dissenting:
The issue in this case is whether the statutory scheme for community correctional placements creates a justifiable expectation, amounting to a constitutionally protected liberty interest, that an offender placed in a community correctional facility or program will not be resentenced to the Department of Corrections, and consequently subjected to a substantially more severe liberty deprivation, for allegedly violating the terms of the community corrections placement unless the offender is first accorded an evidentiary hearing on whether the alleged violation actually occurred. Because I conclude that the statutory scheme does create a justifiable expectation on the part of an offender placed in community corrections that he will be accorded an evidentiary hearing on the alleged violation prior to resentencing, I dissent.
I.
In 1977 the General Assembly enacted a comprehensive statutory scheme for placing offenders in community correctional facilities or programs. Ch. 223, section 10, §§ 17-27-101 to 112, 1977 Colo.Sess. Laws 901, 941-47. An examination of the structure and text of the statutory scheme shows that the obvious purpose of placing an offender' in a community correctional facility or program is “ ‘to limit confinement to the extent necessary to assure reasonable supervision while permitting a gradual reintegration of the offender into *1024the society to which the offender would eventually return.’ ” Wilson v. People, 747 P.2d 638, 640 (Colo.1988) (quoting ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures, Standard 18-2.4, Commentary at 102 (1986 Supp.)).
A community correctional facility or program is defined as follows:
[A] community-based or community-oriented facility or program: Which is operated either by a unit of local government, the department [of corrections], a private nonprofit agency or organization, or any corporation, association, or labor organization; which may provide residential accommodations for offenders; and which provides programs and services to aid offenders in obtaining and holding regular employment, in enrolling in and maintaining academic courses, in participating in vocational training programs, in utilizing the resources of the community in meeting their personal and family needs and providing treatment, and in participating in whatever specialized programs exist within the community.
§ 17-27-102(1), 8A C.R.S. (1986). Community correctional facilities or programs use a variety of different approaches, including halfway houses and work release, in addressing the educational, vocational, and treatment needs of offenders placed in the facility or program by the sentencing court.
The statutory scheme authorizes the governing board of any unit of local government to establish a corrections board. § 17-27-103(2), 8A C.R.S. (1986). The corrections board is authorized to promulgate and enforce standards of operation for any community correctional facility or program, to develop procedures for screening eligible offenders, and to accept or reject the placement of any offender in a particular correctional facility or program. § 17-27-103(3), 8A C.R.S. (1990 Supp.). Although a sentencing court is expressly authorized to sentence a nonviolent misdemeanor offender to any nonresidential community correctional facility or program and to sentence a nonviolent felony offender to either a residential or nonresidential facility or program, § 17-27-105(l)(a), 8A C.R.S. (1986), a sentence to a community correctional facility or program is not final until the corrections board of the local governmental unit accepts the offender for placement in the facility or program, § 17-27-103(3), 8A C.R.S. (1990 Supp.). The General Assembly, in enacting this statutory scheme, has provided a sentencing court “with a broader range of alternatives and with a sentencing medium that is more severe than probation, but not as harsh as incarceration.” People ex rel. VanMeveren v. District Court, 195 Colo. 34, 36, 575 P.2d 4, 6 (1978).
Once an offender has been placed in a community correctional facility or program and has been accepted by the corrections board, the offender is required to abide by all rules and conditions of the facility or program in which he has been placed. If the administrator or other supervising authority of the facility or program has cause to believe that the offender has violated “any rule or condition of his placement,” the administrator or supervising authority is required to “certify to the appropriate judicial ... authority the facts which are the basis for his belief” and to order the transfer of the offender to the county jail where the offender shall be confined “pending a determination by the appropriate court ... as to whether or not the offender shall remain in community corrections.” § 17-27-114(1), 8A C.R.S. (1986).
Prior to 1989, section 17-27-114(2), 8A C.R.S. (1986), stated as follows:
If the sentencing court determines that the offender shall not remain in community corrections, the court is authorized to make appropriate orders for the transfer of such offender from the county jail to a correctional facility and to resen-tence such offender and impose any sentence which might originally have been imposed without increasing the length of the original sentence.
In Wilson, 747 P.2d 638, we held that section 17-27-114 implicitly required an evi-dentiary hearing on an alleged violation. In reaching this conclusion, we reasoned as follows:
*1025If the administrator could simply remove the offender from the program without establishing that there had been a violation, there would be no need to provide the sentencing court with the underlying facts. The statute further requires the court to make a determination “whether or not the offender shall remain in community corrections.” This language clearly contemplates that the court will inquire into the nature of the alleged violation of a rule or condition of the offender’s placement to assist it in making the requisite determination. In fact, the statute provides no other explicit criteria by which the sentencing court is to be guided in making its determination.
The “determination” required by the statute is similar to that required by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972), in connection with revocation of parole:
The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?
Similarly, the language of section 17-27-114 seems to require consideration of both questions. The requirement for certification of facts to the sentencing court implies that the court will make a factual determination whether a rule or condition of the offender’s placement has been violated. Once the factual issue has been addressed, the statute also expressly requires the court to determine whether the offender should remain in a community corrections facility or should be resentenced. Although pursuant to section 17-27-103(3), the board of the corrections facility where the offender was originally placed retains the discretion to reject the offender regardless of the outcome of the hearing, if the court determines after holding a hearing that the offender should be allowed to remain in community corrections, it can then determine whether other facilities will accept the offender.
