v. Barnett

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 3, 2020
2020COA167
No. 19CA1056, People v. Barnett — Crimes — Attempt to
Influence a Public Servant
A division from the court of appeals considers a matter of first
impression: whether a defendant who presents false documentation
to a private organization providing court-ordered pretrial
supervision services can be found guilty of attempting to influence a
public servant. The division determines that based on the language
in section 18-8-306, C.R.S. 2020, an employee of such an
organization is in this situation a “public servant” performing a
government function.
COLORADO COURT OF APPEALS 2020COA167
Court of Appeals No. 19CA1056
El Paso County District Court No. 17CR2682
Honorable Robert L. Lowrey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Manuel Barnett,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division IV
Opinion by JUDGE JOHNSON
Terry and Richman, JJ., concur
Announced December 3, 2020
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 This case presents an issue of first impression: Can a
defendant who presents false documentation to an employee of a
nonprofit organization that handles court-ordered pretrial
supervision services be guilty of attempting to influence a public
servant? We determine that, based on the language in section 18-
8-306, C.R.S. 2020, an employee of ComCor, Inc. (ComCor), is in
this situation a “public servant.” We arrive at this conclusion
because the ComCor employee is a person who performs a
government function.
¶2 As a result, because defendant Matthew Manuel Barnett
(Barnett) presented what purported to be an official court document
to a ComCor employee to obtain removal of his GPS monitor, the
evidence was sufficient to support his conviction for attempt to
influence a public servant. Thus, we affirm his conviction.
¶3 We also reject Barnett’s contention that the district court
erroneously denied his emergency motion for sentence reduction
under Crim. P. 35(b).
I. Background
¶4 Barnett was charged with attempt to influence a public
servant under section 18-8-306 and forgery under section 18-5-
1
102(1)(e), C.R.S. 2020. At trial, after the prosecution rested,
Barnett moved for judgment of acquittal of both charges. With
respect to the attempt to influence a public servant charge, Barnett
argued that the prosecution had failed to introduce evidence that
ComCor and its employees were public servants acting in a
governmental capacity. The district court denied the motion,
concluding that ComCor “does satisfy the definition of having their
employees considered public servants for purposes of a matter such
as this.”
¶5 The jury convicted Barnett of attempt to influence a public
servant but deadlocked on the forgery charge, which the
prosecution dismissed at sentencing. The district court sentenced
Barnett to eight years in the custody of the Department of
Corrections.
¶6 During the pendency of this appeal, Barnett filed an
emergency motion with the district court under Crim. P. 35(b)
requesting a reduction of his sentence to probation due to risks
associated with COVID-19. Upon issuance of a limited remand by
this court, the district court substantively addressed and denied
Barnett’s motion.
2
II. “Public Servant”
¶7 Barnett contends that, because ComCor is not a governmental
body and its employees are not public servants, and because
section 18-8-306 does not apply to private institutions, his
conviction should be reversed. We disagree.
A. Standard of Review
¶8 We review the record de novo “to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the conviction[].” Montes-Rodriguez v. People, 241 P.3d
924, 927 (Colo. 2010) (quoting Dempsey v. People, 117 P.3d 800,
807 (Colo. 2005)). Under the substantial evidence test, we view the
evidence in the light most favorable to the prosecution to determine
whether it is both “substantial and sufficient” to support a
defendant’s guilt beyond a reasonable doubt. Dempsey, 117 P.3d at
807.
¶9 Whether the prosecution presented sufficient evidence that
Barnett committed this offense poses a question that is more legal
than factual: Do employees of organizations like ComCor constitute
“public servants” under section 18-8-306? Because Barnett does
not largely dispute the evidence, we do not need to weigh the
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evidence so much as interpret the statute and apply it to the facts
established at trial.
¶ 10 We review the issues of statutory interpretation and a statute’s
application de novo. Montes-Rodriguez, 241 P.3d at 927; see also
People v. Rowell, 2019 CO 104, ¶ 14. We must first consider the
plain language of the statute, giving words their usual and ordinary
meanings. Roup v. Com. Rsch., LLC, 2015 CO 38, ¶ 8. Only if the
statute is ambiguous do we invoke alternative canons of
construction to resolve the uncertainty. People v. Daniels, 240 P.3d
409, 411 (Colo. App. 2009). We must read and consider the statute
as a whole to give consistent, sensible, and harmonious effect to all
parts. People v. Buerge, 240 P.3d 363, 367 (Colo. App. 2009). We
avoid interpretations that would render words superfluous or lead
to illogical or absurd results. People v. Null, 233 P.3d 670, 679
(Colo. 2010). Because it is the province of the General Assembly to
define criminal conduct, we must determine the meaning of the
statute by giving effect to the legislature’s intent. People v. Wartena,
2012 COA 12, ¶ 14.
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B. Crime of Attempt to Influence a Public Servant
¶ 11 The offense of attempt to influence a public servant is
described in section 18-8-306, in pertinent part, as follows:
Any person who attempts to influence any
public servant by means of deceit . . . with the
intent thereby to alter or affect the public
servant’s decision, vote, opinion, or action
concerning any matter which is to be
considered or performed by him or the agency
or body of which he is a member, commits a
class 4 felony.
