Category Archives: Colorado Appeals

Appeals, Colorado Appeals, Criminal Appeals, Insufficient Evidence

What is an insufficient evidence argument in a criminal appeal?

Posted on by Alderman Law Firm

One option that is always available in criminal appeals arising after trials is to argue that there was insufficient evidence to support the conviction. Through a sufficiency of the evidence argument, an appeals attorney will assert that the evidence at trial was insufficient to convict the defendant because the prosecution did not prove, beyond a reasonable doubt, every elements of the charges.

Standard of Review

Americans have a constitutional right to be free from conviction except on proof of guilt beyond a reasonable doubt on EVERY essential element of the charged crime. People v. Noland, 739 P.2d 906, 907 (Colo. App. 1987). This constitutional right is expressed in both state constitutions and the US federal constitution. In considering the sufficiency of the evidence against a defendant, the appellate court will ask this question. Is the evidence, both direct and circumstantial, when viewed as a whole and in a light most favorable to the People both substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt? Id.

Preserving an Sufficiency of the Evidence Argument at Trial

An insufficient evidence argument must be preserved at the trial court level in order to be argued on appeal. This is most often accomplished by the trial lawyer moving for a judgment of acquittal following the close of the prosecution’s evidence. See, for example, People v. Miranda, 410 P.3d 520, 534 (Colo. App. 2014).

Remedy for a Successful Insufficient Evidence Claim

Where the court of appeals finds there was insufficient evidence to support a conviction, the court will vacate the conviction and remand the case to the trial court for a judgment of acquittal. People v. Heywood, 2014 COA 99, ¶¶ 39-40, 357 P.3d 201 (Colo. App. 2014). An acquittal after a successful insufficient evidence argument prevents the defendant for being retried in the same court for the same crimes.

For More Information and Help With Your Insufficient Evidence Claim

Please feel free to contact the Alderman Law Firm if you have a Colorado, Wisconsin, or Federal (4th, 6th, 7th, or 10th Circuits) criminal appeal that you’d like to discuss further.

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Reply Briefs in Colorado Appeals

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Receiving an IRS notice of claim disallowance can leave you feeling overwhelmed, but having a [...]

What is an insufficient evidence argument in a criminal appeal?
February 1, 2024

An insufficient evidence argument asserts that the evidence at trial was insufficient to convict the [...]

What is the criteria for a cert petition in Colorado?
January 24, 2024

A cert petition (petition for writ of certiorari) asks the Colorado Supreme Court, which is [...]

How do you preserve an issue for appeal in Colorado?
July 24, 2023

In order to make a legal argument on appeal, the issue must be preserved. The [...]

The Cumulative Error Doctrine in Colorado Appeals
May 21, 2020

The first step in a direct appeal is to ask the court of appeals to [...]

Am I Entitled to a Hearing on My Colorado 35(c)?
March 17, 2020

After a Colorado criminal defendant has exhausted the direct appeal process, he may turn to [...]

Issue Preservation in Colorado Appeals: Was my issue preserved for appeal?
March 3, 2020

With few exceptions, a legal issue must be preserved in the trial court in order [...]

Cert Petitions, Colorado Appeals, Colorado Supreme Court

What is the criteria for a cert petition in Colorado?

Posted on by Alderman Law Firm

A cert petition (petition for writ of certiorari) asks the Colorado Supreme Court, which is the highest court in the state, to review the decision of the Colorado Court of Appeals.

The criteria for filing a cert petition in Colorado may depend on the type of case and the court involved. In general, however, the following general criteria may apply:

  1. Final Judgment or Decision: Generally, a cert petition is filed after a final judgment or decision has been issued by a lower court. The petitioner must have exhausted all available remedies in lower courts.

  2. Constitutional or Significant Legal Issue: The petitioner must present a constitutional or significant legal issue that is of statewide importance. The issue should be one that the Colorado Supreme Court needs to address to provide clarity and guidance on the law.

  3. Conflict of Law or Precedent: A cert petition may be granted if there is a conflict between decisions in different divisions of the Colorado Court of Appeals or if there is a conflict with existing precedent.

  4. Important Public Policy Issue: The case must involve an important public policy issue that warrants the attention of the Colorado Supreme Court.

  5. Certification from Court of Appeals: In certain cases, the Colorado Supreme Court may grant a cert petition if the Court of Appeals certifies the case as presenting an issue of statewide importance.

It’s important to note that a cert petition which asks the Colorado Supreme Court to review erroneous factual findings or the misapplication of a properly stated rule of law are highly unlikely to be successful. Instead, a petitioner needs to show the Court why it should step in and help shape the dynamic of Colorado state law.

It’s advisable to consult the Colorado Rules of Civil Procedure and the Colorado Appellate Rules or seek legal advice for the most accurate and up-to-date information. To speak with a knowledgeable Colorado appeals attorney about your cert petition, contact the Alderman Law Firm today for a free consultation.

