author: Judge METZGER.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony R. LANDIS, Defendant-Appellant.
    No. 98CA1550.
    Colorado Court of Appeals, Div. A.
    March 16, 2000.
    Certiorari Denied Sept. 18, 2000.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Dana Nichols, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge METZGER.

Defendant, Anthony R. Landis, appeals the trial court's order denying his Crim. P. 85(c) motion. We affirm.

Defendant was charged with second degree burglary, theft, and three counts of being an habitual criminal.

Before trial, defendant filed a motion to dismiss the habitual criminal counts. At the hearing, defendant testified that one of the charged habitual criminal offenses had been reduced from a felony to a misdemeanor under the terms of a plea agreement in Virginia. Defendant also testified that, even though he had served his sentence for this conviction, he had neither confirmed that the conviction had been entered as a misdemean- or nor had he appealed the conviction. Defendant further admitted on cross-examination that the written plea agreement stated that the Virginia court agreed only to consider a recommendation that he receive misdemeanor sentencing for the offense.

The trial court found that no such promise had been made as a part of the plea agreement. Instead, the court found, the Virginia court had agreed only to consider the prosecutor's recommendation for misdemeanor sentencing. Finding that the conviction was for a felony, the court denied defendant's motion.

During the habitual criminal phase of defendant's trial, his counsel from the Virginia case testified that defendant had pled guilty to a felony but had been sentenced under Virginia law to misdemeanor punishment. Thus, counsel concluded, defendant's convietion was for a misdemeanor, not for a felony.

Defendant was convicted of the charged offenses, was adjudicated as an habitual criminal on the basis of a finding that he had sustained three prior felony convictions, and was sentenced to life in prison under the statute then in effect.

Thereafter, defendant appealed all these determinations. During the pendency of that appeal, he received a limited remand to the trial court to determine the nature of the Virginia conviction.

On remand, the trial court conducted a hearing and reviewed the Virginia plea agreement and the sentencing hearing tran-seript. The court again determined that defendant had been convicted of a felony in Virginia.

A division of this court affirmed that conclusion. People v. Landis, (Colo.App. No. 84CA1259, July 6, 1989) (not selected for official publication).

Defendant later filed a Crim. P. 85(c) motion in 1990 seeking a proportionality review of his sentence. This motion was denied by the trial court and was affirmed on appeal. People v. Landis, (Colo.App. No. 95CA0292, July 11, 1996) (not selected for official publication).

In February 1998, following a hearing on a motion by defendant, a Virginia trial court determined that, under the terms of the plea agreement, defendant had been convicted of and sentenced for a misdemeanor.

On the basis of this ruling, defendant soon filed a new motion under Crim. P. 35(a) and (c) arguing that the Virginia court decree was newly-discovered evidence constituting sufficient justifiable excuse or exeusable neglect to satisfy the requirements of People v. Wiedemer, 852 P.2d 424 (Colo.1998). Therefore, he argued, the court should vacate his sentence and resentence him because the Virginia decree reduced his convictions for previous felonies from three to two.

Following a hearing, the trial court denied defendant's motion as untimely under § 16-5-402, C.R.S.1999. It found that, because defendant had waited almost ten years to attack his Virginia conviction in that state, the current motions were untimely, and no justifiable exeuse or excusable neglect existed to exeuse the late filings.

The court also found that the issue whether defendant's conviction was a felony or a misdemeanor had been fully litigated and resolved. Therefore, the court found, the determination that defendant's conviction was for a felony was the law of the case and was binding.

Defendant contends the trial court erred in determining his Crim. P. 85(c) motion was untimely. Specifically, he argues, the Virginia court decree declaring his felony conviction to be a misdemeanor conviction constitutes newly discovered evidence which is sufficient to justify his assertions of justifiable excuse or excusable neglect. We disagree.

Under § 16-5-402(1), C.R.98.1999, a defendant who is convicted of a felony other than a class one felony in Colorado or any other state must bring a collateral attack on the conviction no later than three years after it is obtained. Under the decision in People v. Fagerholm, 768 P.2d 689 (Colo.1989), persons such as defendant, whose Virginia conviction was obtained on April 15, 1981, had a five-year grace period, until July 1, 1989, to bring a collateral attack on this conviction in Colorado. Since defendant did not do so, he had to show justifiable excuse or excusable neglect.

Relevant factors to be considered in determining whether justifiable exeuse or excusable neglect are present include: 1) the existence of cireumstances or outside influences preventing a challenge to a prior conviction; 2) the extent to which a defendant having reason to challenge the constitutionality of a prior conviction investigates the validity of and takes advantage of the available avenues of relief; 3) whether the defendant had a previous need to challenge the conviction; and 4) whether the defendant had any reason to question its validity. People v. Wiedemer, supra.

Here, defendant argues that, by challenging the nature of the Virginia conviction in a pre-trial motion, .at the habitual phase, and on appeal to this court, he did take advantage of the avenues of relief available to him. However, he did not pursue the most direct and available avenues of relief-a direct appeal or collateral attack of the conviction in the Virginia courts.

Defendant did not seek postconviction relief from the Virginia courts until 1998, some 14 years after the conviction was entered. He does not argue that he was precluded from pursuing such action in Virginia or that any reason existed to excuse the late filing.

Further, defendant was fully aware of the grounds for attacking his Virginia conviction and was on notice from the Virginia providency proceedings that, although he had received a misdemeanor sentence, his conviction might be considered to be a felony conviction. Indeed, defendant repeatedly asserted this argument in different forms in the trial and appellate courts of this state.

Defendant argues, nevertheless, that, because the Virginia court's pronouncement was not announced until 1998, he has shown justifiable exeuse or excusable neglect. However, the decree did not issue earlier only because defendant failed to seek relief in the Virginia courts until almost 14 years after his conviction had entered. Under these circumstances, we conclude that defendant has not established justifiable excuse or excusable neglect. Thus, the trial court did not err in denying defendant's Crim. P. 35(c) motion as untimely.

In light of this disposition, we need not address defendant's remaining contentions of error.

The order is affirmed.

Justice KIRSHBAUM and Judge CRISWELL concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    Danuta TRACZ and Gaspar Manka, By and Through his next friend and mother Danuta TRACZ, Plaintiffs-Appellants, v. CHARTER CENTENNIAL PEAKS BEHAVIORAL HEALTH SYSTEMS, INC., a Colorado corporation; American Medical Response of Colorado, a Colorado corporation; Angela Beckett; and Timothy Justice, M.D., Defendants-Appellees.
    No. 98CA0795.
    Colorado Court of Appeals, Div. IV.
    March 30, 2000.
    Certiorari Denied Oct. 10, 2000.

      The Law Office of Darin Locke, Darin Locke, Superior, Colorado, for Plaintiffs-Appellants.
    Montgomery Little & McGrew, P.C., Richard L. Murray, Jr., Patrick T. O'Rourke, Englewood, Colorado, for Defendants-Appel-lees Charter Centennial Peaks Behavioral Health Systems, Inc., Angela Beckett and Timothy Justice, M.D.
    Overturf & McGath, P.C., Seott A. McGath, Denver, Colorado, for Defendant, Appellee American Medical Response of Colorado.
   Opinion by

Judge KAPELKE.

Plaintiffs, Danuta Tracz (Tracz) and Gas-par Manka (Manka), appeal from the summary judgment entered in favor of defendants, Charter Centennial Peaks Behavioral Health Systems, Inc. (Centennial Peaks), a Colorado corporation; American Medical Response of Colorado (AMR), a Colorado corporation; Angela Beckett; and Timothy Justice, M.D. We affirm.

In 1995, in response to an advertisement for free mental health screening, plaintiff Tracz was evaluated for depression by Beckett, a counselor employed by Centennial Peaks. Tracz completed a screening form, and her responses indicated that she was moderately to severely depressed and revealed that she seldom felt useful or needed and often felt that others would be better off if she were dead. Based on a 50-minute interview, Beckett concluded that Tracz was potentially suicidal and homicidal as a result of some form of mental illness.

According to Beckett, during the interview Tracz expressed a desire to kill her former boss, a former co-worker, and then herself,; refused to identify the former employer, the former boss, or the former co-worker; stated that she had looked at guns in stores and was thinking about buying one; reported symptoms of moderate to severe depression; and would not "contract for safety" by promising not to hurt herself or others until she could receive additional evaluation and treatment.

