author: JONES, Judge:

text:
    DEPARTMENT OF CHILD SAFETY, Petitioner, v. The Honorable Kathryn STOCKING-TATE, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF YUMA, Respondent Judge,
    Mark R., M.S., and L.R.-S., Real Parties in Interest.
    No. 1 CA-SA 19-0001
    Court of Appeals of Arizona, Division 1.
    FILED June 14, 2019
    Arizona Attorney General's Office, Tucson, by Dawn Rachelle Williams, Counsel for Petitioner
    Law Office of Denise-Avila Taylor, Yuma, by Denise Avila-Taylor, Counsel for Real Party in Interest Mark R.
    Law Office of Heather C. Vinci, P.L.L.C, Yuma, by Heather C. Vinci, Counsel for Real Parties in Interest M.S. and L.R.-S.
    Judge Kenton D. Jones delivered the Opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined.
   JONES, Judge:

¶1 The Department of Child Safety (DCS) seeks special action review of a juvenile court order granting a motion by Mark R. (Father) to strike an ex parte order authorizing DCS to take temporary custody of two young children. In our discretion, we accept special action jurisdiction and hold that the legal standard to be applied to a motion challenging temporary custody depends upon the timing of the motion. Because the court applied an incorrect legal standard here, we grant relief and vacate the order granting Father's motion.

FACTS AND PROCEDURAL HISTORY

¶2 On October 26, 2018, M.S., an Indian child, was born substance-exposed. At the same time, her mother (Mother) tested positive for methamphetamine. Two days later, DCS filed an electronic application and sworn declaration in Maricopa County Superior Court seeking an ex parte order authorizing it to assume temporary custody over M.S. and his eighteen-month-old sister, L.S.-R. (collectively, the Children). See Ariz. Rev. Stat. (A.R.S.) § 8-821(B) (authorizing temporary custody where, "on a sworn statement or testimony," the court finds "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and it is contrary to the child's welfare to remain in the home"); Ariz. R.P. Juv. Ct. 47.3(A) ("On application under oath ..., the court will determine whether to authorize [DCS] to take temporary custody of a child.").

¶3 After considering DCS's application and sworn declaration, the superior court found it "contrary to the [C]hildren's welfare to remain" with Mother and Father and that "temporary custody was necessary to prevent imminent physical damage or harm to the [C]hildren." Thus, on October 28, 2018, the court found probable cause "to believe that temporary custody is clearly necessary to protect" the Children and issued an ex parte order authorizing DCS to take temporary custody of the Children.

¶4 DCS took custody of the Children, and, on October 31, 2018, filed a verified petition in Yuma County Superior Court alleging the Children were dependent as to Mother and Father based upon substance abuse and neglect. After reviewing the petition, the juvenile court found it would be contrary to the Children's welfare to place them with Mother and Father and issued a separate order, on November 1, authorizing DCS's temporary custody of the Children. See A.R.S. § 8-821(B) (authorizing temporary custody where, "on a dependency petition filed ... under oath," the court finds "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and it is contrary to the child's welfare to remain in the home"); Ariz. R.P. Juv. Ct. 48(B) ("Upon the filing of a [dependency] petition, the court may issue temporary orders necessary to provide for the safety and welfare of the child."). The court also scheduled and held a preliminary protective hearing (PPH) on November 6. Although Father did not appear, at the conclusion of the PPH, the court issued a third order finding temporary custody was necessary to prevent abuse and neglect and that return of the Children to Mother and Father was contrary to their best interests. See Ariz. R.P. Juv. Ct. 50(A) ("At the [PPH], the court shall determine whether continued temporary custody of the child is necessary and shall enter appropriate orders as to custody ....").

¶5 Three days later, Father personally appeared before the juvenile court at the initial dependency hearing (IDH). Although given the opportunity to do so, Father did not challenge the orders authorizing temporary custody of the Children at the IDH. At the conclusion of the hearing, the court again found "temporary custody [with DCS] is necessary to prevent abuse or neglect and return of the Children to the Parents ... is contrary to the best interest[s] of the Children" and issued a fourth order authorizing temporary custody on November 9, 2018. See Ariz. R.P. Juv. Ct. 52(D)(6) ("At the conclusion of the [IDH] the court shall ... [a]ffirm prior orders making the child a temporary ward of the court[.]").

¶6 On November 27, 2018, Father filed a motion to return the Children to his care, arguing that the October 28 application and sworn declaration in support of DCS's request for the original ex parte temporary custody order "d[id] not set forth sufficient facts to support findings of probable cause" to remove the Children from his care. In response, DCS asked the juvenile court to set an evidentiary hearing pursuant to Arizona Rule of Procedure for the Juvenile Court (Rule) 59. See Ariz. R.P. Juv. Ct. 59(E)(1) (authorizing the juvenile court to return a child to a parent upon request made after the PPH if it finds, "by a preponderance of the evidence, that return of the child would not create a substantial risk of harm to the child's physical, mental or emotional health or safety"). The court held oral argument on December 31 but did not apply Rule 59 or require Father to show the Children would be safe in his care; nor did the court allow DCS to present evidence regarding the need for continued out-of-home care. Instead, the court found the application and declaration in support of the ex parte order deficient and ordered the Children returned to Father. This Court stayed the return order pending resolution of the special action.

JURISDICTION

¶7 This Court has discretion to accept special action jurisdiction and will generally do so when there is no equally plain, speedy, and adequate remedy by appeal and the case presents purely legal issues, issues involving a matter of first impression, or issues of statewide importance. See Ariz. R.P. Spec. Act. 1(a) ; Glenn H. v. Hoskins , 244 Ariz. 404, 407, ¶ 7, 419 P.3d 567, 570 (App. 2018) (quoting State ex rel. Pennartz v. Olcavage , 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001) ). Invoking "[s]pecial action jurisdiction is also appropriate to prevent the superior court from acting without jurisdiction." Glenn H. , 244 Ariz. at 407, ¶ 7, 419 P.3d at 570 (citing Caruso v. Superior Court , 100 Ariz. 167, 170, 412 P.2d 463 (1966) ).

¶8 The appropriate mechanism to challenge a temporary custody order presents a novel legal question of statewide importance. Accordingly, we accept jurisdiction of DCS's petition.

DISCUSSION

¶9 DCS argues the juvenile court failed to comply with applicable law when considering Father's motion. To resolve this issue, we interpret and apply the statutes and procedural rules governing temporary custody orders, a task undertaken de novo . See Logan B. v. DCS , 244 Ariz. 532, 537, ¶ 12, 422 P.3d 1072, 1077 (App. 2018) (citing Premier Physicians Grp., P.L.L.C. v. Navarro , 240 Ariz. 193, 194-95, ¶ 6, 377 P.3d 988, 989-90 (2016), and Valerie M. v. Ariz. Dep't of Econ. Sec. , 219 Ariz. 155, 161, ¶ 19, 195 P.3d 192, 198 (App. 2008) ). If the rules and statutes are clear and unambiguous, we apply the plain meaning as written. Id. (quoting State v. Burbey , 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017) ).

¶10 Until recently, DCS assumed temporary custody over a child using a DCS-issued "temporary custody notice" that involved no advanced court review or approval. See, e.g. , Kimu P. v. Ariz. Dep't of Econ. Sec. , 218 Ariz. 39, 41, ¶ 5, 178 P.3d 511, 513 (App. 2008) ; Michael J., Jr. v. Michael J., Sr. , 198 Ariz. 154, 155, ¶ 4, 7 P.3d 960, 961 (App. 2000). In 2017 and 2018, in response to litigation in federal court concerning the constitutionality of removing a child from a parent's care without judicial authorization, see Rogers v. Cty. of San Joaquin , 487 F.3d 1288, 1294-96 (9th Cir. 2007) (collecting cases), the legislature amended A.R.S. § 8-821(A) to abolish this practice, see 2018 Ariz. Sess. Laws, ch. 191, § 1 (2d Reg. Sess.); 2017 Ariz. Sess. Laws, ch. 282, § 3 (1st Reg. Sess.). Our supreme court adopted Rule 47.3, effective July 1, 2018, to implement those amendments.

¶11 Currently, absent exigent circumstances or parental consent, DCS may take temporary custody of a child only if it first obtains an ex parte order authorizing it to do so on the grounds that "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect." A.R.S. § 8-821(A)-(B) ; accord Ariz. R.P. Juv. Ct. 47.3(B). If the child is an Indian child, the superior court must also find "temporary custody is necessary to prevent imminent physical damage or harm to the child." Ariz. R.P. Juv. Ct. 47.3(B). DCS may request such an order from Maricopa County Superior Court "[o]n application under oath." Ariz. R.P. Juv. Ct. 47.3(A) ; accord A.R.S. § 8-821(B) ; see also Sup. Ct. Admin. Dir. No. 2018-06 (requiring all applications for orders authorizing a child's removal to be filed in Maricopa County Superior Court); accord Ariz. R.P. Juv. Ct. 47.3(C)(1).

¶12 Father relies exclusively upon principles underlying the issuance of criminal warrants to justify his objection to the juvenile court's procedural approach. But, although a criminal warrant and an ex parte temporary custody order in a dependency proceeding have some similarities, they are quite different in practice. Most notably, a criminal warrant is not reviewed unless challenged. By contrast, an ex parte order authorizing temporary custody either expires automatically if no dependency petition is filed, or, if a dependency is initiated, subject to automatic, immediate, and continued review and scrutiny. Pursuant to Rule 47.3(D)(4), "[t]he temporary custody authorized by the [ex parte ] order will expire after 72 hours excluding Saturdays, Sundays and holidays unless a dependency petition is filed. Ariz. R.P. Juv. Ct. 47.3(D)(4). Thereafter, "[t]he court with dependency jurisdiction over the child will review continuation of temporary custody as provided in [the Rules]." Id. Thus, unlike a criminal warrant, a temporary custody order is subject to continuous review by the juvenile court.

