COLORADO COURT OF APPEALS 2017COA97
Court of Appeals No. 17CA0749
El Paso County District Court Nos. 15CR3126, 15CR4048 & 16CR6133
Honorable Michael P. McHenry, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Trevelle Keshawn Johnson,
Defendant-Appellant.
APPEAL DISMISSED
Division A
Opinion by JUDGE BERNARD
Hawthorne, J., concurs
Harris, J., dissents
Announced July 13, 2017
Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant
Attorney General, Denver, Colorado; Daniel H. May, District Attorney, Doyle
Baker, Senior Deputy District Attorney, Brien Cecil, Senior Deputy District
Attorney, Tyler Uhlenbrock, Deputy District Attorney, Colorado Springs,
Colorado, for Plaintiff-Appellee
Davide C. Migliaccio, Alternate Defense Counsel, Colorado Springs, Colorado,
for Defendant-Appellant
¶1 Does the same set of rules govern a court’s decision to set
bond in the following two categories of cases? The first category
includes cases in which the court sets bond for persons who have
been charged with felonies and who are awaiting trial. The second
category includes cases in which defendants have pled guilty to
felonies, courts have sentenced them to probation or placed them
on deferred judgments, and the prosecution then files motions to
revoke the defendants’ probation or deferred judgments.
¶2 We answer the question “no” — meaning that the same set of
rules does not apply to the two categories — for two interconnected
reasons.
¶3 First, defendants in the two categories stand on opposite
banks of the criminal justice Rubicon. Defendants in the first
category are presumed to be innocent. But (1) defendants in the
second category have admitted their guilt, so the presumption of
innocence is long gone; (2) such defendants are not entitled to many
of the fundamental rights that those in the first category enjoy; and
(3) probation revocation and revocation of deferred judgment
proceedings are focused on whether the sentences that courts
originally imposed are still appropriate.
1
¶4 Second, Colorado’s constitution and the pertinent bond
statutes recognize this separation between the two categories. In
the first category, the law requires courts to set bond for defendants
who await trial, subject only to a few clearly delineated exceptions.
In the second category, the law gives courts discretion to set bond.
¶5 In this case, probationer, Trevelle Keshawn Johnson, asks us
to review the revocation court’s decision to deny him bond in two
cases. He filed a petition requesting such review under section
16-4-204, C.R.S. 2016.
¶6 We dismiss probationer’s petition, see § 16-4-204(3)(d),
because we conclude that (1) his two cases fell into the second
category; (2) the revocation court therefore had discretion to deny
his request for bond in those cases; and (3) the court did not abuse
its discretion when it denied his request for bond because the
record supported its decision.
I. Background
¶7 In El Paso County criminal case number 15CR3126,
probationer pled guilty to the class five felony of menacing. With
the prosecution’s consent, the court entered a deferred judgment
2
and ordered probationer to submit to the supervision of the
probation department for four years.
¶8 In El Paso County criminal case number 15CR4048,
probationer pled guilty to the class six felony of criminal
impersonation. The court sentenced him to probation for four
years, adding that this four-year period would be consecutive to the
four-year deferred judgment in the menacing case.
¶9 Probationer entered into these plea dispositions on the same
day in October 2015.
¶ 10 While probationer was serving his probation and deferred
judgment in these two cases, the prosecution charged him in El
Paso County criminal case number 16CR6133 with, among other
crimes, first degree felony murder and robbery. He was arrested
and jailed on November 22, 2016. He was held without bond in
that case pending his combined preliminary hearing and bond
hearing.
¶ 11 The record that we have is not entirely clear, but it appears
that, after probationer’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. The record
3
does not contain these motions, but we can piece together what
they alleged from other documents and transcripts in the record. It
looks like they alleged that probationer had violated the terms of his
deferred judgment and his probation because he had committed the
offenses with which he had been charged in the murder case.
¶ 12 In late November 2016, the revocation court issued an arrest
warrant in the menacing case because of allegations that
probationer had not complied with the terms of his probation. The
same thing happened in early December 2016 in the criminal
impersonation case. The minute orders in the record indicate that
probationer was booked into jail on both cases because of a “WFTC
Warrant Failure to Comply.” (Defendant was simultaneously in
custody based on his arrest in the murder case.)
¶ 13 The trial court held a combined preliminary hearing and bond
hearing in the murder case in mid-February 2017. Although the
court found probable cause to believe that probationer had
committed these crimes, it also found that the prosecution had not
established that proof of his guilt was evident or that the
presumption was great that a jury would convict him. The court
therefore set bond at $75,000. Probationer’s trial in the murder
4
case is pending, and he is obviously presumed to be innocent of the
charges in that case.
¶ 14 In early March 2017, the revocation court held a hearing to
determine whether it would grant probationer’s request for bond in
the menacing case and in the criminal impersonation case.
¶ 15 Probationer asserted that the revocation court should set bond
in both cases because (1) the only allegation in the motions to
revoke his probation and his deferred judgment was that he had
been charged with new crimes in the murder case; (2) he was
presumed innocent of those new crimes because the charges had
not yet been resolved; (3) he had done well while on probation and
on the deferred judgment because he had appeared at all his
appointments and because he had a job; (4) he could “get
employment” if the court released him on bond; (5) he had been
born and raised in the local community, and his family supported
him; and (6) he was only nineteen years old.