Tracz, in her own deposition, acknowledged that she might have told Beckett that she hated her boss, was angry at him, and wished to kill him, and that she had refused to agree to contract for safety.

Beckett then reported the information and her conclusion to Justice, a lHeensed psychiatrist, who authorized a 72-hour involuntary mental health hold on Tracz (the hold-and-treat order) pursuant to § 27-10-105, C.R.S. 1999, and authorized that she be transported to another facility for evaluation and for treatment, if necessary. Beckett and others made the arrangements, and the director of nursing at Centennial Peaks completed the paperwork for the hold-and-treat. According to Beckett, Tracz refused to listen to explanations about the nature and purpose of the hold or about her rights as a patient, and attempted to leave the building. She was detained with minimal force by the staff of Centennial Peaks.

Tracz was permitted to make a telephone call to her 12-year old son, Manka. She became emotionally upset during the call, however, and had to give the phone to a Centennial Peaks staff member, who explained to Manka that his mother was being held for evaluation. The staff member asked Manka if there were a neighbor with whom he could stay until his mother was able to come home. He responded affirmatively and gave a neighbor's name.

Two AMR employees, both emergency medical technicians, then drove Tracz in an ambulance to another health care facility. One of the AMR employees searched Tracz' purse for weapons, found none, and returned the purse to her. During the drive, one of the employees requested permission to take her vital signs, which Tracz refused to allow. The employee did not persist in his request.

In her deposition, Tracz said that she had entered the ambulance voluntarily; that no force had been used; that the employees had not been hostile, angry, or argumentative; and that she had been reassured by the driver's comments to the effect that she was behaving normally.

Within an hour after Tracz arrived at the other health care facility, an evaluation was completed and she was released upon her promise that she would return voluntarily for additional treatment and would not hurt herself or anyone else in the interim.

Later, Tracz filed this action asserting claims for false imprisonment, outrageous conduct, professional negligence, assault, and battery. She also asserted claims on behalf of her minor son, Manka. Tracz thereafter dismissed all of the claims asserted on behalf of Manka except the one based on outrageous conduct.

The trial court granted defendants' motions for summary judgment as to all remaining claims, and this appeal followed.

L.

Tracz first contends that the trial court erred in ruling that an in-person evaluation by a qualified person was not required under § 27-10-105, prior to her placement on an involuntary hold. We disagree.

Section 27-10-105, states in pertinent part:

(1) Emergency procedure may be invoked under either one of the following two conditions:
(a) When any person appears to be mentally ill and, as a result of such mental illness, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then a peace officer; a professional person [ie., person licensed to practice medicine in this state or psychologist certified to practice in this state}; a registered professional nurse ...; a licensed marriage and family therapist or licensed professional counselor ...; or a licensed clinical social worker ... each of whom is referred to in this section as the "intervening professional", upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation....
(2) Such facility shall require an application in writing, stating the cireumstances under which the person's condition was called to the attention of the intervening professional and further stating sufficient facts, obtained from the personal observations of the intervening professional or obtained from others whom he or she reasonably believes to be reliable, to establish that the person is mentally ill and, as a result of mental illness, an imminent danger to others or to such person or gravely disabled. (emphasis added).

The statute itself does not require an in-person evaluation. Rather, it allows a 72-hour hold to be based upon facts obtained by the intervening professional "from others whom he or she reasonably believes to be reliable." Section 27-10-105(2),

Despite the lack of an in-person evaluation requirement in the statute itself, Trace urges that, in order to withstand constitutional serutiny, the statute must be interpreted to require such an evaluation implicitly. We reject the contention.

Due process is a flexible standard and does not require the same procedural safeguards in all situations. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2598, 38 LEd.2d 484 (1972); Carberry v. Adams County Task Force on Alcoholism, 672 P.2d 206 (Colo.1983).

As our supreme court stated in Carberry v. Adams County Task Force on Alcoholism, supra, 672 P .2d at 210:

In the context of an emergency commitment, due process requires consideration of these distinct factors:
(1) the weight of the governmental interest in the emergency commitment process; (2) the severity of the deprivation suffered by the individual as a result of the governmental action; and (8) the functional appropriateness of the procedure for minimizing the risk of an erroneous decision, together with the probable value, if any, of additional safeguards.

See also Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 898, 47 L.Ed.2d 18 (1976).

As to the first factor, there is no question that the government has a compelling interest in the emergency commitment process because of its parens patrige duty to protect society against dangerously disturbed individuals and to protect persons who pose a danger to themselves or are gravely disabled. See Curnow v. Yarbrough, 676 P.2d 1177 (Colo.1984).

By the same token, however, with respect to the second factor, the severity of the deprivation, an individual who is taken into custody under an emergency involuntary hold has a substantial interest in avoiding the curtailment of liberty and adverse social consequences resulting from emergency commitment. See Carberry v. Adams County Task Force on Alcoholism, supra.

As to the third factor, the functional appropriateness of the procedures for minimizing the risk of an erroneous decision, we note that § 27-10-105(2) requires that the person providing factual information to the interviewing professional must be one whom the professional "reasonably believes to be reliable."

In our view, sufficient safeguards against the risk of an erroneous decision are supplied by the requirement of probable cause, together with the requirement that the professional's evaluation be based on factual information from a person reasonably believed to be reliable. Our conclusion is buttressed by the additional safeguard in § 27-10-105(4) mandating that: "Each person admitted to a seventy-two hour treatment and evaluation facility ... shall receive an evaluation as soon after he is admitted as possible...."

The touchstone remains the requirement of probable cause to believe that the individual is mentally ill and, as a result of such mental illness, is an imminent danger to others or to himself or herself or is gravely disabled. The probable cause requirement allows the statute to withstand a constitutional challenge based upon due process. People v. Marquez-Lopez, 952 P.2d 788 (Colo.App.1997).

As a division of this court pointed out in People in Interest of Paig, 48 Colo.App. 352, 356, 603 P.2d 976, 978 (1979); "[Als in the criminal law, probable cause should not be measured by the yardstick of legal technicality, but by the factual and practical considerations upon which a reasonable physician acts."

In Paiz the division upheld a 72-hour treatment and evaluation hold where the certifying physician's report was based on factual information obtained from the team leader on the hospital ward rather than on an in-person evaluation by the physician himself. The division expressly rejected the contention that the veracity of the ward leader had to be established by information in the physician's report.

Significantly, in Curnow v. Yarbrough, supra, the supreme court discussed the pertinent balancing factors and concluded that the involuntary short-term mental health commitment statute contained sufficient safeguards. These included, among others, the professional decision to initiate a 72-hour evaluation, the professional medical evaluation at the time of the involuntary short-term commitment, and the certification signed by a professional medical evaluator.

Upon consideration of the applicable balancing factors and in light of the available safeguards, we conclude that due process considerations do not require an in-person evaluation by an intervening professional.

Finally, we note that Tracz relies on McLean v. Sale, 54 N.C.App. 588, 284 S.E.2d 160 (1981), in urging that a first-hand evaluation is required. We find that case distinguishable because the pertinent North Carolina statute expressly mandated an examination by the certifying physician authorizing the involuntary hold. The decision was not based on any analysis of due process requirements.

IL.

Tracz next contends that the trial court erred in ruling that she had to present expert testimony in order to establish her negligence claims. Again, we disagree.

To prevail on a claim of professional negligence against a physician or other trained medical professional, a plaintiff must establish that the professional failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by that defendant. Further, unless the alleged negligence concerns subject matter within the common knowledge or experience of an ordinary person, both the standard of care and the defendant's failure to adhere to that standard must be established by expert opinion testimony of a qualified expert witness. Melville v. Southward, 791 P.2d 8388 (Colo.1990); Teiken v. Reynolds, 904 P.2d 1887 (Colo.App.1995).

The reason for the requirement of expert opinion testimony is that matters relating to medical diagnosis and treatment generally involve a level of technical knowledge and skill beyond the realm of lay knowledge and experience. Melville v. Southward, supra.

Here, Tracz asserts that Justice and the director of nursing at Centennial Peaks acted negligently by failing to examine her prior to initiating the hold.