¶13 The continuous-review process promulgated by our legislature and supreme court begins as soon as a child is removed from the home:

• Between five and seven days after a child is taken into custody, "[t]he court shall hold a [PPH] to review the taking into temporary custody of a child pursuant to [A.R.S.] § 8-821." A.R.S. § 8-824(A) ; see also Ariz. R.P. Juv. Ct. 50(A) ("At the [PPH], the court shall determine whether continued temporary custody of the child is necessary."); accord Ariz. R.P. Juv. Ct. 47.3(D)(4); A.R.S. § 8-829(A)(1).
• After considering the allegations of a verified dependency petition, the juvenile court may issue temporary custody orders "necessary to provide for the safety and welfare of the child." Ariz. R.P. Juv. Ct. 48(B) ; see also A.R.S. § 8-821(B) (authorizing issuance of a temporary custody order based upon review of the dependency petition); Ariz. R.P. Juv. Ct. 47.1(A) (directing the court to determine "[i]n the court's first order that sanctions the removal of a child in dependency proceedings, whether continuation of the child's residence in the home would be contrary to the welfare of the child. This order may be the temporary order that the court issues on the filing of a dependency petition.").
• Once a dependency petition is filed, "the court shall set the [IDH] within twenty-one days," A.R.S. § 8-842(A), at which time it is tasked with entering findings and orders concerning the placement and custody of the child, Ariz. R.P. Juv. Ct. 52(D)(6) ("At the conclusion of the [IDH] the court shall ... [a]ffirm prior orders making the child a temporary ward of the court.").
• Thereafter, the juvenile court is directed to periodically address placement and the need for out-of-home care at the dependency adjudication, disposition, and review hearings. See Ariz. R.P. Juv. Ct. 55(E)(5) (directing the court to "[e]nter orders concerning the placement and custody of the child" at the dependency adjudication hearing); Ariz. R.P. Juv. Ct. 56(E)(2) (same at the disposition hearing); Ariz. R.P. Juv. Ct. 58(F)(3) (same at review hearings, which, pursuant to A.R.S. § 8-847(A), must be held "at least once every six months").

Thus, by rule and statute, temporary custody, even if initiated via an ex parte order, is reviewed first upon the filing of the dependency petition, a second time within five to seven days after the child is taken into custody at the PPH, and a third time within twenty-one days after the dependency petition is filed at the IDH. The need for continued out-of-home care is then reviewed at least once every six months until the dependency is resolved. Recurring review of a child's placement ensures that the court's orders remain in his best interests - a consideration that "permeates dependency and severance proceedings." DCS v. Beene , 235 Ariz. 300, 304, ¶ 9, 332 P.3d 47, 51 (App. 2014) (collecting authority).

¶14 Importantly, the juvenile court does not engage in a perpetual review of the same evidence; the record differs - and typically expands - at each stage of review. While the initial temporary custody order is likely based solely upon the application and sworn declaration, see Ariz. R.P. Juv. Ct. 47.3(C), the order issued after a dependency petition is filed will be based upon the verified allegations in the petition, Ariz. R.P. Juv. Ct. 48(B); A.R.S. § 8-821(B), and the orders entered after the PPH, IDH, and review hearings may be informed by additional reports, evidence, and testimony, see Ariz. R.P. Juv. Ct. 50(B)(4), (6), 51(C), 58(C)-(E). The cumulative nature of the review process means the duration of a temporary order may be quite brief; each new order necessarily replaces the last as the court gains information and perspective. For these reasons, the timing of a parent's challenge to temporary custody is critical to determining both the record upon which the review occurs and the standard to be applied.

¶15 Applying these principles, the original ex parte order authorizing temporary custody ceased to be of effect on November 1, 2018, when the juvenile court approved temporary custody based upon the allegations of the verified dependency petition. Therefore, to the extent Father's November 27 motion to return the Children sought to challenge the ex parte order, it was untimely and should have been denied.

¶16 Father suggests the juvenile court should treat the November 27 motion as a challenge to the temporary custody order issued at the PPH and governed by Rule 51. Rule 51 directs the court to set an evidentiary hearing "to determine whether removal of the child was necessary and whether the child should remain in out-of-home placement." Ariz. R.P. Juv. Ct. 51(A). At that hearing, DCS bears the burden of proving "there is probable cause to believe that continued temporary custody of the child is clearly necessary to prevent abuse or neglect." Ariz. R.P. Juv. Ct. 51(B). If the child is an Indian child, DCS must also prove "by clear and convincing evidence ... that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" and "that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful." Id.

¶17 By its terms, however, Rule 51 directs the court to conduct a hearing "if requested by the parent ... at the [PPH]." Ariz. R.P. Juv. Ct. 51(A). Father did not challenge temporary custody at the PPH, and Rule 51 does not apply. Nor did Father challenge temporary custody at the IDH, where he made his first appearance in the case. Because Father expressly waived review of temporary custody at the IDH, we need not consider whether Rule 51 applies solely to a challenge made at the PPH - as the text of Rule 51 provides - or whether it applies more broadly to the hearing at which a parent first appears after service is completed.

¶18 Father's failure to avail himself of Rule 51 does not mean he is unable to challenge temporary custody. A parent may still request return of a child "[a]t any time after the temporary custody hearing" pursuant to Rule 59. Rule 59 directs the juvenile court to set an evidentiary hearing on the motion within thirty days. Ariz. R.P. Juv. Ct. 59(B). At that hearing, the court may return the child to the parent if it finds by a preponderance of the evidence that it would not create a substantial risk of harm to the child's physical, mental, or emotional health or safety. Ariz. R.P. Juv. Ct. 59(E)(1) ; see also A.R.S. § 8-861. This procedure was available for disposition of Father's motion, and the court erred in not following these procedures.

¶19 Father suggests the application of these rules and statutes results in a manifest injustice. Not so. The focus at each stage of the temporary custody inquiry is whether there is a present need for out-of-home care. This focus is consistent with the directive that, at all stages of the removal and dependency proceedings, the paramount concern is the child's health and safety. See Ariz. R.P. Juv. Ct. 36 ("The rules [of procedure for the juvenile court] should be interpreted in a manner designed to protect the best interests of the child, giving paramount consideration to the health and safety of the child."), 47.1(A) ("If a child has been removed from the child's home by the state authority, the court shall make protecting the child from abuse or neglect the first priority."); accord A.R.S. §§ 8-821(E), -824(E)(9), -829(A), -843(A), -845(B); see also Ariz. Dep't of Econ. Sec. v. Lee ex rel. Cty. of Maricopa , 228 Ariz. 150, 155, ¶ 23, 264 P.3d 34, 39 (App. 2011) ("The clear purpose of the governing statutes and Rules demands that, in dependency cases, if a child is held in temporary custody, all other considerations become subordinate to the child's health and safety."). "When a state expresses such an interest through particular legislation, its policy judgments are entitled to judicial deference." Lee , 228 Ariz. at 153, ¶ 13, 264 P.3d 34 (quoting Diana H. v. Rubin , 217 Ariz. 131, 136, ¶ 23, 171 P.3d 200, 205 (App. 2007) ). We cannot interpret the rules and statutes in a way that permits the court to ignore presently known facts that justify continued out-of-home care and remain true to the principle of treating the child's welfare as paramount. See id. at 155, ¶ 23, 264 P.3d at 39 (concluding DCS's non-compliance with statutory directives did not justify placing a child's health and safety at risk) (citing Hays v. Gama , 205 Ariz. 99, 102-03, ¶ 18, 67 P.3d 695, 698-99 (2003) ). For this additional reason, the juvenile court erred in focusing solely upon the facial sufficiency of the electronic application and sworn declaration to support the by-then defunct ex parte temporary custody order, and erred by declining to hear any evidence or testimony regarding Father's present willingness or ability to care for them, particularly in light of DCS's avowals within the dependency petition and at the hearing that Father had been neglecting the Children and was unable or unwilling to provide them a safe home.

CONCLUSION

¶20 We accept jurisdiction and grant relief. The applicable rules and statutes provide a mechanism for review of the propriety of ongoing temporary custody through Rules 47.1 (mandating a review and judicial determination that out-of-home care is necessary at the court's first order approving the removal of a child), 50 (governing the PPH), 51 (governing challenges to the temporary custody order), and 59 (governing motions to return the child to a parent). Each rule requires the juvenile court to act quickly, provides the parent with a reasonable opportunity to present argument and evidence in support of his position, and represents a careful balance between the competing interests of protecting a child's health and welfare and a parent's right to custody and control.

¶21 The juvenile court did not follow the prescribed procedures, and its order striking the original ex parte order authorizing DCS to take temporary custody of the Children is vacated. This Court's order staying execution of that order is now moot. The case is remanded for further proceedings consistent with this Opinion.

      Absent material changes from the relevant date, we cite the current version of rules and statutes.

      The ex parte order also authorized removal of three of the Children's half-siblings who are not at issue here.

      We reject Father's suggestion that prompt review of temporary custody at the PPH violates the directive in the Indian Child Welfare Act (ICWA) that "[n]o foster care placement ... proceeding [for an Indian child] shall be held until at least ten days after receipt of notice by the parent." 25 U.S.C. § 1912(a) ; accord Ariz. R.P. Juv. Ct. 48(D)(9) ; see also 25 U.S.C. § 1903(1)(i) (defining "foster care placement" to mean "any action removing an Indian child from its parent ... for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent ... cannot have the child returned upon demand"). The ten-day notice requirement does not apply where, as here, the PPH is part of an emergency proceeding to protect an Indian child from harm. See Ariz. R.P. Juv. Ct. 48 cmt. ("When the [PPH] is held as an emergency hearing under [ICWA], the 10-day notice requirement does not apply."), 50(A) ("The [PPH] may be held as an emergency hearing as provided in [ICWA]."); 25 U.S.C. § 1922 ("Nothing in [ICWA] shall be construed to prevent the emergency removal of an Indian Child ... under applicable State law, in order to prevent imminent physical damage or harm to the child."); 25 C.F.R. § 23.113(b)(3) (requiring the state court to continue to assess, as part of the emergency proceeding, whether continued temporary custody is necessary to protect the child from imminent harm).


source: Caselaw Access Project

author: Opinion by JUDGE TAUBMAN

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christopher Anthon MAZZARELLI, Defendant-Appellee.
    Court of Appeals No. 14CA1719
    Colorado Court of Appeals, Division I.
    Announced March 10, 2016 Rehearing Denied June 16, 2016
    Daniel H. May, District Attorney, Deborah F. Pearson, Senior Deputy District Attorney, Jennifer Darby, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.
   Opinion by JUDGE TAUBMAN

¶ 1 The People appeal the final sentencing order of the trial court entered on a plea agreement of defendant, Christopher Anthon Mazzarelli. We affirm.

