People v. Jompp

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          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

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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, 321 P.3d 581. Nor did he "ask the court to determine whether, under the applicable four-part balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (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, 390 P.3d 816. 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, 416 P.3d 893 (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984) ). So we review Jompp’s

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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, 338 P.3d 1039. 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 ...