¶ 16 The prosecution replied that section 16-4-103(5), C.R.S. 2016,
which lists criteria that a court should consider when setting and
selecting the type of bond, applied to probationer’s request for bond.
(We conclude below that a different statute controls the resolution
5
of this petition, but it appears to us that the revocation court
implicitly focused on the proper statute.)
¶ 17 The prosecution then added that (1) probationer had
“significant incentive to [flee] the jurisdiction” because he was on
probation “when he committed the crimes” charged in the murder
case; (2) there was a “possibility of [additional] violations of the law”
if the court released probationer on bail; (3) the revocation court
had “a very good indication that [he would] continue to violate” any
bond conditions that the court might impose; (4) probationer had
told the police in the murder case that he did not know that the
robbery would result in a homicide, but he added that he and his
accomplice had been “robbing people for marijuana”; (5) smoking
marijuana violated the conditions of probationer’s deferred
judgment in the menacing case and his probation in the criminal
impersonation case; (6) he had previously failed to appear in court
three times in unrelated misdemeanor cases; (7) he had not
reported to his probation officer during the time that he was
“running from the law,” which appears to be a reference to when the
events in the murder case had occurred; (8) one of the victims in
the menacing case had told the prosecutor that he wanted the court
6
to deny probationer’s request for bond; and (9) the mother of the
murder victim in the murder case asked the court to deny
probationer’s request for bond.
¶ 18 The prosecutor then told the revocation court that it would be
“justified in continuing to hold [probationer] without bond based on
his pattern of violating conditions of his supervision,” and his
probation officer could not “watch him all the time.”
¶ 19 The revocation court denied probationer’s request for bond in
the menacing case and the criminal impersonation case. It thought
that it had a “much higher degree of certainty” as to the likely
outcome of the motion to revoke the deferred judgment in the
menacing case and the motion to revoke probation in the criminal
impersonation case than the outcome of the pending charges in the
murder case. Indeed, the court added that it was making a
“separate judgment” in the former two cases from that in the latter
one.
¶ 20 The court added that it saw a “philosophical distinction”
between preconviction and postconviction cases. This distinction
also applied to the judgment that the court was required to make
about whether probationer presented an excessive risk to the
7
community. (We note that the transcript in the record contains
several puzzling word choices. For example, the transcript
indicates that the court used the word “recessive” when discussing
probationer’s risk to the community. But we are confident from the
context of this language that the court was discussing “excessive”
risk.)
¶ 21 At the end of the hearing, the revocation court set a date in
April 2017 for a hearing on the prosecution’s motions to revoke
probationer’s deferred judgment and his probation. On that day,
probationer asked the court to continue the hearing on the
revocation motions until after the charges in the murder case had
been resolved. So, according to the record before us, probationer
remains in custody, without regard to whether he could make the
$75,000 bond in the murder case, because the revocation court
denied his request for bond in the menacing case and in the
criminal impersonation case.
II. Analysis
¶ 22 Probationer asserts that the revocation court was
“constitutionally and statutorily required” to set bond in the
menacing case and the criminal impersonation case “under the
8
circumstances present” in those cases. The court therefore “abused
its discretion and exceeded its jurisdiction” when it “refus[ed] to
set . . . bond.” As a result, probationer “is being unconstitutionally
held without bond.”
¶ 23 His contention focuses on Colorado Constitution article II,
section 19(1), and section 16-4-101(1), C.R.S. 2016. He asserts
that the motions to revoke in the menacing case and the criminal
impersonation case are “new charges.” He therefore has a right to
bond on these “new charges,” he continues, because he has not yet
been “convicted” of them. See Colo. Const. art. II, § 19(1) (“All
persons shall be bailable by sufficient sureties pending disposition
of charges . . . .”); § 16-4-101(1) (“All persons shall be bailable by
sufficient sureties . . . .”).
¶ 24 We generally review a trial court’s decision to grant or to deny
bond for an abuse of discretion. See, e.g., People v. Hoover, 119
P.3d 564, 566 (Colo. App. 2005). But probationer also presents us
with a legal question, which we review de novo. People v. Blagg,
2015 CO 2, ¶ 11.
¶ 25 We disagree with probationer’s contentions for the following
reasons.
9
¶ 26 First, the “shall be bailable” language found in Colorado
Constitution article II, section 19(1) “gives the criminally accused
the right to a bail bond, pending adjudication of the charges against
him . . . .” Blagg, ¶ 12 (emphasis added). The roots of the “shall be
bailable” language are found in the presumption of innocence. See
Stack v. Boyle, 342 U.S. 1, 4 (1951)(The “traditional right to freedom
before conviction permits the unhampered preparation of a defense,
and serves to prevent the infliction of punishment prior to
conviction. Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle,
would lose its meaning.”)(citation omitted).
¶ 27 As we explain in more detail below, the presumption of
innocence does not apply to the issues in this appeal because
probationer stands convicted of criminal impersonation and
menacing. The motions to revoke his probation and his deferred
judgment do not focus on whether the law presumes him to be
innocent of the crimes with which the prosecution charged him in
the murder case. Instead, those motions concern the entirely
different issue of whether the sentences that the court originally
10
imposed in the menacing case and the criminal impersonation case
were still appropriate.
