May 26, 2019

Tenth Circuit: When Defendant Enters Guilty Plea to Drug Charge with Attendant Quantity, Defendant Subject to Enhanced Penalties Associated Therewith

The Tenth Circuit Court of Appeals issued its opinion in United States v. Roe on Tuesday, January 29, 2019.

Mr. Roe plead guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine. Pursuant to the terms of Mr. Roe’s plea agreement, the government requested a sentence below the twenty-year mandatory minimum. The district court sentenced Mr. Roe to a fifteen-year imprisonment.

Mr. Roe filed a § 2255 motion to vacate, set aside, or correct his sentence. He asserted trial counsel was ineffective for failing to challenge the drug quantity at the sentencing hearing, and for failing to file a notice of appeal as requested. The district court denied the drug-quantity claim, concluding Mr. Roe’s guilty plea established the relevant quantity. After trial counsel testified Mr. Roe never requested a notice of appeal be filed, Mr. Roe sought to amend his failure-to-file claim to focus on trial counsel’s failure to consult with him as to whether an appeal should be filed. The district court concluded that the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set forth in the original § 2255 motion, or in the alternative, the failure-to-consult claim failed on the merits.

The Court of Appeals affirmed the district court’s rulings. The Court held that when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with the quantity. The Court also held Mr. Roe’s failure-to-consult claim did not relate back to his failure-to-file claim, and was therefore untimely.

In his original § 2255 motion, Mr. Roe asserted trial counsel should have objected at the sentencing to the applicability of the quantity-based, statutory mandatory minimum sentence. Specifically, Mr. Roe took issue with the quantity of drugs calculated in the  Presentence Investigation Report. The district court rejected Mr. Roe’s argument, finding that Mr. Roe knowingly and voluntarily admitted in the plea agreement that he conspired to distribute and possess with intent to distribute five kilograms or more of cocaine.

The district court concluded that the precise amount of drugs calculated in the Presentence Investigation Report was immaterial, because Mr. Roe’s plea to a conspiracy involving five kilograms or more of cocaine established the statutory minimum for his sentence. The district court noted that Mr. Roe never lodged a substantive, stand-alone challenge to the factual basis of his guilty plea. In other words, Mr. Roe did not seek to invalidate his plea on the basis that it is not supported by an adequate factual basis; instead, he attempted to escape the burden of his guilty plea while maintaining the benefits flowing from the plea agreement. The district court ruled that because Mr. Roe entered the guilty plea, the trial counsel’s failure to object to the sentence was neither deficient nor prejudicial.

On appeal, Mr. Roe argued that the district court erred in determining that the admission in his guilty plea established the applicability of the mandatory minimum. The Court of Appeals disagreed, finding that a knowing and voluntary guilty plea to a charge with an attendant quality element subjects the defendant to any enhanced penalties associated with that quantity. Therefore, the district court was correct in its ruling that Mr. Roe’s guilty plea established the applicability of the mandatory minimum, and thus Mr. Roe’s claim that his trial counsel was ineffective for failing to object to the applicability of the twenty-year mandatory minimum sentence must fail. 

Mr. Roe also asserted in his original § 2255 motion that he specifically instructed his trial counsel to file a notice of appeal. Following an evidentiary hearing, trial counsel testified that an appeal had never been discussed, and Mr. Roe had never instructed him to file a notice of appeal. Mr. Roe then sought to amend his § 2255 motion to include a failure-to-consult claim, and argued that his conduct during representation should have led trial counsel to believe Mr. Roe was interested in filing an appeal. In support of this position, Mr. Roe asserted that the question of whether the PSR attributed too much cocaine to Mr. Roe and whether there was a sufficient factual basis for a guilty plea to the conspiracy count. The district court concluded that the failure-to-consult claim was a new theory, and therefore time-barred. In the alternative, the district court further rejected the failure-to-consult claim on the merits.

The Court of Appeals agreed with the district court, concluding that the failure-to-consult claim set out in the amended § 2255 motion was based on an entirely new theory that would have had to be pleaded discreetly and supported by separate, specific factual averments. Therefore, the failure-to-consult claim did not assert a claim that arose out of the conduct in the original pleading and thus did not relate back to the original pleading. The Court of Appeals therefore held that because the failure-to-consult claim did not relate back to the original pleading, and was filed well past the one-year statute of limitation period, the failure-to-consult claim was time-barred.

