October 19, 2017

Colorado Court of Appeals: Defendant Not Entitled to Bond in Probation Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, July 13, 2017.

Setting Bond—Persons Charged with Felonies Awaiting Trial—Persons Who Plead Guilty to Felonies and Are Awaiting Trial.

While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.

On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The court of appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.

Here, the court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Cannot Impose Probationary Sentence Without Defendant’s Consent

The Colorado Supreme Court issued its opinion in Veith v. People on Monday, March 6, 2017.

Probation—Sentencing.

The Colorado Supreme Court considered whether a defendant has consented to a probationary sentence imposed in addition to a sentence of incarceration when he or she requested probation in lieu of incarceration. The court held that a trial court cannot impose a sentence of probation without the defendant’s consent.

Accordingly, the supreme court held that in this case the trial court exceeded the scope of Veith’s consent when it imposed a 10-year prison sentence in addition to the probationary sentence. The  judgment of the court of appeals was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Privilege Against Self-Incrimination Precludes Revocation of Probation

The Colorado Supreme Court issued its opinion in People v. Roberson on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

The Supreme Court concluded that on the facts presented here, defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking his sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the Court, however, the Court was unable to determine whether defendant’s privilege against self-incrimination precluded the district court from revoking defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the Court made its rule to show cause absolute and remanded the case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1359: Eliminating Exception to Prohibition on Restricting Probationers’ Medical Marijuana Use

On March 11, 2016, Rep. Joseph Salazar and Sen. Lucìa Guzman introduced HB 16-1359Concerning the Use of Medical Marijuana while on Probation. The bill was introduced into the House Judiciary Committee, where it was amended. It was again amended on Second Reading and passed Third Reading with no further amendments.

Current law prohibits a court from requiring that a person on probation refrain from possessing or using medical marijuana unless the person was convicted of a crime related to medical marijuana or, based on an assessment, the court determines that a prohibition against such possession or use is necessary to accomplish the goals of sentencing. This bill eliminates the exception related to the assessment, and instead, allows a court to consider “any material evidence” in determining whether a prohibition on the possession or use of medical marijuana by an individual on probation is necessary to accomplish the goals of sentencing.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

New CJD 16-01 Repeals and Replaces CJD 04-03

Effective January 1, 2016, the Chief Justice Nancy Rice of the Colorado Supreme Court adopted Chief Justice Directive 16-01, “Establishment of Statewide Probation Priorities,” to replace and repeal CJD 04-03. The Chief Justice Directive updates priority lists for offender supervision for investigation, supervision, and probation performance review. The goal of the new priorities is to maximize public safety by directing offender supervision resources to the highest risk offenders.

Click here to read CJD 16-01. Click here for all of the Colorado Supreme Court Chief Justice Directives.

Tenth Circuit: Special Conditions of Supervised Release Require Particularized Findings of Fact

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Torres on Friday, July 31, 2015.

Belisario Dominguez Martinez-Torres pleaded guilty in New Mexico District Court in 2008 to possession with intent to distribute 50 kilograms or more of marijuana. He was sentenced to 30 months’ imprisonment followed by three years of supervised release. The district court imposed special conditions of supervised release and subsequently modified those conditions. Later, the probation office filed a request to revoke supervised release, alleging Defendant violated a new special condition by failing to return to his residential reentry center. Defense counsel asked the court to fashion a sentence that would allow Defendant to meet his familial obligations, noting Defendant had not committed any crimes, was employed, and did not use alcohol or drugs. The district court imposed a sentence of two months’ imprisonment and two years of supervised release with seven special conditions, including three that became the subject of the appeal: (1) a restriction on the use or possession of alcohol or other substances, (2) sex offender evaluation and treatment based on a prior conviction, and (3) a prohibition on possession or viewing of any pornographic material.

Defendant objected only to the third condition in district court but on appeal argued all three were impermissible. The government conceded the first two restrictions were impermissible and the Tenth Circuit agreed. The Tenth Circuit considered the reasonableness of the third restriction after admonishing that if the parties had devoted more time at sentencing to issues beyond incarceration, these issues would not be before its docket as they are all too often. Addressing the issues at hand, the Tenth Circuit agreed with Defendant that the pornography restriction is not reasonably related to his history or other statutory factors. The Tenth Circuit noted that the district court’s sole expressed reason for the restriction was Defendant’s prior sexual offense, and stated that that was not enough to justify the restriction. The district court needed to make an individualized assessment of whether it was appropriate for Defendant. The Tenth Circuit analyzed other cases in which similar restrictions were imposed and determined that the lack of an individualized inquiry in Defendant’s case required reversal of the restriction.

