author: Judge CASEBOLT.

text:
    In the Matter of the PETITION OF R.A. and T.A., Petitioners-Appellants, For the Adoption of C.A., a child, and Concerning N.F. and A.F., Appellees, and The State of Colorado, Intervenor-Appellee.
    No. 01CA1739.
    Colorado Court of Appeals, Div. I.
    Sept. 26, 2002.
    Certiorari Denied April 14, 2003.

      Beltz & West, W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, for Petitioners-Appellants.
    Alan L. Bugg & Associates, P.C., Alan L. Bugg, Colorado Springs, Colorado, for Appel-lees.
    Ken Salazar, Attorney General, Steven S. Knowlton, Assistant Attorney General, Denver, Colorado, for Intervenor-Appellee.
   Opinion by

Judge CASEBOLT.

In this adoption proceeding concerning the minor child, C.A., petitioners, R.A. and TA., the child's adoptive parents, appeal a declaratory judgment entered in favor of N.F. and AF., the child's paternal grandparents, upholding the constitutionality of the grandparent visitation statute, § 19-1-117, CRS. 2002. We affirm in part and remand for further proceedings.

The child's father died in 1994, and his mother died in 1997. Petitioners, his maternal aunt and uncle, were appointed as his guardians in 1997 pursuant to the mother's testamentary designation.

Following the guardianship designation, the parties stipulated to a visitation schedule for the grandparents. When petitioners commenced this adoption proceeding, the grandparents filed a conditional objection to the adoption and a request for visitation pursuant to § 19-1-117(1)(c), asserting that they had helped raise the child and that he had spent a significant period in their home before his parents' deaths. They alleged that their relationship with the child was very close and that the adoption would not be in his best interests unless adequate provisions were made to ensure continuation of reasonable visitation.

Following an evidentiary hearing, the magistrate determined that the child's best interests would be served by adoption, and he entered a final decree to that effect. Also in the decree, the magistrate found that petitioners had acted in good faith concerning the grandparents' requests for visitation, but had failed to recognize the child's need for separate attention from the grandparents. The magistrate then set forth a specific visitation schedule for the grandparents. The magistrate noted that petitioners had challenged the constitutionality of § 19-1-117 both facially and as applied, but held that he lacked authority to address that issue.

Neither party directly appealed the magistrate's decree. However, petitioners subsequently filed a motion in the adoption proceeding for declaratory judgment and a request that the district court determine whether §$ 19-1-117 is constitutional, both facially and as applied. The state attorney general intervened for the limited purpose of addressing the challenge to § 19-1-117.

The district court upheld the facial constitutionality of the statute, but did not address its constitutionality as applied. This appeal followed.

I.

Petitioners first contend the district court erred in determining that, on its face, § 19-1-117 does not violate the due process guarantees of the federal and state constitutions. We disagree.

As pertinent here, § 19-1-117(1) permits a grandparent to seek a visitation order when there is or has been "a child custody case or a case concerning the allocation of parental responsibilities relating to that child." The statute defines such a case in three ways:

(a) That the marriage of the child's parents has been declared invalid or has been dissolved by a court or that a court has entered a decree of legal separation with regard to such marriage;
(b) That legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child's parent or that the child has been placed outside of and does not reside in the home of the child's parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or
(c) That the child's parent, who is the child of the grandparent, has died.

A division of this court recently reviewed the constitutionality of § 19-1-117 in light of the Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The division declined to find § 19-1-117 facially unconstitutional. Instead, it read the statute as requiring courts to give special significance to the parent's decisions concerning grandparent visitation in the context of the best interests of the child. In re Custody of C.M., 2002 WL 31116778, - P.3d - (Colo.App. No. 00CA2313, Sept. 12, 2002).

The C.M. division noted that, unlike the Washington statute found unconstitutional in Troxel, § 19-1-117 employs the best interests standard, limits standing to grandparents, and permits a petition for visitation only if there is or has been a child custody case. - Relying upon In re Custody of CCRS, 892 P.2d 246 (Colo.1995), the division explained that the best interests standard must be applied with a presumption that the biological parent has the primary right to custody. The division concluded that, because § 19-1-117 is more narrowly drawn than the statute at issue in Troxel and can be construed to incorporate the presumption favoring custodial parents inherent in the best interests standard, it satisfies the constitutional requirements set forth by Troxel.

We agree with the finding of facial constitutionality in C.M. Although petitioners further argue that § 19-1-117 also deprives them of due process under the Colorado Constitution, they have identified no specific state constitutional requirements that differ from or are more exacting than those set forth in Troxel. Thus, we need not separate ly examine the facial constitutionality of § 19-1-117 under the Colorado Constitution. See In re Petition of M.G., 58 P.3d 1145 (Colo.App.2002).

Finally, petitioners suggest due process requires that parental unfitness be shown before the best interests analysis is undertaken. However, the supreme court has determined that due process does not impose such a requirement. See In re Custody of C.C.R.S., supra (in a custody dispute between biological and psychological parents, the best interests of the child are paramount).

Accordingly, we conclude that § 19-1-117 is constitutional on its face.

IL

Petitioners next assert that an frrec-oncilable conflict exists between § 19-1-117(1)(b) and (c). Essentially, they contend that under § 19-1-117(1)(b), grandparents may seek a visitation order when either legal custody of the child has been given to a party other than the child's parent or the child has been placed outside of and does not reside in the home of his parent. However, the ability to seek visitation under subsection (b) terminates when either the child is placed for adoption or an adoption of that child has been legally finalized, which petitioners contend has occurred here. In contrast to this termination provision, under § 19-1-117(1)(c) a grandparent may nevertheless seek visitation even after an adoption if a parent is deceased. We perceive no irreconcilable conflict.

First, we note that grandparents did not rely upon § 19-1-117(1)(b) in seeking visitation. Instead, they relied solely upon § 19-1-117(1)(c).

Second, the so-called "adoption exclusion" in § 19-1-117(1)(b) has been construed to apply only when a child becomes available for adoption because the natural parents' rights have been legally terminated. See People in Interest of N.S., 821 P.2d 931 (Colo.App.1991). Thus, § 19-1-117(1)(b) creates an interim statutory right in favor of grandparents to visit grandchildren until placement of the child for adoption or entry of a final decree of adoption. See also People in Interest of JJW.W., 986 P.2d 599 (Colo. App.1997).

Accordingly, the adoption exclusion of § 19-1-117(1)(b) is not applicable here, despite the adoption, because the biological parents' rights were not terminated in depen-deney and neglect, relinquishment, or similar proceedings; rather, their deaths provide the sole basis both for grandparents' request and for the adoption. Hence, we perceive no irreconcilable conflict between subsections (b) and (c). See also In re Marriage of Aragon, 764 P.2d 419 (Colo.App.1988)(grandparents' visitation rights were derived from § 19-1-117(1)(a), because the parents' marriage had been dissolved and the child was adopted by his stepfather); cf People in Interest of N.S., supro (distinguishing Ara-gon and applying adoption exclusion of § 19-1-117(1)(b) where parents' legal rights were terminated in dependency and neglect proceeding).

IIL

Petitioners next contend the district court erred in determining that § 19-1-117 does not violate their right to equal protection. Again, we disagree.

Adoption is the act by which relations of maternity, paternity, and affiliation become legally recognized between persons not so related by birth. See Graham v. Francis, 83 Colo. 346, 265 P. 690 (1928).

Adoption is not recognized by the common law. Wright v. Wysowateky, 147 Colo. 317, 363 P.2d 1046 (1961). It is a creature of statute and is governed by the provisions of § 19-5-200.2, et seq., C.R.S. 2002. See In re Petition of S.O., 795 P.2d 254 (Colo.1990). Therefore, it is within the power of the General Assembly to define and regulate adoption. See In re Adoption of T.K.J., 931 P.2d 488 (Colo.App.1996).

The equal protection guarantee of the United States Constitution requires like treatment of persons who are similarly situated. Rodriguez v. Schutt, 914 P.2d 921 (Colo.1996).

When a statute is challenged as violating equal protection because it treats two groups differently, the threshold question is whether those two groups are similarly situated. If they are not similarly situated, the equal protection guarantee is not implicated. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo.1997).

A.

Petitioners assert that, normally, in an adoption, the biological parents' rights are terminated and the grandparents' associated rights to visitation are also terminated. Here, however, because the rights of the biological parents were not terminated, but rather lapsed because of death, grandparents are able to seek visitation. This dichotomy, petitioners assert, results in unequal treatment of similarly situated classes of adoptive parents of children whose parents died and those whose parents' rights were terminated. We disagree.

For purposes of determining grandparent visitation, § 19-1-117(1) distinguishes between those two classes of adoptive parents. However, these two classes are not similarly situated.

For example, a stepparent adopting a child born to his or her spouse is not similarly situated to a person adopting a child whose biological parents' rights have been terminated. The biological parent who consents to a stepparent adoption retains parental rights. See § 19-5-208, C.R.S.2002, Practically speaking, the adopting stepparent knows of and must acknowledge preexisting familial relationships between the child and his or her relatives. In contrast, persons adopting a child whose biological parents' rights have been terminated do not necessarily know of and are not required to acknowledge such relationships.