The language of § 27-10-105(1)(a), C.R.S. 1999, authorizing the emergency evaluation and treatment hold procedure necessarily implies the exercise of judgment and discretion on the part of the professional instituting the procedure. See Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114 (Colo.App.1985). Further, as noted above, issues relating to commitment involve "considerations upon which a reasonable physician acts." People in Interest of Paiz, supra, 43 Colo.App. at 356, 608 P.2d at 978.

Thus, Tracz' professional negligence claim required a showing that Justice and the director of nursing did not act in conformance with the standard of care required of them as health care professionals. Accordingly, the trial court properly ruled that Tracz had to present expert testimony by a medical witness in order to establish her professional negligence claim against Justice and Centennial Peaks. In light of the absence of such evidence, the trial court properly granted summary judgment on that claim. See Melville v. Southward, supra.

Trace also argues that no expert medical testimony was required here because a jury could find negligence on the part of Justice and the director of nursing based on their failure to comply with a policy of the hospital requiring that the professional authorizing a hold and treat do so only after conducting an in-person evaluation. We reject the contention.

As discussed above, to establish a negligence claim against Justice and Centennial Peaks, Tracz had to demonstrate that they failed to conform to the applicable standard of care. Expert medical testimony is needed to define that standard under the cireum-stances and also to determine whether the defendants' conduct departed from it. The existence of the hospital policy here does not obviate the necessity for expert testimony in this regard.

Further, we agree with the Centennial Peaks defendants that because Tracz had to present expert medical testimony in order to establish a prima facie case on her professional negligence claim, she was required to file a certificate of review pursuant to § 13-20-602, C.R.S.1999. See Martinez v. Badis, 842 P.2d 245 (Colo.1992).

Moreover, as the supreme court recently recognized in State v. Nieto, 998 P.2d 498 (Colo.2000), the certificate of review requirement also applies with respect to respondeat superior claims asserted against the employer of a licensed professional based upon the alleged negligence of that professional. Thus, Tracz' failure to file a certificate of review provided an additional basis for summary judgment on Tracz' claims against both Centennial Peaks and Justice.

IIL

Tracz next contends there were genuine issues of material fact that precluded the entry of summary judgment in favor of the Centennial Peaks defendants on her claim of false imprisonment. Specifically, Tracz asserts that the court erred in concluding that these defendants had established their affirmative defense of legal justification as a matter of law. We disagree.

Essentially, this issue turns on whether there was a proper basis for the emergency 72-hour hold and treat under the civreum-stances here. As discussed above, we reject Tracz' contention that an in-person evaluation by Justice or the director of nursing was required.

In support of their motion for summary judgment, defendants submitted excerpts from the depositions of Justice, Beckett, and the director of nursing. Those submissions show that there was probable cause to believe that Trace posed an imminent danger to herself or others as a result of mental illness. Thus, Centennial Peaks, Justice, and Beckett met their initial burden of production to establish their affirmative defense that, in detaining Tracz, they were acting in accordance with a valid hold-and-treat procedure. The burden of production thus shifted to Tracz to show the existence of a genuine issue of material fact. See AviComm, Inc. v. Colorado Public Utilities Commission, 955 P.2d 1023 (Colo.1998).

With her response to the motion for summary judgment, Tracz submitted documents and portions of her own deposition, as well as portions of the depositions of Justice, Beckett, and the director of nursing. Those submissions, however, even when considered in the light most favorable to Tracz, do not create an issue as to whether Beckett, Justice, and Centennial Peaks had probable cause -to believe Tracz posed a threat of imminent danger to herself or others.

In her deposition testimony, Tracz denied having expressed any intent to purchase a gun or kill her former boss or co-worker, and also denied having made other statements attributed to her. However, she acknowledged in her deposition that she told Beckett she was angry at her former boss and hated him. Also, the following colloquy took place in her deposition:

Q: Did you tell Ms. Beckett that you thought you would get a gun and kill him?
A: I was telling her about my anger and revenge, okay? And she was asking me about guns. She probably first started because she was constantly getting back to this gun story, and naively I was telling her that we have guns.
Q: [Dlid you tell Ms. Beckett that you had a plan about getting a gun to do harm to your boss?
A: It was something I wish to kill those people, maybe.

Tracz was also asked about Beckett's request that she make a contract for safety:

Q: Do you recall being asked to make an agreement or a contract with Centennial Peaks that you would not do harm to your boss?
A: I remember at the end when I was waiting ... So she said-she start to say are you promise me, and what do I have to promise to this woman? She waste my time. She make me angry. And I said, "No, no, I'm not going to promise you anything," and I went straight to the door.

Thus, Tracz' own admissions, coupled with the other submissions on the motion for summary judgment, demonstrated that, under the circumstances, Beckett had probable cause to believe Tracz posed a danger to herself or others. Further, the record indicates that Justice and the director of nursing also had reason-based on Beckett's report-to believe Tracz posed such an immediate danger. Their defense of legal justification was therefore established as a matter of law. Accordingly, we conclude that the trial court properly granted summary judgment as to Tracz claims against Justice, Beckett, and Centennial Peaks for false imprisonment.

IV.

Tracz contends that the trial court improperly granted summary judgment on her own outrageous conduct claim and on the outrageous conduct claim she asserted on behalf of Manka. We perceive no basis for reversal.

The elements of outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged in such conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and (8) defendant's conduct caused plaintiff to suffer severe emotional distress. Culpepper v. Pearl Street Building, Inc., 877 P.2d 877 (Colo.1994).

Liability for outrageous conduct can be found only if the conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. Whether particular conduct is sufficient ly outrageous to be actionable is normally a question for the jury. However, it is for the court to determine, in the first instance, whether reasonable persons could differ on this issue. Meiter v. Covanaugh, 40 Colo.App. 454, 580 P.2d 399 (1978).

Tracz bases her claim of outrageous conduct against Centennial Peaks, Justice, and Beckett on the same acts and omissions that form the basis of her other tort claims against them.

The claim on behalf of Manka is that a Centennial Peaks employee acted outrageously in making the telephone call to him informing him that his mother was being held for evaluation, in directing him to go to a neighbor's home, and in not taking followup actions to ensure that he would be safe.

Viewing the evidence in the light most favorable to plaintiffs, we conclude that no reasonable juror could find that any of the defendants acted outrageously toward either plaintiff.

In light of Tracz' own admissions that she may have told Beckett she hated her former boss and wished to harm him, Beckett's conduct toward Tracz, as well as that of Justice and the Centennial Peaks director of nursing, cannot be considered extreme or beyond all possible bounds of decency. Similarly, the making of the phone call to Manka was not an outrageous action under the circumstances, even if it is assumed that some follow-up action would have been desirable to ensure that he had someone to care for him during his mother's absence.

In his own deposition, Manka acknowledges that the Centennial Peaks employee asked if he had somewhere he could go, and he responded that he did. After the phone call, he went to a friend's house. The Centennial Peaks employee said that Manka had given her the name of the person he could go be with, and she had told Tracz the name of that person. Under the cireumstances, the conduct of the Centennial Peaks defendants cannot be considered so extreme as to be beyond all possible bounds of decency. See Meiter v. Cavanaugh, supra.

Summary judgment was therefore properly entered as to plaintiffs' outrageous conduct claims.

v.

Tracz next contends that the trial court erred by granting summary judgment in favor of AMR, We disagree.

A.

Tracz first argues that the court erred by dismissing her claims against AMR for false imprisonment, assault, and battery.

In construing a statute, we must give effect to the intent of the General Assembly. If the plain language of the statute is clear and unambiguous, we must apply it as written. Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App.1998).

Section 27-10-105(1)(a) specifically authorizes the intervening professional to take the mentally ill person into custody "with such assistance as may be required," or to have the person taken into custody by others, and placed in an approved treatment facility. The statute thus plainly contemplates that a mentally ill person may be taken into custody at one place and transported by others to a treatment facility at the behest of the intervening professional.

Furthermore, pursuant to §§ 27-10-105(8) and 27-10-105(4), C.R.S.1999, only the "professional person in charge of the evaluation" may release a person subject to a hold-and-treat order before its expiration. A "professional person" is a licensed physician or licensed psychologist. Section 27-10-102(11), C.R.8.1999.

