November 30, 2005

The court of appeals will issue the following decisions tomorrow, including 19 published decisions. I will post the published decisions tomorrow and will provide summaries of them. I have to confess, though, that 19 decisions is a lot to summarize, so it may take me a few days to get them all done without completely neglecting my day job. Thanks for your patience.

PUBLISHED OPINIONS

No.: 02CA2233 People v. Stephen Mark Skufca
No.: 03CA0207 People v. Camilo Cevallos-Acosta
No.: 03CA0241 People v. Jonathan W. Lopez
No.: 03CA1820 People v. David Warren Veren
No.: 03CA2276 People v. Jimmy Dale McIntier
No.: 03CA2518 People v. Ervin Isom
No.: 04CA0923 Raymond E. Keith, et al. v. Stephen H. Kinney
No.: 04CA1074 Thomas Brown v. Steven Silvern and Concerning John L. Springer and Darin L. Schanker
No.: 04CA1085 Pat’s Construction Service, Inc. v. Insurance Company of the West
No.: 04CA1379 Leprino Foods Company and Ace, U.S.A v. Industrial Claim Appeals Office of the State of Colorado and Brenda Rivera
No.: 04CA1401 Titan Indemnity Company, et al. v. School District No. 1 in the City and County of Denver
No.: 04CA1406 Stephen H. Kinney, et al. v. Raymond E. Keith, et al.
No.: 04CA1558 People v. Susan M. Noel
No.: 04CA1654 People v. Scott C. McNally
No.: 04CA1963 Johnene L. Foster v. Timothy J. Redd, DC, et al.
No.: 04CA2078 Marriage of Kara Fiffe and Patrick Fiffe
No.: 04CA2636 People v. Hassan McGlotten, et al. and Concerning Valeri Barnes
No.: 05CA0081 Union Carbide Corporation, et al. v. Industrial Claim Appeals Office
No.: 05CA1123 People in the Interest of K.T., a/k/a K.P., a Child and Concerning C.T.

UNPUBLISHED OPINIONS

No.: 03CA1331 Dr. Kishan K. Khanna v. Charles W. Elliott
No.: 03CA1864 People v. Alan David Swendra
No.: 03CA2162 People v. George Harvey Henderson, Jr.
No.: 03CA2369 People v. Thomas Ray West
No.: 03CA2448 People v. Charles J. Shirley, Jr.
No.: 03CA2531 People v. Travis A. Rodgers
No.: 04CA0124 People v. Randy A. Davis
No.: 04CA0137 People v. George T. Donnelly
No.: 04CA0143 People v. Craig L. Poindexter
No.: 04CA0204 East Cherry Creek Valley Water and Sanitation District v. Rangeview Metropolitan District, et al.
No.: 04CA0289 People v. Shane Stevens
No.: 04CA0373 People v. Joe Brooks Davis
No.: 04CA0374 People v. Joe Brooks Davis
No.: 04CA0379 People v. Allen K. Miller
No.: 04CA0710 Marriage of Sherrie Anthony Nunn and Steven J. Foster
No.: 04CA1298 People v. Carey A. Griffin
No.: 04CA1378 Estate of Jeroba Wright, et al. v. City and County of Denver; et al.
No.: 04CA1425 People v. Leslie M. Wilson
No.: 04CA1659 Molly R. Netherland v. Paul A. Netherland and Mike Netherland
No.: 04CA1693 People v. Randy Mitchell Romero
No.: 04CA1993 People v. Jacques P. Ward
No.: 05CA0283 Carlos Enriquez v. Industrial Claim Appeals Office
No.: 05CA1152 RE-MAC, Inc., Fashions Re-run
No.: 05CA1209 People in the Interest of S.W., a Child and Concerning S.W.
No.: 05CA1360 People in the Interest of D.E., III, a Child and Concerning J.S., n/k/a J.E., and D.E., Jr.
No.: 05CA1860 People in the Interest of V.G.G-B., a Child and Concerning L.G., a/k/a L.L.F.