Moreover, when adoption follows termination of parental rights, the family unit has already been dissolved through legal means, and the adoptive parents take the child unfettered by legal relationships. In contrast, adoption following the death of one or both biological parents does not follow dissolution of the original family unit-indeed, preexisting extended family relationships may continue.

Thus, we reject the contention that these two classes of adoptive parents are similarly situated.

B.

Section 19-5-211, C.R.S.2002, provides that after the entry of a final adoption decree, the person adopted shall be, to all intents and purposes, the child of the adoptive parent. Petitioners maintain that this provision makes adoptive parents and biological parents similarly situated. However, petitioners reason that § 19-1-117 treats adoptive parents and biological parents differently because it allows grandparents to seek visitation of an adopted child, but not of a biological child, unless there is or has been a "custody case." We disagree.

It is true that, in passing the adoption statutes, the General Assembly intended to place the adopted child in the same position as a biological child in the family. See In re Marriage of Ashlock, 629 P.2d 1108 (Colo.App.1981). However, granting adopted children the same rights as biological children does not automatically render adoptive parents similarly situated to biological parents for the purpose of equal protection analysis.

Natural parents who are not involved in "custody cases" have had little or no state involvement in their familial relationships. In contrast, adoptive parents by definition have had significant state involvement in the creation of their relationships, including, for example, the termination of biological parental rights, the placement of foster children, and the creation of the parent-child status by operation of state law. See People in Interest of C.E., 923 P.2d 383 (Colo.App.1996)(biological parent has a liberty interest in the continuation of the parental relationship that is different from the interest of a prospective adoptive parent; therefore, a biological parent and an extended family member with whom a child has no existing custodial relationship are not similarly situated for equal protection purposes).

Biological parents are subject to the pressures of familial bonds and relationships to allow grandparent visitation. They know what the grandparents have to offer to the grandchildren and thus have a basis for reasoned decisions as to how much, if any, contact to allow. Cf. Troxel v. Granville, supra (in the first instance, the parent decides whether grandparent visitation would benefit the child).

In contrast, adoptive parents usually have much more restricted knowledge upon which to base a judgment concerning the involvement of the grandparents. No biological ties, let alone familial ones, give adoptive parents the same basis for a decision concerning visitation.

For these reasons, we conclude that adoptive parents are not similarly situated to biological parents for purposes of an equal protection analysis of $ 19-1-117. Accordingly, we need not further address petition-erg' equal protection argument.

IV.

Petitioners contend that § 19-1-117 was applied to them in an unconstitutional manner. We conclude that further proceedings are required concerning this issue.

We first note that the district court did not address this contention. That fact precludes our review, see Bolen v. Kathleen V. Ferry Trust, 949 P.2d 82 (Colo.App.1997), and necessitates remand.

Moreover, when an appellate court sets forth new standards for resolving an issue, basic fairness may require a remand to the trial court for further proceedings. See People v. Schneider, 25 P.3d 755 (Colo.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo.1997).

Here, CM. sets forth a new standard for determining the propriety of grandparent visitation by requiring courts to give special significance to the parents' decisions. Because the magistrate did not have the benefit of CM. and therefore made no findings concerning that standard, and because the district court also did not address the as-applied argument, a remand is appropriate.

On remand, the district court shall determine whether the magistrate gave special significance to petitioners' wishes. Because petitioners did not directly appeal the visitation provisions of the final decree, however, we will not vacate that part of the decree at this time. Cf. In re Custody of C.M., supra (where appeal taken from visitation order, appellate court vacated order and directed trial court to redetermine issue on remand).

If, on remand, the district court determines that the magistrate gave no special significance to petitioners' wishes, or it cannot discern whether the magistrate did so, it shall vacate that portion of the decree granting visitation and shall remand to the magistrate for further proceedings. If it determines that the magistrate did so, the judgment shall stand affirmed.

That part of the judgment determining that § 19-1-117 is facially constitutional is affirmed, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Judge METZGER and Judge WEBB concur.


source: Caselaw Access Project

author: Judge MARQUEZ.

license: Public Domain

text:
    O.D. WOOLSEY, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF CORRECTIONS, Joe Ortiz, Larry Embry, Randy Fussi (Foshee), Guy Doubleday, and Ed Guffy, Defendants-Appellants.
    No. 01CA2013.
    Colorado Court of Appeals, Div. I.
    Sept. 26, 2002.
    As Modified on Denial of Rehearing Nov. 21, 2002.
    Certiorari Denied April 7, 2003.

      O.D. Woolsey, Pro Se.
    Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Denver, Colorado, for Defendants-Appellants.

       Sitting by assignment of the Chief Justice under provisions of Colo..Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge MARQUEZ.

In this C.R.C.P. 106(a)(4) action, defendants, the Colorado Department of Corrections (DOC), Joe Ortiz, Larry Embry, Randy Fussi (Foshee), Guy Doubleday, and Ed Guffy, appeal the district court judgment reversing the prison disciplinary action taken against plaintiff, .D. Woolsey. We reverse and remand.

Plaintiff, a DOC inmate, was found guilty of sexual misconduct and disobeying a lawful order, both class II violations of the DOC Code of Penal Discipline (COPD).

After his administrative appeal was denied, plaintiff commenced this action in the district court. Plaintiff asserted that defendants failed to conduct an independent investigation of the charges within two working days of the date of discovery of the violations, failed to provide him with timely service of the Notice of Charges, failed to conduct the hearing within the time required by the COPD, and deprived him of his right to call witnesses and present evidence at the hear-

ing.

The district court reversed plaintiff's disciplinary convictions after concluding that defendants had failed to conduct a timely independent review of the charges. Defendants moved to amend the judgment pursuant to C.R.C.P. 59, which the district court denied.

I.

Defendants contend that the DOC correctly interpreted its own regulation and that the district court erred in concluding that they failed to conduct a timely independent review. We agree.

In construing an administrative rule or regulation, we apply the same rules of construction as we would in interpreting a statute. Lucero v. Dep't of Insts., 942 P.2d 1246 (Colo.App.1996). Consequently, when a term is defined in a rule, that definition governs. See Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo.1998); see also In re Adoption of T.K.J., 931 P.2d 488 (Colo. words and phrases that have acquired particular meaning, whether by legislative definition or otherwise, must be construed accordingly).

Here, the relevant COPD section provides as follows:

(1) If a Class I or Class II charge(s) is brought against an offender, an appropriate supervisor(s) must conduct an independent review ... as soon as possible but no later than two working days after the date of discovery of the alleged violation.
(2) The supervisory review may be delegated to a staff member at or above the level of Correctional Officer III or the equivalent. The reviewing supervisor may consult with anyone including the offender during his review. I 'f the reviewing supervisor finds cause to be-leve that any violation was committed by the offender charged, he shall approve the Notice of Charge(s).

DOC Reg. 150-01 IV(E)(8)(a) (2001)(empha-sis added).

Another COPD section specifically defines "date of discovery" as "The date at which the initiating officer determined an offense has occurred and the identity of the offender to be charged. This is determined by the date that the initiating officer signs the Notice of Charge." DOC - Reg. 150-01 III(F) (2001)(emphasis added).

In determining that the independent review was untimely, the district court relied on the fact that the incident leading to the charges occurred on December 28, 1999. However, based upon a plain reading of the above COPD provisions, the two-day period was triggered on the date the initiating officer signed the Notice of Charges, January 13, 2000. We note that the regulation uses the term "initiating officer" while the Notice of Charges used the term "initiating employee." We understand the two terms to have the same meaning.

Thus, because the independent review of the charges was conducted on January 14, 2000, defendants fully complied with DOC Reg. 150-01 IV(E)®)(a).

We acknowledge that another COPD provision states that the Notice of Charges "should contain the place, date and time of the incident, [and] date of discovery." DOC Reg. 150-01 IV(E)(G)(c)(2) (2001)(emphasis added). To the extent this provision appears inconsistent with the specific definition equating date of discovery with the date the Notice of Charges is signed, the specific definition prevails. See generally Dewey v. Hardy, 917 P.2d 305 (Colo.App.1995)(ordinarily, specific provision prevails over general provision).

In sum, we conclude that the district court erred in reversing plaintiff's disciplinary convictions based upon a determination that defendants failed to conduct a timely independent review of the charges.

IL.

Although the district court did not substantively address plaintiff's other asserted bases for reversal, because those issues are before us on appeal and do not require factual development in the district court, we address them in the interest of judicial efficiency. See Ross v. Denver Dep't of Health & Hosps., 883 P.2d 516 (Colo.App.1994).

A.

- Plaintiff argued that the district court should overturn his disciplinary convictions because defendants failed to serve him with the Notice of Charges and conduct the administrative hearing in a timely manner. We disagree.

Plaintiff relies on DOC Reg. 150-01 IV(E)(8)(c)(1) and IV(E)(8)(F) (2001). Those sections provide, in pertinent part, that the accused inmate "should" receive a written notice of charges no later than six working days after the discovery of the alleged violation and that the hearing "should" be held no later than seven working days after the discovery of the alleged violation.

In Washington v. Crowder, 12 P.3d 857 (Colo.App.2000), a division of this court concluded that the term "should" in these see-tions means that the stated time periods are not mandatory. Thus, it held that the DOC's failure to adhere strictly to these times did not deprive the hearing officer of jurisdiction to render a decision in the matter.

