by
Defendant Juvenal Onel Garcia was subject to a restraining order from contacting C.G. Almost two years after the issuance of the restraining order, Garcia allegedly attempted to sexually assault C.G. Based on events related to that criminal episode, a jury convicted Garcia of first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service. Garcia appealed, raising two unpreserved claims: (1) the trial court improperly instructed the jury regarding the sexual assault charge; and (2) the trial court improperly instructed the jury regarding the force sentence enhancer related to his attempted sexual assault conviction. The Colorado Supreme Court agreed with the appeals court that any error regarding the sexual assault instruction did not require reversal, because Garcia failed to show that any error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of Garcia’s convictions. Because the Supreme Court resolved this issue based on lack of prejudice, it did not reach the question of whether the obviousness of an error should have been assessed at the time of trial or at the time of direct appeal. The Court also concluded the force sentence enhancer did not include a mens rea requirement, and, therefore, there was no error with respect to that instruction. View "Garcia v. Colorado" on Justia Law

by
Richard Jones filed a habeas corpus petition in the district court challenging the Department of Corrections’ (“DOC”) calculation of his parole eligibility date (“PED”). Jones asserted that the DOC used only his latest 2008 conviction to calculate his PED, but, to correctly calculate his PED, he believed that the DOC’s calculation should include two earlier convictions from 1991. If his PED was calculated utilizing the 1991 convictions, Jones argued that he had passed his PED and was being unlawfully denied consideration for parole. His habeas petition included the mittimus for the 2008 conviction but did not include the mittimuses for the two 1991 convictions. In response to Jones’s petition, the DOC moved to dismiss for lack of jurisdiction. The DOC characterized Jones’s failure to include all three of his mittimuses as a “jurisdictional failure which requires dismissal.” The district court granted the DOC’s motion and dismissed the petition. The Colorado Supreme Court found that noncompliance with the warrant requirement did not deprive courts of jurisdiction over habeas corpus petitions. The Court overruled its prior cases holding that failing to provide a copy of the warrant of commitment was a jurisdictional defect, deprives the court of authority to act on a habeas petition, and requires summary dismissal. Accordingly, the Court reversed the district court’s order dismissing the habeas petition for lack of jurisdiction and remanded to the district court for further consideration. View "Jones v. Williams" on Justia Law

by
Robert Feldman ("Feldman") and the law firm of Haddon, Morgan & Foreman petitioned for relief from a probate court order requiring the firm to provide information to the special administrator concerning its representation of Feldman in a criminal prosecution for the murder of his wife Stacy, and to deposit funds held in its client trust account into the registry of the court. In response to the assertion by the special administrator that Colorado’s “slayer statute” applied to the funds at issue as proceeds of the decedent’s life insurance policy, the probate court determined that if Feldman were later found, in the manner prescribed by the statute, to be the decedent’s killer, he would be ineligible to receive those proceeds. Against that eventuality, the probate court found that compelling the return of the unearned funds in the firm’s client trust account would be the only way to protect the children’s interests, and that the court’s equitable powers permitted it to do so. The Colorado Supreme Court determined the probate court abused its discretion by issuing its order without weighing the considerations inherent in preliminarily enjoining the law firm from expending further funds in the representation of Feldman. In addition, however, because the slayer statute expressly protected third parties who receive a payment in satisfaction of a legally enforceable obligation from being forced to return that payment or from liability for the amount of the payment, no finding of a reasonable likelihood of success in attempting to force the return of the insurance proceeds would have been possible. Given this resolution, the Supreme Court found the disclosures ordered by the probate court would not have served their intended purpose. View "In re Feldman" on Justia Law