November 28, 2005

Here are today's supreme court announcements. The court issued one decision, summarized below. The court did not grant cert. in any cases.

In a water rights appeal, the supreme court addressed whether, under C.R.S. § 37-92-305, a plan for augmentation must include terms and conditions to protect an instream flow right against injury caused by out-of-priority diversions, including diversions made from points associated with senior water rights. The court held that the noninjury requirement applicable to changes of water rights also applies to augmentation plans affecting instream flow rights. The court also held that an adjudicated instream flow right entitles its holder to maintain the stream conditions existing at the time of its appropriation and to resist proposed developments through changes of water rights or augmentation plans, regardless of the means, that in any way materially injure instream flow rights. The court said, "This rule best effectuates the clear legislative intent to protect and preserve the natural habitat through minimum streamflows. In the absence of this rule, senior diverters could simultaneously increase the supply of water yet divert around or from an existing instream flow right by a water project exchange or other means." The court concluded that § 37-92-305 "plainly requires an augmentation plan affecting a vested instream flow to include in its decree terms and conditions protecting said instream flow from injury." The court therefore reversed the water court’s determination of law that “Central City is not required to include terms and conditions in its proposed decree that would protect the Board’s junior instream flow right from diminished flows resulting from Central City’s operation of the plan for augmentation.” Concerning the Application for Water Rights of the City of Central

November 23, 2005

Here are today's court of appeals announcements. The court issued only unpublished decisions.

The court's oral argument calendar for January 2006 is here.

Have a happy and safe Thanksgiving.

November 22, 2005

The court of appeals will release the following unpublished decisions tomorrow:

No.: 03CA0099 People v. Ahasuerus Bildad, Jr.
No.: 03CA1021 People v. Sergio Rafael Garibay-Dominguez
No.: 03CA2238 Bowman Farming Company, et al. v. Wells Fargo Bank (Colorado) National Association
No.: 03CA2444 People v. Ricky Cleveland
No.: 04CA0099 People v. Arturo Hernandez
No.: 04CA0895 People v. Dennis L. Gomez
No.: 04CA0932 Kenneth A. McKee, by his duly appointed guardian and conservator Ann McKee, and Ann McKee, individually and Pinnacol Assurance v. Aardvark Sign Company, LLC, d/b/a Quicksign
No.: 04CA1225 People v. Benito Negron
No.: 04CA1412 Anthony Porter, et al. v. Infinity Development Associates, LLC
No.: 04CA1471 In re the Marriage of Aaron Spatziani and Stephanie Majors
No.: 04CA1522 People v. Johnny Edward Martinez, a/k/a John E. Martinez
No.: 04CA1798 In re the Marriage of Brenda Grant, k/n/a Brenda Mager and William Grant
No.: 04CA1821 Justin Hersey, et al. v. Reginald S.Y. Lee
No.: 04CA2408 People v. Kenneth Walters
No.: 04CA2553 In re the Marriage of Sherry A. Lee and Thomas E. Lee
No.: 04CA2599 Linda Giddings v. Industrial Claim Appeals Office, et al.
No.: 04CA2665 People v. Robert D. Gandy
No.: 05CA0275 Mariquita Moran v. Industrial Claim Appeals Office, et al.
No.: 05CA0471 Karen M. Ellingson v. Industrial Claim Appeals Office, et al.
No.: 05CA0582 In re the Marriage of Jennifer Anderson v. Michael D. Saftler
No.: 05CA0683 Eugenia L. Geremaia v. Ranger H. Geremaia
No.: 05CA0700 Lon R. Horwitz, et al. v. Industrial Claim Appeals Office, et al.
No.: 05CA0938 Peter G. Boden v. Industrial Claim Appeals Office, et al.
No.: 05CA1109 Yann Ching v. Industrial Claim Appeals Office, et al.
No.: 05CA1224 DeMorris D. Martin v. Industrial Claim Appeals Office, et al.
No.: 05CA1248 In re the Marriage of Kristine A. Trujillo, n/k/a Kristine Schausten and Timothy R. Trujillo
No.: 05CA1481 Flora M. LaBrec v. Industrial Claim Appeals Office, et al.
No.: 05CA1637 Tshaka Zekelkeyzulu v. Industrial Claim Appeals Office, et al.

