June 24, 2019

Colorado Court of Appeals: No Abuse of Discretion in Finding that DNA Evidence and Procedures Used by Expert Were Reliable

The Colorado Court of Appeals issued its opinion in People v. Tunis on August 2, 2012.

Sexual Assault—DNA Evidence—Jury—Sexually Violent Predator.

Defendant appealed from the judgment of conviction and sentence in this sexual assault case. The judgment and sentence were affirmed.

The victim was sexually assaulted in her home. Defendant ultimately was convicted of sexual assault and second-degree burglary, both class 3 felonies, and sentenced to the Department of Corrections for an indeterminate term of twelve years to life. His sentence included a determination that he qualified as a sexually violent predator.

Defendant contended that the Y Chromosome-Short Tandem Repeat (Y-STR) DNA evidence, which was admitted through expert testimony, was unreliable and, therefore, the trial court erred by admitting it. The analyst who conducted the testing and testified about it was properly qualified and admitted as an expert in forensic DNA analysis. The analyst testified that she used a generally accepted scientific metric for conducting the Y-STR analysis. The Court of Appeals concluded that the trial court did not abuse its discretion in finding that the exclusion statistics and the sample size of DNA that the expert used were reliable. Therefore, the trial court did not abuse its discretion in admitting this evidence.

Defendant also contended that the trial court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to show that the remaining jurors were unfair or biased, or that he was prejudiced by the dismissal and replacement of the juror. Therefore, the court’s decision to replace the sleeping juror was not an abuse of discretion.

Finally, defendant contended that the trial court erred by determining he was a sexually violent predator within the meaning of CRS § 18-3-414.5(1)(a)(III). The court concluded that defendant was a sexually violent predator because he promoted a relationship with the victim primarily for the purpose of sexual victimization. Further, defendant threatened the victim in an effort to keep her quiet during the assault, pulled her hair, and repeatedly forced her head into a position from which she could not see him during the assault. Thus, the evidence at trial supports the court’s conclusion. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Prohibitions on Sexual Contact and Possessing Pornography Reasonably Related to Rehabilitation and Purposes of Probation

The Colorado Court of Appeals issued its opinion in People v. Lientz on July 19, 2012.

Probation—Revocation—Sexual Exploitation of a Child—Sexual Assault—Unconstitutional—Due Process—Aggravated Sentencing.

Defendant appealed the district court’s order revoking his probation and the sentences imposed. The order was affirmed, the sentences were vacated, and the case was remanded.

Defendant pleaded guilty in Case No. 01CR1323 to two counts of sexual exploitation of a child and one count of sexual assault on a child by one in a position of trust. Defendant also pleaded guilty in Case No. 01CR1348 to sexual exploitation of a child. Defendant’s probation was revoked for failing to comply with the requirements of his probation, and the court sentenced defendant to two concurrent indeterminate terms of fifteen years to life imprisonment in the custody of the Department of Corrections (DOC).

Defendant contended that the district court committed plain error in failing to conclude at the probation revocation hearing that two of the probation conditions he violated—the conditions prohibiting sexual contact without prior approval and possessing pornography—are not statutorily or constitutionally authorized. By possessing pornography and engaging in sexual relationships plainly relate to sex, defendant committed sex crimes, and the testimony of defendant’s treatment provider and probation officer supported these conditions. Accordingly, the district court did not commit error by failing to conclude that the two challenged probation conditions were not reasonably related to defendant’s rehabilitation and the purposes of probation under CRS § 18-1.3-204(2)(a)(XV). Further, defendant failed to assert any facts to support his claim that the challenged conditions violated his constitutional rights to liberty, privacy, and freedom of association, nor did he present any argument to show that the prohibition of possession of pornography was unconstitutionally overbroad. Finally, the probation requirements prohibiting “sexual contact” and “possession of pornography” were not unconstitutionally vague.

