Court Opinions- May 11, 2020

People In Interest of G.S.S.

After being charged with two delinquent acts related to a shooting threat at his middle school, 14-year-old G.S.S. was detained for more than three months without bail, though he had not entered a plea and had not been tried on the charges against him. At that point, G.S.S.’s counsel filed a motion to dismiss, arguing that G.S.S.’s “right to a speedy trial” had been violated under section 19-2-509(4)(b). The trial court agreed and dismissed the case against G.S.S. with prejudice, and the Court of Appeals affirmed. The Colorado Supreme Court then granted certiorari to determine the proper remedy for a violation of the sixty-day limit in section 19-2-509(4)(b).

The court first concluded that section 19-2-509(4)(b) is ambiguous because its plain language does not make clear what type of right — bail or speedy trial — it confers, nor does it provide a remedy for its violation. The court next interpreted section 19-2-509(4)(b) and concluded that the legislature intended it to be a bail statute and not a speedy trial statute; thus, the remedy for a violation of section 19-2-509(4)(b) should correspond to a bail right and not a speedy trial right. It therefore held that the remedy for a violation of section 19-2-509(4)(b) is for the court to immediately hold a bail hearing and order the juvenile’s release. Accordingly, the court reversed the judgment of the court of appeals and remanded for reinstatement of the delinquency petition and for further proceedings consistent with this opinion.

Persichette v. Owners Ins. Co.

William Persichette, through Franklin D. Azar & Associates, P.C., brought this underinsured-motorist action against Owners Insurance Company for allegedly handling his insurance claim unreasonably and in bad faith. About three months later, Persichette retained Mark Levy of Levy Law, P.C. as co-counsel. Owners promptly moved to disqualify Levy Law pursuant to Rule 1.9(a) on the ground that Levy Law was Owners’ longtime former counsel and had a conflict of interest. The district court denied the motion, finding that Levy Law’s representation of Persichette is not “substantially related” to Levy Law’s decade-plus representation of Owners. Owners then filed a C.A.R. 21 petition invoking the Colorado Supreme Court’s original jurisdiction.

In this original proceeding, the supreme court considered whether the district court erred in denying the motion to disqualify Owners’ longtime former counsel from representing Persichette.

The court concluded that Owners’ former counsel has a former-client conflict under Colo. RPC 1.9(a) that precludes counsel’s representation of Persichette in this case. The court ruled that this matter is “substantially related” to matters in which Owners’ former counsel previously represented Owners. 

The court determined that the district court misconstrued “a substantially related matter” to mean “the same” matter and then incorrectly found that the information Owners’ former counsel probably possesses as a result of its prior representation of Owners is neither confidential nor advantageous to Persichette. Because the district court should have disqualified Owners’ former counsel from representing Persichette in order to preserve the integrity and fairness of these proceedings, the court made the rule to show cause absolute.

People v. Houser

Timothy Houser was convicted of patronizing a prostituted child in violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old A.J. testified at Houser’s trial that she earned money through prostitution. She posted an advertisement on Craigslist in which she identified herself as a 20-year-old “playmate.” Houser responded to A.J.’s posting. A.J. told police she went to Houser’s “home in Douglas County where he paid her $240 to engage in sexual acts with him.” 

Houser was charged with patronizing a prostituted child and filed a pretrial notice of intent to assert an affirmative defense under section 18-1-503.5, C.R.S. 2019, that Houser had reasonably believed A.J. was over the age of 18. That statute authorizes a reasonable mistake of age defense, although it does not refer to the child prostitution statutes. The prosecution filed an objection to the notice, arguing that section 18-7-407, C.R.S. 2019, which expressly applies to the child prostitution statutes, precluded Houser from raising such a defense. The court prohibited Houser from arguing at trial that he reasonably believed A.J. was at least 18 years old.

A jury then found Houser guilty of patronizing a prostituted child. The trial court sentenced him to 30 days in jail, with 10 days’ credit for time served, and sex offender intensive supervised probation for an indeterminate term of 10 years to life. Six years later, after Houser failed to comply with the terms of his probation, the trial court resentenced him to two years to life in the custody of the Department of Corrections. Houser appealed the district court’s order denying his Crim. P. 35(c) motion for postconviction relief. The postconviction court rejected Houser’s constitutional arguments and his claims of ineffective assistance of counsel without a hearing.

The Colorado Court of Appeals affirmed the postconviction court’s denial of Houser’s constitutional arguments and also affirmed the portion of the postconviction court’s order addressing Houser’s claim that his trial counsel was ineffective for failing to raise novel arguments. The court held that an attorney cannot be deemed ineffective solely because he or she did not take positions unsupported or not “clearly foreshadowed” by then-existing law. In addition, it affirmed the portion of the order holding that Houser is not entitled to a hearing on his claim that his attorney was ineffective for failing to raise a valid defense, because that claim fails as a matter of law. However, the court reversed the postconviction court’s denial of Houser’s claims that his counsel was ineffective for not challenging the out-of-court identification of Houser and the search warrant resting on such identification, and not challenging the prosecution’s alleged outrageous conduct in forcing his first attorney to withdraw. The case was remanded to the postconviction court for a hearing on those claims.

Lannie v. Board of County Commissioners

In Colorado, residential land is taxed at a significantly lower rate than vacant land. This variance in the tax rate has spawned a plethora of cases in which taxpayers with combinations of residential and vacant parcels have sought to have the vacant land reclassified as “residential land,” which requires a showing the vacant parcel is contiguous with the residential parcel; the parcels are under common ownership; and the parcels are used as a unit. Divisions of the Court of Appeals have come to differing conclusions as to the meaning of each of these criteria.

Earlier this year, the Colorado Supreme Court addressed three such cases, each of which involved a dispute over one of the three requirements: Mook v. Board of County Commissioners, Kelly v. Board of County Commissioners and Hogan v. Board of County Commissioners. The court affirmed the divisions’ judgments in Mook and Hogan, reversed the division’s judgment in Kelly, and provided guidance on each of the three criteria. In the wake of Mook, several cases, including this one, were remanded for reconsideration in light of the court’s decision.

This case involves two of the three criteria — whether the parcels were under common ownership and whether they were used as a unit. To resolve the first issue, a division of the Colorado Court of Appeals must answer a question left open in Mook: Does “common ownership” under the tax code require that identical parties hold record title to each contiguous parcel? It answered that question “yes.” Because the parcels were not under common ownership during two of the three tax years at issue in this case, the division affirmed the decision of the Board of Assessment Appeals for those two years. The division reversed the decision of the BAA for the third tax year and remanded the matter for consideration of whether the parcels were used as a unit under the analysis announced in Mook.

The division concluded that identical ownership is required.

People v. Sims

In 2014, a jury convicted Dustin Sims of eluding or attempting to elude a police officer, aggravated driving after revocation prohibited and two lesser offenses. On direct appeal, a division of Colorado Court of Appeals concluded that police officers had given improper opinion testimony at trial about whether Sims’s conduct amounted to “eluding,” which was an ultimate issue to be decided by the jury. The division reversed in part and remanded for a new trial on the charges of eluding or attempting to elude and aggravated DARP. 

At the second trial, Sims was again found guilty on those counts and filed an appeal. Sims first contended that the evidence was insufficient to sustain his conviction for eluding or attempting to elude a police officer (without that conviction, his DARP conviction would not be aggravated). Second, he contended that his eluding or attempting to elude conviction should have been merged into his conviction for aggravated DARP.

A division of the Court of Appeals disagreed with his first contention but agreed with the second. It affirmed the judgment in part, vacated it in part and remanded for further proceedings.

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