author: Opinion by JUDGE RICHMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tanya Marie GARCIA, Defendant-Appellant.
    Court of Appeals No. 16CA1134
    Colorado Court of Appeals, Division V.
    Announced December 27, 2018
    Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE RICHMAN

¶ 1 Defendant, Tanya Marie Garcia, appeals the judgment of conviction entered on a jury verdict finding her guilty of one count of felony menacing, seven counts of reckless endangerment, and one count of reckless driving. We affirm.

I. Background

¶ 2 On January 24, 2014, Garcia became convinced that one of her children's friends, a twelve-year-old boy named T.H., had stolen a bottle of nail polish from her home. Garcia drove to a local park and confronted T.H., who claimed that Garcia's daughter had given him the nail polish. A heated argument ensued in which Garcia threatened to assault T.H., causing T.H. to retreat. Garcia then returned to her SUV, started the car, accelerated over the curb in the direction of T.H., and drove across the park. T.H. testified that he had to hide behind a fence to avoid being hit by Garcia's car. At the time of the incident, many children were in the park. Some of those children testified at trial and were named victims in this case.

¶ 3 During voir dire, Garcia's counsel informed prospective jurors that they would be hearing testimony from alleged victims who were children. Counsel then made various inquiries as to whether each prospective juror could fairly judge the credibility of children and whether a juror's sympathy for children would trigger bias against Garcia.

¶ 4 Along with several other prospective jurors who expressed concerns, prospective juror J.P. indicated that while he had had a "soft spot" for his young children, he felt he could "comply with what [the judge was] asking," although it might be difficult. He also noted, "I feel like children are so innocent. I don't know when they don't become innocent but my two little - two girls are - are so innocent and that does weigh on me." Garcia's counsel later challenged J.P. for cause, arguing that he could not fairly evaluate a child witness's credibility. The trial court denied Garcia's challenge. Garcia exhausted her peremptory challenges but did not use a peremptory challenge to remove J.P. He then served as a juror in Garcia's trial.

¶ 5 On appeal, Garcia contends that the trial court erred in denying her challenge for cause as to J.P. because his position on the credibility of children prevented him from being fair and impartial. In response, the People first argue that Garcia invited the error of which she complains by failing to use a peremptory challenge to excuse J.P. and that any potential error is not reviewable on appeal. In the alternative, the People argue that the trial court properly denied Garcia's challenge for cause.

II. Invited Error

¶ 6 We first address the contention that Garcia invited error by failing to use a peremptory challenge to excuse J.P. If we perceive that Garcia's claimed error resulted from the affirmative injection of error into the case, then the claim of error is unreviewable. People v. Rediger , 2018 CO 32, ¶ 37, 416 P.3d 893 ; see also Horton v. Suthers , 43 P.3d 611, 619 (Colo. 2002) (declining to review the merits of appellant's argument because appellant's position at trial was plainly inconsistent with his position on appeal).

¶ 7 The doctrine of invited error is based on the principle that a party must abide by the consequences of her actions at trial. Horton , 43 P.3d at 618. She "may not complain on appeal of an error that [s]he has invited or injected into the case ...." People v. Zapata , 779 P.2d 1307, 1309 (Colo. 1989). The invited error doctrine, therefore, prevents a party from taking a position on appeal that is inconsistent with the position she initially took. Horton , 43 P.3d at 618. However, its application is limited to situations where an error was caused by a party's affirmative, strategic conduct and not by a party's inaction or inadvertence. People v. Becker , 2014 COA 36, ¶ 20, 347 P.3d 1168 ; see also People v. Gross , 2012 CO 60M, ¶¶ 11-12, 287 P.3d 105 (holding that the court would not consider whether the trial court erred in giving a jury instruction where the defendant's counsel argued in its favor at trial in a deliberate and strategic manner); People v. Stewart , 55 P.3d 107, 119-20 (Colo. 2002) (holding that where an instruction was not given due to counsel's apparent inadvertence, the court would review the claim of error on appeal).

¶ 8 In this case, we do not perceive that Garcia's position on appeal is inconsistent with the position that she took at trial. In addition, due to the uncertain nature of counsel's motivations with respect to peremptory strikes, the record does not allow us to discern why J.P. remained on the jury. Accordingly, we decline to apply the doctrine of invited error to prohibit review of Garcia's arguments.

A. Inconsistency

¶ 9 Relying on the partial dissent in People v. Novotny , the People argue that a party who unsuccessfully challenges a juror for cause must use one of her peremptory challenges to excuse that juror if she wishes to preserve her right to have the challenge reviewed on appeal. 2014 CO 18, ¶ 31, 320 P.3d 1194 ("[I]f the defendant chooses not to use a peremptory, any error is arguably invited and not reviewable on appeal.") (Hood, J., concurring in part and dissenting in part). This approach is apparently premised on the notion that once a defendant has alleged juror bias, her subsequent failure to use a peremptory challenge to strike that juror is inconsistent with her initial claim.

¶ 10 However, in Morrison v. People , long before Novotny was decided, the supreme court held, in part, that its "prior decisions do not require a defendant to cure a trial judge's error on a challenge for cause by using a peremptory strike against the objectionable juror in order to preserve a claim that his right to a fair trial was violated by the presence of a biased juror on his jury." 19 P.3d 668, 670 (Colo. 2000) ; see also United States v. Martinez-Salazar , 528 U.S. 304, 314-15, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (noting that the federal peremptory challenge statute does not require a party to use a peremptory challenge to cure judicial error). And although Justice Hood's partial dissent in Novotny , ¶ 47, raised the "specter of invited error" if counsel elects not to use a peremptory strike on the challenged juror, the Novotny court did not revisit its prior holding in Morrison .

¶ 11 Thus, the supreme court has expressly held that the type of actions taken by Garcia's counsel should not be construed as a bar to appellate review. This holding indicates that there is no inherent inconsistency in allowing counsel to challenge a juror for cause while also permitting her to use peremptory challenges to excuse other jurors. Counsel may consider certain jurors disadvantageous to her client for reasons that do not fall within the statutory framework and, unless there is an alleged discriminatory basis for her challenges, she does not owe the court or the opposing party an explanation of her decisions. Batson v. Kentucky , 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Moreover, when a trial court rules against a party on a particular issue, the party may choose to change her plan in response to the ruling without affirmatively embracing its rationale. See, e.g. , McGill v. DIA Airport Parking , 2016 COA 165, ¶ 11, 395 P.3d 1153 (noting that where the defendant objected to the admission of certain impeachment evidence and her objection was overruled, she did not invite error by introducing the evidence herself to gain a strategic advantage).

B. Affirmative Conduct

¶ 12 Next, we consider whether Garcia's conduct was sufficiently affirmative and strategic to adequately support an invited error claim. We look to the record for evidence that Garcia argued in favor of the trial court's ruling or, by her words or conduct, expressly and strategically acquiesced to it. Rediger , ¶ 10 (finding no strategic acquiescence, and thus no invited error, where a defendant challenged jury instructions on appeal despite stating at trial that he was "satisfied" with them); Horton , 43 P.3d at 619 ("The [invited error] doctrine applies where one party expressly acquiesces to conduct by the court or the opposing party.").

¶ 13 Garcia never argued in favor of seating the challenged juror. In fact, she specifically objected to his "inability to follow along and be a fair and impartial juror," and she never withdrew the objection.

¶ 14 In addition, the record contains no suggestion that Garcia's counsel purposely failed to use a peremptory challenge to juror J.P. in order to preserve an issue for appeal in the event of a conviction. She accepted the trial court's ruling on the challenge for cause and used her peremptory challenges as provided in the relevant statute and rule. See § 16-10-104, C.R.S. 2018; Crim. P. 24(d). She did not indicate why she declined to strike J.P. nor did she explain why she did strike other jurors through peremptory challenges. We do not view that conduct as demonstrating acquiescence to the trial court's rationale for denying the challenge for cause, nor can we declare that counsel was acting for some strategic purpose. People v. Zadra , 2013 COA 140, ¶ 49, 396 P.3d 34 (holding that where the record did not show that counsel's failure to act was strategic, invited error doctrine did not preclude appellate review), aff'd , 2017 CO 18, 389 P.3d 885 ; see also People v. Allgier , 2018 COA 122, ¶¶ 27-28, 428 P.3d 713 (deciding that where the record did not "foreclose the possibility that defense counsel overlooked" the prejudice that could result from admission of evidence, the defendant did not waive plain error review); People v. Perez-Rodriguez , 2017 COA 77, ¶ 28, 411 P.3d 259 (holding that where it was unclear whether counsel's failure to object was deliberate or inadvertent, his conduct was insufficient to support an invited error claim).

¶ 15 Because we do not perceive that Garcia's conduct at trial precludes appellate review, we will consider Garcia's contention that the trial court erred.

III. Standard of Review

¶ 16 We review a trial court's ruling on a challenge for cause for an abuse of discretion. Carrillo v. People , 974 P.2d 478, 485 (Colo. 1999). In so doing, we give great deference to the trial court's decision because its analysis necessarily turns on its perceptions regarding a juror's credibility and demeanor as well as the level of sincerity demonstrated during voir dire. Morrison , 19 P.3d at 672. A trial court "is in a superior position to evaluate these factors than a reviewing court, which has access only to a cold record for its determination." Id. Where the record as a whole supports the trial court's ruling, we will not disturb its decision on appeal. People v. Young , 16 P.3d 821, 824-25 (Colo. 2001).

IV. Analysis

¶ 17 Both the United States Constitution and the Colorado Constitution guarantee a criminal defendant the right to trial by an impartial jury. U.S. Const. amend. VI ; Colo. Const. art. II, § 16. This right is an integral part of the constitutional right to a fair trial. Carrillo , 974 P.2d at 486. To that end, the General Assembly has provided certain statutory grounds on which a trial court must grant a party's challenge for cause. § 16-10-103(1), C.R.S. 2018.

¶ 18 However, when a party challenges a potential juror on grounds of actual bias, the trial court may examine the juror regarding perceived bias or may allow the parties to do so. § 16-10-103(1)(j). The statute gives the trial court discretion to deny the challenge for cause if it is satisfied that despite any "previously formed or expressed opinion with reference to the guilt or innocence of the accused," the juror is nonetheless able to consider the evidence and render an impartial verdict. Id. ; see also Crim. P. 24(b)(1)(X).

