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Colorado Court of Appeals Opinions
April 10, 2014

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.

2014 COA 41. No. 12CA1223. People v. Washington.
Crim.P. 35(c)—Ineffective Assistance of Counsel—Burden of Proof—Prejudice—Evidence.

The victim was shot and killed outside an auto parts store. According to eyewitness accounts, after the shooting, the shooter ran from the store to a car, and the car drove away. One witness viewed a photo lineup and identified defendant Kevin Washington as the person who ran from the store. A jury subsequently convicted Washington of first-degree murder. Thereafter, Washington filed a pro se Crim.P. 35(c) motion alleging ineffective assistance of trial counsel. The post-conviction court rejected Washington’s claims.

On appeal, Washington contended that the post-conviction court reversibly erred in applying the incorrect burden of proof on the prejudice prong of his ineffective assistance claim. The Court of Appeals concluded that the post-conviction court applied the correct burden of proof. Specifically, the Court stated that for Washington to prove prejudice under the 1984 U.S. Supreme Court ruling in Strickland v. Washington, 466 U.S. 668, 8 687-94, he must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court further found that Washington’s claims of prejudice were pure speculation. Accordingly, the court did not err.

Washington also contended that contrary to the post-conviction court’s findings, the evidence at the post-conviction hearing conclusively established that his trial counsel was ineffective. The evidence, however, supported the post-conviction court’s finding that Washington failed to show how trial counsel’s choice not to introduce evidence or present testimony regarding this case, or not to investigate and introduce alibi evidence concerning a 1995 incident, was outside the range of professionally competent assistance. Further, Washington failed to demonstrate any prejudice arising from counsel’s alleged failure to object to the prior acts evidence when it was offered at trial. Therefore, the post-conviction court did not err in finding that trial counsel was not ineffective. The trial court’s judgment was affirmed.

2014 COA 42. No. 12CA1648. People v. Marshall.
Joinder—Objection—Waiver Dismissal.

A grand jury indicted defendant in November 2009 for securities fraud, theft, conspiracy, and organized crime. In February 2012, the prosecution filed a second case by information that contained numerous similar counts. The prosecution moved to join the two cases, but defendant objected, and the court denied the prosecution’s motion. A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case should have been joined with the first case. The court agreed with defendant’s argument and granted his request.

The People argued on appeal that the trial court erred in dismissing the second case against defendant. Defendant’s successful objection to the prosecution’s motion to join the two cases barred his subsequent motion to dismiss the second case, because it was not joined with the first. Therefore, defendant waived his joinder rights under Crim.P. 8(a)(1) and CRS § 18-1-408(2). The judgment dismissing this case was reversed, and the case was remanded to the trial court to reinstate the charges against defendant.

2014 COA 43. No. 12CA2513. In the Interest of Delluomo v. Cedarblade.
Revocable Living Trust—Trustee—Beneficiary—Breach of Fiduciary Duty—Undue Influence—Attorney Fees—Breach of Trust Exception.

Respondent Phillip Delluomo created a revocable living trust. He named himself trustee and Wells Fargo Bank as co-trustee. The beneficiaries of the trust were his niece, appellant Brenda Cedarblade, and his nephew, Timothy Corcoran. A few months after the creation of the trust, Delluomo transferred five parcels of real property from the trust to Cedarblade.

The court thereafter appointed Janice Eder as Delluomo’s conservator. Eder initiated an action on Delluomo’s behalf to quiet title, seeking to set aside the real property transactions involving Cedarblade on the basis of undue influence and breach of fiduciary duty. A jury found that Cedarblade had exerted undue influence on Delluomo with regard to the conveyances of property into joint tenancy. Thus, the court set aside the property transfers to Cedarblade and awarded attorney fees to plaintiffs.

Cedarblade argued on appeal that the court erred in awarding attorney fees to plaintiffs. Cedarblade was not a trustee or custodian of funds (or other trust assets). Although she breached her duty as an individual, she did not breach any duty owed based on a relationship to manage property.

Because the circumstances of this case did not fit within the breach of trust exception to the general rule that parties in a lawsuit must pay their own legal expenses, the Court of Appeals ruled that the district court erred when it denied Cedarblade’s motion for directed verdict and allowed the jury to award attorney fees to plaintiffs. The portion of the judgment awarding attorney fees was vacated.

2014 COA 44. No. 13CA0375. Marymee v. Executive Director, Colorado Department of Corrections.
Unauthorized Absence From Employment—In Forma Pauperis Motion—Due Process—Right to Call Witnesses—Evidence.

Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), was employed at Correctional Industries (CI), a for-profit division of the CDOC. On November 30, 2011, at approximately 3:45 p.m., plaintiff ended his work day without authorization from his supervisor.

Because plaintiff’s supervisor had not excused plaintiff from work, prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC’s Code of Penal Discipline (COPD). Plaintiff was found guilty.

On appeal, plaintiff contended that the district court abused its discretion in denying his motion to proceed in forma pauperis. However, plaintiff had sufficient funds in his inmate account to pay the filing fee, so the trial court was required to deny his motion.

Plaintiff argued that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. Neither CRCP 106 nor 106.5 require that, to obtain judicial review, a written transcript must be prepared. Therefore, the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing. CDOC was ordered to credit plaintiff’s inmate account for the cost incurred for the preparation of the hearing transcript.

Plaintiff further alleged that he was denied his due process right to call his case manager as a witness and present a defense. The case manager, however, was not present during the incident, his testimony would not have been relevant to the disciplinary charge, and his testimony was based on hearsay. Accordingly, plaintiff’s due process rights were not violated by denying his request to call his case manager as a witness.