Defendant also contended that the district court violated his right to due process by not stating the reasons for revoking his probation or citing the evidence on which the court relied. However, the court specifically cited the evidence it relied on—the testimony of defendant’s probation officer and his treatment provider. Although lacking specificity, the court’s findings were sufficient under these circumstances because the evidence was uncontroverted. Accordingly, the court did not violate defendant’s right to due process.

Defendant further argued, the People conceded, and the Court of Appeals agreed that the sentences must be vacated and the case remanded for resentencing because the district court imposed aggravated sentences without making the necessary findings under CRS § 18-1.3-401(6) and (7). Therefore, the sentences were vacated and the case was remanded to the court to determine whether aggravated sentencing was appropriate.

Summary and full case available here.

Colorado Court of Appeals: Abuse of Discretion in Denying Petition to Discontinue Registration as Sex Offender

The Colorado Court of Appeals issued its decision in People v. Carbajal on July 5, 2012.

Sex Offender Registration—Deferred Judgment—Dismissal.

Defendant appealed the trial court’s order denying his petition to discontinue sex offender registration. The order was reversed and the case was remanded to the trial court with directions to grant defendant’s petition.

On August 30, 2001, defendant entered guilty pleas in several cases, including a charge of second-degree sexual assault in this case, and the trial court imposed a deferred judgment with four years’ supervision to run consecutively to the prison term in a Montrose case for drug possession and bail violation. Defendant’s parole in the Montrose case subsequently was revoked, and he returned to prison. The People filed a petition to revoke defendant’s deferred judgment in this case, and as a result, the court extended defendant’s deferred judgment to July 2010. The Supreme Court later issued a decision dismissing defendant’s case entirely, finding that the trial court exceeded its jurisdiction in extending the deferred judgment. The trial court subsequently denied defendant’s petition to discontinue sex offender registration because defendant failed to complete sex offender treatment, failed to pay restitution, and later was convicted of trespass.

On appeal, defendant argued that the trial court erred in denying his petition to discontinue sex offender registration. When defendant’s deferred judgment terminated as a matter of law on August 30, 2005, four years after defendant’s guilty plea, the court implicitly found that all of the probationary obligations associated with the deferred judgment also ended, including the requirement to complete sex offender treatment and to pay restitution. Accordingly, to hold defendant responsible for fulfilling conditions that he no longer was legally obligated to complete was an abuse of discretion by the trial court. Therefore, the trial court abused its discretion in denying defendant’s petition for an order to discontinue the requirement that he register as a sex offender.

Summary and full case available here.

Colorado Court of Appeals: Sexual Assault Nurse Examination Proximately Caused by Defendant’s Conduct and Cost Should Have Been Included in Restitution Order

The Colorado Court of Appeals issued its decision in People v. Montanez on June 21, 2012.

Restitution Order—Sexual Assault Nurse Examiner Evaluation.

The prosecution appealed from the district court’s restitution order against defendant. The order was affirmed in part and reversed in part, and the case was remanded.

Defendant was discovered having sexual intercourse with a 14-year-old girl by the girl’s mother and brother; defendant was 19 years old at the time. The mother contacted the authorities, and defendant was arrested. The following day, the mother decided on her own to take the child to the hospital to be examined. A sexual assault nurse examiner (SANE) evaluated the child for any injuries, gave her antibiotics and a pregnancy test, and discussed safe sexual practices with her. Defendant pleaded guilty to sexual assault on a child in exchange for the dismissal of the more serious class 3 felony charge. The district court included the costs of the antibiotics and the pregnancy test in the restitution order but declined to include the cost of the SANE examination.

On appeal, the prosecution contended that the district court erred in denying its request to include the cost of the SANE examination in the restitution order. The statutes require full compensation of a “victim’s” pecuniary losses. Here, law enforcement did not request the SANE examination, so they are not responsible for payment to the hospital. The child and her mother are “victims” for restitution purposes. Additionally, the hospital is a victim, because it had a contractual relationship with the mother. Because the cost of the SANE examination was proximately caused by defendant’s conduct, the cost of the SANE examination should have been included in the restitution order.

Summary and full case available here.

