Colorado Sentencing Law – Prison Then Probation Decision Ends “Mixed” Sentences
By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – A Massively Important Decision for Colorado Criminal Law
In late 2019 the Colorado Supreme Court unanimously decided Allman v People. The holding of the case was simple – “mixed sentences,”– sentences in the same case that imposed prison followed by probation, were illegal both prospectively, and retroactively.
The Alllman case had the impact of compelling hundreds of defendants to make critically important tactical decisions based on the creation of a new and completely unforeseen opportunity to force prosecutors to essentially return to the table to renegotiate formerly agreed-upon plea agreements.
It is a well-accepted fact that approximately 95% of all Colorado criminal cases are settled with a plea bargain. Since Allman was decided, dozens of plea bargain agreements have been restructured. The “reformation” of these cases has been as complex and as varied as the facts of each case and the skills of the lawyers involved.
The Facts of Allman – Jury Verdict Cases
In 2014, a Boulder County jury found Frederick Allman guilty of multiple counts of felony theft and forgery (of an at-risk (elderly) victim). Following the verdict, the trial judge sentenced Allman to 15 years in prison followed by a 10-year probation term. The probation term ran concurrent to Allman’s 5-year term of parole – known as a 5 year “tail” in the criminal justice system, but consecutive to his prison term.
In the Allman case, as is true in many high-value theft (economic crime) cases involving the repayment of restitution, the reasoning behind the Judge’s decision to impose a lengthy probation term that ran consecutively to the prison sentence was to allow more time to pay back the stolen money.
While Allman involved a guilty verdict following a trial, and not a case settled by a plea agreement, the same reasoning has applied to plea-bargained cases as further explained below.
The Colorado Supreme Court acknowledged the policy and reasoning the use of consecutive probation sentences following prison in the following passage from the Allman decision:
While we understand the court’s desire to have Allman supervised for an extended period of time to ensure he pays his restitution, the sentencing statutes simply do not provide for this.
The legislature has already provided methods for victims to receive their restitution. See, 16-18.5-107, C.R.S. (2019) (providing for victims to pursue collections for restitution payments).
The Colorado Supreme Court’s Reasoning in Allman
FULL DECISION LINK to the Allman Decision.
While the holding of the Allman case had a watershed effect on Colorado law – a defendant convicted of multiple offenses in the same case may not be sentenced to imprisonment for certain offenses and probation for others.
Understanding the reasoning underlying the Allman decision is important to all who may face the aftermath of this Colorado case.
Sentencing is Purely a Creature of Statute
Under Colorado law, the possibilities for sentencing for a conviction of a criminal offense are prescribed by the state legislature. Colorado judges may only impose a sentence that is lawful – that means a sentence is carefully limited by statutes enacted by the Colorado State Legislature.
The sentencing authority of Colorado judges is not without limits.
Put a little differently, the decision to perhaps “creatively” sentence a person lawfully convicted is not based on some sort of broad inherent power of the judge to decide that sentence. Colorado judges – can operate within the judicial branch of government under the authority specifically granted or withheld by the Colorado State Legislature – the legislative branch of government.
The Source of a Colorado Judge’s Authority to Grant Probation -18-1.3-203
The law giving a Colorado judge the authority to grant or deny probation is found in Colorado Revised Statute 18-1.3-203.
That law, 18-1.3-203, is silent as to the propriety of sentencing a defendant to both imprisonment and probation in a case involving multiple convictions.
The Allman court asked this question in their decision:
Whether in enacting 18-1.3-203, the Colorado state legislature intended to allow the kind of “mixed” sentencing that had been the practice in Colorado courtrooms for decades.
The Court answered: “it did not.”
A Colorado judge has wide discretion to grant a defendant probation:
“unless having regard to the nature and circumstances of the offense and to the history and character of the defendant,”
and the Court determines that:
“imprisonment is the more appropriate sentence for the protection of the public.”
Section 18-1.3-203, Colorado’s “probation criteria statute” lists the certain “factors” that, “while not controlling the discretion of the court, shall be accorded weight” in the Court’s determination as to whether a grant of probation is appropriate in a given case. This list of factors (reprinted below) is intended to assist a Colorado judge with the decision to impose or to reject a defendant’s application for probation.
When a Colorado judge chooses to grant probation, that decision necessarily excludes a sentence to prison… and the reverse is equally true.
The Allman Court put it this way:
“The legislature intended to allow courts to choose only one or the other. Probation is an alternative to prison.”
