October 11, 2010

Court of Appeals decisions 9-2-10

People v. McClaren            Blood Tests / Voluntariness / Vehicular Assault – DUI
Facts: Mr. McClaren crossed the double yellow, hit another car, and caused a broken wrist to the drive of the other car. On scene, Mr. McClaren tells the EMT treating him that he had a beer earlier. Bloodhound cop claims she smelled alcohol on his breath. The cop never gave Mr. McClaren a choice, but ordered the phlebotomist to take two vials of blood to test. Mr. McClaren never refused a test.  The defense filed a motion to suppress the results of the blood test. The trial court suppressed the results, and did one better, the trial court dismissed both the DUI and the Vehicular Assault.
Issues: Whether the trial court abused its discretion when it suppressed the results of the blood test and dismissed the charges.
Held: No and Yes.
Reasoning: Regarding the suppressing of the results, the Court of Appeals held, “Because the trial court found the officer committed misconduct without justification by extraordinary circumstances or good cause, the trial court did not abuse its discretion by suppressing the results of the blood test.” However, the CofA also held that the dismissal is a drastic remedy, and this misconduct does not necessitate the dismissal of the charges.

People v. Bowerman            Restitution Amount / 35(a) / 35(b) / 35(c)
Synopsis: Ms. Bowerman moves into the complaining witness’s home. The complaining witness visits California for about a month, and asks Ms. Bowerman and her stellar boyfriend to watch her home while she is in California. While the complaining witness is gone, Ms. Bowerman and boyfriend hold a garage sale to sell the complaining witness’s crap – without the complaining witness knowing. The prosecution charged Mr. Bowerman with F4 theft, and she pled to an F5 attempted theft and an F6 false information to a pawnbroker.  Two years later, Ms. Bowerman complained in a 35(c)/35(a) motion that the procedure the trial court followed an illegal procedure at the restitution hearing. The trial court denied the motion, and the Court of Appeals affirmed, albeit on different grounds.
Issues: Does the 120-day rule apply when someone complains that the trial court imposed the sentence in an illegal manner?
Held: Yes.
Reasoning: Rule 35(a) Correction of Illegal Sentence: “The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals focused on the language “and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals followed People v. Wenzinger, 155 P.3d 415 (Colo.App.2006), where another appeals court division held the 120 day limit in rule 35(b) applied to Rule 35(a) if the complaint alleges the trial court imposed the sentence in an illegal manner.

People v. Wylie            Mens Rea – Insanity vs. Negating Element / Sentencing
Some cases just make you angry. Mr. Wylie, obviously mentally ill, has a habit of throwing feces and urine on the douche bag bullies who choose to work as guards at the prison. The jury blew off his mental illness, and convicted him of four counts of second-degree assault. The female judge, debunking the myth of women as kinder and gentler, sentenced Mr. Wylie to 10 years on each count – CONSECUTIVELY (seriously, if you want all the accoutrements of being some f’in’ hero, like these friggin’ guards, and you profit from the misery of others, then f’ you and you may just suffer a bit of uncomfortable ickiness. There is a word rhymes with wuss).  In any event, the issues on appeal:  1) Did the instructions adequately inform the jury, and 2) Did the trial court abuse its discretion in sentencing Mr. Wylie. Yes, the instructions adequately informed the morons in Freemont County who made up the jury, and No, the suck up judge did not abuse her discretion in sentencing Mr. Wylie. Annoyingly, the CofA pointed out that defense counsel did not object to the sentence. I have no idea who, what, when, or why this has become an issue, but in the last few series of published opinions, the CofA pointed out that defense counsel did not object to the sentence at sentencing (no doubt, no defense lawyer knew he or she should because of the right to appeal the sentence – its not a frigging trial). The CofA stated:

“Defendant further contends the trial court erred in applying section 18-1.3-401(8)(a)(IV), C.R.S  .2009, to enhance his sentence. We perceive no error. Because defendant did not raise this issue in the trial court, we review for plain error. People v. Miller, 113 P.3d 743, 749-50 (Colo.2005). Plain error addresses error that is obvious and substantial, and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the
conviction. Id . at 750.”

Moral of the story: OBJECT at sentencing. Why? I have no idea, but object to preserve the clients right to appeal the sentence. I guess.

People v. Smith             Investigatory Stop vs. Arrest / Miranda / Credit Time Served
When you bend over backwards, you just may end up kissing your own butt. Here, the Court of Appeals bent over backwards to find that by arresting Mr. Smith and holding him in the patrol car during questioning, the police did not hold him in custody. Thus, the police had no duty to advise Mr. Smith pursuant Miranda. However,  the CofA threw Mr. Smith a bone, and found that the trial court abused its discretion by not granting Mr. Smith all the time he was due while being held in jail awaiting trial on this case.



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