err in concluding that Davis knowingly, voluntarily, and intelligently waived his right to testify.

Davis next contended that his sentence of LWPP-40 together with a sentence of eight years plus one day is unconstitutional. LWPP-40 is a constitutional sentence, and the trial court did not abuse its discretion in sentencing Davis to eight years and one day to run consecutively to his LWPP-40 sentence. Further, Colorado’s parole system provides juveniles sentenced to LWPP-40 a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.

The orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Indefinite Stay of Appeal Denied where Defendant Found Legally Incompetent After Notice of Appeal Filed

The Colorado Court of Appeals issued its opinion in People v. Liggett on Thursday, June 12, 2018.

Competency to Proceed—Stay of Appellate Proceedings—Jurisdiction—Restoration Proceedings—Right to Counsel—Waiver.

This is a direct appeal of two cases, first degree murder after deliberation and revocation of probation (based on the murder conviction). Based on Liggett’s incompetence, his counsel requested an indefinite stay of the appellate proceedings, a stay of the ruling on Liggett’s request to terminate counsel’s representation and to dismiss the appeal, and a remand of the cases to the district court for competency restoration proceedings.

On appeal, Liggett’s counsel contended that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. An incompetent defendant’s direct appeal should proceed, despite incompetence, if the defendant is provided a postconviction remedy to raise issues not raised in the direct appeal due to his incompetence. The court of appeals held that Liggett must be permitted to raise in a postconviction motion any matter not raised in the direct appeal due to his incompetence.

The People contended that the direct appeal divested the district court of jurisdiction and that the appeal and restoration proceedings cannot occur simultaneously. They also argued that the district court has no authority to order the Department of Corrections (DOC), in whose custody Liggett resides, to restore him to competency. The People agreed that Liggett is incompetent and that an incompetent defendant cannot waive the right to counsel on direct appeal. Thus, Liggett’s incompetence precludes the court from ruling on his pending requests to terminate counsel and dismiss the appeal, and a limited remand to restore Liggett’s competence is necessary.

A stay of the ruling on Liggett’s requests to terminate counsel and dismiss the appeal was granted. The request for indefinite stay of the appellate proceedings was denied. The request for limited remand to restore Liggett to competence was granted and the case was remanded to the district court for that limited purpose.

Summary provided courtesy of Colorado Lawyer.