Here, Tracz does not assert that the emer-geney hold-and-treat report and application form was invalid on its face. Rather, she argues that if the hold-and-treat was instituted without probable cause or otherwise in violation of the statute, AMR may not rely on the report and application. In essence, Tracz argues that AMR's personnel had a duty to inquire into the basis of the report and application and to exercise independent judgment as to its validity.

To construe the statute as imposing such a duty upon emergency medical personnel and others who might be called upon to assist an intervening professional in carrying out an authorized hold-and-treat procedure would undermine the purpose and intent of the statute. See Perreira v. State, 768 P.2d 1198 (Colo.1989) (a purpose of the statute is to protect the public from harm caused by mentally ill persons; under the statute, the decision whether to release a mentally ill patient is entrusted to the special skills and knowledge of licensed psychiatrists and psychologists).

Accordingly, we conclude that, in transporting Traces to an approved treatment facility, pursuant to an emergency mental health report and application valid on its face, AMR had no duty to make an independent determination as to whether the intervening professional had probable cause to institute the hold-and-treat procedure. Since the asserted existence of such a duty is the only basis for Tracz' claims against AMR for false imprisonment, assault, and battery, and since the hold-and-treat report and application here was valid on its face, the trial court properly granted summary judgment in AMR's favor on such claims.

B.

Tracz also contends that the trial court erred in dismissing her outrageous conduct claims against AMR. Again, we disagree.

In opposing AMR's motion for summary judgment, Tracz submitted portions of her own deposition and of the depositions of Justice and the director of nursing. None of that evidence demonstrates that AMR's employees engaged in any conduct that could be considered so extreme in degree as to go beyond all possible bounds of decency. Meiter v. Cavamaugh, supra. Further, as noted, Tracz testified in her own deposition that those employees had not used any force against her and had not been argumentative, hostile, or angry toward her at any time.

Accordingly, we perceive no error in the trial court's dismissal of plaintiffs' claims of outrageous conduct against AMR.

The judgment is affirmed.

Chief Judge HUME and Judge RULAND concur.


author: Judge CASEBOLT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Warren B. NELSON, Defendant-Appellant.
    No. 98CA1799.
    Colorado Court of Appeals, Div. V.
    April 13, 2000.
    Certiorari Denied Oct. 10, 2000.
    Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CASEBOLT.

Defendant, Warren B. Nelson, appeals the trial court's order denying his motion for post-conviction relief pursuant to Crim. P. 35(c). We affirm, but remand for correction of the mittimus.

Pursuant to a plea agreement, defendant pleaded guilty to theft, a class four felony, and the prosecution agreed to dismiss the remaining charges, as well as charges pending against him in another case. In addition, the parties stipulated that defendant would be sentenced to three years in either a community corrections facility or the Department of Corrections (DOC).

The community corrections facility rejected defendant. When he learned at the sentencing hearing that he would be sentenced to the custody of the DOC, he moved to withdraw his plea, asserting he had not been advised that he would be required to serve a mandatory three-year period of parole in addition to his prison sentence. The trial court denied the motion, concluding that defendant was adequately advised regarding the parole consequences of his plea. The court then sentenced defendant to three years in the custody of the DOC. The court did not indicate on the mittimus that defendant would also be required to serve a mandatory three-year period of parole pursuant to § 18-1-105(1)(a)(V)(A), C.R.S.1999.

I.

On appeal, defendant does not challenge the trial court's determination that he was advised of the mandatory parole period before entering his guilty plea. Instead, he claims that because the trial court did not mention the parole period when it imposed sentence, and did not reflect the parole period on the mittimus, the imposition of the mandatory parole period violated the separation of powers doctrine and his right to be present at sentencing. We disagree.

Initially, we note that, because defendant failed to give the trial court the opportunity to rule on his motion based on the grounds he now asserts, we need not consider his new claim on appeal. See People v. Lesney, 855 P.2d 1364 (Colo.1998); People v. Goldman, 923 P.2d 374 (Colo. However, because defendant's claims raise questions concerning his fundamental rights, we elect to address them on the merits. See Mulkey v. Sullivan, 758 P.2d 1226 (Colo.1988); Armstrong v. People, 701 P.2d 17 (Colo.1985).

A.

A division of this court has rejected the claim that the imposition of a mandatory parole term after the trial court's initial imposition of a prison sentence violates the separation of powers doctrine. See People v. Barth, 981 P.2d 1102 (Colo.App.1999); see also Craig v. People, 986 P.2d 951, 959 (Colo.1999) (mandatory parole is a statutorily prescribed sentence component that "attaches automatically to any sentence involving imprisonment").

We find the reasoning of Barth to be persuasive and conclude that it is dispositive of defendant's separation of powers claim.

B.

We also reject defendant's claim that the imposition of the mandatory parole period in his absence violates his right to be present at sentencing.

A defendant has the right to be present when sentence is imposed. See Crim. P. 48(a); People v. Emig, 177 Colo. 174, 498 P.2d 368 (1972); see also People v. Gareiq, 752 P.2d 570 (Colo.1988) (recognizing defendant's right to be present and speak at sentencing).

Further, when the court imposes a new sentence to take the place of an original illegal sentence, the same requirements apply, and the court must provide the defendant with notice and an opportunity to be heard. People v. Emig, supra (right to be present applies when the court removes an illegal term from the sentence so that, as modified, the sentence conforms with the law); see also People v. Renfrow, 199 Colo. 101, 605 P.2d 915 (1980) (defendant entitled to be present when the sentence is modified by reducing it); but see Luu v. People, 841 P.2d 271 (Colo.1992) (due process only requires that a defendant be present to the extent that a fair and just hearing would be thwarted by his absence).

Here, defendant was present at the sentencing hearing, but the mandatory period of parole was not pronounced as a component of the sentence. The original mitti-mus did not specify the mandatory period of parole. However, where a sentence and mittimus do not include the appropriate mandatory parole period, the mittimus may be corrected to include the period of mandatory parole. Craig v. People, supra.

Because the mandatory parole period is a statutorily required part of any sentence to imprisonment that may not be waived or suspended by a sentencing court and may be imposed on a remand, see Craig v. People, supra, and because a fair and just result is not thwarted by his absence, we conclude that the mittimus may be corrected in the defendant's absence without running afoul of his right to be present at sentencing.

The order is affirmed. However, because the trial court did not indicate on the mitti-mus that defendant's sentence includes a mandatory three-year period of parole, we remand the cause to the trial court with directions to issue an amended mittimus reflecting the required parole period. See Craig v. People, supra.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge VOGT.

text:
    TCI SATELLITE ENTERTAINMENT, INC., Petitioner-Appellee, Colorado State Board of Assessment Appeals, Appellee, Mary E. Huddleston, Property Tax Administrator, Intervenor-Appellee, v. BOARD OF EQUALIZATION OF MONTEZUMA COUNTY, Respondent-Appellant.
    No. 99CA0975.
    Colorado Court of Appeals, Div, IV.
    April 13, 2000.
    Certiorari Granted Oct. 10, 2000.

      Morrison & Foerster, LLP, Thomas H. Steele, Neil I. Pomerantz, Lisa R. Brenner, Denver, Colorado, for Petitioner-Appellee.
    Ken Salazar, Attorney General, Larry A. Williams, First Assistant Attorney General, Denver, Colorado, for Intervenor-Appeliee.
    No Appearance for Appellee.
    Bob D. Slough, County Attorney, Cortez, Colorado, for Respondent-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge VOGT.

In this property tax case, respondent, the Montezuma County Board of Equalization (BOE), appeals an order of the Board of Assessment Appeals (BAA) granting petitioner, TCI Satellite Entertainment, Inc. (TCH), an exemption from taxation for the 1998 tax year for business personal property valued at $220,950. Mary E. Huddleston, the Property Tax Administrator (PTA), has intervened in the appeal. We reverse the BAA's order and remand the cause for further proceedings.

The personal property at issue in this case consists of satellite receiving dishes, converter boxes, and remote controls for the converter boxes. These items are leased to TCI's customers to facilitate the reception and decoding of TCI's satellite transmissions. TCI retains ownership of the property and is responsible for any taxes on it. During 1998, TCI owned such property at 419 different locations in Montezuma County.