¶ 19 In this case, Garcia's challenge for cause arose from defense counsel's questions concerning whether any potential juror had a possible bias with respect to the child victims and their testimony. In response to defense counsel's questions, J.P. noted that he had two small children of his own, ages two and four. He stated that in his experience, they "don't know how to lie yet." But he also limited this assertion by explaining, "I am sure that's coming here pretty soon." He additionally acknowledged that he had a "soft spot" for his children but wasn't sure whether that would affect his judgment because "I don't know the situation here either." He nevertheless agreed with counsel's statement that it might be difficult for him to separate his feelings for his own children from his judgments about the child witnesses. But he also stated that he could be "fair" and comply with the judge's instructions.

¶ 20 Based on this exchange, Garcia argues that J.P. did not adequately assure the trial court that he could put aside his bias and give her a fair trial because his statements were not sufficiently unequivocal. In support of this argument, Garcia also points to the fact that neither the trial court nor the People rehabilitated J.P. once defense counsel concluded her questioning.

¶ 21 If a trial court has a genuine doubt about a potential juror's impartiality, it should sustain the challenge for cause. People v. Russo , 713 P.2d 356, 362 (Colo. 1986). Here, the trial court had no such doubt and specifically found that J.P. did not make "any statement which would show a significant doubt in his ability to follow the law and be fair." The trial court was in the best position to evaluate whether J.P.'s ambivalence about his objectivity was sufficient to indicate bias. It observed his demeanor and credibility as he spoke, and we defer to its conclusions on that issue. Morrison , 19 P.3d at 672 (noting that an appellate court's deference to the trial court's ruling extends to juror statements that may appear self-contradictory).

¶ 22 In addition, the record does not demonstrate that the trial court should have pressed J.P. further about his position but failed to do so. First, J.P. stated unequivocally that if the judge were to instruct him on the law, he "could comply with what she's asking." He also stated that he thought he would "be able to hold [the child witnesses] credible ... to what they were saying through body language and things like that ...." A trial court may give substantial weight to a potential juror's assertion that he could be fair and impartial. People v. Rhodus , 870 P.2d 470, 478 (Colo. 1994). Moreover, contrary to Garcia's argument, it is not necessary that a prospective juror be absolutely unequivocal about his ability to set aside potential bias as long has he has expressed a belief that he can be fair and has made a commitment to try do so. People v. Fleischacker , 2013 COA 2, ¶ 27, 411 P.3d 20.

¶ 23 Second, J.P. repeatedly explained that many of his misgivings stemmed from the fact that he had never been on a jury before and that he realized it was difficult for human beings to be perfectly objective. He stated that "because I am human [my children] could somewhat influence what I am hearing and what I am seeing, but I feel like, for the most part, I could be fair to - to what I'm hearing." He also noted that he had "never been in this situation before [so he didn't] exactly know" how much fatherhood would influence his thinking. This type of comment reflects that J.P. took the duty to be objective quite seriously and does not necessarily indicate that he had a settled bias in favor of children. See People v. Sandoval , 733 P.2d 319, 321 (Colo. 1987) ("In some situations, the statements may simply reflect an honest effort to express feelings and convictions about matters of importance in an emotionally charged setting."); People v. Richardson , 58 P.3d 1039, 1043 (Colo. App. 2002) (finding that a juror's statement that she was "human" and "there are no guarantees" but she would "give it [her] best shot" supported the trial court's denial of a challenge for cause).

¶ 24 Third, J.P. was able to clearly distinguish between his own experience as a father of toddlers and the potential testimony of the older children whose credibility was at issue during the trial. With respect to older children, he explained, "I don't have experience. I have experience with little tiny humans that are trying to learn to walk. ... [t]hat's a whole other ball game for me." He thought that he could fairly evaluate the credibility of the witnesses because "these are strangers to me ... I don't have experience with them. ..." He also acknowledged that at a certain age, children become capable of lying. When denying the challenge for cause, the trial court specifically relied on these statements. A trial court may properly deny a challenge for cause because the facts of the case do not sufficiently intersect with a juror's potential area of bias. People v. Lucas , 232 P.3d 155, 164 (Colo. App. 2009) (affirming the denial of a challenge for cause where a juror stated that she had been in a violent marriage, but the case concerned a defendant's assault on his neighbor).

V. Conclusion

¶ 25 For these reasons, after reviewing the entire voir dire, we discern no abuse of discretion. The record supports the trial court's denial of Garcia's challenge for cause and we will not disturb its ruling on appeal. The judgment is affirmed.

JUDGE ROMÁN and JUDGE BERGER concur.

      "[A]ctual bias is a state of mind that prevents a juror from deciding the case impartially and without prejudice to a substantial right of one of the parties." Carrillo v. People , 974 P.2d 478, 486 (Colo. 1999) (quoting People v. Macrander , 828 P.2d 234, 238 (Colo. 1992) ).


source: Caselaw Access Project

author: Opinion by JUDGE DUNN

license: Public Domain

text:
    Michael Eugene TALLMAN, Plaintiff-Appellant, v. Richard AUNE, Defendant-Appellee.
    Court of Appeals No. 17CA2254
    Colorado Court of Appeals, Division VI.
    Announced January 24, 2019 Rehearing Denied February 21, 2019
    Miller Steiert, P.C., Christopher J. Forrest, Stephen J. Woolsey, Littleton, Colorado, for Plaintiff-Appellant
    The Law Office of Ahson Wali LLC, Ahson B. Wali, Greenwood Village, Colorado, for Defendant-Appellee
   Opinion by JUDGE DUNN

¶ 1 Michael Eugene Tallman obtained a default judgment in 1996 against Richard Aune. Twenty years after the judgment entered, and after the court file had been destroyed, the district court granted Mr. Aune's motion to vacate the default judgment under C.R.C.P. 60(b)(3), finding that Mr. Tallman "failed to establish by clear and convincing evidence that [Mr. Aune] was ever properly served in this case." Mr. Tallman asks us to reverse that ruling because, in his view, (1) the district court erred in declining to apply the presumption of regularity to the default judgment and presume it was entered with jurisdiction and (2) Mr. Aune's unsworn statements in his motion to vacate the default judgment were not sufficient to overcome the presumption of regularity or meet his threshold burden to establish that the default judgment was void.

¶ 2 Because we agree with Mr. Tallman, we reverse the district court's judgment and remand the case for reinstatement of the default judgment.

I. Background

A. The Court Record

¶ 3 This case comes to us under unusual circumstances. Though asked to consider whether the district court erred in vacating Mr. Tallman's default judgment obtained nearly two decades ago, we are limited by the district court's destruction of the case file under its records retention policy (nearly fifteen years after the default judgment entered). Only the register of actions survived the purge, reflecting what was filed and when. Nothing in the register indicated that the parties were notified about the records retention policy or the destruction of the case file.

¶ 4 While the original court pleadings were destroyed, Mr. Tallman possessed copies of two pleadings that his attorney had, at some point, provided him: (1) the September 1996 "verified motion for entry of default" (default motion) and (2) the district court's December 1996 "judgment and order" entering default judgment against Mr. Aune (1996 default judgment). Given the destruction of the case file, Mr. Tallman filed a verified motion for new order or record under section 13-1-104, C.R.S. 2018, asking the court to enter the two pleadings in "the record with the same effect which the original record would have had if [the pleadings] had not been lost or destroyed." Mr. Aune did not dispute that the two pleadings in Mr. Tallman's possession were true and accurate. The district court granted the motion, making these pleadings part of the record.

¶ 5 We therefore take the facts and procedural history from the register of actions and the limited replaced portions of the district court's record.

B. The 1996 Default Judgment

¶ 6 Those records show that Mr. Tallman filed a complaint against Mr. Aune in 1996. Mr. Aune did not file an answer or otherwise respond to the complaint. Mr. Tallman then filed the default motion under C.R.C.P. 55. As relevant here, the motion stated that

• Mr. Tallman filed his complaint on May 23, 1996;
• "a copy of the [c]omplaint and [s]ummons was served upon [Mr. Aune] in Honolulu, Hawaii, on July 16, 1996, a copy of which [was] filed with this Court, (See copy of [s]ummons and [a]ffidavit attached hereto as Exhibits 1 and 2, respectively)";
• more than thirty days had passed since "personal service"; and
• Mr. Aune had not answered or responded.

¶ 7 The default motion was verified via Mr. Tallman's counsel's sworn and notarized statement that the information was "true to the best of [his] knowledge, information and belief."

¶ 8 The surviving register of actions showed several entries consistent with the default motion, including a complaint filed on May 23, 1996, "SVC" on July 16, 1996, and "[s]ummons" on August 2, 1996. The register of actions also reflected that the clerk of court entered default in October 1996.

¶ 9 The district court later granted Mr. Tallman's verified motion for default judgment. In the 1996 default judgment, the court made the following relevant factual findings:

• The complaint was filed on May 23, 1996.
• "Service was effectuated on [Mr. Aune] on July 16, 1996."
• A responsive pleading "should have been filed" no later than August 15, 1996.
• Mr. Tallman had "complied with all applicable rules for entry of default judgment."
• Mr. Tallman was entitled to judgment in the amount of $91,574.45.
• And Mr. Tallman was "entitled to execute upon this judgment in accordance with law."

¶ 10 The 1996 default judgment was signed by District Court Judge Kenneth Barnhill and dated December 11, 1996. It was entered in the register of actions on that date.

C. Garnishment and Motion to Vacate

¶ 11 Beyond a 2011 notation that the case file was "[d]estroyed," the register of actions reflected no activity until 2016 when Mr. Tallman filed writs of garnishment, seeking to enforce the 1996 default judgment. The writs issued, and Mr. Tallman served them on several banks.

¶ 12 Shortly after, Mr. Aune filed what he captioned a "verified motion to vacate default judgment and quash writ of garnishment" (motion to vacate). In this motion, Mr. Aune asserted that (1) he was not previously "aware that he had been sued or that a judgment had been entered against him"; (2) Mr. Tallman "could not provide a copy of the [a]ffidavit of [s]ervice"; and (3) he "would have defended this matter had he been properly served." Mr. Aune then asserted, in conclusion, that he "was never served in this case" and "a default judgment obtained without service of process" is void. He therefore asked the district court "to vacate the [1996 default judgment] and quash all writs of garnishment."

¶ 13 In response, Mr. Tallman admitted that he could not produce the affidavit of service but argued that he properly served Mr. Aune and complied with the rules for entry of default judgment. As evidence that he did, Mr. Tallman attached the default motion, the 1996 default judgment, and email exchanges with the court regarding the destruction of the case file. He also pointed to the register of actions entry, noting "SVC on 7-16-96." And Mr. Tallman argued that Mr. Aune "failed to present any proof that he was not served or that the judgment [was] void" and had not satisfied his burden to establish by clear and convincing evidence that the 1996 default judgment should be vacated.