We agree with the analysis and the conclusion in Washington v. Crowder. Furthermore, we are not persuaded any delay in the service or the hearing in this case justifies reversal of plaintiff's disciplinary convictions.

B.

In his brief to the district court, plaintiff also argued that defendants violated his right to call witnesses and present testimony at the administrative hearing. We are not persuaded.

An inmate in a disciplinary hearing enjoys only the most basic due process rights. See Washington v. Atherton, 6 P.8d 346 (Colo.App.2000). Generally, the requirements of due process are satisfied in such a proceeding if an inmate is given written notice of the charge, an opportunity to call witnesses and present documentary evidence in his or her defense, and a written statement of the findings, the evidence relied upon, and the reasons for the disciplinary action. Villa v. Gunter, 862 P.2d 1088 (Colo.App.1998).

Here, based upon our review of the audiotape of the administrative hearing, we are satisfied that the hearing officer did not violate plaintiff's due process rights or his rights under the COPD. Plaintiff was provided a copy of the Notice of Charges by the initiating employee. That notice contained the initiating employee's name. The hearing officer made all reasonable efforts to assist plaintiff in presenting his case. Specifically, the hearing officer allowed plaintiff to designate witnesses he wished to call, and plaintiff designated four witnesses, but did not designate the initiating employee. The hearing officer attempted to contact those witnesses, and afforded plaintiff extensive time and leeway in testifying on his own behalf, Furthermore, the hearing officer even continued the hearing twice to allow plaintiff additional time to identify a guard as a potential witness.

At the administrative hearing, the hearing officer did refuse to allow plaintiff to call two witnesses. However, in both instances the hearing officer made findings to support those refusals. See DOC Reg. 150-01 IV(E)(®8)()(1) (2001)(requiring hearing officer to indicate on the record the grounds for denying request to call a witness). Specifically, the hearing officer refused to allow one witness whose testimony at best would have constituted hearsay from an unknown declarant. The hearing officer also refused to allow plaintiff to call the initiating employee as a witness after noting that plaintiff had failed to name that witness ten days earlier on the initial hearing date and that the case had already been continued twice.

In sum, we are satisfied that the hearing officer provided plaintiff with an adequate opportunity to call witnesses and present evidence at the hearing.

C.

Finally, insofar as plaintiff argued in the district court that there was insufficient evidence to support the hearing officer's findings of guilt, we reject that argument.

Review of a prison disciplinary decision is limited to whether prison officials exceeded their jurisdiction or abused their discretion. Tebbetts v. Whitson, 956 P.2d 639 (Colo.App.1997); see C.R.C.P. 106(a)(4)(D. Under this standard, the prison officials' decision must be upheld if there is "some evi-denee" in the record to support it. Kodama v. Johnson, 786 P.2d 417 (Colo.1990); Washington v. Crowder, supra.

Based upon our review of the written administrative record and the hearing audiotape, including plaintiff's own testimony, we are satisfied that some evidence supports the hearing officer's decision. Consequently, we must uphold that decision. See Kodama v. Johnson, supra.

The district court's judgment is reversed, and the case is remanded for reinstatement of the hearing officer's determination of guilt and the penalty imposed.

METZGER and RULAND , JJ., concur.


author: Judge METZGER.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Francisco Javier PRECIADO-FLORES, Defendant-Appellant.
    No. 99CA2533.
    Colorado Court of Appeals, Div. I.
    Oct. 10, 2002.
    Certiorari Denied April 14, 2003.

      Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge METZGER.

Defendant, Francisco Javier Preciado, Flores, appeals the judgment of conviction entered on a jury verdict finding him guilty of accessory to criminally negligent homicide. He also appeals his sentence. We affirm.

According to the evidence at trial, defendant, age nineteen, and an acquaintance, age sixteen, were alone in defendant's apartment. Late that afternoon, someone came to the apartment and shot the acquaintance, who later died.

Police initially suspected defendant of the killing and charged him with second degree murder. - During interrogation, defendant first said the acquaintance had shot himself accidentally. Because of the wound's location, police were unconvinced it was self-inflicted.

Defendant next said he was falling asleep when the gun went off and he did not know what had happened. Later, defendant said the gun went off during playful wrestling.

However, ballistics tests showed that the bullet taken from the victim's body did not match the gun found in defendant's apartment. Further tests were positive for gunshot residue on defendant's shirt but not on his hands.

These results led police to revise their theory of the crime. Believing defendant had been a witness to the shooting but was concealing the identity of the shooter, the prosecutor reduced the charge to accessory to second degree murder. A jury convicted defendant of the lesser offense of accessory to criminally negligent homicide. He was sentenced to six years in the Department of Corrections.

L.

Defendant contends the trial court erred in denying his motion to suppress statements he made while in police custody. We disagree.

A.

First, we reject the contention of defendant, a Mexican citizen, that his custodial statements must be suppressed because they were made in violation of his rights under the Vienna Convention to contact his consulate before being interrogated.

Both Mexico and the United States are signatories to the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 71, 34 U.N.T.S. 262. Article 86 of the Convention mandates, in part, "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of the detention of one of its citizens upon his or her request, and that "said authorities shall inform the person concerned without delay of his rights" to communicate with officials and receive consular aid.

It is not entirely clear whether the Vienna Convention creates a privately enforceable right. The Supreme Court has said the treaty "arguably" creates an individual right to judicial enforcement. Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998); see also United States v. Minjares-Alvarez, 264 F.3d 980 (10th Cir.2001); United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.2000). The state courts of Colorado have not decided the issue.

Those courts that recognize a possible private right generally have held that the defendant must show prejudice. See, e.g., Breard v. Greene, supra (suggesting that, absent an effect on the trial, violation of the Vienna Convention will not warrant reversal); United States v. Nai Fook Li, 206 F.3d 56, 78 (1st Cir.2000)(an individual cannot raise Article 86 violations as a defense to criminal prosecution); United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir.2001)(application of the exclusionary rule in a criminal case does not further the purpose of Article 36); United States v. Duarte-Acero, 296 F.3d 1277 (11th Cir.2002); United States v. Bustos De La Pave, 268 F.3d 157 (2nd Cir.2001); and United States v. Emuegbunam, 268 F.3d 377 (6th Cir.2001)(no right under Article 86 to have evidence excluded or an indictment dismissed in a criminal prosecution); United States v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir.2000); and United States v. Pagan, 196 F.3d 884 (th Cir.1999)(mistrial properly denied where the defendant did not show how notice of Article 36 rights would have influenced evidence presented to jury). See generally Ann K. Wooster, Annotation, Construction and Application of Vienma Convention on Consular Relations (VCCR), Requiring that Foreign Consulate be Notified When One of its Nationals is Arrested, 175 A.L.R. Fed. 248 (2002).

To establish prejudice, a defendant must show (1) he or she did not know of the right to contact a consul or official; (2) he or she would have taken advantage of the right had he or she known of it; and (8) the contact likely would have resulted in assistance to the defendant. United States v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D.Cal.1998).

The exclusionary rule deters only constitutional violations, not statutory or treaty violations. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 LEd.2d 510 (1966); see also People v. Martinez, 898 P.2d 28 (Colo.1995). No other signatory to the Vienna Convention requires suppression of evidence as a remedy for violations, and the United States Department of State has concluded suppression is not an appropriate remedy. See United States v. Lombera-Camorlinga, supra. Other courts have held that the right to contact a consul does not rise to the level of a constitutional right. See, e.g., Murphy v. Netherland, 116 F.3d 97 (4th Cir.1997).

Defendant is a Mexican citizen and resident alien in the United States. His right under the Vienna Convention to have had the Mexican Consulate notified upon his arrest is beyond doubt. However, he was taken into custody after 6:00 p.m. on the day of the shooting and was not informed he had such a right. Detectives did not notify the Consulate until the second day following the shooting.

Finding that defendant had suffered no prejudice, the trial court denied his motion to suppress his custodial statements that were made before the Mexican Consul was notified of his arrest. The court reasoned that, because defendant knowingly, intelligently, and voluntarily waived his rights pursuant to Miranda v. Arizona, 884 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the presence of a consular officer would not have affected the outcome. The record supports this determination, and we will not disturb it on review.

Nevertheless, defendant argues the police have no incentive to follow the Vienna Convention if courts will not enforce it, and he asserts the United States must give foreign nationals the same respect and due process it expects its own nationals to receive abroad. These and related issues have been a matter of great concern to the State Department. See, e.g., Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L.J. 185 (1999). However, we follow the lead of the federal circuit courts and conclude that suppression is not the proper remedy for a violation of the Vienna Convention rights of a foreign national.

B.

We next reject defendant's contention that he did not make a knowing and voluntary waiver of his Miranda rights.

Statements made during a defendant's custodial interrogation must be suppressed unless authorities advise the defendant of his or her rights and the prosecution proves by a preponderance of the evidence that the defendant made a knowing, intelligent, and voluntary waiver of those rights. Miranda v. Arizona, supra; People v. Mejia-Mendoza, 965 P.2d 777 (Colo.1998).

The question whether a waiver is voluntary, knowing, and intelligent involves two distinct facets. First, the waiver must be a voluntary act, which is the result of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must be knowing and intelligent, meaning the defendant must be aware of both the nature of the right and the consequences of the decision to waive it. See People v. Mejia-Mendoza, supra, 965 P.2d at 780.

