In 2001, when T.B. was 12 years old, he was adjudicated for unlawful sexual contact, a class 1 misdemeanor if committed by an adult. In 2005, he pleaded guilty to sexual assault. Following the 2005 adjudication, T.B. successfully completed probation and offense-specific treatment. He has no other criminal record. In 2010, T.B. filed a pro se petition to discontinue sex offender registration in both cases, which the trial court granted as to the 2005 case and denied as to the 2001 case. About five years, later T.B. filed another petition to discontinue registration, arguing that lifetime registration violated due process and constituted cruel and unusual punishment. After a hearing, the juvenile court denied the petition.

            On appeal, the People asserted that T.B.’s constitutional arguments were procedurally barred. T.B.’s claims are not barred as successive because he did not seek relief under Crim. P. 35(c), and the legal landscape involving juvenile sentencing generally, and lifetime registration in particular, has evolved substantially since his 2010 petition. Further, the law of the case doctrine does not bar review because no other Court of Appeals division has addressed T.B.’s first petition.

T.B. contended that when applied to juveniles, automatic lifetime registration under the Colorado Sex Offender Registration Act (CSORA) for repeat offenders violates the Eighth Amendment’s prohibition against cruel and unusual punishment. CSORA requires that juveniles who have more than one adjudication for unlawful sexual behavior must register as sex offenders for life, unless a court entered an order discontinuing the registration requirement. The Court of Appeals analyzed the factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), for determining whether a statute’s punitive effect overrides its declared civil intent, and concluded that requiring a juvenile, even one who has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard to whether he or she poses a risk to public safety is an overly inclusive, and therefore excessive, means of protecting public safety. Therefore, CSORA operates as a punishment within the meaning of the Eighth Amendment. Here, the juvenile court specifically found that T.B. “successfully addressed all issues related to his sexual offending behavior” and that he was “not likely to reoffend.” However, the juvenile court did not reach the issue of whether the lifetime registration requirement is cruel and unusual on its face or as applied to T.B.

The order denying T.B.’s petition to discontinue the requirement that he register as a sex offender was reversed and the case was remanded for the juvenile court to determine whether the lifetime registration requirement is cruel and unusual on its face or as applied to T.B.  

Hamm was charged with one count of distribution of a controlled substance (3.4 grams of cocaine) and five habitual criminal counts based on his prior felony convictions. A jury convicted him on the distribution count. In exchange for dismissal of the habitual counts and to avoid a mandatory 64-year sentence, Hamm stipulated to a sentence of 30 years in the custody of the Department of Corrections and five years of parole. Hamm did not directly appeal his conviction or sentence, but over a year later, he filed a petition for postconviction relief and requested an evidentiary hearing. The district court denied the motion without a hearing.

On appeal, Hamm contended that his trial counsel was ineffective by not advising him that the penalty reductions enacted through the Uniform Controlled Substances Act of 2013 (the Act) applied retroactively and if the Act had been applied to him, his maximum sentence would have been 16 years. Hamm’s failure to file a direct appeal, however, precluded him from seeking postconviction review of his sentence based on a “significant change in the law.” Thus, the district court should not have considered the claim.

Hamm also contended that the district court erred in denying him an evidentiary hearing on his challenge to the voluntariness of his stipulation. He contended that the stipulation was involuntary and should be set aside because he was not aware that the sentence reductions applied to him and he accepted the stipulation equivocally. However, the Act does not apply retroactively, and the sentencing ranges in the Act cannot reduce Hamm’s sentence because the offense for which the jury convicted him occurred more than two years before the effective date of the Act. Further, the petition, files, and record establish the voluntariness of the stipulation. Therefore, the trial court did not err in denying Hamm an evidentiary hearing.

The order was affirmed.

Martinez was a resident of Casa Loma Apartments, a low-income housing facility. He slipped and fell on a walkway leading to the apartment building and sued CSG Redevelopment Partners, LLLP (CSGR), Casa Loma’s management company and the building’s owner, under the Premises Liability Act, CRS § 13-21-115, and alternatively, for negligence, alleging that CSGR had allowed snow and ice to accumulate on the walkway. CSGR moved to dismiss the complaint, arguing that it was an “instrumentality” of the Denver Housing Authority (DHA), a public entity, and thus immune from tort liability under the Colorado Governmental Immunity Act (CGIA). The trial court granted the motion.

On appeal, Martinez argued that the district court erred by concluding that CSGR is an instrumentality of DHA. He contended that CSGR’s status as a private partnership precludes its treatment as a public entity. The DHA created CSGR and other instrumentalities to finance Casa Loma and other low-income properties. CSGR was made up entirely of public entities when it was founded, and it only became a “private” partnership when an investor joined as a limited entity. Because of both DHA’s extensive control over CSGR and CSGR’s public purpose, CSGR is an instrumentality of a public entity within the meaning of the CGIA, and therefore a public entity itself entitled to governmental immunity. 

