May 21, 2019

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On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation.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.

Tenth Circuit: Anonymous Tip Was Reasonable Basis for Warrantless Search of Probationer’s House

The Tenth Circuit Court of Appeals issued its opinion in Leatherwood v. Welker on Tuesday, July 8, 2014.

Leatherwood was serving probation when his former wife called his probation officer, Denise Welker, to inform her that Leatherwood had raped his current girlfriend, who had filed a restraining order against Leatherwood. The former wife also indicated that Leatherwood might have weapons in his possession, specifically in his truck, in a safe, and on a shelf in his garage. Welker also received an anonymous email tip that Leatherwood had sent emails of a sexual nature to his girlfriend and that he possessed alcohol and sexual materials and devices. Possession of firearms and sexually explicit material was prohibited under the terms of his probation.

Welker met with other corrections officers and obtained permission to conduct a warrantless search of Leatherwood’s home. Firearms were found in the search. Leatherwood initiated litigation, seeking declaratory and monetary relief under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. Defendants moved for summary judgment on qualified immunity grounds, which was denied. Defendants appealed the denial of summary judgment.

The Tenth Circuit reversed, noting that defendants had ample reason for conducting the warrantless search, given the phone call from the former wife and the anonymous email. The Tenth Circuit has allowed  searches of probationers based on anonymous or unverified tips many times previously and found that the search was reasonable and the defendants were entitled to qualified immunity.

Colorado Court of Appeals: Trial Court Violated Defendant’s Fifth Amendment Right Against Self-Incrimination by Requiring Offense-Specific Treatment

The Colorado Court of Appeals issued its opinion in People v. Ruch on Thursday, June 20, 2013.

Probation—Revocation—Stalking—Right to Counsel—Fifth Amendment—Counseling—Hearsay—Notice.

Defendant Carl Daniel Ruch appealed the trial court’s judgment revoking his probation. The case was remanded with directions.

In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking. The trial court sentenced Ruch to six years of intensive supervised probation. In January 2010, Ruch’s probation officer filed a special report in the trial court requesting that Ruch be ordered to comply with additional terms of probation typically imposed on sex offenders, which was granted by the court against Ruch’s objection and assertion of his Fifth Amendment rights.

On appeal, Ruch asserted that the trial court violated his right to counsel when it required him to choose between continuing with his appointed counsel or proceeding pro seto renew his request for a continuance to allow him to seek private counsel. The trial court did not abuse its discretion by denying Ruch’s request for a continuance after previously allowing five continuances for Ruch to find private counsel and no evidence to support Ruch’s ineffective assistance of counsel allegations against his public defender.

Ruch also asserted that the trial court erred in finding that he had changed residences without the approval of his probation officer. Hearsay evidence is admissible in probation revocation proceedings; however, it is only admissible if the defendant has a fair hearing and is afforded the opportunity to rebut the hearsay evidence. Here, the amended probation revocation complaint stated that Ruch’s roommate was the declarant of the incriminating information. Accordingly, Ruch had notice of the declarant’s identity and the content of the hearsay. Thus, Ruch had sufficient information to allow him to effectively rebut the hearsay testimony through cross-examination or presentation of his own witnesses. Therefore, the triple hearsay evidence was sufficient to prove, by a preponderance of the evidence, that Ruch changed residences without obtaining permission from his probation officer.

Ruch further asserted that the trial court erred by revoking his probation based on his refusal to attend offense-specific treatment (counseling). By requiring Ruch to attend counseling while his appeal was pending, the trial court violated his Fifth Amendment right against self-incrimination, which he expressly invoked and did not waive. The trial court could have properly revoked Ruch’s probation based on his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive approval from his probation officer before changing his residence, and (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team. However, the record is not clear whether the trial court would have revoked Ruch’s probation and imposed the same sentence based on these three violations alone. Accordingly, the case was remanded for further findings.

Summary and full case available here.