¶ 14 Mr. Tallman later filed an affidavit from the attorney who obtained the 1996 default judgment. That affidavit stated that "he was the attorney of record in this matter in 1996" and that he "understand[s] and [was] informed that service on [Mr. Aune] in this case was effectuated in Hawaii." Counsel also stated he "specifically recall[ed] looking into the issue of service of process in Hawaii" and he only handled one case that required service there.

¶ 15 The district court granted Mr. Aune's motion to vacate. In doing so, it found that Mr. Tallman "failed to produce" the affidavit of service and, without the affidavit of service, nothing showed "the essential facts to demonstrate adequacy of service." Accordingly, the court concluded that Mr. Aune had "met [his] burden." It then shifted the burden to Mr. Tallman and concluded that he had not established that Mr. Aune was properly served.

D. The Motion to Reconsider

¶ 16 Mr. Tallman moved the court to reconsider, arguing that the presumption of regularity must apply. He specifically contended that the court must presume that the 1996 default judgment was properly entered and that Mr. Aune was properly served-a requirement for entry of a default judgment. He further argued that Mr. Aune's unsworn statements did "not affirmatively show that service did not occur, nor [did they] overcome the presumption of regularity."

¶ 17 The district court rejected the argument, noting that Mr. Tallman "cited no authority indicating that the presumption ha[d] been applied to a [district] court's review of its own record in Colorado." The court added that even if the presumption of regularity does apply to a district court, it is "not the standard by which to judge [Mr. Aune's motion to vacate]."

¶ 18 The district court later dismissed the case.

II. Vacating the 1996 Default Judgment

¶ 19 Mr. Tallman contends that the district court erred in vacating the 1996 default judgment. More to the point, he argues that the district court should have applied the presumption of regularity to presume the 1996 default judgment was entered with jurisdiction.

A. Standard of Review

¶ 20 We review de novo a district court's order granting relief from a default judgment under C.R.C.P. 60(b)(3). Goodman Assocs., LLC v. WP Mountain Props., LLC , 222 P.3d 310, 314 (Colo. 2010).

¶ 21 Mr. Aune, however, argues that because Mr. Tallman didn't raise the presumption of regularity until the motion for reconsideration, we should review only for an abuse of discretion. See Hytken v. Wake , 68 P.3d 508, 512 (Colo. App. 2002). While Mr. Aune is correct on the timing, the district court considered the argument and concluded the presumption of regularity didn't apply. And whether the district court applied the correct legal standard is a question of law that we review de novo. Wal-Mart Stores, Inc. v. Crossgrove , 2012 CO 31, ¶ 7, 276 P.3d 562. In any event, a district court abuses its discretion if it applies the wrong legal standard. Id.

B. Requirements for Default Judgment

¶ 22 When a defendant fails to defend against a civil lawsuit, the plaintiff may request "a judgment by default." C.R.C.P. 55(b). To obtain one, the plaintiff must provide the court with the following:

• "[t]he original summons showing valid service on the particular defendant in accordance with [C.R.C.P.] 4";
• an affidavit stating the facts necessary to show proper venue;
• an affidavit establishing that the defendant is not an infant, an incompetent person, an officer or agency of Colorado, or in the military service; and
• an affidavit or exhibit establishing the amount of damages.

C.R.C.P. 121, § 1-14(1); see also Crow-Watson No. 8 v. Miranda , 736 P.2d 1260, 1261 (Colo. App. 1986) (" C.R.C.P. 121 § 1-14 ... specifies what documents, affidavits, and other information must be provided to the court before default judgment is entered.").

¶ 23 What remains of the record confirms that Judge Barnhill found that Mr. Tallman complied with these procedural requirements.

C. C.R.C.P. 60(b)(3)

¶ 24 To set aside a default judgment, the defendant "bears the burden of establishing by clear and convincing evidence that the motion should be granted." Goodman , 222 P.3d at 315 ; see also Borer v. Lewis , 91 P.3d 375, 380-81 (Colo. 2004) (same). And while a default judgment entered without jurisdiction is void, the "burden of proof remains upon the defendant to establish lack of personal jurisdiction resulting in a void judgment under C.R.C.P. 60(b)(3)." Goodman , 222 P.3d at 315. But Goodman recognizes an exception to this general rule in those cases where "the return of service insufficiently recites the essential facts to demonstrate adequacy of service." Id. In such a case, Goodman instructs that the burden "may" shift back to the plaintiff. Id.

D. The Goodman Exception

¶ 25 Mr. Tallman contends that the district erred in concluding that his inability to produce the return of service, along with Mr. Aune's claim that he was "never served," shifted the burden to Mr. Tallman to prove service under the Goodman exception. Under the circumstances here, we agree.

¶ 26 The district court specifically concluded that "[b]ecause the affidavit [of service] does not exist, it cannot state 'the essential facts to demonstrate adequacy of service,' " and thus it shifted the burden to Mr. Tallman to prove service. Goodman , however, didn't address a situation where the default judgment and register of actions showed the defendant was served but the court file was destroyed, leaving no return of service to review. Rather, the Goodman exception says only that a court may shift the burden back to the plaintiff when a "return of service" insufficiently recites facts demonstrating adequate service. Id. This exception, therefore, presupposes the return is available in the record and the dispute is over the sufficiency of the return's contents. See id. at 316 (declining to consider whether the burden shifted to the plaintiff where the service affidavit was in the record and the record demonstrated adequate service); cf. In re Marriage of Thacker , 701 P.2d 871, 872 (Colo. App. 1985) (setting aside marriage dissolution decree where the record showed that the return of service named a person other than defendant). Such an exception is not surprising given that a "[r]eturn of service is prima facie evidence of the facts recited." Stegall v. Stegall , 756 P.2d 384, 385 (Colo. App. 1987).

¶ 27 The return of service recitals' sufficiency-or the lack thereof-is not the dispute here. Because the return of service is not available, Mr. Aune can't point to any insufficient factual recital in the return. For the same reason, we can't consider the sufficiency of the return's factual recitals. We therefore don't agree that Goodman 's burden-shifting exception applies here.

¶ 28 Instead, when the register of actions, the limited record, and the 1996 default judgment show service was effectuated, but the return of service is no longer available, the presumption of regularity applies.

E. Presumption of Regularity

¶ 29 The presumption of regularity generally presumes that a judgment is valid and was properly entered. See LePage v. People , 2014 CO 13, ¶ 15, 320 P.3d 348 ; see also Cook v. Cook , 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146 (1951) (recognizing that the court presumes a sister state's judgment was entered with "jurisdiction over the subject matter and over the persons"). This presumption is "deeply rooted in our jurisprudence." Parke v. Raley , 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). And Colorado has long recognized it. See Haskell v. Gross , 145 Colo. 365, 367, 358 P.2d 1024, 1026 (1961) ; Kavanagh v. Hamilton , 53 Colo. 157, 165, 125 P. 512, 516 (1912).

¶ 30 Indeed, "[t]here is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears[.]" Voorhees v. Jackson , 35 U.S. 449, 472, 10 Pet. 449, 9 L.Ed. 490 (1836) ; see also Haskell , 145 Colo. at 367, 358 P.2d at 1026. "[T]his rule applies ... to every judgment or decree, rendered in the various stages of their proceedings from the initiation to their completion[.]" Voorhees , 35 U.S. at 472 ; see Guthner v. Union Fin. & Loan Co. , 110 Colo. 449, 452-53, 135 P.2d 237, 239 (1943) (presuming the validity of the trial court's findings made in support of its order).

¶ 31 Mr. Aune argues the presumption of regularity doesn't apply because he "never claimed" Judge Barnhill "committed error." Instead, he "merely" alleged that Mr. Tallman "did not properly serve" him.

¶ 32 We are unconvinced for two reasons. First, while true Mr. Aune challenged service of process, the necessary corollary to that argument is that Judge Barnhill erred in finding that (1) "service was effectuated on" Mr. Aune and (2) Mr. Tallman "complied with all applicable rules" to obtain the 1996 default judgment (one of which required him to provide the original summons showing "valid service" "in accordance" with the service rules). C.R.C.P. 121, § 1-14(1)(a). Thus, a motion to vacate a default judgment based on lack of service of process is, by extension, a contention that the district court erred in entering default judgment based on a finding of valid service.

¶ 33 But, even if we agree that Mr. Aune "never claimed" Judge Barnhill "committed error," the result is no different. If true, then Mr. Aune concedes that Judge Barnhill correctly found that "service was effectuated on" Mr. Aune and that Mr. Tallman "complied with all applicable rules" to obtain the 1996 default judgment. And if correct, these findings again refute Mr. Aune's claim that he was not served.

¶ 34 Second, our supreme court applied the presumption of regularity to a somewhat similar contention in Haskell . There, the defendant failed to answer the plaintiff's complaint after initially appearing in the case. Haskell , 145 Colo. at 366, 358 P.2d at 1025. As a result, the court entered default judgment. Id. The defendant then moved to vacate the default judgment, arguing that he had not been served with the required notice before the court entered the default judgment. Id. ; see also C.R.C.P. 55(b) (requiring the application for a default judgment to be served on a defendant who has appeared in the action). Because neither the record nor evidence before the district court showed whether the notice had been served, the district court vacated the default judgment. Haskell , 145 Colo. at 366-67, 358 P.2d at 1025.

¶ 35 Our supreme court reversed, reinstating the default judgment. Id. at 367-68, 358 P.2d at 1026. The court explained that "[i]t was incumbent upon the [district] court to give effect to the presumption that the legal prerequisites to the entry of a valid judgment had been duly observed." Id. at 367, 358 P.2d at 1026. It went on to explain that "[i]t has always been the law in this state that in the absence of anything in the record to the contrary, the [reviewing] court will presume that the facts necessary to warrant the judgment were proved or admitted." Id. (citation omitted). The supreme court therefore concluded that the default judgment was entitled to a presumption of regularity. Id. at 367-68, 358 P.2d at 1026.

¶ 36 To the extent Mr. Aune argues that the presumption of regularity may be applied only by appellate courts and not the district court, we are not persuaded that the presumption is so limited. After all, Haskell itself suggested that the district court erred in not applying the presumption to its own default judgment. Id. ; see also United States v. Manos , 56 F.R.D. 655, 661 (S.D. Ohio 1972) (federal district court recognized that a default judgment entered in that court was "presumptively valid" when considering a motion to vacate the default judgment).