I. Background

¶ 2 Mazzarelli was charged with child abuse in violation of section 18-6-401(1)(a), C.R.S. 2015, a class three felony as charged under section 18-6-401(7)(a)(III). The People and Mazzarelli reached a plea agreement providing that Mazzarelli would plead guilty to a reduced charge of class four felony child abuse in exchange for a stipulated sentencing range:

The sentence will be a Department of Corrections Sentence (DOC) within the Extraordinary Risk Crime Range of 2 to 8 years. Both sides are free to argue as to actual amount of incarceration the Court should impose.
I understand that any sentence imposed by the judge must conform to that agreement. If, after I plead guilty, the judge decides not to accept the sentence recommendation or limitation, I will have the right to withdraw my guilty plea and have a trial.

¶ 3 The plea agreement did not contain a similar provision allowing the People to withdraw from it.

¶ 4 On April 4, 2014, at an initial hearing, the trial court reviewed the plea agreement with Mazzarelli. The court accepted the plea and set a date for another hearing so it could review the presentence report before sentencing.

¶ 5 On June 26, 2014, at the second hearing, the prosecution proposed a five-year sentence. The prosecution argued:

This is a case where Mr. Mazzarelli was frustrated that a child was crying. And interrupting his ability to play video games. That is what he was doing. He was playing video games.
His wife was at work. Supporting the family. The Defendant was not working at the time. He was to take care of the child. He was playing video games. And a child was inconveniencing him by crying. Upset.

Mazzarelli did not object. The trial court, which was also presiding over Mazzarelli's dependency and neglect (D & N) proceeding, concluded it would be detrimental to the child if his father, Mazzarelli, were imprisoned and rejected the sentence recommendation, stating, "Not only do I not like it, I am not going to accept the plea agreement." The court gave the People the option to withdraw from the plea agreement and set the case for trial or go forward with open sentencing. The People requested time to respond.

¶ 6 On July 17, 2014, Mazzarelli filed a motion for appointment of a special prosecutor. He alleged that the People made "blatantly false statements" to the court during sentencing arguments, focusing on Mazzarelli being unemployed at the time of the incident and stating that he had abused the victim because the child's crying interrupted his playing video games.

¶ 7 On July 18, 2014, at the third hearing, the People clarified their misstatements from the previous hearing:

The two misstatements are, specifically, the defendant was unemployed. He was employed. He was employed at Borriello Brothers. He was working nights while the mother of the victim was working during the day. He was not at work that day, but that was the miscommunication, and I apologize to the Court for that.
The other violation was the video games. The defendant had been playing video games earlier in the day, was not playing video games at the time of the offense. He was on his phone, but not playing video games, and for that I apologize to the Court as well.

¶ 8 The People requested to withdraw from the plea agreement and reset the case for trial. The court denied the request as a sanction for prosecutorial misconduct based on the misstatements at the second hearing. The court moved forward with open sentencing and sentenced Mazzarelli to thirty-six months supervised probation, based in part on Mazzarelli's compliance with his treatment plan in the related D & N proceeding. As discussed below, this sentence was not imposed as a sanction for prosecutorial misconduct, but was based on independent reasoning by the trial court.

¶ 9 The People contend (1) the trial court should be bound by the plea agreement because it did not inform the parties before accepting the plea that it was inclined not to accept the stipulated sentencing range and (2) the court erred when it found prosecutorial misconduct and did not permit the People to withdraw from the plea agreement. We disagree. However, we need not address the prosecutorial misconduct issue directly because the misstatements by the prosecutor had no impact on the outcome of the case for two reasons: (1) regardless of the trial court's sanction, the People were not entitled to withdraw from the plea agreement and (2) the trial court's finding of prosecutorial misconduct did not implicate the sentence ultimately imposed because the trial court decided not to sentence Mazzarelli to the DOC before it knew of any misstatements.

II. Preliminary Issues

¶ 10 We address two preliminary issues raised by Mazzarelli. If he is correct, we would not need to reach the merits of the People's contentions. Mazzarelli contends (1) the People's appeal is barred by section 16-12-102(1), C.R.S. 2015; and (2) the People's available relief is limited by the Double Jeopardy Clause. We disagree with his first contention, but we agree with his second contention.

A. Jurisdiction

¶ 11 Mazzarelli contends the People's appeal is barred by section 16-12-102(1) because their appeal challenges the trial court's discretionary acts in rejecting a sentence recommendation and sanctioning prosecutorial misconduct. We disagree.

1. Applicable Law

¶ 12 Appeals by the prosecution are strictly limited. People v. Stephens, 837 P.2d 231, 235 (Colo. App. 1992). The People may appeal only questions of law, pursuant to section 16-12-102(1). See People v. Marston, 772 P.2d 615, 617 (Colo. 1989) (holding that review under section 16-12-102(1) was proper when trial court's dismissal was based on reviewing the face of a document).

2. Analysis

¶ 13 The parties' obligations under a plea agreement are questions of law. See Craig v. People, 986 P.2d 951, 960 (Colo. 1999). Therefore, we have jurisdiction.

B. Double Jeopardy

¶ 14 Mazzarelli next contends double jeopardy principles preclude reversing and remanding to the trial court. We agree and conclude the People's relief is limited to an order disapproving of the trial court's sentence.

1. Applicable Law

¶ 15 The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from being twice punished for the same offense. U.S. Const. amends. V, XIV ; Colo. Const. art. II, § 18. Although a court may correct an illegal sentence without implicating double jeopardy concerns, it may not increase a lawful sentence after a defendant has begun serving it. People v. Sandoval, 974 P.2d 1012, 1015 (Colo. App. 1998).

2. Analysis

¶ 16 Here, Mazzarelli has already commenced serving his three-year probation sentence. The sentence was legal. Mazzarelli pleaded guilty to one count of child abuse as a class four felony and was not subject to a mandatory prison sentence. § 18-6-401(1)(a), (7)(a)(IV) ; cf. § 18-1.3-401(8)(d)(I), C.R.S. 2015 (class two and class three child abuse counts under sections 18-6-401(7)(a)(I) and (a)(III) require a prison sentence); People v. Tolbert, 216 P.3d 1, 3 (Colo. App. 2007) ("A sentence that is not in full compliance with the sentencing statutes is illegal.").

¶ 17 To remand his case for the imposition of a sentence of up to eight years in the custody of the DOC would violate his right to be free from double jeopardy provided that his sentence was legal, a conclusion we reach below. Thus, we cannot reverse and remand to the trial court. The only available relief to the People would be an order disapproving of the trial court's ruling. Therefore, we address the appeal on the merits. Because we conclude the trial court did not err or abuse its discretion, we affirm.

III. Sentence

¶ 18 The People contend the court erred when it sentenced Mazzarelli below the two- to eight-year range in the plea agreement. We disagree.

A. Standard of Review

¶ 19 We review de novo the parties' obligations under a plea agreement. See Craig, 986 P.2d at 960. We review a trial court's sentencing determination for abuse of discretion. People v. Watkins, 684 P.2d 234, 239 (Colo. 1984).

B. Applicable Law

¶ 20 The Rules of Criminal Procedure presume that a trial court is not bound by "any representations ... concerning the penalty to be imposed [for a defendant] or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any." Crim. P. 11(b)(5) ; see Young v. People, 30 P.3d 202, 206-07 (Colo. 2001). The judge in "every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions." Crim. P. 11(f)(5) ; see also § 16-7-302(3), C.R.S. 2015 (notwithstanding the reaching of a plea agreement, the judge should always exercise independent judgment in deciding whether to grant charge and sentence concessions).

¶ 21 In Keller v. People, 29 P.3d 290, 297 (Colo. 2000), the supreme court held that the prosecutor may not withdraw from a plea agreement after its acceptance unless an ordered sentence reduction constitutes "a material and substantial breach of the plea agreement."

¶ 22 Further, the Keller court noted that "[t]he requirement that a defendant must be permitted to withdraw from a plea agreement that has been rendered invalid as a result of a trial court's constitutionally defective advisement does not, of course, compel the conclusion that a prosecutor should be allowed to withdraw from a plea agreement when a trial court has acted within its discretion to reduce a sentence originally imposed in accordance with a sentence stipulation." Id . at 296 (emphases in original, footnote omitted).

C. Analysis

¶ 23 The People contend the court impermissibly rejected the plea agreement after initially accepting it. They argue the court should be bound by the plea agreement because it did not inform the parties before accepting the plea agreement that it was inclined not to accept it. Therefore, the People contend the trial court erred when it sentenced Mazzarelli below the two- to eight-year stipulated sentencing range included in the plea agreement. We disagree.

¶ 24 First, we interpret the plea agreement's terms. Craig, 986 P.2d at 960. The plea agreement provided that Mazzarelli would be sentenced to between two and eight years in the custody of the DOC.

¶ 25 However, we conclude the trial court did not explicitly accept and agree to be bound by the sentence recommendations contained in the plea agreement. At the first hearing, the trial court stated that it would "accept [Mazzarelli's] guilty plea." The court, contrary to the People's assertions, did not specifically mention the sentence recommendations. See Dawson v. People, 30 P.3d 213, 216 (Colo. 2001) (the trial court specifically reserved the right to sentence the defendant "however I think is right"); Clark v. People, 7 P.3d 163, 165 (Colo. 2000) (the trial court bound itself to sentence recommendations when it stated the sentence would "not exceed three years," as agreed in the plea agreement); People v. Roy, 109 P.3d 993, 994 (Colo. App. 2004) (In response to the prosecutor's specific request, the trial court stated, "yes, I would be willing to commit [to the proposed penalty] in advance, but only on the assumption [the defendant has] no criminal record, which is what was represented to me.").

¶ 26 In fact, the trial court went on to say that the matter would "be continued for receipt of a presentence investigation report and sentencing." As the People cite in their brief, a court is bound by sentence concessions that are included in a plea agreement, accepted by the court, and supported by a presentence report . Roy, 109 P.3d at 995. Here, unlike in Roy, the statements the People rely on are from the hearing before the court had received the presentence report, let alone reviewed it.

