Summaries of Published Opinions, 0119 COBJ, Vol. 48, No. 1 Pg. 86

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48 Colo.Law. 86

Summaries of Published Opinions

Vol. 48, No. 1 [Page 86]

The Colorado Lawyer

January, 2019

COLORADO COURT OF APPEALS

November 1, 2018

2018 COA152. No 16CA0644. People v. Bohl. Criminal Procedure—Jury Contact Information Jury Misconduct.

A jury convicted Bohl of one count of first degree murder for killing his girlfriend. After the verdict, a deputy district attorney who was not involved in prosecuting the case sent a text message to Mrs. Hillesheim, the wife of the jury foreman. Mrs. Hillesheim and the deputy district attorney knew each other, and the deputy district attorney asked her if Mr Hillesheim would provide feedback on the trial and the prosecutors' performance during the case. Mrs. Hillesheim informed the deputy district attorney that Mr Hillesheim had researched various scientific items that were presented during the trial. Following this communication, the People filed a Notice of Juror Contact. In response, Bohl's counsel filed a motion for a new trial, and alternatively, Bohl requested that the court hold a hearing on the incident and release the jurors' contact information. Following a hearing at which the Hillesheims testified, the trial court determined that no jury misconduct had occurred and any extraneous information that Mr Hillesheim obtained was not relevant to a key issue at trial. Based on the evidence presented, the trial court did not address Bohl's request for juror information, but denied Bohl's motion, and later sentenced him to life in prison without the possibility of parole.

On appeal, defendant argued that the trial court abused its discretion in denying his request for juror contact information because it deprived him of the opportunity to gather evidence to support his juror misconduct claim. Here, the trial court's factual and credibility determinations were supported by the record, and given the speculative evidence of juror misconduct, the trial court did not abuse its discretion in denying Bohl access to juror contact information.

The order was affirmed.

2018 COA 153. No. 17CA0259. People v. Timoshchuk. Criminal Procedure—Postconviction Remedies—Immigration—Probation—Right to Counsel.

Timoshchuk was a lawful permanent resident of the United States. He was charged with forgery. As part of a plea agreement, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases. Timoshchuk's probation officer filed a complaint in district court alleging that Timoshchuk had violated the two conditions of his probation. Timoshchuk then entered into an agreement resolving all four cases: he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk's probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections, concurrent with his other sentences.

The Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony. Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged and later denied his request for asylum. Timoshchuk then filed a Crim. P. 35(c) post conviction motion alleging he was denied effective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Timoshchuk argued that the court erred in denying his Crim. P. 35(c) motion without a hearing. He contended that his probation revocation counsel failed to sufficiency investigate and advise him of the specific immigration consequences of his plea. The Court of Appeals held that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel. Here, it was clear that Timoshchuk could be subject to removal for his aggravated felony conviction, and his probation revocation counsel should have advised him with certainty that his admission and resulting sentence could subject him to removal. Further, Timoshchuk became ineligible for asylum when he was sentenced to three years in prison for the forgery conviction, and his counsel should have advised him with certainty of the immigration consequences of his admission. If Timoshchuk did not receive an advisement from his counsel of the specific immigration consequences of his plea, he may be enticed to relief. Therefore, Timoshchuk alleged sufficient facts to warrant a hearing on the adequacy of the advice he received.

The order was reversed and the case was remanded.

2018 COA 154. No. 17CA1219. In re Marriage of Garrett and Heine. Family Law—Post-Dissolution—Modification of Child Support—Retroactive Child Support—Parenting Time.

In this post-dissolution of marriage proceeding, both parents moved to modify parenting time. The district court entered a week on, week off parenting schedule and modified child support accordingly. In June 2015 the parents mutually agreed to modify this schedule so father would be the primary residential parent and mother would have parenting time every other weekend and one evening per week. Accordingly, father began paying mother a reduced amount of child support and then moved to modify child support in July 2016. The parties again agreed to change parenting time in February 2017, with mother the primary residential parent of one child and father the primary residential parent of the other child. The district court found that mother owed retroactive child support based on the substantial changes in parenting time beginning in June 2015, and it offset that amount against father's current child support obligation.

On appeal, mother contended that the district court erred when it imputed income to her without finding she was voluntarily underemployed. If a parent is voluntarily underemployed, child support must be calculated based on the parent's income. Here, the court did not explicitly find that mother was voluntarily underemployed and shirking her child support obligation and the record does not support such findings. Nor did the court make any findings concerning the reasonableness of mother's efforts to secure a full-time position at her previous salary. Thus, the case was remanded to the district court for additional findings, reconsideration of mother's income, and recalculation of child support accordingly.

Mother further contended that the district court erred in applying CRS § 14-10-122(5) and ordering her to pay retroactive child support back to June 2015. When a voluntary change in parenting time occurs, a court may retroactively enter a child support order against either parent without regard to the parent's status as obligor or obligee under the existing child support order However, the record is not clear on whether the district court imposed the retroactive child support obligation as an act of discretion or imposed it under the mistaken view that it was required to do so. On remand, the district court must set forth the factors it considers in determining whether to impose such an obligation.

The order retroactively establishing a child support obligation for mother was affirmed. The portion of the order determining mother's income was reversed and the case was remanded for further proceedings.

2018 COA155. No. 18CA0710. People v. Hodge. Criminal Law—Sexual Assault—Child—Use of Force Aggravator—Consent.

The prosecution charged Hodge with three counts of sexual assault on a child and alleged that he used force against the victim to accomplish the sexual contact. The use of force aggravator made each charge a class 3 felony under CRS § 18-3-405(1) and (2)(a). The district court dismissed the force aggravators based on its finding that because the 14-year-old victim had consented to the force used (restraints), the prosecution did not establish probable cause for the use of force at the preliminary hearing.

On appeal, the prosecution argued that the district court erred in dismissing the use of force aggravators. A child sexual assault victim cannot legally consent to the use of force during an unlawful sexual act. Therefore, the district court erred in finding that the victim's agreement to the use of restraints did not constitute the use of force.

The order dismissing the use of force aggravator was reversed, and the case was remanded f or reinstatement of the original charges as class 3 felony sexual assault on a child.

November 15, 2018

2018 COA 156. No. 14CA2271. People v. Sandoval.

Criminal Law—Complicity—Jury Instructions—Demonstrative Evidence—Partial Reconstruction—Prosecutorial...

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