Enabling Legislation

17-27-101 Legislative Declaration
17-27-102 Definitions
17-27-103 Community corrections boards – establishment – duties
17-27-104 Community corrections programs operated by units of local government, state agencies, or non-governmental agencies
17-27-106 Escape from custody from a community corrections program
17-27-107 Administrative procedure act not to apply
17-27-108 Division of Criminal Justice in the Department of Public Safety – duties – community corrections contracts
18-1.3-301 Authority to place offenders in community corrections programs (formerly 17-27-105)

Please see full descriptions of the legislation below.

17-27-101

17-27-101: Legislative declaration.

The general assembly hereby declares that it is the purpose of this article to establish and maintain community corrections programs which provide the courts, the department of corrections, and the state board of parole with more flexibility and a broader range of correctional options for offenders under the jurisdiction of such entities. It is the further purpose of this article to increase public safety and promote community-based correctional programming through collaboration between the state of Colorado and local units of government. It is also the purpose of this article to give local units of government the authority to designate the programs, boards, and networks established under this article to address local criminal justice needs with resources other than those appropriated pursuant to this article. Source: L. 93: Entire article R&RE, p. 708, § 1, effective July 1.

Editor’s note: This section is similar to former § 17-27-101 as it existed prior to 1993.

17-27-102

17-27-102: Definitions

As used in this article:

(1) “Administrative review process” means a sequence of actions that includes written notification to an offender of the decision to reject and terminate program placement, a brief explanation of the reason for the termination, instructions for the offender to request review of the action of the community corrections board or community corrections program, and a method for the community corrections board or community corrections program to informally review the rejection and termination.

(2) “Community corrections board” means the governing body of any unit of local government, any combinations of such governing bodies for the purpose of this article, or any separate board created by any governing body or bodies pursuant to this article.

(3) “Community corrections program” means a community-based or community-oriented program that provides supervision of offenders pursuant to this article. Such program shall be operated by a unit of local government, the department, or any private individual, partnership, corporation, or association. Such program may provide residential or nonresidential services for offenders, monitoring of the activities of offenders, oversight of victim restitution and community service by offenders, programs and services to aid offenders in obtaining and holding regular employment, programs and services to aid offenders in enrolling in and maintaining academic courses, programs and services to aid offenders in participating in vocational training programs, programs and services to aid offenders in utilizing the resources of the community, meeting the personal and family needs of such offenders, programs and services to aid offenders in obtaining appropriate treatment for such offenders, programs and services to aid offenders in participating in whatever specialized programs exist within the community, day reporting programs, and such other services and programs as may be appropriate to aid in offender rehabilitation and public safety.

(3.5) “Community corrections program agent” or “agent” means a community parole officer who is an employee of the department and is a peace officer, as described in sections 16-2.5-101 and 16-2.5-136, C.R.S., with the powers and duties described in section 17-27-105.5.

(4) “Governing body” means the board or council of elected or appointed officials which is responsible for governing any unit of local government, such as a city council or a board of county commissioners.

(5) “Nongovernmental agency” means any private individual, partnership, corporation, or association.

(6) “Offender” means any person accused of or convicted of a felony or misdemeanor as defined by the laws of the state of Colorado.

(7) “Referring agency” means the agency which maintains legal jurisdiction over any offender referred to or placed in a community corrections program such as the sentencing court, the department of corrections, or the state board of parole.

(8) “Unit of local government” means any county, city and county, city, town, or service authority which may be established pursuant to section 17 of article XIV of the state constitution. Source: L. 93: Entire article R&RE, p. 708, § 1, effective July 1. L. 96: (3) amended, p. 122, § 2, effective July 1. L. 2000: (3.5) added, p. 228, § 1, effective March 29. L. 2003: (3.5) amended, p. 1625, § 50, effective August 6. L. 2008: (3.5) amended, p. 658, § 10, effective April 25.