¶ 27 Further, the court notified the parties of its decision not to accept the sentence recommendations before it imposed a sentence lower than the sentencing recommendations in the plea agreement. In the second hearing, the court stated:

I don't like [the sentence recommendation that Mazzarelli must be sentenced to prison]. Not only do I not like it, I am not going to accept the plea agreement. That mandates that I sentence him to prison. I will accept an open sentence. That will accept a ComCor [community corrections] sentence. I am not willing to send this man to prison for what has occurred. Do you want to withdraw the guilty plea or withdraw the offer?

¶ 28 In addition to putting the parties on notice, the court also gave the People the opportunity to withdraw from the plea agreement or move forward with open sentencing. The People said they wanted more time to respond. Then, at the third hearing, the People said they wanted to withdraw from the guilty plea agreement, but the trial court would not let them because it found that the People had engaged in misconduct at the second hearing, as explained below in Part IV. Therefore, we conclude the trial court did not abuse its discretion when it sentenced Mazzarelli to three years' probation.

IV. Prosecutorial Misconduct

¶ 29 The People next contend the trial court erred when it refused to allow them to withdraw from the plea agreement after finding prosecutorial misconduct. They argue that the prosecutor's misstatements were insignificant and did not influence the length of Mazzarelli's sentence had the court complied with the stipulated sentencing range in the plea agreement.

¶ 30 We do not reach the issue of whether the prosecutor's statements constituted prosecutorial misconduct because the prosecutor was not entitled to withdraw the plea agreement and because there is no evidence the trial court was affected by the misstatements.

¶ 31 First, as noted previously, a prosecutor may only withdraw from a plea agreement after its acceptance unless an ordered sentence reduction constitutes "a material and substantial breach of the plea agreement." Keller, 29 P.3d at 297. Here, there was no acceptance of the entirety of the plea agreement, nor was there a material and substantial breach.

¶ 32 Second, at the second hearing, despite listening to the prosecutor's statements, the trial court stressed that it would not accept the stipulated sentencing range in the plea agreement and would not send Mazzarelli to prison. Significantly, the trial court made this statement before it had any knowledge of prosecutorial misconduct.

¶ 33 As described in Part III.C, because the trial court accepted only Mazzarelli's guilty plea at the first hearing and still needed to review the presentence investigation report, the trial court had discretion to sentence Mazzarelli outside the terms of the stipulated sentencing range. Also, the sentence was not illegal, as discussed in Part III. Further, the People do not allege Mazzarelli "materially and substantially breached the plea agreement." Keller, 29 P.3d at 297. Therefore, we need not address any error by the trial court in not letting the People withdraw from the plea agreement based on the People's alleged prosecutorial misconduct.

V. Conclusion

¶ 34 The sentence is affirmed.

Miller and Fox, JJ., concur.


author: Opinion by JUDGE LICHTENSTEIN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Burnest Alvis JOHNSON, Defendant-Appellant.
    Court of Appeals No. 13CA2378
    Colorado Court of Appeals, Division V.
    Announced January 26, 2017 Rehearing Denied February 23, 2017
    Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE LICHTENSTEIN

¶ 1 The offense of retaliation against a witness or victim, as defined in section 18-8-706, C.R.S. 2016, applies to retaliation against an individual because of that person's relationship to criminal proceedings. This appeal requires us to decide whether it also applies to retaliation against an individual because of that person's relationship to a civil proceeding. We conclude that it does not and therefore vacate defendant Burnest Alvis Johnson's witness retaliation conviction.

¶ 2 Johnson also challenges the trial court's denial of his motions for a mistrial and a new trial. We perceive no error in those rulings and thus affirm the judgment of conviction as to his remaining convictions.

I. Background

¶ 3 In February 2013, the Colorado Department of Human Services (DHS) took custody of Johnson's two children based on information from Elizabeth Ranals, Johnson's former friend.

¶ 4 According to the People's evidence, Johnson and his girlfriend drove to a DHS office three hours after the children were removed, but the office was closed. Before leaving, Johnson fired shots into a vehicle in the parking lot that appeared similar to the vehicle driven by the DHS employees who had removed the children hours earlier. Believing Ranals provided the information that led to the removal of his children, Johnson drove to her home and fired several shots into the house. Ranals and two children were inside the house at the time, but they were not injured.

¶ 5 The police arrested Johnson several days later, charging him with numerous counts, including four counts of attempted first degree murder and, as pertinent here, retaliation against a witness or victim.

¶ 6 The prosecution's theory in support of the witness retaliation count was that Johnson shot into Ranals' home because she had reported him to DHS, and that he believed she might be a witness in the dependency and neglect proceedings that "could cause him to lose his children."

¶ 7 The jury acquitted Johnson of seven charges, including the attempted first degree murder counts. The jury convicted him of the remaining charges, including retaliation against a witness or victim.

¶ 8 Johnson filed a motion for a new trial, which the court denied.

II. Sufficiency of the Evidence

¶ 9 Johnson contends that the offense of retaliation against a witness, as defined in section 18-8-706, applies only to retaliation against a witness because of the witness's relationship to a criminal proceeding. He asserts that because the prosecution only presented evidence regarding Ranals' perceived involvement in a civil dependency and neglect proceeding, his conduct could not have constituted witness retaliation under this statute. We agree and vacate his conviction.

A. Standard of Review

¶ 10 Statutory interpretation is a question of law that we examine de novo. Bostelman v. People , 162 P.3d 686, 689 (Colo. 2007). We also examine de novo whether sufficient evidence exists to support a conviction. Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010). Divisions of this court differ on whether a plain error analysis applies, as a standard of reversal, to an unpreserved sufficiency claim premised on a question of law. Compare People v. McCoy , 2015 COA 76M, 444 P.3d 766 (declining to analyze under a plain error standard) (cert. granted Oct. 3, 2016), with People v. Lacallo , 2014 COA 78, 338 P.3d 442 (holding that plain error review applies).

¶ 11 We are persuaded by the line of cases holding that a plain error analysis does not apply to unpreserved sufficiency claims premised on a question of law. We share the serious concerns raised about the fundamental fairness of applying plain error review in such cases. See, e.g. , McCoy , ¶ 31 ("By this process, questions of statutory interpretation, such as are at issue here and in Lacallo , could remain unresolved indefinitely, and by this reasoning, innocent defendants could also remain in prison indefinitely."); Lacallo , ¶ 72 (Román, J., concurring in part and dissenting in part) ("But more than anything, I fail to see how plain error review is fair to a defendant who has been convicted despite insufficient evidence in the record to support the conviction.").

B. Statutory Interpretation

¶ 12 In interpreting statutes, our primary task is to give effect to the intent of the General Assembly. Bostelman , 162 P.3d at 689. We do so by first looking to the plain language of the statute. Id. at 690. The language at issue must be read in the context of the statute as a whole, and a court's interpretation should give consistent, harmonious, and sensible effect to all parts of the statutory scheme. Jefferson Cty. Bd. of Equalization v. Gerganoff , 241 P.3d 932, 935 (Colo. 2010).

¶ 13 If a statute is ambiguous, we may look for guidance in prior law, statutory history, the legislature's objective, and even the placement of the statute within a piece of broader legislation. Id. at 935-36 ; see People v. Hickman , 988 P.2d 628, 634-35 (Colo. 1999).

C. Section 18-8-706

¶ 14 Section 18-8-706 provides that an individual commits retaliation against a witness or victim

if such person uses a threat, act of harassment as defined in section 18-9-111, or act of harm or injury upon any person or property, which action is directed to or committed upon a witness or a victim to any crime , an individual whom the person believes has been or would have been called to testify as a witness or victim, a member of the witness' family, a member of the victim's family, an individual in close relationship to the witness or victim , an individual residing in the same household with the witness or victim , as retaliation or retribution against such witness or victim .

(Emphasis added.)

¶ 15 In Hickman , our supreme court construed this statute in the context of a facial challenge for vagueness and overbreadth. The court upheld the statute's constitutionality on the vagueness challenge, concluding that "the statute by the plain meaning of its terms requires the defendant to have ... the specific intent to retaliate or to seek retribution against a person protected by the statute because of that person's relationship to a criminal proceeding." 988 P.2d at 645. However, this conclusion addressed only the narrow issue of whether the 1992 amendments to the statute removed its specific intent requirement, causing impermissible overbreadth or vagueness.

¶ 16 We must resolve a question not directly addressed in Hickman . Did the General Assembly intend the statute to only protect persons because of their relationship to criminal, and not civil, proceedings?

¶ 17 We first turn to the plain language to discern the legislative intent. The statute identifies different classifications of persons protected under it. These protected persons include not only "a witness or a victim to any crime ," but also "an individual whom the [defendant] believes has been or would have been called to testify as a witness or a victim," a family member of "the" witness or victim, and a person in a close personal relationship or in the same household as "the" witness or victim. § 18-8-706 (emphasis added).

¶ 18 The initial classification modifies the phrase "a witness or a victim" with the words "to any crime ." The remaining classifications simply use the phrase "a witness or victim" without any modifiers that expressly limit it to, or expand it beyond, criminal proceedings. Yet, some of these latter classifications refer back to "the" victim or witness. Due to this lack of clarity and possible inconsistency, we cannot readily discern whether the legislature intended to limit all the classifications to refer only to witnesses and victims "to any crime." Thus, we conclude that the language is ambiguous and turn to additional interpretative aids to discern the legislative intent.

¶ 19 Hickman guides our analysis of the legislative intent. There, the court reviewed the legislative history and purpose of section 18-8-706. The court noted that the General Assembly intended this law to protect persons who are or are believed to be witnesses in criminal proceedings. Hickman , 988 P.2d at 635, 645. Even the partial dissent observed that the General Assembly enacted section 18-8-706 "to protect the administration of criminal justice" because "[w]itnesses are indispensable participants in our criminal justice system." Id. at 646 (Mullarkey, C.J., concurring in part and dissenting in part).

¶ 20 The court also considered the statute's placement in title 18 as part of the "Colorado Victim and Witness Protection Act of 1984" (the Act) as evidence of the legislature's intent to protect witnesses to criminal proceedings. See id. at 645 (majority opinion).