Tenth Circuit: District Court Erred in Treating Defendant’s Prior Convictions as “Violent Felonies” Under ACCA


The Tenth Circuit Court of Appeals issued its opinion in United States v. Bong on Monday, January 28, 2019.

Defendant Troy Bong was convicted of being a felon in possession of a firearm and sentenced to 293 months of imprisonment. Because Mr. Bong had prior Kansas state convictions for robbery and aggravated robbery, the district court found Mr. Bong was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). Mr. Bong filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255.

The district court granted a Certificate of Appealability (“COA”) on two of Mr. Bong’s grounds for relief, and denied Mr. Bong’s § 2255 motion. On appeal, the Court of Appeals granted a COA on two additional issues.

Mr. Bong first asserted that under Johnson v. United States, his prior convictions did not qualify as violent felonies, and he was therefore improperly sentenced under the ACCA. The district court rejected this argument, and concluded that the elements of robbery under Kansas law incorporated the physical force necessary to constitute a violent offense for purposes of the ACCA.

On appeal, the Court evaluated whether the Kansas robbery statute and the Kansas aggravated robbery statute have as an element the use, attempted use, or threated use of physical force against the person of another, and would thus be violent felonies for purposes of the ACCA. Citing to federal law, the Court of Appeals outlined the meaning of the ACCA’s elements clause as referring to the active, attempted, or threatened employment of violent force—force capable of causing physical pain or injury—against the person of another.

With respect to the Kansas robbery statute, the Court of Appeals first identified the minimum force required by Kansas law to constitute the crime of robbery. The Court found the Kansas state robbery statute may be violated with minimum actual force (i.e., a defendant may be convicted of robbery under Kansas law without using violence or the actual application of force to the person of another). The Court therefore held that the Kansas robbery statute does not qualify as a violent felony under the ACCA, and thus a conviction under the statute cannot serve as a predicate offense for purposes of the ACCA’s sentence enhancement provisions.

In evaluating the Kansas aggravated robbery statute, the Court found that the simple possession of a weapon, rather than the use of a weapon, is a sufficient means of being “armed” for purposes of a conviction under the statute. The Court noted that had the Kansas aggravated robbery statute required the use of a dangerous or deadly weapon, then a conviction under the statute would constitute a predicate offense under the ACCA. However, the Court found that merely being armed with a weapon during the course of a robbery is not sufficient to render the crime a violent crime for purposes of the ACCA.

The Court therefore held that Mr. Bong’s Kansas convictions for robbery and aggravated robbery did not constitute violent felonies for purposes of the ACCA. The Court therefore reversed the district court’s denial of Mr. Bong’s § 2255 motion, and remanded for further proceedings.

Mr. Bong next asserted that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The district court denied the claim. The Court of Appeals did not address the claim, having already concluded the district court erred in basing Mr. Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery convictions.

Mr. Bong also asserted his trial counsel was ineffective for failing to investigate the facts of the alleged crime. The district court rejected this claim, finding that Mr. Bong’s § 2255 motion failed to identify any material matters that trial counsel failed to investigate.

The Court of Appeals affirmed in part, finding that the district court properly rejected Mr. Bong’s allegation with one exception. While incarcerated, Mr. Bong allegedly discovered the existence of evidence in support of his argument that the firearm evidence was obtained in violation of his Fourth Amendment rights. The district court did not expressly address the claim in denying Mr. Bong’s § 2255 motion, concluding that it was a new claim and barred by the statute of limitations. The Court of Appeals reversed and remanded for further proceedings with respect to this issue, finding that in rejecting the claim as time-barred, the district court failed to consider the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Finally, Mr. Bong contended that the district court erred in dismissing his claim that the prosecution suppressed the evidence Mr. Bong discovered while incarcerated. The district court rejected this claim as time-barred. Citing again to the district court’s failure to consider that Mr. Bong’s § 2255 motion was filed within one year of Mr. Bong’s discovery of the existence of the evidence at issue, the Court of Appeals reversed and remanded for further consideration.


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: DUI Defendant Not Entitled to Have Jury Decide Existence of Prior Convictions for Sentence Enhancement

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

Criminal Law—Driving While under the Influence of Alcohol—Evidence—Impeachment—Direct Examination—Jury Instruction—Search Warrant—Prior DUI Convictions—Sentence Enhancer—Preponderance of the Evidence.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.

