Court Opinions: Colorado Court of Appeals Opinions for Jan. 6

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


People v. Joshua Strickler

Following a structure fire at Joshua Strickler’s unoccupied apartment, he was tried on charges of first-degree arson, attempted first-degree arson, attempted criminal mischief and two counts of attempted extreme indifference murder. Strickler maintained that the fire had been set by Gary Cox, who was living in the building with his wife and who he claimed he’d received threats from. 

Cox admitted that he was staying at the apartment but denied being a “resident” because Cox’s wife had a restraining order against him.

The jury acquitted Strickler of first-degree arson and of attempting to murder Cox’s wife specifically. It found Strickler guilty of the other count of attempted extreme indifference murder, attempted first-degree arson and attempted criminal mischief. Strickler appealed. 

A division of the Colorado Court of Appeals affirmed the convictions for attempted first-degree extreme indifference murder and attempted first-degree arson, and in doing so concluded that Strickler was properly convicted of a crime of violence because fire, as Strickler used it, met the statutory definition of “deadly weapon.”

However, the court remanded with directions to merge Strickler’s conviction for attempted criminal mischief into his conviction for attempted first-degree arson. 

People v. Shane Johnson

As a matter of first impression, a division of the Colorado Court of Appeals considered whether a competent defendant has the right to forgo a defense and, in so doing, effectively gives up his right to effective assistance of counsel during trial. In McCoy v. Louisiana, the U.S. Supreme Court addressed the tension between Robert McCoy’s autonomy to decide the object of the representation and his counsel’s contrary actions admitting McCoy’s guilt in a death penalty case, ultimately concluding that there was structural error mandating reversal where counsel overrode McCoy’s autonomy. 

While housed at the Mesa County jail awaiting sentencing on felony charges, Shane Johnson

escaped from the facility with his wife’s assistance. Johnson and his wife then fled to Mexico. They were apprehended about a year later and Johnson was charged and convicted with felony escape after he instructed his counsel not to mount a defense. 

In this case, Shane Johnson unambiguously, voluntarily, intelligently and knowingly instructed his counsel not to mount a defense. Like McCoy’s decision to maintain his innocence, Johnson’s right to not mount a defense is an objective of representation. Having exercised that right, the division ruled he cannot now fault his counsel for respecting that wish by not mounting a defense. The division affirmed the order dismissing Johnson’s appeal. 

Parental Responsibilities Concerning A.C.B., a Child

In this contempt proceeding initiated by Pueblo County Child Support Services against Joshua Broyhill, Broyhill appealed the trial court’s judgment finding him in indirect contempt for failure to comply with a child support order and imposing a jail sentence as a remedial sanction. He argues primarily that the trial court violated his right to due process by failing to appoint counsel to assist him in his defense of the contempt citation.

Throughout the contempt proceedings, Broyhill repeatedly told the court that he was indigent and insisted, based on his indigency and the fact that CSS was pursuing imprisonment as a remedial sanction, that he was entitled to court-appointed counsel at state expense. The trial court denied the request on the grounds that the right to court-appointed counsel doesn’t extend to contempt proceedings where only remedial sanctions — not punitive sanctions — are requested.

A division of the Colorado Court of Appeals concluded that when a contempt proceeding is initiated by a governmental entity and where a jail sentence is an available remedial sanction, an alleged contemnor who is indigent has the right to court-appointed counsel. The division also concluded the trial court violated Broyhill’s due process rights when it refused to inquire into his indigency status to determine whether he qualified for court-appointed counsel. The division reversed the judgment and sentence and remanded the case for the trial court to determine if Broyhill is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.

George Hodge v. Matrix Group, Inc., and Waterpark II & III, LLC

Matrix Group, Inc., and Waterpark II & III, LLC appealed the judgment entered on the jury’s verdict in favor of George Hodge, in the amount of $752,500. Waterpark argues that the district court reversibly erred by permitting Hodge to offer evidence of the lost profits of his solely owned S corporation, Hodge Services, Inc., to support his claim of lost earning capacity following a slip-and-fall accident. 

A division of the court of appeals was asked to decide, as a matter of first impression in Colorado, whether the sole owner of an S corporation may offer evidence of the corporation’s lost profits to support his claim of lost earning capacity in a personal injury

lawsuit. The division concluded that when the corporation’s profits are attributable to its owner’s personal services rather than invested capital and the labor of others, the jury may properly consider the corporation’s lost profits as evidence of its owner’s loss of earning capacity. 