The voluntariness of a statement is determined by evaluating the totality of the cireumstances under which it was made. However, a statement is involuntary only if coercive governmental conduct played a significant role in obtaining it. See People v. Miranda-Olivas, 41 P.3d 658 (Colo.2001).

Defendant was arrested about 6:15 p.m. About 8:00 p.m., detectives began to interview him. He was read Miranda warnings, which were translated into Spanish for him, and he initialed a written Miranda form in English,. About 8:80 p.m., he agreed to take a polygraph test, he was read his Miranda rights in Spanish again, and the polygraph test was explained to him. He signed another Miranda waiver form and a consent form for the test, both of which were translated into Spanish for him. He took the polygraph test about 9:00 p.m. He failed the test and was notified of the results about 10:80 p.m. Detectives told defendant the victim could not have been killed by a self-inflicted injury. Defendant then told detectives he had accidentally shot the victim during a playful wrestling match. The interview ended about 11:00 p.m.

These facts support the trial court's determination that defendant's waiver of his Miranda rights was knowing, voluntary, and intelligent. He received thorough advise-ments in Spanish at every stage, and there is no evidence of any coercive governmental conduct.

We reject defendant's assertion that the interpreter did not translate the Miranda advisement form into Spanish for him. Although the translator testified she did not remember whether she had translated the form, a detective testified that she did. As fact finder, the court was entitled to credit the testimony of the detective.

Likewise, we disagree with defendant's assertion that the different dialect of Spanish spoken by the translator limited his understanding. The record contains no evidence that the defendant did not understand the translation, and the translator testified she experienced virtually no difficulty.

Finally, we reject defendant's argument that, because he allegedly did not understand the word "waiver" in an advisement given by the court nine months after his arrest, his Miranda waiver was ineffective. There is no evidence the detective used the word "waiver" when advising defendant of his Miranda rights and asking if defendant would speak to detectives despite his right not to do so.

Because defendant's waiver of his Miranda rights was knowing, voluntary, and intelligent, the trial court properly admitted his statements into evidence.

IL.

Defendant maintains the trial court erred in denying his motion for a mistrial because the translator referred at trial to defendant's polygraph test. We disagree.

A mistrial is a drastic remedy, warranted only when no other remedy could ameliorate the prejudice. Because the trial court is in the best position to evaluate the cireumstances, we will not overturn its ruling absent a gross abuse of discretion and prejudice to the defendant. People v. Collins, 730 P.2d 293 (Colo.1986). The mere possibility of prejudice does not warrant reversal, People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977).

Here, on the last day of trial the translator improperly referred to the polygraph test:

Q: Were there any words that he spoke that you did not understand?
A: It was at the end only when we did the polygraph. But at the beginning there was nothing there, really.

Defendant declined a curative instruction and moved for a mistrial. The trial court denied the motion, finding that the misstatement did not tell the jury defendant had failed the test and did not "send a message" to the jury that police officers had formed a belief defendant was lying based on the test results.

Defendant contends the reference to the polygraph test was prejudicial because the jury would have remembered the testimony of the detective that defendant had lied to police. Therefore, he argues the jury could infer he had failed the polygraph test.

This brief and isolated reference to the polygraph test does not rise to the level of prejudice necessary to declare a mistrial, and thus, the trial court did not abuse its discretion in denying the motion.

IIL.

Defendant next contends he is entitled to a new trial because the trial court refused to instruct the jury on duress and to admit additional evidence of duress. We disagree.

A.

Section 18-1-708, C.R.8.2002, defines the defense of duress:

A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist.

To be entitled to an instruction on duress, a defendant must make a threshold showing of (1) an immediate threat of death or bodily injury; (2) a well-grounded fear the threat will be carried out; and (8) no reasonable opportunity to escape the threatened harm. See Bailey v. People, 680 P.2d 1062 (Colo.1981). Any threat must be more than mere speculation or a veiled threat of unspecified future harm. People v. Trujillo, 41 Colo.App. 223, 586 P.2d 235 (1978).

An instruction embodying the defendant's theory of the case must be given if there is any credible evidence to support it. See People v. Lucas, 992 P.2d 619 (Colo.App.1999). The quantum of evidence necessary for a duress instruction is "some credible evidence," alternatively stated as a "scintilla of evidence." See People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo.1998). Unless there is evidence of each element of duress, the trial court may properly disallow the defense as a matter of law and refuse to instruct the Jury on duress. See People v. Lucas, supra; see also United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

Defendant contended at trial he was not an accessory because he had acted under duress in concealing the identity of the killer. However, he did not show the existence of an immediate threat. A detective testified that witnesses to crimes become fearful for their own safety, the possibility of retribution against witnesses generally increases in proportion to the seriousness of the offense, and drug dealing and homicide are serious offenses. Although these facts might allow the inference that a threat existed, they did not show the threat was immediate as opposed to being a "veiled threat of unspecified future harm." People v. Trujillo, supra.

Second, defendant did not show he had a well-grounded fear any threat would be var-ried out. Counsel asserted that defendant feared the threat would be carried out, but there was no evidence of a particular, immediate threat, and therefore no evidence that defendant's fear was well-grounded.

Finally, because defendant failed to present evidence of a particular, immediate threat, he did not show he had no reasonable means of escaping any threat.

Thus, the trial court did not err in rejecting defendant's duress instruction.

B.

Next, we reject defendant's contention the trial court erred by excluding as hearsay additional evidence of duress.

Under the residual hearsay exception, a statement that would otherwise be excluded as hearsay may be allowed if, among other requirements, it is supported by cireumstantial guarantees of trustworthiness. CRE 807; see also People v. Fuller, 788 P.2d 7Al (Colo.1990). The proponent must establish circumstantial guarantees of trustworthiness by a preponderance of the evidence. People v. Bowers, T3 P.2d 1098 (Colo.App. 1988), aff'd, 801 P.2d 511 (Colo.1990).

Admission of evidence under the residual hearsay exception is within the sound diseretion of the trial court, CRE 104(a), and we will overturn the court's decision only for an abuse of discretion. See People v. Jensen, 55 P.3d 135 (Colo.

Here, defendant designated the victim's sister as a witness and asked the court to admit her testimony under CRE 807. The victim's sister had told a detective that someone had paid for her brother's trip to the United States to serve as a drug courier. She said a cousin who could verify this information would not cooperate with authorities because he was afraid of being killed. She named a person she believed had paid defendant to "take the rap" for killing her brother. Further, she told the detective that, at the victim's funeral in Mexico, a drug lord, his bodyguard, and a police officer were gunned down. An article from a Mexican newspaper supported her account of the "blood bath." She was afraid to cooperate openly with police and would not talk to the detective when other relatives were present. She said that, because she was cooperating with authorities, her mother had received threats.

The trial court refused to admit this testimony because it did not have sufficient guarantees of trustworthiness. We cannot say the court abused its discretion.

The victim's sister bad gathered most of her information from talking to other people. She had no independent knowledge of her brother's involvement with drugs, the reason for his trip to the United States, the cireum-stances surrounding his death, or the identity of his killer.

Moreover, the testimony would not have been sufficient to warrant an instruction on the defense of duress. While the victim's sister could have testified about her fear for her own safety following her brother's death, that would have had only a tenuous connection to defendant's duress defense. She could have testified to what she witnessed at her brother's funeral, but not about her speculative theories of the reasons for the shootings. Nor did the newspaper article explain why the shootings occurred. Further, because defendant's interrogation occurred approximately a week before the victim's funeral, the sister's testimony about the funeral and events thereafter would not indicate that defendant had no reasonable means of escaping any threat at the time he was questioned.

Thus, the trial court did not abuse its discretion in refusing to admit this evidence under CRE 807.

IV.

Defendant contends his conviction should be reversed because the jury instruction on the crime of accessory did not define the element of "rendered assistance." We disagree.

A jury instruction that omits the definition of an element of a crime may be harmless or plain error. (Griego v. People, 19 P.3d 1 (Colo.2001).

The inquiry ... "is not whether, in a trial that occurred without the error, a guilty verdiet would surely have been rendered, but whether the guilty verdict actually ren- . dered in this trial was surely unattributable to the error."

Blecha v. People, 962 P.2d 981, 942 (Colo.1998).

According to § 18-8-105(2)(d), C.R.8.2002, a person renders assistance when he or she "[bly force, intimidation, or deception, obstruct[s] anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction, or punishment of [the prineipal]."

Here, the court did not define "rendered assistance," and defendant did not object to this omission. However, the verdict form offered the jury two options to find defendant guilty of accessory to criminally negligent homicide:

a. Concealing or hiding material evidence; or
b. Making an intentionally false statement which was specifically designed to aid or hinder the detection of the person who shot and killed [the vie-tim].

The jury selected the second option, which corresponds to the statutory definition of rendering assistance by deception to obstruct the detection of the principal. Because the verdict form supplied the missing definition, the omission in the instructions was cured. See People v. Longoria, 862 P.2d 266, 270 n. 7 (Colo.1998). f

Defendant nonetheless argues the verdict form was not sufficient to cure the defect because it did not require a determination that he had been successful in obstructing the investigation.

