19CA1391 Peo v Ricker 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1391
El Paso County District Court No. 17CR1191
Honorable Marla Prudek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jake Ricker,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE FREYRE
J. Jones and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for
Defendant-Appellant
1
¶ 1 Defendant, Jake Ricker, appeals his convictions of first degree
burglary, aggravated robbery, and felony menacing. He contends
that the trial court violated his constitutional right to be present by
holding the trial in his absence following a medical emergency. He
also appeals the proportionality of his sentence. We affirm Ricker’s
convictions, but we vacate his sentence, remand for resentencing
under section 18-1.3-801(2), C.R.S. 2021, and direct the trial court
to conduct an abbreviated proportionality review after resentencing.
I. Background
¶ 2 Kayla O’Connor visited her uncle, Timothy Crooks, and two
friends at Crooks’s apartment. While waiting for their pizza to
arrive, O’Connor heard a knock at the door and saw two men
through the peephole. When she opened the door, Ricker pointed a
gun in her face and ordered her and the two friends to the ground.
O’Connor tried to shut the door, but Ricker and another man forced
their way in. Crooks ran from the apartment via a back balcony.
¶ 3 Ricker held the three victims at gunpoint while the other man
searched the apartment. Ricker paced over the victims and
threatened to shoot them if they moved or made noise. He
repeatedly asked where “Tim” was because they were there to kill
2
him. Ricker then told the victims to put their arms out while he
searched them and O’Connor’s purse. He took O’Connor’s wedding
ring and items from her wallet. He also took each victim’s phone
and keys, along with a revolver. The other man found a safe and
demanded that the victims open it. None of them could open it or
say where Crooks had gone.
¶ 4 Meanwhile, Crooks called 911 from outside the apartment to
report that armed men had invaded his apartment and that they
were holding women inside. While he was on the phone with 911,
Crooks saw the other man leave his apartment and drive away.
¶ 5 The police arrived as Ricker was leaving the apartment and
they arrested him. In a search incident to the arrest, police seized a
loaded handgun, a revolver, O’Connor’s keys, and cell phones.
¶ 6 The People charged Ricker with one count of attempted first
degree murder, one count of burglary, three counts of aggravated
robbery, and four counts of menacing. It later added four habitual
criminal counts. The jury acquitted Ricker of attempted murder,
but it convicted him of the remaining charges. The jury further
found that Ricker had used or possessed a deadly weapon and
3
threatened the use of a deadly weapon in the commission of
burglary and aggravated robbery.
¶ 7 In a separate trial, the court convicted Ricker of the habitual
criminal counts. It then sentenced him to life in the custody of the
Department of Corrections with the possibility of parole after forty
years, under section 18-1.3-801(1)(a), for his burglary and
aggravated robbery convictions. The court also sentenced Ricker to
concurrent twelve-year sentences for each of his menacing
convictions.
II. Right to be Present
¶ 8 Ricker first contends that the trial court deprived him of his
constitutional right to be present. He argues that the court abused
its discretion by denying his motion for a mistrial or a continuance
of the trial because insufficient evidence showed that he voluntarily
waived his right to be present. We perceive no abuse of discretion.
A. Additional Facts
¶ 9 Ricker appeared for the first day of trial, but he did not return
the second day. Defense counsel informed the court that Ricker
had been taken to the hospital for a possible drug overdose.
Ricker’s prognosis and expected release date were unknown.
4
Counsel did not know whether Ricker would be subject to a hold for
“any reason.” The court took a break so the parties could find out
more information and research their options.
¶ 10 After returning, a detective reported that he had spoken with
the two officers who responded to the medical assistance call.
Ricker’s girlfriend told the officers that Ricker was awake at
approximately 6 a.m. and said, “I can’t go to prison for the rest of
my life.” Ricker’s mother said that when she went to wake him for
court an hour later, she found him unresponsive due to an
overdose. She called 911, and medical professionals were able to
revive him with NARCAN. Both Ricker’s girlfriend and his mother
said that he knew he had to be in court and that they believed the
overdose was intentional. His mother also said Ricker would be
“pissed” at her for calling for help. The detective further learned
that Ricker was awake, he was being transferred to the intensive
care unit, and his prognosis and release date were unknown.
¶ 11 Defense counsel moved for a mistrial and argued that
insufficient evidence showed that Ricker’s absence was voluntary.
He argued that there was insufficient evidence to show that Ricker
intentionally overdosed to delay the trial. He further argued that
5
the girlfriend’s and mother’s statements were insufficient to show
that Ricker’s overdose was an attempted suicide. Alternatively,
counsel requested a continuance of the trial. The court denied both
requests and found that Ricker had voluntarily absented himself
from the trial, based on the detective’s report and Ricker’s present
medical status. The court reasoned,
[Defense counsel] has argued that there’s a
possibility that [Ricker] was just trying to
steady his nerves. We don’t know how much
heroin he used, and we don’t have a note.