¶ 21 We have also examined other sources of legislative intent. And this examination further corroborates Hickman 's construction of the statute.

¶ 22 For example, the title of the enacting bill evidences a legislative intent to protect individuals because of their relationship to criminal proceedings: "An Act concerning the commission of crimes, and relating to the rights of victims thereof and witnesses thereto and creating criminal offenses for the protection of such witnesses and victims." Ch. 122, 1984 Colo. Sess. Laws 499.

¶ 23 Further, the House sponsor of the original bill also confirmed that the focus of the bill was to protect witnesses to criminal proceedings. See, e.g. , Second Reading of H.B. 1326 before the House, 54th Gen. Assemb., 2nd Reg. Sess. (Feb. 20, 1984) (statement of Representative Don Mielke, noting this legislation would fill a gap in Colorado's "antiquated" laws because without this change, "if the witness is to a crime before the case is filed, he can be intimidated with, tampered with, harassed with whatever and it's not in violation of the Colorado law").

¶ 24 And, in 1992, the General Assembly significantly amended section 18-8-706 by removing the phrase "for giving testimony in any official proceeding" and adding the phrase "to any crime," among other changes. Whether we construe this amendment as a clarification or a substantive change, the wording of the current statute affirmatively expresses a legislative intent to protect witnesses and victims involved in criminal proceedings.

¶ 25 As noted above, the legislature did not add the phrase "to a crime" after describing each classification of protected person. But reading the statute as a whole, and in the context of its purpose, we are convinced that the legislature limited the scope of its protection to actions that are directed to or committed upon protected persons because of their relationship to a criminal proceeding.

¶ 26 Indeed, in a related statute in the Act, the General Assembly used plain and unmistakable language to communicate its intent to protect persons involved in civil, as well as criminal, proceedings. In section 18-8-706.5, C.R.S. 2016, the General Assembly defined the crime of retaliation against a juror and classified the protected person as a "juror who has served for a criminal or civil trial." (Emphasis added.) Thus, if the legislature had intended for section 18-8-706 to protect persons because of their relationship to civil proceedings, it could have expressly stated so. See Auman v. People , 109 P.3d 647, 656-57 (Colo. 2005) ("Just as important as what the statute says is what the statute does not say.... We should not construe these omissions by the General Assembly as unintentional.").

¶ 27 We are not persuaded by the People's argument that the general definition of "witness" found in section 18-8-702 of the Act evidences a legislative intent to apply the retaliation statute to witnesses in civil, as well as criminal, proceedings.

¶ 28 According to the general definition,

(2) "Witness" means any natural person:
(a) Having knowledge of the existence or nonexistence of facts relating to any crime;
(b) Whose declaration under oath is received or has been received as evidence for any purpose;
(c) Who has reported any crime to any peace officer, correctional officer, or judicial officer;
(d) Who has been served with a subpoena issued under the authority of any court in this state, of any other state, or of the United States; or
(e) Who would be believed by any reasonable person to be an individual described in paragraph (a), (b), (c), or (d) of this subsection (2).

§ 18-8-702, C.R.S. 2016.

¶ 29 This statute specifically references witnesses having knowledge of "any crime" or who have reported "any crime," as well as witnesses who have made statements under oath or have been served with subpoenas. The statute does not mention civil proceedings. Thus, we cannot discern from this definition a clear legislative intent to expansively define "witness" to include those in civil proceedings. Again, the legislature could have used words including witnesses in civil proceedings, had it intended such an expansive definition. See People v. Yascavage , 101 P.3d 1090, 1096 (Colo. 2004).

¶ 30 Accordingly, we conclude that section 18-8-706 applies only to retaliation against witnesses or victims because of their relationship to criminal, and not civil, proceedings. See Hickman , 988 P.2d at 645 ; see also Grynberg v. Ark. Okla. Gas Corp. , 116 P.3d 1260, 1266-67 (Colo. App. 2005) (interpreting section 18-8-708, C.R.S. 2016, and holding that sections "18-8-704, 18-8-705, and 18-8-706 require that the individual suffering intimidation be the victim of or witness to a crime").

D. The Evidence

¶ 31 At trial, the People presented the following evidence to support the offense of witness retaliation: Ranals provided "pertinent information" to DHS, DHS initiated an investigation because of Ranals' information, DHS removed Johnson's children as a result of that investigation, DHS intended to call Ranals as a witness in any subsequent dependency and neglect proceedings, Johnson believed Ranals had provided information to DHS, and this belief angered Johnson enough to drive to Ranals' home and fire a gun into it.

¶ 32 "Dependency and neglect proceedings are civil in nature" and follow the Colorado Children's Code, not the Colorado Criminal Code. People in Interest of Z.P. , 167 P.3d 211, 214 (Colo. App. 2007) ; see People v. D.A.K. , 198 Colo. 11, 16-17, 596 P.2d 747, 751 (1979). Therefore, evidence of Ranals' role as a potential witness in a future dependency and neglect hearing cannot sustain a conviction under section 18-8-706.

¶ 33 Accordingly, we vacate Johnson's conviction for witness retaliation under section 18-8-706.

III. Motions for a Mistrial and for a New Trial

¶ 34 We turn now to Johnson's two other contentions on appeal because they impact his remaining convictions for reckless endangerment, child abuse, illegal discharge of a firearm, and criminal mischief.

¶ 35 At trial, Ranals made a statement referencing Johnson's acts of domestic violence, despite the trial court's prior ruling that evidence of Johnson's other bad acts were inadmissible. Johnson immediately objected and moved for a mistrial. The court denied the motion, and instead instructed the jurors to disregard that statement.

¶ 36 Johnson filed a motion for a new trial with an affidavit from a juror alleging that, during its deliberations, the jury had ignored the judge's order to disregard Ranals' statement, and that several of the jurors had referred to Johnson as a "thug," a "wife beater," and a "criminal." The judge denied the motion, finding that Colorado Rule of Evidence 606(b) prohibited its consideration of the jury's deliberative process.

¶ 37 Johnson contends that the trial court erroneously denied his motion for a mistrial and also erroneously denied his post-verdict motion for a new trial. For the reasons stated below, we disagree.

A. Motion for a Mistrial

¶ 38 Johnson first contends that the trial court erroneously denied his motion for a mistrial, and he asserts that the court's alternative remedy-a limiting instruction to the jury to disregard this evidence-was insufficient to cure the prejudice. We perceive no abuse of discretion.

¶ 39 We review the denial of a motion for a mistrial for an abuse of discretion. People v. Santana , 255 P.3d 1126, 1130 (Colo. 2011). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. People v. Houser , 2013 COA 11, ¶ 57, 337 P.3d 1238.

¶ 40 A mistrial is a drastic remedy and is warranted only when prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. People v. Ned , 923 P.2d 271, 274 (Colo. App. 1996).

¶ 41 A jury's exposure to inadmissible evidence of a defendant's past criminal act or violent character is prejudicial, but the prejudice is not necessarily of such magnitude as to require a mistrial. See, e.g. , People v. Salazar , 920 P.2d 893, 897 (Colo. App. 1996) (concluding that testimony permitting inference of the defendant's involvement in domestic violence was not sufficiently prejudicial as to warrant a mistrial).

¶ 42 Generally, instructing the jurors to disregard erroneously admitted evidence is a sufficient remedy. People v. Lahr , 2013 COA 57, ¶ 25, 316 P.3d 74. Yet, no curative instruction will suffice when inadmissible evidence "is so highly prejudicial ... it is conceivable that but for its exposure, the jury may not have found the defendant guilty." People v. Everett , 250 P.3d 649, 663 (Colo. App. 2010) (quoting People v. Goldsberry , 181 Colo. 406, 410, 509 P.2d 801, 803 (1973) ).

¶ 43 The circumstances of each case must be reviewed to determine the prejudice to the defendant. People v. Abbott , 690 P.2d 1263, 1269 (Colo. 1984).

¶ 44 During the prosecution's direct examination of Ranals, it asked her why Johnson and his girlfriend "decided not to keep your company anymore?" Ranals started to respond, stating, "[Johnson] was beating [his girlfriend], and ..." Johnson's counsel immediately objected and moved for a mistrial. The trial court denied the mistrial request but instructed the jury to "disregard the witness's last statement and you may not consider her last statement as evidence for any purpose."

¶ 45 On this record, we conclude that the trial court did not abuse its discretion. To be sure, Johnson's counsel told the court she was concerned that the jury would infer that Johnson's domestic violence was "an ongoing thing" (the jury heard, as res gestae, that Johnson hit his girlfriend during the charged incident). And counsel was concerned of its impact on the attempted murder charges. However, as the trial court noted, Ranals' statement was fleeting and no details were discussed. See Lahr , ¶ 24 ("[W]e deem inadmissible evidence to have less prejudicial impact when the reference is 'fleeting.' ") (quoting People v. Vigil , 718 P.2d 496, 505-06 (Colo. 1986) ).

¶ 46 And there is no indication in the record that the prosecutor intentionally elicited this information. See Everett , 250 P.3d at 662 ("A motion for a mistrial is more likely to be granted where the prosecutor intentionally elicited improper character evidence."). Rather, the prosecutor explained to the court that he had instructed the witness not to mention prior domestic violence.

¶ 47 In this context, we conclude that the court properly exercised its discretion by directing the jury to disregard Ranal's statement to ensure that Johnson would not be unfairly prejudiced.

¶ 48 But Johnson now argues that the jury was, in fact, unfairly prejudiced, as shown by a juror's affidavit obtained after trial. The affidavit indicated that, during its deliberations, the jury did not follow the court's instruction to disregard Ranals' statement and characterized Johnson as a "thug," "criminal," and "wife beater." We reject this argument for two reasons.

¶ 49 First, even in cases in which a jury does not receive any limiting instruction, a witness's improper reference may not be so prejudicial to require the drastic remedy of a mistrial. See Abbott , 690 P.2d at 1269 (the mere reference to an accused's past criminal act is not per se prejudicial, requiring a mistrial). Indeed, the jury ultimately acquitted Johnson of seven counts, including the five most serious counts-among them, attempted murder.

