Court Opinions- Nov 16, 2020

People v. Williams

The People petitioned for review of the Colorado Court of Appeals’ judgment reversing Williams’s conviction for distributing a schedule II controlled substance. 

At trial, the district court admitted evidence pursuant to CRE 404(b) of a prior incident in which Williams pled guilty to selling cocaine. The Court of Appeals found that the district court abused its discretion in admitting this evidence for the limited purposes of demonstrating “modus operandi and common plan, scheme or design,” largely on the grounds that the evidence in question did not meet the strictures imposed by prior case law for admitting uncharged misconduct evidence pursuant to CRE 404(b) for these particular purposes, and because the error was not harmless. 

Because the incremental probative value of this evidence relative to any material issue in the case was substantially outweighed by the danger that it would be unfairly prejudicial, the district court abused its discretion in admitting it. Although for different reasons, the Colorado Supreme Court affirmed the judgment of the Court of Appeals.

Linnebur v. People

Last year, in the course of deciding whether an in-custody felony DUI defendant is entitled to a preliminary hearing, the Colorado Supreme Court noted it was unclear “whether a repeat DUI offender’s prior convictions are elements of a felony DUI that must be proved at trial” because section 42-4-1301of the 2020 Colorado Revised Statutes, and its related penalty provisions “alternately accord the prior convictions qualities of both elements of an offense and sentence enhancers.” 

Because that case did not require the court to answer the question whether a defendant’s prior DUI convictions constitute an element of felony DUI or merely a sentence enhancer, that element remained undecided.

The Supreme Court concluded the statutory provisions that define and provide penalties for felony DUI treat the fact of prior convictions as an element of the crime, which must be proven to the jury beyond a reasonable doubt, not as a sentence enhancer, which a judge may find by a majority of the evidence. Because the Colorado Court of Appeals erred in arriving at the opposite conclusion, the Supreme Court reversed and remanded for sentencing on the misdemeanor DUI charges that were properly proven to the jury in this case.

People v. Session

Franky Session was convicted of possession of more than four grams of a schedule II controlled substance and sentenced to twenty-four years in prison after the trial court adjudicated him a habitual offender. 

On Sept. 14, 2017, the Colorado Court of Appeals issued its first opinion in this case and affirmed both the judgment of conviction and the sentence. In that opinion, the court concluded the trial court didn’t err by imposing a habitual sentence without undertaking a proportionality review. The court reasoned that even assuming Session’s four drug possession convictions — which were his triggering offense and three of his predicate offenses — aren’t per se grave and serious, because two of his predicate convictions of second-degree burglary and attempted second-degree burglary were per se grave and serious, a proportionality review wasn’t required. 

On Feb. 10, 2020, the Colorado Supreme Court vacated that judgment, and remanded the case back to the Court of Appeals for reconsideration in light of Melton v. People, Wells-Yates v. People and People v. McRae. In Wells-Yates the Supreme Court made the Court of Appeals assumption explicit. 

The Supreme Court also reopened the issue of whether, under its newly articulated standard for determining whether an offense is per se grave and serious, second-degree burglary or attempted burglary is per se grave and serious. 

On reconsideration, a division of the Colorado Court of Appeals affirmed Session’s judgment. It also concluded, under the standard articulated inWells-Yates, second-degree burglary and attempted burglary are no longer per se grave and serious crimes. The division further concluded that, because none of Session’s predicate offenses are per se grave and serious, a proportionality review is required before a habitual sentence can be imposed. And because of the fact-specific nature of that review, it vacated Session’s sentence and remanded the case to the trial court for further proceedings. 

People in Interest of A.P.H.

A.P.H., a juvenile, appealed the magistrate’s order revoking his probation and deferred adjudication. A.P.H. first sought review of the magistrate’s order before the district court, however, the district court held that A.P.H.’s petition for review was untimely because it was filed after an extended deadline had expired. 

A.P.H. directly appealed the magistrate’s order and didn’t ask the Colorado Court of Appeals to review the untimely petition ruling. As a matter of first impression, a division of the Court of Appeals addressed whether, under the Children’s Code and the Colorado Rules of Magistrates, a juvenile appellant must first petition the district court for review of a magistrate’s order revoking probation and imposing sentencing as a prerequisite to seeking the appellate court’s review. 

The division concluded that, pursuant to sections 19-1-108(1) and (5.5), C.R.S. 2019, a juvenile must petition the district court for review of a magistrate’s order revoking probation before the juvenile may pursue review by the Court of Appeals. And this conclusion holds independent of whether consent was given or required for the magistrate to conduct the proceeding from which the juvenile appeals. The division dismissed the appeal for lack of jurisdiction. 

People v. Torline

Aaron Torline, an ordained minister in a cannabis ministry, challenged his convictions for growing and dispensing marijuana on the ground that he uses marijuana for religious purposes. 

A division of the Colorado Court of Appeals concluded that applying Colorado’s law criminalizing the possession and growing of marijuana to a person who conducts such activities for religious reasons does not violate the person’s rights under the Free Exercise Clauses of the United States and Colorado Constitutions. Therefore, the division affirmed Torline’s convictions.

Montezuma Valley Irrigation Company v. Board of County Commissioners of the County of Montezuma

A division of the Colorado Court of Appeals considered the obligations imposed by section 43-5-305(1), C.R.S. 2019, which requires the owner or builder of a ditch, race, drain or flume that crosses a highway to “construct” a culvert, bridge or similar structure and requires the board of county commissioners to “maintain” that structure. 

As a matter of first impression, the division concluded the board of county commissioners’ obligation to maintain such structures includes the obligation to replace the structures. 

People v. Gregory

Jesse Gregory allegedly removed his electronic monitoring device without authorization while on ISP parole. Gregory faced prosecution for felony escape on the date Gov. Jared Polis signed the 2020 Prison Population Reduction and Management Act into law. 

It makes a significant difference whether a defendant is charged with felony escape or the new crime of unauthorized absence — even more so in this case, because, together with the escape count, the prosecution charged Gregory with habitual criminal sentencing enhancers and sought a 48 year sentence. Thus, for Gregory, retroactive application of the unauthorized absence provision of the Prison Reduction Act means the difference between a prison sentence of 48 years and a maximum jail sentence of six months.

The district court agreed with Gregory that the new crime of unauthorized absence applied to him and dismissed the felony escape and habitual criminal charges. The court remanded the case to county court for further proceedings as a misdemeanor unauthorized absence case. The prosecution appealed.

A division of the Colorado Court of Appeals considered for the first time whether a provision of the Prison Reduction Act, and specifically if the language around “unauthorized absence,” applies retroactively. 

The division concluded the unauthorized absence provision does apply retroactively, following the Colorado Supreme Court’s reasoning in People v. Stellabotte.

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