Colorado Court of Appeals Opinions

May 21, 2020

2020 COA 80 No. 17CA1304, People v. Chavez

A jury found defendant guilty of two counts of attempted second degree murder and one count of attempted manslaughter. The jury also found that defendant’s two convictions for attempted second degree murder were crimes of violence. The district court found that defendant had three prior felonies and adjudicated him a habitual criminal. Because defendant’s two convictions were crimes of violence arising out of the same incident, the court ordered his two sentences to run consecutively. The court also imposed a concurrent 12-year sentence on the attempted manslaughter conviction. After the judgment of conviction was affirmed on appeal, defendant filed a Crim. P. 35(b) motion contending that his three sentences should run concurrently. The district court denied the motion.

On appeal, defendant contended that the court should not have imposed consecutive sentences under the crime of violence statute because he was sentenced under the habitual criminal statute. Because the crime of violence statute’s consecutive sentencing requirement does not conflict with the habitual criminal statute, both must be given effect. Here, on each conviction for attempted second degree murder, the court sentenced defendant to the mandatory sentence under the habitual criminal statute. The court then applied the crime of violence statute’s consecutive sentencing requirement, which provides that a court must sentence a person convicted of two or more separate crimes of violence arising out of the same incident so that the sentences are served consecutively. Therefore, the court did not abuse its discretion in denying defendant’s Crim. P. 35(b) motion.

The order was affirmed.

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2020 COA 81 No. 18CA1637, Gieck v. Governor’s Office of Information Technology

Gieck is employed as a senior developer with the Office of Information Technology in the Office of the Governor (GOIT). He was hired in March 2015. Gieck filed a complaint under the Whistleblower Act with the State Personnel Board (Board) alleging that his supervisor retaliated against him with a negative performance evaluation because he had raised concerns that GOIT was misusing a project management tool. GOIT moved to dismiss the complaint for lack of jurisdiction. After a hearing, an administrative law judge (ALJ) granted the motion. The Board affirmed the ALJ’s decision.

On appeal, Gieck contended that the Board’s order adopting the ALJ’s conclusion that the Board lacked subject matter jurisdiction over his complaint was legally erroneous because all GOIT employees have rights to the state personnel system, not just those who transferred from other state agencies to GOIT. In 2006, the General Assembly created GOIT, which effectively consolidated all state agencies’ information technology departments into a single department. The relevant statute grandfathered existing state employees into the state personnel system when they moved to GOIT but did not include new hires or employees who were not already in the classified system when GOIT was established. Therefore, as a non-transferring GOIT employee, Gieck is not part of the state personnel system. Employees who are not in the state personnel system may only bring a whistleblower complaint as a civil action in the district court. Thus, the Board lacked subject matter jurisdiction to consider Gieck’s complaint.

Gieck next contended that construing the GOIT statute to deny state personnel system benefits to him, while maintaining those benefits for employees who transferred to GOIT, violates the Colorado Constitution’s Civil Service Amendment, Colo. Const. art. XII, § 13. The Civil Service Amendment excepts employees in the governor’s and lieutenant governor’s offices from the state personnel system. There is no clear and unmistakable conflict between the statute creating and empowering GOIT and the Civil Service Amendment. Therefore, GOIT does not violate the Colorado Constitution.

The Board’s order was affirmed.

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2020 COA 82 No. 18CA2309, Grenillo v. Estate of Joel Hansen

Grenillo and the decedent, Hansen, were involved in a car accident in 2014. Grenillo filed a negligence claim naming Hansen as the defendant on August 31, 2017, three days before the applicable three-year statute of limitations was set to expire. After failing to accomplish service of the complaint, Grenillo found out that Hansen had died and sought to serve him by substituted service on his insurer. In January 2018, Hansen’s wife and his insurer filed motions to quash, indicating that Hansen had died on August 15, 2017. Grenillo conceded that the district court lacked personal jurisdiction over Hansen and filed a notice of inability to perfect personal service on the named defendant. The court dismissed the case without prejudice.

            Grenillo opened an estate for Hansen and filed a new complaint naming the estate as defendant on May 14, 2018. The new complaint was based on the same allegations as the original complaint. The estate moved to dismiss the complaint as time barred, but Grenillo argued it was timely because it was filed within 90 days after the dismissal of the original suit and therefore met the requirements of the remedial revival statute. The court dismissed the case with prejudice and granted the estate’s motion for attorney fees and costs.

            On appeal, Grenillo argued that the remedial revival statute applies to her action against the estate, and the district court’s order dismissing the action was erroneous. The remedial revival statute tolls the running of the applicable statute of limitations in a case where the original action was terminated for lack of jurisdiction or improper venue. Under the plain language of the statute, it does not apply to revive a claim against a defendant who was not a party to the original action. Further, interpreting the remedial revival statute to apply to Grenillo’s suit would create a conflict between that statute and CRS § 15-12-802(2) of the Colorado Probate Code. In this case, the estate of the decedent was not a party to the original action. Accordingly, the remedial revival statute cannot be invoked to toll the running of the limitations period.

            Grenillo also argued that because the district court erred in dismissing her complaint, the court also erred in awarding attorney fees and costs to the estate. Because the suit was properly dismissed, the court did not err in awarding the estate fees and costs.

The judgment was affirmed and the case was remanded to the district court to award the estate’s attorney fees and costs incurred in this appeal.

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May 21, 2020

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