author: Judge GRAHAM. Judge NIETO

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Harold CUNEFARE, Defendant-Appellant.
    No. 01CA0584.
    Colorado Court of Appeals, Div. IV.
    Sept. 25, 2003.
    Rehearing Denied Oct. 30, 2003.

    Certiorari Granted March 8, 2004.

      Ken Salazar, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for De-fendanh-Appellant.

       Nieto, J., would GRANT as to Part IA.

       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 GRAHAM.

Defendant, Harold Cunefare, appeals the judgment of conviction entered upon a jury verdict finding him guilty of tampering with a witness and forgery. We reverse and remand.

In March 1998, the victim, defendant’s ex-wife, made a domestic assault complaint against defendant. The People charged defendant with second degree assault and other crimes.

In April 1998, the victim called the victim-witness advocate assigned to the case and said she wanted the charges against defendant dropped. The victim then sent a signed, notarized letter dated April 6, 1998, to the district attorney’s office stating that she did not tell the truth about the March incident and had made the statements out of anger.

The victim moved to Tennessee, and in November 1998, trial was set and the assault and related charges were immediately dismissed, in part because the prosecutor could not locate the victim.

Subsequently, the People charged defendant with witness tampering and forgery in connection with the victim’s April 1998 recantation letter and a subsequent letter that defendant apparently signed. The district attorney received both letters before trial was set.

At trial, the victim asserted that she did not author the April 1998 letter and that defendant asked her to sign it. She testified that she signed the letter out of fear. However, she conceded that she originally faxed the April 6 letter to the district attorney’s office from her office when defendant was not present.

The victim also testified that in August 1998, defendant contacted her in Tennessee and said he would send a second recanting letter for her to sign and forward to the district attorney’s office: The victim testified that she tore up the letter and did not sign or mail it.

However, the district attorney’s office received a copy of that letter signed with the victim’s name. The victim opined that defendant had signed her name to the second letter because she recognized his handwriting.

I.

Defendant contends that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed tampering with a witness and forgery. We agree.

A. Tampering with a Witness

Under § 18-8-707(l)(a), C.R.S.2002, a defendant tampers with a witness if he “intentionally attempts without bribery or threats to induce a witness” to “[tjestify falsely or unlawfully withhold any testimony.” It is not necessary that the defendant succeed in inducing the witness to testify falsely or refrain from testifying. See People v. Scialabba, 55 P.3d 207, 210 (Colo.App.2002)(quoting People v. Moyer, 670 P.2d 785, 791 (Colo.1983)). “The essence of the crime of tampering with a witness is an intentional attempt to interfere with a witness, without regard to the success or failure of the attempt.” People v. Scialabba, supra, 55 P.3d at 210.

However, the People must prove an attempt to interfere with actual testimony, which is anticipated to be offered at a hearing, trial, or other proceeding where witnesses would be sworn. Compare People v. Scialabba, supra (the defendant mailed a letter to the victim suggesting that she not appear in court and later asked a third party to request that the victim not appear), with People v. Moyer, supra (the defendant threatened suit if the witness appeared before the grand jury). Indeed, a division of this court determined that a charge of tampering under § 18 — 8—707(l)(b), C.R.S.2002, requires proof that the witness has actually been legally summoned to testify. People v. Yascavage, 80 P.3d 899, 2003 WL 21511767 (Colo.App. No. 01CA1437, July 3, 2003).

Here, the prosecution alleged that defendant tampered with the victim when he asked her to send a letter to the prosecution stating that “the events of that evening on March 21 1998[sic] never happened.”

Although the record shows that the victim had given a “statement” to the prosecutor before she faxed the April recantation letter, here, nothing suggests that the statement was sworn or otherwise consisted of testimony. In fact, the record discloses that one reason the assault charges were dropped is that the prosecutor could not locate the victim and she was not subject to a subpoena.

At most, defendant asked the victim to attempt to persuade the prosecutor with a false letter, although defendant maintains that the letter was factually correct. Even if the letter could later be used to impeach testimony, it was not an attempt to induce the victim to testify falsely. Under these circumstances, the record is devoid of proof necessary to reasonably convince the trier of fact that a violation of § 18-8-707 occurred.

The People argue that defendant’s request to the victim “had the practical effect” of asking her to withhold testimony, but, in fact, there is nothing to show that her testimony was of any concern to defendant. Instead, the record discloses that defendant’s sole goal was to persuade the prosecutor to drop charges, and the victim’s testimony at a hearing or trial was not considered. If the prosecution’s view were correct, no defendant could ever request a party to “drop charges” without running afoul of the tampering statute.

Therefore, we conclude that the evidence as a whole, even viewed in the light most favorable to the prosecution, is insufficient to support a conclusion by a reasonable person that defendant was guilty of this charge beyond a reasonable doubt. See Kogan v. People, 756 P.2d 945 (Colo.1988).

B. Forgery

We also agree •with defendant that his conduct did not violate the applicable section of the forgery statute as a matter of law.

Where a defendant passes an instrument he knows to be false, a presumption arises that he passed it with the intent to defraud, and the fact finder may infer intent to defraud. People v. Brown, 193 Colo. 120, 562 P.2d 754 (1977). It is not essential that the person receiving the instrument be defrauded because the crime is complete when the act and guilty knowledge coincide with the intent to defraud. Gentry v. People, 166 Colo. 60, 441 P.2d 675 (1968).

Section 18-5-102(l)(e), C.R.S.2002, states:

A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed: ...
(c) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status-

Here, defendant sent a letter that purported to be the victim’s statements to the prosecutor’s office and signed the victim’s name as the author. We are therefore presented with the question of whether defendant’s conduct in crafting the fictitious letter constitutes forgery for purposes of § 18-5-102(l)(c). We conclude that it did not because the letter was not an instrument that had the legal efficacy to affect a legal right, interest, obligation, or status.

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231 (Colo.2000). In construing a statute, we must ascertain and give effect to the intent of the General Assembly. To determine that intent, we look first to the plain and ordinary meaning of the statutory language. People v. Dist. Court, 713 P.2d 918 (Colo.1986). When the language is clear and unambiguous, the statute must be construed as written, without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994). If, however, the statutory language lends itself to alternative constructions, and its intended scope is unclear, we may apply other rules of statutory construction to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990).

A statute must be read and considered as a whole and should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts. People v. Dist Court supra. An interpretation that renders a particular clause meaningless should be avoided. People v. Terry, supra.

Defendant argues that falsely making a “written instrument” is not a crime under § 18 — 5—102(1)(c) unless it “purports to be,” is “calculated to become,” or is “to represent if completed” a “deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or other affect a legal right, interest, obligation, or status.”

Defendant argues that the letter in question is not the type of “instrument” contemplated by this section of the forgery statute. See People v. Avila, 770 P.2d 1330 (Colo.App.1988)(concluding that the term “written instrument” included a computer disc). We agree and conclude that to satisfy subsection (l)(c) of the forgery statute, a document must purport to have legal efficacy that affects some right or status.

A letter urging the prosecutor to drop criminal charges, does not affect the type of interest, right, or status contemplated by § 18 — 5—102(l)(c). That interest or status contemplated under § 18-5-102(l)(c) must necessarily relate to a financial, testamentary, real property, personal property, or privilege interest.

Although Colorado forgery cases are relatively sparse, in each case the instrument on its face demonstrated a legal efficacy concerning a financial testamentary, real property, personal property, or privilege interest that was injured by the forgery. For exam-pie, in Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972), the defendant forged bank checks, which were honored as real bank drafts, to acquire funds. In People v. Miralda, 981 P.2d 676 (Colo.App.1999), the defendant forged resident alien cards to acquire the privilege of immigration status, thereby purporting to grant a legitimate immigration status. In People v. Avila, supra, the defendant changed computer records to acquire driving privileges for his clients, thereby creating false records that appeared to be accurate and confirm the existence of a driving privilege. In each case, the instrument forged purported to have some legal authority or efficacy designed to deceive or injure.

Here, defendant did not seek to acquire a privilege or any interest; hence, the letter did not purport to have legal efficacy. While it is evident that he acted as an imposter and assumed another’s identity, there was no forgery under § 18-5-102(l)(c) because, at most, the letter sought to affect the discretion of the prosecutor, who had authority to move for the dismissal of charges against him.

The letter created no legal right or obligation. See State v. Nguyen, 123 N.M. 290, 939 P.2d 1098 (App.1997)(a false bingo card appeared to be a game winning card). But see People v. Muzzarelli, 331 Ill.App.3d 118, 264 Ill.Dec. 536, 770 N.E.2d 1232 (2002)(a false letter to the court seeking a lenient sentence satisfied forgery statute); cf. People v. Hagan, 145 Ill.2d 287, 164 Ill.Dec. 578, 583 N.E.2d 494 (1991)(a false letter misrepresented bank balances and had legal efficacy because it made a reliable representation to a lessor).

