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TCL > November 2006 Issue > Court Business

The Colorado Lawyer
November 2006
Vol. 35, No. 11 [Page  141]

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

Court Business

Colorado Supreme Court Rules Committee
Rule Change 2006(11)
Colorado Rules of Criminal Procedure
VII. Judgment
Chapter 29, Rule 32. Sentence and Judgment
Amended and Adopted

(a) Presentence or Probation Investigation.

(1) [No Change]

(2) Report. The presentence report shall include, but not be limited to, information as to the defendant’s family background, educational history, employment record, and past criminal record, an evaluation of the alternative dispositions available for the defendant, and such other information as the court may require. In addition, the court, as it deems appropriate, may require the presentence report to include the findings and results of a professionally conducted mental and physical examination of the defendant. Within a reasonable time prior to sentencing, copies of the presentence report, including any recommendations as to probation, shall be furnished to the prosecuting attorney and defense counsel or to the defendant if the defendant is unrepresented. The report shall also include a statement showing the amount of time during which the defendant was confined prior to the imposition of sentence for the offense for which the defendant is being sentenced.

(b) Sentence and judgment.

(1) Sentence shall be imposed without unreasonable delay. Before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his OR HER own behalf, and to present any information in mitigation of punishment. The state also shall be given an opportunity to be heard on any matter material to the imposition of sentence. Alternatives in sentencing shall be as provided by law.

(2) Upon conviction of guilt of a defendant of a class 1 felony, and after the sentencing hearing provided by law, the trial court shall impose such sentence as is authorized by law. At the time of imposition of a sentence of death, the trial court shall enter an order staying execution of the judgment and sentence until further order of the Supreme Court.

(3) Judgment. A judgment of conviction shall consist of a recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant, the finding of the amount of earned time credit if the defendant had previously been placed in a community corrections program, and a statement that the defendant is required to register as a sex offender, if applicable.

(c) Advisement. Where judgment of conviction has been entered following a trial, the court shall, after passing sentence, inform the defendant of the right to seek review of the conviction and sentence, and the time limits for filing a notice of appeal. The court shall at that time make a determination whether the defendant is indigent, and if so, the court shall inform the defendant of the right to the assistance of appointed counsel upon review of the defendant’s conviction and sentence, and of the defendant’s right to obtain a record on appeal without payment of costs. In addition, the court shall, after passing sentence, inform the defendant of the right to seek postconviction reduction of sentence in the trial court under the provisions of Rule 35(b).

If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. All judgments shall be signed by the trial judge and entered by the clerk in the register of actions.

Where judgment of conviction has been entered following a plea of guilty or nolo contendere, the court shall, after passing sentence, inform the defendant that the defendant may in certain circumstances have the right to appellate review of the sentence, of the time limits for filing a notice of appeal, and that the defendant may have a right to seek postconviction reduction of sentence in the trial court under the provisions of Rule 35(b).

(d) Withdrawal of Plea of Guilty or Nolo Contendere. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.

If the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in Rule 11(f) of these Rules, the court shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw the plea of guilty or nolo contendere.

(e) Criteria for Granting Probation. The court in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public.

The conditions of probation shall be as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant to do so. The court shall provide as an explicit condition of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation.

(f) Proceedings for Revocation of Probation.

(1) At the first appearance of the probationer in court, or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in Rule 5(2) (I) through (VI) of these Rules insofar as such matters are applicable, except that there shall be no right to a trial by jury in proceedings for revocation of probation.

(2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against the probationer and the possible penalty or penalties therefor, and shall require the probationer to admit or deny the charges.

(3)–(5) [No Change]

Amended and Adopted by the Court, En Banc, September 7, 2006, effective January 1, 2007. Justice Rice would not adopt the rule.

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court

_________________________

Rule Change 2006(12)
Colorado Rules of Criminal Procedure
VI. Trial
Chapter 29, Rule 23. Trial by Jury or by the Court
Amended and Adopted

(a) (Deleted by the Court, effective November 1, 1992.)

(1)–(4) [No Change]

(5) (I) The person accused of a felony or misdemeanor may, with the consent of the people, waive a trial by jury in writing or orally in court. Trial shall then be by the court.