Colorado Supreme Court: Evidence of Specific Instances of Victim’s Previous Sexual Activity Properly Excluded

The Colorado Supreme Court issued its opinion in Pierson v. People on June 18, 2012.

Rape Shield Statute—Relevancy of Evidence.

Defendant sought review of the court of appeals’ judgment affirming his various convictions of felony sexual assault on a child and indecent exposure. The district court denied defendant’s pre-trial motion to admit evidence of the child’s similar victimization by a teenage cousin during the same time period. The court of appeals upheld the trial court’s ruling, finding that the proffered evidence of prior sexual contact did not fall within the rape shield exception for the source of semen, pregnancy, disease, or similar evidence of sexual intercourse, and that it was not relevant for any of the other purposes offered by defendant.

The Supreme Court affirmed the judgment of the court of appeals. The Court found that the proffered evidence amounted to evidence of specific instances of the victim’s previous sexual activity, which was neither included within the exception for alternate sources of semen, pregnancy, disease, or similar evidence, nor otherwise sufficiently probative as an alternate explanation for the victim’s sexual knowledge or pain. Therefore, the trial court did not abuse its discretion in excluding the proffered evidence.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Did Not Err by Instructing the Jury on Other Theories of Liability Listed in Sexual Exploitation Statute

The Colorado Court of Appeals issued its opinion in People v. Rowe on June 7, 2012.

Child Pornography—Sexual Exploitation—Theories of Liability—Evidence—Closing Argument—CRE 404(b).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual exploitation of a child. The judgment was affirmed.

Defendant’s computer revealed pictures and videos depicting child pornography. Defendant contended that the trial evidence was insufficient to prove that he committed sexual exploitation of a child. A defendant “offers” sexually exploitative material by making it available or accessible to others. Here, defendant knowingly stored files containing sexually exploitative material in a shared folder on a peer-to-peer sharing network on his computer. Such conduct constitutes an offer of sexually exploitative material proscribed by CRS § 18-6-403(3)(b).

Defendant contended that the trial court erred by instructing the jury on other theories of liability listed in the sexual exploitation statute. The evidence provided a sufficient factual basis to support his conviction under the theory that he offered sexually exploitative material. Therefore, it was not error to argue other theories even though they were not supported by sufficient evidence.

Defendant argued that reversal was required because the prosecutor’s remarks in closing argument improperly stated the law. Read in context, the prosecutor’s remarks stressed that defendant offered the files and promoted them. Because the evidence was sufficient to prove that defendant offered sexually exploitative material, any of the prosecutor’s statements regarding the term “promotes” did not materially contribute to his conviction.

Defendant next contended that the trial court erred in admitting other acts evidence under CRE 404(b). Testimony of a police officer involving a prior incident where defendant admitted to watching and enjoying child pornography was properly used to prove the issues of intent and motive. Specifically, it was used to rebut any assertion by defendant that there was a mistake of fact or that he did not like child pornography. The trial court also admitted 100 images of animated child pornography found on his computer during the search in this case. This evidence was properly admitted to show lack of mistake of fact, intent, and motive. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, and the Court gave a limiting instruction to the jury. Therefore, the trial court did not err in admitting this evidence.

Summary and full case available here.

Colorado Court of Appeals: Harmless Error to Mention Defense Attorney’s Gender During Closing Arguments in Sex Assault Cases

The Colorado Court of Appeals issued its opinion in People v. Garcia on May 10, 2012.

Sexual Assault—Prosecutorial Misconduct—Closing Argument—Motion to Sever—Insufficient Evidence—Sentence Enhancer—Jury Instructions.

Defendant Jamie Garcia appealed the judgments and sentences entered on jury verdicts convicting him of three counts of sexual assault (victim incapable of appraising); three counts of sexual assault (victim physically helpless); second-degree burglary; and third-degree assault. The Court of Appeals affirmed the judgment in part and vacated it in part, and remanded the case for resentencing and correction of the two mittimuses.

Between October 2002 and January 2004, five women alleged that Garcia committed sexual misconduct against them while they were intoxicated or drugged. The joinder of cases and the consolidation of offenses against separate victims in a single trial were a basis for this appeal.