The division also rejected Waterpark’s argument that the district court erred by admitting evidence of corporate profits without “a judicial finding” that the owner and the S corporation are “one and the same.” The division concluded the district court didn’t abuse its discretion by denying Waterpark’s request to exclude evidence of lost profits as a sanction for late disclosure. The judgment was affirmed.

Aurora Urban Renewal Authority v. PK Kaiser

This case addressed the financing of urban renewal projects under Colorado’s Urban Renewal Law, and, more specifically, the intricacies of Tax Increment Financing, which is central to the viability of urban renewal projects.

The URL authorizes the creation of urban renewal authorities like the Aurora Urban Renewal Authority to undertake urban renewal projects aimed at redeveloping slum and blighted areas. To fund these projects, the URL authorizes the use of TIF. 

Aurora Urban Renewal Authority appealed the district court’s judgment in favor of the Arapahoe County Assessor and the Colorado Property Tax Administrator. Fitzsimons Village Metropolitan District No. 1, Fitzsimons Village Metropolitan District No. 2 and Fitzsimons Village Metropolitan District No. 3 and Corporex Colorado LLC appealed the district court’s judgment dismissing them for lack of standing. 

A division of the court of appeals holds that, as written, the Assessors’ Reference Library, which “proportionately” allocates the indirect changes in property value caused by the existence of an urban renewal plan, violates the Urban Renewal Law. It reviewed de novo if the metro districts and Corporex have standing and agreed the district court erred for dismissing them for lack of standing. The division applied the two-prong test to see if the metro districts and Corporex have standing and determined they do.

The summary judgment in favor of the assessor was reversed, and the case was remanded for the entry of an appropriate declaratory judgment in favor of the plaintiffs and against both the administrator and the assessor. Chief Judge Gilbert Román concurred and Judge David Yun concurred in part and dissented in part.

No Laporte Gravel Corp. v. Board of County Commissioners of Larimer County 

A division of the Colorado Court of Appeals found Larimer County Commissioner Tom Donnelly, who received 2016 campaign contributions by stockholders of Loveland Ready-Mix Concrete, Inc., did not violate the constitution’s Due Process Clause by not recusing himself from a 2018 vote on a Loveland Ready-Mix Concrete gravel pit and concrete mix application. 

In 2018, with a 2-1 split, the Board of County Commissioners of Larimer County approved plans during a special review for Loveland Ready-Mix to construct and operate a sand and mining gravel mine and a batch plant to process the materials into cement near the town of Laporte. A month earlier, the Laporte Area Planning Advisory Committee voted to recommend to deny the plans based on the proposed location and its impact on the area. After the Board of County Commissioners of Larimer County had voted to approve the plans, a citizen came forward with information that Donnelly received $4,100, 7.65% of the money fundraised in his 2016 election campaign, from Loveland Ready-Mix stockholders. 

No Laporte Gravel Corp, an organization opposing the proposed plans, filed a complaint claiming the Board of County Commissioners incorrectly reviewed criteria and that it violated the group’s due process rights since Donnelly did not recuse himself from the vote. A district court dismissed the due process complaint with prejudice but agreed the Board of County Commissioners incorrectly approved the plans and remanded the case for administrative proceedings by the board. 

Both parties appealed the decisions. No Laporte Gravel appealed the due-process claim dismissal and the Board of County Commissioners appealed the other ruling. 

The Colorado Court of Appeals looked at the due process claim using framework from the U.S. Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. that found in “extraordinary situations” campaign contributions can create a constitutionally impermissible risk of actual bias on the part of an adjudicatory decision-maker and violate due process rights. 

In a matter of first impression, the court rejected Loveland Ready-Mix’s claim, joined by  Colorado Municipal League as an amicus curiae, that campaign contributions can never create risk of bias for a quasi-judicial decision maker. It found that as a quasi-judicial decision maker, Caperton applied to Donnelly.

However, after looking at the size, timing and apparent effect of the campaign contributions as outlined in Caperton, the Colorado Court of Appeals decided this case was not an “extraordinary situation” where a risk of bias was created with Donnelly’s non-recusal. 