(II) The court shall not proceed with a trial to the court after waiver of jury trial without first determining:

(a) That the defendant’s waiver is voluntary; and,

(b) That the defendant understands that:

(i) The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;

(ii) The jury would be composed of a certain number of jurors;

(iii) A jury verdict must be unanimous;

(iv) In a trial to the court, the judge alone would decide the verdict;

(v) The choice to waive a jury trial is the defendant’s alone and may be made contrary to counsel’s advice.

(III) In a proceeding where the waiver of a jury trial is part of a determination preceding the entry of a guilty or nolo contendere plea, the court need only make the determinations required by Rule 11(b) and not those required by this rule.

(6)–(8) [No Change]

Amended and Adopted by the Court, En Banc, September 7, 2006, effective January 1, 2007.

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court

_________________________

Rule Change 2006(13)
Colorado Rules for Traffic Infractions
Chapter 29.7
Amended and Adopted
Rule 6. Payment Before Appearance

(a) [No Change]

(b) At the time of payment, the defendant shall sign a waiver of rights and acknowledgment of guilt or liability, as set forth in Form A in the appendix to these rules, pay a docket fee, and agree to complete any additional court ordered sanction.

(c) [No Change]

Rule 12. Judgment After Final Hearing

(a) through (b) [No Change]

(c) If the defendant is found guilty or liable, the referee shall assess the appropriate penalty and the docket fee, and any additional costs authorized by section 13-16-122(1), C.R.S, and order the completion of any additional court ordered sanctions.

(d) The judgment shall be satisfied upon payment to the clerk of the total amount assessed as set forth above and performance of additional sanctions.

(e) [No Change]

Rule 16. Default

(a) through (c) [No Change]

(d) The defendant may satisfy a judgment entered under this rule by paying the clerk and providing proof of compliance with any additional court orders.

(e) [No Change]

Amended and Adopted by the Court, En Banc, September 7, 2006, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_________________________

Rule Change 2006(14)
Chapter 32
The Colorado Appellate Rules
Amended and Adopted
Rule 10. Record on Appeal

(a) Composition of the Record on Appeal.

(1) through (3) [No Change]

(4) Unless the record is transmitted in electronic form pursuant to C.A.R. 11(b)(4), the original papers shall be in the record submitted. Except on written request by a party, the trial court need not duplicate or retain a copy of the papers or exhibits included in the record. The party requesting that a duplicate be retained shall advance the cost of preparing the copies.

(5) Unless the record is transmitted in electronic form pursuant to C.A.R. 11(b)(4), the record shall be properly paginated and fully indexed and shall be prepared and bound under the direction of the clerk of the court.

Rule 11. Transmission of Record

(a) [No Change]

(b) Duty of Clerk to Transmit the Record

(1) When the record, including any designated transcript, is complete for purposes of the appeal, the clerk of the trial court shall transmit the record to the clerk of the appellate court.

(2) The clerk of the trial court shall number the documents comprising the entire designated record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness.

(3) Documents of unusual bulk or weight and physical exhibits other than documents which are designated by the parties, shall not be transmitted by the clerk unless directed to do so by the clerk of the appellate court. The designating party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual bulk or weight.

(4) Where the record is maintained in electronic form by the trial court, or can be made available in electronic form by the trial court, the clerk of the trial court is authorized to transmit the record electronically in accordance with procedures established by the appellate court.

(5) Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the clerk of the appellate court. The clerk of the trial court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the appellate court.

Rule 28. Briefs

(a) Through (d) [No Change]

(e) References in Briefs to the Record. References to the bound and paginated record shall be by appropriate page and line numbers and references to material appearing in an addendum to the brief shall be by appropriate page numbers. References to the electronic record shall be by ID number and appropriate page and line number. When the reference is to the evidence, to the giving and refusal to give an instruction, or to a ruling upon the report of a master, the page and line number must be specific, and if the reference is to the exhibit both the page and line number at which the exhibit appears and at which it was offered in evidence must be indicated.

