Peo v. Ricker

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

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¶ 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

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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

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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.

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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

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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

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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

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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

suicide qualifies as a voluntary absence. Price, 240 P.3d at 560-61.

¶ 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.

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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.”

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• 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).

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¶ 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.

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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

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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.