(Emphases added.) Section 18-8-306 adopts the meaning of “public
servant” as defined in section 18-1-901(3)(o), C.R.S. 2020. See §
18-8-301(4), C.R.S. 2020 (referring to the definition of “public
servant” as used in section 18-8-101(3), C.R.S. 2020, which in turn,
leads to section 18-1-901(3)(o)).
¶ 12 That definition states: “‘Public servant’ means any officer or
employee of government, whether elected or appointed, and any
person participating as an advisor, consultant, process server, or
otherwise in performing a governmental function,” but the term does
not include witnesses. § 18-1-901(3)(o) (emphases added).
¶ 13 Barnett’s argument that a ComCor employee falls outside the
definition of “public servant” focuses on the term “government” in
5
the definition of “public servant,” which in turn is defined to include
“the United States, any state, county, municipality, or other
political unit, any branch, department, agency, or subdivision of
any of the foregoing.” § 18-1-901(3)(i). As ComCor employees are
not employed by “the United States, any state, county, municipality,
or other political unit,” Barnett reasons, they cannot be considered
an “officer or employee of government” under section 18-1-901(3)(o)
and therefore do not qualify as “public servants” for the purposes of
section 18-8-306.
¶ 14 What Barnett overlooks, however, is that the definition of
government also includes “any corporation or other entity
established by law to carry out any governmental function.” § 18-1-
901(3)(i) (emphasis added). He also ignores the second part of the
definition of “public servant,” which includes “any person
participating as an advisor, consultant, process server, or otherwise
in performing a governmental function.” § 18-1-901(3)(o) (emphasis
added). The Attorney General focuses on the latter wording of
section 18-1-901(3)(o) to argue that the term “public servant” is
“expansive” and goes beyond government employees.
6
¶ 15 The district court likewise relied on the latter portion of this
definition in its reasoning to conclude that “public servant includes
a person who’s acting as an advisor, consultant, and so forth in a
government — performing a governmental function.” As a result,
the district court determined that ComCor and its employees were
public servants by virtue of performing governmental functions,
such as “advis[ing] and consult[ing] with the court systems” and
“doing various testing, monitoring, breath testing, alcohol testing,
drug testing, and so forth at the direction of the Courts.”
¶ 16 It is true, as Barnett suggests, that no Colorado cases deal
with a situation in which a person working for a private entity like
ComCor has been construed to be a “public servant” under section
18-8-306. The existing cases have, instead, primarily analyzed
positions traditionally viewed as government posts. See, e.g., People
v. Knox, 2019 COA 152, ¶ 23 (applying section 18-8-306 to the
influence of a peace officer); People v. Sena, 2016 COA 161, ¶¶ 12-
13 (same); People v. Montante, 2015 COA 40 ¶¶ 5, 45 (applying
section 18-8-306 to the influence of a public official within a
regulatory entity that issues medical marijuana user licenses);
People v. Tucker, 232 P.3d 194, 201 (Colo. App. 2009) (applying
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section 18-8-306 to the influence of an attorney and judge in
another state by using official letterhead of a Colorado District
Attorney); People v. Stanley, 170 P.3d 782, 791 (Colo. App. 2007)
(applying section 18-8-306 to the influence by threat of two judges).
¶ 17 But the lack of cases does not indicate a limitation on the
statutory definition. Indeed, regardless of whether we focus on the
positions of Barnett or the Attorney General, both turn on how a
“government function” is defined in connection with who may
qualify to be a public servant. The term “government function” is
defined to include “any activity which a public servant is legally
authorized to undertake on behalf of government.” § 18-1-901(3)(j)
(emphasis added). Thus, the real question is whether an entity’s
employees engaged in the court-ordered supervision of individuals
with GPS monitoring perform a “government function.”
¶ 18 Courts are responsible for setting the conditions of a
defendant’s pretrial bond. § 16-4-103(1), C.R.S. 2020 (setting forth
the various criteria and factors a court must consider to “determine
the type of bond and conditions of release”). Conditions may
include, as relevant here, pretrial release services, with the potential
for “[e]lectronic or global position monitoring of the person.” § 16-4-
8
105(8)(g), C.R.S. 2020; see also § 16-4-106, C.R.S. 2020
(authorizing persons eligible for bond to be evaluated for pretrial
services).
