colorado supreme court

Colorado Supreme Court justices, back row from left: Carlos A. Samour Jr., Richard L. Gabriel, Melissa Hart and Maria E. Berkenkotter. Front row from left: Monica M. Marquez, Chief Justice Brian D. Boatright, and William W. Hood III.

Colorado's Supreme Court justices have announced they will review four decisions of the state's Court of Appeals, ranging from a criminal conviction under the "revenge-porn" law to a man's struggles accessing the virtual hearing where a judge terminated his parental rights.

Two members of the court indicated they would have granted an additional appeal clarifying adoption procedures. However, hearing a case from the Court of Appeals requires the agreement of three justices.

Although some of the issues the Supreme Court will address involve interpretations of criminal procedure or state law, the court also will answer constitutional questions about the amount of evidence required for a certain category of guilty pleas, and whether juries — not judges — must determine whether crimes qualify as domestic violence.

'Revenge porn' conviction

Trevor A. Pellegrin took intimate photos of his partner with her consent during their 2016-2017 relationship. After their breakup, and upon learning the victim was seeing another man, Pellegrin repeatedly called and texted her and threatened to post her nude pictures online. The victim went to police, but they declined to intervene.

In July 2017, the victim's family members alerted her to changes on her Facebook page, including newly posted naked pictures of her. The victim's biography section also now labeled her as a "cheater" and a "slut." She further learned someone posted racy pictures of her on the "casual encounters" section of Craigslist.

Police arrested Pellegrin and prosecutors in El Paso County charged him with stalking and multiple harassment-related offenses. At trial, Pellegrin argued the victim had posted the photos herself, but a jury convicted him of all but one of the harassment charges. As part of his sentence, the trial judge ordered Pellegrin into a domestic-violence evaluation.

Pellegrin made several claims on appeal, including that the trial judge responded coercively when one juror revealed she did not agree with the jury's verdict, and that there was insufficient evidence to convict him under the "revenge porn" harassment law because only part of the victim's breast was visible in the posted pictures.

A three-judge panel of the Court of Appeals rejected all of his arguments in September 2021, and the state Supreme Court indicated it would review only two of Pellegrin's five claims about the appellate panel's decision.

First, the Court of Appeals decided it was not necessary for a jury to determine whether Pellegrin's offenses involved an act of domestic violence. Under state law, a judge alone can decide whether the domestic-violence label applies, with the accompanying mandatory treatment for the defendant.

In Pellegrin's case, "the domestic violence finding here did not increase the maximum or minimum punishment," wrote Judge Rebecca R. Freyre. "Instead, the finding added a condition to Pellegrin's sentence."

The appellate panel also rejected the argument that harassment is a lesser offense of stalking, and his convictions should have merged together. The Supreme Court will review both of those conclusions.

The case is Pellegrin v. People.

Alford plea

In 1970, the U.S. Supreme Court recognized defendants may enter a valid plea of guilty, even if they maintain their innocence. At the time, Henry C. Alford pleaded guilty to second-degree murder while insisting he did not commit the crime. He faced the possibility of the death penalty, however, if he pleaded not guilty and a jury were to convict him at trial.

A majority of the Supreme Court concluded a defendant who, when "faced with grim alternatives, is willing to waive his trial and accept the sentence," has entered a valid guilty plea, provided there is also strong evidence of guilt.

In August 2013, prosecutors in Lake County charged Delano Marco Medina with felony menacing after his wife alleged Medina held a knife to her throat and threatened her. At the time, Medina had five other pending cases for lesser charges, but with bond set at over $1 million.

A deal with the prosecution allowed Medina to plead guilty to the menacing charge, receive a one-year prison sentence, and the district attorney's office would dismiss the remaining cases.

Medina's attorney conveyed his client's view that Medina did not believe "in his heart of hearts" he committed menacing and "steadfastly maintains that the menacing would not be a provable case," but Medina nonetheless wanted to take advantage of the plea bargain.

The district court judge recognized Medina was entering an Alford plea, and reminded him he was "giving up some serious rights here." After hearing from the judge about his constitutional rights, Medina confirmed he would plead guilty while waiving the requirement for strong evidence of guilt.

Afterward, Medina sought to withdraw his plea, claiming new evidence of his innocence emerged and asserting it was not possible to waive the requirement that there be strong evidence of guilt for an Alford plea.

Last year, the Court of Appeals acknowledged federal and state courts across the country have reached different conclusions about the requirement. For example, a Pennsylvania appellate court in 1975 ruled judges cannot accept guilty pleas if the defendant also asserts facts that would establish innocence.

The appellate panel in Colorado determined Medina could waive the requirement for strong evidence of his guilt, and that his plea was made intelligently and voluntarily in exchange for a "generous" resolution to his other cases.