¶ 37 Nor do we agree with Mr. Aune's suggestion that the destruction of the case file doesn't matter. Indeed, given its premise that a court observes the legal requirements necessary to enter a valid judgment, the presumption of regularity is particularly apt where, as here, the court file is silent or has been lost or destroyed. See LePage , ¶ 15 ; see also Haskell , 145 Colo. at 367-68, 358 P.2d at 1025-26 (applying the presumption of regularity where the "record [was] silent" as to whether a hearing notice was filed before entry of a judgment).

¶ 38 The Ninth Circuit Court of Appeals took this approach in Securities & Exchange Commission v. Worthen , 98 F.3d 480 (9th Cir. 1996). In that case, the district court entered default judgment after the defendant failed to respond to the complaint. Id. at 481. The court's file was later lost, and "only the docket sheet documenting [the court] filings and orders [was] ... available." Id.

¶ 39 The defendant moved to vacate the default judgment under Fed. R. Civ. P. 60(b), arguing, in part, that the judgment was void for lack of service. Id. at 481, 483. The district court denied the motion, and the Ninth Circuit affirmed. Id. In rejecting the defendant's argument, the Ninth Circuit applied the presumption of regularity to the default judgment. Id. at 483-84. It concluded that although the return of service in the court file had been lost, the docket sheet showed that the return of service had been filed in the district court and this, together with the presumption of regularity, showed the judgment was not void. Id. ; see also Choctaw & Chickasaw Nations v. City of Atoka , 207 F.2d 763, 766 (10th Cir. 1953) (noting that where a party challenged a judgment for lack of jurisdiction and a fire had destroyed the court's records, "a presumption arises in favor of the validity of the judgment and the existence of all matters going to the power of the court to render the judgment").

¶ 40 Given all this, we disagree with Mr. Aune that the presumption of regularity doesn't apply to the 1996 default judgment. We, instead, conclude that it was "incumbent upon the [district] court to give effect to the presumption that the legal prerequisites to the entry of a valid judgment had been duly observed." Haskell , 145 Colo. at 367, 358 P.2d at 1026 ; see also Worthen , 98 F.3d at 483-84 ; Hoag v. Jeffers , 201 Ind. 249, 159 N.E. 753, 754 (1928) ("A judgment by default, regular upon its face, is presumed to be clothed with the presumption that it was properly entered, when the record does not show anything inconsistent with such presumption.").

¶ 41 And integral to that presumption is that Mr. Tallman properly served Mr. Aune and the court had jurisdiction to enter the 1996 default judgment. Hansen v. Pingenot , 739 P.2d 911, 913 (Colo. App. 1987) ("The mere existence of a default judgment ... raises a presumption of valid jurisdiction."); see Seaboard Nat'l Bank v. Ackerman , 16 Cal.App. 55, 116 P. 91, 93 (1911) ("The fact that the evidence in the case at bar does not show upon whom or how the service of summons in the original action was made is not inconsistent with the conclusion that the defendant therein was properly served with summons, and 'it must be presumed in support of the action of the court that such service was shown to it, although it has not preserved any record thereof.' ") (citation omitted); Brenner v. Port of Bellingham , 53 Wash.App. 182, 765 P.2d 1333, 1335 (1989) ("When there is a recital in a default judgment that proper service of process has occurred, a presumption of jurisdiction arises...."); see also Worthen , 98 F.3d at 484 ; Haskell , 145 Colo. at 367-68, 358 P.2d at 1026 ; Kavanagh , 53 Colo. at 165, 125 P. at 516 ; People ex rel. Wyoming v. Stout , 969 P.2d 819, 821 (Colo. App. 1998).

¶ 42 We therefore conclude that the district court erred in declining to apply the presumption of regularity to the 1996 default judgment when it granted the motion to vacate.

III. Overcoming the Presumption of Regularity

¶ 43 The presumption of regularity, however, is just that-a presumption. It's not conclusive proof that something is true, and it may be overcome. LePage , ¶ 16 ; see Krueger v. Ary , 205 P.3d 1150, 1154 (Colo. 2009) (stating that if a rebuttable presumption is overcome, the presumption no longer establishes the presumed fact).

¶ 44 The burden therefore was on Mr. Aune to overcome the presumption attached to the 1996 default judgment. Haskell , 145 Colo. at 368, 358 P.2d at 1026. To do that, Mr. Aune needed to "affirmatively show" that Judge Barnhill erred in finding that Mr. Tallman effectuated service on Mr. Aune and complied with the service rules. LePage , ¶ 16 ; see also Schuster v. Zwicker , 659 P.2d 687, 690 (Colo. 1983) (presuming judgment correct "until the contrary affirmatively appears"). Conflicting inferences that may be drawn from the destroyed return of service alone are insufficient to overcome the presumption. See LePage , ¶ 16 ; see also Choctaw & Chickasaw Nations , 207 F.2d at 766 ("In the absence of any showing in the record either one way or the other, ... it will be presumed ... that all parties to the action were properly served with process.").

¶ 45 Mr. Tallman argues that the unsworn statements in Mr. Aune's motion to vacate were not sufficient to meet his burden to overcome the presumption of regularity, and even if the statements could satisfy this burden, they don't show by clear and convincing evidence that the 1996 default judgment was void under C.R.C.P. 60(b)(3). Reviewing the record de novo, see Goodman , 222 P.3d at 314, we agree.

¶ 46 Despite seeking to set aside the 1996 default judgment, Mr. Aune presented no affidavits or other affirmative evidence showing that service was not accomplished. Nor did he request an evidentiary hearing or seek to supplement any of his filings with affirmative evidence. His showing was limited to assertions in his motion to vacate that he was "never served." And the motion to vacate itself-though labeled "verified"-was not accompanied by an affidavit or signed under oath, and it did not contain an affirmation that the allegations were true to the best of Mr. Aune's knowledge, information, or belief.

¶ 47 At most, then, despite his burden of proof, Mr. Aune presented the district court with an unsworn assertion that two decades ago he was never served. Such "self-serving and conclusory inferences ... do not suffice as 'affirmative' evidence" to overcome the presumption of regularity. State v. Chaussee , 361 Mont. 433, 259 P.3d 783, 790 (2011) ; see also Cambria v. Worldwide Custom Materials, Inc. , 10 So.3d 615, 617 (Ala. Civ. App. 2008) (concluding that unsworn assertion that parties had not been served with process was insufficient to rebut the presumption that the court rendering default judgment had jurisdiction). For the same reason, Mr. Aune didn't satisfy his burden of proof to present clear and convincing evidence to set aside the 1996 default judgment under C.R.C.P. 60(b)(3). See Goodman , 222 P.3d at 315.

¶ 48 We therefore reverse the district court's order vacating the 1996 default judgment and remand the case to the district court to reinstate it. See Haskell , 145 Colo. at 368, 358 P.2d at 1026.

IV. Revival of the 1996 Default Judgment

¶ 49 Mr. Tallman lastly asks us to direct the district court to "grant a nunc pro tunc order for revival of judgment," arguing he complied with the procedural requirements to revive the 1996 default judgment. See Robbins v. A.B. Goldberg , 185 P.3d 794, 797 (Colo. 2008) (allowing for the revival of a judgment if the request was filed with the court within the required timeframe under C.R.C.P. 54(h) ).

The district court didn't consider the merits of Mr. Tallman's motion to revive the 1996 default judgment but instead denied it as moot. Because we conclude the 1996 default judgment must be reinstated, the motion to revive is not moot. See Holliday v. Reg'l Transp. Dist. , 43 P.3d 676, 688 (Colo. App. 2001).

¶ 50 Thus, we reverse the denial of Mr. Tallman's motion to revive the 1996 default judgment, and on remand, the district court shall consider his request. We express no opinion on the merits of the motion.

V. Conclusion

¶ 51 We reverse the district court's judgment and remand the case to the district court to reinstate the 1996 default judgment and to consider Mr. Tallman's request to revive the 1996 default judgment.

Martinez and Márquez*, JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.

      The referenced exhibits were not attached to the copy of the default motion that Mr. Tallman retained and the court entered as part of the recreated record.

      Mr. Aune raises no preservation challenge.

      The requirements for entry of default judgment have not materially changed since 1996.

      Nor does Mr. Aune ask this court to remand for an evidentiary hearing.


author: Opinion by JUDGE FREYRE

text:
    In re the Interest of Louis "Barney" ARGUELLO, Protected Person, and the Arc of Pueblo, Respondents-Appellees, v. Fe Ana BALSICK and Colorado Bluesky Enterprises, Inc., Petitioners-Appellants.
    Court of Appeals No. 18CA0548
    Colorado Court of Appeals, Division III.
    Announced February 7, 2019 Modified February 21, 2019
    Linda L. McMillan, BuxmanKwitek, P.C., Pueblo, Colorado, for Petitioners-Appellants
    Melinda Badgley, Guardian Ad Litem
    William J. Ballas, Pueblo, Colorado, for Respondents-Appellees
   Opinion by JUDGE FREYRE

¶1 This is an adult guardianship appointment case where a prospective guardian, Fe Ana Balsick, and her employer, Colorado Bluesky Enterprises, Inc., appeal the district court's order sua sponte appointing the Arc of Pueblo (ARC) as the permanent guardian for Louis "Barney" Arguello, the incapacitated person. We are asked to answer a novel question: Must the district court appoint a court visitor and follow the statutory vetting procedures outlined in sections 15-14-304 and - 305, C.R.S. 2018, before it can appoint a guardian for an incapacitated person? We answer that question "yes." We hold that the court is required to appoint a visitor for every petition for guardianship filed and that all prospective guardians must undergo the statutorily mandated process outlined in sections 15-14-304 and - 305 before the court can appoint a guardian. Because the ARC was not subjected to this statutory vetting process, we reverse the court's order and remand for further proceedings.

I. Background

¶2 Mr. Arguello, an adult resident of Pueblo, suffers from dementia, developmental disability, and mental health illness. He has spent most of his life with his parents in Denver. He moved to Pueblo sixteen years ago with his sister, Lynn Quintana, after his mother died.

¶3 Mr. Arguello receives services from Pueblo Community Resources (PCR), where Nora McAuliff supervises his care. He lives in a host home with a caregiver he has known for many years. In 2016, the court appointed Ms. Balsick to be an emergency guardian when medical decisions needed to be made and family was unavailable. Soon thereafter, several persons petitioned the court to be appointed permanent guardian.

