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People v. Jompp

Court of Appeals of Colorado, Fifth Division

September 6, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Christopher Allen Jompp, Defendant-Appellant.

          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. ...


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