The Colorado Court of Appeals disagreed with the lower court’s ruling to reverse the approval and remanded the case for further proceedings. 

McLellan v. Colo. Department of Human Services

Sally McLellan is disabled and in 2007 applied for Supplemental Security Income benefits through the Social Security Administration. That request was not approved until 2017 so in the interim she applied for assistance through the Larimer County Department of Human Services under the Aid to the Needy Disabled – State Only program. Under this program, a person can receive interim support by a county that is then reimbursed by the SSA following procedures of the Interim Assistant Reimbursement Regulation. 

McLellan began receiving monthly assistance payments through Larimer County in 2012. When her application was approved in 2017, the SSA found she was due over $30,000 in SSI back payments for the five-year period. She received payments totaling $4,500 from the SSA in 2018 and the federal administration also paid Larimer County around $11,000 in reimbursement. 

Through the Office of Administrative Courts, McLellan filed a complaint that she did not authorize Larimer County to keep her back payment award and it was not entitled to keep the $11,571 because it was not the initial SSI back payment. The office found she was not entitled to keep the money. McLellan appealed the decision for judicial review but it was upheld. 

McLellan, appealed the district court’s judgment and argued Larimer County “improperly withheld the third retroactive SSI payment” and the form authorizing Larimer County to recover money directly from a back payment was not valid.

The Colorado Court of Appeals rejected McLellan’s arguments and found that under the AND-SO program and the Interim Assistance Reimbursement Regulations, the first benefit payment means the entire retroactive amount owed to the applicant, rather than just the first installment check issued by the SSA to pay part of that amount pursuant to the installment schedule required by federal law.

People in the Interest of E.B.

The Colorado Court of Appeals ruled that a juvenile court abused its discretion by denying a father’s request for a continuance during a virtual termination hearing where he was having technical difficulties. 

Jefferson County Division of Children, Youth and Families moved to terminate the legal relationship between a newborn, E.B., and his father, R.B., in January 2020 when the infant was found to have narcotics in his system and R.B. later entered an admission. 

The juvenile court held a hearing on the motion in February 2021 which, due to the ongoing pandemic, was held virtually using Webex. R.B. initially was not at the hearing, but attempted to log into the hearing intermittently. R.B. ‘s council was unable to contact him, which they attributed to R.B.’s phone having limited service as a “Wi-Fi phone” and requested a continuance so that he could testify at a later time. R.B.’s counsel learned that he had tried to access the hearings but was asked to leave the gas station where he was using Wi-Fi. 

The court denied the request for continuance, adding that “father’s had ample opportunity to prepare to join today. I’m sorry he wasn’t able to. But case law is clear. He’s been represented by counsel throughout.” The court granted the motion to terminate parental rights. 

R.B. appealed the decision and argued that not granting the continuance when he did not have access to the trial was an abuse of discretion. 

The Colorado Court of Appeals agreed and found that since R.B.’s counsel could not contact him for 12-days due to the limited phone connection, R.B. did not have “ample time” to make arrangements to log in to the hearing. The division also ruled the lower court did not make accommodations, other than a brief pause, to ensure R.B. could participate in the hearing. Accommodations and a “short delay” to ensure R.B. could participate would have been in the best interest of E.B., the court added. In denying the request for continuance, the juvenile court violated R.B.’s due process rights, the Colorado Court of Appeals decided. 

The Colorado Court of Appeals reversed the termination and remanded it to a hearing to allow R.B.’s participation. 

People in the Interest of B.H. 

In July 2021, a juvenile court terminated father D.H.’s parental rights to his child, B.H. The father then filed a motion for post-trial relief from the termination of judgment that the court did not rule on for 63 days, deeming it denied. 

On Oct. 13, 2021, D.H. filed a notice of appeal for the original termination. The People opposed the motion, arguing that it missed the 21-day window for notice of appeal. D.H. argued that the post-trial relief motion tolled the window and he filed the appeal within 21-days of the time his motion was deemed denied. 

The Colorado Court of Appeals reviewed the statutory rules de novo and applied principles of statutory construction. Based on a plain-language reading of state law, the court decided that filing a motion for relief does not toll the appeal window. 

The Colorado Court of Appeals dismissed the appeal with prejudice.

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