Here, no obligation or power of the prosecutor was implicated. Even if the letter had been authentic, it had no legal efficacy because the victim had no legal right to have the charges dismissed or brought in the first instance. The letter consists of opinion, allegations, and importunate pleas, none of which create or purport to create an interest or status.

We therefore conclude that a false letter seeking the prosecutor’s sympathy and action cannot constitute forgery under § 18-5-102(l)(c) as a matter of law.

II.

In light of our decision to reverse the convictions, we need not reach the other issues raised by defendant.

The judgment is reversed, and the case is remanded to the trial court with instructions to dismiss the charges.

Judge RULAND concurs.

Judge NIETO concurs in part and dissents in part.

Judge NIETO

concurring in part and dissenting in part.

I respectfully dissent from the majority’s conclusion in Part IA. In all other respects, I concur.

In Part IA, the majority concludes that the evidence is insufficient to support the conviction for tampering with a witness under § 18-8-707(l)(a), C.R.S.2002. In my view, the majority has interpreted § 18-8-707(l)(a) too narrowly and failed to give the prosecution the benefit of every reasonable inference that might be drawn from the evidence.

The evidence here showed that the victim, defendant’s wife, reported to the police that defendant had assaulted her with a shotgun. Defendant was charged with second degree assault and other charges (the assault charges). Defendant then began an effort to get the assault charges dismissed. He prepared a letter for the victim that withdrew the accusations in her original report of the assault. The victim testified that she signed the letter and sent it to the prosecutor because she feared defendant. Defendant then prepared another similar letter and sent it to the victim with instructions to sign it and send it to the prosecutor. The victim testified that she destroyed the second letter. However, a letter with the victim’s purported signature, having content similar1 to the second letter, was sent to the prosecutor. Evidence was presented showing that defendant signed the victim’s name on the second letter received by the prosecutor.

The majority states, “there must be proof that there was an attempt to interfere with actual testimony” and goes on to note that the victim’s original statement to the police was not sworn and did not “otherwise consist!] of testimony.” This emphasis on the existence of “actual testimony” misperceives the harm the statute seeks to prevent. The statute seeks to prevent conduct that would interfere with a witness the defendant “believes is to be called to testify ... or who may be called to testify.” Section 18-8-707(1) (emphasis added). The very language of the statute indicates that the proscribed conduct would precede the witness’s actual testimony, and nothing in the language of the statute requires that the witness actually testify before the crime is complete. The majority, in effect, has added an element of “actual testimony” where none exists in the statute.

The statute applies to a person who attempts to interfere with a prospective witness. People v. Moyer, 670 P.2d 785 (Colo.1983). A division of this court, in People v. Scialabba, 55 P.3d 207, 210 (Colo.App.2002), held that the crime of tampering with a witness was completed when the attempt to interfere with a witness was made. Therefore, once defendant engaged in conduct constituting an attempt to induce the victim to alter or withhold testimony he believed she would give at some time in the future, the crime was complete.

Accordingly, I disagree with the conclusion of the majority that the absence of proof that the victim presented “actual testimony” in the assault case resulted in insufficient evidence to sustain the conviction.

The majority holds that because defendant did not consider the victim’s testimony and because his primary goal was to have the assault charges dismissed, his conduct did not constitute tampering with a witness. The majority bases its holding on the conclusion that the record shows only that the defendant asked the victim to persuade the prosecutor to dismiss the assault charges by the use of a false letter.

To the contrary, I conclude that that the jury could reasonably have inferred from the evidence that defendant was intentionally attempting to induce the victim to alter or withhold her testimony. Such intent is not inconsistent with the goal of having the charges dismissed because if the victim altered her testimony as suggested by defendant or refused to testify, the prosecutor may have dismissed the charges for that reason.

Where the sufficiency of the evidence is challenged, the duty of the appellate court is to view the evidence as a whole and in the light most favorable to the prosecution, and then determine whether, based on that evidence, a reasonable person could conclude that the defendant is guilty beyond a reasonable doubt. In making that determination, we must give the prosecution the benefit of every reasonable inference that can be fairly drawn from the evidence. It is the province of the jury to determine the credibility of witnesses and to weigh the evidence, including resolving conflicts in the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

I conclude that the evidence supports the jury’s verdict for the following reasons.

First, defendant’s conduct was an attempt to destroy, or at least harm, the credibility of the victim’s original statement. Because the victim could not effect the dismissal of the charges, and therefore, she may have been required to testify in defendant’s trial, it is a reasonable inference from the evidence that defendant intended to induce her to alter or withhold her testimony.

Second, if the victim contradicted her original statement, it would be difficult for her to renounce her recantation and testify consistently with her original statement. Thus, defendant’s conduct could have had the effect of inducing the victim to alter or withhold her testimony. It did not have that effect because she testified consistently with her original statement. However, it is not necessary that defendant succeed in his attempt to tamper with a witness; it is sufficient that he made the attempt. See People v. Scialabba, supra.

Third, if the victim testified consistently with her original statement, under § 16-10-201, C.R.S.2002, the victim’s recantation, which defendant was attempting to induce, would be admissible as a prior inconsistent statement both for impeachment and as proof of the facts contained in the statement. Thus, the victim’s altered statement could be admitted as substantive evidence, and defendant’s conduct would have had the same effect as if the victim had testified falsely.

Fourth, defendant argues that he was trying to get the assault charges dismissed by getting the victim to tell the truth. While there was evidence challenging the credibility of the victim’s oi'iginal statement, it was the jury’s province to decide that question. The jury was free to reject defendant’s argument and conclude that he intended to induce the victim to alter or withhold her testimony. See Kogan v. People, supra, 756 P.2d at 950 (“An 'appellate court is not permitted to sit as a thirteenth juror and set aside a verdict because it might have drawn a different conclusion from the same evidence”).

Accordingly, I would affirm the defendant’s conviction for tampering with a witness. I reach this conclusion without considering defendant’s contention that certain evidentiary rulings constituted reversible error. In light of the majority’s decision, it is unnecessary to consider those issues here.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    Jean FONDEN, Plaintiff-Appellant, v. U.S. HOME CORPORATION, Defendant-Appellee.
    No. 02CA1827.
    Colorado Court of Appeals, Div. II.
    Oct. 9, 2003.
    Certiorari Denied March 15, 2004.

      Powers and Associates, LLC, William A. Powers, Littleton, Colorado, for Plaintiff-Appellant.
    Fisher, Sweetbaum and Levin, P.C., Scott L. Levin, E. James Wilder, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge ROTHENBERG.

Plaintiff, Jean Fonden, appeals the order of the trial court granting the motion to compel arbitration made by defendant, U.S. Home Corporation (USH). We dismiss the appeal.

I. Background

In September 2000, Fonden contracted to purchase real property from USH and to have USH construct a home on it. The contract includes an arbitration clause that states in relevant part: (1) the transaction involved interstate commerce; (2) any dispute would be submitted to mediation; (3) if not settled during mediation, it would be submitted to binding arbitration as provided by the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., (2003), “or if inapplicable, by similar state statute, and not by or in a court of law”; and (4) the arbitrator would decide the arbitrability of any dispute.

Fonden later discovered alleged defects in the home and filed this action to rescind the contract or recover damages. She alleged USH fraudulently concealed from her certain information regarding construction of the home and “wrongfully inducted][her] to close on the property.” She also alleged breach of contract, breach of implied warranty, and violations of the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S.2002.

USH then moved to compel arbitration and to stay the proceedings under the FAA. The trial court granted the motion, and Fon-den filed a notice of appeal.

USH moved to dismiss the appeal, contending the order appealed was an interlocutory order and was not subject to appeal. A panel of this court denied the motion, but granted USH leave to renew the argument in its answer brief.

II. Subject Matter Jurisdiction

USH contends this court lacks subject matter jurisdiction because the trial court’s order granting USH’s motion to compel arbitration was an interlocutory order and not subject to appeal. We agree.

A. No Requirement of Cross-Appeal

As a threshold matter, we reject Fonden’s contention that USH was required to file a cross-appeal to raise this issue. The issue of subject matter jurisdiction may be addressed at any time. Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254 (Colo.1991). Further, USH prevailed in the trial court on the arbitration issue and had no l-eason to cross-appeal.

In any event, an appellee such as USH may, without filing a notice of cross-appeal, raise arguments in support of a judgment that would not increase its rights under the judgment. See United Air Lines, Inc. v. City & County of Denver, 973 P.2d 647 (Colo.App.1998), aff'd, 992 P.2d 41 (Colo.2000).

B. No Final Order

Fonden maintains that the FAA authorizes an appeal under these circumstances. We disagree.

The entry of a final judgment is usually a prerequisite to an appeal in this court, although we also may review interlocutory orders if authorized by a statute or rule. See § 13-4-102, C.R.S.2002; C.A.R. 1(a)(1); J.P. Meyer Trucking & Constr., Inc. v. Colo. Sch. Dists. Self Ins. Pool, 18 P.3d 198 (Colo.2001).