747 P.2d at 642.
Following this court’s decision in Wilson, the General Assembly amended both sections 17-27-103(3) and 17-27-114(2) by the addition of the following sentence: “The sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing.” Ch. 149, sections 7 & 8, §§ 17-27-103 & 17-27-114, 1989 Colo. Sess. Laws 862, 864. The critical question in this case, therefore, is whether the 1989 amendment to the statutory scheme divests an offender placed in community corrections of a justifiable expectation that he will be accorded an evidentiary hearing on any alleged violation of a rule or condition of his placement prior to being resentenced to a substantially more restrictive correctional facility under the control of the Department of Corrections.
II.
I acknowledge that the Due Process Clause of the Fourteenth Amendment does not require an evidentiary hearing in connection with the transfer of a state prisoner from one correctional facility to another, even though the transfer might be based on the prisoner’s misbehavior and thus be disciplinary or punitive in nature, so long as state law does not create a justifiable expectation on the part of the prisoner “that he will not be transferred except for misbehavior or upon the occurrence of other specified events.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). A justifiable expectation that a sentenced defendant will not be transferred except for misbehavior, however, may arise not only by the express terms of a statutory scheme but also by implication. For example, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Iowa parole officials were given unfettered discretion to revoke a prisoner’s parole at any time for any reason. The United States Supreme Court had no trouble in determining that the pa*1026rolee had a constitutionally protected interest, whether that interest be deemed a “right” or a “privilege,” in continued liberty in the absence of just cause for revocation:
The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly’ subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.
408 U.S. at 482, 92 S.Ct. at 2600-01 (footnotes omitted).
Although a defendant placed in community corrections has a range of liberty interests which lie somewhere between parole and a direct sentence to a correctional facility under the control of the Department of Corrections, the defendant’s expectation to remain in the community correctional facility is different only in degree, and not in kind, from the expectation of a parolee to remain at liberty. The purpose of the community corrections placement is to reintegrate the defendant into society. Colorado’s statutory scheme, for example, makes clear that the community corrections offender can work, enroll in and maintain academic courses, participate in vocational training programs, and utilize community resources in meeting personal and family needs, and seek out treatment in specialized community programs in the interest of the offender’s rehabilitation. § 17-27-102(1), 8A C.R.S. (1986). Like the parolee, the defendant placed in community corrections enjoys “many of the core values of unqualified liberty” and the termination of that liberty interest inflicts a “grievous loss” on the defendant and “often on others.” Morrissey, 408 U.S. at 482, 92 S.Ct. at 2601. The nature and extent of the community correction offender’s liberty, therefore, is qualitatively different from that of a person incarcerated in a maximum or medium correctional facility under the control of the Department of Corrections. In point of fact, the revocation of the community correction placement results in a far greater loss to the offender than that endured by an incarcerated offender transferred from one correctional facility to another. See Durso v. Rowe, 579 F.2d 1365, 1371 (7th Cir.1978) (failure to accord prisoner a meaningful hearing prior to revoking prisoner’s work-release program for allegedly violating rules of program violates due process of law).
To be sure, a community corrections offender, like a parolee, is required to abide by various rules and conditions in order to remain in the facility or program. In light of this requirement, the only sense to be made of section 17-27-114(1), which authorizes the supervising authority of the community corrections facility or program to certify to the court the facts supporting the offender’s alleged violation of any rule or condition of his placement and to authorize the transfer of the offender to the county jail pending a determination by the court “as to whether or not the offender shall remain in community corrections,” is to implicitly assure the community corrections offender that his placement will not be revoked and he will not be resentenced to a more restrictive correctional facility in the absence of an evidentiary hearing and judicial determination that he violated the terms of the community corrections placement. The community corrections offender’s interest in community corrections placement, in my view, is of sufficient magnitude to require a due process hearing before resentencing.
*1027III.
In denying the community corrections offender the right to an evidentiary hearing prior to resentencing, the majority emphasizes the 1989 amendment to sections 17-27-103(3) and 17-27-114(2), which states that “[t]he sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing.” The majority’s reasoning appears to follow the “bitter-sweet” analysis articulated by Justice Rehnquist in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In that case Justice Rehnquist, joined by Chief Justice Burger and Justice Stewart, reasoned that “where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet.” Id. at 153— 54, 94 S.Ct. at 1644. This view, however, was explicitly rejected by the Supreme Court in Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1262-63, 63 L.Ed.2d 552 (1980), where the Court noted that “minimum [procedural] requirements [are] a matter of federal law” and that “they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” The Court reiterated the point in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), when, speaking of a property interest, it stated:
[I]t is settled that the “bitter with the sweet” approach misconceives the constitutional guarantee. If a clearer holding is needed, we provide it today. The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” (citations omitted).
If the General Assembly may not authorize the deprivation of a property interest, once conferred, without procedural safeguards, clearly it cannot deprive a defendant of a more important liberty interest, once conferred, without an appropriate due process hearing.
Given the liberty interest at stake in this case, I would construe the 1989 statutory amendment in accordance with the basic presumption that the General Assembly intends to comply with the federal and state constitutions in enacting a statute. § 2-4-201(1), IB C.R.S. (1980). I thus would limit the sentencing court’s authority to forego an evidentiary hearing to those situations where the offender is placed in community corrections but the program or facility, due to unforeseen circumstances other than the offender’s alleged misconduct, cannot adequately house the offender or place him in an effective rehabilitation program. Where, as here, the only basis for resen-tencing the offender is his alleged violation of a rule or condition of placement in the community corrections facility, due process of law mandates that the offender be accorded an evidentiary hearing prior to being subjected to a substantial deprivation of his liberty resulting from a resentencing to a correctional facility under the control of the Department of Corrections. I accordingly dissent.
I am authorized to say that Justice ERICKSON and Justice LOHR join in this dissent.