Garcia contended that the prosecutor committed misconduct twice during closing argument. Although a prosecutor may not argue that a defendant in a sexual assault case unfairly seeks to bolster his case by using his female attorney to blame the female victims for the defendant’s conduct, such argument was not reversible error in this case. Additionally, although the prosecutor implied that the jury could consider Garcia’s propensity for committing sexual misconduct based on the other acts evidence, any error was harmless, because the court properly instructed the jury not to consider the evidence of one charge as propensity evidence for the other charges.

Garcia claimed that the trial court abused its discretion in denying his motion to sever the charges into separate trials under Crim.P. 14. He did not show, however, that he was prejudiced by the trial court’s refusal to sever charges.

Garcia also claimed that insufficient evidence supported the jury’s finding that he was guilty of a sentence enhancer for his conviction of assault against J.M. However, based on J.M.’s testimony, there was sufficient evidence for the jury to find that J.M. did not know or expect that taking the pill defendant gave her would render her unconscious and disoriented.

Garcia contended that the trial court committed plain error in instructing the jury on the charges of sexual assault. The Court determined that the instruction closely tracked the language of the statute and mirrored the pattern jury instruction; therefore, the trial court did not commit plain error.

Garcia further contended that the trial court erred in sentencing him because (1) the mittimus incorrectly reflected that he was convicted of the CRS § 18-3-402(4)(d) sentence enhancer; and (2) his two sexual assault convictions for the victims V.J., B.J.W., and J.M. were based on identical acts and offenses and should have merged. Garcia’s convictions of sexual assault (victim incapable) against V.J. and B.J.W. were vacated because they were not based on distinct acts and therefore merge with his convictions for sexual assault (victim physically helpless), class 3 felonies. In contrast, the record established that Garcia sexually penetrated J.M. on two occasions while she was nearly unconscious. Because the record supported two distinct acts against J.M., the Court affirmed Garcia’s two related convictions of sexual assault.

Summary and full case available here.

Colorado Court of Appeals: Habitual Criminal Charges Are Sentence Enhancers, Not Offenses; Not Subject to Speedy Trial Deadline

The Colorado Court of Appeals issued its opinion in People v. Green on April 26, 2012.

Trespass—Jury Instruction—Possessory Rights—Habitual Criminal Charges—Speedy Trial—Extended Proportionality Review.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed his sentence on that conviction and his adjudication and sentencing as a habitual criminal. The judgment and sentence were affirmed.

Defendant traveled from Colorado Springs to Denver to visit the victim, with whom he had an intimate relationship. After spending several hours at the victim’s house, defendant and D.H., a friend of the victim, accompanied the victim to the restaurant where she worked. While there, defendant and the victim had a physical altercation, after which the victim told defendantnever to talk to her again. Defendant left the restaurant. Later, D.H. also left the restaurant and went to the victim’s house.

After the victim returned home from work, she drove D.H. to his girlfriend’s house. She returned to her house around 3:45 a.m. After she undressed, defendant emerged from her living room and approached her, asking to talk to her. She told him to get out of her house and called 911. After defendant left, the victim discovered that the window screen in her son’s bedroom had been broken.

The People charged defendant with second-degree burglary, first-degree criminal trespass, third-degree assault, unlawful sexual contact, criminal mischief, harassment, and three habitual criminal counts. The People later added a criminal impersonation count, to which defendant pleaded guilty before trial. A jury found defendant guilty of first-degree criminal trespass, but acquitted him of the other charges. After several hearings, the district court adjudicated defendant a habitual criminal and sentenced him to twelve years in the custody of the Department of Corrections for the trespass conviction, plus two years mandatory parole, and six years in prison for the criminal impersonation conviction, to be served concurrently with the twelve-year sentence.