[Defense counsel] has pointed out that we
don’t have a suicide note, but we do have what
seem to be excited utterances, spontaneous
statements by the girlfriend and his mother
that he had indicated, the defendant had
indicated clearly to both of them that he could
not go to prison for the rest of his life as early
as [6 a.m.] this morning, so this very day.
When he woke up, Mr. Ricker was sitting on
the edge of the bed, according to the girlfriend,
saying, I can’t go to prison for the rest of my
life. So that does, to the Court, pretty clearly
indicate that this was a voluntary ingestion of
drugs, a voluntary overdose, that he intended
to avoid going to prison for the rest of his life.
¶ 12 The court also expressed concerns about the age of the case,
the number of previous delays, and losing witnesses, because
6
O’Connor was the only remaining eyewitness available to testify. It
completed the trial in Ricker’s absence.
B. Standard of Review and Applicable Law
¶ 13 Our review of a trial court’s voluntary waiver determination
presents a mixed question of fact and law. People v. Price, 240 P.3d
557, 560 (Colo. App. 2010). We review the court’s factual findings
for clear error. People v. Daley, 2021 COA 85, ¶ 26. Under this
standard, we will “set aside a trial court’s factual findings only
when they are so clearly erroneous as to find no support in the
record.” People v. Beauvais, 2017 CO 34, ¶ 22. But we review
whether a trial court violated a defendant’s constitutional right to
be present de novo. People v. Janis, 2018 CO 89, ¶ 14.
¶ 14 The Sixth Amendment guarantees a defendant the right to be
present during all stages of his trial. Illinois v. Allen, 397 U.S. 337,
338 (1970). This right is not absolute, and “[a] defendant may
waive [his] right to be present either expressly or through [his]
conduct.” Janis, ¶ 17; see also Price, 240 P.3d at 560.
¶ 15 Under Crim. P. 43(b)(1),
[t]he trial court in its discretion may complete
the trial, and the defendant shall be
considered to have waived his right to be
7
present, whenever a defendant, initially
present . . . [v]oluntarily absents himself after
the trial has commenced, whether or not he
has been informed by the court of his
obligation to remain during the trial.
The purpose of this rule is to prevent a defendant from frustrating
the progression of a trial by his own actions. Taylor v. United
States, 414 U.S. 17, 20 (1973).
¶ 16 The trial court is responsible for ensuring that a defendant’s
waiver of the right to be present is voluntary, knowing, and
intelligent. Price, 240 P.3d at 560. A defendant’s absence can be
considered voluntary when the record establishes that he created
the medical necessity underlying the absence. People v.
Stephenson, 165 P.3d 860, 869-70 (Colo. App. 2007). Attempted
¶ 17 In addition, “[t]rial courts have broad discretion in deciding
whether to grant or deny a continuance.” People v. Travis, 2019 CO
15, ¶ 12. Thus, we review the trial court’s denial of a motion for a
continuance for an abuse of discretion. People v. Brown, 2014 CO
25, ¶ 19.
8
C. Analysis
¶ 18 We discern no abuse of discretion in the trial court’s finding
that Ricker’s absence was voluntary because the record shows the
following:
• Ricker appeared for the first day of his trial, and the
court advised him of his right to testify.
• Ricker’s mother confirmed, through the police, that
Ricker knew he had to be in court the morning of the
second day of trial.
• Ricker was awake and alert at 6 a.m. on the second day
of trial and told his girlfriend, “I can’t go to prison for the
rest of my life” approximately one hour before he was
found unresponsive.
• Ricker’s girlfriend told the police twice that she believed
he had intentionally overdosed.
• Ricker’s mother told police that Ricker “continually
talk[ed] about how long he would be away and how hard
it would be to start his life over as an old man if he got
out of prison someday.”
9
• Ricker’s mother believed Ricker overdosed on purpose
and that he would be “pissed at her because she called
[911].”
¶ 19 We also reject Ricker’s argument that the court improperly
relied on “multiple layers of hearsay” to find his absence voluntary.
Ricker does not cite, nor are we aware of, any authority precluding
a court from considering such evidence. In any event, the court
recognized the hearsay nature of the information when it
characterized the girlfriend’s and mother’s statements to the police
as “excited utterances,” CRE 803(2) (“A statement relating to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.”), and
“spontaneous statements,” CRE 803(1) (“A spontaneous statement
describing or explaining an event or condition made while the
declarant was perceiving the event or condition.”), which are
exceptions to the rule against hearsay. Ricker does not challenge
this legal ruling, so we do not address it further. See People v.
