Court Opinions- Mar 23, 2020

People v. Lindsey

In at least the seventh trial setting, this case had been pending for approximately three years and was not likely to be granted another motion to continue. David Tyler was William Lindsey’s fourth attorney in this case, and Judge Todd Vriesman and his predecessor had admonished Tyler and Lindsey at least three times during the previous year that there would be no more continuances.

A month before trial, Tyler moved to withdraw from the case, but his motion was denied after a hearing in front of a different judge who found no irreconcilable conflict. On the eve of trial, Tyler filed a motion challenging Lindsey’s competency. The factual assertions in this motion were the same factual assertions on which Tyler relied during the hearing on the motion to withdraw 10 days earlier: Lindsey had failed to be completely forthright with him, to keep promises to furnish information and funds for an effective defense and to diligently work and communicate with him. In all the years the case had been pending, this was the first time anyone had ever raised a question about Lindsey’s competency. And, during the hearing on the competency motion, just as during previous hearings, Lindsey was lucid and coherent, showing no signs of incompetency. 

Tyler believed that Colorado’s competency statutes required the trial court to either make a preliminary finding regarding competency or indicate that there was insufficient evidence to do so. He was aware that if the court made a preliminary finding and he objected to it or, alternatively, if the court determined there was insufficient information to make a preliminary finding, the statutory scheme required the court to order a competency evaluation, which would postpone the trial. 

Judge Vriesman found the motion’s factual assertions had nothing to do with competency and did not support a good-faith doubt about Lindsey’s competency. Consistent with his and his predecessor’s previous warnings about no more continuances, Vriesman refused to postpone the trial. The case proceeded to a jury trial, where Lindsey was convicted of securities fraud and theft. Lindsey then appealed, and a division of the Court of Appeals vacated his convictions. 

The Colorado Supreme Court concluded that section 16-8.5-102(2)(b), C.R.S. (2019), includes threshold requirements. The court also concluded that, while trial courts must guard against second-guessing a competency motion that’s “in writing” and contains “specific facts” that form the basis of counsel’s “good faith doubt” about the defendant’s competency, they retain sufficient discretion to reject a competency motion that rests on counsel’s inadequate proffer. The court didn’t discern an abuse of discretion in the district court’s rejection of Tyler’s competency motion as inadequate so it reversed the judgment of the court of appeals. 

In Re People v. Rosas

Based on an incident that occurred on Jan. 3 – 4, 2018, the People charged Paul Rosas with two counts of second-degree assault on a peace officer, two counts of attempted second-degree assault on a peace officer and one count of obstructing a peace officer. Rosas filed a notice of the affirmative defense of “impaired mental condition” pursuant to section 16-8-103.5, C.R.S. (2019), asserting that at the time of the offenses he was suffering from a mental disease or defect that made him incapable of forming the requisite culpable mental state. But this affirmative defense no longer exists. Effective July 1, 1995, what used to be the defense of “impaired mental condition” is now subsumed within the defense of insanity.

The People objected to Rosas’ notice of the defense of impaired mental condition, but only on the ground that it was untimely. After a hearing, the district court overruled the People’s objection and “allow[ed] [Rosas] to enter an affirmative defense of impaired mental condition.” It then ordered an examination “for impaired mental condition,” but did so with a psychiatrist, psychologist or other expert of Rosas’ choosing and not via the specified channels typically used. 

The Colorado Supreme Court concluded that evidence that a mental disease or defect prevented a defendant from forming the culpable mental state required by a charged offense is evidence relevant to the issue of insanity. The court also concluded that a defendant – even one charged with specific intent crimes – cannot introduce evidence relevant to the issue of insanity without first entering a plea of not guilty by reason of insanity. Because the district court allowed the defendant to introduce evidence relevant to the issue of insanity without requiring him to enter a plea of not guilty by reason of insanity, the Supreme Court made the rule to show cause absolute. 