by
Frederico Alvarado Hinojos, a citizen of Mexico, immigrated to the United States in 1991 with his wife and two daughters. Sixteen years later, in 2007, he pled guilty to felony menacing with a deadly weapon and misdemeanor third-degree assault. Alvarado Hinojos successfully completed both his deferred judgment and his probation sentence. Therefore, in 2009, the trial court dismissed the guilty plea to the felony count and terminated the probation sentence on the misdemeanor count. In July 2015, Alvarado Hinojos filed a motion for postconviction relief in which he collaterally attacked his third-degree assault conviction under Crim. P. 35(c). The question Alvarado Hinojos' appeal raised for the Colorado Supreme Court's review was whether, as a noncitizen, Alvarado Hinojos was entitled to a hearing on the timeliness of his Crim. P. 35(c) postconviction motion when he invoked the justifiable excuse or excusable neglect exception and alleged that plea counsel provided him no advice regarding the immigration consequences of his plea. The Supreme Court held that when the plea agreement or the plea hearing transcript is submitted, the trial court should consider it in conjunction with the allegations advanced. In this case, the Court held Alvarado Hinojos was not entitled to a hearing. The factual allegations in his motion (which were assumed to be true), when considered in conjunction with the plea agreement, were insufficient to establish justifiable excuse or excusable neglect for failing to collaterally attack the validity of his misdemeanor conviction within the applicable eighteen-month limitations period. The immigration advisement contained in the plea agreement, at a minimum, gave Alvarado Hinojos reason to question the accuracy of his plea counsel’s advice regarding the immigration consequences of the plea. "Thus, even taking at face value the allegations in his motion, he was on notice at the time of his plea that he needed to diligently investigate his counsel’s advice and, if appropriate, file a timely motion challenging the validity of his conviction." View "People v. Alvarado Hinojos" on Justia Law

by
In 2013, Blooming Terrace No. 1 (“Blooming Terrace”) obtained an $11 million loan from KH Blake Street, LLC (“KH Blake Street”), a special purpose entity organized by Kresher Holdings, LLC. The loan was secured by a deed of trust and memorialized by promissory note. Blooming Terrace paid a $220,000 origination fee upon execution of that note. The note specified that interest would accrue on the outstanding principal at a rate of 11% per annum. In the event of default, the note provided for a higher default interest rate of 21% per annum. The note required monthly interest payments in the amount of 8% per annum throughout the term of the loan, though these periodic payments did not apply to reduce the principal balance of the loan. In the event of any late monthly payment, a 5% late fee was applicable to the overdue amount. The note was to mature in 2014. However, KH Blake Street reserved the right to accelerate Blooming Terrace’s full loan repayment obligation upon an event of default. Prior to paying down any portion of the principal, Blooming Terrace defaulted on its monthly payment obligation. The parties entered into a forbearance agreement; at that time, the parties stipulated that the accrued charges due and owing to KH Blake Street under the original loan agreement were $778,583.33. In exchange for KH Blake Street’s agreement not to pursue collection of that sum, or any other remedies, Blooming Terrace agreed to pay a $110,000 fee. Payment of this new fee did not substitute for any other charges that continued to accrue during the forbearance period, including, but not necessarily limited to, default interest and late fees. Instead, a condition of the forbearance was Blooming Terrace’s compliance with all of the original loan terms. The Colorado Supreme Court granted certiorari to clarify the proper method for determining the effective rate of interest charged on a nonconsumer loan to ascertain whether that rate was usurious under Colorado law: the effective interest rate should be calculated by determining the total per annum rate of interest that a borrower is subjected to during a given extension of credit. Here, where a forbearance agreement was entered into after an event of default, all charges that accrued during the period of forbearance must be totaled and then annualized using only that timeframe as the annualization period. Such includable interest must then be combined with any interest that continued to accrue pursuant to the original loan terms to determine the effective rate of interest subject to the 45% ceiling set by Colorado’s usury statute, section 5-12-103, C.R.S. (2018). View "Blooming Terrace No. 1, LLC v. KH Blake Street, LLC" on Justia Law

Posted in: Business Law, Contracts

by
Israel Chavez-Torres was born in Mexico who immigrated to the United States with his mother and three sisters in 1991 when he was thirteen years old. In August 1996, while in high school, Chavez-Torres pled guilty to first-degree felony criminal trespass. He received probation, which he completed successfully. In 2013, seventeen years after his conviction, the United States Department of Homeland Security (“DHS”) notified Chavez-Torres that it had initiated removal proceedings against him based on his conviction. Chavez-Torres promptly consulted an immigration attorney who advised him that his conviction made him ineligible for cancellation of removal proceedings. The immigration attorney thus opined that plea counsel may have provided Chavez-Torres ineffective assistance by failing to provide an advisement about the immigration consequences of the plea. The question Chavez-Torres' appeal raised for the Colorado Supreme Court's review was whether, as a noncitizen, Chavez-Torres was entitled to a hearing on the timeliness of his Crim. P. 35(c) postconviction motion when he invoked the justifiable excuse or excusable neglect exception and alleged that plea counsel provided him no advice regarding the immigration consequences of his plea. The Supreme Court held that when the plea agreement or the plea hearing transcript is submitted, the trial court should consider it in conjunction with the allegations advanced. In this case, Chavez-Torres was entitled to a hearing. "Chavez-Torres alleged that he had no reason to question or investigate his plea counsel’s failure to advise him regarding the immigration consequences of his plea. Further, although he was not required to do so, Chavez-Torres submitted the plea agreement and the plea hearing transcript with his motion, and neither references the immigration consequences of his plea." View "Colorado v. Chavez-Torres" on Justia Law