November 21, 2005

Here are today's supreme court announcements. The court issued two opinions, summarized below. The court did not grant cert. in any cases.

The supreme court clarified the proper procedure for addressing a C.R.C.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction. The court held that a trial court may not resolve disputed jurisdictional facts against the plaintiff unless it conducts an evidentiary hearing and makes findings. Since there was no evidentiary hearing in this case, the court reviewed de novo the documentary filings of the parties and concluded that the plaintiff failed to establish a prima facie showing of personal jurisdiction over one of the defendants (AGD), but did make a prima facie showing over the other, Lukoil. The court remanded for further proceedings to address the personal jurisdiction of Lukoil. Archangel Diamond Corp. v. Lukoil

Employee of sheriff's department was advised that any statements she made during an
internal civil investigation could not be used against her in subsequent criminal proceedings. The employee was represented by counsel and did not rely on that advisement. The supreme court held that the apparent authority test set forth in People v. Fisher, 657 P.2d 922 (Colo. 1983), was not satisfied. The court said that for the apparent authority doctrine to apply, the government official making the offer of immunity must in fact lack authority to grant immunity; and the person to whom the offer is made must rely upon the offer of immunity. Because the employee did not rely on the offer of immunity, use immunity could not be implied. The court then held that the employee's attorney did not commit malpractice by advising the employee not to participate in the internal investigation because her statements could be used in subsequent criminal proceedings. The sheriff’s advisement here, which instructed the employee that she could be disciplined or terminated if she did not cooperate with the internal investigation, was ambiguous. As a matter of law, the advisement could reasonably be construed to either satisfy or not satisfy the test of whether testimony is unconstitutionally compelled, as articulated in People v. Sapp, 934 P.2d 1367 (Colo. 1997). Therefore, by advising the employee not to participate in the internal investigation, the attorney did not breach his duty to employ the level of judgment ordinarily possessed by members of the legal profession. Justice Coats dissented, concluding that any statements the employee would have made after the sheriff's advisement would have been involuntary and therefore inadmissible in a later criminal proceeding. Accordingly, Justice Coats concluded that the attorney was not necessarily relieved of malpractice liability, and the matter should have been returned to the trial court for further proceedings on the malpractice question. Hopp & Flesch, LLC v. Backstreet

November 17, 2005

Here are today's court of appeals announcements. The court issued 8 published decisions, summarized below.

Claim by homeowners under Colorado Surface Coal Mining Reclamation Act, C.R.S. § 34-33-101, et seq., was not barred by res judicata or principles of tort law governing permanent injuries to real property. Homeowners had been awarded $48,000 in an earlier lawsuit for damages to their home caused by a mining operation. In a second lawsuit they recovered in excess of $600,000 and attorney's fees. The court of appeals affirmed, concluding that the earlier injury was not a permanent injury that would preclude recovery. Tatum v. Basin Resources, Inc.

C.R.S. § 18-18-415(1)(b), which states "Information communicated to a practitioner in an effort to procure a controlled substance other than for legitimate treatment purposes or unlawfully to procure the administration of any such controlled substance shall not be deemed a privileged communication," is not unconstitutional on its face or as applied. The court rejected the defendant's claims that the statute was unconstitutionally vague. People v. Harte

Court of appeals concludes that if the law is unsettled at the time of trial, plain error analysis will be conducted using the status of the law at the time of trial, not the law at the time of appeal.
People v. O’Connell

Court rejects challenge to admission of testimony from police officer, who had not been qualified as an expert witness, to testify about the likelihood of picking offenders out of photo arrays. The court held the evidence admissible under CRE 701. The court found error in admitting testimony over a CRE 403 objection, but found the error to be harmless. People v. Rincon

Default judgment against defendant, who acted pro se but was an attorney, was affirmed despite his claim that he was mentally incompetent. The trial court had appointed a guardian ad litem, but the defendant refused to cooperate with the GAL, so the court entered the default judgment. McWherter v. Fischer

De novo review is the proper standard for appellate review of a trial court's ruling on the enforceability of a forum selection clause. On the merits, the court upheld the district court's dismissal of the action in light of a forum selection clause that specified Illinois as the forum. The court held that the public policy exception to the enforceability of such clauses did not prevent enforcement of the clause in this case. Adams Reload Company, Inc. v. International Profit Associates, Inc.