On appeal, defendant contended that the district court erred by twice refusing to give a jury instruction saying that a person who has possessory rights in or occupies a premises may authorize another person to enter. Because there was no evidence that D.H. had let the defendant into the victim’s house, the district court did not err by refusing to give the requested instruction. Furthermore, the instructions given by the court adequately explained to the jury that if defendant had been invited into the house, he could not be guilty of unlawful entry.

Defendant also contended that the district court erred by failing to dismiss the habitual criminal charges because the court set the first habitual criminal hearing beyond his speedy trial deadline. Habitual criminal charges are sentence enhancers and not offenses. Therefore, they are not subject to the speedy trial deadline set forth in CRS §18-1-405(1), and the district court did not err by refusing to dismiss the habitual criminal charges. Further, the district court’s sentencing of defendant did not violate his constitutional right to a speedy trial and defendant was not entitled to a jury trial on the habitual criminal charges.

Defendant further contended that the district court erred by failing to conduct an extended proportionality review of his sentence. The court need only conduct an extended proportionality review when the abbreviated proportionality review gives rise to an inference of gross disproportionality. Defendant’s three prior felonies were a 1997 Texas conviction for indecency with a child, and two Texas convictions for failure to register as a sex offender (predicated on the indecency conviction). Sexual offenses committed against children are considered grave or serious in Colorado. The district court also properly concluded that defendant’s trespass conviction was grave or serious, given the circumstances of the trespass. For this reason and because defendant had not raised an inference of gross disproportionality, the court did not err by failing to sentence him to twelve years on this class 5 felony or to conduct an extended proportionality review of his sentence.

Summary and full case available here.

HB 12-1346: Establishing Registration Requirements for Sex Offenders Who Do Not Have a Fixed Residence

On April 13, 2012, Rep. Bob Gardner introduced HB 12-1346 – Concerning Sex Offender Registration. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, sex offenders must register based on their residence. The bill would create a registration system for offenders who lack a fixed residence. An offender who registers under “lacks a fixed residence,” which the bill defines, must verify his or her registration with the registering agency every three months or every month, depending on the offender’s registration requirements. Failure to do so is an unclassified misdemeanor. Law enforcement agencies that receive registrations that include a lack of a fixed residence must report semi-annually the number of such registrations to the department of public safety for two years. The department of public safety must assess the effectiveness of the program after two years.

The bill clarifies the calculation for the timing of sex offender quarterly registration. Assigned to the Judiciary Committee; the bill is set for committee review on Tuesday, April 24 at 1:30 p.m.

Since this summary, the bill was amended by the Judiciary Committee and referred to the House Committee of the Whole. Second reading in the House was laid over until April 27.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Insufficient Evidence Supporting Conviction for Internet Luring and Sexual Exploitation of Child; Sufficient Evidence for Solicitation

The Colorado Court of Appeals issued its opinion in People v. Douglas on April 12, 2012.

Attempted Sexual Assaulton a Child—Enticement and Solicitation—Internet Luring and Sexual Exploitation—Evidence—Intent and Motive—Expert or Lay Witness Testimony—Prosecutorial Misconduct—Consecutive Sentences.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted sexual assault on a child, enticement of a child, Internet luring of a child, Internet sexual exploitation of a child, and solicitation to commit sexual assault on a child by one in a position of trust. He also appealed his sentence. The judgment was affirmed in part and vacated in part, and the sentence was affirmed.

Defendant and “Marsha” (mother), who actually was an undercover officer, communicated over the Internet and telephone and via text message regarding defendant’s desire to come to Colorado to establish a sexual relationship with her and her 9-year-old daughter. Defendant arranged to travel to Colorado, and he was arrested when he arrived.

Defendant contended that the convictions for (1) Internet luring of a child; (2) Internet sexual exploitation of a child; (3) enticement of a child; and (4) solicitation must be vacated because the prosecution failed to present sufficient evidence to prove the elements of each offense beyond a reasonable doubt. There was insufficient evidence supporting defendant’s convictions for Internet luring of a child and Internet sexual exploitation of a child because there was no evidence that defendant himself committed the crimes or that he acted as an accomplice to a principal who committed the crimes. As to the solicitation charge, the prosecution was not required to prove that defendant communicated directly with the child; communication with mother as an adult intermediary was sufficient. Further, one may be guilty of enticement by inviting or persuading a child to enter a room within the child’s home with the proscribed intent. Finally, there was sufficient evidence to find defendant guilty of solicitation under the theory that he attempted to persuade mother to act as his accomplice in his commission of sexual assault on a child by one in a position of trust.