by
Douglas Schoninger was interested in launching a professional rugby league in the United States. Toward that end, he formed PRO Rugby and approached the United States of America Rugby Football Union (“USAR”), the national governing body for rugby in the United States. PRO Rugby and USAR entered into the Sanction Agreement, which authorized PRO Rugby to establish a professional rugby league in the United States. At issue before the Colorado Supreme Court in this appeal was whether a nonsignatory to an arbitration agreement could be required to arbitrate under that agreement by virtue of the fact that it was a purported agent of a signatory to the agreement. Specifically, the Court was asked to decide whether the district court erred when it entered an order requiring petitioner Rugby International Marketing (“RIM”), a nonsignatory to a Professional Rugby Sanction Agreement (the “Sanction Agreement”), to arbitrate pursuant to an arbitration provision in that Agreement that covered the parties and their agents. The court found that because RIM was an agent for USAR, a signatory of the Sanction Agreement, RIM fell “squarely within the broad language of the arbitration provision.” The Supreme Court found that the weight of authority nationally established that, subject to a number of recognized exceptions, only parties to an agreement containing an arbitration provision could compel or be subject to arbitration. Here, because RIM was not a party to the Sanction Agreement and because respondents PRO Rugby and Schoninger had not established any of the recognized exceptions applied, the Supreme Court concluded the district court erred in determining that RIM was subject to arbitration under the Sanction Agreement. View "In re N.A. Rugby Union v. U.S. Rugby Football Union" on Justia Law

by
Petitioners Carol Hedges and Steve Briggs were the designated representatives of the proponents of proposed Initiative 2019–2020 #3 (“Initiative #3”), which, if enacted, would repeal in its entirety the Taxpayer’s Bill of Rights, section 20 of article X of the Colorado Constitution (“TABOR”). The Title Board declined to set a title for this initiative because it concluded that the initiative did not constitute a single subject as required by the Colorado Constitution. Petitioners petitioned the Colorado Supreme Court for review. The Supreme Court concluded the title constituted a single subject, and returned Initiative #3 to the Title Board for the purpose of setting a title, ballot title and submission clause. View "In re Ballot Title #3" on Justia Law

Posted in: Election Law

by
T.T. sought to ensure that his name was not linked to the record of his earlier short-term commitment for treatment of a mental health condition. Under section 27-65-107(7), C.R.S. (2018), when a person is released from short-term treatment for a mental health condition, the clerk of the district court shall seal the record in the case and omit the name of the person from the court’s “index of cases.” The key question in this case was whether “Eclipse,” the user interface of the Colorado judicial branch’s computerized case management system, was an “index of cases” as contemplated by section 27-65-107(7). The Colorado Supreme Court concluded the reference to “index of cases” in section 27-65-107(7) contemplated a list of matters before the court that could be used to locate the actual court records for those matters. The Eclipse user interface itself contained no data, and neither Eclipse nor its underlying database, ICON, functioned as an “index” or list of cases. Thus, contrary to the court of appeals’ ruling, section 27-65-107(7) did not require the court clerk to remove T.T.’s name from the ICON/Eclipse case management system. Moreover, to remove an individual’s name from this case management system would thwart the court’s statutory obligations to link the record of a short-term mental health case with subsequent cases involving that individual and to share certain information with the federal government. Because the district court cannot comply with the relief directed by the court of appeals, the Supreme Court discharged the rule to show cause. View "In re People in the Interest of T.T." on Justia Law

by
William Kutzly was charged with several crimes involving sexual assault on a child. During his trial, the court qualified a social worker as an expert witness in child sexual assault and victim dynamics; the witness then testified. Prior to trial, Kutzly moved the trial court to hold a Shreck hearing to determine the reliability of the social worker’s proposed testimony. The trial court held a hearing on that motion, determined that the testimony was reliable, and ultimately denied the motion to hold a full evidentiary Shreck hearing on that issue. Kutzly argued on appeal to the Colorado Supreme Court that this was error. After review, the Supreme Court concluded the trial court made specific findings of reliability such that its decision not to hold a Shreck hearing was not an abuse of discretion. The Court therefore affirmed the court of appeals’ decision. View "Kutzly v. Colorado" on Justia Law