The county assessor sent TCI four property tax declaration schedules, one for each of four taxing areas in the county where TCI owned property. TCI signed and returned the schedules, attaching to them a list of the 419 locations in the county at which its property was found. The list stated the value of the property (ranging from $240 to $1,209) at each location.

The assessor assigned a total actual value of $220,950 to all the property, and sent TCI four tax bills totaling $4,929.06.

After the BOE denied TCI's request for review, TCI appealed to the BAA. TCI contended that its property was exempt from taxation under § 89-8-119.5, C.R.S.1999, which provides an exemption for personal property valued at $2,500 or less if such property "would otherwise be listed on a single personal property schedule." Noting that the PTA had directed assessors to apply the exemption to property on a "per business location" basis, the BAA agreed with TCI that its property was exempt, and according ly ordered the county assessor to reduce the 1998 actual value of the property from $220,950 to zero.

On appeal, the BOE contends that the BAA misconstrued § 39-3-119.5, and that the statute, as interpreted and applied here, violates constitutional provisions mandating equality and uniformity in taxation. Because we agree with the BOE that the BAA's construction of the statute was erroneous and that its order must therefore be reversed, we do not reach the constitutional issues.

Our task in construing the statute is to ascertain and give effect to the legislative intent. In order to determine that intent, we look first to the language of the statute, giving effect to each word and phrase and applying the plain and ordinary meaning of the words used. When the statutory language is clear and unambiguous, we need not resort to other rules of statutory construction. AviComm, Inc. v. Colorado Public Utilities Commission, 955 P.2d 1023 (Colo.1998); Cray Computer Corp. v. Colorado Department of Revenue, 988 P2d 652 (Colo.App.1999).

While the construction of a statute by the agency charged with its administration is entitled to deference, courts are not bound by that construction where the result reached by the agency is inconsistent with legislative intent as manifested in the statutory text. Boulder County Board of Equalization v. M.D.C. Construction Co., 880 P.2d 975 (Colo.1992).

Section 39-8-119.5, which was enacted in 1996, has not previously been construed in any reported appellate decision. The statute provides:

For property tax years commencing on and after January 1, 1997, personal property not otherwise exempt from property tax shall be exempt from the levy and collection of property tax if the personal property would otherwise be listed on a single personal property schedule and the actual value of such personal property is two thousand five hundred dollars or less (emphasis added).

TCI contends that the BAA properly interpreted the $2,500 exemption in $ 39-3-119.5 as applying to property on a "per business location" basis, even where, as here, multiple locations are listed on a single personal property schedule. TCI points out that the PTA has so construed the statute, that her reference manual-which is binding on county assessors, though not on reviewing courts, see Huddleston v. Grand County Board of Equalization, 918 P.2d 15 (Colo.1996)-directs assessors to apply the exemption based on business location, and that 59 of Colorado's 63 counties have followed the PTA's mandate and applied the exemption on a per-location basis.

We conclude that such an interpretation is contrary to the plain language of the statute, which exempts property valued at $2,500 or less only if the property "would otherwise be listed on a single personal property schedule." While neither § 89-3-119.5 nor other property tax statutes define the

precise circumstances in which personal property is to be listed on a single schedule, we do not view that fact as rendering the phrase itself ambiguous.

Although TCI's property at each customer location was valued at less than $2,500, TCI did not file a separate schedule for each location; rather, multiple locations were encompassed in a single schedule, and the total property value per schedule far exceeded $2,500. The plain language of § 39-38-119.5 does not contemplate an exemption in these circumstances.

Further, even if we were to find the statute ambiguous because it does not define the cireumstances in which property is "otherwise ... listed on a single personal property schedule," the legislative history of § 89-8-119.5 offers additional support for the conclusion we reach here. The sponsor of the legislation-whose contemporaneous statements are relevant as an indication of legislative intent, see Hyland Hills Park & Recreation District v. Denver and Rio Grande Western Railway Co., 864 P.2d 569 (Colo.1993)-explained its purpose as follows:

There are a lot of businesses out there that have less than $2,500 worth of personal property ... small offices, an accounting office, ... a day care center. There's a lot of businesses that have very little in the way of personal property tax, but they have to go through the same filing process . as everyone else, and the counties themselves, the assessors and treasurers, have to go through all their work of assessing, sending out notices, sending out the bills, following up if you don't pay, and trying to enforce collection, and so on and so forth. It's really just not practical....
[Albout 75,000 accounts, which is roughly half the accounts in the state of Colorado, ... would just go away if we pass this bill. Now the loss of revenue would be a little over 1% of the total personal property tax revenue collected statewide which is about ... 20% of the total tax. ...
[(We're ... really kidding ourselves if we think anyone is making any money on the local government level. ...
The local government is out there doing these collections, and basically, I consider it just a waste of time and money. But more than that, the people who own these small businesses, the day care centers, the accountants' offices, the rental properties, or whatever they are, they have to go through one more road block to doing their yearly paperwork.... [I]f we can get rid of one tax return, that they don't even have to file it, they don't have to fill it out, they don't have to mess with it at all, we make life just a little bit easier for that small business....

Hearings on HB 96-1267 Before the House Committee on Finance, 60th General Assembly, Second Session (Feb. 8, 1996) (statement of Rep. Lamborn).

These comments indicate that the intent of the General Assembly in enacting § 39-8-119.5 was to eliminate unnecessary and costly paperwork for counties and small businesses in situations where the minimal revenue collected did not justify the costs of collection. Granting TCI an exemption for property valued at $220,950 does not further that intent.

The PTA argues that her interpretation is consistent with the authority granted to the General Assembly under Colo. Const. art. X, § 20(8)(b)(the "Taxpayers' Bill of Rights," or TABOR), to enact exemptions to reduce or end business personal property tax. While TABOR did give the General Assembly such authority, and while the expressed intent of § 89-3-119.5 was to eliminate business personal property tax in some cireumstances, neither the language of the statute nor the legislative history supports a conclusion that the General Assembly intended to exempt from taxation the property at issue here.

The order of the BAA is reversed, and the cause is remanded for entry of an order consistent with the views expressed in this opinion.

Judge MARQUEZ and Judge TURSI concur.


author:
Judge RULAND.
      Judge METZGER,

text:
    COLORADO STATE BOARD OF DENTAL EXAMINERS, Petitioner-Appellee, v. Neil George NORTON, D.D.S., Respondent-Appellant.
    No. 99CA0805.
    Colorado Court of Appeals, Div. L.
    April 13, 2000.
    Certiorari Denied Oct. 10, 2000.

      Ken Salazar, Attorney General, Kevin D. Heupel, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.
    Kennedy & Christopher, P.C., Daniel R. Christopher, John R. Mann, Jeremy A. Sit-coff, Denver, Colorado, for Respondent-Appellant.
   Opinion by

Judge RULAND.

Respondent, Dr. Neil George Norton, appeals from an order of the State Board of Dental Examiners directing that a letter of admonition be issued to him. The letter admonishes respondent for violating § 12-85-118(1)(h) and § 12-85-118(1)(f), CRS. 1999, of the Dental Practice Act. We affirm in part, vacate in part, and remand with directions.

Respondent is licensed to practice dentistry in Colorado. After performing an initial examination on a patient, respondent determined that the patient needed extensive dental work. Respondent intended to propose a treatment plan at the patient's next scheduled visit, but the patient failed to appear for that appointment.

Three months later, the patient returned to respondent's office complaining to a staff member of sensitivity to hot and cold. She asked that respondent fill as many of her cavities as he could that day. Respondent then met with the patient and proposed his treatment plan.

He advised the patient that placing crowns on certain teeth took priority over filling the cavities. The patient refused the crowns and insisted that the cavities be filled. Respondent answered that not placing the crowns first would be malpractice. The patient became verbally abusive and left the office.

Later, the patient filed a complaint with the Board, and a letter of admonition was issued to respondent alleging that his treatment of the patient was substandard. Respondent appealed from the decision to issue the letter pursuant to § 12-85-118(1), C.R.S. 1999.

