Defendant pleaded guilty to menacing and child abuse in a plea agreement. Pursuant to the plea agreement, the sentence to be imposed would be at the district court’s discretion, but if the district court sentenced defendant to the custody of the Department of Corrections (DOC), the sentences would be in the presumptive range of one to three years and would run concurrently to each other. Defendant requested a sentence to probation, and the district court sentenced him to five years of probation. After defendant violated probation the first time, the court revoked and reinstated defendant’s probation. After defendant violated probation the second time, the court revoked probation and imposed concurrent four-year terms in the DOC on each count.

On appeal, defendant argued that the court erred by imposing an aggravated range sentence when his probation was revoked because the original plea agreement mandated a presumptive range sentence for his crimes. Here, the plea agreement prescribed the sentence to be imposed following defendant’s guilty plea, but it did not expressly address the sentence to be imposed after the initial sentencing. Defendant could have bargained for language to cover this contingency, but he did not. After revoking defendant’s probation, the district court was free to resentence defendant to any sentence authorized by statute, including an aggravated prison sentence.

Defendant also argued that the sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Here, as part of the plea agreement, defendant waived his Blakely rights and agreed to judicial factfinding as to facts that could result in an aggravated range sentence, and the court could impose an aggravated range DOC sentence of up to six years on a finding of exceptional circumstances. The district court properly sentenced defendant in the aggravated range based on its finding that extraordinary aggravating circumstances were present due to the original crimes.

The sentence was affirmed.

Dees and Stockwell are divorced. L.D-S. was born during their marriage. Stockwell is not L.D-S.’s biological father, but he was declared his legal father under the paternity presumption in CRS § 19-4-105(1)(a). The district court entered an allocation of parental responsibilities (APR) order naming Stockwell L.D.-S.’s primary residential parent and limiting Dees’s parenting time to weekends, which was increased over time. Dees subsequently filed a motion asking the district court to return L.D.-S. to her custody based on violations of the Indian Child Welfare Act (ICWA). Dees asserted that L.D-S. was Choctaw and Wailaki, and the APR to Stockwell was a “foster care placement” because he was not L.D.-S.’s biological father. The court denied the motion as untimely, finding that Dees did not show good cause for the delay.

On appeal, Dees argued that the district court erred by issuing the APR order without first inquiring into the child’s possible Indian heritage. Under the ICWA, when an Indian child is the subject of an action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe, may petition the court to invalidate such action upon a showing that the action violated the ICWA. The ICWA places no time limit on such a petition. The ICWA defines a parent as a biological parent or an Indian person who has adopted an Indian child. The ICWA does not apply to an award of custody to one of the parents, including in a divorce proceeding.

Stockwell is neither L.D-S.’s biological parent nor an Indian person who has adopted the child. The APR to Stockwell was a “foster care placement” and thus a child custody proceeding for ICWA purposes. Therefore, the district court erred in not inquiring into whether L.D.-S. is an Indian child.

The order was reversed and the case was remanded for further proceedings to determine whether L.D-S is an Indian child.

The parties’ marriage was dissolved. The court ordered equal parenting time for the parties’ three children and ordered father to pay mother child support based on the child support schedule. Subsequently, father moved for an order requiring mother to pay the first $250 of uninsured medical expenses per child per year, which was initially granted by the court. Mother moved for relief under CRCP 59(a), requesting the court to allocate the expenses in proportion to the parties’ incomes. The district court ruled that neither party can request reimbursement of uninsured medical expenses from another party for amounts less than $250 per child per year.

Father appealed the district court’s ruling, arguing that mother should bear the uninsured medical expenses because she receives child support. CRS § 14-10-115(10)(h)(II) specifically excludes from the definition of “extraordinary medical expenses” the first $250 of uninsured medical expenses per child per year. Thus, the Court of Appeals concluded that the first $250 of uninsured medical expenses per child per year is included in the shared basic child support obligation. Where the parties share parenting time equally, each parent must pay uninsured medical expenses incurred during his or her parenting time, until the total for each child reaches $250, at which time the parents may seek reimbursement in proportion to their adjusted gross incomes.

The order was affirmed.

Nieto worked for Clark’s Market, Inc. (the Market) and accrued vacation time pursuant to the vacation policy in the Market’s employee handbook. The handbook stated that an employee is entitled to payment for accrued but unused vacation time if she voluntarily resigns and gives at least two weeks’ notice, but if the Market discharges an employee for any reason or for no reason, or if the employee fails to give two weeks’ notice before quitting, the employee forfeits all earned vacation pay benefits. The Market discharged Nieto and refused to pay her for accrued but unused vacation time pursuant to its policy.

            Nieto sued for payment for accrued vacation time, alleging that the Market’s policy violated CRS §§ 8-4-101(14)(a)(III) and -121 of the Colorado Wage Claim Act (CWCA). The district court granted the Market’s motion to dismiss for failure to state a claim.

            On appeal, Nieto argued that CRS § 8-4-121 voids the Market’s policy because her accrued vacation pay was earned and determinable, so she has a right to payment for vacation time under the CWCA, and the Market’s policy is an illegal waiver of her right to payment. CRS § 8-4-101(14)(a)(III) explicitly includes vacation pay in the definition of wages, but it also provides that no amount is to be considered wages until it is earned, vested, and determinable. Further, nothing in the CWCA creates a substantive right to payment for accrued but unused vacation time; rather, an employee’s right to such compensation is determined by the parties’ employment agreement. Here, the agreement conditioned payment for accrued but unused vacation time, and Nieto did not meet those conditions. Therefore, she did not assert a plausible claim that she was entitled to accrued but unused vacation time. Further, the anti-waiver provision does not create any substantive entitlement to payment independent of the parties’ agreement; it only applies to rights conferred by the CWCA, which looks to the parties’ agreement as the sole potential source of any substantive right to payment.

The judgment was affirmed.

R.C. was committed to the Colorado Mental Health Institute at Pueblo (CMHIP) after being found incompetent to proceed in a criminal case. A CMHIP staff psychiatrist diagnosed R.C. with bipolar disorder mania with psychosis and treated him with Zyprexa. Following R.C.’s assault of a CMHIP staff member, the People filed a petition seeking a court order authorizing the involuntary administration of six other drugs. At the hearing, the staff psychiatrist testified that R.C. was voluntarily taking Zyprexa but he might refuse to continue taking it. The district court granted the petition.

On appeal, R.C. argued that insufficient evidence supported the order. An order for involuntary medication administration must be supported by clear and convincing evidence of the four elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo. 1985). R.C. contended that the third element of the test, that no less intrusive treatment alternative was available, was not met. He argued that he was voluntarily taking Zyprexa at the time of the hearing, which clearly showed a less intrusive option was available. Here, the psychiatrist’s testimony established that continued administration of Zyprexa is a less intrusive treatment alternative than administration of the six medications. Therefore, the record does not support the district court’s determination of the third Medina factor.

            The order was reversed.