Editor’s note: This section is similar to former § 17-27-102 as it existed prior to 1993.

ANNOTATION

This section does not exclude persons who have been convicted of two prior felonies from community correctional programs. People ex rel. VanMeveren v. District Court, 195 Colo. 34, 575 P.2d 4 (1978) (decided under repealed § 27-27-102). Person convicted of felony menacing was a “nonviolent” offender since felony menacing is not a crime of violence as defined in § 16-11-309. People v. Patrick, 683 P.2d 801 (Colo. App. 1983). This section and § 17-27-103 entitle any person who is rejected after acceptance in a community corrections program to request an administrative hearing. However, the eight-year prison sentence imposed on a defendant without a previous administrative hearing would not be overturned where he failed to raise the issue before the trial court and records in evidence showed sufficient grounds for defendant’s termination from community corrections. People v. Pauley, 42 P.3d 57 (Colo. App. 2001). Applied in People v. Nix, 45 Colo. App. 195, 610 P.2d 1088 (1980).

17-27-103

17-27-103: Community corrections boards – establishment – duties

(1) A community corrections board may be established by resolution or ordinance of a governing body, or a combination of governing bodies. Any community corrections board which is established may be advisory to the governing body or bodies which created such board or it may be functionally independent from the governing body or bodies. Pursuant to subsection (8) of this section, the governing body or bodies may delegate to the community corrections board the authority which such governing body or bodies have to approve or disapprove the establishment and operation of community corrections programs within the jurisdiction of such governing body or bodies. In addition, the governing body or bodies may delegate such other powers which the governing body or bodies possess to the community corrections board to accomplish the purposes of this article.

(2) A community corrections board shall have the authority to enter into contracts with the state of Colorado, receive grants from governmental and private sources, and receive court-authorized expense reimbursement related to community corrections programs. A community corrections board may designate a community corrections program or programs within the jurisdiction of such board to contract with the state of Colorado to provide services and supervision for offenders.

(3) A community corrections board may establish programs to be operated by a unit or units of local government, or an agency of state government, to accomplish the purposes of this article, or such board may contract with other units of local government, other community corrections boards, any agency of state government, or any community corrections program to provide supervision of and services for offenders.

(4) A community corrections board may establish and enforce standards for the operation of any community corrections program located within the physical boundaries of the jurisdiction of the governing body or bodies which created such board. The standards established by a community corrections board may exceed, but shall not conflict with, standards established for community corrections programs by the division of criminal justice of the department of public safety pursuant to section 17-27-108. The community corrections board shall, in coordination with state and local agencies, monitor community corrections programs within the jurisdiction of such board and oversee compliance with state and local standards. The community corrections board’s oversight of the community corrections programs within the board’s jurisdiction shall include the following:

(a) Making an assessment of the number of offenders who have escaped from custody as such term is described in section 17-27-106, which assessment shall be based on the reports prepared by the administrators of community corrections programs in accordance with section 17-27-104 (11);

(b) Determining compliance by community corrections programs with the recommendations made in audit reports prepared by the division of criminal justice in accordance with section 17-27-108.

(5) A community corrections board has the authority to accept or reject any offender referred for placement in a community corrections program under the jurisdiction of such board. The community corrections board shall provide, in writing, acceptance criteria and screening procedures to each referring agency.

(6) A community corrections board may establish conditions or guidelines for the conduct of offenders placed in any community corrections program operated within the physical boundaries of the jurisdiction of the governing body or bodies which created such board. Written copies of such conditions or guidelines shall be made available to offenders placed in community corrections programs under the jurisdiction of the community corrections board.

(7) A community corrections board has the authority to reject after acceptance the placement of any offender in a community corrections program within the jurisdiction of such board. If the referring agency does not provide an administrative review process relating to such rejection after acceptance, the community corrections board shall provide an administrative review process for any offender who is rejected after acceptance by such board. The community corrections board shall provide written notification of the rejection after acceptance of any offender to the referring agency and the administrator of the community corrections program in which the offender is placed.