¶ 28 Second, probationer recognizes, of course, that there are
exceptions to this “shall be bailable” language. As is pertinent to
our analysis, Colorado Constitution article II, section 19(2.5) creates
one of them. “The court may grant bail after a person is convicted,
pending sentencing or appeal, only as provided by statute enacted
by the general assembly . . . .” § 19(2.5)(a) (emphasis added). And
a court cannot exercise its discretion to grant bond in this
circumstance unless it finds that (1) the defendant “is unlikely to
flee and does not pose a danger to the safety of any person or the
community,” § 19(2.5)(b)(I); and (2) an appeal “is not frivolous or is
not pursued for the purpose of delay,” § 19(2.5)(b)(II).
¶ 29 This exception to the “shall be bailable” language means that
“[t]here is no constitutional right to bail after conviction in
Colorado.” People v. Roca, 17 P.3d 835, 836 (Colo. App. 2000). Or,
to put it another way, Colorado’s “constitution does not establish a
right to bail after trial; it merely allows the legislature to authorize
post-trial bail, and only for certain defendants . . . .” Hoover, 119
P.3d at 566.
11
¶ 30 In response to section 19(2.5)(a), the legislature has defined
the circumstances in which a person is eligible for bond after being
convicted. As is pertinent to our analysis, section 16-4-201.5(1)
and (2), C.R.S. 2016, say the same things as section 19(2.5)(a),
(b)(I), and (b)(II) of our constitution say. Indeed, as our supreme
court has recognized, since 1972
matters concerning the types and conditions of
both pretrial and post-conviction bail bonds,
the requirements for setting and modifying
those bonds, and the review of such settings or
modifications, as well as matters concerning
the forfeiture, termination, and enforcement of
bail bonds and exoneration from bond liability
have, within constitutional limitations, see
Colo. Const. art II, § 19, been governed by
statute in this jurisdiction.
People v. Jones, 2015 CO 20, ¶ 7.
¶ 31 (We note that there is at least one other statutory statement
about bond that applies to certain probation revocation hearings.
Section 16-11-205(3), C.R.S. 2016, states that, after a probation
officer arrests a probationer without a warrant, “[a]ny probationer
so arrested . . . may be admitted to bail pending [a] probation
revocation hearing.” (Emphasis added.) This statute does not apply
to this case because probationer was not “so arrested.” He was
12
instead arrested pursuant to a warrant. Such arrests are different
circumstances that are covered by a different subsection, section
16-11-205(6), which does not make any reference to bond.)
¶ 32 Third, there is no doubt that probationer stood convicted after
he pled guilty to a deferred judgment in the menacing case, see
Hafelfinger v. Dist. Court, 674 P.2d 375, 376 (Colo. 1984)(“In the
context of the bail bond statute, a plea of guilty, when accepted by
the court which grants a deferred judgment and sentence,
constitutes a conviction.”), and after he pled guilty in the criminal
impersonation case, see § 16-7-206(3), C.R.S. 2016 (“The
acceptance by the court of a plea of guilty . . . acts as a conviction
for the offense.”); Swift v. People, 174 Colo. 259, 263, 488 P.2d 80,
82 (1971)(noting that in its general, popular, and “frequently . . .
ordinary” sense, the word “conviction” means the establishment of
guilt by a trial verdict or a guilty plea before sentence or
judgment)(citation omitted).
¶ 33 Fourth, the revocation of probation or of a deferred judgment
“is not part of a criminal prosecution and constitutes only a
reconsideration of the original sentence.” People v. Preuss, 920 P.2d
859, 860 (Colo. App. 1995). The purpose of probation revocation
13
proceedings is not “to punish a defendant for a new crime.” Id. at
861. Instead, their purpose is to “ascertain an appropriate
sentence for an offense of which defendant has already been
convicted and for which probation was granted.” Id.
¶ 34 To put it another way, “the concern” in a probation revocation
hearing “is whether the alternatives to incarceration which have
been made available to a defendant remain viable for him.” People
ex rel. Gallagher v. Dist. Court, 196 Colo. 499, 502, 591 P.2d 1015,
1017 (1978). “[A] probation revocation order operates not as a
determination of guilt or innocence as to the question of whether
the defendant violated the terms of his probation, but primarily as a
reassessment of the correctness of the original sentence.” Id.;
accord People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008).
¶ 35 The same “concern” applies to the revocation of a deferred
judgment. “[I]n the imposition of a previously deferred judgment
and sentence, as in a probation revocation, the trial court need only
ascertain the appropriate sentence for an offense to which the
defendant has already pleaded guilty.” People v. Lopez, 97 P.3d
223, 225-26 (Colo. App. 2004).
14
¶ 36 Fifth, a probationer facing a revocation hearing “is not entitled
to claim the full range of constitutional guarantees available to one
who has not yet been convicted of a crime.” People v. Atencio, 186
Colo. 76, 78, 525 P.2d 461, 462 (1974); see also Morrissey v.
Brewer, 408 U.S. 471, 480 (1972)(“We begin with the proposition
that the revocation of parole is not part of a criminal prosecution
and thus the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations.”).
