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Colorado Supreme Court Opinions
September 12, 2011

No. 09SC252. Lewis v. People.
Merger and Double Jeopardy Under CRS § 18-1-408—Federal Constitutional Presumption—State Legislative Intent.

Lewis petitioned for review of the court of appeals’ judgment affirming his convictions and sentences for a number of offenses, including three counts each of kidnapping and sexually assaulting his kidnap victims. In accordance with the holding of People v. Henderson, 810 P.2d 1058 (Colo. 1991), the trial court sentenced Lewis for sexual assault and separately sentenced him for the second-degree kidnapping of each victim, elevated to the level of a class 2 felony because of the sexual assault. The court of appeals rejected Lewis’s contention that Henderson should be overruled on the basis of subsequent U.S. Supreme Court case law and affirmed each of his separate convictions and sentences for sexual assault and class 2 felony kidnapping.

The Colorado Supreme Court granted certiorari with regard to the continued viability of Henderson and affirmed the judgment of the court of appeals. The Court found that although the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) that any distinction between an “element” and a “sentencing factor” is inconsequential for certain constitutional purposes, those holdings neither diminished the importance of legislative intent on Lewis’s double jeopardy and merger challenges nor undermined Henderson’s prior assessment of legislative intent. The Court reasoned that even if the Apprendi rationale were held to apply in the double jeopardy context, it could not alter the dispositive impact of legislative intent on the permissibility of multiple punishments at a single proceeding nor alter the fact of legislative reliance on the long-accepted distinction between elements and sentencing factors for drafting purposes in this jurisdiction.

No. 10SC104. D.P.H. v. J.L.B., and Concerning A.B.
Abandonment Determination—CRS § 19-15-203—Delay of Adoption Proceeding—Totality of the Circumstances—Parenting-Time Motion.

The abandonment inquiry focuses on whether, under the totality of the circumstances, the parent’s intent during the twelve months preceding the commencement of the adoption proceeding was to abandon the child. It is the trial court’s responsibility to consider the totality of the circumstances and to make this factual determination, which is to be disturbed only if it is clearly erroneous. Here, the evidence before the juvenile court of the father’s intent during the twelve-month period was conflicting. Therefore, it was error for the court of appeals to determine that a single circumstance—father’s filing of a parenting-time motion—precluded a finding of intent to abandon, essentially as a matter of law.

In addition, it is unnecessary for a trial court to delay adoption proceedings until a parenting-time motion in another court is resolved, as long as the trial court adequately considers the parenting-time motion in making its abandonment determination. Here, the court of appeals erred in holding that the juvenile court should have delayed the adoption proceedings until the father’sparenting-time motion was resolved. The court of appeals’ judgment was reversed and the case was remanded for further proceedings.

No. 10SC275. The Glenelk Association, Inc. v. Lewis.
Colo. Const. art. II, § 14—CRS § 38-1-1-2—Private Way of Necessity—Private Condemnation—Purpose—Indispensability—Trial Court Findings of Fact—Scope of and Necessity for Way of Necessity—Burden on Condemnee’s Property.

The District Court for Jefferson County dismissed a condemnation petition for a private way of necessity because the developer of the allegedly landlocked parcel did not sufficiently define the scope of and the necessity for the proposed condemnation. Evidence showed that the development might vary from one to thirty residential dwellings. Applicable roadway and easement requirements in Jefferson County mountain areas are based on how many lots will be served by the development.

The district court found that the developer’s failure to sufficiently define the purpose of the way of necessity prevented the court from entering a condemnation order that would minimize the burden to be placed on the condemnee’s property. The court of appeals ruled that the condemnation could proceed based only on the zoning of the condemnor’s property.

The Supreme Court disagreed with the court of appeals and reinstated the district court’s judgment. The Court held that, when a petitioner seeks to condemn a private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and the need for the proposed condemnation, so that the burden to be imposed on the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order. The record in this case supported the trial court’s dismissal of the condemnation petition.

No. 10SC446. People v. Pickering.
Criminal Law—Jury Instructions—Self-Defense.

The Supreme Court held that the trial court did not commit constitutional error by instructing the jury, pursuant to CRS § 18-1-704(4), that the People did not bear the burden of disproving that Pickering acted in self-defense when the court properly instructed the jury on the elements of reckless manslaughter. The court of appeals’ judgment was reversed.

Colorado Supreme Court Opinions