Mesa
County District Court No. 13CR1336 Honorable Richard T.
Gurley, Judge.
Cynthia H. Coffman, Attorney General, Megan C. Rasband,
Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Sean J. Lacefield,
Deputy State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
HAWTHORNE JUDGE
¶
1 Defendant, Christopher Allen Jompp, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
third degree assault, robbery, and escape. He also appeals
his sentence. We affirm the judgment, but we vacate his
sentence on the escape conviction and remand the case for
resentencing on that conviction. We affirm the remainder of
the sentence.
I.
Factual Background and Procedural History
¶
2 Jompp, the victim, and an acquaintance, B.B., were driving
around one evening in a stolen car while high on
methamphetamine. During the night they stopped at two
apartments to use more methamphetamine. Another acquaintance,
C.P., who was also high, left with the group from the second
apartment. The four continued to drive around town, with the
victim driving, Jompp in the passenger seat, and B.B. and
C.P. sitting in the back. Tension arose between the victim
and Jompp. The victim had propositioned B.B. and C.P.
numerous times for sex in return for money and drugs, and
Jompp asked him to stop.
¶
3 Eventually the victim parked the car near one of the
apartments they had visited earlier. What happened next
isn't clear, but by all accounts a fight broke out
between Jompp and the victim. When the fight ended, the
victim fell out of the driver's side door unconscious.
¶
4 C.P. recalled that B.B. then got out of the car and hit and
kicked the victim while he was on the ground. B.B. said,
however, that she remained in the car and saw C.P. go over to
the victim. C.P. admitted that at some point after the victim
was unconscious on the ground, at Jompp's direction, she
went through the victim's pockets, took money from him,
and gave it to Jompp. B.B. also took the victim's cell
phone from the backseat.
¶
5 Jompp, B.B., and C.P. left the victim on the ground and
dropped the car off in an alley. Around four o'clock that
morning a security guard noticed the victim still on the
ground and called the police. An ambulance took him to the
emergency room where he was diagnosed with multiple serious
head injuries.
¶
6 The police traced the victim's cell phone to B.B., who
identified Jompp as the victim's assailant. Days after
the victim was injured, the police found Jompp and C.P. The
police ordered Jompp to the ground, handcuffed him, and
searched him. One officer led Jompp to a police car to take
him to jail. As the officer was about to place Jompp in the
police car's back seat, Jompp took off running. After a
short chase, the police caught Jompp and he was taken to
jail.
¶
7 The victim died approximately one month later from the
injuries he sustained in the fight.
¶
8 The People charged Jompp with second degree murder, second
degree assault, robbery, escape, and several habitual
criminal counts. At trial, Jompp's defense theories were
that B.B. killed the victim and that the prosecution
otherwise failed to prove the charges. The jury convicted
Jompp of third degree assault, robbery, and escape. The trial
court adjudicated Jompp an habitual criminal[1] and sentenced him
to forty-eight years in prison.
II.
Speedy Trial
¶
9 Jompp contends the court violated his speedy trial rights
by continuing his jury trial, over his objection, beyond six
months after he pleaded not guilty and thirteen months after
he was arrested. We disagree.
A.
Preservation
¶
10 The People agree that Jompp preserved his statutory speedy
trial claim, but argue that he didn't preserve his
constitutional speedy trial claim.
¶
11 At the hearing to continue the trial, defense counsel
objected "to the continuance of Mr. Jompp's speedy
trial rights under the Federal and State Constitutions, as
well as, his statutory right." But for the rest of the
hearing, the parties and the court only discussed and
considered the statutory speedy trial elements required to
continue the trial.
¶
12 On the morning of trial, defense counsel again objected:
Judge, at this time, I wanted to reiterate a previous
objection we made for the record. It is the Defense's
position that [the] Prosecution's previous request to
continue the trial that was in the context of their
unavailability of some witnesses. It is the Defense's
position that there was not good cause for that at that time.
And as such, it is our position that this trial is outside of
speedy trial. So we are objecting to being outside of speedy
trial. We'd ask the Court to note that objection.
