Alderman Law Firm Wins Appeal to Save Historic Monument

Last week, the Wisconsin Court of Appeals overturned a circuit court order that would have allowed demolition of the historic Sisters of Holy Nativity Convent.

On appeal, Attorney K.L. Penix argued the circuit court’s decision allowing for the demolition was erroneous because, in relevant part, the owner of the Convent attempted to comply with a raze or repair order issued by the City of Fond du Lac. If the City still intended to seek demolition of the building following the repairs, it should have sought a new raze or repair order.

This matter will resume in the circuit court, where the fate of the historic monument will be decided.

For the rest of the story, please see the FLD reporter at Fond du Lac Holy Nativity Convent: Appeals court upholds challenge (fdlreporter.com)

Alderman Law Firm Wins Federal Appeal on Sentence Revocation

When a felon is released from federal prison, it is often for supervised release. This means that he lives at home, but there is a probation officer who monitors him and makes sure he complies with the terms of his release. If he was convicted of robbing a jewelry store, perhaps a term is that he not frequent jewelry stores, for instance. If he’s found hanging out at a jewelry store anyway, then he is subject to sentence revocation. This means that his release is revoked and the court can put him back in prison.

In sentencing a defendant whose sentence has been revoked, federal district courts must consider relevant factors under 18 U.S.C. § 3553(a) prior to sentencing. Such factors include the particular circumstances involved, the need for the sentence imposed in consideration of the purposes of punishment, and the options available. Moreover, sentences must be substantively and procedurally reasonable. Pertinent here, procedural reasonableness requires the court to “properly calculate the guidelines range, treat that range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).

In a recent case, Attorney Penix argued in the Sixth Circuit Court of Appeals that because a sentencing court failed to expressly articulate how it considered those factors, that its sentence on revocation was procedurally unreasonable. Applying a plain error standard of review, the Sixth Circuit found there was error. It explained, “A district court may explain its [sentencing] rationale in any number of ways, but what the district court may not do is say nothing at all.”

The Court of Appeals found that the defendant’s substantial rights were affected by this error and, as requested by Attorney Penix, vacated the district court’s judgment and remanded the case for resentencing.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Alderman Law Firm Fights City on Demolition of Historic Monument

“Fate of Sisters of the Holy Nativity Convent in hands of appeals court

A brief filed Friday with Wisconsin Court of Appeals by legal counsel for the owner of Sisters of the Holy Nativity Convent [Alderman Law Firm] asks that the property be saved from the city of Fond du Lac’s demolition order. . .

“Our national historic monuments should be preserved, not destroyed and, especially given the current pandemic, there is no better use for the property than to allow time for repair,” [Attorney] Penix said. “Panoussis hopes that the city will not be able to scrape away history and replace the nativity with a Kentucky Fried Chicken, and turns to the Court of Appeals in hopes of support for his efforts and our collective past.””

For the rest of the story, please see the FDL Reporter at https://www.fdlreporter.com/story/news/2020/08/26/fond-du-lac-holy-nativity-convent-fate-hands-wiscons-court-of-appeals/5626383002/

Attorney Penix Wins Sixth Circuit Appeal on Abduction Enhancement

The United States Sentencing Guidelines use a point system to determine the sentencing range for federal convictions. These points can aggravate (increase) a sentence or mitigate (decrease) a sentence. Acceptance of responsibility, for instance, results in a several point reduction of the offense level, which means a lower sentencing range for the judge to consider. But compare how U.S.S.G. §2B3.1(b)(4)(A) provides a multi-level enhancement if “any person was abducted to facilitate commission of the offense,” and substantially increases a defendant’s exposure at sentencing.

An abduction under §2B3.1(b)(4)(A) doesn’t necessarily mean there was a kidnapping crime charged or involved. Depending on the court and facts, “abducted” might mean the defendant or his co-defendant moved a bystander across a parking lot, or put a clerk in a locked room at the rear of a store.

In a recent Sixth Circuit case, Attorney K.L. Penix successfully argued that an abduction enhancement under U.S.S.G. §2B3.1(b)(4)(A) had been improperly applied during sentencing proceedings, resulting in a four-level enhancement and a 27-month increase in sentence. The Sixth Circuit Court of Appeals agreed with Attorney Penix that the district court erred in applying the enhancement under the facts of the case. As Attorney Penix had requested for the defendant, the Sixth Circuit vacated the judgment and remanded the case for resentencing.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

The Cumulative Error Doctrine in Colorado Appeals

The first step in a direct appeal is to ask the court of appeals to provide relief for specific legal errors made at the trial level. But sometimes, the trial court made only a series of smaller errors, rather than a severe error that would alone warrant reversal. In these cases, the cumulative error doctrine may be of help in finding relief.

