Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Carlos Serna-Lopez was convicted by a jury on two counts of aggravated robbery against the same person. One was based on the use of a deadly weapon and the second was on the use of an article fashioned as a deadly weapon.
The jury also convicted Serna-Lopez on one count of menacing, a count of possession of a controlled substance; two special offender sentence enhancer counts connected to the controlled substance charge; and a crime of violence sentence enhancer count which isn’t at issue in the appeal.
A trial court imposed concurrent prison sentences of 12 years for the two counts of aggravated robbery and a consecutive sentence of three years for menacing. Under the controlled substance charge, the court applied the special offender enhancer counts to increase the offense from a level 4 drug felony to a level 1 and sentenced Serna-Lopez to 12 years in custody, to run consecutively to the other sentences.
Serna-Lopez appealed on multiple grounds including asserting the trial court’s failure to merge the two counts of aggravated robbery violated his protection against double jeopardy; the court erred by failing to ensure the unanimity of the jury’s verdict on the special offender sentence enhancer counts; and the court erred by constructively amending one of the special offender sentence enhancer counts.
The Colorado Court of Appeals agreed unanimously that the two aggravated robbery counts need to merge and vacated Serna-Lopez’s conviction on one of them. It also reversed the judgment and sentence on the special offender enhancer counts. It affirmed Serna-Lopez’s remaining convictions and sentences.
The appeals court found the subsections of the aggravated robbery statute bring forward alternative means of committing the same offense. Since the district court entered separate felony convictions for separate counts alleging alternative means by which Serna-Lopez committed aggravated robbery against the same person, the appeals court determined it needed to vacate one of them and merge it with the other.
The appeals court also found the trial court erred when it failed to provide the jury with a modified unanimity instruction for the two sentence enhancer counts.
The court of appeals directed the trial court on remand to enter a new mittimus that indicates the aggravated robbery counts are merged. The case was also remanded to the trial court to allow the prosecution to choose between resentencing on the controlled substance count as a level 4 drug felony or proceeding with a new trial on the two special offender sentence enhancer counts.
In October 2018, a hotel employee reported finding a pile of driver’s licenses, handwritten notes that included credit card information and Social Security cards in the communal employee office. The hotel manager believed the handwriting matched that of Tanecia Quillen, an employee. The hotel manager called the police.
Police tried to reach the individuals from the found documents. One of them, R.S., reported his credit card had been used for Lyft rides he didn’t take. Lyft records showed R.S.’s credit card was connected to a Lyft account with Quillen’s phone number and email address that matched her name. The account also showed rides to and from addresses connected to Quillen.
Prosecutors charged Quillen with four counts of identity theft and one count of possession of an identification document. A jury found Quillen guilty of two counts of identity theft — related to the accusations connected to R.S. — but Quillen was acquitted of her remaining charges. Quillen was sentenced to four years of supervised probation.
Quillen appealed, contending her convictions should be reversed on multiple grounds including contending the trial court erred by sentencing her without allowing her to speak first and asked the Colorado Court of Appeals to vacate her sentence and remand the case for resentencing.
Prosecutors and the appeals court agreed the trial court erred by not giving Quillen an opportunity to allocute at sentencing. Under Colorado Revised Statute 16-11-102(5), before sentencing a court should give a defendant an opportunity to make a statement on their behalf and present any information in mitigation of punishment.
The appeals court wrote the record shows the court didn’t clearly address Quillen or ask her to speak. The appeals court unanimously vacated the sentence and remanded for resentencing to allow Quillen to speak on her own behalf. The judgment of conviction in all other regards was affirmed.
Quillen also argued the trial court erred by admitting business records with an affidavit from a records custodian. Quillen contended the affidavit was insufficient to admit the records under the hearsay exception for records of regularly conducted activity and the self-authentication rule. The appeals court concluded business records that are accompanied by a record custodian’s affidavit are admissible under those scenarios.
The Colorado Court of Appeals unanimously affirmed an order connected to a previous state Supreme Court ruling.
Rodney McDonald was convicted of attempted first-degree murder and second-degree assault in 1996, both with crime of violence enhancements, as well as possession of a weapon by a previous offender. A trial court also found McDonald had two prior felony convictions which led him to be adjudicated as a habitual offender. McDonald was sentenced to a controlling term of 72 years in prison.
A division of the appeals court affirmed the judgment and sentence and the Colorado Supreme Court denied certiorari. In 2000, McDonald filed a motion with various postconviction claims and followed it with a motion for a reconsideration of his sentence and a proportionality hearing in 2007. A postconviction court denied them both.
In 2020 McDonald filed a motion to vacate an illegal sentence, which is at issue in this case. In the motion, McDonald requested a new proportionality review of his sentence and observed a recent decision by the state high court that provided “new guidance” for how courts should evaluate sentence proportionality. McDonald asked the district court to vacate his sentence, arguing it was illegal because after he was sentenced, he claimed the Department of Corrections didn’t complete the violent offender evaluation under Colorado Revised Statute 18-1.3-406(1)(a).
The district court denied the motion finding the proportionality claim was successive and procedurally barred under Crim. P. 35(c) and the claim regarding the violent offender evaluation wasn’t an illegal sentence claim that could be brought any time under Crim. P. 35(a), so it was procedurally barred.
On appeal, McDonald requested the appeals court declare the Colorado Supreme Court’s decision in Wells-Yates v. People, which discussed how courts should conduct proportionality challenges to sentences under the Habitual Criminal Act, announced new rules of constitutional law that applied retroactively. McDonald asked the appeals court to reverse the lower court’s ruling that his most recent postconviction motion was procedurally barred.
The appeals court held, for the extent Wells-Yates announced new constitutional rules, they are procedural and don’t apply retroactively. The appeals court concluded the lower court correctly denied McDonald’s motion as procedurally barred and affirmed the order.