¶4 Petitioner McAuliff initially nominated Ms. Balsick as sole guardian and later nominated Mr. Arguello's older sister, Adele Uballe, who lives in Pueblo, to be co-guardian with Ms. Balsick. Ms. Quintana and her daughter, Tammy Gonzalez, also petitioned the court to be Mr. Arguello's co-guardians. They both live in Denver and planned to move Mr. Arguello to Denver if appointed.

¶5 The court appointed court visitor Julie Thompson-Polk to prepare a visitor's report concerning all prospective guardians, and it set the matter for a hearing. Ms. Thompson-Polk prepared three reports. The first report investigated and considered the appointment of Ms. Balsick as sole guardian. It did not recommend Ms. Balsick's appointment because of her employment with Bluesky and the existence of a potential conflict of interest under section 15-13-310(4), C.R.S. 2018 (precluding a long-term care provider from also serving as a guardian). A first amended report also investigated and considered the appointment of Ms. Quintana and Ms. Gonzalez as co-guardians. The amended report expressed concerns about Mr. Arguello living with Ms. Quintana and Ms. Gonzalez and being moved to Denver. A second amended report investigated and considered the proposed co-guardianship of Ms. Balsick and Ms. Uballe and repeated the potential conflict concerns about Bluesky and Ms. Balsick.

¶6 After several hearings, the court found that Ms. Quintana and Ms. Gonzalez were not suited to be co-guardians because a move to Denver would not be in Mr. Arguello's best interests. As well, the court found that Ms. Uballe would not be a suitable guardian due to her physical limitations, her advanced age, and her distant relationship with Mr. Arguello. Finally, the court found that Ms. Balsick would not be a suitable guardian because she was employed by Bluesky, which also served as Mr. Arguello's long-term care provider, as defined in section 15-13-310(4), C.R.S. 2018, of the Colorado Uniform Guardianship and Protective Proceedings Act (CUGPPA). The court concluded that a conflict of interest precluded Ms. Balsick's appointment because she could potentially be required to choose between Mr. Arguello's best interests and those of her employer, Bluesky.

¶7 Finding no suitable guardian from among the petitioners, the court sua sponte appointed ARC, for good cause, because (1) ARC does not provide long-term care or case management services for individuals and, thus, would have no conflict of interest; and (2) the court was aware that ARC serves as guardian for many other individuals with developmental disabilities in Pueblo County.

¶8 Bluesky and Ms. Balsick moved for reconsideration, contending that (1) the court erred in finding that Bluesky was a long-term care provider as defined by the statute and (2) ARC was improperly appointed because no petition nominating it as a guardian had been filed. The court denied the motion for reconsideration stating, "[e]ven if the facts of the case do not fall squarely within C.R.S. § 15-14-310(4) [the prohibition against appointment of employees of long-term care providers], this Court has jurisdiction to appoint the guardian it believes will best serve [Mr. Arguello's] interests." The court also found that it had broad discretion to appoint a guardian and noted that Bluesky had offered no legal authority requiring that the guardian be reviewed by a court-appointed visitor.

II. The Court Did Not Abuse Its Discretion in Refusing to Appoint Ms. Balsick as Guardian

¶9 Bluesky first contends that it is not a long-term care provider under the statute and that PCR serves that role for Mr. Arguello. It reasons that because it provides case management services, not prohibited under section 15-14-310(4), the court legally erred in applying the statutory prohibition to Ms. Balsick. Bluesky further argues that the court's ruling effectively gives ARC a monopoly on professional guardian services in Pueblo. Because we conclude that the court acted within its discretion in finding that Mr. Arguello's best interests would not be served by appointing Ms. Balsick, given the potential for a conflict to arise, we need not decide whether Bluesky is a long-term care provider under section 15-14-310(4).

A. Additional Facts

¶10 The conflict issue first arose in the visitor's report. Ms. Thompson-Volk noted that Bluesky provides Mr. Arguello with case management services under Colorado's comprehensive services DD waiver, and she opined that this implicated the prohibitions listed in section 15-14-310(4) and (5). She noted that Ms. Balsick, as guardian, "would have the duty and obligation to select the Respondent's service providers during the service plan meeting," and that, "in theory, [she] could change the Respondent's service provide[r] so [that] [Bluesky] would provide additional services to the Respondent." Ms. Thompson-Volk further noted that the guardian would participate in Mr. Arguello's annual Supports Intensity Scale Assessment, used to determine his funding level, and that Bluesky, acting through Ms. Balsick, could theoretically "generate additional income for itself." Finally, Ms. Thompson-Volk noted that the DD waiver required Bluesky to investigate mistreatment allegations, and she questioned whether appointing a Bluesky employee as guardian was in Mr. Arguello's best interests.

¶11 At the hearing, petitioner McAuliff was asked to explain Bluesky's role in Mr. Arguello's life. She testified that Mr. Arguello has a Bluesky service coordinator whose function is to "monitor the services that we, as an agency [PCR] provided, as well as coordinat[e] his services." She agreed that Bluesky provides case management services, and that she is "subject to supervision from [Bluesky] as to how those services [were] being followed." She further explained that the Bluesky coordinator is involved in the annual staffing to determine who will provide what services for the coming year.

¶12 Ms. Balsick testified that Bluesky's service coordinator is paid by Medicaid, while she, as Bluesky's guardianship coordinator, is paid through a grant. She admitted that she receives her salary and benefits from Bluesky, and that she is "treated the same as any employee of [Bluesky]." Ms. Balsick agreed that Bluesky provides Mr. Arguello with case management services which assist eligible individuals to "gain access to needed medical, social, educational and other services." She also testified the same person cannot be both the service coordinator and the guardian of the same individual at Bluesky, but she conceded that Bluesky employs and pays persons in both positions. And she explained that PCR is Mr. Arguello's "direct service provider."

B. Standard of Review and Law

¶13 District courts enjoy wide discretion when appointing a guardian. See In re Estate of Runyon , 2014 COA 181, ¶ 8, 343 P.3d 1072 ("[T]he decision of whom to appoint lies within the sound discretion of the trial court." (quoting In re Mitchell , 914 S.W.2d 844, 848 (Mo. Ct. App. 1996) )); 3 A. Kimberley Dayton et al., Advising the Elderly Client § 34:40, Westlaw (database updated June 2018) (stating district courts are in a "better position to judge the character, and appropriateness of those who would be guardian" than appellate courts). Accordingly, we review a district court's appointment of a guardian for an abuse of discretion. Runyon , ¶ 9. A court abuses its discretion if the appointment is manifestly arbitrary, unreasonable, or unfair, or if the court misconstrues or misapplies the law in entering the appointment order. Id.

¶14 Whether the court properly interpreted and applied the relevant statute is a legal question that we review de novo. Miller v. Hancock , 2017 COA 141, ¶ 24, 410 P.3d 819. In interpreting a statute, we give statutory words and phrases their plain and ordinary meanings. Id. "If a statute is clear and unambiguous on its face, then we need not look beyond the plain language, and 'we must apply the statute as written.' " Vigil v. Franklin , 103 P.3d 322, 327 (Colo. 2004) (citations omitted).

¶15 The power to appoint a legal guardian for an incapacitated person lies with the district court. § 15-14-301, C.R.S. 2018. The court may appoint a guardian if it finds by clear and convincing evidence that the respondent is an incapacitated person whose needs cannot be met by less restrictive means. § 15-14-311, C.R.S. 2018. The court must appoint the person it believes is best suited to protect the best interests of the incapacitated person. See §§ 15-14-310, - 314(1), C.R.S. 2018.

¶16 While a nonprofit corporation is eligible for guardianship appointment, § 15-14-310 cmt., section 15-14-310(4) states that "[a]n owner, operator, or employee of a long-term-care provider from which the respondent is receiving care may not be appointed as guardian unless related to the respondent by blood, marriage, or adoption." Long-term care is defined as

services designed to provide diagnostic, preventive, therapeutic, rehabilitative, supportive, and maintenance services for individuals who have chronic physical or mental impairments, or both, in a variety of institutional and noninstitutional settings, including the home, with the goal of promoting the optimum level of physical, social, and psychological functioning of the individuals.

§ 25.5-6-104(2)(h), C.R.S. 2018.

¶17 Case management services are defined as

the assessment of a long-term care client's needs, the development and implementation of a care plan for such client, the coordination and monitoring of long-term care service delivery, the direct delivery of services as provided by this article or by rules adopted by the state board pursuant to this article, the evaluation of service effectiveness, and the reassessment of such client's needs....

§ 25.5-6-104(2)(b).

C. Application

¶18 In finding that Bluesky is a long-term care provider under section 15-14-310(4), the court considered the definitions of long-term care provider and case management services, as well as the official comment to section 15-14-310, which provides as follows:

A professional guardian can still be appointed guardian if no one with priority is available and willing to serve or if the Court, acting in the respondent's best interest, declines to appoint a person having priority. A public agency or nonprofit corporation is eligible to be appointed guardian as long as it can provide an active and suitable guardianship program and is not otherwise providing substantial services or assistance to the respondent , but is not entitled to statutory priority in appointment as guardian.

(Emphasis added.)

¶19 The court recognized that while the facts of this case may not fall "squarely" within the long-term care provider exception of section 15-14-310(4), they nevertheless demonstrated a potential conflict of interest between Bluesky and Ms. Balsick that rendered her unsuitable as a guardian for Mr. Arguello. And the record demonstrates that Bluesky "provides substantial assistance" to Mr. Arguello in the form of case management services. The court acknowledged Ms. Balsick's professionalism and experience, but determined that because she is employed by Bluesky, it would not be in Mr. Arguello's best interest for her to serve as his guardian.

¶20 We discern no abuse of discretion in the court's finding and conclude that it is well supported by the record. Indeed, petitioner McAuliff, an employee of PCR, admitted that she is supervised by Bluesky, which also employs Ms. Balsick. And Ms. Balsick admitted that Bluesky's service coordinator, with input from the guardian, determines Mr. Arguello's needed services and service providers, including whether to continue with PCR and whether to request additional services through Bluesky. Therefore, regardless of whether Bluesky technically meets the statutory definition of a long-term care provider, Ms. Balsick, as its employee, would have the ability, as guardian, to recommend increased funding for Mr. Arguello and thereby generate revenues for Bluesky. Moreover, as guardian, Ms. Balsick would have oversight of Bluesky's case management services and could be hesitant, as a Bluesky employee, to question Bluesky's actions. Because a trial court is in the best position to judge the character and appropriateness of those who would be guardian, we discern no abuse of discretion and therefore affirm the court's order refusing to appoint Ms. Balsick. Runyon , ¶ 8 ; Estate of Keenan v. Colo. State Bank & Tr. , 252 P.3d 539, 540 (Colo. App. 2011) (affirming probate court's finding due to sufficient record support); see also In re Guardianship of Kowalski , 478 N.W.2d 790, 792 (Minn. Ct. App. 1991) (recognizing under Minnesota's version of the uniform act, which Colorado's law is also based on, that "[t]he appointment of a guardian is a matter peculiarly within the discretion of the probate court").