Defendant also contended that the trial court erred in admitting evidence of other similar acts and alleged child pornography. This evidence, however, was properly admitted to show intent and motive.

Defendant also argued that the trial court erred in permitting the undercover officer to present expert testimony in the guise of lay witness testimony. The undercover officer’s interpretation of her conversations with defendant did not depend on her specialized skills and training as a police officer. Therefore, any error was harmless.

Defendant further contended that prosecutorial misconduct required reversal. The court instructed the jury not to consider the prosecution’s characterization of the photographs as “child pornography,” and the jury was permitted to see the actual photos to make this determination themselves. Additionally, the prosecutor’s use of the term “grooming” was not improper. Therefore, any error on these issues was harmless.

Defendant also contended that the court erred in imposing consecutive sentences on the enticement and solicitation counts. The court did not abuse its discretion in imposing consecutive sentences in this matter. First, the evidence supporting each count was not identical. Second, the two crimes did not “arise out of the same incident,” because the communications between defendant and mother took place over a period of ten days. Finally, the attempted conviction is not a lesser-included offense of the solicitation conviction.

Summary and full case available here.

HB 12-1310: Criminal Procedure Omnibus Bill – Makes Numerous Changes to Statutes on Sentencing, Court Procedure, and Specific Offenses

On February 20, 2012, Rep. Bob Gardner and Sen. Morgan Carroll introduced HB 12-1310 – Concerning Changes to Statutory Provisions Relating to Criminal Proceedings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This is an omnibus bill that makes changes to numerous procedural criminal law statutes.

The bill creates standards and a procedure for the admissibility of commercial packages for evidence.

The bill defines “earnings” for garnishment purposes to collect court fines, fees, costs, restitution, and surcharges. When a garnishment is ordered to collect court fines, fees, costs, restitution, and surcharges, it has priority over all other orders except those for child support, maintenance, or a previous garnishment related to court assessments.

Under current law, the judicial department makes an annual report regarding the state’s pretrial services programs. The bill expands the information that would be included in the report.

Under current law, a surety must consent to the continuation of bond after the defendant pleads guilty. The bill allows a surety to indicate on the initial bond documents whether the surety consents to continuation of the bond after a guilty plea. If the surety does not indicate consent in the initial documents, it may still consent at the time of the plea or within a reasonable time thereafter.

Under current law, a witness to a grand jury proceeding is given notice of his or her rights. The bill clarifies that the witness has a right to have a court appoint an attorney for him or her, but that the witness may not consult with the public defender.

The bill gives a party the right to have the court impanel an alternate juror if the case involves a class 1, 2, or 3 felony or a felony listed under the victim’s rights provisions.

Under current law, a presentence report for each offense committed by a sex offender must contain a sex-offender evaluation if one has not been completed in the last six months. The bill extends that timeline to two years. A sex offender evaluation would not have to be done if the new offense is a traffic misdemeanor or if the history of sex offending was a juvenile misdemeanor offense, unless the court requires the sex-offender evaluation.

Under current law, when a defendant defaults on a restitution order, the collection investigator must ask the clerk of the court to issue an attachment of earnings. The bill would allow the collection investigator to issue the attachment.

Under current law, a deferred judgment may last up to four years from the date of the plea for a felony. The bill changes the calculation from the date of the plea if no presentence report is ordered or to the date when the court considers the presentence report. The deferred period maybe extended for an additional two years if the deferred judgment is for a sex offense and good cause is shown. The bill extends the time period for a juvenile deferral of adjudication for a sex offense from one year to two years with the opportunity to extend it up to five years with good cause shown.