¶ 37 Indeed, there are “critical differences between criminal trials
and probation revocation hearings[.]” Atencio, 186 Colo. at 79, 525
P.2d at 462. The rights of “a probationer facing revocation” are
“‘significantly reduced’ when compared to a defendant facing
substantive criminal charges.” Finney v. People, 2014 CO 38, ¶ 27
(quoting Byrd v. People, 58 P.3d 50, 56 (Colo. 2002)). For example,
probationers do not have the right to a jury trial at a probation
revocation hearing or the right to plead not guilty by reason of
insanity. Id. They may not have the protection of the Fourth
Amendment’s exclusionary rule or the protections of the Miranda
rule, named for Miranda v. Arizona, 384 U.S. 471 (1966). Finney, at
¶ 27. And the prosecution can ask the court to use their invocation
15
of the Fifth Amendment against them if they rely on it to refuse to
answer questions. Id.
¶ 38 These same limitations apply to deferred judgment revocation
hearings. See § 18-1.3-102(2), C.R.S. 2016 (noting that a motion to
revoke a deferred judgment is subject to the “procedural safeguards
required in a revocation of probation hearing”). Indeed, Finney
concerned a revocation of a deferred judgment. See Finney,
¶¶ 22-24.
¶ 39 Sixth, courts in other jurisdictions have held that probationers
do not have a right to bond in probation revocation proceedings.
See In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970)(“[T]he Eighth
Amendment does not guarantee a right to bail pending revocation of
probation.”); Martin v. State, 517 P.2d 1389, 1398 (Alaska 1974)(A
probation revocation proceeding is not a criminal prosecution that
adjudicates guilt or innocence, so the Alaska Constitution did not
give a probationer the right to bail before a probation revocation
hearing.); Genung v. Nuckolls, 292 So. 2d 587, 588 (Fla. 1974)(“[A]
probationer . . . does not have a constitutional right to bail in
probation . . . revocation proceedings.”); State v. Burgins, 464
S.W.3d 298, 304 n.2 (Tenn. 2015)(“A defendant who has been
16
convicted of a crime does not have a constitutional right to bail.
The trial court, however, in its discretion and pursuant to
applicable law, may grant bail to a defendant in a probation
revocation proceeding.”); Ex parte Ainsworth, 532 S.W.2d 640, 641
(Tex. Crim. App. 1976)(“[A] probationer is not entitled to bail as a
matter of right pending a hearing on the State’s motion to revoke
probation, but . . . a person so situated may be admitted to bail by
the court in the exercise of its discretion.”).
¶ 40 Applying these principles to this case, we conclude that
probationer did not have a right to bond in the menacing case and
the criminal impersonation case because
he had been convicted in those cases, see § 16-7-206(3);
Hafelfinger, 674 P.2d at 376; Swift, 174 Colo. at 263, 488
P.2d at 82;
the probation revocation and the deferred judgment
revocation motions that he faced were designed (1) to
“ascertain an appropriate sentence” in both cases,
Preuss, 920 P.2d at 861; see also Lopez, 97 P.3d at
225-26; (2) to decide whether “alternatives to
incarceration . . . remain viable,” Gallagher, 196 Colo. at
17
502, 591 P.2d at 1017; and (3) to “reassess[] . . . the
correctness of the original sentence,” id.;
the probation and deferred judgment revocation motions
were not (1) “part of a criminal prosecution,” Preuss, 920
P.2d at 860; (2) designed to punish probationer for a new
crime, see id.; and (3) designed to “determin[e] . . . guilt
or innocence as to the question of whether the defendant
violated the terms of his probation,” Gallagher, 196 Colo.
at 502, 591 P.2d at 1017; and
(1) there are “critical differences between criminal trials
and probation revocation hearings,” Atencio, 186 Colo. at
79, 525 P.2d at 462; (2) probationer was not entitled to
the full panoply of constitutional protections afforded to
people who have not been convicted of crimes, see id.;
and indeed (3) his rights were “‘significantly reduced’
when compared to a defendant facing substantive
criminal charges,” Finney, ¶ 27 (quoting Byrd, 58 P.3d at
56).
¶ 41 We next conclude that section 19(2.5)(a) and section
16-4-201.5(1) apply to this case because probationer had been
18
“convicted” and he was “pending sentencing.” See Gallagher, 196
Colo. at 502, 591 P.2d at 1017; Lopez, 97 P.3d at 225-26; Preuss,
920 P.2d at 860. This means that the revocation court had
discretion to grant probationer’s request for bond because both
section 19(2.5)(a) and section 16-4-201.5(1) state that “[t]he court
may grant bail after a person is convicted, pending sentencing . . . .”
But the revocation court’s discretion was qualified by section
19(2.5)(b)(I) and section 16-4-201.5(2)(a). Both provisions state that
a court “shall not set bail that [they] . . . otherwise allow[]” unless
the court also finds that a probationer “is unlikely to flee and does
not pose a danger to the safety of any person or the
community . . . .” § 19(2.5)(b)(I); § 16-4-201.5(2)(a).
¶ 42 The revocation court discussed whether probationer
represented a danger to the safety of any person or to the
community. Indeed, the record indicates that the court found that
he posed an excessive risk to the community’s safety.
¶ 43 We further conclude that the record supports this finding. For
example, the court found probable cause to believe that probationer
had committed, among other crimes, felony murder and robbery,
19
and the prosecution quoted probationer as saying that he and his
accomplice had been robbing people for marijuana.