III. The Court Erred in Appointing ARC Without Appointing a Court Visitor Under Section 15-14-305(1)

¶21 Bluesky next contends that the court violated the statutory mandate in section 15-14-305(1) by appointing ARC without first appointing a visitor and receiving a report. Because the statute's plain language requires appointment of a court visitor, we agree. Therefore, we reverse the court's order appointing ARC as guardian for Mr. Arguello, and we remand the case to appoint a visitor, prepare a visitor's report, set a hearing, and enter a new order appointing a guardian for Mr. Arguello.

A. Standard of Review and Law

¶22 We review the district court's application of law de novo. Miller , ¶ 24. We do so under the standard set forth in Part II(B).

B. Colorado's Guardianship Act

¶23 The CUGPPA is based on the Uniform Guardianship and Protective Proceedings at of 1997 (UGPPA) law and, therefore, "consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it" when applying and construing it. § 15-14-121, C.R.S. 2018. The purpose of guardianship is to protect and assist incapacitated persons; however, because a guardian constitutes a restriction on an incapacitated person's liberty or access to property, guardianship proceedings implicate and require due process of law. U.S. Const. amend. XIV ("No State shall ... deprive any person of life, liberty, or property, without due process of law."); Spohr v. Fremont Cty. Dep't of Human Servs. , 2018 COA 74, ¶ 1, 422 P.3d 625.

¶24 Effective January 1, 2001, Colorado adopted the UGPPA. Ch. 368, sec. 1, §§ 15-14-101 to -433, 2000 Colo. Sess. Laws 1778-1832; Unif. Guardianship & Protective Proceedings Act (Unif. Law Comm'n 1997). The purpose of the UGPPA is to strengthen the due process rights of incapacitated persons who face involuntary guardianship, and it therefore emphasizes limited guardianships and views permanent guardianships as a "last resort." Unif. Guardianship & Protective Proceedings Act prefatory note. ("[L]imited guardianships or conservatorships should be used whenever possible, and the guardian or conservator should always consult with the ward or protected person, to the extent feasible, when making decisions.").

¶25 As well, the UGPPA entitles an incapacitated person to notice and a hearing, unless the court finds that such person would be substantially harmed if the appointment were delayed. UGPPA § 312. And, it limits emergency guardianship appointments to sixty days. Id. ; see § 15-14-312(1), C.R.S. 2018; Spohr , ¶ 25.

¶26 The prefatory note to the UGPPA summarizes the substantial changes from the previous version. As relevant here, the UGPPA specifies "procedural steps ... which must be met before a guardian for an incapacitated person or conservator can be appointed," including the "[s]pecific information ... required in the petition" and that "the court must appoint a visitor." Id. The prefatory note cites sections 304 and 305, which correspond to sections 15-14-304 and 15-14-305 of the CUGPPA. Moreover, the prefatory note clearly states that "a visitor is appointed in every proceeding for appointment of guardian under Article 3." Id. (emphasis added). Article 3 of the UGPPA concerns guardianship proceedings of adult incapacitated persons and corresponds to Part 3 of the CUGPPA.

¶27 Additionally, the official comments to sections 304 and 305 of the UGPPA expand on the mandatory nature of the vetting process. The comment to section 304 states that the petition for appointment "must" contain the information listed because the information is useful to the court in making an informed decision regarding the appointment. The comment to 305 states that "[a]ppointment of a visitor is mandatory.... The visitor serves as the information gathering arm of the court." And it states that the visitor's report "must be in writing and include a list of recommendations or statements." UGPPA § 305 cmt. The comment describes only one exception to visitor appointment: "If the petition is withdrawn prior to the appointment of a visitor, no appointment of a visitor is necessary." Id.

¶28 Colorado law incorporates the UGPPA. The appointment process begins with the filing of a petition containing the required information. See § 15-14-304. "Upon receipt of a petition to establish a guardianship, the court shall set a date and time for hearing the petition and appoint a visitor." § 15-14-305(1). Thereafter, the visitor must interview relevant persons listed in the statute, including the incapacitated person, and must file a report with the court containing recommendations "regarding the appropriateness of guardianship." § 15-14-305(3), (4), (5)(c).

¶29 In appointing a guardian, the court must follow the priority rules set forth in section 15-14-310. While these rules give first priority to family members, they also give the court the authority to appoint the most qualified person, even if that person does not have statutory priority. § 15-14-310(3). Subject to exceptions not relevant here, a direct service or long-term care provider may not also serve as a guardian. § 15-14-310(4), (5).

C. Analysis

¶30 Against this backdrop, we hold that the plain language of section 15-14-305(1) mandates the appointment of a court visitor, and that the plain language of section 15-14-305(3) - (5) requires the court to receive the visitor's report before appointing a guardian. Aren Design, Inc. v. Becerra , 897 P.2d 902, 904 (Colo. App. 1995) ("The use of the word 'shall' in the statute is presumed to indicate a mandatory requirement."). This construction is consistent with the official comments to the UGPPA explaining that the visitor is the information gathering arm of the process who protects the incapacitated person's right to due process. See Runyon , ¶ 12 (finding official comments persuasive). And neither the statute nor the comments contain an exception to this process that could be applied here.

¶31 Finally, we are not persuaded that the court's "good cause" finding requires a different result. The statute contains no "good cause" language permitting the court to appoint a guardian without first appointing a visitor and reviewing the visitor's report. And we may not read language into the statute that does not exist. Boulder Cty. Bd. of Comm'rs v. HealthSouth Corp. , 246 P.3d 948, 954 (Colo. 2011).

IV. Conclusion

¶32 We reverse the court's order appointing ARC as Mr. Arguello's guardian. We remand the case for the court to appoint a visitor, to follow the procedures set forth in sections 15-14-304 and - 305, and to appoint a suitable guardian for Mr. Arguello. In all other respects, the order is affirmed.

JUDGE ROMÁN concurs.

JUDGE WEBB concurs in part and dissents in part.

JUDGE WEBB concurs in part and dissents in part.

¶33 The majority concludes that the trial court did not abuse its discretion in finding that while the issue could not be resolved under section 15-14-310(4), C.R.S. 2018, a potential conflict of interest between Bluesky and Ms. Balsick rendered Ms. Balsick an unsuitable guardian for Mr. Arguello. In my view, this conclusion begs the question whether the court had any discretion to consider conflicts of interest other than those set out in section 15-14-310. Because I read this statute as fully addressing the conflict problem, I respectfully dissent.

¶34 On the one hand, section 15-14-310(1) identifies categories of "otherwise qualified" persons who may be appointed as guardians. The list includes spouses and adult children.

¶35 But spouses have the same potential conflict that the court visitor ascribed to Ms. Balsick. Where a spouse as guardian advocated for reduced services to the protected person, marital assets otherwise spent for such services would be available to the spouse. An adult child who was also a beneficiary of the protected person's will would have a similar conflict in that reducing services to the protected person would increase the value of the probate estate.

¶36 On the other hand, the statute identifies relationships where the potential for conflict is disqualifying. The majority discusses section 15-14-310(4). In addition, subject to certain exceptions, under section 15-14-310(5), "the same professional may not act as an incapacitated person's or a protected person's: (I) Guardian and conservator; or (II) Guardian and direct service provider; or (III) Conservator and direct service provider." Simply put, the General Assembly has squarely taken up the conflict problem.

¶37 Neither ARC nor, for that matter, the majority, cites any authority for the proposition that where a statute has addressed a category-here, conflicts of interest-of prohibited conduct, courts retain discretion to broaden the scope of the prohibition. Nor have I found any in Colorado. To the contrary, "[w]hen the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others." Lunsford v. W. States Life Ins. , 908 P.2d 79, 84 (Colo. 1995) ; see generally In re C.T.G. , 179 P.3d 213, 217 (Colo. App. 2007) ("[T]he General Assembly has spoken and has established only limited circumstances in which a person other than a parent may be awarded visitation rights to a child."). And none of the conflicts identified in section 15-14-310 apply to Ms. Balsick.

¶38 Here, the trial court effectively added a new category of impermissible conflict. But a court does not "add words to [a] statute.... [W]e cannot supply ... missing language...." Turbyne v. People , 151 P.3d 563, 567-68 (Colo. 2007) ; see also Boulder Cty. Bd. of Comm'rs v. HealthSouth Corp. , 246 P.3d 948, 951 (Colo. 2011) (same). As well, the comment to section 310 of the Uniform Guardianship and Protective Proceedings Act, "on which section 15-14-310 is based," In re Estate of Runyon , 2014 COA 181, ¶ 12, 343 P.3d 1072, calls for "[s]trict application of this subsection," Unif. Guardianship & Protective Proceedings Act § 310 cmt. (Unif. Law Comm'n 1997).

¶39 For these reasons, I would vacate the order appointing ARC as guardian and remand the case for the trial court to either identify reasons other than a potential conflict of interest that disqualify Ms. Balsick or appoint her as guardian. If the court again disqualifies Ms. Balsick, then I agree with the majority that ARC cannot be appointed without a visitor's report.

      Ms. Quintana and her husband moved back to Denver in 2016.

      The District of Columbia, four states (Alabama, Hawaii, Massachusetts, and Minnesota), and one United States Territory (the U.S. Virgin Islands), have also adopted the UGPPA.

      We acknowledge that the UGPPA's comments were not formally adopted by the General Assembly and thus, do not have the force of law. Nevertheless, we find them persuasive.

      Our holding should not be construed as favoring or disfavoring the appointment of ARC as guardian. Further, the court retains the discretion to appoint ARC as an emergency guardian pending completion of the further proceedings.


author: Opinion by JUDGE TERRY

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wenston WILLIAMS, Defendant-Appellant.
    Court of Appeals No. 17CA0705
    Colorado Court of Appeals, Division V.
    Announced March 7, 2019
    Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Cynthia M. Mardian, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
    J. Jones and Nieto , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.