The FAA provides generally that written agreements to submit a controversy to arbitration are “valid, irrevocable, and enforceable,” unless the contract is revocable in law or equity. 9 U.S.C. § 2. By enacting the FAA, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims that the contracting parties agreed to resolve by arbitration. Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)(Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements).

The FAA applies when a written arbitration provision is included in “a contract evidencing a transaction involving commerce,” 9 U.S.C. § 2, which in turn encompasses “commerce among the several States.” 9 U.S.C. § 1. This statutory mandate coincides with Congress’s power under the Interstate Commerce Clause and is applicable to the states. See Southland Corp. v. Keating, supra; see also Grohn v. Sisters of Charity Health Servs. Colo., 960 P.2d 722 (Colo.App.1998).

Thus, if a contract is related to a transaction in interstate commerce, the FAA governs the enforcement of its arbitration provisions in both state and federal court. Southland Corp. v. Keating, supra; 1715 Wazee LLC v. Castle Builders Inc., — P.3d -, 2003 WL 21665020 (Colo.App. Nos. 01CAC2560 & 02CA0303, July 17, 2003)(rejecting argument that Colorado Uniform Arbitration Act (CUAA), § 13-22-201, et seq., C.R.S.2002, governs where contract involved interstate commerce); Grohn v. Sisters of Charity Health Servs. Colo., supra; Ayers v. Prudential-Bache Sec., Inc., 762 P.2d 743 (Colo.App.1988)(concluding transaction involved commerce and applying FAA).

Although the FAA preempts inconsistent state law, its preemptive effect is restricted to the question of arbitrability and whether the agreement to arbitrate is valid. Southland Corp. v. Keating, supra (FAA preempts state laws that require a judicial forum for the resolution of claims the contracting parties agreed to arbitrate); Byerly v. Kirkpatrick Pettis Smith Polian, 996 P.2d 771 (Colo.App.2000) (despite right to judicial forum under Colorado Wage Claim Act, § 8-4-101, C.R.S.2002, et seq., FAA preempts state law purporting to invalidate otherwise enforceable agreements to arbitrate).

Here, the arbitration provision in the parties’ contract states that the transaction involved interstate commerce and that the FAA will apply, but if the FAA were “inapplicable,” the “similar state statute” would apply. While Fonden disputes the validity of the contract, she asserts here — as she did in the trial court — that the FAA applies. Also, in her response to USH’s motion to compel arbitration, she asserted that the contract “concerned matters involving commerce.” USH also agrees the FAA applies to this action, although it urges that we apply state law to the procedural issue of finality.

We therefore conclude the FAA applies. See Southland Corp. v. Keating, supra; 1715 Wazee LLC v. Castle Builders Inc., supra.

This conclusion, however, does not end our inquiry because the FAA provides that an appeal “may not be taken from an interlocutory order” granting a stay of a legal action or compelling arbitration. 9 U.S.C. § 16(b)(1), (3) (emphasis added). The FAA further provides that upon referring a case to arbitration, a court upon motion must stay the proceedings. 9 U.S.C. § 3.

Despite the language of the FAA that would seem to preclude her appeal, Fonden nevertheless contends the United States Supreme Court’s decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), requires a different result. We are not persuaded.

In Green Tree, the federal district court granted the defendants’ motion to compel arbitration, but it denied their motion to stay the action and dismissed the plaintiffs claims with prejudice. When the plaintiffs appealed the order of dismissal, the defendants contended the district court’s order was not a final decision and therefore not appealable.

The United States Supreme Court disagreed. It considered the meaning of the term “final decision with respect to an arbitration” as used in 9 U.S.C. § 16(a)(3). The Court concluded that although the FAA does not define the term “final decision,” the term has a well-established meaning that should apply in the context of that act. Green Tree Fin. Corp.-Ala. v. Randolph, supra, 531 U.S at 86, 121 S.Ct. at 519.

The Supreme Court held that the district court’s order dismissing the action was a final decision subject to appeal, and there was no longer a proceeding before the district court. The Court specifically noted, however, that if the district court had entered a stay instead of a dismissal, “that order would not be appealable.” Green Tree Fin. Corp.-Ala. v. Randolph, supra, 531 U.S at 87, 121 S.Ct. at 520, n. 2 (emphasis added).

Here, the trial court granted USH’s motion to stay the proceedings. Unlike in Green Tree, the court did not dismiss the case, and the record contains no suggestion that the parties or the court intended to dismiss it. Because there was no dismissal of Fonden’s claims or other final decision regarding arbitration, we conclude Green Tree does not authorize this appeal. See Banks v. City Fin. Co., 825 So.2d 642 (Miss.2002)(reaehing similar conclusion).

We therefore conclude the trial court’s order granting USH’s motion to compel arbitration and staying the proceeding was not a final decision subject to appeal under the FAA. See 9 U.S.C. § 16(b)(3).

In so concluding, we recognize that appellate courts in other states have held various FAA procedural provisions inapplicable in state court. See Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal.4th 394, 926 P.2d 1061, 58 Cal.Rptr.2d 875 (1996). These courts have applied a different analysis when addressing the issue of finality for the purposes of appeal, concluding that the FAA’s finality provision does not preempt the state’s own procedural rules unless those rules defeat substantive rights granted by the FAA.

For example, in Muao v. Grosvenor Properties Ltd., 99 Cal.App.4th 1085, 122 Cal.Rptr.2d 131 (2002), a state court action involving an arbitration clause, the court concluded that while the FAA governed the issue of arbitrability, it did not govern the procedural issue of finality for purposes of appeal. See also Weston Sec. Cotp. v. Aykanian, 46 Mass.App.Ct. 72, 703 N.E.2d 1185 (1998); Marr v. Smith Barney, Harris Upham & Co., 116 Or.App. 517, 842 P.2d 801 (1992).

In these cases, the states’ procedures would require different results on the issue of finality than the FAA. Here, however, we conclude the trial court’s order is not final for the purposes of appeal under either the FAA or the CUAA. See § 13-22-221(1), C.R.S. 2002; Gergel v. High View Homes, L.L.C., 58 P.3d 1132 (Colo.App.2002). Thus, applying such an analysis would not change the result.

Given our conclusion that we lack jurisdiction over this appeal, we do not address the parties’ remaining contentions.

USH’s request for attorney fees incurred on appeal is denied.

Appeal dismissed.

Judge MARQUEZ and Judge GRAHAM, concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark MANZANARES, Defendant-Appellant.
    No. 02CA1341.
    Colorado Court of Appeals, Div. I.
    Oct. 9, 2003.
    Certiorari Denied March 15, 2004.

      Ken Salazar, Attorney General, Anthony J. Navarro, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Paul Grant, Englewood, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAILEY.

Defendant, Mark Manzanares, appeals from the trial court’s order revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of attempted sexual assault on a child. We affirm.

Defendant was charged here after a twelve-year-old girl reported waking up at night to find him moving his hand up the inside of her pants towards her vaginal area.

In November 1998, defendant entered a plea of guilty to the charge. Pursuant to a plea agreement, the trial court accepted defendant’s guilty plea and granted him a deferred judgment for two years.

In June 1999, the probation department filed a complaint to revoke defendant’s deferred judgment, alleging that he made poor progress in sex offender treatment. That complaint was withdrawn, however, in return for defendant’s agreement to extend the period of deferred judgment until August 2001.

In August 2001, the probation department filed a second complaint to revoke the deferred sentence. This complaint alleged that defendant had violated terms of the deferred judgment requiring him to: (1) attend, actively participate in, and complete sex offender treatment, and abide by the rules of his sex offender treatment program provider; (2) not purchase, possess, or consume alcoholic beverages; and (3) not have contact with any child under the age of eighteen, including his own children, unless approved in advance by the court.

Defendant unsuccessfully moved to dismiss the complaint or to withdraw or vacate his guilty plea, and the probation department filed a supplemental revocation complaint alleging that defendant had been unsuccessfully discharged from a second sex offender treatment program.

After the matter was continued several times in 2002, the trial court conducted a revocation hearing and then revoked defendant’s deferred judgment. The court found that, in violation of the terms and conditions of deferred judgment, defendant had violated his contract with a sex offender treatment program by having at least ten unexcused absences, using alcohol, and having unsupervised contact with children.

Accordingly, the court entered judgment of conviction against defendant for the offense of attempted sexual assault on a child and sentenced him to six years of intensive supervised probation.

I.

Defendant contends that the trial court erred in revoking his deferred judgment based on violations of sex offender treatment conditions because a sex-offender-specific evaluation was not conducted until 2002, just before his revocation hearing. We agree.

The statutory provisions governing sex-offender-specific evaluations are found in §§ 16-11.7-104 and 16-11.7-105, C.R.S.2002.

