Court Opinions- May 25, 2020

McCulley v. People

In 2000, as part of a plea agreement, Brian McCulley pled guilty to one count of second-degree sexual assault, a class 4 felony, pursuant to a four-year deferred judgment and sentence. Under the agreement, McCulley also pled guilty to one count of third-degree sexual assault. The district court accepted the plea agreement, and McCulley received a four-year deferred judgment and sentence on the felony charge. The court entered judgment of conviction on the misdemeanor and sentenced McCulley to sixty days in jail and two years of probation. The only condition of probation was that McCulley comply with the terms of the deferred judgment. As a condition of his deferred judgment, McCulley was required to register as a sex offender, which he did.

In 2004, McCulley successfully completed the terms of his deferred judgment and sentence. The district court ordered McCulley’s guilty plea withdrawn and dismissed the felony charge. Thus, only a single conviction of third-degree sexual assault ultimately entered in McCulley’s case file. McCulley continued to register as a sex offender and he filed appeals to remove this requirement.

The Colorado Sex Offender Registration bars an individual who “has more than one conviction” for unlawful sexual behavior from petitioning a court to discontinue the requirement to register as a sex offender. The question in this case is whether a defendant who has successfully completed a deferred judgment nonetheless still “has [a]conviction” for purposes of the bar in section 16-22-113(3)(c).

Construing the language of the statute as a whole in the context of the overarching statutory scheme, and considering the commonly understood legal effect of a successfully completed deferred judgment as set forth in section 18-1.3-102(2), C.R.S. (2019), the Supreme Court concluded that a “conviction” for purposes of the bar in section 16-22-113(3)(c) does not include a successfully completed deferred judgment. Because McCulley successfully completed his deferred judgment, he no longer “has more than one conviction” for purposes of section 16-22-113(3)(c) and is therefore eligible to petition the court to discontinue his duty to register. The Colorado Supreme Court reversed the judgment of the Court of Appeals and remanded the matter for further proceedings consistent with this opinion.

Destination Maternity v. Burren

Susan Burren was injured at work, and she received temporary workers’ compensation benefits after her employer admitted liability. Many months passed, with many efforts to treat her injuries, but none of her authorized treating physicians placed her at maximum medical improvement. Her employer and her employer’s insurer sought a second opinion regarding Burren’s MMI status, and Burren subsequently underwent a Division Independent Medical Examination. The DIME doctor who examined Burren also declined to place her at MMI. The employer and insurer then challenged the DIME doctor’s opinion under section 8-42-107(8)(b)(III), C.R.S. (2019), of the Workers’ Compensation Act. An administrative law judge concluded that the employer and insurer had overcome the DIME doctor’s finding. The ALJ then placed Burren at MMI with a finding of no permanent impairment, making Burren ineligible to receive permanent disability benefits. An administrative panel agreed with the ALJ and Burren appealed.

In this workers’ compensation case, the Colorado Supreme Court considers whether an ALJ may place a claimant at MMI after concluding that an employer or an employer’s insurer has overcome the finding of a DIME doctor that a claimant hasn’t reached MMI.

The Supreme Court held that once an ALJ concludes that an employer or an employer’s insurer has overcome a DIME doctor’s MMI opinion, the ALJ may determine the claimant’s MMI status and permanent impairment rating as questions of fact.

In re People v. Huckabay

On May 25, 2019, Donald Huckabay was arrested in Pueblo County and charged initially with misdemeanor DUI, DUI per se and careless driving. The following day, Huckabay was granted release from custody on personal recognizance.

On June 4, the People filed an amended complaint and information charging Huckabay with DUI — fourth or subsequent offense, a class four felony under section 42-4-1301(1)(a), C.R.S. (2019). The People also dismissed the other charges against Huckabay.

On Dec. 30, 2019, Huckabay moved for a preliminary hearing pursuant to section 16-5-301(1)(a), C.R.S. (2019), and Crim. P. 7(h)(1), noting that, according to both of these provisions, a defendant charged with a class four felony requiring “mandatory sentencing” is entitled to a preliminary hearing. Further, Huckabay argued that that the statute setting forth the penalties for felony DUI, section 42-4-1307(6.5)(b), C.R.S. (2019), in fact requires “mandatory sentencing” — at a minimum, a sentence to probation, plus either 90 days’ incarceration in county jail or 120 days in county jail through a work- or education-release program. As such, Huckabay contended that because his class 4 felony DUI charge required mandatory sentencing, he was entitled to a preliminary hearing on that charge.

On Jan. 6, one week after Huckabay filed his motion, the district court issued an oral ruling summarily denying Huckabay’s preliminary hearing request. Huckabay then initiated this C.A.R. 21 matter, relying essentially on the arguments he had advanced in his earlier motion. 

The Colorado Supreme Court ruled, under the provisions in the statutes, a defendant is entitled to a preliminary hearing whenever he is charged with a class 4, 5 or 6 felony and the charge requires the imposition of mandatory sentencing. Further, by its plain meaning, “mandatory sentencing” involves any period of incarceration required by law.

