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Colorado Court of Appeals Opinions
January 5, 2012

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2012 COA 1. No. 07CA1955. People v. Davis.
Competency—Mental Illness—Ineffective Assistance of Counsel—Possession—Distribution—Controlled Substance—Double Jeopardy—Guilty Plea.

Defendant appealed (1) the judgments of conviction for possession and distribution of a controlled substance entered after a jury verdict in No. 06CR10189; and (2) the judgments of conviction for two counts of possession of more than one gram of a controlled substance entered as a result of guilty pleas in Nos. 05CR1486 and 05CR3846. The case was remanded with directions.

Defendant contended that the trial court erred by denying his request to dismiss counsel and represent himself in No. 06CR10189. Courts may deny such requests made by defendants who are competent to stand trial, but whose mental illness renders them mentally incompetent to conduct their trials by themselves. Although the U.S. Constitution does not mandate this result, it permits it. Here, the trial court used the incorrect standard in determining whether defendant was competent to proceed to trial without counsel. Therefore, the trial court must determine on remand whether defendant was so mentally ill when he requested to represent himself that he was incompetent to conduct his trial without the assistance of counsel. If the court finds that defendant was competent to conduct his trial under this standard, the court must vacate the judgment of conviction and proceed accordingly.

Defendant next argued that the trial court erred by not adequately inquiring into his claims that substitute trial counsel was ineffective and labored under a conflict of interest. The record supports the adequacy of the trial court’s inquiry about this issue and the potential conflict of interest caused by defendant’s ethical complaint against counsel, as well as the court’s finding that defendant’s dissatisfaction pertained only to matters of trial preparation, strategy, and tactics.

Defendant further contended that the jury convictions for both possession and distribution of a controlled substance violate constitutional protections against double jeopardy, and that the conviction for possession of a controlled substance therefore must be vacated. Because the evidence was sufficient to support a finding that the possession and distribution charge each was based on a different quantum of drugs, defendant’s conviction on both counts did not violate double jeopardy principles.

Defendant also argued that it was error for the trial court to decline defendant’s request to withdraw his guilty pleas in Nos. 05CR1486 and 05CR3846. The decision to ask a court to withdraw a guilty plea is the defendant’s. Defense counsel is obligated to advise the defendant about the consequences of such a decision, but the defendant should have the last word. Here, because the decision to withdraw the guilty pleas was not a matter committed to substitute trial counsel’s discretion, the court abused its discretion when it declined to consider defendant’s request. The case was remanded for further inquiry on this issue.

2012 COA 2. No. 09CA1634. People v. Morales.
Burglary—Dwelling—Theft—Stipulations—C.R.E. 404(b).

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of second-degree burglary of a dwelling and theft. The judgment was affirmed.

Defendant was charged with burglary and theft in connection with the burglary of a house located on West Cedar Avenue in Denver (Cedar home), which is not part of this appeal. Defendant also was charged with second-degree burglary of a dwelling and theft involving the burglary of a house located on South Stuart Street in Denver (Stuart home). At trial, evidence of the Cedar home incident was admitted as evidence of other acts pursuant to C.R.E. 404(b). The jury found defendant guilty of both second-degree burglary of a dwelling and theft. This appeal followed.

Defendant contended that the trial court abused its discretion by not requiring the prosecution to stipulate to the fact that the DNA from the cigarette butt found in the Stuart home matched his DNA. Defendant’s proffered stipulation would have affected the probative value of the DNA evidence as relevant to defendant’s identity. Therefore, the trial court did not abuse its discretion in refusing to require the prosecution to accept defense counsel’s proposed stipulation. The prosecution was entitled to prove the elements of its case against defendant by relying on DNA evidence and testimony about that evidence, especially because the crux of the prosecution’s case was identifying defendant as the perpetrator of the charged crimes.

Defendant next contended that the trial court abused its discretion in admitting evidence of the Cedar home incident pursuant to C.R.E. 404(b). Due to the high degree of similarity between the Cedar home incident and the facts of the present case, the trial court did not abuse its discretion in admitting the other act evidence for the limited purposes of showing modus operandi, common plan or scheme, and intent.

