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Colorado Court of Appeals Opinions
August 28, 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 108. No. 11CA0408. People v. Frtiz.
Illegal Sentence—Plea Bargain—Moot.

Fritz admitted to sexually abusing his adopted daughter, J.F., more than 1,000 times over a three-year period. He pleaded guilty to aggravated incest, and the prosecution dropped the remaining charges. Fritz complied with the plea agreement until 2008, when he left Colorado without permission and travelled to the Philippines. The prosecution filed a complaint seeking to revoke his probation.

Fritz then filed a Crim.P. 35(a) motion to withdraw his guilty plea and a Crim.P. 35(c) motion to vacate an allegedly illegal sentence and conviction; both motions were denied by the court. Two months after Fritz filed a notice of appeal, he pleaded guilty to the probation violation. Both parties stipulated to a sentence of thirteen years in prison subject to discretionary parole. The trial court sentenced Fritz according to the new plea agreement.

On appeal, Fritz contended that he obtained an illegal sentence as part of his original plea bargain, thus entitling him to withdraw his guilty plea. However, Fritz was not materially induced to enter into a plea by the mandatory parole provision. If his original sentence was illegal, the only remedy is imposition of a new legal sentence. This appeal is moot because Fritz pleaded guilty to the probation violation and the trial court imposed a new legal sentence, thereby superseding the original sentence. Accordingly, the appeal was dismissed.

2014 COA 109. No. 11CA0511. People v. Gutierrez-Ruiz.
Ineffective Assistance of Counsel—Sentence—Juvenile—Life Without Parole—Eighth Amendment.

While defendant was driving a car, his passenger (co-defendant) shot at a truck, wounding the driver. Co-defendant later shot at another car, killing the driver. Defendant was a juvenile at the time of his arrest. A jury convicted defendant of first-degree murder after deliberation and first-degree assault with a deadly weapon. The trial court sentenced him to life without parole on the murder count and to ten years and one day on the assault count.

Defendant raised a number of claims of ineffective assistance of trial counsel. However, these claims were procedurally barred. Defendant further contended that his appellate counsel failed to advise him of the one-year limitation period for filing a section 2254 petition. This did not warrant relief because appellate counsel did not have an obligation to advise appellant of this post-conviction option.

Defendant asserted, the People agreed, and the Court of Appeals concurred that defendant’s mandatory sentence to life imprisonment without the possibility of parole was unconstitutional. Defendant’s sentence of life without parole violates the Eighth Amendment because it was imposed without any opportunity for the sentencing court to consider whether this punishment is just and appropriate in light of defendant’s age, maturity, and the other factors. Accordingly, the case was remanded for resentencing.

2014 COA 110. No. 11CA1934. People v. Rogers.
Restitution—Sexual Assault Nurse Examiner (SANE) Examination—Forensic Evidence—Cost of Prosecution.

Defendant offered the victim a ride in his car and then drove her behind a building, where he parked the car. He threatened her with a knife and forced her to perform oral sex on him. After the victim called the police, she was examined by a sexual assault nurse examiner. Defendant pleaded guilty, and the court granted the prosecution’s request for the $500 in restitution to be paid to the Aurora Police Department for the cost of the examination.

On appeal, defendant contended that the district court erred in awarding restitution to the Aurora Police Department for the cost of the examination. The Court of Appeals agreed. The examination was for the purpose of collecting forensic evidence, so the Aurora Police Department was not a “victim” under the applicable version of the restitution statute. Additionally, the examination was not an “extraordinary direct public investigative cost” under CRS §18-1.3-602(3)(b). Further, because the examination was conducted beforeformal legal charges were filed, the cost of the exam was not recoverable as a cost of prosecution. The order was reversed and the case was remanded with directions.

2014 COA 111. No. 12CA1655 & 12CA2200. Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC.
Property—Mechanics’ Lien—Contract—Foreclosure—Notice—Equitable Apportionment—Prevailing Party—Costs.

Diamond Lofts Venture, LLC (DLV) was the developer and owner of a building project at 2210 Blake Street in Denver (Blake Street property). Sure-Shock Electric, Inc. (Sure-Shock), as the primary electrical contractor on the project, installed the electrical work throughout the building. Thereafter, Sure-Shock filed a mechanics’ lien for the unpaid contract price. Pursuant to their contract, DLV and Sure-Shock participated in arbitration. The arbitrator determined that Sure-Shock had proved its claims, and awarded it the principal amount claimed in the amended lien statement. The trial court affirmed the arbitrator’s award and entered a decree of foreclosure authorizing the sale of the DLV units to satisfy Sure-Shock’s lien.

On appeal, DLV contended that the trial court erred in allowing Sure-Shock to foreclose on its lien because Sure-Shock failed to comply with the statutory requirements necessary to perfect the lien. The Court of Appeals disagreed. Sure-Shock provided DLV proper notice more than ten days before filing the original lien statement. Sure-Shock was not required to provide an additional notice before it filed its amended lien statement the same day as the original lien to correct the amount claimed. Additionally, although DLV only owned seven of the twenty-nine units in the Blake Street property at that time, Sure-Shock’s lien statement sufficiently identified the property by listing the entire Blake Street property and naming only DLV as the property owner. Finally, Sure-Shock was not required to apportion the unpaid contract price according to the amount due for work on the DLV units, rather than claiming the full amount due.

In its cross-appeal, Sure-Shock contended that the trial court abused its discretion in apportioning the lien. A court may equitably apportion a blanket lien. Here, the trial court determined that an equitable apportionment should be based on the actual benefit enjoyed by each unit. Therefore, Sure-Shock was awarded 33.1% of the lien amount, which corresponded to the total square footage of the DLV units relative to the square footage of the entire Blake Street property. Because Sure-Shock’s electrical work benefited the entire Blake Street property, and Sure-Shock chose to encumber only the DLV units, Sure-Shock may not recover the entire unpaid amount of the contract. Therefore, the trial court’s apportionment was not an abuse of its discretion.

In addition, because Sure-Shock’s lien was determined to be valid, Sure-Shock succeeded on a “significant issue in the litigation.” Therefore, the trial court did not abuse its discretion in concluding that Sure-Shock was the prevailing party and awarding it costs. The judgment was affirmed.

2014 COA 112. No. 13CA0277. People v. Martin.
Motion to Suppress—Investigatory Stop—Pat Down—Fourth Amendment—Search and Seizure—Right to Testify—Waiver.

After defendant refused to exit a restroom at a convenience store, police officers ordered him to face the wall and put his hands behind his back for a pat down search. During the pat down, defendant’s actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued, during which defendant and one of the officers were injured. A jury found defendant guilty of attempting to disarm a peace officer and resisting arrest.

On appeal, defendant asserted that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Court of Appeals disagreed. The officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant’s welfare and on reasonable suspicion that he was unlawfully trespassing on the property when defendant remained in the bathroom for more than twenty minutes and subsequently refused to exit the bathroom after the police arrived. Additionally, even if the pat down was unlawful, defendant’s conduct of pulling away from the officers, attacking them, and resisting arrest constituted new offenses justifying a pat down.

Defendant contended that the trial court erred by denying his request to testify. Defendant requested to testify after he had waived the right to do so and defense counsel had rested the case. Although a defendant’s constitutional right to testify is not absolute, a defendant is not prohibited from testifying after waiving the right to do so and resting his or her case. Therefore, the case was remanded for hearing to reconsider defendant’s request.

Colorado Court of Appeals Opinions

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