Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Patrick Bice pleaded guilty to conspiring to sell or distribute more than 112 grams of methamphetamine, a level 1 drug felony under section Colorado Revised Statute 18-18-405(1) and (2)(a)(I)(B). He stipulated a sentence of 20 years in the custody of the Department of Corrections, and the district court sentenced him accordingly. The mittimus reflects the conviction under section 18-18-405(1) and the level 1 drug felony classification under section 18-18-405(2)(a)(I)(B), the opinion noted.
Two years later, Bice filed a pro se motion to correct an illegal sentence under Criminal Procedure 35(a). He argued his offense should have been classified as a level 2 drug felony, instead of a level 1 drug felony, under section 18-2-206(7)(a).
That statute provides: “Except as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony; conspiracy to commit a level 2 drug felony is a level 3 drug felony; conspiracy to commit a level 3 drug felony is a level 4 drug felony; and conspiracy to commit a level 4 drug felony is a level 4 drug felony.”
The prosecution, while maintaining the sentence was appropriate under section 18-18-405(1), noted the district court had previously accepted Bice’s argument in another case and therefore asked the court to “correct the putatively illegal sentence.”
The district court appointed counsel, who filed a supplemental motion reiterating that, because Bice was convicted of conspiring to distribute methamphetamine, his offense should have been treated as a level 2 drug felony under section 18-2-206(7)(a), the opinion added. The prosecution responded this time by opposing the motion on the ground that section 18-18-405 is an exception to section 18-2-206(7)(a).
The district court initially granted the motion. Although the court acknowledged section 18-18-405(1) and (2)(a)(I)(B) could be read as creating an exception to section 18-2-206(7)(a), it concluded such a construction would render the latter a nullity “because a conspiracy to commit a [level] 1 drug felony would never be sentenced as a [level] 2 drug felony under this interpretation.”
Six months later, the court sua sponte reversed course, vacated its prior order, and denied Bice’s motion. The court explained it had identified other level 1 drug felonies that, if charged as a conspiracy, would be reduced to level 2 drug felonies under section 18-2-206(7)(a). It concluded the two statutes could be read harmoniously and Bice’s sentence was legal.
Bice conceded his offense was designated as a level 1 drug felony under section 18-18-405(2)(a)(I)(B). But he contended this designation conflicts with section 18-2-206(7)(a)’s directive that “[e]xcept as otherwise provided by law, conspiracy to commit a level 1 drug felony is a level 2 drug felony.” His argument goes like this: selling or distributing more than 112 grams of methamphetamine is a level 1 drug felony; so under section 18-2-206(7)(a), conspiring to do so must be deemed a level 2 drug felony. He further argued this conflict must be resolved in his favor, making his sentence for a level 1 drug felony illegal.
The Colorado Court of Appeals disagreed. Because conspiring to distribute a controlled substance is, under the circumstances of this case, itself a level 1 drug felony, section 18-2-206(7)(a) does not apply, the opinion noted. Seeing no conflict, the Colorado Court of Appeals concluded when a defendant is convicted of conspiring under section 18-18-405(1)(a), the offense classifications in section 18-18-405(2) — not section 18-2-206(7)(a) — control.
The order was unanimously affirmed.
Far Horizons Farm, LLC v. Flying Dutchman Condominium Association Inc.
As an owner of a unit in the Flying Dutchman Condominiums, Far Horizons Farm, LLC is entitled under the recorded condominium declaration to “[t]he exclusive right to use one parking space” to be “reasonably designate[d]” by the Flying Dutchman Condominium Association, Inc. (the UOA – unit owners’ association). Far Horizons demanded the UOA designate such a space for its unit. The UOA ignored that demand.
Far Horizons sued the UOA. It asserted claims for declaratory relief/quiet title and breach of the declaration. The district court granted summary judgment in Far Horizons’ favor on its declaratory relief claim, concluding “the Declaration provides each unit owner the right to the use of a particular parking space to [the] exclusion of any other person.” The court then ordered the UOA to designate a spot for Far Horizons’ unit no later than a specified date.
Far Horizons’ breach of the declaration claim was tried by a jury. The opinion added the jury found the UOA hadn’t breached the declaration.
According to the opinion, the UOA designated a parking spot for Far Horizons’ unit that was relatively far from that unit and located under a basketball hoop. The UOA then moved the space a few feet to the right of the basketball hoop. Far Horizons asserted the designation of the parking spot didn’t comply with the court’s declaratory judgment. After taking additional evidence, the court found the location of the spot isn’t unreasonable but, as originally located and as moved, it isn’t exclusive because of its proximity to the basketball hoop. The court ordered the UOA to take certain steps to render the spot exclusive.
After the jury ruled in its favor on the breach of the declaration claim, the UOA filed a motion for an award of attorney fees incurred in defending against that claim under section 38- 33.3-123 of the Colorado Common Interest Ownership Act. It also filed a motion for an award of costs, invoking the offer of settlement statute and the other more generally applicable costs award provisions.
As to the UOA’s motion for an award of attorney fees, Far Horizons responded that consideration of such an award was premature because the current version of section 38-33.3-123(1)(c) requires a party prevail in the litigation as a whole to receive such an award and the court had not yet entered a final judgment. Far Horizons argued it was the prevailing party because it had received much of the relief it had requested. As to the UOA’s motion for an award of costs, Far Horizons responded the UOA’s offer didn’t qualify under the offer of settlement statute because it included a nonmonetary condition and Far Horizons had recovered more than the UOA had offered.