The key to determining the validity of an Alford plea, wrote Judge Sueanna P. Johnson, is if the defendant "understood the implications of his or her guilty plea even if she waives a judicial basis to the charged offense while simultaneously protesting one's innocence."

The state Supreme Court has agreed to decide whether the Court of Appeals' holding violates defendants' due process rights under the U.S. Constitution.

The case is Medina v. People.

'I thought you said I could do anything to you'

A Boulder County jury in 2017 convicted Jacob Vanderpauye of sexual assault on a physically helpless victim. Vanderpauye, a music instructor at the University of Colorado, went home with a college student who had been drinking heavily. She woke up to Vanderpauye having sex with her and yelled, "What are you doing? You're raping me."

There was agreement about Vanderpauye's reply: "I thought you said I could do anything to you."

The trial judge refused to allow Vanderpuaye's jury to hear the statement, deeming it "self-serving" hearsay that did not speak to Vanderpauye's state of mind at the time he began having sex with the woman.

Last year, the Court of Appeals overturned the conviction and Vanderpauye's sentence of 20 years to life on probation. The appellate panel determined the trial judge had relied on a "nonexistent evidentiary rule" to exclude Vanderpauye's statement. Instead, he had made an "excited utterance" — an exception to hearsay evidence — that could have affected the jury's conclusion on a key element of the crime: that Vanderpauye did not have the victim's consent.

Judge Michael H. Berger also observed the omitted statement distorted the actual version of events for the jury.

"The trial court permitted the victim to testify that she accused Vanderpauye of raping her but prohibited the jury from hearing that Vanderpauye immediately denied the accusation," Berger wrote. "This omission created the misleading impression that Vanderpauye was silent in the face of an accusation of criminal conduct and was therefore guilty."

The Supreme Court will decide whether, or when, a defendant's self-serving statements cannot be used as evidence. Justice Maria E. Berkenkotter, who handled the early stages of Vanderpauye's criminal case before her retirement from the Boulder County District Court, did not participate in the decision to hear the appeal.

The case is People v. Vanderpauye.

Connection problems

A man identified as R.B. was not present for the beginning of a hearing in Jefferson County in which the government sought to terminate the legal relationship between him and his child. Midway through, District Court Judge Ann Gail Meinster called a recess after realizing R.B. had been trying to log in to Webex, the virtual platform where the hearing was occurring.

R.B.'s lawyer asked to postpone, or continue, the hearing, explaining that R.B. could only use his phone while connected to Wi-Fi, and R.B. had been asked to leave the gas station where he was trying to use the internet.

Meinster denied the motion, saying R.B. "had ample opportunity to prepare to join today. I’m sorry he wasn’t able to." She then terminated his parental rights.

In January, the Court of Appeals overturned the termination order on the grounds that Meinster should have granted the continuance. This was not a case, wrote Judge Craig R. Welling, of R.B. failing to prepare.

"To the contrary, the record reveals that he was making efforts to secure Wi-Fi access so that he could participate in the hearing," Welling wrote. "Yet, other than briefly pausing the hearing, the court didn’t facilitate father’s efforts to personally participate in this hearing. This is significant."

The Supreme Court has agreed to consider whether due process requires juvenile court judges to allow for continuances in such circumstances, even without proof that it is in the child's best interest to do so.

The case is People in the Interest of E.B.

Adoption

Finally, the Supreme Court narrowly turned down review of an adoption appeal out of Morgan County. The case involved a child's biological mother and father, the mother's husband, and the mother's new partner in 2020 at the time of the proceedings. The husband was referred to as the "psychological father" of the child, meaning a parent who has a day-to-day relationship but is not the biological father.

In the mother's divorce from the psychological father, she and the biological father consented to her new partner's adoption of the child. The result was an adoption proceeding in Morgan County in addition to a divorce proceeding with the psychological father in El Paso County. The psychological father did not receive notice of the adoption case.

The judge in the adoption case ultimately decided the psychological father could not have contact or parenting time with the child, an order that conflicted with the El Paso County judge's allowance of parenting time. The psychological father contended the Morgan County judge had terminated his "parental rights" over the child without notice, violating due process.

The Morgan County judge eventually vacated the order prohibiting contact between the child and the psychological father.

On appeal, the Court of Appeals agreed the original Morgan County order improperly infringed on the parenting time the psychological father had received from the El Paso County judge, and overturning it was "not only proper, but necessary."

But the appellate panel rejected the psychological father's claim that he had a right to intervene in the adoption case. Colorado law provides for no such obligation.

"That being said," cautioned Judge Ted C. Tow III, "the General Assembly may wish to consider requiring notice of an adoption to a person to whom parental responsibilities have been allocated."

Chief Justice Brian D. Boatright and Justice Monica M. Márquez indicated they would have heard the case to determine whether the adoption actually voided the El Paso County court's provision of parenting time to the psychological father, and whether the adoptive father is bound by that order.

The case is In re R.M.C., III.

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