Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Ortega

People v. Ortega            35(c) / F3 Child Abuse / Extraordinary Risk Crimes / Crimes of Violence

Facts: Mr. Ortega pled to a class 3 felony child abuse, which normally carries a sentence of 10-32 years in prison with 5 years of parole. However, Mr. Ortega entered into a plea agreement with a stipulated range of 15 to 20 years in prison. The trial court sentenced Mr. Ortega to 19 years. Subsequently, Mr. Ortega filed a 35(c) claiming the trial court illegally sentenced him. The trial court summarily denied his motion, and Mr. Ortega filed a pro se appeal.

Issue: Whether the trial court imposed an illegal sentence upon Mr. Ortega?

Held: No.

Reasoning: With Judge Taubman as author and Judges Roman and Booras concurring, the Court of Appeals reasoned that because Mr. Ortega pled to an extraordinary risk crime that required a crime of violence sentencing range of 10-32 years, the trial court did not impose an illegal sentence. Further, the sentence of 19 years imposed by the trial court fell within the range agreed upon by Mr. Ortega. Finally, Mr. Ortega signed and initialed the plea agreement evincing that he voluntarily and knowing entered the plea. 

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Berry

People v. Berry             ‘Knowingly’ / Sufficiency of the Evidence / Retaliation Against a Judge

Facts: In the throes of alcohol infused depression and misery, Mr. Berry seeks out a friend to have him drive him to the emergency room. A mental health worker at the emergency room counsels Mr. Berry. The mental health worker did not tell Berry she would report threats to any targets. Nevertheless, the mental health worker told Mr. Berry’s ex, her lawyer, and his divorce case judge that Mr. Berry made threats to them. The mental health worker then committed Mr. Berry on an emergency basis. The police arrested Mr. Berry for allegedly retaliating against the judge. Further, the prosecution charged, the trial court allowed, and a jury convicted Mr. Berry of retaliating against a judge. Mr. Berry argued that he made idle threats and did not know the mental health worker would report any of the threats, including to the judge.

Issue: Whether the prosecution presented sufficient evidence that Mr. Berry retaliated against the judge?

Held: No.

Reasoning: The statute §18-8-615, reads:

“An individual commits retaliation against a judge by means of a credible threat ... if the individual knowingly makes the credible threat:

(I) Directly to the judge; or

(II) To another person:

(A) If the individual intended that the communication would be relayed to the judge; or

(B) If the other person is required by statute or ethical rule to report the communication to the judge.” (Quoting the opinion).

            With Judge Criswell writing the decision and Judges Furman and Richman concurring, the Court of Appeals reasoned because Mr. Berry did not know that the mental health worker had a mandatory duty to snitch him off, he did not knowingly retaliate against the judge.