September 22, 2018

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.

Rules of Civil Procedure, JDF 601, and Form 4 Amended in Rule Changes 2018(05) and 2018(06)

On Thursday, April 12, 2018, the Colorado Supreme Court issued two rule changes. Rule Change 2018(05) amends Form 4, “Petition for Postconviction Relief Pursuant to Crim. P. 35(c),” and Rule Change 2018(06) amends Colorado Rule of Civil Procedure 16.1, “Simplified Procedure for Civil Actions,” and JDF 601, “District Court Civil Case Cover Sheet for Initial Pleading of Complaint, Counterclaim, Cross-Claim, or Third-Party Complaint and Jury Demand.”

The changes to C.R.C.P. 16.1 are extensive, and contain multiple changes to the first several subsections, including “Purpose of Simplified Procedure,” “Actions Subject to Simplified Procedure,” “Civil Cover Sheet,” “Motion for Exclusion from Simplified Procedure,” and more. There is also new Comment to the Rule that explains the reasoning for the changes.

For the full text of the 2018 rule changes, click here. For all of the court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: State’s Interest in Ascertaining Truth Paramount Over Witness’s Religious Freedom Claims

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

Death PenaltyPostconviction—Freedom of Religion—First Amendment—Refusal to Testify—Direct Contempt—Rational BasisStrict Scrutiny.

Ray was sentenced to death in a first degree murder case. Ray’s attorneys hired Lindecrantz as an investigator to assist them in the penalty phase of the case.

The trial court began the required postconviction review of Ray’s conviction and sentence. Ray sought postconviction relief, in part alleging ineffective assistance of counsel. Part of that claim challenges Lindecrantz’s investigation. The prosecution subpoenaed Lindecrantz to testify. She moved to quash, arguing that as a devout Mennonite she is opposed to the death penalty on religious grounds and she feared that in truthfully answering the prosecutor’s questions, she would provide information from which the prosecutor could argue that Ray received effective assistance, which could lead to upholding the conviction and death sentence.

The trial court denied the motion to quash, finding that under either a rational basis or strict scrutiny analysis, Lindecrantz’s sincerely held religious beliefs did not justify her refusal to answer questions under oath in response to the subpoena. She took the stand and refused to testify. The court ultimately found her in direct contempt and remanded her to the sheriff’s custody “until she elects to answer the questions” as a remedial sanction. She has been in jail since February 26 of this year.

On appeal, Lindecrantz argued that being called as a witness for the prosecution makes her a “tool” or “weapon” of the prosecutor’s efforts to execute Ray. She would answer the trial court’s questions on direct examination and the prosecutor’s and defense counsel’s questions on cross-examination, but does not want to answer the prosecutor’s questions on direct examination. The court of appeals weighed the substantial burden on Lindecrantz’s religious beliefs against the state’s compelling interests in ascertaining the truth and rendering a just judgment in accordance with the law and concluded that Lindecrantz’s position fails under both a rational basis and strict scrutiny analysis. Lastly, holding Lindecrantz in contempt is narrowly tailored to advance the government’s compelling interests.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Abuse Discretion by Failing to Appoint GAL Sua Sponte

The Colorado Supreme Court issued its opinion in Ybanez v. People on Monday, March 12, 2018.

Ybanez petitioned for review of the court of appeals’ judgment affirming his conviction of first degree murder and directing that his sentence of life without the possibility of parole be modified only to the extent of permitting the possibility of parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014). In an appeal of his conviction and sentence, combined with an appeal of the partial denial of his motion for postconviction relief, the intermediate appellate court rejected Ybanez’s assertions that the trial court abused its discretion and violated his constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was denied the effective assistance of counsel both because his counsel’s performance was adversely affected by a non-waivable conflict of interest under which that counsel labored and because he was prejudiced by a deficient performance by his counsel; and that he was entitled to an individualized determination regarding the length of his sentence rather than merely the possibility of parole after forty years.

The supreme court affirmed the judgment of the court of appeals and remanded the case with directions to return it to the trial court for resentencing consistent with the supreme court opinion, for the reasons that Ybanez lacked any constitutional right to a guardian ad litem and the trial court did not abuse its discretion in not appointing one as permitted by statute; that Ybanez failed to demonstrate either an adverse effect resulting from an actual conflict of interest, even if his counsel actually labored under a conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell below the required standard of competent representation; and that Ybanez is constitutionally and statutorily entitled only to an individualized determination whether life without the possibility of parole or life with the possibility of parole after forty years is the appropriate sentence.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Did Not Err in Summarily Denying Defendant’s Petition for Postconviction Relief

The Colorado Court of Appeals issued its opinion in People v. Phipps on Thursday, December 30, 2016.

Sexual Assault on a Child—Ineffective Assistance of Counsel.

Police discovered child pornography on Phipps’s computer by using LimeWire, a peer-to-peer file sharing application. Phipps pleaded guilty to sexual assault on a child and was sentenced to an indeterminate prison term of 17 years to life. He sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Phipps asserted that the district court was required to hold a hearing on his motion and erred in rejecting his claims of ineffective assistance of counsel. A district court may deny a post-conviction motion without a hearing where allegations are bare and conclusory, directly refuted by the record, or, even if proven true, would fail to establish one of the prongs of the Strickland test to determine whether there has been ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must establish that (1) counsel’s performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. To satisfy the prejudice prong, a defendant must show that there is a reasonable probability that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Phipps argued that his counsel should have challenged the validity of the initial, remote search of his computer. Phipps claimed that he did not know that the files stored on his computer were publicly accessible through LimeWire. Consistent with other courts that have considered the matter, the Colorado Court of Appeals held that Phipps had no reasonable expectation of privacy in the files he made available for public viewing through LimeWire. Thus his counsel’s failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.

Phipps also argued that his counsel was ineffective when he waived the preliminary hearing. This decision was a matter of strategy. In addition, the evidence of Phipps’s guilt was overwhelming. The waiver of the preliminary hearing could not have constituted ineffective assistance of counsel.

Phipps further argued that his counsel failed to investigate several aspects of his case. Even if this claim were true, it fails the prejudice test. Phipps admitted to possessing child pornography on his computer and he produced a video of him sexually assaulting his underage stepdaughter.

Phipps next contended that his counsel misadvised or failed to advise him of the consequences of his guilty plea. The court carefully examined each of Phipps’s contentions in this regard and found them all without merit.

Lastly, Phipps argued that the district court “redacted” his Crim. P. 35(c) motion and the transcript of his sentencing hearing was falsified. The court found no evidence to support these arguments.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.