However, § 18-8-105(2)(d) requires only that a defendant "obstruct anyone in the performance of any act which might aid" in detection of the principal. The statute does not require that the act be successful, and defendant has not cited any authority to support his argument.

Accordingly, because the omission of the definition from the instructions was cured by the verdict form, the jury's verdict was surely not attributable to the defect, and the error was harmless.

v.

Defendant next contends his conviction should be vacated because the evidence was not sufficient to support it. We disagree.

Evidence is sufficient when, viewed as a whole and in the light most favorable to the prosecution, it is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. The prosecution must be given the benefit of every reasonable inference. Witness credibility is the province of the jury. See People v. Gonzales, 666 P.2d 123 (Colo.1983).

Here, at trial, detectives testified they believed defendant when he said he had been alone in the apartment with the victim and later when he said he had killed the victim. Because of these statements from their only witness, police did not look for a third person for several months, even though the first forty-eight hours of an investigation are critical. This testimony is sufficient to support a finding that defendant concealed information that might have aided police. See § 18-8-105(2)(d).

Defendant's false statements also give rise to the reasonable inference that he intended to assist the killer. The prosecution was not required to establish defendant's motive. See § 18-8-105(1), C.R.S8.2002, A defendant's conduct and the surrounding circumstances may permit a reasonable inference of intent. People v. Taylor, 655 P.2d 382 (Colo.1982).

Consequently, the evidence and its reasonable inferences are sufficient to support the conviction.

VI.

Defendant contends his conviction must be reversed because the trial court permitted the jury to deliberate during the course of the trial. While we agree that error occurred, we conclude that reversal is not warranted.

Where, as here, the defendant did not object at trial, we review for plain error. Plain error is obvious and grave error that so undermines the fundamental fairness of the trial as to east serious doubt on the reliability of the judgment of conviction. See People v. Garcia, 28 P.3d 340 (Colo.2001).

A conviction will not be overturned for juror misconduct unless the defendant affirmatively establishes that the misconduct occurred and that he or she suffered actual prejudice as a result. See People v. Renaud, 942 P.2d 1253 (Colo.App.1996).

Traditional notions of fairness have required an instruction to jurors that they may not discuss a case during trial recesses. This helps to protect a defendant's constitutional right to a fair trial, and promotes a defendant's due process right to place the burden on the government to prove its case beyond a reasonable doubt. See ABA Standards for Criminal Justice, Trial by Jury Standards, Standard 415-4.1(a) & commentary (Bd ed.1996). Several jurisdictions have confronted the issue of judicially instructed pre-deliberation jurors discussions. The consensus is that, in criminal cases, it is improper for jurors to discuss the evidence before completion of the presentation of evidence and receipt of the trial court's instructions and closing argument of counsel. The reasons given include: (1) the jury system is meant to involve decisionmaking as a collective, deliberative process, and premature deliberations among individual jurors may thwart that goal, see Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985); (2) a juror who expresses views in the presence of other jurors is likely to continue to adhere to that opinion and therefore to approach the case with less than a fully open mind, see Winebrenner v. United States, 147 F.2d 322 (8th Cir.1945); see also State v. Joyner, 289 S.C. 486, 346 S.E.2d 711 (1986); (8) premature deliberations may occur before a defendant has a chanee to present all of his or her evidence and may, therefore, be unfavorable to defendant in violation of the right to a fair and impartial trial, see Commonwealth v. Kerpan, supra; (4) premature conclusions about a case effectively shift the burden to the defendant to change the opinion thus formed, see Winebrenner v. United States, supra; and (5) jurors who engage in predeli-beration do so in a vacuum, without benefit of the court's instructions. See Winebrenner v. United States, supra.

Colorado's Rules of Criminal Procedure do not expressly forbid a trial court from allowing jurors to predeliberate. Crim. P. 24(f). However, the pattern instructions include an admonition to jurors not to "discuss the case either among yourselves or with anyone else during the course of the trial." CJI Crim. 1:04 (1998).

Here, the trial court instructed the jury before opening statements, "When you are all in the jury room together, and there is no one else present, you may discuss the case." Then, at the end of the first day, the court instructed the jury, "Again, don't discuss this case with your spouse or your significant other or any other persons, because we want your judgment, not theirs. You may discuss it amongst yourselves as jurors while you're in the jury room, but don't discuss it with anybody else." Finally, at the end of the second day of trial, the court instructed the jury, "Again, I have to admonish you to please do not discuss this case with other persons in your household. You can discuss it with other jury members while you're in the jury room, but do not discuss it with anyone else." The court also instructed the jury, "[¥lou should keep an open mind throughout the trial and you should reach a decision only during your final deliberations." Defendant did not object to any of these instructions.

In 1999, selected Colorado judicial districts engaged in an innovative jury reform program. The program changed several of the procedures by which traditional juries operate. Jurors were allowed to take notes and use juror notebooks and, in civil cases only, they were allowed to ask questions and to engage in predeliberation discussions. While both the results of the reform program and responses to the pilot project were generally positive, predeliberation discussions were not allowed in criminal eases in Colorado. RL. Kourlis and J. Leopold, Colorado Jury Reform, 29 Colo. Law. 21 (Feb.2000). Thus, the trial court's instructions were error.

Nevertheless, reversal of defendant's conviction is not warranted. The record does not show defendant's trial was conducted unfairly. See United States v. Dean, 76 F.3d 329 (10th Cir.1996). Jurors were instructed to keep an open mind throughout the proceedings, and there is no indication that they reached a conclusion before the case was submitted formally for deliberation.

Moreover, the record does not show that any predeliberation occurred or affected the outcome of the trial. Additionally, because of the overwhelming evidence of defendant's guilt, the reliability of his judgment of conviection is not in doubt.

Thus, the court's erroneous instructions allowing predeliberation here did not deny defendant a fair trial.

VIL.

We also reject defendant's contention that his conviction of the felony of accessory to criminally negligent homicide violated his right to equal protection because the misdemeanor of false reporting punishes the same conduct and imposes a lighter penalty.

The General Assembly has the prerogative to establish the penalties for particular criminal offenses. See Smith v. People, 852 P.2d 420 (Colo.1998). Equal protection requires that statutory classifications be based on differences that are both real in fact and reasonably related to the purposes of criminal legislation. See People v. Finnessey, 747 P.2d 673 (Colo.1987). When two criminal statutes prescribe different penalties for identical conduct, a person convicted and sentenced under the harsher statute has been denied equal protection of the law. See People v. Oliver, 745 P.2d 222 (Colo.1987).

Because this issue involves statutory interpretation and therefore presents questions of law, our review is de novo. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo.2000).

A person commits the crime of false reporting when he or she "makes a report ... to law enforcement authorities pretending to furnish information relating to an offense ... when he or she knows ... that the information is false." Section 18-8-111(1)(c), C.R.S. 2002.

To commit the offense of accessory to a crime, a person must both know the information is false and intend that the false information help the principal. Section 18-8-105, C.R.8.2002.

Punishing the offense of accessory to a crime more severely than the offense of false reporting does not violate equal protection, because the offenses are distinguishable. The level of intent required for commission of a crime often differentiates greater from lesser offenses, and here the levels of intent for accessory and for false reporting are markedly distinct. Thus, the difference between these crimes is real in fact.

Additionally, the intent to help a criminal avoid detection not only is more culpable than simply providing false information, but also creates greater social harm. A deliberate attempt to thwart law enforcement is more destructive than conduct not designed to do so. Therefore, the statutory scheme is reasonably related to the purposes of erimi-nal legislation.

Finally, contrary to defendant's argument, the inference that he intended to assist the principal was properly drawn from his false statements. Because his statements served no apparent purpose other than to help the killer, it was a fair inference he intended to do so.

VIII.

Defendant contends he did not knowingly waive defense counsel's conflict of interest at sentencing and the trial court erred in ruling otherwise. We disagree.

Absent an abuse of discretion, the trial court's determination that a waiver was valid will not be disturbed on review. See People ex rel. Peters v. District Court, 951 P.2d 926 (Colo.1998).

The right to effective assistance of counsel includes the right to conflict-free counsel. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1178, 55 L.Ed.2d 426 (1978). An attorney has a conflict of interest, as relevant here, if the representation of a client "may be materially limited ... by the lawyer's own interests." Colo. RPC 1.7(b).

A defendant may waive the right to conflict-free counsel, Colo. RPC 1.7(a), (b), and both parties here agree that defense counsel's conflict of interest was waivable. A waiver is valid when (1) the defendant is aware of the conflict and its likely effect on the attorney's ability to render effective assistance, and (2) the waiver is voluntary, knowing, and intelligent. See Tyson v. District Court, 891 P.2d 984 (Colo.1995). A waiver is voluntary, knowing, and intelligent when the defendant is aware of and understands the various risks and pitfalls, has the rational capacity to make a decision on the basis of this information, and states clearly and unequivocally a desire to nevertheless hazard those dangers. See People v. Castro, 657 P.2d 932 (Colo.1983).

The record must affirmatively show the trial court fully explained the nature of the conflict and the difficulties defense counsel faced in effective advocacy for the defendant. See People v. Martinez, 869 P.2d 519 (Colo.1994). However, a waiver is not knowing and intelligent where a defendant gives merely pro forma answers to the court's pro forma questions. The trial court should elicit the defendant's narrative response on the record, stating his or her understanding of the right to conflict-free representation and a description of the conflict at issue. See People v. Edebohls, 944 P.2d 552 (Colo.App.1996).