A Colorado judge in exercising the Court’s making a decision in this context must carefully weigh the following statutory criteria:
§ 18-1.3-203. Criteria for Granting Probation
(1) The court, subject to the provisions of this title and title 16, C.R.S., and having considered the purposes of sentencing described in section 18-1-102.5, in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:
(a) There is undue risk that during a period of probation the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 18-1.3-104; or
(c) A sentence to probation will unduly depreciate the seriousness of the defendant’s crime or undermine respect for law; or
(d) His or her past criminal record indicates that probation would fail to accomplish its intended purposes; or
(e) The crime, the facts surrounding it, or the defendant’s history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation.
(2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section:
(a) The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his or her property;
(b) The defendant did not plan or expect that his or her criminal conduct would cause or threaten serious harm to another person or his or her property;
(c) The defendant acted under strong provocation;
(d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct;
(e) The victim of the defendant’s conduct induced or facilitated its commission;
(f) The defendant has made or will make restitution or reparation to the victim of his or her conduct for the damage or injury which was sustained;
(g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(h) The defendant’s conduct was the result of circumstances unlikely to recur;
(i) The character, history, and attitudes of the defendant indicate that he or she is unlikely to commit another crime;
(j) The defendant is particularly likely to respond affirmatively to probationary treatment;
(k) The imprisonment of the defendant would entail undue hardship to himself or herself or his or her dependents;
(l) The defendant is elderly or in poor health;
(m) The defendant did not abuse a public position of responsibility or trust;
(n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise.
(3) Nothing in this section shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing.
The stated goal of carefully weighing the criteria outlined in the law is a balancing of “the ends of justice and the best interest of the public, as well as whether the defendant” will be best served by probation,
Sidebar – Probation, and Parole – Supervision is by Two Different Branches of Government
A quick side note – when an inmate is released from prison and enters the parole “tail” period of his sentence, he or she is supervised by the Colorado Parole Board. The Parole Board is under the supervision of the executive branch of government – essentially the Governor of Colorado.
On the other hand, when a defendant is sentenced to probation by a Colorado judge, that defendant is supervised by the judicial branch of government. The significance of this point is that a defendant who is serving both parole and probation before Allman had a confusing task of two very different types of supervision and was required to report to two different supervisors, … a parole officer, and a probation officer.
The Allman Court found that simultaneously complying with two different branches of government during their post-incarceration period under possibly competing terms and conditions, “could not have intended.”
The Impact of Allman on Present and Future Cases – Still Unclear
There is no question that a new right has been created.
But the controlling issue after the Allman case seems to be the answer to the question: does it make sense in EVERY Allman type situation to exercise that right and seek a hearing to correct that illegal sentence?
That seems much less clear to me.
If a defendant was sentenced to both prison and probation for multiple offenses in the same criminal case as a result of a plea agreement (as opposed to a jury verdict as was the case in Allman, which sentence is now deemed illegal creating the right of that defendant to “rescind” their original plea agreement, should they exercise that right?
In Allman – a re-sentencing was required as the case went to trial. But what about the case that was the result of a plea-bargain and the majority or even all of the prison sentence has been already been served?
If a plea bargain that involved a plea bargain is invalidated where the prison portion of the agreement has been completed, does it make sense two “reform” that case?
If a plea is invalidated in this scenario, should a defendant “reaffirm” the plea existing agreement, or try to start over?
Further Questions for Thought After Allman
What if a new plea agreement cannot be reached by the parties?
Does a defendant risk a harsher sentence if the parties cannot reach an agreement and the case is forced back to trial?
What is the state of the government’s evidence at this point in time?
Are the witnesses still available?
If the witnesses are somehow still available to testify, what is the state of each key witnesses’ memory?
Was the physical evidence retained or was it released, purged, or otherwise destroyed consistent with common Colorado police procedures?
Were the terms of the original plea agreement fair and reasonable? If they were not in the eyes of the defendant, is the defendant in a better position now to leverage a more favorable agreement?
The decision to re-open a case must be made with a careful analysis of these issues and many others. In my opinion, if there is no plea agreement and barring a mandatory sentencing scenario, while there may be a chance that a Colorado Judge would sentence the defendant more harshly for choosing to retry the case I don’t believe that would be the case.
My read on these cases is that a Judge would most likely re-sentence a defendant in this situation with an eye toward ““judicially balancing” all of the interests involved to include the rights of the victims in the case (if any) and the rights of the defendant seeking justice.
An Example of a Case Impacted by the Allman Decision
What follows is a 2020 Arapahoe County court District Court Order (called a mittimus or a “mitt”) that was the direct result of an “Allman” type appeal and reformation of a plea agreement.
I have annotated the Judge’s order [HMS…] where it may help the reader to understand the Judge’s final order for re-sentencing this Defendant.
UPON DEFENDANT’S CONVICTION this date of: 1/31/2019
[HMS – the date of the original sentencing.]
