Published Court Opinions for April 20

Editor’s note: Summaries are pulled from court opinions and edited for style, clarity and space.

Court Opinions for April 20
Colorado Court of Appeals

People v. Sifuentes
Hector Toby Sifuentes appealed the district court’s order denying his petition for postconviction relief under Crim. P. 35(c). Sifuentes claimed that the court erred by concluding that he did not show prejudice from his counsel’s erroneous advice about the immigration consequences of his guilty plea.
To address his claim, the Court of Appeals identified factors pertinent to the prejudice analysis in this context. Considering those factors, it agreed with Sifuentes, reversed the order, and remanded with directions.

People v. Wiseman
David William Wiseman was charged with acts committed between Aug. 31, 1999 and July 31, 2000, constituting sexual assault on a child under the age of 15 by one in a position of trust.
After a trial to a jury held in 2001, he was convicted of two counts of sexual assault on a child under the age of 15 by one in a position of trust, sexual assault on a child under the age of 15 by one in a position of trust – pattern of abuse, and sexual assault on a child under the age of 15 pattern of abuse.
A division of the Court of Appeals affirmed Wiseman’s convictions on direct appeal. In 2013, while Wiseman was incarcerated in the DOC, the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to forty-six years imprisonment.
The district court denied Wiseman’s motion to reconsider and vacated its order and the corresponding amended mittimus.
Wiseman appealed the district court’s order vacating his original sentence and imposing a new sentence. The Court of Appeals vacated the new sentence and remanded for resentencing.

People v. Butson
CRE 408 bars the admission at trial of settlement discussions, or offers to compromise a claim, when the evidence is offered to prove liability for, invalidity of, or amount of a disputed claim.
Brock Edward Butson was convicted of multiple counts of bank robbery and conspiracy to commit bank robbery. On appeal, he contended that his statements to police during a custodial interrogation constituted settlement negotiations, or an offer to compromise a claim. Thus, he argues, pursuant to Rule 408, his statements should have been excluded at trial.
The Court of Appeals concluded that, subject to certain exceptions, Rule 408 bars the admission in a criminal proceeding of statements made in connection with the settlement of a civil claim. As Butson acknowledged, his statements to police, even if construed as an offer to compromise, were made during discussions concerning criminal charges, not a civil claim.
Moreover, his statements, which he made to a government agent, would be admissible under an exception to the rule. The Court of Appeals therefore rejected Butson’s argument that the district court erred in denying his motion to suppress the statements.

In re the Marriage of Sylvia Dean, f/k/a Sylvia Cook, and Andre Cook
Sylvia Cook, now known as Sylvia Dean, and Andre Cook divorced in 2006. At that time, the court named Dean the primary residential parent for the parties’ two children but allowed the parties to determine their own “liberal parenting time” schedule.
Later, Dean moved to stop Cook’s parenting time, asserting that he had not seen the children in more than two years and had no interest in seeing them. Cook responded that mother had denied him parenting time, and he requested a more formal parenting time schedule.
Eventually the parties stipulated to, and the court adopted, a parenting time arrangement.
Cook later filed a verified motion and affidavit for contempt, requesting remedial contempt sanctions for mother’s noncompliance with two portions of their stipulation. A magistrate found Dean in remedial contempt and ordered her to pay Cook’s attorney fees. The magistrate further ordered that Dean could purge the contempt by allowing Cook to have the children during their 2014 Thanksgiving break.
Dean timely filed a C.R.M. 7 petition challenging the magistrate’s orders. The district court adopted the magistrate’s orders on review.
In this post-decree dissolution of marriage proceeding, Sylvia Cook, now known as Sylvia Dean, appealed the district court’s adoption of the magistrate’s finding of contempt and award of attorney fees in favor of Andre Cook.
The Court of Appeals affirmed in part, reversed in part and remanded for further proceedings.