¶ 44 We therefore finally conclude that the revocation court did not
abuse its discretion when it denied probationer’s request for bond
in the menacing case and the criminal impersonation case. The
court’s decision was not manifestly arbitrary, unreasonable, or
unfair, and it did not misconstrue or misapply the law. See People
v. Fallis, 2015 COA 75, ¶ 4 (evaluating a defendant’s petition to
review bond conditions under section 16-4-204 for an abuse of
discretion).
¶ 45 We address one final point, which is whether probationer was
entitled to bond because the motions to revoke his probation and
his deferred judgment were based on a new crime, i.e., the murder
case. But, as we have demonstrated above, the reason for the
revocations does not matter because the revocation court has to
“reassess[] . . . the correctness of the original sentence.” The court
will not “determin[e] . . . guilt or innocence as to the question of
whether [probationer] violated the terms of his probation.”
Gallagher, 196 Colo. at 502, 591 P.2d at 1017.
20
¶ 46 There is no principled way to distinguish between giving
probationers a right to bond if revocation motions are based on new
offenses and giving revocation courts discretion to deny them bond
if revocation motions are based on technical violations. As we
recognized in the previous paragraph, the issue in probation
revocation hearings focuses on whether the original sentence is still
correct, not on issues of guilt or innocence. See id.
¶ 47 We understand that, in Finney, our supreme court stated that
“a revocation defendant facing a new substantive criminal offense is
entitled to a penalty advisement under section 16-7-206 because
the defendant is being ‘charged with an offense.’” Finney, ¶ 21. We
see this as no more than a recognition that probationers in such
circumstances should be advised of the consequences of their pleas.
Finney did not discuss the issue of bond in probation and deferred
judgment revocation proceedings, so it did not have an opportunity
to address the applicability of section 19(2.5)(a) and section 16-4-
201.5.
¶ 48 The petition filed under section 16-4-204 is dismissed.
JUDGE HAWTHORNE concurs.
JUDGE HARRIS dissents.
21
JUDGE HARRIS, dissenting.
¶ 49 A defendant is eligible for bond under one of two statutes:
section 16-4-102, C.R.S. 2016 — which governs bond “before
conviction” — or section 16-4-201, C.R.S. 2016 — which governs
bond “after conviction.” The majority announces a new rule that a
defendant awaiting adjudication of a petition to revoke probation or
a deferred judgment is subject to section 16-4-201 (bond “after
conviction”) because he has been convicted of the underlying
offense for which he received a sentence of probation or a deferred
judgment. That argument may have some appeal at first blush, but
it is soundly refuted by the relevant statutes. Because we are
bound by the applicable statutory text, which makes clear that a
probationer is entitled to bond in accordance with section 16-4-102,
I respectfully dissent.
¶ 50 Defendant, Trevelle Keshawn Johnson, pleaded guilty to felony
menacing, a class 5 felony, and criminal impersonation, a class 6
felony, and the court entered a deferred judgment in the former
case and imposed a sentence of probation in the latter. While he
was on probation, Johnson was charged with felony murder and
robbery. His probation officer filed a petition to revoke Johnson’s
22
probation and deferred judgment based on the new criminal
charges.
¶ 51 After a hearing in the murder case, the court ordered Johnson
released on a $75,000 bond. But when Johnson requested a bond
pending adjudication of the probation violations (the same conduct
for which he had just been granted bond), the court deemed him
ineligible for pre-hearing release because, the court reasoned, he
was seeking postconviction bond.
¶ 52 The majority embraces this anomalous result by (1) focusing
on the underlying convictions, rather than the unadjudicated
allegations in the revocation petition (which provide the basis for
keeping Johnson in jail); and (2) disregarding language in various
statutes that directs the trial court to set bond for probationers in
accordance with the pretrial bond statute.
I. Johnson is Not Seeking Bail After Conviction Under Section
16-4-201
¶ 53 According to the majority, Johnson’s request for bond is
governed by section 16-4-201 (entitled “[b]ail after conviction”)
because he has been convicted of menacing and criminal
impersonation. To be sure, Johnson’s guilty pleas in those two
23
cases resulted in “convictions,” which is all the cases cited by the
majority say. See Hafelfinger v. Dist. Court, 674 P.2d 375, 376
(Colo. 1984) (statute prohibiting personal recognizance bond if
defendant has a prior felony conviction applied to probationer, who
sought to be released on a personal recognizance bond pending his
revocation hearing, because his guilty plea in the underlying offense
counted as a “conviction”); Swift v. People, 174 Colo. 259, 263, 488
P.2d 80, 82 (1971) (concluding that, in its technical sense,
“conviction” means adjudication of guilt and sentencing, but in its
ordinary legal sense, the word “conviction” means establishment of
guilt, including by guilty plea, prior to and independent of judgment
and sentence).
¶ 54 But from that unremarkable premise, the majority reaches the
troubling conclusion that a probationer facing revocation
proceedings is situated identically to a defendant seeking
postconviction bond because, in both instances, all that is left for
the court to do is to “ascertain an appropriate sentence.”