On appeal, Gwinn first contended that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE’s motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.

Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, “under the guise of impeachment” where no impeachment occurred. Because Officer Perez’s direct testimony that Gwinn’s speech “sounded normal” was contradicted by his previous statement in the sobriety examination report that Gwinn’s speech was “mumbled,” no error occurred when the trial court allowed impeachment with leading questions about a prior statement.

Gwinn next argued that the trial court erroneously admitted People’s Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn’s knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6).

Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer’s failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error.

Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution’s burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt.

The judgment was affirmed.

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: Criminal Mischief Included in First Degree Arson if Both Offenses Based on Same Conduct

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

Criminal Law—First Degree Arson—Criminal Mischief—Theft—Double Jeopardy—Merger—Lesser Included Offense.

Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage. Welborne was convicted of first degree arson, criminal mischief, theft, and attempted theft. The court of appeals previously rejected his challenges to his convictions based on Reyna-Abarca v. People, 2017 CO 15. After this decision, the Colorado Supreme Court clarified Reyna-Abarca and vacated the court’s judgment here as to the included offense statute and remanded this case.

On appeal, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. Criminal mischief is included in first degree arson where both offenses are based on the same conduct. Here, when Welborne knowingly burned the rented house without the owner’s consent, he committed both criminal mischief and first degree arson. The failure to merge the convictions was plain error.

The criminal mischief conviction and sentence were vacated. The judgment was affirmed in all other respects. The case was remanded for the trial court to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Convictions for Introducing and Possessing Contraband Should Have Merged at Sentencing

The Colorado Court of Appeals issued its opinion in People v. Jamison on Thursday, August 23, 2018.

Criminal Law—Jury Instructions—Lesser Nonincluded Offense—Evidence—Prosecutorial Misconduct—Merger—Double Jeopardy—Possessing Contraband—Introducing Contraband by Making.

Jamison was an inmate at a Department of Corrections detention facility. During a random search of his cell, a corrections officer found an altered toothbrush behind Jamison’s mattress. The toothbrush had been sharpened at one end and a razor blade had been affixed to the other end. Jamison was found guilty of introducing contraband in the first degree and possessing contraband in the first degree.

On appeal, Jamison contended that the trial court erred in refusing to instruct the jury on the two lesser nonincluded offenses, second degree introducing contraband and second degree possession of contraband. However, there was no evidence that the altered toothbrush could cut fence or wire, which was needed to convict Jamison of either second degree offense. Thus, the trial court did not abuse its discretion in rejecting the defense-tendered instructions on the lesser nonincluded offenses.

Jamison also argued that the trial court erred in permitting the prosecutor to refer to the toothbrush as a dangerous instrument and to elicit testimony to the same effect. Although the prosecutor’s pervasive references to the toothbrush as a dangerous instrument were largely improper, there was no basis for reversal because the evidence against Jamison was overwhelming.

Finally, Jamison contended that his convictions for introducing contraband in the first degree and possessing contraband in the first degree should have merged at sentencing. First degree possession of contraband is a lesser included offense of first degree introducing contraband by making, and the convictions should have merged. The trial court erred in entering convictions for both offenses.

The conviction for introducing contraband in the first degree was affirmed. The conviction for possessing contraband in the first degree was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Penalty Enhancer Applies to Any Conduct in Furtherance of Offense that Occurs in Close Proximity to Victim

The Colorado Court of Appeals issued its opinion in People v. Trejo Lopez on Thursday, August 23, 2018.

Criminal Law—Theft—At-Risk-Adult—Challenge for Cause—Jury—Presumption of Innocence—Sentence Enhancer.

Defendant and the 70-year-old victim had been neighbors in a mobile home park. While visiting the victim in his trailer, defendant asked to use the bathroom, took a gun that was hanging on the bathroom wall and put it into his backpack, and then left the premises. The jury convicted defendant of theft from an at-risk adult under C.R.S. § 18-6.5-103(5).

On appeal, defendant contended that the trial court erred when it denied his challenge for cause to prospective juror H.S. Defense counsel challenged H.S. for cause because she seemed confused about the presumption of innocence and expressed anti-gun views. H.S.’s comments about the presumption of innocence revealed confusion rather than evinced a bias or inability to follow and apply the law, and she was articulate in explaining her views. When she did not respond to the court’s final questions, it was reasonable for the court to conclude that she would follow the law. Thus, the trial court did not abuse its discretion in denying defendant’s challenge for cause to H.S.