In an important case for pretrial motions practice in civil cases, the court of appeals, following federal procedure, holds that in ruling on a C.R.C.P. 12(b)(5) motion to dismiss, the trial court may rely on a dispositive document upon which the plaintiff relies . This rule is necessary because “If the rule were otherwise,a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied.” The court also held that where the trial court certified as final under C.R.C.P. 54(b) only part of the case, only those issues could be appealed. The court dismissed the appeal as to issues not within the scope of the 54(b) certification. Yadon v. Michael R. Lowry

District court erred in reversing a driver's license revocation order based solely upon the Department of Revenue's failure to file a brief. Under both the standard of review of C.R.S. § 42-2-126(10)(b) and the restrictions imposed by C.R.C.P. 55(e), the district court could not reverse the revocation based solely upon the Department’s failure to file a brief. Myers v. Department of Revenue

November 16, 2005

The court of appeals will issue the following decisions tomorrow, including 8 published ones:

PUBLISHED OPINIONS

No.: 03CA0750 Jim Tatum, et al. v. Basin Resources, Inc.
No.: 03CA1366 People v. William Henry Harte
No.: 03CA1702 People v. Erik Scott O’Connell
No.: 03CA1748 People v. Alberto B. Rincon
No.: 04CA0808 Jack McWherter, et al. v. Paul S. Fischer, d/b/a Paul S. Fischer and Associates
No.: 04CA1253 Adams Reload Company, Inc., et al. v. International Profit Associates, Inc.
No.: 04CA1681 Kenneth E. Yadon, et al. v. Michael R. Lowry, et al.
No.: 04CA2179 Steve Myers v. State of Colorado Department of Revenue, Motor Vehicle Division

UNPUBLISHED OPINIONS

No.: 03CA0715 People v. Leonard Cornell Baker
No.: 03CA0901 Joseph M. Trigg v. State Farm Mutual Automobile Insurance Company
No.: 03CA1053 People v. William Campbell
No.: 03CA1430 People v. Ronald Lee Smith
No.: 03CA1523 People v. Brian Edward Paxton
No.: 03CA1530 People v. Brian Arthur Mills
No.: 03CA1818 People v. Christopher Vaughn
No.: 03CA2069 People v. James J. McVickers
No.: 03CA2437 People v. Daniel Pesengulo Lucero
No.: 04CA0402 People v. Arthur J. Moore
No.: 04CA0686 Leprino Foods Company v. Feldmeier Equipment, Inc.
No.: 04CA1038 People v. Carlton L. Stuckey
No.: 04CA1259 MEP CAD, Inc. v. Scott L. Terrell, P.C.
No.: 04CA1495 People v. Jeffrey James Schulze
No.: 04CA1586 People v. Manuel Robert Castro
No.: 04CA1773 Board of County Commissioners of the County of San Miguel v. Lisa Dawn Gold
No.: 04CA1978 People v. Stanley L. Ellsworth
No.: 04CA2120 People v. Tracy Catherine Osburn
No.: 04CA2566 Shane Stevens-El v. Al Estep, LCF Warden, et al.
No.: 04CA2609 Olga Mondragon v. ICAO
No.: 04CA2631 People v. Ronn Wyman
No.: 04CA2689 Speedy Messenger & Delivery Service v. ICAO
No.: 05CA0152 People in the Interest of J.P. and D.C.P., Children, and Concerning D.P. and R.P.
No.: 05CA0447 People v. Ronald E. Turner
No.: 05CA0667 Deborah L. Ortega v. ICAO
No.: 05CA1061 Shawna L. Genova v. ICAO
No.: 05CA1200 Lawrence M. Feld v. ICAO
No.: 05CA1266 People in the Interest of R.S., V.S., and O.W., Children, Upon the Petition of Mesa County Department of Human Services, and Concerning J.S. and N.S.
No.: 05CA1607 People in the Interest of L.L., III, a Child, and Concerning A.G.
No.: 05CA1695 People in the Interest of A.P., a Child, and Concerning M.P.