   Opinion by JUDGE TERRY

¶ 1 Defendant, Wenston Williams, appeals his judgment of conviction entered after a jury found him guilty of aggravated robbery and second degree assault. He also appeals the sentence imposed after the trial court adjudicated him a habitual criminal.

¶ 2 In Part IV of this opinion, we consider whether two guilty pleas entered at the same hearing constitute two separate convictions for purposes of the habitual criminal sentencing statute, § 18-1.3-801(2)(a)(I), C.R.S. 2018, when the pleas were to two charges brought in separate charging documents, but later joined for trial under Crim. P. 8(a)(2). We conclude that when two charges would have been tried together in one trial but for the defendant's guilty pleas, they cannot be considered "separately brought and tried" under the habitual criminal sentencing statute. See Gimmy v. People , 645 P.2d 262, 267 (Colo. 1982).

¶ 3 We affirm the judgment, reverse the sentence, and remand with directions to impose a new sentence and to correct the mittimus.

I. Background

¶ 4 Defendant robbed an Uber driver (the victim) at knifepoint in an alleyway in Denver. After the jury returned its verdict, the trial court held a hearing to determine whether defendant was a habitual criminal. Based on defendant's prior convictions for first degree assault (heat of passion) and two prior convictions for distribution of a Schedule II controlled substance, the trial court adjudicated him a habitual criminal and sentenced him to sixty-four years in prison.

II. Defendant's Motion to Suppress Pretrial Identification

¶ 5 Defendant contends that the pretrial photo lineup, from which the victim identified him, was impermissibly suggestive. He argues that he was older than the other men in the photo array, the clothing displayed in his photo was unduly suggestive as compared with the clothing worn by the other pictured men, and there were impermissible differences between the photos because some of the pictured men had tattoos. He also contends that the photo array was impermissibly suggestive because of the limited number of photos included. We disagree with all of these contentions.

A. Standard of Review and Applicable Law

¶ 6 The constitutionality of pretrial identification procedures presents a mixed question of law and fact. Bernal v. People , 44 P.3d 184, 190 (Colo. 2002). Because defendant objected, we review for harmless error and will reverse if there is a reasonable possibility that any erroneous admission of the identification contributed to the conviction. People v. Singley , 2015 COA 78M, ¶ 10, 412 P.3d 741.

¶ 7 Suggestive lineups are disapproved of because of the increased likelihood of misidentification and, thus, conviction of the innocent. Bernal , 44 P.3d at 190. Therefore, "each case must be considered on its own facts," and a conviction based on an eyewitness's identification at trial "following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 191 (quoting Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ). This standard requires a two-part analysis. Id.

¶ 8 "First, a court must determine whether the photo array was impermissibly suggestive ...." Id. The defendant bears the burden of proof. Id. "Second, if the defendant's burden is met, the burden shifts to the People to show that despite the improper suggestiveness, the identification was nevertheless reliable under the 'totality of the circumstances.' " Id. (quoting Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ).

¶ 9 Relevant factors to consider in determining whether the identification procedure is impermissibly suggestive include the size of the array and the manner of its presentation, as well as the details of the photographs themselves. Id. An array that includes a photo that is unique in a manner directly related to an important identification factor may be held impermissibly suggestive. People v. Borghesi , 66 P.3d 93, 104 (Colo. 2003) ("[T]he remaining consideration is whether the photographs in the array are so limited that the defendant is the only one to match the witness's description of the perpetrator." (citing Bernal , 44 P.3d at 191 )). The police are not required to "provide a photo array containing only 'exact replicas' of the defendant's picture," but the photos must be "matched by race, approximate age, facial hair, and a number of other characteristics." Bernal , 44 P.3d at 191-92 (quoting People v. Webster , 987 P.2d 836, 839 (Colo. App. 1998) ).

¶ 10 If the court finds a photo array impermissibly suggestive, it must then proceed to the second step of the analysis and determine whether, under the totality of the circumstances, the suggestive procedure created a very substantial likelihood of misidentification. Id. at 192.

B. Discussion

¶ 11 The number of photos in the array - six - and the complained-of details of the photos did not render the lineup impermissibly suggestive.

¶ 12 The victim described the suspect as a black male, thirty to forty years old, five feet eight inches tall, heavily built, and wearing a black hoodie.

¶ 13 At a preliminary hearing, the detective who conducted the photo lineup testified that before he showed the photos to the victim, he gave the victim several standard admonitions about the photo lineup process. The detective showed the victim the six photographs individually. Though the detective did not remember whether the victim viewed any of the photographs twice, he testified that the victim was "pretty quick about" viewing them. The detective was not involved with the case in any other way and did not know the identity of the suspect. Another detective testified that he compiled the photo lineup using photographs from Web Mug based on the characteristics described by the victim.

¶ 14 Nothing about the presentation of the photographs renders the procedures surrounding the array suggestive, and the number of photographs shown was not so small as to make the presentation unfairly suggestive. See People v. Wilford , 111 P.3d 512, 514 (Colo. App. 2004). The question, then, is whether defendant's photograph substantially matches the description given by the victim, and whether it "so stood out from all of the other photographs as to 'suggest to [the victim] that [defendant] was more likely to be the culprit.' " Bernal , 44 P.3d at 191 (quoting Jarrett v. Headley , 802 F.2d 34, 41 (2d Cir. 1986) ) (alteration in original).

¶ 15 The trial court found that, although the filler photos were of men younger than defendant, defendant "in fact, looks close in age to the individuals who are aligned in the photo array, even though they were all in their 30s." Based on that finding, the court concluded that defendant's "age did not stand out as an identifying characteristic among all of the other individuals who are aligned in the photo array."

¶ 16 The court also rejected defendant's argument that his photo improperly stood out because he was wearing a hoodie. The court noted that the hoodie in defendant's photo was red, whereas the victim described the suspect as wearing a black hoodie, and that another man in the photo array was wearing a black hoodie. Under all of the circumstances, including other distinguishing characteristics, such as "the shaved head, the approximate age, and the description provided by [the victim]," the court found that the photo of defendant wearing a hoodie did not cause the array to be unduly suggestive.

¶ 17 The record supports the court's findings. The photo of defendant matched the victim's description of the suspect "by race, approximate age, facial hair, and a number of other characteristics," and the filler photos depicted men who generally fit the witness's description, as required by Bernal . See Singley , ¶ 22.

¶ 18 We are not persuaded that the photo array was impermissibly suggestive because one man was wearing a hospital gown. Nor does the fact that one of the men had a neck tattoo and one had a chest tattoo render the photo array impermissibly suggestive. The neck tattoo on one of the men in the lineup appears only faintly, and given the witness's description that the perpetrator was wearing a hoodie, there is no reason to believe that a neck or chest tattoo would have been visible during the robbery. See People v. Plancarte , 232 P.3d 186, 191 (Colo. App. 2009) (photo lineup was not impermissibly suggestive where several of the men were too light-skinned to fit the witnesses' descriptions and some of them had thin or short facial hair, which did not match the description of the burglar as clean shaven); Wilford , 111 P.3d at 514 (photo array was not impermissibly suggestive where the defendant was wearing a red shirt and was one of two men out of six photos with braids, and the robber was described as having braided hair).

¶ 19 We further conclude that the photo array was not so suggestive "as to give rise to a substantial likelihood of irreparable misidentification." See Wilford , 111 P.3d at 514. Because we conclude that the array was not impermissibly suggestive, we do not need to reach the second prong of the Bernal test. Borghesi , 66 P.3d at 106.

III. Defendant's Motions for a Continuance

A. Motion for Continuance to Retain Counsel of Choice

¶ 20 Defendant contends that the trial court abused its discretion and violated his Sixth Amendment right to his counsel of choice by denying his motion for a continuance. We disagree.

1. Standard of Review and Applicable Law

¶ 21 We will disturb a trial court's ruling on a motion for a continuance only if the trial court abused its discretion. People v. Brown , 2014 CO 25, ¶ 19, 322 P.3d 214. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Rains v. Barber , 2018 CO 61, ¶ 8, 420 P.3d 969.

¶ 22 The Sixth Amendment provides a criminal defendant the right to be represented by counsel of his or her choice. People v. Maestas , 199 P.3d 713, 716 (Colo. 2009). "[A] defendant's right to select an attorney whom he or she trusts is considered to be central to the adversary system and 'of substantial importance to the integrity of the judicial process.' " Brown , ¶ 16 (quoting Rodriguez v. Dist. Court , 719 P.2d 699, 705-06 (Colo. 1986) ). As a result, "an accused who desires and is financially able should be afforded a fair opportunity to secure counsel of his own choice." Anaya v. People , 764 P.2d 779, 781 (Colo. 1988) (quoting Powell v. Alabama , 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ).

¶ 23 Although courts afford this right great deference, the Sixth Amendment does not provide an absolute right to counsel of choice in all cases. Brown , ¶¶ 16-17. Considerations such as judicial efficiency and maintaining the integrity of the judicial process may sometimes outweigh a defendant's right to counsel of choice. Id. at ¶ 17. "For example, a defendant may not use the right to counsel of choice to delay the trial or impede judicial efficiency." Id.

¶ 24 When a defendant moves to continue the trial to replace counsel, the court must balance the defendant's right to counsel against the demands of fairness and efficiency. Id. at ¶ 20. Balancing these competing interests requires the court to consider the following eleven factors:

• the defendant's actions surrounding the request and apparent motive for making the request;
• chosen counsel's availability;
• the length of continuance necessary to accommodate chosen counsel;
• the potential prejudice - beyond mere inconvenience - to the prosecution caused by a delay;
• the inconvenience to witnesses;
• the case's age, both in the judicial system and from the date of the offense;
• the number of continuances already granted in the case;
• the timing of the request to continue;
• the impact of a continuance on the court's docket;
• the victim's position, if the victim's rights act applies; and
• any other case-specific factors necessitating or weighing against further delay.

Id. at ¶ 24.

¶ 25 This is not a mechanical test. Id. at ¶ 20. "[N]o single factor is dispositive and the weight accorded to each factor will vary depending on the specific facts at issue in the case." Id. at ¶ 24.

2. Discussion

¶ 26 In concluding that the interests of justice required denial of defendant's motion for a continuance, the trial court found that defendant could have raised the issue earlier, but instead waited until the first day of trial. The court was suspicious of these circumstances. Though the trial had already been twice delayed, defendant had not yet retained counsel of his choice, and consequently replacement counsel was not available to represent him on the first day of trial. The court reasoned that any continuance to accommodate chosen counsel's entry into the case would be lengthy, and would prejudice the People to "a great extent" because of circumstances surrounding the codefendant, who was set to testify for the prosecution. The court also found that the alleged victim would be adversely impacted by such a delay because, as a result of the trial, he had deferred an overseas trip to visit his terminally ill father. And the court considered the possibility that the victim might leave the country as a case-specific factor that weighed against any further delay in the nearly two-year-old case.