A hearing was held before an Administrative Law Judge (ALJ). At the close of evidence, the ALJ granted the attorney general's motion to amend the notice of charges over respondent's objection to include a claim alleging that respondent's treatment plan sequence was substandard. No request for a continuance was made by respondent. Later, based upon extensive findings of fact, the ALJ concluded that respondent's treatment plan sequence was indeed substandard and thus violated § 12-85-118(1)(J).

Both parties later filed exceptions with the Board. The Board adopted the ALJ's findings and then approved the issuance of a letter of admonition. This appeal followed pursuant to § 12-85-115, C.R.S8.1999.

L.

Initially respondent contends, and the Board agrees, that the reference in the letter of admonition to a violation of § 12-85-118(1)(h) was error. We also agree. Therefore, the case must be remanded for revision of the letter to delete the error.

IL.

Respondent next contends that the Board erred for various reasons in affirming the ALJ's determination that respondent's treatment plan sequence fell below generally accepted dental practice standards. We are not persuaded by any of respondent's contentions.

A.

Respondent first argues that the ALJ erred by granting the attorney general's motion to amend the notice of charges to add this claim. Even if we assume that this issue was properly preserved by respondent for judicial review, we conclude that there was no reversible error.

Section 24-4-105(4), C.R.9.1999, grants the ALJ authority to "dispose of motions to amend ... pleadings ... or take any other action authorized by ... the procedure in the district court." The motion to amend was thus made pursuant to C.R.GC.P. 15(b). As pertinent here, the rule authorizes a party to amend the pleadings to conform to the evidence if a claim has been tried by implied consent.

Contrary to respondent's assertions, the ALJ has discretion to determine whether to grant the motion. And, the fact that a license to practice is involved does not change the standard of review for the ALJ's decision. Indeed, in a criminal case, an uncharged lesser non-included offense may be submitted to the jury if the charging document provides sufficient notice to the defendant that he or she may have to defend against the charge. People v. Garcia, 940 P.2d 357 (Colo.1997).

Accordingly, in our view the ALJ's decision must be approved if there is no reasonable doubt that the issue was intentionally and actually tried. See Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo.App.1995).

Here, the notice of charges included allegations that:

4, SR. [the patient] had active caries with large lesions in teeth #'s 2 and 21.
5. Respondent recommended to S.R. that she have teeth #'s 4 and 19 crowned before treating the active caries on teeth #'s 2 and 21.
6. SR. was experiencing pain in teeth #'s 2 and 21, and did not request nor desire crown placements in #'s 4 and 19 at that time.
7. Respondent refused to restore teeth #'s 2 and 21 without prior crown placement of #'s 4 and 19.
8. ... S.R. sought a second opinion from . [another dentist].
9. [That dentist] ... opined that proper treatment planning involved removal of active caries on teeth #'s 2 and 21 prior to any other treatment. ... (emphasis supplied)

And, in a written opinion prepared in advance of the hearing and introduced into evidence, respondent's expert stated that: "The issue here is the sequence of treatment and not the specific recommended treatment."

Finally, during the hearing, experts for both parties offered extensive testimony, albeit conflicting, regarding whether respondent's opinion as to the priority of treatment was substandard. However, there was no objection to this testimony as not relevant to the written charges.

Thus, we conclude that respondent had sufficient notice that treatment sequencing would be an issue at the hearing. We further conclude that the issue was intentionally and actually tried. See Colorado State Board of Dental Examiners v. Micheli, 928 P.2d 889 (Colo.App.1996)(due process in an administrative hearing requires that respondent have an opportunity to be heard following adequate notice of the nature of the proceedings); see also People v. Garcia, supra.

Accordingly, because the record supports the ALJ's decision, it may not be disturbed on appeal.

B.

Respondent next contends that the ALJ's evidentiary findings do not support the Board's conclusion that the treatment sequence fell below generally accepted dental standards. Again, we disagree.

Evidentiary findings of an administrative ageney may be set aside only if those findings are clearly erroneous or are unsupported by substantial evidence when the record is considered in its entirety. Ultimate findings of fact, if supported by substantial evidence, may be set aside if there is no reasonable basis in law for those findings. Lee v. State Board of Dental Examiners, 654 P.2d 889 (Colo.1982).

First, we are not persuaded by respondent's contention that the ALJ's eviden-tiary findings, as adopted by the Board, are in conflict and thus do not support the Board's order. While the ALJ found that respondent's intended treatment plan was within acceptable dental standards, the ALJ also in effect found that after the patient refused the crowns, respondent's initial refusal to then fill the cavities constituted substandard treatment. Hence, in our view these findings are not fatally inconsistent.

Next, to the extent respondent suggests that the Board may not determine the applicable standard of care if the expert testimony is in conflict, we conclude that State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994), establishes otherwise.

C.

Finally, the Board's determination that respondent's treatment sequence fell below generally accepted dental standards is supported by substantial expert testimony in the record. In this context, we must defer to the weight and credibility determinations of the Board. See State Board of Medical Examiners v. Thompson, 944 P.2d 547 (Colo.App.1996).

We have considered and reject respondent's remaining contentions for reversal of the Board's order.

That part of the Board's order directing issuance of a letter of admonition for violation of § 12-85-118(1)(}) is affirmed. That part of the Board's order directing issuance of a letter of admonition for violation of § 12-35-118(1)(h) is vacated, and the cause is remanded with directions to the Board to modify the letter to remove any reference to a violation of § 12-85-118(1)(h).

Judge NIETO concurs.

Judge METZGER dissents.

Judge METZGER,

dissenting.

I agree with the majority that C.R.C.P. 15(b) can apply in disciplinary actions. However, because I believe the ALJ and the Board here misapplied C.R.C.P. 15(b) and violated respondent's right to due process, I respectfully dissent.

The law imposes an obligation on administrative agencies to be fundamentally fair when resolving disputes involving governmental action that threatens to deprive an individual of a significant property interest. See deKoevend v. Board of Education, 688 P.2d 219 (Colo.1984). A license to practice dentistry is a valuable property right which is protected by the Due Process Clause of the Fourteenth Amendment and by Colo. Const. art. II, § 25. Colorado State Board of Dental Examiners v. Micheli, 928 P.2d 839 (Colo.App.1996). Thus, a respondent must have an opportunity to be heard following adequate notice of the nature of the proceedings. Norton v. Colorado State Board of Medical Examiners, 821 P.2d 897 (Colo.App.1991).

This due process standard is defined, as pertinent here, in § 24-4-105(@)(a), C.R.S. 1999; "Any person entitled to notice of a hearing shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted."

In practical terms, this notice must specify the factual conduct, Colorado State Board of Dental Examiners v. Micheli, supra, and the particular legal grounds relied upon. See Colorado State Board of Medical Examiners v. Boyle, 924 P.2d 1113 (Colo.App.1996). Indeed, the supreme court has held that the only matters an administrative board may properly consider at a quasi-judicial hearing are those included in the notice upon which the hearing is based. Spears Free Clinic & Hospital for Poor Children v. State Board of Health, 122 Colo. 147, 220 P.2d 872 (1950).

Here, the Notice of Charges alleged: 1) the patient, S.R., "was experiencing pain" in two teeth and "did not request nor desire crown placements" in two other teeth; 2) respondent had refused to restore the first two teeth without prior crown placement on the two other teeth; and 3) "Respondent's failure to immediately treat [the first two teeth] constitutes an act or omission which fails to meet generally accepted standards of dental practice."

The Board's prehearing statement specified that those allegations were the basis of its case. And, in his opening statement to the Administrative Law Judge (ALJ), counsel for the Board said: "Because the Respondent failed to immediately treat S.R.'s two cavities, the evidence will show that the Respondent's conduct violated § 12-25-118(1)G) ...."

Thus, the pleadings clearly show that the theory of the Board's case was that respondent had provided substandard care by refusing to provide immediate treatment to a patient who had said she was in pain. They made no reference, either direct or indirect, to a treatment plan sequence (the order in which dental work is done), which the Board agrees is an entirely different concept from a treatment plan (a listing of the dental work that needs to be done).

Respondent's counsel, in his opening statement, affirmed that respondent's understanding of the issue to be tried related solely to the treatment plan issue. He went on to say, "this case does not involve an issue of whether or not it was substandard to treat crowns before cavities." Counsel for the Board made no objection or clarification to that statement.