November 15, 2005

Here are today's supreme court announcements. The court issued two decisions, including Harris v. Denver Post, arising out of the Columbine tragedy. The decisions are summarized below. The court did not grant cert. in any cases.

Recordings made by the Columbine perpetrators fell under the Colorado Criminal Justice Records Act, not the Colorado Open Records Act. Because the Sheriff obtained the recordings pursuant to a search warrant that had not been invalidated, and used them to investigate crimes connected with the Columbine killings, the recordings are criminal justice records under the CCJRA and are subject to the Sheriff’s exercise of sound discretion to allow the requested inspection or not, utilizing a balancing test taking into account the relevant public and private interests. The supreme court unanimously reversed the court of appeals' conclusion that the records fell within the Open Records Act. The supreme court remanded with directions for the district court to order the Sheriff to determine under the CCJRA whether or not to allow the Denver Post’s inspection request. Harris v. The Denver Post Corp.

Supreme court rejects Crim. P. 35(a) motion to correct illegal sentence. The defendant argued that his sentence was illegal because it included mandatory parole. The supreme court concluded that he could because the “factual basis” for his conviction met the statutory requirement of C.R.S. §17-2-201(5)(a) that it “involved an offense involving unlawful sexual behavior.” In so holding, the court interpreted "factual basis" to mean "the conduct of the defendant that makes him guilty of a
crime as determined by a court from the facts admitted, stipulated, or found by a jury." Justice Coats, joined by Justice Kourlis, concurred in the judgment only, concluding that the defendant was raising a challenge to the validity of his conviction, not the legality of his sentence. He therefore found the defendant's claim time-barred. He also disagreed with the majority's interpretation of "factual basis." People v. Rockwell

November 14, 2005

The supreme court will issue two decisions tomorrow, People v. Rockwell, No. 04SC584, and Harris v. The Denver Post Corp., No. 04SC133 (arising out of the Columbine tragedy). Both cases were argued in September, and you can listen to those arguments at this link.

November 11, 2005

Hats off to all the veterans, living and gone, for their profound sacrifice and loyalty to the Nation and the freedoms we cherish.

Veteran's Day has the courts closed. But the supreme court posted this announcement on its website:

Announcements will be released on Tuesday, November 15th. Any opinions being released on November 15th will be listed on Monday with a link to the oral argument.

So I will have the list of any opinions on Monday and the announcemenets and any summaries on Tuesday. Have a good weekend. If you get the chance, thank a vet.

November 10, 2005

The court of appeals' announcements for today are here. The court issued only unpublished decisions.

There are three original proceedings in which the supreme court has recently issued rules to show cause, No. 05SA294, In re People in the Interest of Roth, No. 05SA308, In re In the Matter of Sherwood, and No. 05SA310, In re People v. Muckle. The issues in those cases can be found at this original proceedings link.

November 9, 2005

The supreme court's argument calendar for December is here. The court will hear arguments on December 6-8, including several Blakely appeals. On December 7, the court will sit at Arapahoe High School and hear two arguments, including the Denver gun ordinance case.