The defendant pled guilty to:
Count# 1 Charge: THEFT-$100,000-$1,000,000 C.R.S # 18 – 4-401(1),(2)(i) Class: F3
Date of offense: 8/27/2014 to 6/30/2016: Date of plea: 10/29/2018
Count # 5 Charge: COMPUTER CRIME-THEFT-1000-20,000-CSP – C.R.S # 18 – 5.5-102(l)(d) Class: F5
Date of offenses: 8/27/2014 to 6/30/2016 Date of plea: 10/29/2018
[HMS – the Defendant pleaded guilty to two felonies.]
10/29/2018 DEFENDANT WAS ORIGINALLY SENTENCED ON 1/31/2019 to DOC AND PROBATION which is now vacated and on: 1/22/2020 RE-SENTENCED PURSUANT TO PEOPLE V. ALLMAN
[HMS – the Court orders the original sentence to be vacated – undone – reversed – under the Allman decision.]
IT IS THE JUDGMENT/SENTENCE OF THIS COURT that the Defendant be resentenced to Department of Corrections 5.00 YEARS COUNT 1
Credit for Time Served 1.00 DAYS SET ASIDE COUNT 1 Probation 20.00 YEARS COUNT 1 CONCURRENT WITH COUNT 5.
Probation 20.00 YEARS SET ASIDE
Probation 20.00 YEARS
Credit for Time Served 358.00 DAYS CONCURRENT.
01/22/20 SENTENCES ON COUNTS 1 AND 5 ARE VACATED, DEFT IS RE-SENTENCED PURSUANT TO PEOPLE V ALLMAN. CONDITIONS OF PROB INCLUDE: PAYMENT OF RESTITUTION; PAYMENT OF FEES & COSTS; COMPLIANCE WITH ALL CONDITIONS OF ECU PROBATION; 358 DAYS PSCC. THAT CREDIT IS NOT TO REDUCE THE PROBATION TERM BUT TO APPLY I N THE EVENT OF A FUTURE REVOCATION.
[HMS – The Defendant was re-sentenced to 20 years of ECU (Economic Crime Unit) probation. The prison term of 358 days – the sentence already served in the Colorado Department of Corrections, was credited as PSCC (Pre-Sentence Confinement Credit) should there be a future revocation of the 20-year probation sentence.]
SENTENCES ARE NUNC PRO TUNC 01/31/2019.
[HMS – The sentence was made “Nunc Pro Tunc” – Now for then” meaning that the Judge retroactively applied the new sentence back to the date of the original sentence imposed on January 31, 2019.]
DEFT SHALL RETURN TO DOC TO BE PROCESSED OUT AND RELEASED. COURT ORDERS DEFT TO REPORT TO PROBATION NO LATER THAN THE NEXT BUSINESS DAY FOLLOWING HER RELEASE FROM CUSTODY.
THEREFORE, IT IS ORDERED the Sheriff of ARAPAHOE COUNTY shall convey the DEFENDANT t o the following department TO BE RECEIVED AND KEPT ACCORDING TO LAW TO BE RELEASED ON PROBATION
[HMS – The Judge orders the Defendant to be released from prison and was ordered to report to the probation department on the next business day.]
Summary and Conclusion – Colorado Decision Ends Mixed Sentences – Prison then Probation
The Allman decision has raised and continues to raise, many practical as well as legal issues.
The practice of plea bargaining cases to “mixed” sentences, an approach used by such major Colorado Judicial Districts as the 2nd (Denver), the 18th (Arapahoe, Douglas, Elbert, Lincoln), the 20th (Boulder), and the 21st (Mesa), in most cases, will no longer be possible. (People v Ehlebracht – involving mixed sentences under Colorado’s SOLSA (Sex Offender Lifetime Supervision Act.)
The impact of the Allman decision may exact a price that may not immediately be clear. As discussed, there may be a price to pay for the accused if future plea agreements can no longer be struck by the parties.
Resolutions of complex Colorado criminal cases where a district attorney and a defense attorney try to balance the difficult issues of settlement which were previously settled by an agreed-upon punishment component – prison – followed by a kinder rehabilitation component offered by probation – are no longer an option after Allman. This change may actually cause harm to the accused, now and in the future, involved in the plea bargaining process.
If not handled properly, the newly charged defendant may bear the very real “brunt” of the removal of certain plea bargaining options and could now face much longer, more Draconian results, such as longer prison sentences.
For example in the context of financial crimes that involve the payment of large amounts of restitution, what forms of plea bargaining are left after Allman?
If you or a loved one are confronted by these and other complex issues, it is recommended that you consult with a qualified and experienced Colorado criminal defense lawyer.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.
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