The Board's motion, to amend the charges to allege that respondent had an improper treatment plan sequence, was made immediately before closing arguments, after all the evidence had been received. Respondent's counsel objected, but the ALJ overruled the objection.

As the ALJ found, the evidence at the hearing showed that S.R. was not experiencing pain in any teeth on the day she went to respondent's office, nor had she told anyone she was. She prevented respondent from explaining his proposed treatment plan for nine of her teeth or from discussing her current condition with her. She did not have the two teeth in question filled until more than a month after the incident here.

The ALJ found respondent's intended treatment plan was reasonable and was within generally accepted standards of dental practice. However, the ALJ went on to determine, once the patient had refused the placement of crowns on two teeth, no reasonable basis existed on which to refuse to fill the cavities on two other teeth. Thus, the ALJ concluded, while respondent's treatment plan was reasonable, his treatment plan sequence fell below generally accepted standards of dental practice.

The record is clear that respondent did not receive notice that the treatment plan sequence would be an issue to be litigated at the hearing. This did not give him a meaningful opportunity to respond, and therefore, I believe it violated his right to due process. See Spedding v. Motor Vehicle Dealer Board, 931 P.2d 480 (Colo.App.1996).

I disagree with the majority's conclusion that the issue of the propriety of the treatment plan sequence was intentionally and actually tried.

C.RCP. 15(b) allows pleadings to be amended to conform to the evidence only with the trial court's permission. In civil cases, the court may allow such an amendment only where there is no reasonable doubt that the issue raised by the proposed amendment has been intentionally and actually tried. Real Equity Diversification, Inc. v. Coville, 744 P.2d 756 (Colo.App.1987). It is not enough that some evidence has been presented germane to the issue sought to be tried. Clemann v. Bandimere, 128 Colo. 24, 259 P.2d 614 (1953).

These principles are premised upon the notice pleading foundation of the Colorado Rules of Civil Procedure. As stated in Yoder v. Hooper, 695 P.2d 1182, 1185 (Colo.App.1984), aff'd, 737 P.2d 852 (Colo.1987): "Under our rules of civil procedure, the precise legal theory asserted by a claimant is not controlling, so long as the complaint gives sufficient notice of the transaction sued upon." See also C.R.C.P. 8.

Those conducting hearings, such as the one here, pursuant to § 24-4-105(4), C.R.S.1999, have the authority to take any action "in accordance, to the extent practicable, with the procedure in the district courts." Thus, the Colorado Rules of Civil Procedure can offer assistance. See C.R.C.P. 81.

However, as noted previously, in discipline actions, the property right of a professional license triggers the application of the due process requirements that actual notice of the specific facts and particular legal grounds must be given. See Colorado State Board of Dental Examiners v. Micheli, supra, and Colorado State Board of Medical Examiners v. Boyle, supra. See also §§ 24-4-105(1) and 24-4-105(2)(a), C.R.S.1999.

Therefore, while the Colorado Rules of Civil Procedure offer guidance in deciding issues regarding the conduct of administrative hearings, Weiss v. Department of Public Safety, 847 P.2d 197 (Colo.App.1992), the agency's decision must demonstrate the use of sufficient standards ensuring rational and consistent results in the application of the statute and adequate procedural safeguards. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo.1997).

Here, as indicated, neither the pleadings, counsels' arguments, nor the evidence notified respondent that the propriety of his treatment plan sequence was at issue. This, in and of itself, forms a basis for reversal. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Quiat, 979 P.2d 1029 (Colo.1999). In his mid-trial motion to dismiss, respondent's counsel argued that due process principles required dismissal. He pointed out that:

[Wle believe that the evidence has not substantiated the Board's conclusion ... and allegations that [respondent] refused to immediately treat [two teeth] because the patient presented as being in pain. We think that is the integral allegation and substance of this claim against [respondent], and that this Government has not met its burden of proof based upon the testimony of its own expert witnesses, and just as importantly, the testimony of [the patient].
The importance of the issue in the pleadings is that these pleadings represent the position of the Dental Board as to why ... it has [made] the immediate determination that charges should be filed.... There has been no motion to amend the complaint in this case to comply with the testimony of the expert witnesses, which would be a condition precedent to overcoming the deficiency in the pleading.
Specifically-the amendment, had it been made, would have been specifically that [respondent's] treatment planning sequence was below the standard of care. The complaint was not amended, and indeed, if you recall the testimony of [the two experts], in the absence of pain, the only criticism was the sequence of the treatment, not an issue based upon pain, and that [two teeth] needed to be immediately treated.

The Board's attorney did not move then to amend the complaint. However, he argued that, under notice pleading principles, respondent had received sufficient notice to comport with due process.

The ALJ agreed with the Board's attorney and noted that, even though the complaint made no mention of a treatment plan sequence, some facts alleged in the complaint, and elicited in the Board's case-in-chief, would support such a charge. He also opined that he did not believe respondent had been surprised by the way the evidence had developed, nor had he been prejudiced. Thus, finding that respondent had not been denied fundamental fairness, he denied respondent's motion.

These facts demonstrate that respondent not only had no proper notice of the charges but that the issue was not tried. The failure of the Board's attorney to seek an amendment at mid-hearing demonstrated the Board's reaffirmance of its position that the treatment plan sequence was not the basis of the charges.

And, the comments of the Board's attorney and the ALJ's ruling both reflect their misapprehension that notice pleading was sufficient in cases such as this. The law is clear, however, that notice pleading concepts do not apply in such cases.

This error was compounded by the amendment to the charges after all evidence had been received. This gave respondent absolutely no opportunity to counter what ultimately became the basis for discipline.

The ALJ made no findings concerning the due process implications of the proposed amendment. Indeed, he made no findings that C.R.C.P. 15(b) had been complied with and that no reasonable doubt existed that the issue had been intentionally and actually tried. See Real Equity Diversification, Inc. v. Coville, supra.

The ALJ's own findings show that the treatment plan sequence issue was not tried by consent. And, the record demonstrates that any evidence relating to that issue was introduced over the objection of respondent.

Consequently, I believe the conduct of this hearing violated respondent's right to due process. Therefore, I would reverse the Board's determination.

Additionally, in my view, the majority's reliance on People v. Garcia, 940 P.2d 357 (Colo.1997), is misplaced. There, the supreme court held that the lesser non-included offense of which defendant was convicted was easily ascertainable from the charging document and was not so remote in degree from the offense charged that its addition appeared to be an attempt to salvage a convietion from a weak case.

Here, respondent's discipline rested on a violation equal in degree to that charged. And, as detailed earlier, not only did the charging document not give him notice of the additional charge, but the statements and conduct of the Board's attorney and the ALJ led him to believe that the additional charge was not an issue. Finally, since, as the ALJ found, the factual basis for the original charge was wholly insufficient, the amendment at the close of all the evidence was an attempt to salvage a weak case.

Moreover, to the extent respondent's discipline was premised on his failure or refusal to follow the patient's wishes, I would also reverse.

The patient admitted she had not given respondent an opportunity to explain her condition, the proposed treatment plan, or the proposed treatment plan sequence to her. Thus, her purported "wishes" rested on an incomplete and insufficient understanding which resulted from her own behavior. Therefore, since they lacked a proper factual foundation, her "wishes" had no import.

Accordingly, I would reverse the Board's imposition of discipline and order that the case be dismissed.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael J. FISHER, Defendant, Appellant.
    No. 98CA0412.
    Colorado Court of Appeals, Div, I.
    April 27, 2000.
    Rehearing Denied June 1, 2000.
    Certiorari Denied Oct. 10, 2000.

      Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plainitf{-Appellee.
    Linda Perkins Cooke, LL.C., Linda Perkins Cooke, Boulder, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Michael J. Fisher, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery. We affirm.

On September 19, 1996, defendant, his co-defendant, and a woman were using drugs and wanted to obtain more. Lacking the funds to do so, the defendant and co-defendant arranged to steal drugs from the victim. At trial, there was evidence the plan called for the use of a gun to intimidate the victim and then to take her drugs without payment. When the victim refused to turn over the drugs, she was shot and killed by the co-defendant.