The court of appeals will issue the following unpublished decisions tomorrow:

No.: 04CA0017 People v. Joshua Brian Leigh
No.: 04CA0207 People v. Thomas Scott Hawley
No.: 04CA0282 In re the Marriage of Cynthia L. Sisson and Clark S. Spalsbury, Jr.
No.: 04CA0769 Bahman Hemmat v. Thomas Sassone
No.: 04CA0836 People v. Cortez Henderson, Jr.
No.: 04CA1173 Corey L. Weese v. American Family Mutual Insurance Company
No.: 04CA1836 People v. Jason Matthew Perry
No.: 04CA1873 Adair Group, Inc. v. Points of Colorado, Inc.
No.: 04CA1945 In re the Marriage of Brenda Kay Foote and Thomas Arnold Foote
No.: 04CA1966 Wendy Brownson-Rausin v. Industrial Claim Appeals Office
No.: 04CA1996 People v. Michael Yelinek
No.: 04CA2010 People in the Interest of T.J.M.
No.: 04CA2101 People v. Rafael Lazcano
No.: 04CA2184 People v. David P. Doremus
No.: 04CA2382 In re the Marriage of Jeffrey S. Gutfreund and Margaret Hughes
No.: 05CA0023 People in the Interest of K.A., M.A., and S.A., Children, Upon the Petition of Adams County Department of Human Services and Concerning K.A.
No.: 05CA0248 In re the Marriage of Elizabeth Hoffman, n/k/a Elizabeth Anthony and Curtis T. Hoffman
No.: 05CA0256 People in the Interest of M.L., a Child and Concerning L.L.
No.: 05CA0338 People in the Interest of L.H., a Child, Upon Petition of the Jefferson County Department of Human Services and Concerning M.R.H. and F.M.J.
No.: 05CA0391 People in the Interest of B.M.A., a Child and Concerning L.L.G. and D.M.A.
No.: 05CA0654 Michael McDade v. Industrial Claim Appeals Office, et al.
No.: 05CA1081 Tisla J. Akbar v. Industrial Claim Appeals Office, et al.
No.: 05CA1237 Kathleen Klen v. Industrial Claim Appeals Office, et al.
No.: 05CA1591 People in the Interest of K.K., a Child and Concerning V.R.

November 7, 2005

The supreme court's announcements are here. The court issued three decisions, summarized below. The court also granted cert. in two cases, as noted below. The court denied cert. in an appeal by Nathan Dunlap.

Driver's license revocation was not invalid because officer's Affidavit and Notice of Revocation was not notarized or otherwise affirmed. The court held that a “verified report” under C.R.S. § 42-2-126(3)(b) (repealed) need not be notarized or otherwise affirmed before a third party. Dept. of Revenue v. Hibbs

In a water court appeal, the court affirmed a decision of the water court enjoining the appellant from continuing to violate C.R.S. § 37-84-112(1), by failing to maintain a suitable and proper headgate at the point of diversion from the Purgatoire River into the Dolores Duran Ditch. The court held that the record evidence supported the water court's findings. Tatum v. People

Sentencing court’s reliance on one Blakely-exempt or Blakely-compliant aggravating sentencing factor is sufficient to support an enhanced sentence as stated in Lopez v. People, 113 P.3d 713 (Colo. 2005). Therefore, the sentencing court permissibly aggravated defendant’s sentence based on his prior felony convictions, which are Blakely-exempt factors. Justice Coats, joined by Justice Kourlis, concurred in the judgment only. DeHerrera v. People

The court granted cert. in the following two cases:

People v. Heredia, No. 05SC508, on this question:

Whether the district court has jurisdiction to grant the People’s Crim. P. 35(a) motion to correct illegal sentence after the Colorado Supreme Court reverses the Colorado Court of Appeals’ erroneous interpretation or application of a statute.

B.H. v. People, No. 05SC686, on this issue:

Whether failure to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. section 1901, et. seq, was reversible error.

November 4, 2005

The supreme court will issue three decisions on Monday, No. 04SC759, Dept. of Revenue v. Hibbs; No. 04SA382, Tatum v. People; and No. 04SC446, DeHerrera v. People (a case addressing a Blakely issue).

November 3, 2005

It just dawned on me that this blog had its second anniversary eleven days ago. I guess if I'm going to forget an anniversary, this is the one to forget. (Don't worry, I haven't yet forgot my wedding anniversary; I'm 7-0 so far.)