Plaintiff also argued that the CDOC lacked jurisdiction to decide the merits and evidence before it because the incident report was untimely filed. Due process requires only that an inmate be provided written notice of the charges against him. Therefore, even if the incident report was untimely filed, it does not rise to the level of a due process violation.

Finally, plaintiff contended that there was insufficient evidence to support the disciplinary conviction. Because the record contains “some evidence” that plaintiff left work without permission on November 30, 2011, the hearing officer’s decision finding plaintiff guilty of the charged disciplinary violation was affirmed.

The Court of appeals affirmed the judgment and order. The case was remanded to the district court with directions to refund the cost of the hearing transcript.

2014 COA 45. No. 13CA1090. Robinson v. Ignacio School District, 11JT.
Colorado Governmental Immunity Act (CGIA)—Operation of a Motor Vehicle Waiver—Injuries—Negligent Supervision.

Plaintiff Christie Robinson, individually and as parent and next of friend of her son, C.R., sued defendant, Ignacio School District, 11JT, for injuries C.R. sustained on a school bus. The district moved to dismiss the case for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The trial court partially denied the motion. Robinson’s individual claim and respondeat superior claim for the bus driver’s alleged willful and wanton negligence were dismissed, but Robinson’s negligence claim was allowed to stand.

On appeal, the district contended that the trial court erred in applying the “operation of a motor vehicle” waiver of governmental immunity to a claim for injuries resulting from a school bus driver’s alleged failure to supervise students on a school bus. However, “operation of a motor vehicle” does not extend to a bus driver’s failure to supervise passengers on a bus, because supervision does not require a physical manifestation of operation of a motor vehicle. Negligent supervision does not implicate operation of a motor vehicle, so the district did not waive its sovereign immunity under CRS § 24-10-106(1)(a). Thus, the trial court erred in denying the district’s motion to dismiss for lack of subject matter jurisdiction. The judgment was reversed in part and the case was remanded to the district court to dismiss the complaint.

2014 COA 46. No. 13CA1854. People in the Interest of M.C.S., and Concerning C.S.
Dependency and Neglect—Subject Matter Jurisdiction.

The Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition concerning M.C.S. after it received a report that he was discharged from a teen shelter for possessing a pellet gun. M.C.S., who was only four months away from his 18th birthday, did not want to return home and his father did not want him to return home. Father appeared at the advisement hearing, entered a general denial, and requested a jury trial. Father’s attorney was not available during the ninety-day statutory period prescribed for adjudications, so the court set the case for a jury trial after M.C.S. turned 18.

The Division, joined by M.C.S.’s guardian ad litem, moved for summary judgment. Father responded by denying that he had refused to pick up M.C.S. from the shelter, that he was afraid of M.C.S., or that M.C.S. was beyond his control. He also moved to dismiss because M.C.S. would not be adjudicated before he turned 18 and therefore the juvenile court lacked jurisdiction.

The juvenile court found its jurisdiction terminated when M.C.S. turned 18 without having been adjudicated dependent and neglected, and therefore granted father’s motion to dismiss. The Division appealed. The Court of Appeals affirmed.

The Colorado Children’s Code confers exclusive original jurisdiction in the juvenile court over proceedings “[c]oncerning any child who is neglected or dependent” and the term “child” means “a person under eighteen years of age.” A juvenile court’s subject matter jurisdiction is based on the allegations of a child being dependent or neglected.

The Division asserted that once subject matter jurisdiction vested in the juvenile court through the filing of the petition, it could not be divested after M.C.S.’s 18th birthday. The Court agreed that the petition vested the juvenile court with subject matter jurisdiction at the time it was filed, but that jurisdiction was limited. It only authorized the court to enter temporary orders preceding the adjudication. Because the court did not adjudicate M.C.S. before his 18th birthday, it lost jurisdiction to do so. The order was affirmed.

2014 COA 47. No. 13CA2080. Hoskins v. Industrial Claim Appeals Office.
Unemployment Compensation Benefits—Actively Seeking Work.

Claimant was laid off from his job as an associate attorney in November 2012, at which point he decided to start his own practice. A deputy in the division of employment issued a decision finding that claimant was ineligible toreceive unemployment compensation benefitsfor the week ending December 1, 2012 and the entire period from December 15, 2012 through July 13, 2013, because he failed to supply the required listing of job contacts. A hearing officer affirmed the deputy’s decision, finding that claimant had focused his efforts on developing his own business and thus had not made a “reasonable and diligent effort to actively seek suitable work during the periods at issue.” The Industrial Claim Appeals Office (Panel) upheld the hearing officer’s judgment.

On appeal, claimant argued it was error to find that his efforts to establish his own legal practice did not fulfill the requirement that he actively seek work. Under CRS § 8-73-107(1)(c)(I), a claimant is eligible to receive unemployment compensation benefits for a particular week only if he or she is able to work and is available for all work deemed suitable. In addition, a claimant must be “actively seeking work.” The regulations clarify that a claimant must make “a systematic and sustained effort to find work.” A claimant must contact a certain number of employers each week and provide a written record of such contacts.

Those who are self-employed or sole proprietors are excluded from the definition of “employment” under the Colorado Employment Security Act (Act). The hearing officer found, and the Panel agreed, that claimant’s efforts to open his own law firm did not fulfill the statutory requirement to actively seek work. The Court of Appeals agreed that this comported with the plain language of the Act. The order was affirmed.

Colorado Court of Appeals Opinions

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