¶
13 So at both the hearing and trial, defense counsel
"provided no analysis of the constitutional issues and
never sought a ruling from the trial court." People
v. Roberts, 2013 COA 50, ¶ 48. Nor did he "ask
the court to determine whether, under the applicable
four-part balancing test of Barker v. Wingo, 407
U.S. 514 (1972), and People v. Small, 631 P.2d 148
(Colo. 1981), the delay in this case violated the state and
federal constitutions." People v. Scialabba, 55
P.3d 207, 209-10 (Colo.App. 2002); see People v.
McMurtry, 122 P.3d 237, 243 (Colo. 2005) ("[H]e did
not argue any of the elements of this constitutional right in
either his motion or at the hearing on the motion."). So
Jompp didn't preserve his constitutional speedy trial
claims. ¶ 14 But, unpreserved constitutional errors may
be reviewed for the first time on appeal. Reyna-Abarca v.
People, 2017 CO 15, ¶ 37. And we "do not
presume acquiescence in the loss of fundamental
constitutional rights, and therefore indulge every reasonable
presumption against waiver." People v. Rediger,
2018 CO 32, ¶ 39 (quoting People v. Curtis, 681
P.2d 504, 514 (Colo. 1984)). So we review Jompp's
constitutional speedy trial claims for plain error. See
id. at ¶ 47.
B.
Standard of Review
¶
15 We review a trial court's decision to apply the
statutory speedy trial exclusion in section
18-1-405(6)(g)(I), C.R.S. 2017, for an abuse of discretion.
Scialabba, 55 P.3d at 209. "We will not disturb
the trial court's findings granting a continuance if the
record supports these findings." People v.
Trujillo, 2014 COA 72, ¶ 18.
An
error is plain if it is obvious and substantial and so
undermines the trial's fundamental fairness as to cast
serious doubt on the judgment of conviction's
reliability. Rediger, ¶ 48.
C.
Additional Facts
¶
16 Jompp was arrested on October 31, 2013. On March 14, 2014,
he entered a not guilty plea and jury trial was set for
August 25, 2014.
¶
17 Over the following months, the prosecution sought to
secure B.B.'s attendance at trial. The prosecution knew
B.B. lived in Utah and in April 2014 asked the trial court to
issue a certificate to summon her from outside the state
under section 16-9-203, C.R.S. 2017, which the court
granted.[2] After trying unsuccessfully to serve B.B.
the summons, the prosecution learned that she may have been
living at a different address in Utah, and in June the court
issued a second certificate to summon. In August the
prosecution requested a third certificate to summon, and the
court issued it with a recommendation that B.B. be taken into
custody to assure her presence at trial.
¶
18 On August 18, 2014, the prosecution filed a motion to
continue the trial if B.B. was still unavailable. At the
motion hearing, the prosecutor provided additional
information on his efforts to locate and serve B.B.
Specifically, the prosecutor explained that he had three
people from the police department working with local Utah
agencies. And, investigators had contacted B.B. via Facebook
and believed they could trace her cell phone, which they
guessed would probably take two to three weeks. The
investigators had also been following her on another Facebook
account she used under a different name. The prosecutor also
said that B.B.'s biological son and the son's
adoptive parents were cooperating and were still in touch
with B.B. The investigators were also tracking B.B.'s
husband who had just been released from jail and was thought
to be with B.B.
¶
19 The prosecutor also said there was a $25, 000 outstanding
warrant in Utah, they were "close to getting her,"
and that "leads . . . on her address in the past two
weeks looked very promising," but that she was
"something of a couch surfer." It concluded that
"there's reasonable grounds to believe that we will
have her in the not too distant future." The court
granted the motion and set Jompp's trial date for
December 1, 2014.
¶
20 Not long after, B.B. was arrested in Utah based on the
certificate to summon and appeared in court in Colorado on
September 11, 2014. She testified at trial.
D.
Statutory Speedy Trial
¶
21 Section 18-1-405(1) provides a defendant a statutory right
to be brought to trial within six months from the date he or
she enters a not guilty plea. If a trial is not brought
within this time frame, generally the charges against the
defendant must be dismissed. ...