Section 16-11.7-104(1), C.R.S.2002, provides, in pertinent part:

On or after January 1, 1994, each sex offender who is to be considered for probation shall be required, as a part of the presentence or probation investigation required pursuant to section 16-11-102, to submit to an evaluation for treatment, an evaluation for risk, procedures required for monitoring of behavior to protect victims and potential victims, and an identification developed pursuant to section 16 — 11.7— 103(4)(a).

Section 16-11.7-105(1), C.R.S.2002, provides in pertinent part:

Each sex offender sentenced by the court for an offense committed on or after January 1, 1994, shall be required, as a part of any sentence to probation, community corrections, or incarceration with the department of corrections, to undergo treatment to the extent appropriate to such offender based upon the recommendations of the evaluation and identification made pursuant to section 16-11.7-104, or based upon any' subsequent recommendations by the department of corrections, the judicial department, the department of human services, or the division of criminal justice of the department of public safety, whichever is appropriate.

In People v. Lenzini, 986 P.2d 980, 983 (Colo.App.1999), a division of this court construed these provisions as requiring the court to order a sex-offender-specific evaluation to be conducted as part of the presen-tence report for sex offenders and to consider that evaluation in sentencing.

Following Lenzini, the same division held in People v. Meidinger, 987 P.2d 937, 938-39 (Colo.App.1999) that a court could not impose sex offender conditions as part of a sentence to probation without ordering the sex offender evaluation as required by § 16-11.7-104.

The prosecution correctly points out that, by their terms, §§ 16-11.7-104(1) and 16-11.7-105(1) appear to apply only when a pre-sentence repox-t is required for use in sentencing sex offenders. It argues, then, that the statutes are inapplicable here because an individual granted a deferred judgment is not subject to sentencing until he or she violates the conditions of the deferred judgment. We are not persuaded.

Courts should promote the spirit of a statute and not simply the letter of the law. People in Interest of S.B., 742 P.2d 935, 938 (Colo.App.1987); see Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.)(Hand, J.: “The defendants ... say that we are not free to depart from the literal meaning of the words, however transparent may be the resulting stultification of the scheme or plan as a whole.... [T]he decisions are legion in which [courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute.”), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945); Lobato v. Indus. Claim Appeals Office, — P.3d -, - (Colo.App. No. 02CA1145, June 5, 2003)(“0ne guiding principle is that the interpretation of a statute may not cause an absurd result.”).

In People v. Lenzini, supra, 986 P.2d at 983, the division recognized that the overriding goal of article 11.7 of title 16 was “to provide the state with a program of standardized procedures to deal with all sex offenders, as they are defined by § 16-11.7-102.” This category specifically includes individuals, like defendant, who receive a deferred judgment for the offense of attempted sexual assault on a child. See § 16-11.7-102(2)(a)(I), (2)(b), (3)(d), (3)(u), C.R.S.2002.

The purpose of sex-offender-specifie evaluations is to identify appropriate modes of sex offender treatment to curtail reeidivistic behavior and protect the public. See §§ 16-11.7-101, 16-11.7-104(1), 16-11.7-105(1), C.R.S.2002. There is no question that an individual who has pleaded guilty to a sex offense and has been sentenced to probation would be required to undergo a sex-offender-specific evaluation. See People v. Meidinger, supra, 987 P.2d at 939.

A deferred judgment is akin to a sentence of probation. People v. Slayton, 878 P.2d 106, 107 (Colo.App.1994)(both probation and deferred sentencing are premised on defendants leading law-abiding lives). Like probation, a deferred judgment is a privilege, where the defendant is the primary beneficiary of a procedure that ultimately may result in dismissal of the charges against him or her. People v. McPherson, 897 P.2d 923, 925 (Colo.App.1995). Also, a person with a deferred judgment is supervised by the probation department and must comply with conditions similar to probation conditions. See § 18-1.3-102(1), (2), C.R.S.2002 (formerly codified at § 16-7-403).

We perceive no reason why a sex offender evaluation requirement should not apply to sex offender treatment conditions imposed in connection with a deferred judgment. Thus, in accord with the purposes of the statute, we construe §§ 16-11.7-104 and 16-11.7-105 to require such an evaluation.

Here, as a condition of his deferred judgment, the court required defendant to submit to a sex offender evaluation. However, the court did not order the probation department to conduct such an evaluation and the probation department did not independently seek to have an evaluation conducted until after the extended period of defendant’s deferred judgment had expired.

The evaluation revealed that defendant had significant difficulty processing verbal information. The doctor who conducted the evaluation opined in a letter that defendant had been placed in sex offender programs “whose requirements may have been beyond his ability to fully comprehend.”

In our view, the failure to timely conduct the required evaluation undermined the purpose of the sex offender conditions, rendering them unenforceable. Consequently, we conclude that the court erred in basing its revocation decision on a violation of sex offender treatment conditions.

II.

Defendant also contends that his deferred judgment could not be revoked because of his use of alcohol. We agree.

In People v. Cagle, 780 P.2d 13, 14 (Colo.App.1989), a division of this court recognized that “a decision not to pursue revocation for a violation does not preclude subsequent revocation for a later violation” (emphasis added). This statement implies that a decision not to pursue revocation at a given time may bar subsequent revocation for an earlier violation. We agree, at least where, as here (1) the earlier decision not to pursue revocation is evidenced by a dismissal of a revocation complaint after the probation department knew of the purported violation and (2) the defendant has agreed to extend the period of deferred judgment in reliance on the dismissal of the complaint.

Here, because the only evidence of defendant’s alcohol use was known to the probation department when the first complaint was dismissed pursuant to the agreement with defendant, we conclude such evidence could not form a proper basis for later revoking defendant’s deferred judgment.

III.

On several grounds, defendant contends that the trial court erred in revoking his deferred judgment because of unsupervised contact with his children. We disagree.

A.

Defendant asserts that this condition is unenforceable because it is materially different from those to which he agreed as part of his original plea bargain. We are not persuaded.

The interpretation of a plea agreement is a question of law subject to de novo review. “We interpret plea agreements pursuant to an objective standard, focusing on the meaning a reasonable person would have attached to the agreement under the circumstances,” and recognizing that “terms of a plea agreement may be implied as well as expressed plainly on the agreement’s face.” People v. Johnson, 999 P.2d 825, 829 (Colo.2000).

Here, the parties expressly agreed that defendant would comply not only with certain specified conditions but also with “any other conditions reasonably related to [his] rehabilitation and the purpose of this supervisory period, as ordered by the Court.” Thus, the language of the plea agreement put defendant on notice that he could expect additional conditions of a certain type, namely those reasonably related to rehabilitation and the purpose of supervision.

In People v. Forsythe, 43 P.3d 652, 654 (Colo.App.2001), a division of this court held that probation conditions restricting contact with a defendant’s children may be imposed, for the above-mentioned purposes, without necessarily infringing upon a parent’s fundamental liberty interest in the care, custody, and management of his or her children. Specifically, the division noted that conditions prohibiting unsupervised contact with a defendant’s children “have been upheld where the children were victims, or potential victims, of the defendant’s criminal conduct, particularly where the family relationship had provided the opportunity for the past criminal conduct.” See People v. Forsythe, supra, 43 P.3d at 654.

In State v. Coreau, 651 A.2d 319, 321-22 (Me.1994), the Maine Supreme Judicial Court distinguished conditions prohibiting unsupervised contact with a defendant’s children from conditions prohibiting all contact with those children. In that case, the defendant had committed sexual crimes against an unrelated fourteen-year-old girl. Under those facts, the court stated that extending a general prohibition of contact with children under the age of sixteen to include “unsupervised contact with his own children bears a sufficient relationship to the crimes for which he has been convicted, reduces the risk of further criminality, and is a protection for the children.” State v. Coreau, supra, 651 A.2d at 321. However, the court held that, absent evidence of abuse directed at, or a danger to, a defendant’s own children, a condition prohibiting any type of contact with the children was unduly punitive and invalid, because it would have little to do with public safety or furthering the defendant’s rehabilitation and reintegration into society.

In State v. King, 692 A.2d 1384, 1385 (Me.1997), the same court upheld a condition of probation that did “not flatly prohibit contact between defendant and his children but permitted] contact with the approval of a probation officer.” Such a condition, the court held, was “similar to a requirement of supervision” because it “permitted] contact when appropriate but protected] the children.”

Finding these authorities persuasive, we conclude that the condition of deferred judgment prohibiting defendant from contacting minors, including his own children, “except under circumstances approved in advance by the Court,” prohibited only unsupervised contact with his children and, as such, was reasonably related to rehabilitation and the purpose of supervision.

Consequently, that condition fell -within, and was not imposed in excess of, the parties’ reasonable expectations arising out of their plea bargain.

B.

