Court Opinions- Mar 16, 2020

In the Matter of W. Bradley Betterton-Fike

Two incidents of alleged professional misconduct culminated in W. Bradley Betterton-Fike receiving a nine-month suspension of his license to practice law in Colorado. First, a court reporting firm complained  it had not received long-overdue payment for services it provided at Betterton-Fike’s request. Second, and unrelatedly, a jury found him guilty of assaulting his wife.

The Office of Attorney Regulation Counsel alleged that Betterton-Fike violated Colorado Rule of Professional Conduct 8.4(d), engaging in conduct prejudicial to the administration of justice, and Rule 8.4(b), committing a criminal act that reflects adversely on a lawyer’s fitness. In a divided opinion, a Disciplinary Hearing Board agreed. 

Betterton-Fike appealed the Board’s judgment, contending that the Board majority misconstrued subsection IV(B) of Chief Justice Directive 05-03, erroneously concluded that he engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) and imposed a sanction that was manifestly excessive and unreasonable.

The Colorado Supreme Court considered whether the attorney engaged in conduct “prejudicial to the administration of justice” in violation of Rule 8.4(d). Because the attorney had no legal obligation to pay the court reporter, the court concluded that he did not violate this rule. Accordingly, the court reversed the Board’s judgment as to the Rule 8.4(d) violation and remanded for the Board to reconsider its sanction in light of its decision. 

People v. Cali

Theprosecution charged Osmundo Cali with one count of theft of a thing valued at $1,000 or more but less than $20,000, then a class four felony, as well as with one count of theft by receiving and two habitual criminal counts. The charges stemmed from allegations that Cali took metal storm grates from a construction site and sold them to a scrap metal processing company. The evidence established that the stolen grates were worth approximately $2,616, based on the price paid for them by the construction company.

 A jury convicted him of the two substantive offenses, and the trial court adjudicated him a habitual criminal. The court then sentenced Cali to 18 years on each of the substantive counts, to be served concurrently in the Department of Corrections. 

Cali appealed and a division of the Court of Appeals agreed that Cali could not be convicted of both theft and theft by receiving the same property. It therefore vacated his conviction for theft, allowed the theft by receiving conviction to stand and did not address the alleged instructional error on the theft count. The division affirmed Cali’s habitual criminal convictions and after conducting its own abbreviated proportionality review, concluded that Cali’s sentence was not grossly disproportionate. The Colorado Supreme Court denied Cali’s petition for a writ of certiorari.

While Cali’s appeal was pending, an amendment to the theft statute became effective. The amended statute eliminated the separate crime of theft by receiving and incorporated that offense into the general theft provision. It also modified the classifications for theft. Under the new statutory provisions, Cali’s offense would have been classified as a class six felony. Although these amendments took effect prior to the date on which Cali’s appellate counsel filed the opening brief in Cali’s direct appeal, Cali did not address in his appeal the applicability of these provisions to his case.

After the Court of Appeals issued its mandate in Cali’s case, Cali filed a pro se petition for post-conviction relief pursuant to Crim.P. 35(c). In this petition, Cali raised a claim for relief based on a “Substantial Change in The Law.” Specifically, he asserted, for the first time, that under the newly amended statute, he could only have been convicted of a class six felony, which would have carried a presumptive sentencing range of one year to 18 months imprisonment. The post-conviction court denied Cali’s petition without a hearing and concluded that the amended statute did not entitle Cali to relief because the law changed after Cali’s sentence was imposed; his sentence had been affirmed on appeal; and the amended theft statute was intended to have prospective, not retroactive, application.

Cali appealed again, and in a split published opinion, a division of the Court of Appeals reversed. 

The People appealed and the Colorado Supreme Court concluded that a defendant is not entitled to the benefit of a statutory amendment when the defendant does not seek relief based on that amendatory legislation until after his or her conviction becomes final. Accordingly, the court reversed the judgment of the division.

People v. Martinez-Chavez

April 2016, Jose Martinez-Chavez pleaded guilty to one count of first-degree assault and one count of attempted sexual assault on a child less than 15 years of age. The events underlying his conviction occurred when he was living with his significant other, whom he assaulted, and engaged in sexual conduct with her 7-year-old daughter.

About two months later, Martinez-Chavez was sentenced to 14 years in the custody of the Department of Corrections. At sentencing, the prosecutor indicated he had “forgot[ten]” to address restitution, telling the court that “there is going to be some[,] likely crime victim compensation request and counseling.” Based on this representation, the trial court reserved restitution pursuant to section 18-1.3-603(1)(b) and (2), C.R.S. 2019, giving the prosecution 91 days to file a motion for restitution. Thereafter, the People timely filed a motion for restitution, seeking a total of $8553.40 in restitution in favor of the 9th Judicial District’s Crime Victim Compensation Board. 

