Court Opinions: Colorado Court of Appeals Opinions for Jan. 12

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Cox

William Cox pleaded guilty to second-degree murder in 2004 which included a 48-year sentence, concurrent with a yet-to-be imposed sentence in a pending federal robbery and firearm case. The district court sentenced him accordingly and seven months later a federal court imposed an aggregate 14-year sentence on the federal counts, ordering that sentence to be served consecutively to the state sentence.

Due to inconsistency between the concurrent state sentence and consecutive federal sentence, the parties sought court approval to allow the state sentence to run concurrently with the federal one. Based on the parties’ agreement, the district court vacated Cox’s state sentence and released him on a personal recognizance bond and he was then taken into federal custody.

In 2006, when Cox was in federal custody, the state sentence was reimposed, ordering it to run concurrently to the federal sentence. After completing his federal sentence in 2015, Cox returned to state custody. In 2016, Cox filed a postconviction motion and argued his state sentence was illegal, contending it violated federal statute requiring his federal sentence to run consecutively with his state sentence. 

A district court denied the motion, but a division of the appeals court reversed, concluding the illegal concurrent state sentence was a material part of the plea agreement and ordered the district court to vacate the plea and conviction. That division noted the district attorney could reinstate the original charge, which happened in this case. 

Cox was then convicted of second-degree murder and was sentenced to 48 years in prison. More than four hours into deliberation, the jury had asked what happens if it failed to reach a unanimous decision. The court told the jury, without object or further admonition, to continue deliberating.

Cox argued the court erred by instructing the jury without first asking if it was deadlocked. The appeals court declined to prescribe a categorical rule that the district court must, without a request, make such an inquiry any time a jury asks about what happens if it fails to reach a unanimous verdict at any point during deliberations. The appeals court found the district court didn’t abuse its discretion under the circumstances. 

Cox challenged his conviction on other grounds, but the appeals court disagreed and affirmed.

People v. Tennyson

The Colorado Court of Appeals unanimously affirmed a restitution order in an aggravated robbery case.

Audrey Tennyson pleaded guilty to two counts of aggravated robbery and in 2008, a district court sentenced him to concurrent 26-year prison terms. During the sentencing hearing, the prosecutor asked the court to impose a lengthy prison sentence and for restitution. The prosecutor requested the restitution be reserved for 90 days. The court said the prosecution would have 90 days to figure out what restitution is due and Tennyson would have 30 days to challenge it if he believed the figure was in error.

The prosecution submitted a proposed order imposing $12,306.18 in restitution. The district court signed the order Oct. 17, 2008, more than 90 days after the sentencing. The order allowed Tennyson 10 days to file an objection to the restitution award. An objection wasn’t lodged. The prosecution followed up by submitting an amended proposed order for restitution of $12,684.96 which didn’t include new or alternate amounts, but corrected a math error in calculation of the total amount. The district court signed that order Nov. 5, 2008. Tennyson had another 10 days to file an objection, but didn’t.

Tennyson didn’t directly appeal his conviction or sentence but filed many unsuccessful postconviction motions and appeals. In 2015, Tennyson sent a letter to the district court claiming he hadn’t been notified of the restitution order and objected to it, which was denied as untimely. 

In 2018, Tennyson filed two federal postconviction remedy motions under Rule 35(a) of the Federal Rules of Criminal Procedure. Under Rule 35(a), a court can correct an illegal sentence at any time. The version of 35(a) in effect at the time Tennyson was sentenced provided a court can correct a sentence imposed in an illegal manner within 120 days from the imposition of the sentence. The postconviction court denied the motions and rejected Tennyson’s challenges to the restitution order. 

In a footnote, the appeals court wrote these motions were filed and the postconviction court’s order was entered when the case was pending on appeal from an order denying a prior postconviction motion filed by Tennyson. A division of the appeals court dismissed, without prejudice, Tennyson’s appeal of those orders because the district court entered them without jurisdiction. Once the prior postconvition appeal was resolved, Tennyson filed this appeal and after limited remand allowing the court to re-enter the orders under jurisdiction, the appeal was recertified.

Tennyson appealed the district court’s order that denied his most recent postconviction motions challenging his restitution order. Tennyson primarily contended the restitution part of his sentence is illegal in light of People v. Weeks. Tennyson also argued the prosecution failed to present enough evidence to support the restitution request and the imposition violated his constitutional rights to due process, to the effective assistance of counsel and against double jeopardy.

The appeals court said in Weeks, the defendant raised an objection to the restitution order on direct appeal and the opinion didn’t address a postconviction challenge to a district court’s untimely determination of restitution. The appeals court concluded since the amount of restitution is not part of a defendant’s sentence, a challenge to a district court’s failure to comply with statutory procedure outlined in Weeks doesn’t implicate the legality of the defendant’s sentence under Rule 35(a). 

The appeals court ruled that, in circumstances where the district court ordered at or before sentencing the defendant was liable to pay restitution, and later determined the restitution amount under Colorado Revised Statute 18-1.3-603(1)(b), a defendant’s postconviction challenge to the restitution amount is cognizable as a challenge to the manner which the sentence was imposed under Rule 35(a). 

The appeals court further surmised Tennyson’s postconviction challenge to the manner in which the district court imposed the restitution amount in 2008 is time-barred. The appeals court added since Tennyson’s other claims are successive or untimely, it affirmed the district court’s orders denying his postconviction motions.