Appeals, Colorado Appeals, Issue Preservation

How do you preserve an issue for appeal in Colorado?

Posted on by Alderman Law Firm

In order to make a legal argument on appeal, the issue must be preserved. The principal behind issue preservation is that the trial court should have an opportunity to correct its own errors before the appeals court steps in. Therefore, where an issue has not been preserved – i.e. not first brought to the attention of the trial court – it cannot be raised on appeal.

In order to determine whether a legal issue has been preserved for the purposes of appeal, consider the following four questions:

  1. Was the issue raised at the trial level and addressed by the trial court?
  2. Was the issue raised by the appellant?
  3. Was the issue timely raised?
  4. Was the issue specifically raised?

In order to preserve error for appellate review, a party must make the proper objection or motion – on the record – at the trial court level. Objections must be timely made to alert the trial court of the alleged error, as well as the grounds for the objection. An objection that does not include a legal basis may be ignored on appeal for failing to sufficiently describe the alleged error. Where an issue is important enough that it calls the fairness of the trial into question, it must be preserved through a motion for mistrial. Counsel at the trial level should move for a mistrial as soon as possible after the alleged error.

To speak with a knowledgeable Colorado appeals attorney about your cert petition, contact the Alderman Law Firm today for a free consultation.

Appeals, Civil Appeals, Colorado Appeals, Constitutional Issues, Criminal Appeals, Practice

The Cumulative Error Doctrine in Colorado Appeals

Posted on by Alderman Law Firm

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.

35(c), Appeals, Colorado Appeals, Criminal Appeals, Ineffective Assistance

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

Posted on by Alderman Law Firm

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.

Civil Appeals, Colorado Appeals, Criminal Appeals, Issue Preservation

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

Posted on by Alderman Law Firm

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.

Appeals, Colorado Appeals, Constitutional Issues, Criminal Appeals, Speedy Trial

Speedy Trial Rights in Colorado Criminal Appeals

Posted on by Alderman Law Firm

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.

Appeals, Civil Appeals, Colorado Appeals, Criminal Appeals, Uncategorized

What is a Colorado Direct Appeal?

Posted on by Alderman Law Firm

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.

Appeals, Civil Appeals, Colorado Appeals, Criminal Appeals, Uncategorized

Should My Trial Attorney Write My Appeal?

Posted on by Alderman Law Firm

After going through the lengthy trial process, most litigants presume that their trial level attorney will handle the appeal. After all, who knows the case better than he or she does? In reality, however, most trial level attorneys will not handle appeals as a rule. Think of it this way: you wouldn’t seek out an appellate specialist to handle your case at the trial level, so why would you pursue an appeal with a trial specialist?

Your trial level attorney will still be an important part of your appeal. It is common practice for an appellate attorney to discuss a case with the trial level attorney in order to determine what he or she believes to be important issues for appeal. Moreover, the trial level attorney will be responsible for forwarding the case file to the appellate attorney.

Your appellate attorney will look at the case with an objective, fresh eye, and a working knowledge of effective appellate arguments. In some cases, the best post-conviction argument will be that the trial attorney made an error, rendering his or her assistance as ineffective. Although attorney errors are common, it would be difficult for an attorney to argue that his or her own performance was deficient.

Moreover, appellate practice requires careful attention to appellate rules and procedures. Appellate specialists have a solid working knowledge of these rules and procedures because they work with them daily. Therefore, it takes them less time to draft compliant appellate documents. While a trial attorney can certainly look up and follow appropriate rules and procedures, there is no substitute for experience.

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

Appeals, Civil Appeals, Colorado Appeals, Criminal Appeals

Will the Colorado Court of Appeals Reconsider my Case?

Posted on by Alderman Law Firm

If you lose your case in the court of appeals, there is a mechanism through which you can ask the court of appeals to reconsider its order, prior to requesting review from the state supreme court. This is a called a motion for reconsideration.

In most cases, a motion for reconsideration is not appropriate. A motion for reconsideration is not an opportunity for a litigant to re argue his case because he is dissatisfied with the ruling from the court of appeals, or feels that the court failed to focus on what he believed to be a critical fact or argument.

Rather, a motion for reconsideration is only appropriate where the Court of Appeals misstated the material facts or applicable law. If this is the case, a motion for reconsideration is a better option than a petition for review with the state supreme court, because the state supreme court typically takes cases alleging an issue of statewide impact, rather than those that allege a factual error in the court of appeals.

If you think a petition for rehearing is appropriate in your case, it is important to act quickly. In Colorado, the deadline to file a petition for rehearing in the Colorado Court of Appeals is 14 days after the date of the appellate decision under Colorado Appellate Rule 40. While the court has limited authority to extend certain deadlines, parties should not rely on obtaining an extension, and late filings are routinely denied.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529.