The court of appeals considers de novo whether the cumulative effect of multiple errors at trial requires reversal, even if any one of those errors individually may not warrant relief. Kogan v. People, 756 P.2d 945, 961 (Colo. 1988), abrogated on other grounds by Erickson v. People, 951 P.2d 919 (Colo. 1998). Under a cumulative error analysis, “regardless of whether any error was preserved or unpreserved . . . reversal is warranted when numerous errors in the aggregate show the absence of a fair trial, even if individually the errors were harmless or did not affect the defendant’s substantial rights.” Howard-Walker v. People, 443 P.3d 1007, 1011-1012 (Colo. 2019).

In Colorado, the cumulative error doctrine has only been applied in criminal appeals. The court of appeals has thus far declined to extend the doctrine to civil cases. Neher v. Neher, 402 P.3d 1030 (Colo. App. 2015) (holding the court “decline[s] to extend [the cumulative error doctrine] to civil cases.”)

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Am I Entitled to a Hearing on My Colorado 35(c)?

After a Colorado criminal defendant has exhausted the direct appeal process, he may turn to filing a pro se motion for relief pursuant to Colo. Crim. P. 35(c). Often, this is where he alleges that his trial counsel was ineffective.

Upon receipt of a 35(c) motion, the reviewing court must consider whether “the motion and the files and record of the case show to the satisfaction of the court that the defendant is not entitled to relief.” Colo. Crim. P. 35(c)(3)(IV). If not, the court must appoint counsel to represent the defendant and order briefing from both parties. Colo. Crim. P. 35(c)(3)(V). After briefing, the district court “shall grant a prompt [evidentiary] hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law.” Colo. Crim. P. 35(c)(3)(V).

To obtain the hearing contemplated in Colo. Crim. P. 35(c)(3)(V), a “defendant need only assert facts that if true would provide a basis for relief under Crim. P. 35.” White v. Denver Dist. Court, Div. 12, 766 P.2d 632, 635 (Colo. 1988). The reviewing court must accept as true the factual allegations contained in the 35(c) motion, and a defendant need not set forth evidentiary support for his allegations or show how he intends to prove them. White, 766 P.2d at 635. If there is any doubt about whether “the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief,” an evidentiary hearing must be held. See People v. Wiedemer, 852 P.2d 424, 440 n.15 (Colo. 1993); see also People v. Germany, 674 P.2d 345, 350 (Colo. 1983) (explaining that constitutional due process requires a meaningful opportunity to challenge an allegedly unconstitutional conviction).

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Issue Preservation in Colorado Appeals: Was my issue preserved for appeal?

With few exceptions, a legal issue must be preserved in the trial court in order to raise it on appeal. This means that the issue must have been brought to the attention of the trial court and the court must’ve been given the chance to make the correct decision.

The most common means of preservation is through objection, either written or oral. Objections should state the basis for the objection – alerting the trial court to what law it should consider in deciding whether to correct the problem. Vague or nonspecific objections are often insufficient to preserve an issue – the basis for the objection must be clear. Regardless of the means of alerting the court, the issue must have been raised in a timely, specific way, and the raising of and ruling on the issue must be on the record. People v. Salazar, 964 P.2d 502, 507 (Colo. 1998)

But there are exceptions that cut both ways. If the party raising the argument invited the error or later waived the issue, that issue will be deemed not properly preserved. On the other hand, subject matter jurisdiction and standing may be raised for the first time on appeal. Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986) (subject matter jurisdiction); Tising v. State Personnel Bd., 825 P.2d 1011, 1012 (Colo. App. 1991) (standing) And, in criminal cases, even unpreserved issues may be reviewed for plain error. Crim. P. 52(b); Hagos v. People, 2012 CO 63.

The timeliness and sufficiency of preserving issues at the trial level can be a bit tricky, particularly in Colorado civil cases. For instance, affirmative defenses need to be raised in the complaint, and responsive arguments need to be raised in the responsive pleadings. For summary judgment motions, denials are generally not reviewable once the final judgment has been issued. So the party must-reraise the issue later in the proceedings via a timely directed verdict motion or motion for judgment notwithstanding the verdict. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1251 (Colo. 1996). Even in criminal cases, an argument that two cases were improperly joined must be renewed at the close of evidence in order to preserve the issue for apepal. Bondsteel v. People, 2019 CO 26.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Speedy Trial Rights in Colorado Criminal Appeals

C.R.S. § 18-1-405(1) requires that, if a defendant is not brought to trial within six months of the entry of his not guilty plea, the charges must be dismissed. The statutory language is “mandatory and leaves no room for court discretion.” Carr v. District Court, 543 P.2d 1253, 1254, 190 Colo. 125 (Colo. 1975). This statutory protection is distinct from (albeit in addition to) the guarantee of a speedy trial under the US Constitution, which is less protective of criminal defendants than Colorado’s speedy trial. The only exceptions to the Colorado speedy trial rule are those delineated in the statute. Id., see also Harrington v. District Court, 559 P.2d 225, 228, 192 Colo. 351, 354 (Colo. 1977).