The Tenth Circuit reversed the imposition of the three special conditions and remanded to the district court.

Tenth Circuit: Complete Prohibition on Internet Access Constitutes Greater Deprivation of Liberty than Reasonably Necessary

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ullmann on Tuesday, June 9, 2015.

Ronald Ullmann pleaded guilty to making a false statement, arising from a sexually explicit online conversation he had with an undercover FBI agent posing as a 13-year-old. He served a 60-month prison term and began his three years of supervised release. Ullmann contended that the district court’s imposition of a special condition restricting his use of the internet and a panoply of electronic devices impose a greater deprivation of liberty than is reasonably necessary.

The Tenth Circuit noted that its prior precedent suggested that a complete prohibition on internet access would constitute a greater deprivation of liberty than reasonably necessary, and in the decade since the two precedential cases were decided the internet has become an even more indispensable tool of everyday life. The Tenth Circuit found the probation office’s restriction as written to be unreasonable, but because in this case the district court orally modified the condition to be not a blanket prohibition but rather a restriction, there was no error. The Tenth Circuit cautioned the probation office that adjudicating further appeals based on the prohibitive language would not be a valuable use of its judicial resources.

Ullmann also argued the modified condition is inconsistent with the Sentencing Guidelines, but the Tenth Circuit disagreed because the condition restricts rather than prohibits Ullmann’s internet use. Ullmann further contended the modified condition unconstitutionally delegated authority to perform a judicial function to the probation office. The Tenth Circuit disagreed, finding a district court’s oral delegation to a probation officer controls over the written conditions of probation imposed by the probation office. The district court exercised its authority at the sentencing hearing when it clarified that Ullmann would only have to comply with the written restrictions related to internet-capable devices.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Period of Probation Under Deferred Judgment Does Not Count when Deferral Revoked

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, February 12, 2015.

Probation Termination—CRS § 18-1.3-1008(2).

In 2002, Anderson pleaded guilty to one count of sexual assault on a child, a class 4 felony, and one count of unlawful sexual contact, a class 1 misdemeanor. As part of the plea agreement, Anderson entered into a stipulation for a deferred judgment and sentence on the felony count, which continued the case for four years.

Three years later, the probation department filed a revocation complaint claiming Anderson had been unsuccessfully terminated from his sex offender treatment program for violating his treatment contract and was in arrears on payments toward the costs of his supervision. Anderson admitted to the violations and the district court revoked his deferred judgment and probation.

At a March 2006 hearing, the court sentenced Anderson to probation for ten years to life on the felony count. In August 2013, Anderson moved to terminate his probation and for a review hearing under CRS § 18-1.3-1008(2). He argued that he had been on probation for eleven years. He acknowledged that his deferred judgment had been revoked but claimed he had maintained compliance with his probation. Although the probation department agreed he had successfully completed his treatment, it stated it could not recommend termination because he had not completed ten years of probation. The district court denied Anderson’s request without a hearing.

On appeal, Anderson argued that the period during which he was supervised in connection with his unsuccessful deferred judgment constituted probation within the meaning of CRS § 18-1.3-1008(2). The Court of Appeals was not persuaded. Under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), a district court may sentence a sex offender to probation for at least ten years for a class 4 felony. After serving ten years of probation, the offender may petition the court to be discharged from the indeterminate probation sentence. There is no discretion to terminate probation before a sex offender has completed the minimum term of probation. The Court rejected Anderson’s argument that supervision under a deferred judgment is the same as probation under SOLSA. His argument contravenes the plain language of the statute.

The Court concluded that the district court correctly determined it did not have authority to consider Anderson’s request at the time it was made. Accordingly, the order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

SB 15-099: Eliminating Certain Duties for Probation Officers

On January 21, 2015, Sen. John Cooke introduced SB 15-099 – Concerning Eliminating Certain Duties for Probation OfficersThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Several provisions of current law address the performance of certain duties by probation officers. The bill amends these provisions to eliminate these duties. Specifically, the bill so amends provisions concerning: The performance of supplemental evaluations concerning disputed issues in cases involving the allocation of parental responsibilities with respect to a child; The exercise of continuing supervision over a case to ensure that terms relating to an allocation of parental responsibilities or parenting time are carried out; The duty to make a social study and written report in all children’s cases under the “Colorado Children’s Code”; and The appointment of a probation officer as attendance officer of a school district.

The bill was assigned to the Senate Judiciary Committee.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

Summary and full case available here, courtesy of The Colorado Lawyer.