People v. Perez
Jimmy Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury in exchange for the dismissal of additional charges.
After the court sentenced Perez, the prosecution requested restitution in the amount of $9,240, based on the victim missing 55 days of work after the accident. Perez objected to the prosecution’s restitution request.
At the restitution hearing, the prosecution submitted evidence that the victim made $21 an hour and that he typically worked an eight-hour day. For a portion of those missed work days, the victim was compensated by his employer through his use of vacation and sick leave. Perez argued that the victim did not lose wages for the period he expended vacation and sick leave, and while the expenditure of his leave was “a loss of some kind,” that loss was not compensable under the act.
Perez also argued that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing he was the proximate cause of the victim’s injury.
In a written order, the district court held that Perez was the proximate cause of the victim’s losses because his “construction of the restitution statute (was) entirely too narrow and ignored the broad meaning intended by the General Assembly when it tied a defendant’s restitution obligation to his overall criminal conduct and not the charges to which he has pled guilty.” The court also concluded that the reasonable value of the victim’s economic damages is based upon his hourly rate of approximately $21.00 per hour, multiplied by 40 hours per week for 12 weeks. . . . (T)he reasonable value of the paid time off which the  victim was required to exhaust because of (Perez’s) overall criminal conduct is $10,080.
Jimmy Perez appealed the district court’s restitution order. He contended that the court abused its discretion by ordering him to reimburse the victim $10,080 for expended vacation and sick days. Because the court concluded that used vacation and sick leave are pecuniary losses compensable to the victim under the Restitution Act, the Court of Appeals affirmed in part but remanded for reduction of the restitution award by $840 (representing an additional five working days ordered by the court but not supported by the record).

Owens v. Dominguez
After he was discharged from a recovery center for health issues, Dr. Arlen Owens hired Angela Dominguez as his private caregiver in 2010. Owens was diagnosed with “memory impairment” upon his release and returned home despite medical advice to move to assisted living. Owens died in July 2013.
After Owens’ death, his brother and only living heir, David Owens, filed a petition for informal probate of the decedent’s will and informal appointment of personal representative. He was then appointed the personal representative of the estate.
In March 2014, David Owens filed a petition for determination of testacy and for determination of heirs, alleging that the will that Arlen Owens had signed in July 2012 was the product of undue influence by Dominguez and that the decedent had lacked the capacity to execute the will. David Owens also filed a complaint for recovery of estate assets and asked that the court invalidate the will and order that the decedent’s estate be administered under intestate distribution statutes.
In March 2015, David Owens filed a petition to set aside nonprobate transfers. He contended that payable-on-death designations on three accounts, executed by the decedent with Dominguez as the beneficiary, should be set aside on the ground that Dominguez had exerted undue influence on the decedent, who had lacked the capacity to execute the POD designations. In response, Dominguez filed a motion to dismiss the petition to set aside the POD designations for lack of jurisdiction, arguing that the POD designations were nonprobate transfers not governed by the probate code. The district court denied Dominguez’s motion.
At the request of Owens and over Dominguez’s jurisdictional objections, the district court imposed a constructive trust over the three POD accounts at issue. Then in July 2015, the court held an evidentiary hearing on the issues of testamentary capacity and undue influence.
In a written order, the court found that the decedent had not had  the capacity to execute the POD designations and had been unduly influenced by Dominguez. However, it found that the decedent had had the testamentary capacity to execute his will and had not been unduly influenced by Dominguez in signing his will. After the court issued its final judgment, it issued a contempt order against Dominguez for violation of the constructive trust as it related to $140,000 from the State Farm Bank account. Dominguez objected on the grounds that the court did not have jurisdiction to impose the constructive trust. The court sentenced her to six months in county jail, with the condition that she could purge the contempt by making $50,000 monthly payments until she paid $140,000.

Gadash v. Estate of Paul Gadash
In this probate action, Lorella Gadash appealed the probate court’s orders barring her creditor’s claim for services rendered to her husband, Paul Gadash and denying her petition for spouse’s elective share in favor of the Estate of Paul Gadash, by and through its personal representative, Linda Rose.
The Court of Appeals concluded that Loretta Gadash failed to timely appeal the final order barring her creditor’s claim, and the probate court properly considered Paul and Loretta  Gadash’s second marital agreement in denying her petition for spouse’s elective share. Accordingly, the court dismissed the appeal in part and affirmed the order of the probate court.

Dolan v. Fire and Police
Pension Association
In this suit over firefighter occupational disability benefits, the Court of Appeals was asked to determine whether full-time employment as a fire chief precludes a firefighter from collecting occupational disability benefits because the position of fire chief directly involves “the provision of . . . fire protection” under the Policemen’s and Firemen’s Pension Reform Act. The court concluded that it does and, therefore, affirmed.­ •