¶ 19 To assist the courts in the supervision of offenders in the
community, Colorado law authorizes units of government “by
resolution or ordinance” to establish community corrections boards
that have authority to enter into contracts and establish programs
with state and local governments to carry out sentencing and
rehabilitation functions normally reserved to the state. See § 17-
27-103, C.R.S. 2020. Such partnerships are not limited strictly to
governmental bodies. Nongovernmental entities, defined in section
17-27-102(5), C.R.S. 2020, to include any “private individual,
partnership, corporation, or association,” are authorized to
establish community corrections programs that may also contract
with a community corrections board or the state of Colorado to
provide services to offenders as required by the department of
corrections, or, parole board, or as sentenced to such programs by
the courts. § 17-27-104(2), C.R.S. 2020. The statutory goal of the
private-public partnership between community corrections boards
and programs and the government is, among other things, to
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“[f]urther all purposes of sentencing and improve public safety.”
§ 17-27-101.5(1)(a), C.R.S. 2020.
¶ 20 To strictly focus on government employees or entities who, as
Barnett claims, receive salaries from taxpayer funds would exclude
nongovernment employees who provide a “government function,”
contrary to the plain language of the statutory definition of “public
servant” and the plain language of the statutory definition of
“government.” See Colo. Med. Bd. v. Off. of Admin. Cts., 2014 CO
51, ¶ 9 (noting that a court need not look further when giving effect
to the plain and ordinary meaning of unambiguous statutory
provisions). While Barnett would contend that a broad
interpretation of “public servant” to include a private entity would
ostensibly mean that any entity (and its employees) could be
construed to be a public servant, this case hardly presents the
outer limits of a government function. To the extent sufficient
evidence was presented at trial to support that ComCor was an
entity that assisted the courts with supervision of offenders, the
broad language of “government function” — which includes a
person who is legally authorized to act on “behalf of government” —
10
means its employee could qualify to be a “public servant” for
purposes of section 18-8-306. § 18-1-901(3)(j), (3)(o).
C. Evidence Supporting the Conviction
¶ 21 At trial, Andrey Williams (Williams) testified that he was an
“EMS supervisor at ComCor” in December 2016. He was
responsible for “monitoring anyone that was on ankle monitoring
for various reasons.” Williams detailed the procedures for how a
person is “terminated” from GPS monitoring, which required a
person bringing in a court order. Without such an order, Williams
testified, ComCor could not remove the device, the device would be
difficult to remove, and, if removed without authorization, an alarm
would alert ComCor, and an employee would then notify the court.
¶ 22 Williams identified Barnett at trial, indicating he remembered
Barnett because the usual employee assigned to Barnett’s case was
not in on December 23, 2016. Although Williams could not
remember whether Barnett handed him the court paperwork, or
whether Barnett was first handed the paperwork to a secretary who
then gave it to Williams, Barnett submitted documentation to
obtain removal of the monitoring device. Williams removed the
11
device from Barnett and completed paperwork logging the return of
the equipment.
¶ 23 Finally, Williams testified that a few months later, someone
from the district attorney’s office contacted him about Barnett. The
district attorney requested information about Barnett’s GPS
monitoring, and Williams faxed the court order that was presented,
as well as the documentation that included Barnett’s signature
acknowledging the return of the equipment.
¶ 24 Based on the evidence admitted at Barnett’s trial, there was
sufficient evidence to support that ComCor had the responsibility to
supervise individuals required to wear GPS monitoring devices. As
the district court properly concluded in denying Barnett’s motion
for judgment of acquittal, ComCor provides such supervision
services at the “direction of the Courts” and assists and consults
with the courts in pretrial services. Therefore, an employee of
ComCor is a person performing a government function in this
situation, as he or she is “legally authorized” to conduct such
activities “on behalf of government.” § 18-1-901(3)(j), (3)(o).
¶ 25 Testimony and exhibits from trial also indicated that the
district court judge in Barnett’s unrelated criminal case had
12
imposed bond conditions subjecting Barnett to GPS monitoring.
The district court judge in the unrelated criminal case testified that
he had not issued the “order” that purportedly authorized
termination of GPS monitoring that Barnett presented to ComCor in
December 2016. The district court judge’s staff also testified,
corroborating that they had not prepared or issued an order
terminating GPS monitoring for Barnett, as well as indicating that
the “order” presented to ComCor was not in the usual format for
orders issued by the court.