Amended and Adopted by the Court, En Banc, September 7, 2006, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_________________________________________________________________________________

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2006-07
(Finalized and Effective September 18, 2006)

ISSUE PRESENTED

The requesting district court judge has asked for guidance as to whether, consistent with the Code of Judicial Conduct, he may engage in certain activities in connection with the pending citizens’ initiative (Amendment 40), which would limit the terms of appellate judges, by contributing to organizations campaigning in regard to the initiative, speaking to civic groups about it, or taking a position on judicial term limits in the editorial pages. In his request, the judge suggests that there is some tension between Canon 4, which encourages judges to engage in activities to improve the law, the legal system, and the administration of justice, and Canon 7, which cautions judges to refrain from political activity inappropriate to the judicial office. Regarding his request to make a contribution to organizations concerned with Amendment 40, the judge observes that Canon 7A(1)(c), which prohibits a judge from making a contribution to a political organization, seems to conflict with Canon 7A(1)(d), which allows judges to engage in political activity on behalf of measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government. May the judge engage in the proposed activities?

CONCLUSIONS

The judge may engage in the proposed activities. The judge may make a monetary contribution to a group advocating for or against Amendment 40 so long as the group is not a partisan "political organization." Additionally, the judge may speak to civic groups about the measure and write editorials opposing or promoting it because such political activity implicates the law, the legal system, the administration of justice, and the role of the judiciary as an independent branch of government and thus is expressly permitted under Canons 4 and 7.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

On the one hand, Canon 4 encourages judges to engage in activities to improve the law, the legal system and the administration of justice, provided that in so doing the judge does not compromise his or her ability to decide impartially any issues that may come before the judge. Specifically, Canon 4A provides that "A judge is encouraged to speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice, including the role of the judiciary as an independent branch within our system of government." Canon 4C encourages a judge to serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. Under Canon 4C, a judge may assist such an organization in its fund-raising efforts, but the judge shall not personally solicit funds for such an organization.

On the other hand, Canon 7 directs that a judge should refrain from political activity inappropriate to his or her judicial office. Canon 7A(1)(c) instructs that a judge shall not solicit funds for or make a contribution to a political organization or candidate, attend political partisan gatherings, or purchase tickets for political party dinners or similar functions. Canon 7A(1)(d) specifies that a judge "shall not engage in any other political activity except on behalf of measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government." And Canon 7C provides that a judge may attend and participate in nonpartisan gatherings at which legal or social issues are addressed, provided that the judge neither discusses cases in which he or she has participated which are not final nor states how the judge would rule on any case that might come before the judge.

DISCUSSION

Provided that a judge’s impartiality is not endangered, Canon 4 supports a judge’s participation in activities designed to educate the public about the legal system, such as public speaking, writing, lecturing, and teaching, as well as a judge’s efforts to improve the law, legal system, administration of justice, or legal branch.

However, Canon 4’s broad call to judges to speak out on important issues concerning the law, the legal system, and the administration of justice appears to create some tension with Canon 7’s prohibitions against a judge engaging in political activity inappropriate to his or her office. Thus, the question becomes whether the activities about which the requesting judge inquired—making a monetary contribution to Amendment 40 groups, speaking to civic groups about the measure, or writing editorials addressing the amendment—constitute permissible activity within the meaning of Canon 4 or forbidden political activity that is inappropriate to the judge’s office within the ambit of Canon 7. We generally conclude that the activities are permissible under Canon 4 and fall within Canon 7A(1)(d)’s exception to the prohibition against political activity by judges because the subject matter of the activities is a proposal to change the tenure of appellate judges and thus is a matter that concerns the legal system and the administration of justice.

To more specifically answer the first part of the judge’s question—whether the judge may make a contribution to an Amendment 40 organization—we must determine, as a preliminary matter, whether such an organization constitutes a "political organization" within the meaning of Canon 7, which does not define this phrase. Indeed, the phrase is defined nowhere in the Canons. When read as a whole, however, Canon 7 suggests a narrow meaning of the phrase. See People v. Yascavage, 101 P.3d 1090 (Colo. 2004) (noting that in construing a statute, words and phrases are to be read in context). Canon 7A(1)(b) forbids a judge from making speeches for a political organization or candidate or publicly endorsing a candidate for public office. Canon 7A(1)(c) specifies that a judge shall not "solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political partisan gatherings, or purchase tickets for political party dinners or other similar functions." Taken together, this list of prohibited activities evinces a concern with a judge’s participation in partisan political activity. Hence, we conclude that in prohibiting a judge from making a contribution to a "political organization or candidate," the Canon is concerned with restricting a judge from engaging in partisan political activity.