The court instructed the jury on the prosecution's theory of complicity:

Instruction 10

A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed.
2. Another person must have committed all or part of the crime.
3. The defendant must have had knowledge that the 'other person intended to commit all or part of the erime.
4. The defendant must have had the intent to promote or facilitate the commission of the crime.
5. The defendant must have aided, abetted, advised or encouraged the other person in the commission or planning of the crime.

L.

Defendant contends that, because it is "legally and logically impossible to be a compli-citor to felony murder," the complicity instruction should not have been given. He argues that complicity requires that a defendant have the culpable mental state of the underlying offense, and therefore, since felony murder is a strict liability offense without any culpable mental state, complicity cannot apply to felony murder. We disagree.

Defendant misunderstands the legal theory of complicity. Section 18-1-603, C©.R.98.1999, defines complicity as follows: "A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense."

The complicity statute does not create a substantive offense. Palmer v. People, 964 P.2d 524 (Colo.1998). "Complicity is a theory of law by which an accomplice may be held criminally liable for a crime committed by another person if the accomplice aids, abets, or advises the principal, intending thereby to facilitate the commission of the erime." Bogdanov v. People, 941 P.2d 247, 250 (Colo.1997).

However, complicity is not a theory of striet liability. It requires that a defendant have the culpable mental state required for the underlying felony and intend that his or her conduct promote or facilitate the commission of the crime by the principal. Thus, the statutory mens rea definitions in § 18-1-501, C.R.S.1999, do not apply to complicity, and "intent," as used in $ 18-1-603, C.R.S.1999, retains its common meaning. Bogdanov v. People, supra.

There is no requirement that the principal intend the death of the victim in felony murder; felony murder is a strict liability crime. People v. Meyer, 952 P.2d 774 (Colo.App.1997). While felony murder is a strict lability crime, it requires as one of its elements that the prineipal commit a predicate felony. People v. Jones, 990 P.2d 1098 (Colo.App.1999). All the predicate felonies in § 18-8-102(1)(b) require proof of a culpable mental state. The underlying felony substitutes for the culpable mental state in felony murder. People v. Priest, 672 P.2d 589 (Colo.App.1983).

If a complicitor has the culpable mental state for the underlying felony, he or she in fact has the same culpable mental state as the principal, thus satisfying the first part of the "intent" requirement of the complicity statute. Because no intent to cause a death is required for felony murder, the second prong of the "intent" requirement can be met if the complicitor's purpose is to promote or facilitate the commission of the underlying felony.

Applying these principles, we conclude that it is neither illogical nor illegal to give an instruction on complicity in a felony murder trial when there is evidence to support a complicity theory. This has long been the law in Colorado. See People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979). Therefore, we hold that a defendant who acts as a complicitor in the underlying felony may be held criminally liable for a death that occurs during its commission pursuant to § 18-3-102(1)(b).

Because felony murder does not require intent to cause death, the defendant's analysis, taken to its conclusion, would exeuse a complicitor who aided the principal and who had the same mental culpability as the principal. This would defeat the purpose of the complicity statute which provides that a com-plicitor is "legally accountable as principal." Section 18-1-608, C.R.S.1999, We cannot condone such an illogical result.

We also reject defendant's assertion that People v. Meyer, supra, should guide our analysis. Meyer holds that attempted felony murder is not a crime recognized in Colorado. Criminal attempt, § 18-2-101, C.R.S. 1999, requires that a defendant act with the same mental culpability required for commission of the crime attempted. Therefore, because felony murder is a strict liability crime without any culpable mental state, it is logically impossible to commit attempted felony murder.

However, Meyer is distinguishable from this case. Criminal attempt is a substantive crime, and the decision in Meyer construed the elements of proof required for its commission in the context of felony murder. In contrast, complicity is not a substantive crime, and the issue here is whether the defendant can be found guilty of felony murder as a principal under a theory of complicity. Consequently, the analysis in People v. Meyer, supra, is inapposite.

Defendant further argues that inclusion of the language "all or part of" in the complicity instruction was error. Defendant contends that this language allows conviction if the proof showed only that he intended to promote or facilitate part of the crime, the aggravated robbery, but did not intend to cause the death of the victim. This argument mirrors his previously discussed objections to the application of the complicity rules to felony murder, and for the reasons stated above, we are not persuaded.

We conclude the complicity instruction correctly informed the jury of the elements of proof required to hold defendant eriminally liable for felony murder under the theory of complicity. Bogdanov v. People, supra.

IL.

Defendant next contends the trial court erred by admitting hearsay statements of a key witness. We disagree.

Defendant argued at trial that he did not know the co-defendant intended to use a gun in the commission of the crime. The prosecution presented a witness, the woman who accompanied the two defendants, to rebut this position. Defendant argues that, during her direct examination, certain hearsay statements were improperly admitted. The People argue that the statements in question were admissible under CRE 801(d)(1)(A) as prior inconsistent statements of the witness.

Defendant's objection at trial was that the statements were being used improperly as impeachment before the witness made an inconsistent statement in her testimony. Defendant now argues that the statements were improperly admitted as prior consistent statements. CRE 801(d)(1)(B). Since defendant did not object on the basis of CRE 801(d)(1)(B), this objection cannot be considered on appeal unless it is plain error. CRE 103(a), People v. Kruse, 839 P.2d 1 (Colo.1992). Plain error is error which undermines the fundamental fairness of the trial so as to cast doubt on the reliability of the conviction. Woertman v. People, 804 P.2d 188 (Colo.1991).

Before trial, the witness told law enforcement officials that defendant had participated in the planning of the crime. In this statement, she suggested that defendant knew the co-defendant intended to threaten the victim with a gun.

At trial, the prosecutor questioned the witness about her memory of the events, and she conceded that she presently remembered some details differently from those included in her previous statement. The prosecutor then proceeded to use the transcripts of those interviews to impeach her testimony. This was a sufficient deviation from her prior statement to allow the prosecutor to impeach the witness with her prior statement under CRE 801(d)(1)(A). Accordingly, we conclude that the evidence was properly admissible under CRE 801(d)(1)(A) and § 16-10-201, C.R.S.1999. Thus, there was no error, plain or otherwise.

Defendant further argues that § 16-10-201, C.R.S$.1999, prohibits the admission of these prior inconsistent statements because they are not "otherwise competent evidence." The defendant asserts that the statements were not competent evidence because the witness had a strong motive to lie, and she had not acknowledged the accuracy of the statements. These objections go to the weight of the evidence, but do not affect its competency. Therefore, the "otherwise competent evidence" requirement of § 16-10-201, was met.

IIL.

Defendant's final argument is that the trial court erred by denying his request for substitute counsel. In this appeal, defendant does not assert that his counsel was ineffective, and we express no opinion on that issue. He states that he will raise that issue in a Crim. P. 35(c) motion. Here, he merely asserts that the court's inquiry on this issue was inadequate.

A defendant must establish good cause in order to require substitution of counsel. People v. Arguello, 772 P.2d 87 (Colo.1989). When an indigent defendant voices objections to court-appointed counsel, the trial court has the obligation to inquire into the reasons for the dissatisfaction. People v. Arguello, supra.

The court held a hearing on defendant's first motion to dismiss counsel, and inquired in detail about defendant's concerns before denying the motion. Following that hearing, defendant filed several letters with the court concerning his dissatisfaction with his counsel and a second motion to dismiss his counsel. His attorneys also filed a motion to appoint conflict-free counsel to investigate defendant's claim of ineffective assistance of counsel. The trial court was adequately apprised of defendant's concerns regarding his representation, and again denied the defendant's motion.

Defendant is entitled to effective appointed counsel, but is not always entitled to new counsel of his choice. People v. Arguello, supra. Therefore it follows that, if counsel is effective, defendant has no right to demand new counsel. People v. Martinez, 722 P.2d 445 (Colo.App.1986). The burden is on defendant to show that his counsel was ineffective. People v. Davis, 849 P.2d 857 (Colo.App.1992), aff'd, 871 P.2d 769 (Colo.1994). Since defendant does not here assert that his counsel was ineffective, any deficiency in the court's inquiry into the issue would be harmless error. People v. Bolton, 859 P.2d 303 (Colo.App.1993). The record shows that the court made an adequate inquiry into the reasons for the defendant's dissatisfaction with his attorneys, and it correctly denied the motions.

The judgment is affirmed.

Judge METZGER and Judge RULAND concur.