As part of the Courts in the Community program, a division of the court of appeals will hear two arguments at Salida High School on November 15. The first case, Drew Sakson Mgmt, Inc. v. Weststar Bank is a civil case in which the bank is appealing a trial court judgment where the court found that the bank made a negligent misrepresentation in the transfer of a promissory note to the management firm. A criminal case, People v. Lynch, is the second case. Mr. Lynch is appealing a jury verdict in which the defendant was charged and prosecuted for theft and conspiracy to commit theft based on allegations that he had abused his authority under a power of attorney. He was charged in a separate action for defrauding a secured creditor. The proceedings will begin with opening remarks at 9:10 a.m. A question and answer session will follow the presentation of each case allowing the students to ask questions of each of the attorneys. At the conclusion of the second argument, the students will also be given the opportunity to participate in a question and answer session with the judges.

Here are today's court of appeals announcements. The court issued 8 published decisions, summarized below.

Trial court misinterpreted C.R.S. § 18-1.3-803(6) when it allowed the prosecution to file habitual criminal counts after defendant pled guilty to escape. The court of appeals held that the habitual criminal statute does not allow a prosecutor, for good cause or otherwise, to add known habitual criminal counts after a guilty plea has been accepted. People v. Rieger

Trial court did not err in enhancing defendant's under C.R.S. § 18-1.3-401(9)(a) where judgment of conviction for felony for which he was out on bond had not yet been entered, but defendant had pled guilty to it. Interpreting that statute, the court of appeals concluded that a guilty plea constitutes a conviction within the meaning of that section. People v. French

Colorado did not have jurisdiction to modify a Nebraska child support order where mother's petition to modify did not satisfy the requirements of C.R.S. § 14-5-611(a) (a provision of the Uniform Interstate Family Support Act). Father resides in Washington and under the statute, Washington is the proper state to address the child support issue. In re Marriage of Hillstrom

For the purpose of retroactive application of a new rule of law such as Crawford, a judgment of conviction cannot be considered final so long as a defendant may directly appeal the conviction or sentence. The court, in a split decision, concluded, however, that it was not plain error to admit a videotaped interview of the child-victim (who was too traumatized to testify). Judge Roman concluded that the child's statements in the interview were nontestimonial and therefore Crawford did not apply. He also concluded that because the defendant did not object to the admission of the videotape, it was not necessary to analyze its admissibility under Ohio v. Roberts and People v. Dement. Judge Graham specially concurred, concluding that defendant's conviction was final before Crawford was decided and therefore Crawford could not apply. Judge Vogt dissented. She agreed with Judge Roman that Crawford could apply because the judgment conviction was not yet final. Unlike Judge Roman, however, she concluded that Crawford did in fact apply because the child-victim's statements were testimonial. She concluded that it was reversible error to admit the statements. I anticipate that cert. will be granted on this case. People v. Sharp

Where one of plaintiff's claims was dismissed for failure to obtain a certificate of review as required by C.R.S. § 13-20-602, attorney fees could not be awarded under C.R.S. § 13-17-201. The dismissal of that claim was not a dismissal under C.R.C.P. 12(b), a necessary requirement to an award of fees under § 13-17-201. Barton v. Law Offices of John W. McKendree

Sentencing scheme under which "rebirthing" defendant was sentenced did not violate equal protection. Defendant was convicted of felony child abuse and sentenced in accordance with C.R.S. § 18-1.3-401(8)(d). The defendant argued, though, that the conduct for which she was sentenced is also proscribed under the statutes addressing crimes against at-risk juveniles, see C.R.S. § 18-6.5-101, and that those statutes prescribe a lesser penalty for the same conduct. The court rejected that argument, concluding that that defendant could not have been convicted of, or sentenced for, “recklessly” causing the death of an at-risk juvenile. Therefore, defendant's postconviction motion was properly denied by the trial court. People v. Watkins