¶ 55 That conclusion disregards the fact that, as a probationer,
Johnson has a conditional liberty interest, and he cannot be
deprived of that interest without due process. People v. Scura, 72
24
P.3d 431, 433 (Colo. App. 2003) (“These constitutional safeguards
are required because a revocation may cause probationers or
parolees to be placed in a more restrictive confinement, thereby
impinging upon a liberty interest. And a defendant at liberty, even
conditionally, may not be deprived of that liberty without due
process.”); see also People v. Whitlock, 2014 COA 162, ¶ 33 (A
person granted probation “has attained a ‘liberty interest,’ which
may not be taken away from him in the absence of due process.”).
¶ 56 Thus, contrary to the majority’s suggestion, the purpose of
revocation proceedings is not simply for the court to reimpose a
sentence. Before the court may reconsider the initial sentence to
probation, it must first find that the government has met its burden
to prove that the probationer committed the violations alleged in the
petition. Only then may the court modify the sentence and impose
a more restrictive punishment. See § 16-11-206(5), C.R.S. 2016 (“If
the court determines that a violation of a condition of probation has
been committed, it shall, within seven days after the said hearing,
either revoke or continue the probation.”) (emphasis added); see
also People v. Ruch, 2013 COA 96, ¶ 32 (“Revocation of a
defendant’s probation involves a two-step process. First, the trial
25
court must determine whether the defendant violated the conditions
of his or her probation. . . . Second, if the trial court determines
that the defendant violated the terms of probation, it then has the
discretion to revoke probation based on the violation.”), rev’d on
other grounds, 2016 CO 35.
¶ 57 In this way, probationers are unlike postconviction
defendants. With respect to the latter category, the government has
carried its burden to prove the conduct that allows the court to
curtail the defendant’s liberty. The next step is sentencing. But
with respect to pre-revocation hearing probationers, the government
has merely alleged the misconduct, and therefore the defendant has
not forfeited his liberty interest. The next step is a hearing at which
the government must prove the misconduct.
¶ 58 Neither People v. Preuss, 920 P.2d 859 (Colo. App. 1995), nor
Gallagher v. District Court, 196 Colo. 499, 591 P.2d 1015 (1978), the
cases relied on by the majority, calls this critical distinction into
question.
¶ 59 Preuss concerned the question of whether a sentence imposed
on revocation of probation may, consistent with the Double
Jeopardy Clause, be ordered to run consecutively to the sentence
26
imposed for the new criminal conduct on which the revocation was
based. 920 P.2d at 860. A division of this court answered that
question in the affirmative, reasoning that a probation revocation
proceeding is not a separate criminal prosecution for purposes of
double jeopardy analysis. Rather, any penalty imposed in the initial
case amounts to a resentencing. Id. at 860-61.
¶ 60 In Gallagher, the defendant attempted to enter a not guilty by
reason of insanity plea at his revocation hearing. 196 Colo. at 501,
591 P.2d at 1016. The supreme court determined that the plea was
not available under the simplified revocation procedures because
the purposes of a full criminal trial and a probation revocation
hearing were different. At a revocation hearing, once a violation is
established, the court’s focus is not on guilt or innocence, but on
whether probation is still a viable alternative. Id. at 502, 591 P.2d
at 1016.
¶ 61 I accept the conclusions reached in both cases, but neither
decision supports the majority’s view that revocation proceedings
concern only re-evaluation of the original sentence, as though
resentencing is an exercise independent of the existence of a
violation of probation. As the supreme court has made clear, “[t]he
27
issues for determination in a probation revocation proceeding are
whether the defendant has violated a valid condition of his or her
probation and, if so, what action is appropriate in light of the
violation.” People v. Ickler, 877 P.2d 863, 866 (Colo. 1994)
(emphasis added).
¶ 62 Thus, in my view, the majority is focusing on the wrong
“convictions.” Undeniably, Johnson was convicted of menacing and
criminal impersonation. But what matters is whether he has been
“convicted” of the violations — in other words, whether the
misconduct that might result in a further penalty has been
adjudicated and resolved, leaving nothing more for the court to do
except impose sentence. If not, then Johnson is not in a
postconviction posture for purposes of the bond statute.
¶ 63 The language of the statute bears this out. Section
16-4-201(1)(a) permits a defendant to be released on bail after a
conviction and “pending determination of a motion for a new trial or
motion in arrest of judgment or during any stay of execution or
pending review by an appellate court.” Under section
16-4-201.5(2)(b), C.R.S. 2016, a defendant cannot be released on
postconviction bond unless the court specifically finds that his
28
“appeal is not frivolous or is not pursued for the purpose of delay.”
Section 16-4-202, C.R.S. 2016, sets forth the factors a court should
consider in determining whether to grant an “appeal bond,”
including the defendant’s likelihood of success on appeal, see
§ 16-4-202(1)(i), and section 16-4-203(1), C.R.S. 2016, instructs
that, after considering those factors, the court may either “[d]eny
the defendant appeal bond” or “[g]rant the defendant appeal bond.”
Finally, section 16-4-204, C.R.S. 2016, permits appellate review of
any order setting terms and conditions of bond or “appeal bond,”
pursuant to “section 16-4-109 or 16-4-201.”