Defendant also argued that the evidence was insufficient to support his conviction for second-degree burglary of a dwelling. Specifically, he contended that the evidence was insufficient to show that he entered the Stuart home and to show that the Stuart home was a “dwelling.” However, when the owner of the Stuart home cleaned the house two days after the burglary, he found a cigarette butt with defendant’s DNA in the kitchen. This was sufficient evidence to allow the jury to conclude that defendant entered the Stuart home. Additionally, although the home was uninhabited and was being “professionally remodeled” at the time of the burglary, it was still a “dwelling,” because it was intended to be used for habitation in the future.

2012 COA 3. No. 10CA2141. Shirk v. Forsmark.
Adoption—Department of Social Services—42 U.S.C. § 1983—Abuse—Injuries—Foster Care—Qualified Immunity.

Defendants Joan Forsmark, Cathy O’Donnell, and Angela Lytle, who are all employees of the Adams County Department of Social Services (Department), sought review of the trial court’s orders denying their motions for summary judgment, which asserted qualified immunity for their discretionary decisions as government officials regarding claims arising from the placement and adoption of foster children. The orders were affirmed.

Plaintiffs Michael and Joanna Shirk filed this action individually and on behalf of their adopted children, B.N.S., R.T.S., and B.K.S., who were in the Department’s custody from approximately August 2000 through their adoption in August 2003. The case from which this interlocutory appeal arises involves 42 U.S.C. § 1983 claims on behalf of children for injuries suffered in connection with their foster care placement and adoption.

Defendants contended that because their conduct did not constitute a violation of a clearly established constitutional right, the trial court erred in denying them qualified immunity. Children in the state’s legal custody have a clearly established “constitutional right to be reasonably safe from harm; and that if the persons responsible place children in a foster home or institution that they know or suspect to be dangerous to the children they incur liability if the harm occurs.” Here, plaintiffs alleged that Forsmark placed the children in an obviously dangerous foster home because (1) there were previous reports of abuse at that home; (2) the previous foster mother, Penny Staley, had been placed on the central registry for child abuse; (3) two of Staley’s adoptive children were reported for sexually abusing other children; (4) Forsmark and O’Donnell ignored many signs of ongoing sexual abuse while the children were at the Staley home; and (5) defendants failed to disclose to the Shirks the abuse, including incestuous behavior between the children. Because plaintiffs' alleged conduct violated the constitutional rights of B.N.S., R.T.S. and B.K.S, defendants were not entitled to summary judgment based on qualified immunity.

2012 COA 4. No. 10CA2533. Gessler, Colorado Secretary of State v. Doty, Arapahoe County Clerk and Recorder.
Injunction—Election—Mail-in Ballots—Polling Place—Cost—County—Unfunded Mandate Statute.

Defendants, Nancy Doty, in her official capacity as the Clerk and Recorder for Arapahoe County, and the Arapahoe County Board of County Commissioners (Board), appealed the court’s injunction in favor of plaintiff, the Colorado Secretary of State (SOS), requiring the county to bear the cost of providing drop-off boxes for mail-in ballots at every polling place on election day. The judgment was affirmed.

In 2009, the General Assembly passed House Bill 1186, amending Colorado’s Election Code (Code), CRS § 1-8-113(1)(a), to permit voters personally to deliver mail-in ballots “on election day to any polling place in the county in which the elector is registered to vote.” An effect of this amendment was to require Arapahoe County to make available 197 additional drop-off locations for mail-in ballots during the 2010 general election, at an alleged added cost of $80,000.

The Board argued that the court erred in requiring it to provide additional services without appropriate funding from the SOS. Specifically, the unfunded mandate statute provides that any new SOS mandate or increase in the level of service for an existing SOS mandate that is not accompanied by a reimbursement to cover local governments’ costs “shall be optional on the part of the local government.” CRS § 1-5-505(1), however, is unequivocal; it provides that “the costof conducting general, primary, and congressional vacancy elections . . . shall be a county charge.” Even if CRS § 1-8-113(1)(a) is an SOS mandate, it supersedes the unfunded mandate statute. Thus, by its terms, the Code requires that the Board provide and bear the costs of providing election services to whatever extent dictated by the General Assembly, notwithstanding that changes in required services may create additional costs. Accordingly, the trial court correctly determined that counties must provide drop-off boxes for mail-in ballots at every polling place on election day.

2012 COA 5. No. 11CA0439. Colorado State Board of Pharmacy v. Priem.
Pharmacy License—Application—Rehabilitation—Reinstatement—Due Process.

Loren Priem appealed the Final Agency Order (Final Order) of the Colorado State Board of Pharmacy (Board), which denied Priem’s application to become a pharmacy intern. The order was affirmed.