People v. Karwacki

The Colorado Court of Appeals unanimously reversed an order, vacated a sentence and remanded a case involving a probation revocation appeal.

Richard Karwacki was sentenced in November 2018 to 10 years of probation after his conviction on one count of class 4 felony theft. In March 2019, the probation department filed a revocation complaint that alleged Karwacki violated his probation. The probation department later filed an amended complaint that alleged Karwacki had committed additional violations.

In September 2019, the court held a revocation hearing in which Karwacki admitted the probation violations. During that hearing, the victim’s bankruptcy attorney said Karwacki was lying to the court about attempting to pay back the victim. Karwacki’s probation officer testified Karwacki was dishonest with the court.

In a September 2019 and January 2020 hearing, a judge made statements about Karwacki’s likelihood of repaying to the victim and their thoughts about appropriate sentencing in this case. Karwacki’s probation terms were reinstated, including the addition of a 30-day jail weekend program after the September hearing.

In December 2019, the Arapahoe County Sheriff’s Department wrote the court stating Karwacki was terminated from the jail weekend program for being a no-show on some dates. The court issued an order directing the probation department to review the letter and file a complaint for revocation of probation, which was then filed, and noted the jail weekend program violation, but recognized Karwacki was complying with the other conditions.

In March 2020, the probation department filed an amended complaint for revocation alleging more probation violations. Karwacki didn’t appear at the next court date and a warrant was issued for his arrest. Karwacki was later picked up and a hearing was held in December 2020 to address Karwacki’s probation issues. During the hearing the probation officer testified he didn’t seek behavioral modification or technical compliance before the revocation complaint was filed. 

According to court records, the probation officer’s testimony suggested he didn’t seek alternative methods to bring Karwacki in compliance with the probationary terms before filing the complaint because of the court’s order. Based on the testimony, Karwacki’s defense counsel moved for judge recusal. The judge denied it and acknowledged he issued the order directing the probation department to file the complaint. 

The judge didn’t view his order as taking an active role or showing bias, according to court records. The court found the prosecutors had proved three out of four alleged violations. The district court revoked Karwacki’s probation and sentenced him to 12 years in custody of the DOC.

Karwacki appealed, contending the district court erred by creating an appearance of partiality by directing the probation department to move to revoke the probation; exhibiting actual bias; and sentencing him to the maximum aggravated range without a jury finding extraordinary aggravating circumstances or a knowing, intelligent and voluntary waiver of the right to a jury finding.

The appeals court needed to determine whether the district court may, of its own accord, order a probation department to initiate revocation proceedings. It found the district court doesn’t have that power. 

The revocation order was reversed, Karwacki’s sentence was vacated and the proceedings were remanded before a different judge. On remand, the new judge must determine whether the probation department wants to file a revocation motion pursuant to Colorado Revised Statute 16-11-205. The appeals court didn’t reach Karwacki’s other contentions because it reversed and remanded based on the denial of the motion to recuse.

In re the Marriage of Badawiyeh

The Colorado Court of Appeals reversed a judgment and remanded a case connected to the Uniform Child Abduction Prevention Act.

After 22 years of marriage and four kids, Basil Badawiyeh petitioned for a dissolution. A district court held an evidentiary hearing on the petition and made multiple oral findings including Basil Badawiyeh and his children had Jordanian and U.S passports; Basil Badawiyeh had relatives in the United Arab Emirates; the UAE is not a signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention); during the marriage, the family traveled to the UAE regularly; and it was in the children’s best interest to travel to Dubai to spend time with their relatives and learn about the culture. 

In the evidentiary hearing, Michelle Badawiyeh testified she wasn’t particularly convinced Basil Badawiyeh would bring the kids back if the overseas trips continued, and one of the parental responsibility evaluators testified there was a reasonable risk Basil Badawiyeh wouldn’t return with the children, but the court didn’t necessarily share Michelle Badawiyeh’s fears and concerns.

Due to those findings, the district court allowed Basil Badawiyeh and the children to travel internationally every year during the kid’s winter break. To help assuage Michelle Badawiyeh’s fears, the court required Basil Badawiyeh to surrender the children’s U.S. and Jordanian passports to a neutral third party who would release them before travel; and post a $50,000 bond with the court naming Michelle Badawiyeh as the beneficiary before an overseas trip, for security for his return with the children. The court entered a dissolution decree and written permanent orders tracking its oral ruling. 

Basil Badawiyeh moved for post-trial relief for the travel restrictions, but his request wasn’t successful. In contrast to the permanent orders hearing, the court wrote it agreed with Michelle Badawiyeh and the parental responsibility evaluators concerning the risk of Basil Badawiyeh absconding with the kids if he was allowed unrestricted international travel and access to the passports. The court also said it included in its oral findings concerns regarding the significant legal fees and costs Michelle Badawiyeh would incur if Basil Badawiyeh didn’t return with the kids from international travel, particularly travel to a non-Hague signatory nation. The court confirmed its previous ruling involving the bond requirement and passport restrictions. 

Basil Badawiyeh appealed the foreign travel restrictions. The appeals court concluded a district court may not impose abduction measures under the UCAPA without first finding the parent presents a credible abduction risk and evaluating the factors listed in Colorado Revised Statute 14-13.5-107(1), which looks deeper into questions like if a parent recently engaged in activities that show they may flee.

The portion of the permanent orders regarding Basil Badawiyeh’s foreign travel restrictions was reversed and the case was remanded for reconsideration.

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