¶ 64 Under the plain language of the statute, “bail after conviction”
means bail after adjudication of the merits, pending an appeal. See
People v. Jones, 2015 CO 20, ¶ 15 (Section 16-4-201 “authorizes
the continuation of a defendant’s pretrial bond or his release on
another statutorily approved type of bond pending the
determination of a motion for a new trial or in arrest of judgment, or
during any stay of execution, or pending review by an appellate
court.”). Section 16-4-201 cannot apply to Johnson because he has
not resolved the allegations for which he is being held in jail, and he
did not seek bail pending determination of a new trial (or hearing)
29
or during a stay of execution, or pending review by an appellate
court. At this stage of the proceedings — before the revocation
hearing — Johnson has nothing to appeal. How, then, could he be
granted an appeal bond?
¶ 65 This question raises a related issue. The majority says that
the “presumption of innocence does not apply” here because
Johnson is no longer presumed innocent of the underlying offenses.
True, but beside the point. Under Colorado law, at the revocation
hearing, the prosecution bears the burden of proving new criminal
conduct beyond a reasonable doubt and all other alleged violations
by a preponderance of the evidence. See § 16-11-206(3). The
presumption of innocence and the prosecution’s burden are
“logically similar,” see Taylor v. Kentucky, 436 U.S. 478, 484 (1978),
meaning that where the prosecution has the burden of proof, the
presumption of innocence is necessarily triggered. Johnson,
therefore, is presumed innocent of the felony murder and robbery
charges, which form the basis of the petition to revoke probation
and the deferred judgment. The presumption is overcome only after
the prosecution proves the violation conduct or the probationer
admits to it.
30
¶ 66 So, if the “roots of the ‘shall be bailable’ language are found in
the presumption of innocence,” as the majority posits, a probationer
is “bailable” under sections 16-4-101 and -102, C.R.S. 2016, until
the presumption is overcome. At that point, he is no longer
presumed innocent of the violation conduct and joins the ranks of
“postconviction” defendants who must seek an appeal bond under
section 16-4-201. Johnson, then, is not in a “postconviction”
posture until after the revocation hearing.
II. Johnson is Entitled to Bail Before Conviction” Under Section
16-4-102
¶ 67 In determining that Johnson’s request for bond is governed by
16-4-201, the majority shrugs off statutory provisions that confirm
Johnson’s right to bail under section 16-4-102. Indeed, the
majority’s analysis proceeds as though the question is entirely open
when, in fact, two statutes governing revocation of probation
provide a definitive answer.
¶ 68 Under section 16-11-205, C.R.S. 2016, probation revocation
proceedings may be initiated by either the arrest of the probationer,
see § 16-11-205(1), (6), or by the issuance of a summons, see
§ 16-11-205(2); see also People v. Galvin, 961 P.2d 1137, 1138-39
31
(Colo. App. 1997) (explaining different ways revocation proceedings
may be initiated). The arrest may be with a warrant,
§ 16-11-205(6), or without one, § 16-11-205(1)(b)-(f).
¶ 69 Section 16-11-205(3) instructs that, if the probation officer
makes a warrantless arrest, “the probationer shall be taken without
unnecessary delay before the nearest available judge,” and that
“[a]ny probationer so arrested shall have all of the rights afforded by
the provisions of this code to persons incarcerated before trial of
criminal charges and may be admitted to bail pending probation
revocation hearing.”
¶ 70 The majority dismisses this provision in a parenthetical,
noting that Johnson was arrested pursuant to a warrant, a
circumstance covered by section 16-11-205(6). That provision
describes the circumstances under which a warrant will issue and
how it may be executed, but, as the majority observes, “does not
make any reference to bond.”
¶ 71 So, by the majority’s reading, a probationer arrested without a
warrant must be treated as a pretrial detainee, and subject to
section 16-4-102, while a probationer otherwise identically situated,
but arrested pursuant to a warrant, is considered a “postconviction”
32
detainee and subject to section 16-4-201. The majority does not
explain, and I cannot imagine, why the statute would treat those
two categories of probationers differently for purposes of bond
eligibility. As a fundamental matter of statutory construction, we
must avoid an interpretation of a statute that leads to an illogical or
absurd result, see, e.g., Stanley v. Dist. Attorney, 2017 COA 33,
¶ 10, or that raises equal protection concerns, see Juhl v. People,
172 P.3d 896, 901 (Colo. 2007).
¶ 72 But a more logical and harmonious reading of those provisions
is possible. See People v. Dist. Court, 713 P.2d 918, 921 (Colo.
1986) (“Where possible, the statute should be interpreted so as to
give consistent, harmonious, and sensible effect to all its parts. If
separate clauses within a statute may be reconciled by one
construction but would conflict under a different interpretation, the
construction which results in harmony rather than inconsistency
should be adopted.”) (citations omitted). In my view, section 16-11-
205 makes clear that a probationer is bailable pending his
revocation hearing. Either he is summoned to a hearing, in which
case the issue of bond is moot, or he is arrested and must be
treated as a pretrial detainee for bond purposes. § 16-11-205(3).
33
The reason section 16-11-205(6), which addresses issuance of a
warrant, does not reiterate section 16-11-205(3)’s directive about
bond is because an arrest warrant generally sets forth a bond
amount.
¶ 73 Under Crim. P. 4(b)(1)(IV), a warrant must “[h]ave endorsed
upon it the amount of bail if the offense is bailable.” See also Crim.