Defendant also contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed any element or portion of the theft in the presence of the victim. Defendant argued that the theft was completed when he took possession of the gun in the bathroom and outside the presence of the victim. C.R.S. § 18-6.5-103 enhances the penalties for theft when any element or portion of the offense is committed in the presence of an at-risk person, which is any person 70 years of age or older. “Portion of the offense” means conduct taken in furtherance of the crime that occurs in temporal proximity to an element of the offense and is physically close to the victim. Here, immediately after taking possession of the gun, defendant left the bathroom and walked a few feet away from the victim as he left the trailer, and defendant spoke with the victim before leaving with the gun. Therefore, defendant committed a portion of the theft in the victim’s presence.

Defendant also argued that the trial court abused its discretion when it rejected his tendered jury instruction on “presence” and declined to issue an alternate instruction defining the term. Providing the jury with defendant’s instruction, which required proof of additional elements not found in the charged crime, would have been an inaccurate instruction. The trial court did not abuse its discretion.

The judgment was affirmed.

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: 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: Probationary DUI Sentence Inappropriate Where Defendant Convicted of a Felony

The Colorado Court of Appeals issued its opinion in People v. Coleman on Thursday, May 17, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Careless Driving—Department of Corrections—Probation—Miranda—Motion to Suppress—Prosecutorial Misconduct—Illegal Sentence.

Coleman was convicted of aggravated driving after revocation prohibited—driving under the influence (ADARP); driving under the influence (DUI)—third or subsequent alcohol related offense; and careless driving. The trial court sentenced him to concurrent terms of one year in the custody of the Department of Corrections (DOC) on the ADARP conviction; one year of jail and one year of additional jail, suspended subject to completion of four years of probation, on the DUI conviction; and 90 days in jail on the careless driving conviction.

On appeal, Coleman contended that the trial court erred in denying his motion to suppress. He argued that because he was in custody when he first said he wanted to be taken to bond out and had not yet been given a Miranda advisement, that statement should have been suppressed. However, Coleman was not in custody during the brief traffic stop for Miranda purposes. Therefore, it was not error to deny the motion to suppress.

Coleman next contended that the prosecutor’s comments in summation on his pre-arrest and post-arrest silence violated his constitutional right against self-incrimination. Because defense counsel opened the door on the subject, Coleman’s pre-arrest silence was at issue, and the prosecutor’s comment was not error. Additionally, although the prosecutor’s comment on Coleman’s post-arrest silence was error, it was brief and did not materially contribute to defendant’s conviction. Therefore, there was no reversible error for this comment.

Lastly, Coleman contended that his probationary sentence is illegal under the DUI sentencing statute, C.R.S. § 42-4-1307. C.R.S. § 42-4-1307(6) prohibits a trial court from imposing probation on a defendant sentenced to DOC custody where that defendant has been sentenced to prison on a felony. Because Coleman cannot be sentenced to both the custody of the DOC and probation, his sentence was improper.

The judgment of conviction was affirmed. The entire sentence was vacated and the case was remanded for resentencing.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Absent Statutorily Authorized Order Reserving Restitution, Final Judgment Finalizes Restitution Amount

The Colorado Supreme Court issued its opinion in People v. Belibi on Monday, April 9, 2018.

Sentencing—Restitution.

The People petitioned for review of the court of appeals’ judgment reversing the amended restitution order of the district court, which substantially increased Belibi’s restitution obligation after his judgment of conviction. See People v. Belibi, No. 14CA1239 (Colo. App. May 14, 2015). Following the acceptance of Belibi’s guilty plea, the imposition of a sentence to probation (including a stipulation to $4,728 restitution), and the entry of judgment, the district court amended its restitution order to require the  payment of an additional $302,022 in restitution. The court of appeals held that in the absence of anything in the court’s written or oral pronouncements reserving a final determination of the amount of restitution, the initial restitution order had become final  and could not be amended. The supreme court affirmed the judgment of the court of appeals. A judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution due, finalizes any specific amount already set. Therefore, the sentencing court lacked the power to increase restitution beyond the previously set amount of $4,728.

Summary provided courtesy of Colorado Lawyer.