¶ 50 Second, we decline to consider the affidavit because CRE 606(b) prohibits courts from inquiring into "any matter or statement occurring during the course of the jury's deliberations."

¶ 51 CRE 606(b) states that

[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

¶ 52 The rule "strongly disfavors any juror testimony impeaching a verdict, even on grounds such as mistake, misunderstanding of the law or facts, failure to follow instructions, lack of unanimity, or application of the wrong legal standard." People v. Harlan , 109 P.3d 616, 624 (Colo. 2005) (emphasis added).

¶ 53 By relying on CRE 606(b), we do not disregard Johnson's argument that-without evidence of jury deliberations-defendants have no way of rebutting the well-settled presumption that jurors follow the court's instructions. See, e.g. , Lahr , ¶ 25 ("Absent contrary evidence, we presume that jurors follow a district court's instructions."). Johnson's argument has some force, but we can also envision circumstances in which a juror's statement made outside of deliberations, or a juror's question posed to a witness, may rebut the presumption that the jurors followed a court's limiting instruction. In any event, Johnson asks us to inquire into the jury's deliberative process, but CRE 606(b) expressly prohibits such inquiry.

¶ 54 Based on the circumstances of this case, we conclude that the district court did not abuse its discretion by issuing a limiting instruction instead of granting Johnson's motion for a mistrial.

B. Motion for a New Trial

¶ 55 Johnson filed a post-verdict motion for a new trial based on the juror affidavit. He asserts that the district court's denial of this motion was an abuse of discretion. Again, we disagree.

¶ 56 A trial court has discretion to grant or deny a new trial, and that decision will not be disturbed absent an abuse of that discretion. People v. Holt , 266 P.3d 442, 444 (Colo. App. 2011).

¶ 57 As noted above, the affidavit claimed that during deliberations, the jury had ignored the court's instruction to disregard Ranals' testimony that Johnson was beating his girlfriend. The court denied Johnson's motion because it was based on the jury's deliberations. The court cited People v. Juarez , 271 P.3d 537 (Colo. App. 2011), for the proposition that CRE 606(b) prohibits the district court from inquiring into the jury's deliberative process.

¶ 58 On appeal, Johnson contends that the juror's affidavit implicated one of the narrow exceptions to CRE 606(b), which states that a juror may testify about "whether extraneous prejudicial information was improperly brought to the jurors' attention."

¶ 59 Johnson asserts that Ranals' stricken statement is "extraneous prejudicial information" that falls under this exception. He relies on People v. Harlan , 109 P.3d 616, and People v. Lahr , 2013 COA 57, 316 P.3d 74, in support of this assertion. His reliance on those decisions is misplaced.

¶ 60 Johnson correctly notes that Harlan and Lahr both state that "any information that is not properly received into evidence ... is extraneous to the case and improper for juror consideration." Lahr , ¶ 24 (alteration omitted) (quoting Harlan , 109 P.3d at 624 ). However, considered in context, this language does not support Johnson's claim.

¶ 61 Lahr did not address CRE 606(b), and thus its use of the word "extraneous" is not persuasive for purposes of interpreting the rule. And, while Harlan addressed the CRE 606(b) exception at issue here, it did not use the above quoted language in the context of improper trial testimony. Rather, this language was directed at the "[e]xposure of a jury to information or influences outside of the trial process itself ." Harlan , 109 P.3d at 629 (emphasis added); accord People v. Wadle , 97 P.3d 932, 935 (Colo. 2004). In Harlan , the extraneous information included a Bible, a Bible index, and notes on biblical passages brought into the jury room. 109 P.3d at 626. Harlan exemplifies the scenario envisioned by the rule, where the jury encounters information for the first time from sources not presented at trial. See Pena-Rodriguez v. People , 2015 CO 31, ¶ 16, 350 P.3d 287 cert. granted , 578 U.S. ----, 136 S.Ct. 1513, 194 L.Ed.2d 602 (2016) (recognizing that CRE 606(b)'s exception for "extraneous prejudicial information" applies, for instance, to a juror's improper investigations into a defendant's case or introduction of evidence from outside the record into the jury room).

¶ 62 The jury in this case was not exposed to information or influences outside of the trial process. Ranals' statement was part of her trial testimony. Thus, it was not extraneous information as contemplated by CRE 606(b). We therefore affirm the trial court's denial of the motion for a new trial.

IV. Conclusion

¶ 63 We vacate Johnson's conviction for witness retaliation under section 18--8-706, but we affirm the judgment of conviction as to his remaining convictions.

Román and Sternberg , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2016.

      The jury also acquitted Johnson of conspiracy to commit first degree murder, aggravated intimidation of a witness, conspiracy to commit aggravated intimidation of a witness, and conspiracy to commit retaliation against a witness.

      The other convictions included two counts of reckless endangerment, two counts of child abuse (no injury), illegal discharge of a weapon, possession of a weapon by a previous offender, criminal mischief, and five counts of habitual criminal.

      The supreme court also granted a petition for certiorari on this issue in People v. Maestas , 2015 WL 222407 (Colo. App. No. 11CA2084, Jan. 15, 2015) (not published pursuant to C.A.R. 35(f) ) (cert. granted Oct. 26, 2015).

      As originally enacted, section 18-8-706 read: "A person commits retaliation against a witness or victim if he intentionally inflicts harm or injury upon any person or property, which action is directed to or committed upon a witness or victim as retaliation or retribution for giving testimony in any official proceeding." Ch. 122, sec. 4, § 18-8-706, 1984 Colo. Sess. Laws 502.
      Among the changes were the removal of the word "intentionally" and the phrase "for giving testimony in any official proceeding," and the addition of the classification of "an individual whom the [defendant] believes has been or would have been called to testify as a witness or victim" and the addition of the phrase "to any crime." Ch. 73, sec. 20, § 18-8-706, 1992 Colo. Sess. Laws 405.

      CRE 606(b) further states: "But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."
      For the reasons stated in Part III.B, we disagree that Ranals' statement at trial falls under the "extraneous evidence" exception to CRE 606(b).


author: Opinion by JUDGE GRAHAM JUDGE NAVARRO, dissenting.

text:
    BLOOMING TERRACE NO. 1, LLC, Plaintiff-Appellant, v. KH BLAKE STREET, LLC; and Kresher Holdings, LLC, Defendants-Appellees.
    Court of Appeals No. 16CA1096
    Colorado Court of Appeals, Division I.
    Announced May 18, 2017
    Reilly Pozner LLP, John M. McHugh, Denver, Colorado, for Plaintiff-Appellant
    Moye White LLP, David A. Laird, Jason D. Hermele, Denver, Colorado, for Defendants-Appellees
   Opinion by JUDGE GRAHAM

¶ 1 When a borrower obtained a large bridge loan to purchase commercial real estate and defaulted, it agreed to pay forbearance fees and related charges. It paid off the loan in full and then sued the lender for usury. Blooming Terrace No. 1 LLC (Borrower) now appeals from the district court's order granting the motion to dismiss filed by KH Blake Street, LLC and Kresher Holdings, LLC (referred to collectively as Lender). Borrower also appeals the district court's award of attorney fees to Lender. We affirm.

I. Background

¶ 2 The bridge financing took place in April 2013. As set forth in Borrower's complaint, Lender loaned $11,000,000 for an origination fee of $220,000. The loan was secured by a deed of trust and memorialized by a promissory note (Note) that contained an accrual interest rate of eleven percent per annum, a default interest rate of twenty-one percent per annum, a five percent late charge on any late monthly payments, and a $110,000 exit fee. Under the Note, Borrower was required to pay a monthly interest payment calculated at the rate of eight percent per annum (based on a 360-day year), but none of the monthly payments applied to the principal. The Note matured on May 1, 2014.

¶ 3 Borrower defaulted on the Note in April 2014. Lender sent Borrower notices of default on April 2 and again on April 17, 2014. On April 22, 2014, the parties executed a forbearance agreement whereby Lender agreed to forbear until May 1, 2014, from foreclosing on the deed of trust in exchange for a $110,000 forbearance fee plus continued accruing default interest, late charges, and certain additional fees. At the time the parties executed the forbearance agreement, the amount of interest (including default interest), late charges, exit fee, and estimated legal fees then outstanding was $778,583.33.

¶ 4 The loan was not paid by May 1, 2014. The parties then amended the forbearance agreement on May 13, 2014, whereby Borrower agreed to pay Lender a total forbearance fee of $220,000 to extend its obligation to repay the loan until 1 p.m. on May 16, 2014. On May 15, Borrower paid off the loan including all outstanding interest, fees, and costs. Borrower does not identify the exact amount of payoff in its complaint.

¶ 5 Borrower sued Lender claiming the fees, interest, costs, and expenses payable "for the forbearance period and the amended forbearance period" exceeded the forty-five percent per annum interest allowable under Colorado's usury law, section 5-12-103, C.R.S. 2016. However, Borrower's first claim for relief incorporates all prior allegations in the complaint and those allegations include the entirety of the loan transaction, not just the forbearance period. Borrower also brought a claim for unjust enrichment based on the usury allegation.

¶ 6 Lender filed a C.R.C.P. 12(b)(5) motion to dismiss, arguing that the loan fees charged did not constitute interest above the maximum allowable rate. The district court agreed, concluding that the effective rate of interest for the loan was 12.924 percent based on the total amount of interest charged during the life of the loan. Because the interest was not usurious, the court dismissed the complaint in its entirety.

¶ 7 Lender then sought attorney fees pursuant to Section 14.c of the Note, which required Borrower to reimburse Lender "for any costs, including but not limited to, reasonable attorneys' fees ... incurred in ... pursuing or defending any litigation based on, arising from, or related to any Loan Document." The district court awarded attorney fees to Lender in the amount of $15,407.20.

II. Usury

A. Standard of Review

¶ 8 We review de novo a district court's grant of a motion to dismiss. Miller v. Bank of N.Y. Mellon , 2016 COA 95, ¶ 15, 379 P.3d 342.