We reject defendant’s related assertion that the provideney court misled him about the extent of his obligations under the plea agreement. While the provideney court indicated that defendant’s case would be dismissed if he “stayed out of trouble,” it did not limit the notion of staying out of trouble to simply avoiding convictions of other criminal offenses. As pertinent here, the court also advised defendant:

[Yjou’ll be placed under the supervision of the probation department.... If you successfully complete that period of supervision, then the case against you will be dismissed and you will not have a conviction on your record.
On the other hand, if you fail to successfully complete that period of supervision and should your deferred judgment be revoked for any reason, then you will be sentenced in accord with the plea that you entered today.
You understand if you violate any of the terms ■and conditions of this deferred judgment, then you can be sentenced to any amount up to the maximum I’ve already told you about.

(Emphasis added.)

Thus, defendant was not misled about the existence of other conditions, and, pursuant to the terms of his agreement, he could be subject to additional conditions (including the no contact provision) reasonably related to rehabilitation and the purpose of supervision.

C.

Defendant contends that the trial court improperly based its finding of a violation of this condition on inadmissible evidence. More specifically, he asserts that the evidence: (1) was illegally obtained because it arose out of attempts to comply with unenforceable sex offender conditions; and (2) was inadmissible hearsay. We are not persuaded.

Even if, as defendant argues, the evidence here was in some sense “illegally obtained,” the exclusionary rules of evidence do not apply to deferred judgment revocation proceedings. See § 18-1.3-102(2), C.R.S. 2002 (in deferred judgment revocation hearings, “the procedural safeguards required in a revocation of probation hearing shall apply”); § 16-11-206(3), C.R.S.2002 (in probation revocation hearings, “[a]ny evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence”); People v. Wilkerson, 189 Colo. 448, 451, 541 P.2d 896, 898 (1975)(a defendant in a probation revocation proceeding “cannot complain of the admission of illegally seized evidence”); see also Byrd v. People, 58 P.3d 50, 56 (Colo.2002)(“the exclusionary rule is inapplicable in probation revocation hearings absent governmental activity that constitutes bad faith, harassment, gross impropriety, or another form of egregious misconduct”).

Similarly, we reject defendant’s assertion that the trial court’s finding was erroneously based on inadmissible hearsay.

Proceedings to revoke deferred judgments are conducted according to the procedure used to revoke probation. See § 18-1.3-102(2); People v. Allen, 973 P.2d 620, 623 (Colo.1999). In revocation proceedings, a probationer is not entitled to the full range of constitutional guarantees available to one not yet convicted of crime. Because the court is not bound by strict rules of evidence at a revocation hearing, hearsay evidence is admissible. People v. Moses, 64 P.3d 904, 908 (Colo.App.2002).

A probationer has a due process right to confront and cross-examine witnesses. However, “the due process right of confrontation in revocations is not as extensive as that required by the Sixth Amendment in criminal trials.” N.P. Cohen, The Law of Probation and Parole § 21:33, at 21-50 (2d ed.1999).

In People v. Kelly, 919 P.2d 866, 868 (Colo.App.1996), People v. McCoy, 939 P.2d 537, 540 (Colo.App.1997), and People v. Moses, supra, 64 P.3d at 908, divisions of this court recognized that where, as here, revocation is not sought on the basis of an alleged crime, the defendant’s due process right is satisfied by subjecting the probation officer to cross-examination about proffered hearsay and affording the defendant an opportunity to present witnesses and testify in his or her own behalf.

Here, the evidence presented by the probation department consisted of (1) defendant’s admission to a testifying probation officer and (2) the probation officer’s recitation from probation department records of defendant’s admissions to sex offender program polygraphers and another probation officer. In his reply brief, defendant did not attempt to refute the prosecution’s assertions that the first category of evidence was admissible under CRE 801(d)(2) (nonhearsay admission by party-opponent) and the second category was admissible under CRE 803(6) (business record exception to the rule against hearsay). Further, because defendant cross-examined the probation officer and had the opportunity to present contradictory evidence, he was not denied due process by the admission of the evidence.

Thus, we conclude that the trial court did not err in admitting and relying upon this evidence to find a violation of this condition of deferred judgment.

D.

Finally, we reject defendant’s assertion that his deferred judgment could not be revoked solely upon the strength of his uncorroborated confessions or admissions.

Although a criminal defendant could not be convicted at trial solely on this type of evidence, see People v. Burress, 183 Colo. 146, 151, 515 P.2d 460, 463 (1973); People v. Robson, 80 P.3d 912,-(Colo.App.2003), a hearing to revoke deferred judgment or probation is fundamentally different from a criminal trial. See Byrd v. People, supra, 58 P.3d at 55-57 (discussing probation revocation proceedings). And at least in cases where, as here, revocation is not sought on the basis of an alleged criminal offense, we conclude that the confession corroboration requirement does not apply. See also State v. Lay, 26 Ariz.App. 64, 546 P.2d 41, 42 (1976)(probation revocation proceedings); People v. Monette, 25 Cal.App.4th 1572, 31 Cal.Rptr.2d 203, 204-05 (1994)(same); People v. Woznick, 278 Ill.App.3d 826, 215 Ill.Dec. 523, 663 N.E.2d 1037, 1038-39 (1996)(same); State v. Generoso, 156 N.J.Super. 540, 384 A.2d 189, 191 (Ct.App.Div.1978) (same); State v. Schwarz, 239 Wis.2d 443, 620 N.W.2d 414, 420-21 (Ct.App.2000)(same).

IV.

We have determined that the trial court did not err in finding a violation of the condition prohibiting defendant from having unsupervised contact with minors, including his own children. Based on this one violation, the court was obliged to revoke defendant’s deferred judgment. See People v. Wilder, 687 P.2d 451, 453 (Colo.1984). Thus, we affirm the trial court’s order revoking the deferred judgment, entering judgment of conviction, and sentencing defendant, based on this one violation.

V.

Defendant requests that we address the issue whether he is currently barred by § 16-5-402, C.R.S.2002, from pursuing a Crim. P. 35(c) motion to vacate his guilty plea. He filed in the trial court a motion to vacate, which he later indicated was premature because there was no judgment of conviction to vacate. The trial court disagreed, finding the motion was not premature and that it was time barred under § 16-5-402. Because, based on defendant’s representations to us, the issue is likely to resurface in the trial court, we elect to address it.

In cases like defendant’s, § 16-5-402(1), C.R.S.2002, ordinarily requires that a collateral attack on a conviction be made within three years of “the date of said conviction,” which, the trial court found, was November 2, 1998, when defendant entered his guilty plea.

The limitations period of § 16-5-402 cannot commence until there is a right to pursue a collateral attack. In People v. Anderson, 703 P.2d 650, 652 (Colo.App.1985), a division of this court concluded that Crim. P. 35 review is not available until a deferred judgment is revoked and a judgment of conviction entered. Because the language of our statute and rule on postconviction remedies imply as much, see § 18-1-410, C.R.S.2002; Crim. P. 35(c), we agree with the decision in Anderson.

Accordingly, because the time for initiating a collateral attack did not occur here until May 2002, defendant is not yet barred by § 16-5-402 from moving to vacate his plea.

The order and judgment are affirmed.

Judge NEY and Judge LOEB concur.


author: Chief Judge DAVIDSON.

text:
    NEW FRONTIER MEDIA, INC., a Colorado corporation, Plaintiff-Appellant, v. Henry FREEMAN, an individual, and Noel Westerland, an individual, Defendants-Appellees.
    No. 02CA1511.
    Colorado Court of Appeals, Div. A.
    Dec. 31, 2003.

      Senn Yisciano Kirschenbaum, P.C., Frank W. Visciano, Luis A. Toro, Denver, Colorado, for Plaintiff-Appellant.
    Gorsuch Kirgis LLP, Peter R. Nadel, Carrie C. Kollar, Denver, Colorado, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.

   Opinion by

Chief Judge DAVIDSON.

In this declaratory judgment action, plaintiff, New Frontier Media, Inc., appeals from the judgment dismissing its complaint for lack of personal jurisdiction over defendants, Henry Freeman and Noel Westerland. We affirm.

The following facts are not disputed. Plaintiff is a Colorado corporation, Freeman is a resident of New Jersey, and Westerland is a resident of Florida. Defendants are shareholders in three New Jersey corporations.

In 2000, a representative of plaintiff met with Freeman in New York and inquired whether defendants would be interested in selling to plaintiff their stock in the New Jersey corporations. Defendants then authorized a business associate, Mark Scagliu-so, who resided in Atlanta, Georgia, to negotiate with plaintiff on their behalf. Thereafter, telephonic negotiations took place between plaintiff and defendants, through Scagliuso.

These negotiations culminated in the parties entering into a Letter of Intent (LOI) that was signed by defendants in New Jersey. The LOI summarized potential terms of the proposed transaction and also contained several binding terms. One of these terms provided, in relevant part, that if plaintiff terminated negotiations without cause or refused to consummate the transaction, it would be required to reimburse defendants for their documented expenses up to a maximum of $100,000.

Several months after the parties executed the LOI, Scagliuso sent a letter to plaintiff in Colorado setting forth several modifications to the proposed transaction and indicating that he could not recommend to defendants that they proceed without those modifications. After some additional communications between the parties, negotiations broke down, and the proposed transaction was never completed. Several months later, Scagliu-so sent another letter to plaintiff in Colorado seeking reimbursement pursuant to the LOI for $100,000 in expenses.

