July 19, 2019

Colorado Court of Appeals: List of Examples for Notice in Statute Not Exclusive

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

Unauthorized Use of a Financial Instrument—Notice—Theft—Consecutive Sentence—Concurrent Sentence—–Statutory Amendment.

Patton purchased over $8,000 worth of consumer electronics from Ultimate Electronics using a Wells Fargo debit card that was issued to him. The card was declined during the transaction, and Patton used a false override authorization code to force the sale. Ultimate Electronics then received a “charge-back” from Wells Fargo, meaning it was not paid for the purchase. At trial, a Wells Fargo representative testified that the card had been cancelled before the transaction when Patton called the bank and reported that he had neither received it nor made purchases on it. The representative also testified that the bank employee would have told Patton that the card was cancelled and the bank would not have given an override code for the card. Patton was convicted of unauthorized use of a financial instrument and theft. He received a sentence of six years for theft and a consecutive sentence of three years for unauthorized use of a financial instrument.

On appeal, Patton argued that the trial court erred by denying his motion for judgment of acquittal after the prosecution failed to prove that he received notice in person or in writing that the debit card had expired or had been revoked or cancelled. The unauthorized use of a financial instrument statute does not require notice only in person or in writing. There was sufficient evidence to support a conclusion beyond a reasonable doubt that Patton received notice by telephone that his card was cancelled, revoked, or expired.

Patton also contended that the court committed plain error by imposing consecutive sentences because his crimes were based on identical evidence. When a defendant is convicted of multiple crimes based on the same act or series of acts in the same criminal episode and the evidence supporting each conviction is identical, the sentence must be concurrent. Here, the use of the cancelled debit card for the purchases without payment was part of the theft. Because the convictions were supported by identical evidence, the statute required the trial court to impose concurrent rather than consecutive sentences.

Patton further argued that his sentence should be reduced based on a change in the theft statute. At the time of his offenses in 2009, the value of the items Patton stole constituted a class 4 felony. In 2013, the statute was amended to reduce the offense to a class 5 felony. Because Patton was sentenced in 2014, he was entitled to the benefit of the amended statute.

Patton finally contended that the court improperly entered a conviction for a class 4 felony against him without a finding of actual value by the jury, and that instead he should only be convicted of a class 1 misdemeanor. There was evidence at trial that Patton had stolen items exceeding $8,000 in value, and Patton did not contest the value. Therefore, the record supports the conviction.

The judgment of conviction was affirmed, the consecutive sentences were vacated, the felony theft sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Board of Immigration Appeals’ Interpretation of Crime of Child Neglect Too Broad

The Tenth Circuit Court of Appeals published its opinion in Ibarra v. Holder on Monday, July 1, 2013.

Elia Ibarra Rivas petitioned for review of a Board of Immigration Appeals decision that found her Colorado conviction for “child abuse – negligence – no injury” to categorically constitute a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i) of the Immigration and Nationality Act (INA). This finding resulted in her ineligibility for discretionary cancellation of removal. Her conviction apparently resulted from leaving her children with her mother while she was at work and the mother then leaving them alone. The oldest child was age 10 and no child was injured.

The BIA has interpreted “crime of child abuse, child neglect, or child abandonment” broadly to include criminally negligent omissions which endanger children by creating a reasonable probability of harm but which do not lead to injury. The Tenth Circuit agreed with Ms. Ibarra that this definition is an impermissible interpretation of the federal statute and that her conviction was not a “crime of child abuse, neglect, or abandonment” under any permissible interpretation of § 1227(a)(2)(E)(i).

The court reached this decision by looking at state laws in effect in 1996, the year Congress amended the INA to include crimes of child abuse, child neglect, or child abandonment as a basis for deportation. They found a majority of states did not criminalize such conduct when it was committed with only criminal negligence and no injury resulted. Therefore, her crime did not fit the generic federal definition and should not have prohibited her application for cancellation of removal.

The court reversed the BIA’s decision and remanded.