Colorado appeals court orders new briefs after state flags statute oversight in Tina Peters case

By Jen Schumann | Rocky Mountain Voice

The Colorado Court of Appeals has reopened briefing in Tina Peters’ criminal appeal after the state acknowledged it overlooked a key statutory issue while briefing and arguing the case.

The appeal’s timeline changed on Jan. 29, when the Court of Appeals ordered a new round of briefing following a late filing from the Attorney General, a “notice of erratum” addressing the felony charge.

The question surfaced during oral argument earlier this month. Judges asked whether the felony conspiracy charge was tied to the correct version of Colorado law.

After oral argument concluded, prosecutors revisited the statute.

In a filing submitted January 23, the Attorney General’s Office acknowledged it had missed a timing detail that had not been addressed in the parties’ briefing or at oral argument.

“The People became aware of a fact they previously overlooked during the briefing and oral argument,” the filing states.

The state said the alleged conduct occurred in May 2021, before changes to the statute, when criminal impersonation was charged as a felony.

“The People regret this oversight,” the filing adds.

In an order issued January 29, the panel rejected the notion that the filing was a routine correction.

“The Notice is not an errata, which is generally used to correct an isolated misstatement of fact or incorrect citation to authority,” the court wrote. “The Notice is more in the nature of a brief containing a supplemental argument.”

The court also addressed how the issue reached it. The issue did not come from either side’s briefing. The panel noted that neither side raised the statutory change in its written briefs or during oral argument.

The court focused on timing. In its order, the panel pointed out that the state raised the issue nearly six months after filing its answer brief and more than a week after oral argument had concluded.

Despite that delay, the panel concluded the question warranted further review.

“It raises a significant issue that is germane to our consideration and resolution of Defendant’s challenge,” the order states.

Rather than proceed toward a decision based on an incomplete legal framework, the court accepted the filing as a supplemental answer brief and reopened briefing.

Under the order, Peters may file a response “in the nature of a supplemental opening brief” within 14 days, limited to 3,000 words. The state may then file a reply capped at 1,500 words within seven days of service.

For now, the appeal is paused while the court considers which version of the criminal impersonation statute should be used. The question is narrow but consequential. It does not revisit the jury’s factual findings or resolve the appeal itself. It asks whether the felony classification applied at sentencing rests on the correct statutory foundation.

The procedural pause follows a separate development in federal court. In December, a federal judge dismissed Peters’ habeas application without prejudice while her direct appeal remains pending, citing a doctrine that requires federal courts to abstain while state appellate proceedings are ongoing.

While the statutory issue now returns to the center of the appeal, Peters’ defense has also asked the Court of Appeals to weigh a separate question tied to the delay.

In a separate filing, Peters’ attorneys have asked the Court of Appeals to review the trial court’s denial of bond pending appeal and to reinstate a previously set $25,000 bond. The petition argues the previous bond denial improperly weighed Peters’ speech rather than traditional factors such as flight risk or danger.  

They also argue that circumstances have changed since sentencing and that continued incarceration during the extended appellate process now presents safety concerns that were not before the court at the time.

To support that request, the defense submitted a sworn declaration from Peters along with several exhibits. The supporting materials describe a series of alleged assaults since Peters entered the Department of Corrections, including a Jan. 18 incident that occurred just days after oral argument in her appeal. 

The defense argues that a photograph of her injury, along with redacted court records tied to the other inmate, illustrates the risk posed by housing Peters alongside individuals with documented histories of violent offenses — a consideration it says supports reconsidering bond.

In her sworn declaration, Peters describes what she calls a basic mismatch between her classification and her placement. Under DOC regulations, she writes, she is a “level 1 offender” who “should be housed in a minimum-security facility,” but Colorado operates “four minimum-security facilities for men, but none for women.”

The defense frames the issue as one of misalignment between how Peters was sentenced and how she is being held. In the bond petition, her attorneys argue that although she is classified under DOC rules as a low-level offender, her current placement exposes her to risks that “should not exist for a non-violent first offender,” a condition they say stems from the state’s prison structure rather than her conduct.

Peters states that after the Jan. 18 incident — in which she was accused of assaulting another inmate — she was removed from general population and held alone for several days under restrictive conditions. In her declaration, Peters asserts that the other inmate initiated the encounter in a way not captured on surveillance footage and that she later documented bruising consistent with being struck out of the camera’s view.

The defense contrasts that response with the fact that the other inmate remained in general population during the investigation and argues the disparity should factor into the bond decision.

If the appeal sends the case back to district court for a retrial or other proceedings, the defense is also asking that a different judge handle the case.Peters’ case was previously handled by Mesa County District Court Judge Matthew Barrett.

The panel chose not to press ahead while questions about the felony charge remain unresolved. 

No decision has been issued on the supplemental briefing or the pending bond request.