Under current law, when a person is convicted of a third felony, he or she is not eligible for probation unless the district attorney consents. The bill clarifies that a plea to a deferred judgment and sentence does not become a conviction until the deferred judgment and sentence is revoked.

The bill clarifies that the court cannot charge a probationer for the costs of returning the probationer to Colorado. If a probationer applies to transfer his or her probation to another state, the probationer must pay a $100 filing fee that is deposited into a fund to cover the costs associated with returning probationers to Colorado.

Under current law, a court may convert a determinate sentence to an indeterminate sentence for certain crimes related to child prostitution and child pornography. The bill repeals that authority.

The bill clarifies what “under color of his or her official authority” means as it relates to a peace officer.

The bill clarifies the record-sealing rights of a person convicted of minor in possession of alcohol.

Under current law, the interest earned by the money in the sex offender surcharge fund is deposited into the general fund. The bill allows the interest to remain in the fund.

Under current law, if a sentencing juvenile court deviates from the recommendation of the placement report, the court must make specific findings and record for the decision. The bill eliminates this requirement.

Under current law there is a crime of converting trust funds and the penalties correspond to the amount of money converted. The bill clarifies that adjustments to trust funds based on simple accounting errors is not a crime. The bill changes the penalties and amounts to correspond to the penalties and amounts for theft.

Under current law, the court must sentence a person who is convicted of a second, third, or subsequent DUI to probation in order to complete certain court-ordered programs and treatment. Under the bill, if the defendant is sentenced to the department of corrections, the court does not sentence the defendant to probation and the defendant must complete the court-ordered programs and treatment while on parole.

On March 8, the Judiciary Committee amended the bill and referred it to the Finance Committee. On March 21, the Finance Committee referred the bill to the Appropriations Committee. The bill is scheduled to go before the Appropriations Committee on Tuesday, April 10 at 7:30 a.m.

Since this summary, the bill was amended in the Appropriations Committee and referred to the House Committee of the Whole.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Withdrawal of Guilty Pleas Requires Fair and Just Reason Showing Denial Would Subvert Justice; Court Appropriately Classified Defendant as Sex Offender

The Colorado Court of Appeals issued its opinion in People v. Boling on April 29, 2011.

Sex Offender—Withdrawal of Guilty Plea.

Defendant appealed the trial court’s orders denying his motion to withdraw his guilty pleas and classifying him as a sex offender. The orders were affirmed.

As part of a plea agreement, defendant pleaded guilty to theft and menacing. Prior to sentencing, defendant moved to withdraw his guilty pleas. The trial court denied the motion and proceeded to sentencing. Over defendant’s objection, the court determined that defendant was a sex offender, ordered a sex offender evaluation, and ordered sex offender treatment and supervision as a condition of probation. Defendant appealed.

Defendant argued it was error to deny his motion to withdraw his guilty pleas. The Court of Appeals disagreed. A plea can be withdrawn “if a defendant makes a showing that denial of the request will subvert justice.” The defendant has the burden to show a fair and just reason for withdrawal of a plea. Here, defendant asserted ineffective assistance of counsel. The trial court appointed alternate defense counsel to pursue defendant’s claims, after which counsel informed the trial court there was no legal basis for withdrawal. The Court noted that in the plea documents and transcript of the providency hearing, defendant expressed complete satisfaction with counsel’s representation. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion.

Defendant also argued it was error for the trial court to determine he is a sex offender. The probation department requested a sex offender evaluation because defendant had a prior deferred sentence for sexual assault on a child. Defendant objected, contending it was a juvenile adjudication resulting in a deferred sentence that was successfully completed and dismissed, so there was no underlying conviction that would trigger the controlling statute. He argued that CRS § 16-11.7-102(2)(a)(IV) was the applicable provision and that it expressly applies only to adjudications dated on or after July 1, 2002. His adjudication occurred in 1989. The Court disagreed, holding that defendant is a sex offender under CRS § 16-11.7-102(2)(a)(II) based on his commission of the instant offense after July 1, 1994 in conjunction with his history of a sex offense. Accordingly, there was no error. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.