v. Barnett

2020 COA 167

• Court: Colorado Court of Appeals
• Decided: December 4, 2020
• Docket: 19CA1056, People
• Status: Published

Opinion

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

3 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.

4 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

7 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

9 “[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.