¶ 27 Because the trial court's findings are supported by the record, and the court considered the appropriate factors in balancing defendant's right to have counsel of his choosing against the efficient and effective administration of justice, we conclude that the court did not abuse its discretion in denying defendant's motion for a continuance. Brown , ¶¶ 17, 26 ("Given the highly factual nature of the balancing test, the trial court is undeniably in the best position to determine whether a continuance is appropriate.").

B. Motion for a Continuance to Complete Fingerprint Testing

¶ 28 Defendant next contends that the trial court abused its discretion and violated his constitutional rights by denying his motion for a continuance to allow the People to complete fingerprint testing. He further contends that the completed testing would have allowed for the production of exculpatory evidence. We reject these contentions.

¶ 29 We review a trial court's ruling on discovery matters for an abuse of discretion. People v. Dill , 904 P.2d 1367, 1374 (Colo. App. 1995), aff'd , 927 P.2d 1315 (Colo. 1996).

¶ 30 The prosecution sought to compare defendant's fingerprints to prints found in the victim's car, but the only print from the car that was potentially of sufficient quality to allow for a comparison was of a portion of the finger not typically captured on exemplars. Thus, the comparison results were inconclusive.

¶ 31 At a pretrial hearing, defendant argued that Crim. P. 16 required the prosecution to provide a new fingerprint comparison before trial. But the prosecution did not have possession or control of any exculpatory fingerprint comparison results. See Crim. P. 16(I)(a)(2) (requiring prosecutors to disclose "any material or information within [their] possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor").

¶ 32 To make a comparison as requested by defendant, he would have had to provide a new set of his fingerprints. Defendant's request amounted to a request that the prosecution retake his fingerprints and submit the new exemplars for comparison to those found in the car. However, "the state has no duty to have evidence tested on the speculative basis that it might have some unspecified use for exculpatory purposes." People v. Apodaca , 998 P.2d 25, 30 (Colo. App. 1999) (citing People v. Roark , 643 P.2d 756 (Colo. 1982) ). "Failure to investigate does not constitute suppression of evidence, nor may the defendant compel the state to search out and gather evidence which could be exculpatory." Id. ; see also People v. Norwood , 37 Colo.App. 157, 162, 547 P.2d 273, 278 (1975) (the state's failure to take fingerprints and preserve evidence did not result in a violation of due process where the state did not benefit and investigatory gaps in the prosecution's case were brought out at trial).

¶ 33 Considering the totality of the circumstances, we discern no error in the court's ruling on defendant's motion for a continuance. See Dill , 904 P.2d at 1374.

IV. Habitual Criminal Sentencing Statute

¶ 34 Defendant contends that the trial court erroneously sentenced him under the habitual criminal sentencing statute because two of his three prior felony convictions were permissively joined for trial. We agree and therefore remand this case to the trial court for resentencing without the habitual criminal sentence enhancer.

A. Standard of Review and Statutory Construction Principles

¶ 35 Our review of statutory provisions is de novo. Cowen v. People , 2018 CO 96, ¶ 11, 431 P.3d 215.

¶ 36 When interpreting a statute, our primary purpose is to ascertain and give effect to the General Assembly's intent. Id. We start by examining the plain meaning of the statutory language. Id. If a term is not defined in a statute, we construe the term in accordance with its ordinary or natural meaning. Id. at ¶ 14. We give consistent effect to all parts of the statute and construe each provision in harmony with the overall statutory design. Id. at ¶ 13.

B. "Charges Separately Brought and Tried" Element

¶ 37 For a defendant to be adjudged a habitual criminal under section 18-1.3-801(2)(a)(I), the prosecution must prove beyond a reasonable doubt that the defendant, having been convicted of a felony, "has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes." People v. Nunn , 148 P.3d 222, 225 (Colo. App. 2006).

¶ 38 Charges are separately brought where they are "in separate informations, with separate docket numbers, arising out of separate criminal incidents," and a predicate conviction can result from either a conviction following trial or a guilty plea. Gimmy , 645 P.2d at 267 (citing People v. Goodwin , 197 Colo. 47, 593 P.2d 326 (1979) ). Entry of guilty pleas to multiple offenses during the same proceeding satisfies the requirement of "charges separately brought and tried" where the "predicate convictions arose from charges which, had they not been adjudicated through the entry of guilty pleas, would have been tried separately." Id.

C. Discussion

¶ 39 The parties do not dispute that defendant had previously been convicted of three felonies that were separately filed under different case numbers. Defendant argues, however, that because the two cases charging him with distribution of a Schedule II controlled substance were joined for trial under Crim. P. 13, they would have been tried together had he not entered guilty pleas and, thus, his previous convictions for distribution should be treated as one conviction for habitual criminal purposes.

¶ 40 The People argue that because the charges were for separate and distinct criminal episodes under the mandatory joinder statute, see § 18-1-408(2), C.R.S. 2018, they could have been tried separately. Because the offenses occurred a month and a half apart, the People argue that this was not one ongoing criminal episode and that, because the two charges and two cases were joined permissively, they should not be considered one conviction under the habitual criminal sentencing statute.

¶ 41 Even if we assume that the charges arose out of separate and distinct criminal episodes and therefore could have been tried separately, where, as here, the charges were joined for trial - albeit permissively - and would have been tried together but for defendant's guilty pleas, the plain language of the habitual criminal sentencing statute and Colorado Supreme Court precedent require us to consider defendant's convictions for distribution as one conviction under the habitual criminal sentencing statute. See § 18-1.3-801(2)(a)(I) ("[E]very person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, ... of a felony ... shall be adjudged an habitual criminal ....") (emphasis added); Gimmy , 645 P.2d at 267 ("Where the charges against the defendants were separately brought and would have been tried separately but for the defendants' decisions to enter guilty pleas, the convictions thereby obtained satisfy the definition of predicate felonies in the habitual criminal statute."); see also Brown v. Dist. Court , 197 Colo. 219, 222, 591 P.2d 99, 100-01 (1979) (noting the District Attorney's argument that "if the seven informations were tried separately they could serve as the basis for a habitual criminal proceeding, but if tried together they could not," the supreme court nevertheless concluded that the trial court's consolidation of informations on the defendant's motion was within its sound discretion).

¶ 42 The record makes clear that defendant's predicate felonies were permissively joined for trial, and that the prosecutor planned to try both charges together. At a pretrial hearing on defendant's distribution charges, the prosecutor requested that the court join the cases based on her intent to admit evidence from both cases in each trial under CRE 404(b) "as evidence of modus operandi, common plan [or] scheme, intent, and ... lack of mistake." Over defendant's objection, the court ordered the "consolidation of the two cases for trial" and set a single trial date. The day before the case went to trial, defendant pleaded guilty to both charges.

¶ 43 We conclude that even if the charges could have been tried separately, they would have been tried together but for defendant's guilty pleas. See Gimmy , 645 P.2d at 267. We are further persuaded by the language of Crim. P. 8 and 13. Crim. P. 8 provides for joinder of offenses, and Crim. P. 13 provides for joinder of indictments and informations. Both rules contemplate a single trial. Crim. P. 13 explicitly states, "[t]he procedure shall be the same as if the prosecution were under such single indictment, information, complaint, or summons and complaint." We therefore conclude that the trial court erred when it determined that the permissive nature of the joinder, as compared to mandatory joinder, rendered the charges separately brought and tried under the habitual criminal sentencing statute. The mandatory joinder rule is relevant to whether the convictions arose out of separate and distinct criminal episodes, see People v. Jones , 967 P.2d 166, 169 (Colo. App. 1997), but there is no authority for its application to the "separately brought and tried" element of the statute.

¶ 44 Under the mandatory joinder statute, § 18-1-408(2), if the prosecuting attorney elects to proceed on several known offenses, all such offenses "must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode." Crim. P. 8(a)(1) employs the same language as the mandatory joinder statute. But under subsection (a)(2) of the Rule, which is titled "permissive joinder," "[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged ... are of the same or similar character or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Crim. P. 8(a)(2). Thus, joinder is mandatory where the offenses arise from the same criminal episode, but joinder is permissive where the offenses arise from broader circumstances that do not necessarily constitute one criminal episode.

¶ 45 The supreme court has interpreted "[a] series of acts arising from the same criminal episode" as including "physical acts that are committed simultaneously or in close sequence, that occur in the same place or closely related places, and that form part of a schematic whole." Jones , 967 P.2d at 169-70 (quoting Jeffrey v. Dist. Court , 626 P.2d 631, 639 (Colo. 1981) ). This meaning also applies "[i]n determining the quantum of proof required to show separate and distinct criminal episodes in an habitual criminal proceeding." Id. at 169.

¶ 46 Considering these statutes and rules together, the reader would conclude that, if two or more offenses arose out of separate criminal episodes, but were of a similar character, they could be joined together for trial, yet such joinder would not be required. See Crim. P. 8(a)(2). Under that scenario, the two separate offenses, if they were tried separately and resulted in felony convictions, could qualify as separate predicate felonies for purposes of the habitual criminal sentencing statute. See § 18-1.3-801(2)(a)(I). However, the "separately brought" element, which requires a showing that the convictions arose out of separate criminal incidents, and the "separately tried" element remain distinct elements and each must be proved beyond a reasonable doubt.

¶ 47 In sum, the People's focus on whether the joinder was mandatory or permissive is misplaced. Instead, the focus is properly on whether the charged offenses would have been tried separately. Because the offenses here were, in fact, joined for trial, they would not have been tried separately. Therefore, under Gimmy , defendant was not eligible for habitual criminal sentencing based on those convictions.

¶ 48 The habitual criminal sentencing statute and Gimmy require that the prosecution prove beyond a reasonable doubt that defendant's predicate felony convictions were separately brought and would have been separately tried had defendant not entered guilty pleas. See § 18-1.3-801(2)(a)(I) ; Gimmy , 645 P.2d at 267. Because the People failed to meet their burden to prove these facts, defendant's adjudication as a habitual criminal is reversed, as is his sentence for that adjudication.

V. Conclusion

¶ 49 The judgment of conviction is affirmed. The case is remanded for the trial court to impose a new sentence in accordance with this opinion and to correct the mittimus.

JUDGE J. JONES and JUDGE NIETO concur.