Plaintiff then commenced this action in Colorado seeking a declaratory judgment as to the parties’ respective rights and obligations under the LOI. Defendants filed motions to dismiss, arguing that the court lacked personal jurisdiction over them. Relying primarily on the fact that plaintiff had initiated the proposed transaction, the trial court concluded that defendants did not have sufficient contacts with Colorado to justify exercising personal jurisdiction over them, and it granted defendants’ motions to dismiss the action.

On appeal, plaintiff contends that this determination was erroneous. Although our reasoning differs somewhat from that of the trial court, we disagree with plaintiffs contention.

Whether a court may properly assert personal jurisdiction over a party is a question of law, to be reviewed de novo by this court. Union Pac. B.R. v. Equitas Ltd., 987 P.2d 954 (Colo.App.1999).

Colorado’s long-arm statute extends jurisdiction to anyone who personally, or through an agent, engages in the transaction of any business within Colorado, where the claim for relief arises from transaction of that business. See § 13-l-124(l)(a), C.R.S.2003. In adopting this statute, the General Assembly intended to extend the personal jurisdiction of Colorado’s courts to their maximum limits permissible under the United States and Colorado Constitutions. Scheuer v. Dist. Court, 684 P.2d 249 (Colo.1984). Thus, with regard to the kinds of acts described by the statute, “[tjhis interpretation obviates the need for statutory analysis separate from the due process inquiry required by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny.” Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo.2002)(quoting C.F.H. Enter., Inc. v. Heatcool, 538 F.Supp. 774, 775 (D.Colo.1982)).

States generally have a manifest interest in providing their residents with a convenient forum for redressing injuries inflicted by out-of-state actors, and while presence is clearly not a prerequisite of personal jurisdiction, nevertheless, due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a remote forum. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

The foreseeability that is critical to the due process analysis necessarily requires that the defendant’s conduct and connection with the forum state be such that the defendant should reasonably anticipate being haled into court there. Keefe v. Kirschenbaum & Kirschenbaum, P.C., sv,pra. The constitutional touchstone remains whether the defendant purposefully established minimum contacts in the forum state, and it is essential that there be some act by which the defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra (citing Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and Int’l Shoe Co. v. Washington, supra).

For a jurisdiction to adjudicate claims arising from a nonresident’s contacts with the forum state, the fair warning requirement is satisfied if the litigation results from alleged injuries that arise out of or relate to activities that are significant and purposefully directed by the defendant at residents of the forum. Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra.

Here, plaintiff relies upon the following to establish the required minimum contacts: (1) the existence of the LOI; (2) the letter defendants’ agent sent to plaintiff in Colorado proposing modifications to the proposed transaction; and (3) the agent’s demand letter pursuant to the LOI sent to Colorado after plaintiffs notice of termination. We conclude that these contacts were insufficient.

When the only alleged basis for jurisdiction is a contract between a resident plaintiff and a nonresident defendant, the necessary minimum contacts are not present to confer personal jurisdiction over such a defendant. See SGI Air Holdings II LLC v. Novartis Int'l, AG, 192 F.Supp.2d 1195, 1202 (D.Colo.2002) (“the law is clear that a party does not submit itself to personal jurisdiction in a distant forum simply by entering into a contract with a party that resides in that forum”); Automated Quill, Inc. v. Chernow, 455 F.Supp. 428, 432 (D.Colo.1978) (“mere existence of a contract” is insufficient to support personal jurisdiction).

Instead, to confer jurisdiction, the contract typically must either require activity by the defendant in the forum state, see Scheuer v. Dist. Court, supra (ongoing legal representation); have been negotiated instate pursuant to substantial and significant contacts, see Mr. Steak, Inc. v. Dist. Court, 194 Colo. 519, 574 P.2d 95 (1978); have been executed by the defendant in-state, see Halliburton Co. v. Texana Oil Co., 471 F.Supp. 1017 (D.Colo.1979); or have been solicited by the out-of-state defendant, see Martinez v. Farmington Motors, Inc., 931 P.2d 546 (Colo.App.1996). Accordingly, in evaluating the sufficiency of contacts pursuant to a contract, we examine the origin of the relationship, the significance of the negotiations, the execution of the contract itself, and any future obligations in Colorado by the defendant arising out of the contract.

To constitute activity in the forum state, physical presence is not required; instead, contact by telephone or mail may be sufficient to furnish the necessary minimum contacts. See H20 Eng’g, Inc. v. Leidy’s, Inc., 799 P.2d 432 (Colo.App.1990), rev’d on other grounds, 811 P.2d 38 (Colo.1991); see also Burger King Corp. v. Rudzewicz, supra (noting the inescapable fact that a substantial amount of business is now transacted solely by mail and telephone communications across state lines). However, absent other persuasive contacts, when such communications are related to a “mere contract,” even substantial alleged telephone and mail contacts may not be sufficient. See Nat’l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250 (D.Colo.2000)(approximately 138 facsimile and telephone contacts pursuant to transaction not sufficient).

Here, it is undisputed that defendants did not enter Colorado in the course of this transaction and that they had no other contacts with Colorado. It is also undisputed that plaintiff initiated the transaction with defendants out of state, the due diligence pursuant to the LOI was done out of state, the assets to be purchased are located out of state, the LOI did not require defendants to perform any act within Colorado, and the LOI was signed out of state.

Thus, because most of the requisite contacts are missing here, we are not persuaded that the two letters sent from defendants’ agent to plaintiff in Colorado are otherwise sufficient to establish the minimum contacts to obtain jurisdiction over defendants. Although we acknowledge that personal jurisdiction is determined on a case-by-case basis, plaintiff has cited no authority, and we have found none, permitting jurisdiction on the basis of the contacts shown here.

Moreover, although considerations such as the forum state’s interest in adjudicating the dispute and the plaintiffs interest in obtaining convenient and effective relief may also establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required, see Keefe v. Kirschenbaum & Kirschenbaum, P.C., supra, plaintiff has made no showing that litigating out of state would cause it particular hardship or that Colorado has any particular interest in maintaining jurisdiction over this action.

Accordingly, we conclude that defendants have not purposefully engaged in sufficient contacts with Colorado relating to the LOI so as to justify the trial court’s exercise of personal jurisdiction over them in this action seeking to determine the parties’ rights under the LOI itself.

The judgment is affirmed.

Judge WEBB and Judge HUME concur.


author: Judge GRAHAM.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Baruch Joseph BACHOFER, Defendant-Appellant.
    No. 02CA1381.
    Colorado Court of Appeals, Div. II.
    Dec. 31, 2003.

      Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge GRAHAM.

Defendant, Baruch Joseph Bachofer, appeals the trial court’s order denying his motion to suppress evidence obtained as the result of allegedly unlawful searches. We reverse and remand for further findings.

In April 2001, deputies were dispatched to defendant’s home to execute an outstanding arrest warrant pertaining to a domestic violence charge. Upon arriving, they followed defendant into a detached garage, where they arrested him and observed a companion. The deputies searched the companion and found an eighth of an ounce of methamphetamine in his pocket. The deputies then placed the companion under arrest and searched the garage, where they found a partially disassembled automobile with no apparent VIN number, equipment, and an air compressor.

Thereafter, a third deputy prepared a request for a search warrant with an affidavit containing information supplied by an informant and the deputies who arrested defendant and the companion. The affidavit suggested that defendant had been stealing cars and implied a connection between the air compressor found in defendant’s garage and one which had been stolen some weeks earlier. Although the informant had advised that persons present at defendant’s home were “possibly” dealing drugs, the affidavit averred that occupants of defendant’s home were dealing drugs. Finally, based upon statements made by the companion, the affidavit reported that he had admitted that he and defendant used methamphetamine on the day of the arrest and that he had purchased one-eighth of an ounce of the drug weekly, sometimes giving it away or trading it for property.

A warrant was issued authorizing the search of defendant’s house, his garage, a shed, and a trailer seeking evidence of any controlled substance, vehicle theft, or stripping and sale of automotive parts. In executing the warrant the deputies found no prescribed evidence, but encountered in defendant’s house a fifteen-year-old girl, N.S., who volunteered that she was living and having sex with defendant. N.S. offered nude photographs of herself, taken by defendant.

Against this background, a second warrant was issued authorizing the seizure of defendant’s bed linens and other photographs of N.S.

Based on evidence discovered during the execution of the two warrants, defendant was charged with sexual assault, sexual exploitation of a child, contributing to the delinquency of a minor, and harboring a minor.

Defendant filed a motion to suppress all evidence obtained during the searches. As grounds, defendant alleged that the first search warrant had been issued based on a facially insufficient affidavit that omitted material facts. The trial court conducted an evidentiary hearing on the motion and denied relief, ruling that the first search was lawful.