Liggett, 2021 COA 51, ¶ 53 (appellate courts do not address
undeveloped arguments).
10
¶ 20 We also discern no abuse of discretion in the court’s denial of
Ricker’s motion to continue the trial. Ricker faults the court for
making an insufficient inquiry into his medical status. However,
the record shows that the court delayed the trial for two hours to
obtain more information and learned that Ricker was in the
intensive care unit and that his prognosis was unknown. Thus,
unlike the circumstances in People v. Trefethen, 751 P.2d 657, 658-
59 (Colo. App. 1987), where the court learned the defendant had
experienced car trouble, did not know his whereabouts, and waited
two hours before reconvening the trial, the trial court here knew
Ricker’s location and that his prognosis was unknown. Moreover,
defense counsel produced no additional evidence regarding Ricker’s
probable return to support the continuance request.
¶ 21 Finally, the court properly considered the age of the case, the
fact that the case had experienced six previous delays, the fact that
of the four eyewitnesses to the incident, only O’Connor was
available to testify, and the fact that the trial was halfway
completed.
1
Under these circumstances, we discern no error in the
1
O’Connor testified the first day of trial, so Ricker was able to
confront the only eyewitness to the incident.
11
trial court’s voluntariness finding or in its decision to complete the
trial in Ricker’s absence.
III. Habitual Offender Sentences
¶ 22 Ricker next challenges the length of his sentences. But as
noted by the People, the trial court erroneously sentenced Ricker to
life imprisonment with the possibility of parole after forty years,
under section 18-1.3-801(1)(a). Because Ricker should have been
sentenced under section 18-1.3-801(2)(a)(I), we vacate his sentence
and remand the case for resentencing and a new abbreviated
proportionality review.
A. Standard of Review
¶ 23 We review de novo the legality of a sentence. People v.
Wiseman, 2017 COA 49M, ¶ 22. A sentence is illegal if it is
“inconsistent with the statutory scheme outlined by the legislature.”
People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005). A party may
request a correction of an illegal sentence at any time, even for the
first time on appeal. People v. Magana, 2020 COA 148, ¶ 59 (cert.
granted May 24, 2021).
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B. Analysis
¶ 24 At the habitual criminal trial, the court found that the
prosecution proved the following habitual criminal counts beyond a
reasonable doubt:
• a 1995 conviction for theft by receiving (case no.
94CR3566), a class 4 felony;
• a 1995 conviction for attempted theft (case no. 95CR3174),
a class 5 felony;
• a 1998 conviction for aggravated robbery (case no.
97CR4530), a class 3 felony; and
• a 1998 conviction for aggravated robbery (case no.
97CR4533), a class 3 felony.
¶ 25 Thereafter, the court sentenced Ricker to life imprisonment,
based on the two aggravated robbery convictions from 1998 and its
belief that these convictions constituted crimes of violence.
¶ 26 Section 18-1.3-801(1)(a) provides:
A person shall be adjudged a[] habitual
criminal and shall be punished by a term in
the department of corrections of life
imprisonment if the person:
(I) Is convicted of:
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(A) Any class 1 or class 2 felony or level 1 drug
felony; or
(B) Any class 3 felony that is a crime of violence,
as defined in section 18-1.3-406(2), [C.R.S.
2021]; and
(II) Has been twice convicted previously for any
of the offenses described in subparagraph (I) of
this paragraph (a).
(Emphasis added.)
¶ 27 However, as noted by the People, aggravated robbery does not
always constitute a crime of violence for habitual criminal
sentencing purposes. Indeed, only one form of aggravated robbery
is a per se crime of violence. See § 18-4-302(1)(b), (4), C.R.S. 2021.
And, the People can specifically charge aggravated robbery as a
crime of violence. See § 18-1.3-406(2)(a)(II)(F), (3). But the record
reveals that neither of Ricker’s prior aggravated robbery convictions
constitutes a crime of violence and, thus, that the court erred by
sentencing him under section 18-1.3-801(1)(a).
¶ 28 Accordingly, we vacate the habitual criminal sentences and
remand for resentencing under the correct habitual offender
sentencing provision, section 18-1.3-801(2). Because Ricker has
also requested an abbreviated proportionality review, we direct the
14
trial court to conduct this review consistent with Wells-Yates v.
People, 2019 CO 90M.
IV. Conclusion
¶ 29 The judgment is affirmed. The sentence is vacated, and the
case is remanded for resentencing under section 18-1.3-801(2) and
for an abbreviated proportionality review.
JUDGE J. JONES and JUDGE TOW concur.