¶ 26 Because ComCor would have notified the court if the GPS
monitor was removed without authorization, the record supports
that Barnett acted with “deceit” and that his intent was to “alter or
affect” the “action” of Williams by presenting false documentation to
have the GPS monitor removed. See § 18-8-306. This is further
supported by Barnett’s signature that acknowledged that the GPS
monitor was returned in December 2016, contrary to the district
court judge’s directive.
¶ 27 Having determined that section 18-8-306 applies in this
situation to employees of private community corrections
organizations such as ComCor, we conclude that the record
13
contains evidence both substantial and sufficient to support
Barnett’s conviction of attempt to influence a public servant beyond
a reasonable doubt. See Montes-Rodriguez, 241 P.3d at 927.
Accordingly, we uphold his conviction.
III. Crim. P. 35(b) Motion for Reduced Sentence
¶ 28 Barnett also contends on appeal that the district court erred in
denying his Crim. P. 35(b) motion to reduce his eight-year sentence
to a probationary sentence. We disagree.
A. Standard of Review and Applicable Law
¶ 29 Crim. P. 35(b) enables district courts to review a sentence to
ensure that it is proper before making it final. Ghrist v. People, 897
P.2d 809, 812 (Colo. 1995). “A court’s review of a Crim. P. 35(b)
motion focuses on the fairness of the sentence in light of the
purposes of the sentencing laws.” People v. Dunlap, 36 P.3d 778,
780 (Colo. 2001).
¶ 30 When presented with a Crim. P. 35(b) motion, the court may
consider all relevant and material factors, including new evidence
and evidence the trial court knew when it imposed the original
sentence. Id. at 782. Crim. P. 35(b) does not require the
postconviction court to make findings of fact, but the court should
14
“provide a statement of the basic reasons in support of its ruling.”
Id. Crim. P. 35(b) also does not require the court to hold a hearing
on the motion: “The court may, after considering the motion and
supporting documents, if any, deny the motion without a hearing.”
¶ 31 An order denying a Crim. P. 35(b) motion is reviewed to
determine if the postconviction court failed to exercise its judicial
discretion by refusing to consider any information in mitigation.
People v. Busch, 835 P.2d 582, 583 (Colo. App. 1992). The
propriety of the sentence is not subject to review. Id.¶ 32 During the pendency of Barnett’s appeal, the Colorado
Supreme Court amended Crim. P. 35(b) on April 16, 2020. That
amendment provides district courts with jurisdiction to consider a
defendant’s request for sentence reduction during a direct appeal
upon a limited remand from an appellate court. Crim. P. 35(b)(4).
B. Analysis
¶ 33 We discern no abuse of discretion in the district court’s denial
of Barnett’s Crim. P. 35(b) motion. In its written denial, the district
court noted that it had reviewed the motion, concluding that “the
court is well familiar with this case and finds that the original
sentence imposed is appropriate to the circumstances of this case.”
15
In doing so, the court provided its “basic reasons in support of its
ruling.” See Dunlap, 36 P.3d at 778.
¶ 34 Barnett’s argument centers on the fact that the district court
made no overt findings or remarks vis-à-vis the health risks
presented by the COVID-19 pandemic and, thus, in his view, did
not “consider” such new information raised in the motion. We are
not persuaded.1
¶ 35 The district court was not required to make any specific
findings of fact about COVID-19. See id. Having reviewed Barnett’s
motion, the court factored into its consideration Barnett’s
arguments surrounding the pandemic and its knowledge of prior
proceedings. Indeed, the court was familiar with Barnett’s case, as
the same judge presided over Barnett’s sentencing the previous
year. At Barnett’s sentencing hearing, the court remarked that he
viewed Barnett’s actions as “ma[king] a mockery of [veterans’
treatment] court” and “ma[king] a mockery of the conditions placed
upon him by Community Corrections.” Further, the court noted
1 We note that Barnett did not allege any personal medical risk
factors that make him more vulnerable or susceptible to the virus
than other similarly situated individuals.
16
that, as Barnett’s GPS monitoring had been a bond condition for
menacing charges, Barnett “placed the victim in harm again by
cutting off that monitor.”
¶ 36 In short, the district court had reasons for its original sentence
that were not overridden by the COVID-19 pandemic. We will
neither fault the court for its short order nor construe such brevity
as a failure to exercise discretion in its denial of Barnett’s Crim. P.
35(b) motion. See Busch, 835 P.2d at 583.
IV. Conclusion
¶ 37 The judgment of conviction and order are affirmed.
JUDGE TERRY and JUDGE RICHMAN concur.
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