Applying these principles to this case, the court held that Huckabay is entitled to a preliminary hearing because he was charged with felony DUI — a class 4 felony that carries mandatory sentencing either to the Colorado Department of Corrections or to a county jail as a condition of probation. The court therefore made the rule absolute.

People v. Chavez

A jury found Nehemiah Chavez guilty of two counts of attempted second-degree murder and one count of attempted manslaughter. The jury also found that Chavez’s two convictions for attempted second-degree murder were crimes of violence. The district court found that Chavez had three prior felonies and adjudicated him a habitual criminal. On each conviction for attempted second degree murder, the court sentenced Chavez to 64 years in the custody of the Department of Corrections — the mandatory sentence under the habitual criminal statute. Then, the court applied the crime of violence statute’s consecutive sentencing requirement, which provides that a “court shall sentence a person convicted of two or more separate crimes of violence arising out of the same incident so that his or her sentences are served consecutively rather than concurrently.” Because Chavez’s two convictions were crimes of violence arising out of the same incident, the court ordered Chavez’s two sentences to run consecutively. The court also imposed a concurrent twelve-year sentence on the attempted manslaughter conviction. Chavez received an aggregate sentence of 128 years.

On direct appeal, a division of the Court of Appeals affirmed the judgment of conviction. Chavez then filed a Crim. P. 35(b) motion and a supplemental brief in which he contended the court should impose all three of his sentences to run concurrently. He claimed that section18-1.3-406(1)(a)’s consecutive sentencing requirement should not apply where a defendant is sentenced under the habitual criminal statute. The district court denied Chavez’s motion, concluding that the crime of violence statute required it to impose consecutive sentences on his two convictions for attempted second degree murder. Chavez appealed.

Applying the principles of statutory construction set forth in People v. Adams, a division of the Court of Appeals agreed with the trial court and concluded, like an earlier division there is no conflict between the two provisions. The division concluded both provisions applied to Chavez and they required the district court to impose Chavez’s two habitual offender sentences to run consecutively. 

Gieck v. Governor’s Office of Information Technology

In 1918, Colorado amended the state constitution and created a personnel system for state government. The Civil Service Amendment provided that the state personnel system “shall comprise all appointive public officers and employees of the state,” subject to some exceptions. One of those exceptions is employees in the Governor’s and Lieutenant Governor’s offices “whose functions are confined to such offices and whose duties are concerned only with the administration thereof.” In 2006, the General Assembly created an Office of Information Technology in the Office of the Governor, which effectively consolidated all state agencies’ information technology departments into a single department. The legislation permitted state employees who were already part of the state personnel system to retain their status and rights under the Civil Service Amendment when they transferred to GOIT. 

Jeffreyson Gieck is a GOIT employee who was hired in March 2015. He filed a complaint under the Whistleblower Act with the State Personnel Board. As a matter of first impression, a division of the Court of Appeals was asked to interpret the interplay between the Civil Service Amendment and the legislation creating GOIT to decide whether the Board has subject matter jurisdiction to consider Gieck’s complaint under section 24-50.5-104, C.R.S. 2019, or whether, by virtue of his employment in GOIT, he is excepted from the Civil Service Amendment and should have filed his complaint in the district court under section 24-50.5-105, C.R.S. 2019. The Board found it had no jurisdiction. 

Gieck challenged the Board’s order on two grounds. First, he contended that the administrative law judge erroneously interpreted the statute creating GOIT without properly considering the language that allows only certain GOIT employees to retain rights under the state personnel system. Alternatively, he contended that if the statute creating GOIT allows for certain employees to be exempt from the state personnel system and not others, then the statute violates the Civil Service Amendment. 

A division of the Court of Appeals concluded that Gieck is exempt from the Civil Service Amendment as an employee in the Governor’s office and that the statute does not violate the Civil Service Amendment. The court affirmed the Board’s order adopting the findings and conclusions of the ALJ that the Board lacked subject matter jurisdiction to consider Gieck’s complaint and dismissing that complaint. 

Grenillo v. Estate of Joel Hansen

Sherri Grenillo and Joel Hansen were involved in a car accident on Sept. 3, 2014. Grenillo filed a negligence claim naming Hansen as the defendant on Aug. 31, 2017, three days before the applicable three-year statute of limitations was set to expire. After failing to accomplish service of the complaint, Grenillo found out Hansen died, but Grenillo was unable to confirm the date of death. She therefore sought to serve the decedent by substituted service on his insurer. 

Under specified circumstances, Colorado’s remedial revival statute allows a plaintiff to refile an action that was dismissed for lack of jurisdiction within ninety days after dismissal, despite the running of the statute of limitations. A division of the Court of Appeals concluded the remedial revival statute cannot be invoked against a defendant who was not named as a defendant in the original action. The division affirmed the district court’s judgment dismissing Grenillo’s complaint. 

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