(8) A governing body shall approve or disapprove the establishment and operation of all community corrections programs within the jurisdiction of such governing body, but such authority may be delegated to the community corrections board created by such governing body.

(9) A community corrections board may serve in a planning and coordinating capacity by advising the governing body which created such board and consulting with officials of state criminal justice agencies to improve local community corrections services.

(10) A community corrections board, and each individual member of such board, shall be immune from any civil liability for the performance of the duties of such board or such individual member as specified in this article, if such person was acting in good faith within the scope of such person’s respective capacity, makes a reasonable effort to obtain the facts of the matter as to which action was taken, and acts in the reasonable belief that the action taken by such person was warranted by the facts.

Source: L. 93: Entire article R&RE, p. 710, § 1, effective July 1. L. 95: (4) amended, p. 80, § 1, effective March 23.

ANNOTATION

Annotator’s note. Since § 17-27-103 is similar to § 17-27-104 (3) as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

Corrections board has power to reject an offender initially accepted into one of its programs or facilities. A trial court is powerless to dismiss for lack of evidence the termination of an offender from a community corrections facility and to return the offender to such facility; the court’s only option is to resentence the offender by adopting an alternative sentence. People v. Akin, 783 P.2d 267 (Colo. 1989).

A person’s sentence to community corrections may be revoked before or after acceptance to a program for any reason or for no reason at all. People v. Holt, 874 P.2d 410 (Colo. App. 1994).

Under subsection (5), a community corrections sentence can be revoked for any reason or for no reason at all. People v. Rodriguez, 55 P.3d 173 (Colo. App. 2002).

The sentencing court, as the referring agency, may conduct the administrative review process if the community corrections board or program has not done so. Benz v. People, 5 P.3d 311 (Colo. 2000).

This section and § 17-27-102 entitle any person who is rejected after acceptance in a community corrections program to an administrative hearing. However, the eight-year prison sentence imposed on a defendant without a previous administrative hearing would not be overturned where he failed to raise the issue before the trial court and records in evidence showed sufficient grounds for defendant’s termination from community corrections. People v. Pauley, 42 P.3d 57 (Colo. App. 2001).

Upon termination from community corrections, an offender must be provided with: (1) Written or actual notice of rejection from community corrections and the reasons for rejection, and (2) an informal review of the facts underlying the rejection. People v. Kitsmiller, 74 P.3d 376 (Colo. App. 2002).

Informal review requires the trial court to either: (1) Review on the record the facts underlying the rejection, or (2) demonstrate a familiarity with those facts through documentation in the record regarding the rejection. People v. Kitsmiller, 74 P.3d 376 (Colo. App. 2002).

17-27-104

17-27-104: Community corrections programs operated by units of local government, state agencies, or non-governmental agencies

(1) Any unit of local government, or any state agency authorized by this article, may establish, maintain, and operate such community corrections programs as such unit or agency deems necessary to serve the needs of such unit of local government or state agency and offenders who are assigned to such programs by the department of corrections, placed in such programs by the state board of parole, or sentenced to such programs by the court.

(2) Pursuant to provisions of section 17-27-103, any nongovernmental agency may establish, maintain, and operate a community corrections program under a contract with the state of Colorado, a contract with a unit or units of local government, or a contract with other nongovernmental agencies for the purpose of providing services to offenders who are assigned to such programs by the department of corrections, placed in such programs by the state board of parole, or sentenced to such programs by the court.

(3) The administrators of any community corrections program established pursuant to this section shall have the authority to accept or reject any offender referred for placement in such program. Screening procedures shall be developed in cooperation with the community corrections board of the jurisdiction in which such community corrections program is located. Acceptance criteria and screening procedures shall be provided in writing by each community corrections program to each referring agency.