A waiver is valid even though the defendant will receive representation less effective than that provided by conflict-free counsel. See Rodriguez v. District Court, 719 P.2d 699 (Colo.1986).

Defendant's attorney began dating the prosecuting attorney after trial but before sentencing. He disclosed this conflict to the court at the beginning of defendant's sentencing hearing, and the court continued the case for a week on its own motion to allow him to discuss it with defendant. He did so, and defendant signed a written waiver. The deputy district attorney who represented the prosecution at sentencing was not the deputy who had participated in defendant's trial.

At the sentencing hearing, the trial court engaged in a lengthy colloquy with defendant about his waiver. The court asked defendant whether his attorney had discussed the conflict with him, and defendant said he had. The court explained, "[It doesn't look good and it may not be an absolute conflict, but it doesn't look good to have your lawyer involved in a romantic relationship with a woman that prosecuted you before you have been sentenced. Do you understand that?" Defendant answered, "Yes." The court went on to explain, "For example, the argument could be made that your lawyer isn't working as hard for you as he should because he is involved with the lawyer that prosecuted you.... And that's what I mean by conflict." Defendant answered through his interpreter, "Your Honor, I believe that he did work the way he should have." The court then asked if defendant understood his attorney might have a conflict and that the court would appoint a new lawyer at no cost. Defendant asked, "Your Honor, is it that you don't want my lawyer to represent me anymore?" The court answered that the lawyer could continue to represent defendant if the court was satisfied defendant understood he could have a conflict. Defendant answered, "No, Your Honor I would prefer to retain him." Later in the proceeding, the court cautioned defendant, "Do you understand that you won't be able to use this later on in the future as an excuse to come in and try to get a new trial?" Defendant answered, "Yes."

This exchange reveals more than pro for-ma answers to pro forma questions Cf. People v. Edebohls, supra. Defendant acknowledged he was aware of the conflict and its ramifications and had discussed them with his attorney. There is nothing in the record to indicate defendant lacked the rational capacity to make a decision of this type. And, he stated clearly and unequivocally his desire to retain his attorney.

We reject defendant's argument the waiver was defective because at some points in this proceeding he allegedly did not completely understand the court's questions. In those instances, the court clarified the questions, and defendant then told the court he understood.

We also reject defendant's argument that the decision in People v. Castro, supra, requires a different result. There, the supreme court held that a waiver is procedurally defective when the court does not ask defense counsel whether defendant has been advised about the right to conflict-free representation, the nature of the particular conflict, and the risks associated with further representation. While Castro contemplates disclogure by the attorney, followed by inquiry on the part of the court, it clearly holds that the dispositive determination is whether defendant effected a voluntary, knowing, and intelligent waiver. People v. Castro, supra, 657 P.2d at 946 n. 10.

Here, even though defense counsel did not advise the court he had discussed the matter thoroughly with defendant, defendant said he had fully discussed the matter with counsel. Moreover, although the record is clear that defendant signed a written waiver of counsel's conflict of interest, that document itself is not contained in the record. Thus, we must presume the information on the waiver would support the trial court's ruling. See People v. Velarde, 200 Colo. 374, 616 P.2d 104 (1980).

Consequently, we conclude that the trial court properly accepted defendant's waiver of the conflict. See People v. Harlan, 54 P.3d 871 (Colo.2002).

IX.

Defendant contends his sentence is excessive and based on improper considerations and inaccurate findings. We disagree.

Sentencing decisions rest within the sound discretion of the trial court and will not be overturned absent an abuse of that disceretion. See People v. Leske, 957 P.2d 1030 (Colo.1998).

The sentencing court must consider the nature and elements of the offense, the character and record of the defendant and potential for rehabilitation, all aggravating or mitigating cireumstances, the development of respect for the law, the deterrence of crime, and the protection of the public. See People v. Fuller, 791 P.2d 702 (Colo.1990); see also People v. Leske, supra.

Where the court finds aggravating factors that are elements of the offense, it must relate those facts to the particular defendant and circumstances of the crime. People v. Leske, supra.

The court must state on the record the basic reasons for imposing the sentence, but need not make specific findings on each factor. See People v. Fuller, supra; see also People v. Leske, supra. It is sufficient that the record contain evidence to support the reasons for the sentence, a reasonable explanation of the sentence imposed, and information that permits the conclusion the sentencing court considered all essential factors. See People v. Leske, supra.

Accessory to criminally negligent homicide is a class five felony. Section 18-8-105(5), C.R.S.2002. The presumptive sentencing range is one to three years in Department of Corrections. Section 18-1.3-401(1)(a)(V)(A), C.R.8.2002. If aggravating factors are present, the court may impose a sentence that does not exceed twice the maximum sentence. Section 18-1.3-401(6), C.R.8.2002.

Here, the court sentenced defendant to the maximum in the aggravated range, six years.

We reject defendant's contention the sentence was excessive. The court found defendant knew or could describe the killer, but concealed that information and was therefore responsible for preventing police from apprehending the principal. It also noted the killing had "all of the earmarks of a drug ring" and rejected defendant's argument he acted out of fear. Although these aggravating factors are elements of the offense, the trial court properly related those facts to defendant and the circumstances of the crime. And, because the record supports these findings, we also reject defendant's contention to the contrary.

Moreover, there is no evidence the court did not properly consider the mitigating factors. Defendant was nineteen years old, held two jobs, had no eriminal history, did not use drugs, seldom drank alcohol, had the support of his family in Colorado and Mexico, and, according to the presentence investigation report, "was a good candidate for probation." Defense counsel discussed many of these factors in arguing that defendant should be sentenced to probation.

Finally, we reject defendant's contention the court impermissibly penalized him for having been convicted under subsection (e) of § 18-8-105(2) for concealing or destroying evidence, rather than under subsection (d) for obstructing by deception. The court's comparison of defendant's lies to police with the single act of hiding a gun does not indicate an erroneous application of the law, but was merely part of its explanation of the aggravating factors present here.

- Thus, the court did not abuse its discretion in imposing the maximum sentence.

The judgment and sentence are affirmed.

Judge NEY and Judge TAUBMAN concur.


author: Judge MARQUEZ. Judge ROY

text:
    SILVER DOLLAR METROPOLITAN DISTRICT, Petitioner-Appellant, v. Oliver Renard GOLTRA, Respondent-Appellee.
    No. 01CA2298.
    Colorado Court of Appeals, Div. V.
    Oct. 24, 2002.
    Certiorari Denied March 24, 2003.

      Grimshaw & Harring, P.C., Wayne B. Schroeder, Jody Harper Alderman, Julie Ka-ron Blakley, Denver, CO, for Petitioner-Appellant.
    Faegre & Benson LLP, Leslie A. Fields, John R. Sperber, M. Patrick Wilson, Peggy P. Chiu, Denver, CO, for Respondent-Appel-lee.

       Justice RICE does not participate.
      Justice MARTINEZ would grant as to the following issues:
      Whether the court of appeals confused public use and necessity, which are subject to judicial review, with feasibility of the project, which is not. Whether the court of appeals erred by rejecting the District's contention that the trial court abused its discretion by denying the District's motion for immediate possession.

   Opinion by

Judge MARQUEZ.

In this condemnation action, petitioner, Silver Dollar Metropolitan District, appeals the judgment dismissing the petition in condemnation, the order denying its motion for immediate possession of two parcels of real property, and the award of attorney fees and costs. Respondent, Oliver Renard Goltra, is the owner of record. We affirm.

The District is a metropolitan district, created in August 2000 pursuant to the Special District Act, § 32-1-101, et seq., C.R.S$.2002. The District's service plan provides that the District has the power to evaluate, finance, survey, acquire, design, engineer, and construct street and street safety improvements consisting of an alternative access route from Interstate Highway 70 (I-70) to the City of Black Hawk, including alternative tunnel alignments from certain interchanges.

The District decided to pursue a tunnel project that would connect U.S. Highway 6 (U.S.6) to State Highway 119 (SH 119) at the I-70/U.8. 6 interchange. The plan includes construction of a twin bore, 4,000 foot tunnel with the stated purpose of improving safety and access to the gaming areas, particularly Black Hawk.

In connection with the tunnel project, the District contacted respondent and offered to purchase two parcels totaling 5.6 acres. Although respondent had previously allowed the District access to other portions of his property for geotechnical core drilling, he refused to sell the two parcels, and the District instituted this condemnation action. The petition stated it was necessary to acquire a fee simple interest "for construction, operation and maintenance of a roadway and tunnels." The tunnel project is one of five transportation alternatives being evaluated by agencies of the state and federal governments, and when the condemnation action was filed, no one alternative had been selected.

The trial court held a hearing on the Dis-triet's request for immediate possession. The District asserted that immediate possession of the subject property was needed to conduct core drilling and obtain geotechnical information that would allow the District to complete design of the tunnel portals and other structures. According to the District, structural design plans were needed to obtain various permits and move the tunnel project forward. However, to accommodate the core drilling machinery, the District would have to construct access roads, including temporary access over a creek, and dig into the mountainside on both parcels, The District acknowledged that the steep topography of the subject property makes it impossible to acquire the necessary geotechnical information for permits without causing substantial damage and that it would be very difficult to return the property to its preexisting condition after core drilling takes place.

