The Colorado Supreme Court announced on Monday that it will decide whether the state’s second-highest court correctly overturned a defendant’s vehicular eluding conviction due to the faulty wording of a jury instruction.

The justices also will review whether the Court of Appeals properly rejected an appeal by prosecutors that was filed beyond the procedural deadline, but only because the district attorney’s office was waiting for the trial judge to reconsider a decision.

At least three of the Supreme Court’s seven members must agree to hear a case on appeal.

Finally, the justices signaled they may intervene in an ongoing Larimer County prosecution involving a defendant who is seeking another competency evaluation after previously undergoing four of them.

Vehicular eluding

A Denver jury convicted Jeffery Sloan of killing Yasir Hasan and Mark Karla by running a red light and colliding with his victims on Colfax Ave. in 2019. Karla was the son-in-law of then-Colorado Springs Mayor John Suthers. Sloan received a sentence of 72 years in prison.

One of Sloan’s charges, vehicular eluding of the police, is normally a class 5 felony. It turns into a more severe class 3 felony if a jury finds the vehicular eluding results in a person’s death. Sloan’s jury convicted him of the more serious offense.

However, the instructions did not ask jurors whether “the vehicular eluding” resulted in the victims’ deaths, but whether “the accident” resulted in their deaths. Although Sloan’s lawyers did not object at the time, he argued on appeal that the police officers who were initially pursuing him had disengaged by the time he crashed into his victims’ vehicle. 

A three-judge Court of Appeals panel agreed with Sloan, noting the instruction focused on the “ramifications of the accident” rather than the alleged eluding. Judge Lino S. Lipinsky de Orlov acknowledged Sloan only contested at trial whether he was the driver, and not whether vehicular eluding occurred.

But the instruction “erroneously permitted the jurors to convict and the court to sentence Sloan for vehicular eluding resulting in death based on the accident, rather than vehicular eluding,” he wrote. “For these reasons, regardless of whether defense counsel contested whether the victims died as a result of vehicular eluding, the evidence that Sloan committed class 3 felony vehicular eluding resulting in death was by no means overwhelming.”

The panel reversed the eluding conviction, prompting the prosecution to appeal. The Colorado Attorney General’s Office argued the Court of Appeals effectively allowed defendants to avoid disputing certain issues at trial, raise no objection to a jury instruction about the issue, yet win on appeal by claiming an error occurred.

The decision “amounts to an unjustified windfall in defendant’s favor,” wrote Senior Assistant Attorney General William G. Kozeliski.

The Supreme Court agreed to review the Court of Appeals’ decision. Sloan also appealed the panel’s conclusion that the numerous livestreaming problems during his August 2020, mid-pandemic jury trial did not violate his constitutional right to a public trial. Justice Brian D. Boatright indicated he would have addressed the livestreaming issue.

The case is People v. Sloan.

Timing of appeal

Denver prosecutors charged Quinn M. Jebe with offenses relating to drug distribution and sexual assault of a child. In July 2023, shortly before trial, the district attorney’s office announced the alleged victim was unable to testify. It asked for the case to be dismissed without prejudice, meaning prosecutors could later refile the charges.

Instead, a judge dismissed the case with prejudice, precluding the refiling of charges. The prosecution immediately asked for reconsideration and, 39 days later, the judge denied the motion. Twenty-three days after that, the prosecution moved to appeal the dismissal.

The question for the Court of Appeals panel was whether it could even hear the district attorney’s appeal. Specifically, did the prosecution have to abide by the 49-day appeal deadline starting from the date of the original dismissal order? Or did the motion for reconsideration push back the deadline?

“We first conclude that a prosecutorial motion for reconsideration of a final judgment does not extend the time for filing an appeal,” wrote Judge Neeti V. Pawar.

She elaborated that exceptions to the 49-day deadline exist for defendants, but the same caveats are not laid out when the prosecution is the one appealing. Finally, the panel believed the prosecution’s “misinterpretation of the law” was not grounds to waive the deadline.

The district attorney’s office turned to the Supreme Court. It argued precedent from both the U.S. and Colorado supreme courts contradicted the panel’s view, and that it was to everyone’s benefit to encourage motions for reconsideration to proceed without penalty.

Moreover, the appellate panel had not designated its interpretation as precedent-setting.

“Even if the court of appeals got it right, this Court should announce the rule” in a precedential opinion, wrote Chief Deputy District Attorney Robert M. Russel.

The Supreme Court will address the issue.

The case is People v. Jebe.

Competency evaluation

Larimer County prosecutors charged Austin McGee with multiple child sex offenses in 2021. The following year, his defense lawyer suggested McGee may not be competent to proceed. McGee received an evaluation and he was deemed competent. His lawyer requested a second evaluation and a different doctor agreed McGee remained competent.

In 2023, a different defense lawyer questioned McGee’s competency again. A third doctor found him competent.

Finally, in May, McGee’s lawyer once more suggested he was not competent, citing different grounds than before about McGee’s ability to participate in his trial. McGee received a fourth evaluation, with a doctor again rendering her opinion that McGee remained competent.

The defense requested a second opinion, but this time, Chief Judge Susan Blanco declined to grant one. In a June 30 order, she wrote that the motion for an evaluation did not raise any new indicators of McGee’s incompetency.

“This defendant has been found competent four times in the span of three years. This Court has been presented no evidence to support the necessity of a fifth competency evaluation in this matter,” Blanco concluded.

McGee’s attorney disputed her analysis, arguing to the Supreme Court that Colorado law entitled McGee to a re-evaluation.

The justices ordered a response to the defense’s petition.

The case is People v. McGee.