Martinez also contended that even if CSGR is a public entity under the CGIA, its immunity was waived because Casa Loma is a “public building open for public business.” Based on the district court’s findings that only residents and staff have key cards to enter the building, no public events take place on the premises, and no public business is conducted there, this exception to governmental immunity in the CGIA doesn’t apply.

Finally, Martinez contended that the district court erred by not addressing his argument that the recreation area waiver to CIGA immunity applies. Martinez presented no evidence that Casa Loma is a “public facility located in a park or recreation area.” Therefore, the district court did not err.

Massihzadeh held one of three winning lottery tickets for a Lotto $4.8 million jackpot. He received one-third of the jackpot prize after taxes. A decade later, the other two tickets were invalidated based upon fraud. Massihzadeh sued the Colorado State Lottery Division (the Division), alleging breach of contract, and sought to obtain the other two-thirds of the jackpot with interest. The trial court dismissed the case for failure to state a claim because CRS § 44-40-113(4) discharges the Division from liability upon the payment of any prize.

On appeal, Massihzadeh contended that the district court erred in granting the motion to dismiss because his claims against the Division were not precluded; he asserted that the statute only pertains to claims against the Division by third parties. Here, the Division tendered a prize, and Massihzadeh accepted it. Based on the plain language of CRS § 44-40-113(4), Massihzadeh’s acceptance of the payment constituted “any prize” sufficient to discharge the Division of liability. Thus, the district court did not err in granting the motion to dismiss.

The judgment was affirmed.

Ann and Jim Ferguson adopted 25-year-old Marty in 1995. Jim predeceased Ann, who died after being examined or treated by defendants. Marty brought a wrongful death lawsuit against Ann’s medical providers. Defendants moved to dismiss under CRCP 12(b)(5), contending that Marty lacks standing to sue because an adult adoptee isn’t an heir within the meaning of the Wrongful Death Act (WDA). The district court converted the motion to dismiss into a motion for summary judgment and granted the motion. 

On appeal, Marty argued that the district court erred in finding that as an adult adoptee, she’s not an heir and doesn’t have standing to sue under the WDA. The WDA provides that in the second year after the death of a person, the deceased’s heirs may sue to recover on behalf of a decedent who died from an injury caused by another’s negligence. The Court of Appeals concluded that an adult adoptee is a lineal descendant of a decedent, and therefore an heir, so Marty is entitled to sue under the WDA. Therefore, the district court erred in dismissing Marty’s complaint.

The judgment was reversed and the case was remanded.

Baum sustained work-related injuries that caused him to be temporarily totally disabled. United Airlines (UAL) paid Baum full pay under its wage continuation plan after he sustained an admitted work-related injury, but UAL also claimed a credit on its final admission of liability (FAL) for the comparable temporary total disability (TTD) benefits it would have otherwise been statutorily required to pay Baum. This credit increased Baum’s reported TTD benefits, pushing them over the statutory cap.

Baum challenged UAL’s right to take the credit. The Division of Workers’ Compensation director concluded that benefits paid under the wage compensation plan are not similar to vacation or sick leave. Therefore, their accrual and exercise did not bar UAL from taking the claimed TTD credit. A panel of the Industrial Claim Appeals Office (the Panel) affirmed on review.

On appeal, Baum argued that CRS § 8-42-124 is unconstitutional on its face and as applied because the plan was approved by the director without the opportunity for injured workers to challenge it in court. UAL’s plan was adopted and approved before Baum sustained any injury. Baum could not meet the threshold test of being deprived of a property interest without due process when the plan was approved because he had no such interest when the plan was approved.

Baum also argued that this absence of appellate review of wage continuation plans violates separation of powers. The separation of powers doctrine does not guarantee that the judicial branch will be given oversight over every action taken by a governmental entity. In adopting CRS § 8-24-124, the legislature made wage continuation plans subject to the director’s, not its own, approval. Further, the judicial branch is not excluded from reviewing these plans through court review of agency actions. The approval of CRS § 8-42-124 did not violate the separation of powers doctrine.

Baum next contended that the Panel erroneously affirmed the director’s grant of summary judgment to UAL. He argued that the director misinterpreted CRS § 8-42-124 when he concluded that UAL’s wage continuation program benefits did not fall under the statute’s residual provision of “other similar benefits.” Earned benefits that an employee can exercise only if he or she suffers a work-related injury and that cannot otherwise be converted to any other use or cashed out at separation do not fall within the scope of “other similar benefits” as used in CRS § 8-42-124(2)(a).

Finally, Baum contended that UAL gains a windfall unless it is barred from taking a credit for TTD benefits. The legislature sought to encourage employers to implement wage continuation plans so workers could receive a full salary even while disabled by a work-related injury. By taking the statutorily authorized credit, UAL did not enjoy a windfall.

The order was affirmed.