Defendant subsequently pleaded guilty to sexual exploitation of a child pursuant to a plea agreement, and the other charges were dismissed. As part of the plea agreement, the parties stipulated that defendant’s guilty plea would not waive his right to appeal the trial court’s suppression ruling.

I. Jurisdiction

As a preliminary matter, we asked the parties to address at oral argument whether the plea of guilty waived defendant’s claim of infirmity in the suppression hearing. In the oral arguments, both parties urged that an agreement accepted by the court operated to preserve suppression issues on appeal. We agree.

Prior cases have suggested that some constitutional challenges survive guilty pleas. See People v. Patton, 7 P.3d 1057 (Colo.App.1999)(double jeopardy challenge based on the face of the charging instrument survives guilty plea), rev’d on other grounds, 35 P.3d 124 (Colo.2001); cf. People v. Isham, 923 P.2d 190 (Colo.App.1995)(a guilty plea waives all nonjurisdictional objections, including Sixth Amendment rights). Generally, a guilty plea waives a defendant’s right to challenge his plea on the basis of an illegal search and seizure. See Waits v. People, 724 P.2d 1329 (Colo.1986)(the defendant there did not attempt to preserve his right to appeal the suppression hearing).

Fed.R.Crim.P. 11(a)(2) allows a defendant to enter a conditional plea of guilty, preserving the right to appeal adverse pretrial matters, but the Colorado counterpart, Crim. P. 11, does not contain a similar provision. In People v. Hart, 787 P.2d 186 (Colo.App.1989), a division of this court recognized a procedure where the parties tried the case on stipulated facts, thereby preserving the right to appeal adverse pretrial rulings. However, we are unaware of any Colorado cases that have squarely addressed the question whether a written plea bargain may preserve that right.

Here, we conclude that defendant preserved his right to appeal the suppression ruling in the written plea agreement. We perceive no prohibition of the agreement used here and conclude that in the interest of judicial economy, there is no justification for barring a stipulation whereby a defendant pleads guilty to a charge on the condition that he or she may nevertheless seek review of an adverse pretrial ruling that directly affects that charge.

II. First Search Warrant

Defendant argues that the affidavit supporting the first search warrant lacked probable cause and was insufficient to authorize the search of his residence. We agree.

We review de novo whether the affidavit provided a substantial basis for the issuing judge to conclude that probable cause existed for a valid search warrant under the Fourth Amendment. People v. Randolph, 4 P.3d 477 (Colo.2000); see also People v. Hebert, 46 P.3d 473 (Colo.2002)(sufficiency of affidavit reviewed de novo). Probable cause must be established with respect to each place to be searched. People v. Randolph, supra.

Vague allegations in the affidavit will not suffice. There must be a connection shown between the crime suspected and the area to be searched. People v. Kazmierski, 25 P.3d 1207 (Colo.2001). Where the affidavit describes a variety of locations without specifying the crime being perpetrated at each, the geographic scope of the affidavit comes under close scrutiny. People v. Ran dolph, supra. The totality of the circumstances must be such that a person of reasonable caution would suspect that criminal activity is taking place at the place to be searched. People v. Randolph, supra.

Based upon defendant’s motion to suppress, the trial court struck certain portions of the first affidavit that contained eonclusory and uncorroborated allegations of defendant’s theft and stripping of automobiles. However, the trial court found that the remaining allegations that the companion possessed methamphetamine and made statements to deputies provided probable cause to search defendant’s residence. We disagree.

The companion’s possession of one-eighth of an ounce of methamphetamine, while he was standing in defendant’s detached garage, does not justify the search of defendant’s residence. The record indicates that one informant told deputies that the companion was selling methamphetamine, and that the informant had seen the companion with methamphetamine. The companion also told the deputies that he had purchased and given, sold, or traded one-eighth of an ounce of methamphetamine each week; that he had arrived at defendant’s garage at about 4 p.m.; and that the two men had consumed methamphetamine.

However, the fact that the companion arrived at defendant’s garage and gave some of his methamphetamine to defendant does not lead to the inference that defendant possessed methamphetamine in his residence or that he was dealing the drug from his residence. See People v. Sprowl, 790 P.2d 848 (Colo.App.1989)(no probable cause found where the affidavit alleged that the defendant had previously dealt drugs and described an intercepted phone call from a known drug dealer who said he was making a delivery of “things” to defendant); cf. United States v. Wald, 216 F.3d 1222 (10th Cir. 2000)(smell of burnt methamphetamine at traffic stop did not provide probable cause to search trunk).

We therefore conclude that there was insufficient information within the four corners of the first affidavit to support a finding of probable cause to issue the first search warrant.

III. Good Faith Exception

The People nevertheless argue that, because the officers satisfied the good faith exception to the exclusionary rule, the evidence seized under the warrants need not be excluded. However, the trial court made no finding regarding good faith. We therefore remand for determination whether there was good faith sufficient to satisfy the statutory requirements of § 16-3-308(1), C.R.S.2003.

Where officers executing a warrant reasonably and in good faith believe that they are executing a legitimate warrant, the evidence obtained may be admissible, even if the warrant is found to be defective. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The good faith exception is codified in Colorado in § 16-3-308(1), which provides that evidence should not be suppressed if it was “seized by a peace officer ... as a result of a good faith mistake or of a technical violation.” The statute presumes good faith where the “evidence was obtained pursuant to and within the scope of a warrant, unless the warrant was obtained through intentional and material misrepresentation.” Section 16-3-308(4)(b), C.R.S.2003.

Defendant argues that the deputies here intentionally omitted from the first affidavit information that would have resulted in a rejection of the application for warrant. However, the trial court found probable cause and did not consider whether the statutory good faith exception applied. On remand, the trial court shall make that determination.

IV. Common Authority Consent

Defendant also argues that all the information obtained during the search of his residence should be suppressed because it is the fruit of an illegal search. We remand for further findings.

In the pi-ocess of executing the first search warrant, the deputies encountered N.S., and she voluntarily offered statements and photographs which ultimately supported the second affidavit and the charge of sexual exploitation of a child. Defendant argues that but for the defective first search warrant, the deputies would not have discovered N.S. and the information she provided. “The fruit of the poisonous tree doctrine excludes evidence discovered as a result of a Fourth Amendment violation.” People v. McFall, 672 P.2d 534, 537 (Colo.1983). All the evidence supporting the charge of sexual exploitation of a child emanated from N.S., and defendant contends that ■ such evidence should have been suppressed.

However, a valid consent for a search “may be obtained either from the individual whose property is searched, or from a third party who possesses common authority over the property.” People v. Hopkins, 870 P.2d 478, 480 (Colo.1994). Colorado has adopted the common authority doctrine under which the officer must have an objectively reasonable belief that the third person had authority to allow the search. People v. Breidenbach, 875 P.2d 879 (Colo.1994).

Because the trial court made no findings about the authority possessed by N.S., on remand the court should consider whether the officers reasonably believed N.S. had authority to allow a search of the residence and therefore properly consented to the search.

The order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge MARQUEZ and Judge ROTHENBERG concur.


author: Judge NIETO.

text:
    SHAFER COMMERCIAL SEATING, INC. and Wausau Insurance Companies, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Jose Cortez, Respondents.
    No. 02CA2567.
    Colorado Court of Appeals, Div. III.
    Dec. 31, 2003.
    Certiorari Denied March 15, 2004.

      Law Office of Jonathan S. Robbins, Douglas W. Poling, Denver, Colorado, for Petitioners.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Pepe J. Mendez & Associates, P.C., Pepe J. Mendez, Abel Alvarado, Denver, Colorado, for Respondent Jose Cortez.
   Opinion by

Judge NIETO.

Shafer Commercial Seating, Inc., and its insurer, Wausau Insurance Companies (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that Jose Cortez (claimant) sustained a compensable injury and awarding permanent total disability benefits. We affirm.

Claimant directed interrogatories to employer in December 2001. Employer did not respond, and claimant filed a motion to compel. A prehearing administrative law judge (PALJ) granted claimant’s motion to compel discovery, ordering employer to “fully and completely respond to claimant’s interrogatories without delay” no later than five days after receipt of the order. Although claimant received partial responses to the discovery by March 18, 2002, claimant sought an order for sanctions against employer and for entry of a default judgment.

In the meantime, employer filed a motion on March 14, 2002, to add a coemployee as a witness to address the compensability of the claim, asserting that it had just discovered the existence of that witness. That motion was granted by the PALJ at a prehearing conference on April 2, 2002, and employer was also required to provide certain other discovery within five days of receipt of the order. The PALJ ruled that she did not have jurisdiction to decide claimant’s motion for sanctions.

On April 9, 2002, the administrative law judge (ALJ) granted claimant’s previously filed motion for sanctions. She ordered that employer’s witnesses and affirmative defenses were struck and that employer was precluded from introducing any document that had not been exchanged at least twenty days prior to the hearing scheduled for April 25, 2002.