Respondent contended that development of geotechnical data was not necessary to advance the project, that the District could not show that the condemnation action was for a public purpose, that the condemnation action was premature because the District had yet to obtain a number of permits and approvals, and that the District instituted the condemnation action in bad faith.

The trial court determined that the District was properly formed and had the authority to construct the tunnel project. However, the court found that the subject property was not being taken for a public use and that the District would be acting in bad faith by proceeding with the condemnation at this time:

The District is not taking the property for a public purpose, it's being taken to do core drilling and to determine if it's possible that the property can be used for public use in the future. I find that this is not . a taking for a public use, but a taking for exploring and competing with other projects, and I find that this is bad faith to proceed at this time, with this condemnation, when there's no better indication that the project will ever [be] accomplished. The Petitioner's request for immediate possession is denied.
This case is ordered dismissed on the motion of Goltra.

In addition to filing a notice of appeal with this court, the District filed a petition for writ of certiorari with the supreme court. That petition was denied on August 19, 2002.

I.

The District contends that a court may inquire whether property is necessary for the intended purpose, but a court may not inquire whether the proposed project is either feasible or practical. Thus, according to the District, the trial court erred in so inquiring and substituted its judgment for the District's legislative decision on the feasibility of the project. We do not agree that the trial court substituted its judgment regarding the feasibility of the project.

Section 82-1-1004(4), C.R.S.2002, authorizes a metropolitan district to exercise the power of eminent domain in the manner set forth in § 38-1-101, et seq., C.R.8.2002, provided, inter alia, that the taking is necessary and the purpose for the condemnation is judicially determined to be a public use. Denver W. Metro. Dist. v. Geudner, 786 P.2d 434 (Colo.App.1989). The District's authority to condemn is not at issue here.

The determination of necessity is an essential part of the power of eminent domain, and once necessity is determined by legislative act, no further finding or adjudication is required. The determination of necessity is not reviewable by the judiciary absent a showing of fraud or bad faith. City of Thornton v. Farmers Reservoir & Irr. Co., 194 Colo. 526, 575 P.2d 382 (1978); Colo. State Bd. of Land Comm'rs v. Dist. Court, 168 Colo. 338, 430 P.2d 617 (1967).

The question of necessity simply involves the necessity of having the property sought to be taken for the purpose intended. Whether an enterprise is feasible or practicable, and whether it will be a financial success, cannot be questioned in determining necessity, and such questions are not for the court's determination. See Mortensen v. Mortensen, 135 Colo. 167, 309 P.2d 197 (1957); Gibson v. Cann, 28 Colo. 499, 66 P. 879 (1901).

The District points out that the trial court stated, without commenting on necessity, that "this is bad faith to proceed at this time, when there's no better indication that the project will ever [bel accomplished." The District also points to the trial court's statements that it "is unlikely that the District will get the permits for many, many years, and I think it's been established that there's some doubt that it can ever get the permits in order to proceed to do the project." Also, the court found it "very relevant that the District has this huge batch of problems that are going to stop them for sure, for many years from doing this project, and maybe ... ever doing it."

However, as the District acknowledges, the court also observed, "[I]t's not my place to question the feasibility of the project or whether it will work ... and practicality or feasibility has not been considered by me because it's not supposed to be."

In our view, the court's comments did not relate to the feasibility of the tunnel project, but rather to whether there would ever be a project for which the property could be lawfully condemned. As discussed below, such inquiry was relevant to the issue of public use.

IL

The District next contends that the trial court erred by imposing a burden on the District to prove, before it exercises the power of eminent domain, that (1) it "can and will" obtain permits and environmental impact statement (EIS) approval of its project to show that its project will serve a public use, and (2) immediate possession will not lead to irreparable damage to "natural resources," if permits and EIS approval are denied and the project is not completed. We conclude the trial court did not impose such burdens.

A.

Contrary to the District's contention, the trial court did not require it to prove that it "can and will" obtain permits and EIS approval.

Colorado law does not require a condemning authority to obtain development permits or approvals as a condition precedent to going forward with a condemnation proceeding. See Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo.1989)(obtaining a certificate of necessity from the Public Utilities Commission (PUC) not required); Miller v. Pub. Serv. Co., 129 Colo. 518, 272 P.2d 288 (1954)(same); see also Buck v. Dist. Court, 199 Colo. 344, 608 P.2d 350 (1980)(approval of proposal for construction of dust levees from PUC not required).

In its order, the trial court referred to Seadade Industries, Inc. v. Florida Power & Light Co., 245 So.2d 209, 214 (Fla.1971), in which the Florida Supreme Court held:

[TJhe judiciary may require, first, that the condemning authority reasonably demonstrate that the regulations and requirements of the independent authorities can and will be met; second, that condemnation and taking in advance of project approval will not result in irreparable damage to natural resources and environment, should the independent authorities decline to approve the proposed project.

While the trial court stated that the rule in Seadade "sounds like a sound rule for this type of case" and "seemed to fit a lot of problems ... in this case," the court also stated, "I don't really find anything to say that this is the law or the rule in Colorado." The trial court went on to discuss Colorado cases and found them most persuasive. Thus, it based its denial of the District's request for immediate possession on Colorado law and did not apply the rule of Seadade.

B.

Nor did the court require the District to prove that immediate possession will not lead to irreparable damage to natural resources if permits and EIS approval are denied and the project is not completed.

Citing Seadade, supra, and Mortensen, supra, the District asserts that it need not prove that it could ever use the property if it obtained it. However, the trial court did not rely on Seadade in reaching its decision. Rather, the trial court based its determination on bad faith and the lack of a public use. Further, Mortensen pertains to the question of necessity, not public use.

More recently, the supreme court in Public Service Co. v. Shaklee, supra, indicated that the likelihood that a condemning authority will obtain the necessary permits and approvals may be relevant to a trial court's determination of public use:

Although obtaining a certificate of necessity is not a condition precedent to going forward with a condemnation proceeding, the likelihood that such a certificate will be issued by the PUC may be relevant to the trial court's determination of public use. If the utility is unable to obtain the required certificate, and therefore is unable to make any use of the land to be condemned, this fact may sustain the burden of the party opposing condemnation to show that the proposed use is not a public use because the utility will be precluded from making any use whatsoever of the condemned property.

Pub. Serv. Co. v. Shaklee, supra, 784 P.2d at 317 n. 3.

Whether a contemplated use is a public use is an issue for judicial determination. Shaklee v. Dist. Court, 686 P.2d 715 (Colo. 1981). However, no definition of public use has been formulated that is applicable in all eminent domain cases. Pub. Serv. Co. v. Shaklee, supra; Buck v. Dist. Court, supra.

Here, the court was relying on the language in Public Service Co. v. Shaklee and ruling on the question of public use when it made its observation regarding permits.

IIL.

The District further contends that immediate possession is necessary to obtain geotech-nical information, which in turn is necessary to complete the design. It also contends that geotechnical investigation to determine whether a public project can be constructed on a property constitutes a public use, even if the project is not thereafter constructed, Thus, it asserts that the trial court erred by concluding that core drilling for road and tunnel construction does not constitute a public use. We disagree.

In reviewing the condemning authority's finding that a proposed taking is for public use, the court's role is to determine whether the essential purpose of the condemnation is to obtain a public benefit. Denver W. Metro. Dist. v. Geudner, supra. In determining whether a use is public, the court must consider the physical conditions of the country, the needs of the community, the character of the benefit that the projected improvement may confer upon the locality, and the necessities for such improvement in the development of the resources of the state. The owners of the property to be condemned have the burden of proving that the taking is not for a public purpose. Pub. Serv. Co. v. Shaklee, supra.

Here, the needs of the community, the character of the benefit, and the necessities for the project are matters yet to be determined. As stated by the trial court, the condemnation is premature. The record indicates that the District must obtain several permits and approvals, including a 1601 permit, before it can begin actual construction on the tunnel project. A 1601 permit was described as the policy directive of the Colorado Department of Transportation (CDOT) for interchange approval that would allow an entity to tie into an existing interstate highway. Issuance of a 1601 permit requires approval by CDOT and the Federal Highway Administration (FHWA). If the District cannot obtain a 1601 permit, the tunnel project will not be built.

Before the District can complete the fourteen-step 1601 approval process, the tunnel project must be selected as a preferred alternative in the Access to the Gaming Areas EIS. As noted, at the time of the hearing, the tunnel project was one of five transportation alternatives being evaluated in the EIS.

A construction manager for the District testified that he had not received a commitment from CDOT representatives that the tunnel project would be one of the preferred alternatives. He also testified that it is possible that no use would be made of the subject property, that there would be definite damage to the property, and that the future construction of the project lies outside the control of the District.

A project manager for CDOT testified that the EIS might identify more than one preferred alternative, that there was no indication which alternative or alternatives would be selected, and that all the alternatives were under consideration. In addition, the District received a letter from the FHWA in March 2001 encouraging it to wait until the record of decision (ROD) is published before proceeding with its final design.