Martinez-Chavez then filed several objections and the court denied most but agreed that food assistance was not covered under the Crime Victim Compensation Act and that interest should accrue only from the date the CVCB paid the respective claim. The trial court also denied Martinez-Chavez’s request for an in-camera review of the CVCB records, finding that he did not satisfy his burden of providing a non-speculative evidentiary hypothesis for obtaining such records. Finally, the trial court found that Martinez-Chavez’s objection did not warrant a hearing because his “objections are legal objections which the Court can rule on without a hearing” and that a “hearing would not assist the Court in determining the issues before it.” Based on these findings, the trial court entered a restitution order in favor of the CVCB in the amount of $6,753.75. The restitution order reflected the denial of the $300 payment for food assistance and the denial of pre-judgment interest. Martinez-Chavez appealed the trial court’s order imposing restitution without a hearing.

 A division of the Court of Appeals held that when restitution is not addressed at a defendant’s sentencing hearing and is instead reserved at the request of the prosecution, and if the defendant timely objects to the restitution and demands a hearing, then the defendant is entitled to an in-person hearing on the issue of restitution. Based on this holding, the division reversed the restitution order and remanded the case for further proceedings, including a restitution hearing.

People v. Cattaneo

During the course of a shoplifting investigation, Police Agent Rob Albrets and Agent Sean Radke uncovered that the suspect, Nicholas Cattaneo, was in possession of a stolen vehicle and a large number of OxyContin and Oxycodone pills. Because Cattaneo lacked personal identification at the time of his initial detainment in the store’s loss prevention office, Cattaneo gave Albrets permission to use his key fob to enter the car and retrieve his ID from the center console. On suspicion that the car was stolen, Albrets called police dispatch to run the temporary plates. After Radke arrived on the scene, he noticed that the vehicle identification number was blocked by a crumpled piece of paper.

Meanwhile, Albrets released Cattaneo from the loss prevention office but followed him at a distance to his car, where Radke was waiting. As Radke approached, Cattaneo walked quickly to the car’s passenger side, removed a backpack from the car and locked the car. Fearing that Cattaneo might be grabbing a weapon and wishing to investigate if the car had been stolen, Radke “separated” Cattaneo from the backpack. Radke eventually gained access to the locked car by asking Cattaneo to unlock it and allegedly informing him that the agents had the right to call a locksmith to open the car. After receiving confirmation that the car had been reported stolen, Albrets and Radke searched the backpack, finding the large number of pills. 

The prosecution charged Cattaneo with aggravated motor vehicle theft, possession with intent to manufacture or distribute a controlled substance, possession of a controlled substance and theft of less than fifty dollars. Before trial, Cattaneo moved to suppress the pills as fruit of an unlawful search. He contended that the agents did not have probable cause to search the car and did not obtain his voluntary consent to open the car door to access the VIN, without which they would not have had probable cause to arrest him and search the backpack. 

The prosecution countered that the agents suspected that the vehicle was stolen, the search was limited in scope, and Cattaneo’s consent was voluntary even absent the statutory advisement. 

The trial court denied the motion to suppress. It found that the agents had reasonable suspicion that the vehicle was stolen and that they obtained the VIN through a reasonable and limited search. Moreover, the trial court found that Cattaneo had voluntarily consented to a search of the car to obtain the VIN. The court concluded that, once the VIN showed the car to be stolen, the agents had probable cause to arrest Cattaneo and the pills were admissible as the result of a valid search incident to arrest, an inventory search or inevitable discovery.

 The case proceeded to trial. The prosecution ultimately dismissed the motor vehicle theft charge, and the jury convicted Cattaneo of the remaining charges. The trial court sentenced him to a term of imprisonment and parole. Additionally, the mittimus appears to require him to pay a drug surcharge. 

 A division of the Court of Appeals considered whether the police agents’ efforts to obtain a parked car’s VIN violated Cattaneo’s Fourth Amendment rights. 

The division concluded that, under these circumstances, probable cause to search the car was not required. Because the agents’ actions did not exceed the bounds of an investigatory stop, and because the defendant did not have a reasonable expectation of privacy in the VIN, the division held that the agents’ actions were justified. 

The division also concluded that the trial court’s belated imposition of a drug surcharge did not violate the defendant’s double jeopardy rights because the initial sentence that omitted the surcharge was illegal. Therefore, correcting the initial sentence to add the surcharge was proper. Judge Dailey concurred as to the Fourth Amendment issue but dissented on the double jeopardy issue. He concluded that, because the trial court did not impose the surcharge at sentencing, and the absence of the surcharge did not render the sentence illegal, the court’s later imposition of the surcharge violated the defendant’s double jeopardy rights. 

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