Blakely applies to a sentence that became final two months before Blakely was announced, but after Apprendi was announced. In so holding, the court rejected the People's argument that People v. Johnson, (Colo. App. No. 03CA2339, Apr. 7, 2005) (cert. granted October 11, 2005) was overruled by Lopez v. People, 113 P.3d 713 (Colo. 2005). On the facts, however, the court concluded that defendant's sentence was not illegally aggravated and therefore affirmed. People v. Scott

Court upholds the imposition of a $24,900 penalty for employer’s failure to pay $107.79 in bills incurred by permanently disabled workers' comp. claimant. Because the claimant is confined to a wheelchair due to his injury, cellular telephone services for emergency purposes is a medical necessity and therefore provided by employer. The ALJ found that a daily penalty of $300 per day was warranted for the employer's failure to pay the bill. The court rejected the employer's argument that the penalty was constitutionally excessive. Associated Business Products v. Industrial Claim Appeals Office

November 2, 2005

The court of appeals will issue the following decisions tomorrow, including eight published ones:

Published Opinions

No.: 03CA1900 People v. Richard Lee Rieger
No.: 03CA2477 People v. Oscar French
No.: 04CA0127 In re the Marriage of Robert D. Hillstrom and Lisa A. Hillstrom
No.: 04CA0619 People v. Brett Wayne Sharp
No.: 04CA1155 Lillian Barton v. Law Offices of John W. McKendree and John W. McKendree
No.: 04CA1697 People v. Connell Jane Watkins
No.: 04CA2207 People v. Lorin D. Scott
No.: 04CA2370 Associated Business Products, et al. v. Industrial Claim Appeals Office

Unpublished Opinions

No.: 03CA1078 Martha Wertz v. Rickenbaugh Cadillac Company
No.: 04CA0211 In re the Marriage of Vicki S. Mahfouz and Leon A. Mahfouz
No.: 04CA0643 Lillian Barton v. Law Offices of John W. McKendree and John W. McKendree
No.: 04CA0703 Clayton B. Phillips v. Gary Watkins, et al.
No.: 04CA0754 People v. Joseph Lloyd Altemus
No.: 04CA0800 People v. Brian G. Stockdale
No.: 04CA0851 Steve Allison, et al. v. Brett Elliott and B&C Construction
No.: 04CA0992 People v. Gerald Hurley
No.: 04CA1015 Richard A. Davis v. Ronald Bifani, et al.
No.: 04CA1032 Arrowhead Industries Corporation, et al. v. Robert B. Fedyna
No.: 04CA1086 MHW Properties, Inc. v. Gypsum Airpark, LLC
No.: 04CA1116 Helen Louise Mead v. Pitkin County Board of Equalization and Board of Assessment Appeals
No.: 04CA1303 Sean M. Caple v. Financial Indemnity Company
No.: 04CA1314 Stan E. Ekiko v. Industrial Claim Appeals Office
No.: 04CA1327 In re the Marriage of Vaughn William Holcomb and
Debrah Ann Davaz-Czekaj, a/k/a Debrah Ann Piland
No.: 04CA1417 Jim Tatum v. Hal D. Simpson, in his official capacity as State Engineer for the Colorado Department of Natural Resources, Division of Water Resources
No.: 04CA1550 Allan E. Anglund, et al. v. Daniel Michael Murphy
No.: 04CA1932 In re the Marriage of Annette Knight and Mark Allen Knight
No.: 05CA0642 Brad S. Gerstenberger v. Industrial Claim Appeals Office
No.: 05CA0659 Maxim Healthcare and Reliance National Insurance Company v. Industrial Claim Appeals Office
No.: 05CA0877 Irmalinda Martinez v. Industrial Claim Appeals Office
No.: 05CA1172 Rexanne Jones v. Industrial Claim Appeals Office

There is a vacancy on the court of appeals due to the resignation of Judge Piccone. Information on how to apply for the vacancy can be found here. Judge Piccone's resignation is effective December 31. I had a few appeals before her and thought she was a very good judge. I wish her well in her future endeavors.

 

The information on this site does not convey legal advice of any kind.