Colorado Court of Appeals decisions 3-3-11

People v. Kazadi            35(c) –  Ineffective Assistance of Counsel / Controlled Substances and Immigration Consequences

Facts: Mr. Kazadi pled to possession with the intent to distribute marijuana, and the prosecution agreed to a deferred sentence. However, as part of the deal, the prosecution also required Mr. Kazadi to plead to possession of a schedule V controlled substance, a class one misdemeanor. Mr. Kazadi took the deal, and then ICE instituted removal proceedings. Mr. Kazadi claims his lawyer never told him of the immigration consequences. After ICE instituted removal proceedings, Mr. Kazadi filed a 35(c), which the trial court summarily denied. Mr. Kazadi filed a Rule 21 with the Colorado Supreme Court and the Supreme Court denied the Rule 21. Mr. Kazadi then filed a direct appeal of the denied of a 35(c) to the Court of Appeals.

Issue: Whether a trial court may summarily deny a 35(c) without a hearing when the client alleges the plea lawyer never informed the client of the immigration consequences?

Held: No.

Reasoning: Pursuant to Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1478 (2010) and People v. Pozo, 746 P.2d 523, 525-26 (Colo. 1987), the Court of Appeals reasoned that Kazadi raised enough in his 35(c) motion to get a hearing:

(1) discovery indicated that he was born in the Congo and was not a citizen of the United States, (2) he told his counsel that he and his family came from the Congo when he was a child, and (3) he has a foreign name and speaks with a foreign accent. If true, these allegations suffice to show that his counsel knew or had enough information to know of Kazadi’s alien status, thus triggering a duty to investigate relevant immigration law and to advise accordingly. See id. According to Kazadi, however, his counsel did not conduct the necessary research and did not advise him that his misdemeanor conviction would, in fact, subject him to presumptive mandatory deportation under 8 U.S.C. § 1227(a)(2)(B) and permanent exclusion from the United States.

Issue: Whether a deferred felony qualifies as a “final conviction” to allow a court to review the case under Rule 35(c)?

Held: No.

Reasoning: The Court of Appeals reasoned that because the trial court did not revoke Mr. Kazadi’s deferred sentence and impose sentence, the conviction is not final. Thus, 35(c) does not provide an avenue to attack a deferred sentence, regardless of the ineffective assistance received. The CofA stated:

Notwithstanding the foregoing, we are sympathetic to Kazadi’s apparent “catch-22,” in which he may be subject to removal based on a deferred judgment that he may never have the opportunity to challenge in a Crim. P. 35(c) motion. See generally 8 U.S.C. §§ 1101(a)(48)(A)(i) (defining “conviction” to include guilty plea), 1227(a)(2)(B)(i) (alien convicted of violation of law relating to controlled substances is presumptively deportable). Nonetheless, we believe that our supreme court’s interpretation of Crim. P. 35(c) dictates our result.

People v. Greer            SAC / Rule 16 – Mandatory Disclosure of Experts / Unanimity

Facts: Mr. Greer worked as a manager at a fast food restaurant. Two girls one 14 and the other 15 claimed Mr. Greer grabbed their butts and rubbed his penis on their rear-ends during work hours. All the touching supposedly occurred with clothes on, during work, with other witnesses around. Neither alleged intercourse or anything more than frottage. Reading the allegations, it all sounded like made up vindictiveness that could easily convict an innocent person – no physical evidence, no other eyewitnesses, just two girls.

Issue: Does Rule 16 require the prosecution to disclose experts prior to trial?

Held: No.

Reasoning: Rule 16 does not mandate disclosure of expert witnesses. Instead the Court of Appeals held that the defense must make a request under the discretionary disclosure section of Rule 16. Should the trial court grant that request, then the prosecution must disclose expert witnesses.

Issue: Must the jury be unanimous where the evidence does not specify to which count the evidence applies?
Held: Yes.

Reasoning: On counts 4 – 8 the jury found Mr. Greer guilty, but on a special interrogatory marked they did not unanimously agree. Thus, the CofA reversed Mr. Greer convictions on those SAC counts.

