Colorado Court of Appeals decisions 5-13-10

People v. Drew             Jurisdiction / Frivolous Appeal / The ‘Fringed Flag’ Argument

Brian Conners previously sent an email about this case.

Frivolous argument #1: Mr. Drew contended because the caption on the information charged ‘DONALD JAMES DREW,' the state convicted a fictional person. The CofA held the claim to be frivolous.

Frivolous argument #2: “[T]he trial court lacked jurisdiction over him and the alleged offenses because it is an ‘inland admiralty court’ evidenced by the presence of a fringed flag.” The CofA cited and followed McCann v. Greenway, 952 F.Supp. 647, 650 (W.D.Mo.1977), “[o]ther Courts have considered [the ‘fringed flag’ argument]. Those courts have labeled the position as ‘frivolous.’ In the apparent belief that by analyzing the law of the flag it could ‘kill [the] argument for good’ and ‘facilitate appellate review,’ id., the court then engaged in an extended discussion of that law. We harbor no such

optimism and decline to address the matter further.”

People v. Brooks            Restitution / 35(c) Illegal Sentence

Pro Se, Mr. Brooks contested the district court’s jurisdiction to order restitution from a juvenile adjudication as part of his adult felony conviction. The Court of Appeals agreed, and vacated over $35,000 worth of restitution ordered by the district court in the adult felony case. Unfortunately, Mr. Brooks won the battle, but lost the war. The CofA found that the juvenile court retained jurisdiction over the restitution amount until either Mr. Brooks satisfied the order or the juvenile court terminated the order. Incidentally, Mr. Brooks and his lawyer agreed to the restitution amount as part of the plea to an F4 with a stipulation to probation. Idiotic, because (1) kids all face generally face the same sentence whether it is a petty offense, misdemeanor, or felony -  0-2 years in the Department of Youth Corrections (DYC); (2) the Court would have granted probation if the Court found Mr. Brooks found guilty at trial; and (3) if the juvenile court sentenced Mr. Brooks to the maximum of 2 years DYC, he would no longer have the $35,000.00 obligation. Again, idiotic.

People v. Gladney            Collateral Estoppel / Issue Preclusion / 1^∘ Murder / RICO

Issue: In his federal case, the government convicted Mr. Gladney of a series of RICO charges. The RICO case included a special verdict where the federal jury found that Mr. Gladney committed a homicide in Adams County. The state subsequently prosecuted Mr. Gladney on the same homicide. Mr. Gladney contended, because of the special verdict in the RICO case, C.R.S. § 18-1-303 barred further prosecution.

Held: The CofA held C.R.S. § 18-1-303 did not bar subsequent prosecution.

Reasoning: The CofA held the subsequent prosecution in state court for the same murder charge did not violate Double Jeopardy. The CofA applied § 18-1-303 - Second Trial Barred By Prosecution In Another Jurisdiction to determine if, by statute, the statute barred further prosecution in state court. The CofA went through a five-part test:

(1) the first prosecution must have resulted in a conviction or an acquittal;

(2) the same conduct must form the basis of both prosecutions;

(3) the conduct must constitute an offense within the concurrent jurisdiction of this state and of the United States;

(4) the offense for which the defendant was formerly convicted or acquitted requires proof of the same facts required by the offense for which

he is subsequently prosecuted; and

(5) the law defining each of the offenses is intended to prevent substantially the same harm or evil.

            The CofA assumed the first two factors the test applied, but held the federal court did not possess concurrent jurisdiction. Further, because the RICCO conviction required proof of facts other than the homicide, the CofA held that the statute did not bar subsequent prosecution. Lastly, the CofA held the statutes seek to curb different so-called evils.

People v. O’Hara                      Wiretaps - § 16-15-102

The CofA held, pursuant to  § 16-15-102 – the wiretap statute, that the elected district attorney needed to authorize any wiretap or subsequent extension of a wiretap. The CofA remanded the case, and ordered if the elected district attorney did not authorize the wiretap, the conviction must be reversed.

People v. Vondra                      Successive Claims / 32(d) / 35(c)

Mr. Vondra pled to a drug deal where the statute mandated a sentence of 24 years and a day. Subsequent to his plea, but prior to sentencing, Mr. Vondra claimed ineffective assistance of counsel, and under Rule 32(d), he moved to withdraw his plea. The District Court denied the motion after “a lengthy hearing.” Mr. Vondra subsequently appealed, but did not appeal the ineffective assistance ruling. The CofA held that because Mr. Vondra did not appeal the ineffective ruling in his direct appeal, Rule 35(c)(3)(VII) barred any consideration of the issue.