Where a delay in bringing a case to trial is “caused at the insistence of the defendant,” however, the period of this delay is excluded from the six-month period. C.R.S. § 18-1-405(6)(f). “Any express consent to the delay or other affirmative conduct by the defendant is treated as a waiver of the right to a speedy trial.” People v. Brewster, 240 P.3d 291, 298 (Colo. App. 2009); citing People ex. rel. Gallagher v. Dist. Court, 933 P.2d 583, 588 (Colo. 1997).

Examples of the kind of delays attributable to the defendant include defense counsel’s scheduling conflicts, defendant’s mental hospital confinement to determine competency, substitution of counsel due to defendant’s not cooperating with his attorney, or defendant’s request for additional time. Hills v. Westminster Mun. Court, 245 P.3d 947, 951 (Colo. 2011); People v. Jones, 677 P.2d 383, 384 (Colo. App. 1983) aff’d in part and rev’d in part on other grounds, 711 P.2d 1270 (Colo. 1986); People v. Scales, 763 P.2d 1045, 1048 (Colo. 1988); People v. Spencer, 512 P.2d 260, 262, 182 Colo. 189, 194-195 (Colo. 1973).

Meanwhile, delays deemed not attributable to defendant have included those caused by congested dockets, last minute recusal, the prosecution’s failure to secure defendant’s transfer, and the prosecution’s requests for continuance without fulfilling the conditions of the statutory exception to the 6-month limit. People v. Bell, 669 P.2d 1381, 1386-1387 (Colo. 1983); People v. Arledge, 938 P.2d 160, 166 (Colo. 1997); People v. Murphy, 515 P.2d 107, 109, 183 Colo. 106, 110 (Colo. 1973); Sweet v. Myers, 612 P.2d 75, 77-78, 200 Colo. 50, 53-54 (Colo. 1980).

Where defendant did not exhibit express consent or affirmative conduct to waive his constitutionally rooted and statutorily protected right to a speedy trial, the only remedy is dismissal of the charges. Rodman v. County Court of Adams County, 694 P.2d 871, 873 (Colo. App. 1984). If the appellate court finds the defendant’s statutory right to a speedy trial has been violated, the remedy is to reverse a defendant’s judgment of conviction and dismiss the charges.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for a free consultation.

Attorney Penix Argues Before Colorado Court of Appeals

On April 3, 2018, managing attorney K.L. Penix argued before the Colorado Court of Appeals in Denver on behalf of Defendant-Appellant Craig Edward Nelson in The People of the State of Colorado v. Craig Edward Nelson. The primary issue in the case was whether the People shifted the burden of proof to Nelson by cross-examining him on whether he could prove his factual contentions, and arguing in closing that Nelson enjoyed “no special deference” at trial. Video of Attorney Penix’s oral argument is available here:

https://cojudicial.ompnetwork.org/shows/15ca1874?iframe_mode=true

The Colorado Court of Appeals has yet to issue a decision in the matter.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation.

What is a Colorado Direct Appeal?

In Colorado, a direct appeal is an appeal from a trial court decision, filed immediately following entry of judgment within the trial court. On direct appeal, Colorado appellants may only argue alleged legal errors made by the lower court. Commonly alleged trial court errors include the improper admission of evidence, an incorrect jury instruction, or a conviction based on insufficient evidence. Importantly, a defendant cannot argue that he received ineffective assistance of counsel in a direct appeal.

Generally, an appellant filing a direct appeal argues that, due to an error committed by the trial court, a particular judgment should be reversed. Even if the reviewing court finds error, however, reversal is not guaranteed. Most errors are reviewed for harmlessness, meaning that an error will only require reversal where there is a reasonable probability that the error had an impact on the outcome of the case.

Appellants must be aware that a “win” on direct appeal – reversal of a judgment – often results in a remand of the case to the trial level court where the case may be re-tried. This is an especially important consideration for criminal defendants, who may face new charges and longer sentences should a new conviction be entered on remand.

A losing party is only afforded one direct appeal. For example, a loss in the district court may be appealed once to the court of appeals. While it is true that a loss in the court of appeals may be appealed to the Colorado Supreme Court, the supreme court has discretion to decide whether or not it will hear your case.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.