People v. Lopez

Nicolas Lopez pleaded guilty to two counts of attempted sexual assault on a child in exchange for the dismissal of five other sex assault charges, a stipulated sentence of six years in prison and six years of sex offender intensive supervision probation. He was required by statute to undergo a sex offense-specific evaluation to determine treatment needs and the likelihood that he would reoffend.  A licensed psychologist evaluated Lopez and reported on his findings. The trial court, relying on the evaluation as well as argument by the People at the sentencing hearing, determined that Lopez was a sexually violent predator as defined in section 18-3-414.5. Lopez appealed this designation.

A division of the Court of Appeals considered when a trial court must determine whether an offender is developmentally disabled. The division held that a trial court may not rely on a sex offense-specific evaluation to designate an offender as an SVP unless the offender does not have a developmental disability or the offender was evaluated by a professional qualified to evaluate adults with developmental disabilities.

The division held that the trial court erred by failing to make specific findings before designating Lopez as an SVP, and relying on an evaluation that did not comply with the governing statutes and regulations. For these reasons, the division vacated the trial court’s order and remanded the case with instructions.

People v. Vialpando

After police observed a stolen car in a motel parking lot, they pursued and then heard but did not see the stolen car crash into another. Several witnesses told the officers that they saw a male and female flee the car after the crash. R.H., a witness, was stopped at a traffic light when she saw the stolen car crash and observed two people flee the scene. 

After the crash, the police found a purse in the stolen car that contained Yolanda Vialpando’s identification card, credit card, medical insurance card and “miscellaneous female clothing,” which Vialpando later identified at trial as her clothes. Based on the items found in the crashed car, the police began investigating Vialpando. Two officers went to R.H.’s home for an out-of-court identification and R.H. identified Vialpando from a photo set. 

Vialpando was charged with vehicular assault, vehicular eluding, aggravated motor vehicle theft in the first degree and driving under restraint. At trial, R.H. testified that the fleeing woman was “lighter skinned,” slender with long, black wavy hair, had a lot of makeup on, was wearing a black and white striped shirt and skinny black jeans and was 5 feet 5 inches tall in her twenties or thirties. R.H. also said the woman’s makeup “made her look younger.” An officer testified Vialpando’s DMV record and online photos matched her apparent description from R.H who explained that, during the out-of-court identification, she told the officers that she was “75%” certain Vialpando was one of the people who fled the scene. When asked for an in-court identification, R.H. said that Vialpando “could be” the woman who had fled the stolen, crashed vehicle. 

Vialpando explained to the jury that she was robbed at gunpoint of the personal items that were found in the stolen car and an officer confirmed that Vialpando reported the robbery the day before the car chase and crash occurred. Vialpando was found guilty as charged and sentenced to four years in community corrections. Vialpando appealed on the grounds that comments made during the prosecutor’s closing argument punished Vialpando for exercising her constitutional right to a jury trial. 

A division of the Court of Appeals considered whether the prosecutor’s statements that Vialpando’s “flight continues up to this moment” and that her “flight has continued up and to this point” were prosecutorial misconduct. The majority concluded that they were and the judgement required reversal under the plain error standard and that the comments in combination with four other instances of prosecutorial misconduct and one evidentiary error deprived the defendant of her right to a fair trial under the cumulative error doctrine. The defendant’s convictions were reversed. 

Namaste Judgment Enforcement, LLC v. King

The district court entered a default judgment in 2010 against Michael King, Crown Investment Group, LLC and Crown Development Group when they failed to respond to a complaint filed by Todd Oltmans and Colleen McClary, who were investors. King was allegedly the sole owner of both entities and because King had left the country, Oltmans and McClary were unable to personally serve the defendants under C.R.C.P. 4(e), so they moved for substituted service under C.R.C.P. 4(f). The court granted the motion. 