Further, a construction of "political organization" that avoids judicial entanglement in partisan political activity would harmonize the term’s meaning as it is used in Canon 7 with its meaning in the ABA’s Model Code of Judicial Conduct, as well as in Colorado’s statutory scheme. The definition of "political organization" in the ABA Model Code of Judicial Conduct specifies that a "‘political organization’ denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to public office." See ABA Model Code of Judicial Conduct (2004), Preamble Terminology at http://www.abanet.org/cpr/mcjc/pream_term.html#TERMINOLOGY. Similarly, Colorado’s election code defines a "political organization" as "any group of qualified electors who, by petition for nomination of an unaffiliated candidate as provided in section 1-4-802, places upon the official general election ballot nominees for public office." § 1-1-104(24), C.R.S. See also Colo. Const. Art. XXVIII (not addressing "political organizations," but distinguishing between a "political committee," which "support[s] or oppose[s] the nomination of one or more candidates," and an "issue committee," which "has a major purpose of supporting or opposing any ballot issue."). The Secretary of State’s Office has developed rules regarding what an entity must do to qualify as a "political organization" within the meaning of the statutes, most of which are directed at ensuring that the organization regularly places a candidate on the ballot and prescribing how eligible electors may register themselves as affiliated with the political organization. See http://www.elections.colorado.gov/WWW/default/Rule%20Making/2006/electionrules_%206-14-06.pdf.

In sum, the phrase "political organization" is uniformly defined to implicate partisan political activity. Hence, we conclude that groups whose only purpose is supporting or opposing Amendment 40 are not "political organizations" within the meaning of Canon 7 because such groups do not promote candidates but are devoted only to a specific initiative related to change in the judicial system. Further, we note that Amendment 40 is a nonpartisan issue, and organizations whose sole purpose is to promote or oppose its passage are not thereby engaged in furthering the agenda of a particular party. Accordingly, Canon 7 does not prohibit a judge from contributing to such an organization.

In considering the second part of the judge’s question—whether he may speak to civic groups and write editorials about the amendment—we determine that such activity is encouraged by Canon 4 and permitted by Canon 7A(1)(d). Canon 7A(1)(d) creates an exception to its general ban on judicial participation in political activity. That subsection provides that the only permitted "political activity" involves measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government. Canon 4, as discussed above, encourages judges to involve themselves in such measures. Thus, both Canon 4 and Canon 7 recognize that, in light of a judge’s unique position and experience, the judge may engage in political activity involving measures that concern the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government, so long as the judge’s impartiality is not compromised. This conclusion is consistent with those of our sister jurisdictions. See Kansas Ad. Op. JE5; Ariz. Ad. Op. 96-08.

In concluding that the judge may engage in the requested activities, however, we reiterate Canon 4C’s prohibition against a judge personally soliciting funds on behalf of an organization promoting or opposing Amendment 40. Although Canon 4C permits a judge to assist an organization devoted to improvement of the law, the legal system, the judicial branch, or the administration of justice in its fund-raising efforts, the judge shall not personally solicit funds for such an organization.

Finally, we note that our authority extends only to advising whether the proposed activity comports with the Colorado Code of Judicial Conduct.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 18th day of September 2006.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

________________________________________________________________________________

Correction to Rule Change 2006(4)
Colorado Rules of Civil Procedure
For Courts of Record in Colorado

Chapter 1. Scope of Rules, One Form of Action, Commencement of Action,
Service of Process, Pleadings, Motions and Orders

Rule 4. Process

(f) Substituted Service. In the event that a party attempting service of process by personal service under section (e) is unable to accomplish service, and service by publication or mail is not otherwise permitted under section (g), the party may file a motion, supported by an affidavit of the person attempting service, for an order for substituted service. The motion shall state (1) the efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effectedeffective. If the court is satisfied that due diligence has been used to attempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall:

Note: No corrective order is issued. This correction corrects a typographical error in Rule 4(f), correcting the word "effective" to "effected."

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


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