P. 9(b)(1) (warrant issued upon indictment shall conform to
requirements of Rule 4(b)(1)). I acknowledge that Rules 4 and 9
apply to the initiation of new criminal cases, but there is no
indication in any rule or statute that the form of a warrant issued to
initiate a revocation proceeding is subject to a different rule.
¶ 74 Thus, when a probationer is arrested on a warrant, he will
generally be released on bond pursuant to the terms of the warrant
itself. To the extent he is detained (either because the bond amount
is not endorsed on the warrant or the arrest was made without a
warrant), the probationer shall be treated like a pretrial detainee
and must be brought in front of a judge to be released on bail under
terms and conditions set by the court.
¶ 75 The majority reminds us that a revocation proceeding differs
from a full-fledged trial, and that some states have held that a
34
probationer does not have a constitutional right to bail. I assume
these pronouncements are offered for the purpose of supporting its
position that probationers should not be treated like pretrial
detainees. But in light of the statute’s directive to the contrary, the
pronouncements are not compelling.
¶ 76 I believe that section 16-11-205, on its own, establishes that a
probationer is entitled to bond “before conviction” under section 16-
4-102. Still, to the extent section 16-11-205 is less than definitive,
any ambiguity is cleared up by section 16-11-206.
¶ 77 That provision provides:
At the first appearance of the probationer in
court or at the commencement of the hearing,
whichever is first in time, the court shall
advise the probationer as provided in section
16-7-207 insofar as such matters are
applicable; except that there is no right to a
trial by jury in proceedings for revocation of
probation.
§ 16-11-206(1), as amended by Ch. 264, sec. 34, § 16-11-206, 2017
Colo. Sess. Laws 1392; see also § 18-1.3-102(2), C.R.S. 2016 (In a
proceeding to revoke a deferred judgment, “the procedural
safeguards required in a revocation of probation hearing shall
apply.”).
35
¶ 78 Under section 16-7-207, C.R.S. 2016, the court must “inform
the defendant and make certain that the defendant understands
[that] . . . [t]he defendant has a right to bail, if the offense is
bailable, and the amount of bail that has been set by the court.”
§ 16-7-207(1)(e).
¶ 79 True, 16-11-206(1) contemplates that certain “matters”
covered in section 16-7-207 may not be “applicable” to revocation
hearings, but the right to bail is not one of them. Section 16-7-207
consists of two distinct subsections. All of the rights delineated in
subsection (1), with the exception of the right to a jury trial, appear
to be applicable to revocation proceedings. See § 16-7-207(1)(a)-(g)
(the court must inform the defendant that he has the right to
remain silent and the right to be represented by counsel, that any
plea must be voluntary, and of the charges against him). By
singling out the right to a jury trial as the “matter” that does not
apply to revocation hearings, see § 16-11-206(1) (“except that there
is no right to a trial by jury in proceedings for revocation of
probation”), as amended by 2017 Colo. Sess. Laws at 1392, the
legislature has signaled that the other rights do apply. See Cain v.
People, 2014 CO 49, ¶ 13 (statute’s inclusion of a single exception
36
demonstrates General Assembly’s intent to exclude other potential
exceptions).
¶ 80 Pursuant to the unambiguous language of sections 16-11-206
and 16-7-207, a probationer “has a right to bail, if the offense is
bailable.” All offenses are bailable, with the exception of a handful
of offenses delineated in section 16-4-101. See Jones, ¶ 7 (Sections
16-4-101 and 102 “affirm that all persons, with certain narrowly
defined exceptions, are bailable.”).
¶ 81 Johnson is being detained pursuant to warrants issued in his
class 5 felony menacing case and his class 6 felony criminal
impersonation case. There does not appear to be any dispute that
these offenses are “bailable” under section 16-4-101. Thus, he is
eligible for bond under section 16-4-102.
¶ 82 In her response to Johnson’s petition for review, the Attorney
General argues not that Johnson is subject to section 16-4-201
(bail after conviction), but that the district court had discretion to
deny Johnson bond under section 16-4-103(5), C.R.S. 2016,
notwithstanding the fact that Johnson’s underlying offenses were
“bailable.” I disagree.
37
¶ 83 Section 16-4-103, entitled “Setting and selection type of bond
— criteria,” lists factors the court may consider in “making a
determination of the type of bond and conditions of release.” See
§ 16-4-103(5). According to the Attorney General, the court could
properly rely on these factors to deny bail. But subsection (1) of
section 16-4-103 makes clear that the court must set a bond if the
person is bailable. See § 16-4-103(1) (“[T]he court . . . shall
determine the type of bond and conditions of release unless the
person is subject to the provisions of section 16-4-101.”); see also
Jones, ¶ 7 (“[A]s long as the offense for which [a person] was
arrested is bailable, [he] “shall have bond and conditions of release
set by the court.”). Thereafter, the court may look to the other
provisions of section 16-4-103 in determining appropriate terms
and conditions of bond. The court has discretion to fashion the
conditions of release, but not to deny bail in the first instance.
¶ 84 Because I conclude that the court erred in refusing to set a
bond in this case, I would remand with instructions to the court to
release Johnson on bail under terms and conditions the court
deems appropriate.
38
People v. Johnson
Combined Opinion