King returned to the United States in 2017 and learned of the default judgment when Namaste Judgment Enforcement, LLC, a collection agency to which Oltmans and McClary  had assigned their judgment, served a writ of garnishment on his bank in 2018. Once King discovered the default judgment, he moved to set aside the default judgment under C.R.C.P. 60(b)(3) as void for lack of proper service. After a hearing, the district court denied King’s motion. King, Crown Investment Group and Crown Development Group appealed the district court’s order.

A division of the Court of Appeals interpreted “Substituted Service” and held that first-class mailing of the summons and complaint to a substituted person does not constitute sufficient “delivery” under Rule 4(f)(1) to effect valid service under Rule 4(f)(2) or to confer personal jurisdiction to the court. The district court’s order denying the motion to vacate the default judgment was reversed, the judgment was vacated and the case was remanded for further proceedings.

People v. Weeks

A jury found Benjamin Weeks guilty of two counts of aggravated robbery and two counts of menacing based on his robbery of a gas station/convenience store. At the sentencing hearing, the prosecutor requested that restitution remain open and the trial court granted the request. Nine days later, the prosecution filed a motion requesting $524.19 in restitution, $506.54 for the money Weeks stole during the robbery and $17.65 in prejudgment interest. The prosecution asked the court to order the $524.19 as an “interim amount” because it was still investigating additional possible bases for restitution. Nothing happened on the restitution issue for the next seven-and-a-half months. 

Weeks filed a motion for a status conference based on the pending restitution motion and a pending motion for return of property. At the status conference, the court set a hearing on the pending motions and at the hearing, the prosecution clarified that it was seeking restitution only for the originally requested amount of $524.19. Weeks argued, among other things, that the trial court no longer had authority to order restitution because the 91-day deadline had expired. The court took the matter under advisement. 

More than eleven months after sentencing, the court issued an order granting the $524.19 in restitution. In a separate written order, the court explained why it was rejecting Weeks’s 91-day deadline argument: Under the Colorado restitution statute, if a district court decides at sentencing to defer its decision regarding the appropriate amount of restitution, “the specific amount of restitution shall be determined within the 91 days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined.”

Weeks appealed the trial court’s restitution order, contending that the court erred by ordering restitution more than 11 months after sentencing without good cause for delaying its ruling. 

A division of the Court of Appeals considered whether a trial court may order restitution more than 91 days after a defendant’s conviction without a finding of good cause or extenuating circumstances for delaying its ruling, aside from the prosecution’s request for additional time to seek restitution. Based on the plain language of section 18-1.3-603, C.R.S. 2019, the majority held that courts must order restitution within 91 days or make a sufficient finding of “good cause” or “extenuating circumstances” to extend the statutory deadline. The mere fact that the prosecution sought additional time to request restitution does not automatically amount to good cause or extenuating circumstances. The division reversed the order and remanded for further proceedings. 

People in Interest of S.A.G.

S.A.G, the child of A.W.D. and B.A.G., was placed in the custody of the Denver Department of Human Services and the department initiated a dependency and neglect case. Both parents admitted that the child’s environment was injurious to his welfare but stated that the family resided permanently in Arkansas and were not intending to stay in Colorado. 

The juvenile court proceeded with the dependency and neglect case as normal without noting that it was exercising temporary emergency jurisdiction under the Uniform Child-custody Jurisdiction and Enforcement Act. 

While the department’s attorney offered that it “would have to look into” the jurisdictional issue, the department continued on with the termination of parental rights. When the parents moved back to Arkansas without S.A.G., they asked the court to place the child in the custody of the paternal grandmother and the court said that it lacked jurisdiction to relocate the child because of the Interstate Compact on the Placement of Children. The court then terminated the parental rights of A.W.G. and B.A.G.

In this dependency and neglect proceeding, a division of the Court of Appeals considered whether UCCJEA requires a juvenile court to communicate with a court in the child’s home state, even though no child-custody proceeding was ever commenced or is pending there. The division concluded that a court must do so if Colorado is not the child’s home state under the UCCJEA when a child-custody proceeding is commenced. The division vacated the termination judgment and remanded the case for further proceedings. 

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