Colorado Court of Appeals, 1016 COBJ, Vol. 45, No. 10 Pg. 105
August 2016: Summaries of Published Opinions
The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on "Opinions/Rules/Statutes"). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us (click on "Courts/Court of Appeals/Case Announcements").
August 11, 2016
2016 COA 115. No. 14CA1009. People v. Waller.
Advisory Counsel—Right to Self-Representation— Right to Fair Trial—Jury Nullification—Jury Instructions.
Waller was charged with several offenses. At his request, the court appointed him alternate defense counsel. During the course of the proceedings, Waller made several requests to proceed pro se with the assistance of advisory counsel. The court denied these requests, advising Waller that he could proceed pro se without advisory counsel or have counsel represent him. Waller chose to have counsel represent him. He was convicted of third degree assault.
On appeal, Waller contended that, due to the circumstances of his case, the trial court's failure to appoint advisory counsel to assist him with proceeding pro se violated his federal and state constitutional rights to self-representation While a defendant has a constitutional right to represent himself, there is no right to appointment of advisory counsel in connection with the exercise of the right to self-representation.
Waller next contended that the trial court abused its discretion by failing to adequately inquire into the particular circumstances of his case that merited appointment of advisory counsel to assist him with proceeding pro se. The record shows that the trial court did not abuse its discretion when it declined to appoint advisory counsel for Waller.
Waller also contended that his constitutional right to a fair trial by an impartial jury was violated by language in the court's reasonable doubt jury instruction that allegedly abolished the jury's power to nullify. The trial court's general reasonable doubt instruction—instructing the jury that it "will find the Defendant Guilty" if it found that the prosecution proved all elements of an offense beyond a reasonable doubt—did not abolish the jury's power to nullify and was proper.
The judgment was affirmed.
2016 COA 116. No. 15CA0485. Ybarra v. Greenberg & Sada, P.C. Automobile Accident—Subrogation —Colorado Fair Debt Collection Practices Act—Transaction—Administrative Agency.
Ybarra sued Greenberg & Sada, P.C, alleging that the law firm violated the Colorado Fair Debt Collection Practices Act's (CFDCPA) venue provisions and prohibitions against making false representations and using deceptive means to collect a debt when it obtained a judgment against her. The judgment was based on a subrogation claim for damages that arose from a car accident. The law firm moved to dismiss Ybarra's claim for failure to state a claim under CRCP 12(b)(5), asserting that the subrogation claim was not a "debt" subject to the CFDCPA. The district court dismissed the lawsuit.
On appeal, Ybarra argued that the district court misinterpreted the CFDCPA in dismissing her claim The Court of Appeals concluded that a car accident is not a transaction under the CFDCPA and thus a subrogation claim arising from a car accident is not a "debt" under the CFDCPA.
Ybarra also contended that the district court erred in holding that a debt must arise from a "consensual" transaction to be covered under the CFDCPA. Because of its holding that a subrogation claim arising from tortious activity is not a "transaction" within the meaning of the CFDCPA, the Court found it unnecessary to decide this issue.
Ybarra next argued that the act of subrogating rights itself is the transaction from which the debt arose. The Court rejected this argument because it was undisputed that absent the car accident, Ybarra would have had no obligation to pay the insured or the insurer. Further, even if the subrogation claim was a "transaction," that transaction was between the insured and the insurer, not between Ybarra and the insured.
Ybarra further argued that an advisory opinion of the Colorado Collection Agency Board that concludes that insurance subrogation claims are debts within the meaning of the CFDCPA should be given deference. Deference, however, is not warranted when the agency's interpretation is contrary to the plain meaning of the statute, as was the case here.
Ybarra also asserted that based on the legislative history of the CFDCPA, the term "debt" covers obligations arising from car accidents. The Court did not address this argument because the Act clearly and unambiguously does not apply to the type of subrogation claim at issue in this case.
Lastly, Ybarra contended that the district court erred in relying on an irrelevant statute in holding that the CFDCPA does not apply to judgments arising from negligence claims. Even if such erroneous reliance occurred, it was immaterial in light of the Court's analysis and disposition of the case.
The judgment was affirmed.
2016 COA 117. No. 15CA0545. People v. McRae.
Distribution—Possession—Drugs—Habitual Sentence—Proportionality Review—Abbreviated—Extended.
McRae was convicted of distribution of a schedule II controlled substance and possession of drug paraphernalia. After completing a proportionality review of McRae's sentence, the trial court concluded that a 64-year sentence to the custody of the Department of Corrections would be grossly disproportionate to his crimes and sentenced him to 16 years' incarceration On appeal, the People first contended that the trial court entered an illegal sentence because it lacked statutory authority to retroactively apply Senate Bill (SB) 13-250, which...
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