At the hearing, employer requested that the ALJ reconsider the order precluding the presentation of witnesses. After considering the arguments of counsel and reviewing the file, the ALJ found that employer had not completely complied with the order to compel and declined to reconsider the order for sanctions. Therefore, employer was precluded from presenting the testimony of the coworker and safety manager. Only claimant testified at the hearing.

I.

Initially, we reject employer’s assertion that a de novo standard of review applies.

The decision to impose a sanction will not be overturned unless such decision was an abuse of discretion, or manifestly arbitrary, unreasonable, or unfair. Nagy v. Dist. Court, 762 P.2d 158 (Colo.1988); see also Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App.1991).

II.

Employer asserts that the ALJ erred in imposing discovery sanctions because she failed to find specifically that any discovery violation was willful. We disagree.

The purposes of discovery and pretrial procedural rules include the production of relevant evidence, the simplification of issues, the elimination of surprise, and the encouragement of fair and just settlements. See J.P. v. Dist. Court, 873 P.2d 745 (Colo.1994).

Section 8-43-207(l)(e), C.R.S.2003, provides: “The director or administrative law judge may rule on discovery matters and impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery.”

Whether to impose sanctions and the nature of the sanctions to be imposed are matters within the fact finder’s discretion. The fact finder is given flexibility in choosing the appropriate sanction and should exercise informed discretion in imposing a sanction that is commensurate with the seriousness of the disobedient party’s conduct. Nagy v. Dist. Court, supra.

The term “willful” has been defined under the Workers’ Compensation Act to mean acting with deliberate intent. Miller v. Indus. Claim Appeals Office, 49 P.3d 334 (Colo.App.2001). Further, Dep’t of Labor & Employment Rule VIII(E)(7), 7 Code Colo. Regs. 1101-3, provides that “[ojnce an order to compel has been issued and properly served upon the parties, failure to comply with the order to compel shall be presumed willful.”

Finally, the ALJ is not held to a crystalline standard of findings. See Magnetic Eng’g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App.2000). Thus, the ALJ is presumed to have considered the relevant legal principles, including the requirement of willfulness, when entering an order. See Dravo Corp. v. Indus. Comm’n, 40 Colo.App. 57, 569 P.2d 345 (1977).

Here, the ALJ explicitly found that employer had not fully complied with the order compelling discovery. We agree with the Panel that the ALJ’s finding was sufficient to comply with § 8-43-207(l)(e). When the order is read in conjunction with (1) the presumption accorded by Rule VIII(E)(7); (2) employer’s failure to timely respond to the original discovery request; (3) its failure to timely comply with both the order compelling discovery and the order for discovery entered at the prehearing conference; and (4) its failure to respond to the motions to compel and for sanctions, the ALJ clearly found the violation was willful.

The record also supports the ALJ’s finding that employer failed to fully comply with the order compelling discovery and that the sanction of witness preclusion was appropriate. Employer admitted that it was delinquent in providing claimant a summary of the safety manager’s testimony and that it had not fully supplied the documents relating to the coworker by the deadline imposed by the PALJ. Additionally, the summary of the safety manager’s testimony was limited to one conclusory sentence and, therefore, lacked the requisite details. The summary of the coworker’s testimony, while provided by March 18, 2002, also consisted merely of a one-line summary, which did not include any details, date, time, or circumstances of the alleged conversation with claimant.

Accordingly, we agree with the Panel that the record established a pattern that employer did not comply with discovery requirements and, therefore, the ALJ did not abuse her discretion in precluding employer from presenting the testimony of the coworker or safety manager.

We are not persuaded by employer’s argument that it substantially complied with the order to compel because it supplied the requested information only two or three days beyond the last imposed deadline. Neither § 8-43-207(l)(e) nor Rule VIII(E)(7) supports that interpretation. Further, employer has not shown that its belated production of the information was the result of mistake, lack of knowledge, or some other basis that would explain the failure to comply with the prior orders and negate the determination of deliberate intent. It has merely provided a plausible explanation for the ALJ’s decision not to impose the more severe sanction of default. See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo.l987)(a sufficient level of culpability for default generally will be present where an order compelling discovery was entered and the party failed to comply)-

The order is affirmed.

Judge TAUBMAN and Judge CARPARELLI concur.


text:
    2004 OK 3
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Steven ANGEL, Respondent.
    No. SCBD 4848.
    Supreme Court of Oklahoma.
    Jan. 27, 2004.
   ORDER

¶ 1 Upon consideration of (1) respondent’s affidavit, prepared in compliance with Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, by which a request is made that he be allowed to relinquish his license to practice law (cum membership in the Oklahoma Bar Association [Bar]) and (2) complainant’s application for order approving resignation,

¶ 2 THE COURT FINDS AND HOLDS:
¶ 3 1. During the pendency of disciplinary proceedings against him Steve Angel [respondent] offered, on 4 November 2003, to surrender his license to practice law and to resign from Bar membership.
¶4 2. Respondent’s act of surrender and resignation was freely and voluntarily made without coercion or duress. Respondent is fully aware of the legal consequences that will flow from his resignation.
¶ 5 3. Respondent is aware of pending investigations by the Bar’s general counsel into grievances made against him. If proven, these grievances would constitute violations of Rules 1.3 and 5.2, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, of Rules 1.1, 1.3, 1.4, 1.5, 1.7, 1.9, 1.16, 5.5, 8.1, and 8.4(a), Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch.l, App. 3-A, as well as of his oath as a licensed Oklahoma lawyer.
¶ 6 4. The grievances, which are designated in the General Counsel’s Office by the indicated prefix and number, contain these ehent allegations:
DC 02-337 Aside from respondent’s failure to return unearned portions of his fee, respondent neglected, failed to communicate with and to provide competent service to Joe M. Beasley, his client. DC 02-421 Aside from respondent’s failure to return unearned portions of his fee, respondent neglected, failed to communicate with and to provide competent service to Larry James Phillips, his client.
DC 03-122 Aside from respondent’s failure to return unearned portions of his fee, respondent neglected and failed to communicate with Patrick Keeth, his client. Respondent also failed to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-153 Aside from respondent’s failure to return unearned portions of his fee, respondent neglected, failed to communicate with and to provide competent service to Giuseppe Marini, his client. Respondent also failed to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-168 Aside from respondent’s failure to return unearned portions of his fee, respondent also neglected and failed to communicate with Sylvia Borrego, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-202 Respondent neglected and failed to communicate with Jack Haning, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-209 Respondent neglected and failed to communicate with Dixi Beasley, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-210 Aside from respondent’s failure to return unearned portions of his fee, respondent also neglected and failed to communicate with Rick S. Chappel, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-214 Aside from respondent’s failure to return unearned portions of his fee, respondent also neglected and failed to communicate with Rosalinn Minh Giang, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-215 Respondent, who received a retainer fee from Dale Sparks, his client, to represent him in a handicap discrimination lawsuit, failed to return the unused portion of the retainer fee as requested by Sparks and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-223 Respondent neglected and failed to communicate with James High, his client. Respondent also failed to respond to the grievance as required by
Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-234 Respondent neglected and failed to communicate with Norma June Yocham-Balsano, his client, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
DC 03-237 Respondent neglected and failed to communicate with Douglas and Bonnie Martinez, his clients, and to respond to the grievance as required by Rule 5.2, Rules Governing Disciplinary Proceedings.
¶ 7 5. Respondent waives any and all of his rights to contest the allegations outlined in his affidavit.
¶ 8 6. Respondent recognizes, understands and agrees that he may not apply for reinstatement of his legal license (and of his membership in the Bar) before the expiration of five (5) years from the effective date of this order.
¶ 9 7. Respondent agrees to comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and acknowledges that his license to practice law may be reinstated only upon compliance with the conditions and procedures prescribed by Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.
¶ 10 8. Respondent acknowledges that his actions may result in claims against the Client Security Fund and agrees to reimburse the Fund for any disbursements made or to be made because of his actions.
¶ 11 9. Costs of this proceeding have been expressly waived by the complainant.
¶ 12 10. Respondent’s resignation during the pendency of disciplinary proceedings is in compliance with Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.
¶ 13 11. Respondent’s name and address appear on the official Bar roster as: Steve Angel, 2601 NW Expressway Suite 500W, Oklahoma City, OK 73112.

¶ 14 THE COURT THEREFORE ORDERS THAT the resignation of Steven Angel, tendered during the pendency of disciplinary proceedings, stands approved; the respondent’s name is stricken from the Roll of Attorneys and he may not apply for reinstatement of his license to practice law (and of his membership in the Bar) before the lapse of five (5) years from the date of this order; repayment to the Client Security Fund for any money disbursed (or to be disbursed) because of respondent’s conduct shall be a condition of respondent’s reinstatement; respondent shall comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; and the complainant’s waiver of costs in this cause stands approved.

¶ 15 ALL JUSTICES CONCUR.

      . Although respondent was being treated for major depression, he concedes that, "this condition does not preclude me from executing this affidavit of resignation.”