¶ 9 A motion to dismiss under C.R.C.P. 12(b)(5) for failure to state a claim tests the formal sufficiency of a plaintiff's complaint. Dwyer v. State , 2015 CO 58, ¶ 43, 357 P.3d 185. To survive summary dismissal for failure to state a claim under C.R.C.P. 12(b)(5), a party must plead sufficient facts that, if taken as true, suggest plausible grounds to support a claim for relief. Warne v. Hall , 2016 CO 50, ¶ 24, 373 P.3d 588 (adopting a heightened standard of pleading in Colorado that requires a complaint to allege plausible grounds for relief, not merely speculative grounds). In reviewing a trial court's ruling on a C.R.C.P. 12(b)(5) motion, we accept the material factual allegations in the complaint as true and view them in the light most favorable to the nonmoving party. Id.

B. Usury Statute

¶ 10 Interest is compensation for the use, detention, or forbearance of money or its equivalent. Stone v. Currigan , 138 Colo. 442, 445, 334 P.2d 740, 741 (1959). "If there is no agreement or provision of law for a different rate, the interest on money shall be at the rate of eight percent per annum, compounded annually." § 5-12-101, C.R.S. 2016.

¶ 11 Under section 5-12-103(1), "[t]he parties to any ... promissory note ... may stipulate therein for the payment of a greater or higher rate of interest than eight percent per annum, but not exceeding forty-five percent per annum, and any such stipulation may be enforced in any court of competent jurisdiction in the state."

The rate of interest shall be deemed to be excessive of the limit under this section only if it could have been determined at the time of the stipulation by mathematical computation that such rate would exceed an annual rate of forty-five percent when the rate of interest was calculated on the unpaid balances of the debt on the assumption that the debt is to be paid according to its terms and will not be paid before the end of the agreed term.

Id.

C. Dikeou v. Dikeou

¶ 12 In 1996, the Colorado Supreme Court decided Dikeou v. Dikeou , 928 P.2d 1286 (Colo. 1996). Dikeou addressed whether a late payment charge in a nonconsumer loan was interest or an unenforceable penalty under Perino v. Jarvis , 135 Colo. 393, 312 P.2d 108 (1957).

¶ 13 In Dikeou , a creditor loaned $900,000 secured by a promissory note in which the debtor agreed to pay interest of $9,750 per month, or 13% per annum, with the entire principal due and payable in a balloon payment on the note's maturity date. 928 P.2d at 1287. The note provided that late payment charges in the amount of $700 per day would accrue on payments more than one day late. Id. The debtor failed to make numerous payments, and ultimately the creditor demanded payment of both the note in full and the late charges, calculated at a rate of $413.33 per day. Id. The creditor filed suit to enforce the note, and while the district court entered judgment in the creditor's favor on the principal amount of the note, the district court "refused to enforce the daily late charge provision based on its conclusion that the late charges bore 'no relationship ... to any possible damage' that the creditor might have suffered due to the debtor's failure to repay the note according to its terms." Id. at 1287-88. The court of appeals affirmed and the supreme court reversed, concluding that a default interest rate is enforceable and reasonable when it is less than forty-five percent.

¶ 14 Dikeou first concluded that late charges were interest for purposes of the usury statute. Id. at 1293. The supreme court also interpreted the usury statute to require that a default interest rate or late charge be applied retrospectively in order to avoid the literal reading of the statute. The statute's provision that a "rate of interest shall ... be excessive ... only if it could have been determined at the time of the stipulation ... that such rate would exceed an annual rate of forty-five percent ... on the unpaid balances" would seem to require that the interest rate could only be computed by looking forward from the date of the agreement. § 5-12-103(1). According to the supreme court, however, this would be an absurd result because the effective rate of default interest can never be computed at the outset. Obviously, no one could anticipate the length of a default and the amount of late fees at the outset of a loan when all parties anticipate timely payments. The supreme court therefore held that for nonconsumer loans, "the applied per annum rate [of default interest], when added to the initial rate charged on the outstanding principal" must be less than forty-five percent. Dikeou , 928 P.2d at 1295 (emphasis added). The court also concluded that "an effective interest rate is retrospectively computed after all forms of interest charges have been assessed." Id. at 1294-95 (emphasis added). Dikeou does not use the term "annualized." It does, however, offer a partial mathematical computation that appears to annualize the late charge it was considering. Nevertheless, the mathematical computation does not exactly track the Dikeou court's explanation that "an applied rate of interest that is under 45% is reasonable." Id . at 1295 (emphasis added).

¶ 15 Unfortunately, Dikeou 's interchangeable use of several terms makes the application of the usury statute in this case difficult. Indeed, the parties here could not agree at oral argument how it should be applied and provided no less than three ways it might be applied to the current circumstances. The difficulty arises from Borrower's contention that the charges during the forbearance period should be annualized . By annualizing, Borrower computes a daily charge during the forbearance period and then treats that charge as though it was applied from the outset, during the entirety of the loan. By annualizing the charges during the twenty-four-day forbearance period, an interest charge of over 60% can be computed.

¶ 16 But applying Dikeou 's ruling that an effective rate of interest should be applied to all charges retrospectively does not appear to require that we annualize the charges in the forbearance period in this case.

D. Application of Interest

¶ 17 In this case, Borrower urges us to annualize the forbearance charges. In doing so, we would be required to compute a daily rate during the forbearance period and then apply that daily rate to the entire lending period of the loan, treating the daily charge as though it had been charged to Borrower every day for over one year. In other words, Borrower would seek to add all charges during the forbearance period (yielding a daily charge of $15,495 each day for the twenty-four-day forbearance period) and then annualize that amount by treating it as though it had been charged on an annual basis for the entirety of the lending period (387 days multiplied by $15,495 = $5,996,565).

¶ 18 In sharp contrast to this application of interest, the district court measured the interest charged on a purely per annum rate based on the entire amount of interest charged over the life of the loan (387 days) without using a daily rate for the forbearance period.

¶ 19 Section 5-12-103 and our understanding of Dikeou require that we determine whether the effective interest rate is usurious by retrospectively applying it to the entire principal over the life of the loan. Borrower's computation would treat the actual interest charged as though it had been charged at the same rate for the entire period of the loan. In our view, that would not accurately reflect the rate of interest charged during the forbearance period nor would it accurately apply a per annum rate retrospectively.

¶ 20 Based upon the complaint and the exhibits attached to it, we conclude that, although the district court did not accurately apply all of the charges as contemplated by Dikeou , its conclusion that the interest charges were not usurious was nevertheless correct and the complaint failed on its face to allege a claim for which relief could be granted under the usury statute. See People v. Chase , 2013 COA 27, ¶ 17, 411 P.3d 740 ("[W]e may affirm a trial court's ruling on grounds different from those employed by that court, as long as they are supported by the record.").

¶ 21 Here, the record and the allegations of the complaint establish the following amounts of interest, default interest, and forbearances charges paid by Borrower on the $11,000,000 principal loan:

• $220,000 origination fee;
• $220,000 total forbearance fee;
• $110,000 exit fee;
• $1,200,000 per annum interest at 11%;
• $90,410.95 default interest to May 1, 2014;
• $96,250 default interest for May 2014; and
• $366.66 5% late fee on April payment.

Total interest and related charges amounted to $1,937,027.61.

¶ 22 On an applied per annum basis, these charges amount to an interest rate of 17.60%.

¶ 23 Of course, the difference between our calculation and Borrower's is that Borrower seeks to annualize the forbearance fees over the entire loan period, effectively applying them at fifteen times their applied rate rather than on a per annum basis. We decline the invitation to apply the fees on any basis other than a per annum basis. See Dikeou , 928 P.2d at 1294-95.

III. Attorney Fees

A. Contractual Fee Shifting

¶ 24 Borrower next contends the district court erred in granting attorney fees under the terms of the Note. We disagree.

¶ 25 We review a district court's interpretation of a contractual fee-shifting provision de novo. S. Colo. Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v. Weinstein , 2014 COA 171, ¶ 8, 343 P.3d 1044. We review an award of attorney fees and costs for an abuse of discretion. Id.

¶ 26 Colorado courts follow the American rule, which requires parties to a lawsuit to pay their own legal expenses. Id. at ¶ 10. An exception to this rule occurs when the parties agree in a contract clause (often known as a fee-shifting provision) that the prevailing party will be entitled to recover its attorney fees and costs. Id.

¶ 27 The Note states that "[i]mmediately upon Lender's demand, Borrower shall reimburse Lender for any costs, including but not limited to, reasonable attorneys' fees ... incurred in ... pursing or defending any litigation based on, arising from, or related to any Loan Document." Neither forbearance agreement contains a similar fee-shifting provision.

¶ 28 The Note defines "Loan Documents" as "[t]his Note and all other documents now or hereafter evidencing, securing, or relating to the Loan or any subsequent modification of the Loan" and specifies that the list of Loan Documents includes, but is not limited to, the deed of trust, security agreement, and fixture filing; assignment of leases and rents; continuing unlimited guarantee by guarantor; an environmental indemnity agreement; Borrower's closing affidavit; and UCC-1 financing statements.

¶ 29 The district court concluded that Lender was entitled to attorney fees because (1) both forbearance agreements were Loan Documents because they were "documents ... relating to the Loan"; and (2) even if the forbearance agreements were not Loan Documents, the litigation in the case was "related to" the Note-a Loan Document as defined in the Note.

¶ 30 Assuming without deciding that Borrower is correct in arguing that the forbearance agreements were not Loan Documents under the terms of the Note because the forbearance agreements expressly restrict the term Loan Documents to documents enumerated in the Note, we discern no error in the district court's conclusion that this litigation was "related to" a Loan Document entitling Lender to attorney fees.

¶ 31 Borrower's argument that because the forbearance agreements were not Loan Documents, the litigation regarding those agreements is not related to any Loan Document is unavailing. The term "related" is defined as "connected by reason of an established or discoverable relation." Webster's Third New International Dictionary 1916 (2002). "We should give an unambiguous fee-shifting provision its plain and ordinary meaning, and we should interpret it in a 'common sense manner.' " Weinstein , ¶ 11 (quoting Morris v. Belfor USA Grp., Inc. , 201 P.3d 1253, 1259 (Colo. App. 2008) ).

¶ 32 This litigation concerns the amount of interest charged by Lender under the terms of both the Note and the forbearance agreements. Indeed, under Dikeou , it is necessary to know the initial base interest rate in the Note to reach a conclusion regarding whether the agreement is usurious. 928 P.2d at 1295. Thus, there was no error in the district court's conclusion that this litigation "related to" the Note and was, therefore, subject to the fee-shifting provision in the Note.