Performing core drilling on the subject property will benefit the public only if the tunnel project is selected as a preferred alternative in the EIS. Therefore, the trial court correctly determined that at this time, condemning the property for core drilling is not a taking for a public use because the taking would be to determine if it is possible that the property could be used for a public use in the future and to explore and compete with other projects. Thus, the District may be precluded from making any use whatsoeyer of the subject property. See Pub. Serv. Co. v. Shaklee, supro; Denver W. Metro. Dist. v. Geudner, supra.

As the trial court noted, this position is also supported by the supreme court's statement in Colorado & Southern Railway v. District Court, 177 Colo. 162, 166, 498 P.2d 657, 659 (1972):

If the railroad acquires immediate possession of the property by eminent domain and the commission later determines the "particular point of crossing" to be at another location pursuant to [statute], the railroad would have acquired land or an easement that it cannot use, and the one against whom the decree was entered would have had taken from it property actually not subject to condemnation.

While no public utility is involved in the present case, no decree granting immediate possession can be entered without a designation and determination of the property involved. Further, if another transportation alternative is selected, the District would have taken property not subject to condemnation.

Accordingly, under the present cireum-stances, the trial court did not err in concluding that the taking was not for a public use.

IV.

In view of our disposition, we reject the District's contention that the trial court abused its discretion by denying the Dis-triet's motion for immediate possession.

Further, we do not address the District's contention that the trial court improperly determined that the condemnation action was instituted in bad faith. Although the District also seeks to have the award of costs and attorney fees set aside, it does not separately address that award. Thus, we do not address it here.

The judgment and order are affirmed.

Judge NIETO concurs.

Judge ROY dissents.

Judge ROY

dissenting.

I respectfully dissent.

In my view, the trial court and the majority confuse public purpose and necessity, which are subject to judicial review, with feasibility, which is not.

The district was formed to build a public road to improve access to Black Hawk. There are very few purposes which are more public than the construction of a public road by a public entity formed for that purpose.

In this case, feasibility, that is, whether the project can be built, depends on both the engineering feasibility and the approval of several regulatory agencies. In my view, it is up to the district to determine the order in which these matters are to be addressed. There is no point in having the necessary permits if the project cannot be constructed as proposed. And, while the reciprocal is true, that is the project cannot be constructed without the necessary permits, the granting or denial of permits is subject to negotiation, compromise, and accommodation.

The trial court found, and the majority does not have to address, that the district acted in bad faith with respect to necessity. That finding was premised on the district's choice to determine the engineering feasibility of the project prior to obtaining the necessary permits. That conclusion, in my view, is incorrect as a matter of law because it confuses necessity with feasibility.

Therefore, I would reverse and remand for further proceedings.


author: Judge DAVIDSON.

text:
    Robert L. SPRACKLIN, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Supervalu, and Liberty Mutual Insurance Company, Respondents.
    No. 02CA0274.
    Colorado Court of Appeals, Div. IV.
    Oct. 24, 2002.
    Certiorari Denied April 14, 2003.
    Gordon & MacDonald, P.C., William J. MacDonald, Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Hall & Evans LLC., Keith E. Mottram, Denver, Colorado, for Respondents Superva-Iu and Liberty Mutual Insurance Company.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge DAVIDSON.

In this workers' compensation case, Robert L. Spracklin (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that the one-year statute of limitations in § 8-48-804(5), C.R.S. 2002, barred his request for penalties against Supervalu and its insurer, Liberty Mutual Insurance Company (collectively employer). We affirm.

The facts are undisputed. Claimant suffered a compensable injury in February 1999. The physician performing the division-sponsored independent medical examination (DIME) assigned a four percent whole person impairment rating. Employer received the DIME report on December 18, 1999, and claimant also received a copy sometime that month.

On May 11, 2001, claimant filed an application for hearing and requested an order imposing penalties in the amount of $500 per day under § 8-43-804(1), C.R.S8.2002, for employer's failure to comply with Dep't of Labor & Employment Rule IV(N)(6), 7 Code Colo. Regs. 1101-8. That rule provides that within thirty days after the mailing of the DIME report, the insurer shall either admit liability consistent with the DIME physician's medical impairment rating or file an application for hearing on the issue of medical impairment.

Employer conceded that it did not comply with Rule IV(N)(6) within the thirty-day period. Employer did not issue any payment for permanent partial disability benefits until June 5, 2001, and did not file a final admission concerning the payments until June 27, 2001. However, employer asserted that the penalty claim was barred by § 8-48-304(5), which states: "A request for penalties shall be filed with the director or administrative law judge within one year after the date that the requesting party first knew or reasonably should have known the facts giving rise to a possible penalty " (emphasis added).

Finding that claimant received a copy of the DIME report in December 1999, the Administrative Law Judge (ALJ) determined that claimant therefore knew or reasonably should have known by January 31, 2000, that employer had violated Rule IV(N)(6). The ALJ found that claimant did not request penalties until he filed an application for hearing on May 11, 2001, which was after the expiration of the one-year statute of limitations. Accordingly, the ALJ denied the penalty claim, and the Panel affirmed.

Claimant contends that every day employer violated Rule IV(N)(6) constituted a separate and distinct violation for which penalties may be imposed. Accordingly, claimant contends the May 11, 2001, application for hearing was a timely request for penalties from May 11, 2000, until employer's final admission, and that the failure to file an application for hearing before May 11, 2001, bars penalties only for the violations from January 12, 2000, which was thirty days from the date of mailing of the DIME report, to May 10, 2000. As a result, claimant asserts that § 8-48-804(5) acts not as a statute of limitations in this instance, but as a cap on the amount of recovery. We are not persuaded.

In construing statutes, courts must give effect to the underlying legislative intent. To do so, courts first look to the statutory language itself, giving words and phrases their commonly accepted and understood meaning. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Therefore, if courts can give effect to the ordinary meaning of the words adopted by the General Assembly, the statute should be construed as written, because it may be presumed that the General Assembly meant what it clearly said. Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo.App. No. 01CA0464, Mar. 28, 2002).

As pertinent here, $ 8-43-804(1) provides that any employer or insurer who fails or neglects to obey any lawful order shall be punished by a fine of not more than $500 per day for each such offense. Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo.App.2001). The term "order" as used in this penalty provision includes a "rule." See § 8-40-201(15), C.R.S.2002; Holliday v. Bestop, Inc., 23 P.3d 700 (Colo.2001).

In turn, § 848-805, C.R.8.2002, provides, inter alia, that each day the employer or insurer fails to comply with any lawful order constitutes a separate and distinct violation and that in any action brought to enforce the penalty, such violation shall be considered cumulative and may be joined in the action.

Construing this statute with the provisions in § 8-48-304(1) and (5), as we must, see Kinder v. Indus. Claim Appeals Office, 976 P.2d 295 (Colo.App.1998)(when two or more statutes address the same subject matter, the statutes should be construed together), we are not convinced that § 8-43-805 governs the date of the violation for purposes of the statute of limitations.

The purpose of § 8-48-304(5), like any limitations period, is to ensure the prompt litigation of penalty claims onee the underlying violation is first discovered. See Jones v. Cox, 828 P.2d 218 (Colo.1992)(purpose of statutes of limitation is to promote justice, discourage unnecessary delay, and forestall prosecution of stale claims). This purpose would be defeated under claimant's construction because as long as the violation continued, there would be no time limit for filing a request for penalties. See Curtis v. Counce, 32 P.3d 585 (Colo.App.2001) (rejecting construction that would lengthen the statutory limitations period until after final annuity payment for lottery proceeds); Brown v. Am. Family Ins. Group, 989 P.2d 196 (Colo. that would effectively eliminate the statute of limitations and frustrate its purpose is an absurd result which should not be reached).

The purpose of § 843-305, as evidenced by its plain language, is entirely different. By declaring each day a separate offense, the General Assembly provided for the joinder of penalty claims for ongoing conduct after the date of the claim.

Thus, under the plain language of § 8-48-304(5), a request for penalties must be filed within one year of the date a party "first" knows or reasonably should know "the facts giving rise to a possible penalty." Giving effect to this plain language, we conclude that § 8-48-304(5) requires a request for penalties to be filed within one year after the requesting party first became aware of the cireumstances that constitute a violation and support the imposition of a penalty, even if that violation was ongoing.

In our view, this reading effectuates the legislative intent and gives consistent, harmonious, and sensible effect to §§ 8-48-304(1), 8-48-304(5), and 8-48-805. See In re Petition of D.S.L., 18 P.3d 856 (Colo.App.2001). And, because we conclude that the statutes at issue here are plain and unambiguous, we have no need to resort to the tran-seripts of the legislative tapes employer attached to its answer brief to show that § 8-43-304(5) was intended as a statute of limitations. See Colo. Springs Disposal v. Indus. Claim Appeals Office, supra.

Here, claimant does not dispute the ALJ's finding that he knew or reasonably should have known that employer was in violation of Rule IV(N)(6) when he did not receive from employer permanent disability payments, an admission of liability for permanent disability benefits, or an application for hearing by the end of January 2000. Accordingly, the statute of limitations commenced to run by February 1, 2000, and the ALJ did not err in finding that the statute of limitations had expired before claimant filed the May 11, 2001, application for hearing.

The order of the Panel is affirmed.

Judge VOGT and Judge PLANK concur.