Court Opinions: Colorado Court of Appeals Opinions from June 30

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

People v. Schuyler Johnson

In this case, the Colorado Court of Appeals unanimously affirmed a district court’s decision involving imposing a longer sentence in a case connected with a young offender.

Schuyler Johnson appealed a district court’s order revoking a six-year youth offender sentence, while imposing a previously suspended 18-year sentence with the Department of Corrections. He says the district court erred because that court didn’t return him to the Youth Offender System within 60 days after his detention in county jail, which was required by the YOS statute. He also alleges the court incorrectly revoked his YOS sentence, which he says he completed.

The appeals court concluded the district court was correct in how it applied the statute revoking the defender’s YOS sentence after he was accused of failing to comply with the conditions. They also rejected Johnson’s other challenges to revocation. 

Johnson, who was 18 at the time, had previously pleaded guilty to first-degree assault in 2012 and had been sentenced to six years in the YOS, with an 18-year suspended sentence. Around five years into his sentence, he needed to start complying with a variety of conditions under supervised release. According to the district court, he failed to comply with those conditions, thus the YOS sentence of six years was revoked and the longer prison sentence was imposed.

Johnson’s counsel argued he only committed technical violations, adding the district court improperly held Johnson in a county jail and didn’t take action within those 60 days.

“In response, the People argued that subsection (5)(a) applies to a YOS sentence revocation only when an offender poses a danger to himself, herself, or others and that Johnson did not,” wrote Judge Daniel Taubman. “Instead, the People asserted, subsection (5)(c) applied to Johnson’s YOS revocation because he failed to comply with the terms and conditions of his YOS sentence.”

The defense counsel further argued if the court had agreed to revoke Johnson’s YOS sentence, it was not under the requirement to reinstate his original suspended sentence because it could choose something else. The district court said essentially, Johnson violated the conditions of his YOS sentence which required the longer sentence to be imposed.

The district court concluded that, although it disagreed it improperly held Johnson in county jail for more than 60 days, the court did grant him presentence confinement credit “in the event that it erred in considering that offenders serving ‘community supervision time’ are ordinarily not entitled to PSCC.”

The Court of Appeals affirmed.

Petition of J.N.

In this case, the Colorado Court of Appeals unanimously reversed and remanded a decision involving whether a father was properly notified in a dependency and neglect case.

In March 2006, a mother was arrested on charges of child abuse. When arrested, she was with her two kids, C.G. (the biological child of the father) and C.G.’s half-brother (the biological child of Jon Phillips). Temporary protective custody of the children was handed over to the Jefferson County Division of Children, Youth and Families. A few days later, that division filed a petition for temporary legal custody, naming the mom, Phillips and John Doe as the respondent. A juvenile court granted the motion.

The next day, the division moved for an order authorizing service on the father, J.N., and Phillips through publication. That motion didn’t describe the division’s efforts for personal service; it also didn’t state facts that those efforts had been futile. A magistrate granted the motion finding due diligence had been used, but didn’t explain the ruling any further. That summons was published in April 2006 in the High Timber Times in Conifer. 

J.N. didn’t appear at other hearings, but Phillips was at all the other hearings, after being notified by a caseworker. In May, Phillips was given temporary legal custody of both children.

In October 2006, the division moved for a default judgment adjudicating the child dependent and neglected concerning J.N., who was still being identified as John Doe. In November 2006, a magistrate adjudicated the child dependent or neglected as to J.N. That magistrate didn’t describe efforts made by the division to locate J.N. In 2007, the magistrate gave parental responsibilities of the children to Phillips. Later, the juvenile court terminated a dependency and neglect proceeding. 

In the spring of 2007, the child died and Phillips was convicted of first-degree murder of the child and child abuse resulting in death. After the child died, J.N., the mother and a personal representative of the child began federal court action against multiple parties, which included the division. J.N. then moved for Colorado Rules of Civil Procedure60(b) relief for the dependency and neglect proceeding with the aim of vacating some court orders. 

The juvenile court dismissed J.N.’s motion saying it’s moot because the child died. On appeal, a division of the appeals court reversed that order and remanded the case for a determination on merits. The division said the case wasn’t moot because the orders are being used to stop J.N. from getting relief in federal court. 

The juvenile court then denied the Rule 60(b) motion saying it was untimely and J.N. hadn’t established a lack of service or fraud on the court. On appeal, J.N. contended the juvenile court erred in concluding the division properly served him by publication, the Rule 60(b) motion was not timely and the division didn’t commit fraud on the court. The appeals court did not address the third contention.

The Court of Appeals ruled the juvenile court erred when it granted a request serving the father through publication. 

The appeals court concluded since the father didn’t receive proper notice, the entry of some orders violated his due process rights and the juvenile court had to vacate those orders. The case was remanded to juvenile court for further proceedings.

The appeals court reversed the order denying J.N.’s Rule 60(b) motion and remanded the case back to the juvenile court. The appeals court said the juvenile court must also vacate the 2006 order transferring temporary custody of the child from the division to Phillips; the 2006 judgment that adjudicated the child dependent or neglected by default concerning J.N.; the 2007 judgment giving parental responsibilities to Phillips, while also relieving the division of protective supervision; and the 2007 judgment terminating the neglect and dependency proceeding.

The People of Colorado v. Jason Lopez

In this case, the Colorado Court of Appeals unanimously reversed and remanded a case involving the suppression of evidence in a narcotics case.

Jason Lopez appealed his conviction of six counts of possessing a controlled substance, with four of those counts as a special offender for possessing a weapon during a crime involving drugs.

In August 2016, a detective pulled Lopez over in Colorado Springs for failing to signal and driving without a registration. A passenger was also in the car. The detective said Lopez looked nervous and got a K-9 unit to sniff around the car. The dog alerted to the presence of narcotics and police subsequently searched the vehicle finding illegal narcotics and a loaded semi-automatic handgun. Lopez was arrested and claimed at trial the drugs were the passenger’s.

The jury found him guilty and sentenced him to 64 years in prison. Lopez appealed, saying the trial court erred by denying his motion to suppress evidence among other things. Lopez claims the dog sniff was illegal because it wasn’t supported by probable cause.

In People v. McKnight in 2017, a division of the Court of Appeals ruled that since Colorado’s Amendment 64 legalized small amounts of marijuana, a dog sniff could result in an alert for something a Colorado resident has a right to privacy to. Thus that type of search has to be justified by reasonable suspicion of evidence of illegal activity. On certiorari review, the Colorado Supreme Court in McKnight II upheld the division’s determination, adding a dog sniff is a search under the Colorado Constitution. That type of search, according to the state Supreme Court, also had to be justified by probable cause and not just reasonable suspicion.

McKnight I was decided July 13, 2017, about 11 months after the K-9 search involving Lopez. McKnight II was decided May 20, 2019.

The trial court conducted their suppression hearing March 7, 2019, about two years after McKnight I, but about two months before McKnight II. Lopez argued the dog sniff violated the Colorado Constitution when considering McKnight I because the police didn’t have reasonable suspicion. The trial court denied Lopez’s motion for suppression, saying the dog sniff was correct and was supported by the circumstances through reasonable suspicion, but not probable cause.

Lopez’s argument with the appeals court rests on the trial court determining the police lacked probable cause which means it’s illegal under McKnight II and his case was pending on appeal when McKnight II was first announced. 

“Because the People have failed to convince us that probable cause supported the dog sniff, as required by McKnight II, we conclude that the trial court erred in not suppressing the evidence found after the dog sniff,” wrote Judge John Dailey. 

The conviction was reversed and the court remanded the case for a new trial.

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