After the court determined whether the space the UOA designated was reasonable and exclusive, it ruled on the UOA’s attorney fees and costs motions. It concluded, “Undoubtedly, [Far Horizons] is the prevailing party in this litigation. . . . [Far Horizons] initiated this litigation to obtain an individually assigned parking spot[,] and at the conclusion of this case . . . [Far Horizons] obtained that spot. Therefore, [Far Horizons] is the prevailing party in the suit as a whole . . . .” But, citing Giguere v. SJS Family Enterprises, Ltd., the court also ruled it had to award attorney fees under section 38-33.3- 123(1)(c) of CCIOA by determining the prevailing party on a claim-by-claim basis. After determining Far Horizons prevailed on the declaratory relief claim and the UOA prevailed on the breach of the declaration claim, it awarded attorney fees to both parties accordingly. The court awarded Far Horizons its costs incurred before the UOA submitted its offer of settlement and awarded the UOA its costs incurred after it submitted its offer of settlement.
The parties then provided the court with documentation to support their respective requested amounts of attorney fees and costs. Far Horizons claimed $41,670.50 in attorney fees and $1,176 in costs. The UOA claimed $7,023.10 in attorney fees and $2,860.26 in costs, the opinion noted.
The court awarded Far Horizons $22,279 for attorney fees and $1,176 for costs and awarded the UOA $7,023.10 for attorney fees and $2,580.69 for costs. The court then offset the respective amounts of attorney fees and costs and entered judgment in Far Horizons’ favor and against the UOA in the amount of $13,851.30.
Far Horizons appealed the judgment against it on its breach of the declaration claim, but a motions division dismissed that appeal as untimely. It appealed the district court’s order awarding attorney fees and costs. The UOA hasn’t appealed any aspect of the judgment.
As noted, Far Horizons challenged the district court’s awards of both attorney fees and costs.
After evaluation, the district court’s order on attorney fees and costs was reversed, and the case was remanded to the district court to redetermine the amount of attorney fees and costs to which Far Horizons is entitled.
Brian Puerta contended the individual who shot him wasn’t prosecuted for attempted murder because the defendants, Sheriff Bruce Newman, Undersheriff Milan Rapo, Captain Craig Lessar and Deputy Roman Hijar of the Huerfano County Sheriff’s Office, failed to timely process evidence relating to the shooting, the opinion noted. According to Puerta, the defendants’ inaction violated his “fundamental rights” to see the shooter prosecuted for “attempting to murder him” and to speak at the shooter’s sentencing for attempted murder.
Puerta appealed the district court’s dismissal of his claims against the defendants for failure to state a claim upon which relief can be granted under the Colorado Rule of Civil Procedure 12(b)(5). The Colorado Court of Appeals affirmed.
In his amended complaint, Puerta alleged he was shot by John Wilson and that Puerta called the police and described his assailant, the gun the assailant used and the car the assailant drove. Puerta also alleged he was permanently injured as a result of the shooting, the opinion noted.
Law enforcement officers arrested Wilson. During the arrest, the officers seized a gun and a car that matched the descriptions Puerta had provided. Puerta later identified Wilson as his assailant.
Wilson was charged with attempted murder. The prosecutor named Puerta as the victim. More than four months later, the prosecutor reminded Rapo, Lessarn and Hijar to timely process the gun, the recovered bullets and other evidence of the shooting. Rapo, Lessar and Hijar didn’t submit the evidence to the Colorado Bureau of Investigation for examination until four days before the deadline for disclosures to the defense, the opinion added.
Because the CBI had insufficient time to examine the evidence before the disclosure deadline, according to the opinion, the prosecutor concluded the evidence couldn’t be introduced at Wilson’s trial for attempted murder. As a result, the district attorney informed Puerta the admissible evidence relating to the shooting would support a menacing charge, but not a charge for attempted murder, against Wilson.
Wilson pleaded guilty to vehicular eluding and was sentenced to three years in the custody of the Department of Corrections. Puerta had the opportunity to speak at Wilson’s sentencing hearing.
In his complaint, Puerta alleged the defendants violated his constitutional rights under Article II, sections 16a and 25 of the Colorado Constitution by failing to timely process the evidence in the case against Wilson. He specifically asserted, because the prosecutor was unable to pursue the attempted murder charge against Wilson due to the defendants’ untimely processing of the evidence, Puerta was deprived of his rights to due process under section 25 and to be heard at all critical stages of Wilson’s prosecution for attempted murder under section 16a. He pleaded, under section 13-21-131(1), he was entitled to a civil remedy for these violations.
The defendants filed a motion to dismiss under C.R.C.P. 12(b)(5), which the district court granted.
Puerta contended the district court erred by dismissing his claims. He requested, in addition to reversing the district court’s judgment, the Colorado Court of Appeals direct the district court to award him reasonable attorney fees and costs as a “prevailing party” under section 13-21-131(3).
The Colorado Court of Appeals affirmed the district court’s judgment and denied Puerta’s request for attorney fees and costs.