While he was a licensed pharmacist in Colorado, Priem stole more than 1,500 tablets of schedule II controlled substances, as well as other drugs, worth more than $5,000 from the pharmacies where he worked. He sold or gave away the drugs to persons who did not have prescriptions for them, one of whom was an addict. As a result of these actions, criminal charges were brought against Priem, and he relinquished his pharmacist license. He was convicted of two felonies and a petty offense.

Three years after relinquishing his license, and after completing his sentence, Priem applied to be a pharmacy intern. In its Final Order, the Board adopted the administrative law judge’s (ALJ) findings of fact, including the finding that Priem had been rehabilitated. However, the Board disagreed with the ALJ’s conclusion and denied Priem’s application.

On appeal, Priem asserted that the Final Order must be reversed because his due process rights were violated. Priem claimed that the Chief Inspector—who investigated the case against him, served as the Board’s advisory witness, and advocated for denial of his license—should not have been present during the Board’s deliberations. The Court of Appeals noted that it did not condone the presence of the Chief Inspector during deliberations, but upheld the decision because the remedy would have been to remand to the Board, and this remedy was waived by Priem.

Priem also contended that the Board erred in denying his application on the merits. Neither CRS § 24-5-101 nor Colorado case law supports Priem’s contention that reinstatement of his license was mandatory on his demonstration of rehabilitation. The Board can substitute its judgment for that of an ALJ with respect to an ultimate conclusion of fact, and the Board’s determination of such an issue will be upheld if it has a reasonable basis in law and is supported by substantial evidence in the record. Additionally, the Board may deny an application for licensure when the applicant has engaged in activities that are grounds for discipline. Here, there was substantial evidence in the record as a whole to support the Board’s decision to deny Priem’s application for licensure based on the pertinent circumstances surrounding his prior convictions.

2012 COA 6. No. 11CA2467. Farm Deals, LLLP v. Colorado Dep’t of Revenue.
Timeliness Under C.A.R. 4.2.

Petitioners filed a petition to appeal an interlocutory order of the trial court pursuant to CRS § 13-4-102.1 and C.A.R. 4.2, as well as a motion for leave to file the petition late. The motion was denied and the petition was dismissed.

Petitioners filed an appeal in the trial court challenging determinations by the Colorado Department of Revenue (Department) denying income tax credits for conservation easements during the 2003 tax year. They did not name the transferees of the tax credits as parties, and the Department and its Executive Director moved for an order requiring them to be joined as parties pursuant to C.R.C.P. 19. The court granted the motion over petitioners’ objection. Respondents then filed a motion requesting the court to order petitioners to personally serve each of the transferees (there were approximately eighty of them) with a summons and the complaint. Petitioners argued service by mail was permitted under CRS § 39-21-105.5.

On September 29, 2011, the trial court ruled that CRS § 39-21-105.5 was inapplicable, and that CRS § 39-22-522.5 required petitioners to serve the transferees in accordance with C.R.C.P. 4. On October 19, 2011, petitioners filed a motion requesting certification of the order for an interlocutory appeal under CRS § 13-4-102.1. Respondents opposed on numerous grounds, including that it was not filed with fourteen days of September 29 as required by C.A.R. 4.2(c). The trialcourt granted the motion for certification by order dated November 15, 2011.

On December 7, 2011, petitioners filed their petition to appeal the service of process issues decided by the September 29 order and certified by order of November 15. They also filed a motion to permit the late filing of the petition.

C.A.R. 4.2 was promulgated by the Colorado Supreme Court to establish procedures for applying CRS § 13-4-102.1. Here, petitioners failed to meet the deadline for certifying the appeal fourteen days after the order and failed to meet the deadline for filing with the court of appeals fourteen days after the date of the certification.

The Court of Appeals found that the trial court had no authority to extend the fourteen-day deadline for filing a motion for certification. The Court also concluded that petitioners failed to establish good cause for their failure to meet the jurisdictional deadline of C.A.R. 4.2(d). The Court noted that, pursuant to C.A.R. 26(b), it is authorized to extend the deadline for good cause due to excusable neglect. Here, petitioners’ counsel stated only that he entrusted the filing of the petition to his secretary, who erroneously filed it in the trial court, and that he “is unfamiliar with Lexis Nexis filing.” The Court held these assertions demonstrated carelessness, not excusable neglect. The petition was dismissed as untimely.

Colorado Court of Appeals Opinions