People v. Walker             SVP Procedures / Amendments / Waiver of Jury Trial

Facts: Mr. Walker liked kids, taught kids, and, unfortunately, liked taking pictures of teenage boys. According to the opinion, three boys all around 14 to 15 succumbed to pressure by Mr. Walker who met them as their 8^th grade teacher. Each claimed on separate occasions that Mr. Walker ‘forced’ them to pose nude  for pictures.  Mr. Walker waived his right to a jury trial, and the judge convicted Mr. Walker of a slew of offenses including unlawful sexual contact, exploitation, enticement etc. Subsequently, the trial court ordered the sex offender evaluation and assessment. In addition to the sex offender assessment, the evaluator filed attached a letter extolling the necessity of lifetime supervision for Mr. Walker. At sentencing, the trial court sentenced Mr. Walker to an indeterminate sentence in prison. However, the evaluator never opined that Mr. Walker likely to re-offend, but only Mr. Walker posed a significant risk to re-offend.

Issue: Whether a letter written by the sex offense evaluator can comprise the record in which the court can justifiably find SVP?

Held: Yes.

Reasoning: The CofA found nothing wrong with the trial court relying on a letter written by the evaluator, which stated the need for lifetime supervision. The CofA rejected Mr. Walker’s assertion that the trial court may ONLY rely upon the sex offender assessment in determining the SVP issue. Further, on the sufficiency of the proof, the appellate lawyer on the case gave me some insight. An element of finding Sexually Violent Predator is whether the prosecution proved the offender is "likely to re-offend" beyond a reasonable doubt. Here, the evaluator could neither opine that Mr. Walker would re-offend nor "likely to re-offend.' The evaluator only opined that Mr. Walker posed a significant risk to re-offend. To the CofA, 'close enough for government work.' As the appellate lawyer wrote, " 'A 10% risk of brake failure is 'significant,' but it is far from 'likely.' "

Issue: Whether the trial court erred in allowing the prosecution to amend the date of offense on the morning of trial?

Held:  No.

Reasoning: Seems the CofA ignored the herky-jerky amendments the prosecution filed. First, the prosecution came up with a range, then narrowed the range, then narrowed the range again, and then morning of trial expanded the range of dates for the offense. The CofA ignored the cumulative effect of all the amendments, and held that the last amendment coming a week after the previous amendment did not substantively change the charge.

Issue: Whether the trial court adequately advised Mr. Walker of his right to a jury trial and the waiver of his jury trial?

Held: No.

Reasoning: The CofA went through the advisement the trial court gave and the advisement required by rule Crim. P. 23(a)(5), and found the trial court's advisement lacking. Crim. P. 23(a)(5) states:

 (I)      The person accused of a felony or misdemeanor may, with the consent of the prosecution, waive a trial by jury in writing or orally in court. Trial shall then be to the court.

(II)     The court shall not proceed with a trial to the court after waiver of jury trial without first determining:

(a)          That the defendant's waiver is voluntary;

(b)          That the defendant understands that

            (i)      The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;

(ii)  The jury would be composed of a certain number of people;

(iii) A jury verdict must be unanimous;

(iv) In a trial to the court, the judge alone would decide the verdict;

(v) The choice to waive a jury trial is the defendant's alone and may be made contrary to counsel's advice.

The CofA found the inadequate advisement to be plain error. However, rather than reverse remand for a new trial, the CofA stated the trial court must conduct a hearing to assess prejudice. The CofA quoted People v. Montoya ---P.3d--- (Colo.App.2010)(decided March 4, 2010), " 'Before the trial court can find a defendant's waiver of the right to a jury trial was constitutionally invalid and warrants a new trial, the defendant must establish prejudice by showing that

(1) if there had been a proper advisement, he would not have waived the jury;

(2) therefore, the deficient advisement resulted in a waiver that was not made knowingly, voluntarily, or intelligently.' "   

           Thus, the CofA remanded the case to the trial court to conduct a hearing.