B. Reasonableness of Fees

¶ 33 Borrower further contends that the district court abused its discretion in calculating the amount of fees awardable to Lender. We reject this contention.

¶ 34 We afford the district court considerable discretion in determining the reasonableness of attorney fees. Weinstein , ¶ 23. In doing so, courts first calculate a lodestar amount. Payan v. Nash Finch Co. , 2012 COA 135M, ¶ 18, 310 P.3d 212. "The lodestar amount represents the number of hours reasonably expended on the case, multiplied by a reasonable hourly rate." Id. The district court then has discretion to make upward or downward adjustments to the lodestar amount based on factors set forth in Colo. RPC 1.5(a). Weinstein , ¶ 24.

¶ 35 After careful review, the district court awarded Lender $15,407.20 in fees. The court considered Borrower's arguments that (1) there was no breakdown of what work was done for Lender and for Lender's affiliate; (2) Lender failed to prove the fees were reasonable; (3) counsel provided inadequate explanation for entries; (4) counsel included improper block billing; (5) counsel failed to exercise billing judgment; and (6) counsel's fees were excessive. Our review of the record convinces us that the court rejected each of these contentions after careful consideration and that the district court's ultimate conclusion to award fees was not an abuse of discretion. Regarding apportionment, the district court found, with support, that all the fees were incurred by KH Blake Street on behalf of its affiliate.

¶ 36 Nor are we persuaded by Borrower's argument on appeal that the court placed the burden on it to show Lender's attorney fees were unreasonable. The court in fact accepted Borrower's argument on reasonableness, concluding the court was "unable to judge the reasonableness of the requested fees based on the information provided," and thus reduced the amount of requested fees.

¶ 37 Accordingly, we do not disturb the district court's findings on fees and costs.

IV. Appellate Attorney Fees

¶ 38 Pursuant to Section 14.c of the Note, Lender is entitled to appellate attorney fees. Pursuant to C.A.R. 39.1, we exercise our discretion and remand to the district court to determine the amount of reasonable attorney fees to be awarded to Lender.

V. Conclusion

¶ 39 The judgment is affirmed, and the case is remanded to the district court for a determination of reasonable appellate attorney fees.

JUDGE TAUBMAN concurs.

JUDGE NAVARRO dissents.

JUDGE NAVARRO, dissenting.

¶ 40 Everyone agrees that Dikeou v. Dikeou , 928 P.2d 1286 (Colo. 1996), controls the question presented in this case-did Lender charge Borrower usurious interest? But almost no one agrees on how to apply Dikeou to this case in order to determine whether the effective interest rate that Lender charged during the forbearance period was usurious. The parties disagree with each other. On appeal, both parties disagree with the district court's calculation. The majority disagrees with both parties' calculations as well as the district court's. Likewise, I disagree with everyone else's calculation. Perhaps this case presents a good opportunity for the supreme court to clarify Dikeou .

¶ 41 For my part, I cannot reconcile the majority's computation of the effective interest rate with the supreme court's calculation in Dikeou itself. So, I respectfully dissent.

¶ 42 The majority accurately discusses the facts of Dikeou , and I will not repeat them here. Based on those facts, the supreme court decided that the flat daily rate of late fees imposed upon default constituted default interest under the usury statute, section 5-12-103, C.R.S. 2016. See id. at 1293. The court then held that, for nonconsumer loans like the one at issue in Dikeou , "a default interest rate is ... reasonable and enforceable so long as the applied per annum rate , when added to the initial rate charged on the outstanding principal, is less than 45% of the unpaid principal balance at the time of the default." Id . at 1295 (emphasis added). The court decided that the applied per annum rate imposed by the late fee there was 31.9%. When this rate was added to the initial rate of 13%, the total effective rate during the default period equaled 44.9%, just a hair under the statutory barrier (the creditor's selection of the daily late fee amount was not coincidental). Id.

¶ 43 The majority reasons that Dikeou 's use of various phrases interchangeably (e.g., "per annum" and "applied rate of interest") makes application of the usury statute to this case difficult. Assuming that is so, the best way to resolve this difficulty-to determine what the supreme court meant by "the applied per annum rate"-is to examine how the court actually applied that key phrase in Dikeou .

¶ 44 The supreme court did not show all its mathematical work in Dikeou , but we can easily deduce its calculations from the numbers the court gave us. To compute the applied per annum rate of default interest, the supreme court started with the interest charged per day during the period of default: the $413.33 late fee. Id. To translate the daily rate into a "per annum" rate, the court multiplied it by 365 days to arrive at $150,865.45. The court then divided that amount by $472,764.45, the total unpaid balance at the time of default, to arrive at a default interest rate of 31.9%. Adding that default interest rate to the original interest rate of 13% resulted in a total effective rate of 44.9%. See id.

¶ 45 I apply the same analysis here. (Because they are sufficient to show a violation of the usury statute-and thus sufficient to defeat Lender's motion to dismiss-I consider only the forbearance fee and the interest imposed by the original loan document during the forbearance period, not any other fee.) The total forbearance period covered 24.5 days; on this point I agree with both the majority and Lender. The total forbearance fee was $220,000, which converts to $8979.59 per day (220,000 ÷ 24.5). Following Dikeou , I compute the per annum rate by multiplying the daily rate by 365 to arrive at $3,277,551.02. Dividing that number by the unpaid principal balance at the time of default ($11,000,000) results in a default interest rate of 29.8%. I cannot stop there, though, because the Dikeou court was quite clear that we must add this default interest rate to the interest rate the original loan document applied to the unpaid principal during the same forbearance period: 21%. (Here again, I accept Lender's calculation of the interest rate imposed by the original loan document after a default.) So, the total effective interest rate during the forbearance period was at least 50.8%, which violated the usury statute.

¶ 46 Notably, on appeal Lender calculates the default interest rate imposed by the forbearance agreement in the same way I do (i.e., using the Dikeou method), and Lender arrives at the same figure: 29.8%. But Lender declines to add that number to the 21% interest imposed by the original loan document upon default. As explained, however, Dikeou requires us to combine these interest rates to determine the effective rate applied to the unpaid loan balance during the forbearance period. Id. Dikeou explained that this effective interest rate must be "computed after all forms of interest charges have been assessed." Id. at 1294-95. After all, Lender charged both the 21% interest and the 29.8% interest on the same unpaid balance ($11,000,000) during the forbearance period.

¶ 47 Lender suggests on appeal that the original loan document and forbearance agreement might be two entirely separate extensions of credit. But I agree with the majority and the district court that "there was one extension of credit, modified to allow a late payment." Supra ¶ 15 n.5 (majority opinion). The forbearance fee was akin to the late charge in Dikeou , which constituted "a condition of extending credit after the initial default" and "compensate[d] the creditor for the increased risk and expense of lending money [the creditor] incurred when extending credit to a debtor who already had failed to make timely payments." Dikeou , 928 P.2d at 1290.

¶ 48 Indeed, Lender argued in its motion to dismiss in the district court that this case concerns only one extension of credit. Lender explained that "all of the charges paid by [Borrower] (including the Forbearance Fees) were tied to the extension of $11,000,000 in credit to [Borrower]. Accordingly, all of the charges paid (Forbearance Fees included) were part and parcel of the $11,000,000 Loan." Although Lender seems to retreat from this position on appeal, Lender ultimately agreed at oral argument that it would be fair to characterize the original loan and the forbearance as one extension of credit.

¶ 49 As a result, we must add the 21% interest imposed by the original loan document upon default to the 29.8% default interest imposed by the forbearance agreement. Because the total effective interest rate of 50.8% during the forbearance period violated the usury statute, I would reverse the judgment dismissing Borrower's claims and reverse the order awarding attorney fees to Lender.

¶ 50 In light of my analysis, I necessarily dissent from the majority's award of appellate attorney fees to Lender.

      For example, for a 30-day month, the payment would be $73,333.33 (($11,000,000 x .08 = 880,000)/360 = $2444.44 per day x 30 days = 73,333.33).

      Some of these additional fees were attorney fees and costs associated with enforcing the Note. Borrower did not itemize those fees in the complaint and does not identify them in its brief.

      The district court computed $1,507,333.5 in total interest payments over the life of the loan (387 days) and then converted the daily rate to a per annum rate applied against the principal amount of the loan (($1,507,333.53/387 = 3,894.919/day) x 365 = 1,421,645.32/year)/$11,000,000 = .12924 x 100 = 12.924%.

      The court also awarded costs in the amount of $244.31 to Lender. Borrower does not appeal the costs award.

      Adding to the complexity is the parties' disagreement over how many extensions of credit were involved in the loan, with Borrower taking the position that there were three (the loan, and each of the forbearance periods) and Lender suggesting there could be one or two (the loan and the forbearance periods combined or the loan and one forbearance period). We believe, as the district court must have assumed, that there was one extension of credit, modified to allow a late payment. See § 5-12-103(2), C.R.S. 2016 (" '[I]nterest' as used in this section means the sum of all charges payable directly or indirectly by a debtor and imposed directly or indirectly by a lender as an incident to or as a condition of the extension of credit to the debtor ....") (emphasis added).

      Consequently, the unjust enrichment claim fails as well.

      We recognize that the district court found total interest and charges to be a smaller number and calculated a per annum applied interest rate of 12.924%. Based upon our review of the complaint, the Note, and the forbearance agreements, we conclude that the district court overlooked some of the charges. But this difference does not alter the district court's correct conclusion that the Note and forbearance agreements were not usurious.

      The original forbearance agreement contained a section titled "Loan Documents; No Merger," which appears to exclude the forbearance agreement from the Note's defined Loan Documents. The forbearance agreement also contains a provision that "[i]n the event of any inconsistency between the provisions of this Agreement and the Loan Documents, the provisions of this Agreement shall control."

      The supreme court identified the daily late fee ($413.33), the unpaid balance of the loan at the time of default ($472,764.45), the resulting default interest rate (31.9%), the initial interest rate (13%), and total effective rate during the default period (44.9%). Dikeou v. Dikeou , 928 P.2d 1286, 1295 (Colo. 1996).