SB 13-239: Prohibiting Certain Conflicts of Interest in the Provision of Probation or Case Management Oversight Services

On Tuesday, March 26, 2013, Sen. Jessie Ulibarri introduced SB 13-239 – Concerning Avoiding Potential Conflicts of Interest in the Provision of Services to a Person on Probation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that an entity that provides probation or case management oversight services to a defendant cannot also provide offender treatment, chemical dependency education and treatment, or domestic violence or mental health services to the same defendant or hold a financial interest in an entity that provides such education or treatment services to the same defendant. A private probation provider is prohibited from directing a probationer it supervises to a particular treatment provider.

If a person reasonably believes that a private probation provider violated either of these prohibitions, the person may file a complaint with the provider’s licensing authority. If the licensing authority finds a violation, it shall:

  • Issue a warning for a first violation;
  • Suspend the license for a second violation; and
  • Permanently revoke the license for a third violation.

The bill requires a court that sentences a defendant to probation to notify the defendant of these prohibitions and the remedy for a violation. The bill was introduced on March 26 and is assigned to the Judiciary Committee.

Colorado Court of Appeals: Probation is a Privilege, Not a Right, and May Be Revoked for Violation of Any of its Terms

The Colorado Court of Appeals issued its opinion in People v. Fair on  Thursday, March 28, 2013.

Probation—Revocation—Sex Offender—Request for Stay.

Defendant appealed the district court’s orders revoking his probation and denying his motion to stay the probation revocation proceedings and the sentence imposed on revocation. The orders were affirmed.

Defendant pleaded guilty to sexual assault, a class 4 felony. The trial court agreed with the recommendations contained in the offense-specific evaluation and presentence investigation report,and sentenced defendant to sex offender intensive supervision probation (SOISP) for a term of ten years to life. As part of the sentence, the court ordered defendant to “complete sex offender specific treatment.” Subsequently, defendant’s probation officer filed a motion to revoke defendant’s probation based on defendant’s termination from offense-specific treatment for refusing to admit to committing the offense. The court thereafter revoked defendant’s probation.

Defendant argued that the district court abused its discretion in revoking his probation and sentencing him to a term in the Department of Corrections (DOC). Probation is a privilege, not a right. If a probationer violates any condition of probation, the order of probation may be revoked. Because defendant violated the terms of his probation to complete sex offender specific treatment, the court did not abuse its discretion in revoking his probation and sentencing him to the DOC.

Defendant further contended that the district court’s refusal to continue the revocation proceedings denied him the opportunity to properly litigate his motion to vacate his guilty plea. Defendant cited no legal authority to support this argument, nor did he demonstrate how he would be prevented from litigating his post-conviction motion after this current appeal is discharged. Under these circumstances, the district court did not abuse its discretion in denying his request.

Summary and full case available here.

Colorado Court of Appeals: Sex Offender Convicted of Class 3 Felony or Higher Must Receive Minimum of 20 Years’ Probation; Trial Court Has No Discretion to Terminate Probation Early

The Colorado Court of Appeals issued its opinion in People v. Dinkel on February 28, 2013.

Probation—Sex Offender—Sexual Assault—Child Under 15.

Defendant appealed the district court’s order denying his motion to terminate his probation. The order was affirmed.

In 2002, defendant pleaded guilty to sexual assault on a child under the age or 15 by a person in a position of trust, a class 3 felony. The trial court sentenced him to an indeterminate twenty-year-to-life term of sex offender intensive supervision probation (SOISP). In 2010, the trial court granted defendant’s request to modify his probation from SOISP to “regular Sex Offender Supervision.” In 2011, the trial court denied defendant’s request to terminate his probation in its entirety.

Defendant contended that the trial court had discretion under § 18-1.3-204(4)(a) of the Sex Offender Lifetime Supervision Act (Act) to reduce or increase a term of a sex offender’s probation, and its discretion is not limited by the provisions of §§ 18-1.3-1004(2)(a) and -1008(2) of the Act. Under the plain language of the Act, however, a sex offender who is convicted of a class 3 felony and sentenced to probation must receive a minimum of twenty years of probation. The Act has no provision permitting discharge of the sex offender’s probationary sentence before the twenty-year review. Thus, the district court did not have discretion to terminate defendant’s probation until he completed at least twenty years of the sentence.

Summary and full case available here.