(4) (a) The administrators of each community corrections program established pursuant to this section shall establish conditions or guidelines for the conduct of offenders accepted and placed in such program. Such conditions or guidelines shall not conflict with any conditions or guidelines established pursuant to section 17-27-103 (6) by the community corrections board of the jurisdiction in which such community corrections program is located. Offenders accepted and placed in any community corrections program shall have access to written copies of such conditions or guidelines for the conduct of offenders upon placement in such program.

(b) One such condition shall be that an offender, upon being placed in a community corrections program, shall execute a limited power of attorney to the director, or the director’s designee, of the community corrections program with which the offender is being placed. The limited power of attorney shall grant to the director or the director’s designee the authority to dispose of moneys the offender has earned since being placed in the program and that have been left in accounts or on deposit with the community corrections program in the event that, after the offender is accepted by the community corrections program, the offender is rejected from such program due to escape. The moneys shall be disposed of for the following purposes and in the following order of priority:

(I) Payment of court-ordered restitution to the victim of the crime committed by the offender;

(II) Payment for the court-ordered support of the offender’s dependents;

(III) Payment of fines, offender fees and surcharges, and other court-ordered financial obligations imposed as part of the offender’s sentence; and

(IV) Any remaining funds shall be paid into the victims and witnesses assistance and law enforcement fund, established pursuant to section 24-4.2-103, C.R.S., in the judicial district in which the community corrections program is located.

(c) The director of the community corrections program, or the director’s designee, shall maintain records of any disbursements of offenders’ funds pursuant to this subsection (4).

(d) The limited power of attorney shall be valid until the offender’s sentence to community corrections is discharged from community placement by the court.

(5) The administrators of each community corrections program established pursuant to this section shall have the authority to reject after acceptance and terminate the placement of any offender who violates conditions or guidelines established pursuant to subsection (4) of this section, or if any conditions of such offender’s placement in the program are not satisfied. If the referring agency does not provide an administrative review process, the community corrections program shall provide an administrative review process for any offender who is rejected after acceptance. If the termination of placement of an offender is initiated by the community corrections program, the referring agency shall be notified immediately to arrange a transfer of custody for such offender. The community corrections program may be required by the referring agency to maintain temporary custody of the offender whose placement is being terminated for a reasonable period of time pending receipt of appropriate transfer orders from the referring agency unless the provisions of subsection (6) of this section apply.

(6) When the administrator of a community corrections program established pursuant to this section, or any other appropriate referring agency, has cause to believe that an offender placed in a community corrections program has violated any rule or condition of such offender’s placement in such program, or cannot be safely housed in such program, the administrator or other appropriate authority shall notify the appropriate judicial or executive authority of the facts which are the basis of such administrator’s belief. Such administrator may then execute a transfer order to any sheriff, undersheriff, deputy sheriff, police officer, or state patrol officer which authorizes such peace officer to transport the offender to the county jail in the county in which the community corrections program is located and the offender shall be confined in such jail pending a determination by the appropriate judicial or executive authority as to whether the offender should remain in community corrections or be removed therefrom. Such offender shall be confined without bond.

(7) The administrator of any community corrections program established pursuant to this section shall notify a referring agency immediately that an offender has been transferred to a county jail pursuant to subsection (6) of this section. Such notification shall contain the name of the offender and identify the rule or condition of placement violated, and describe such violation, or state the reason the offender cannot be safely housed in the community corrections program.

(8) Upon placement of an offender in a community corrections program, the administrator of the program shall notify local law enforcement agencies of the identity of each such offender.

(9) The administrator of any community corrections program shall document the number of days of residential placement completed by each offender sentenced directly to the community corrections program by the court and the time credits granted to such offender pursuant to section 18-1.3-301 (1) (i), C.R.S. If any such offender is rejected after acceptance by the community corrections board or the community corrections program, the program administrator shall provide a written summary of the residential days completed by such offender to the referring agency. If the offender is thereafter committed to the department of corrections, such summary shall be reported to the department of corrections to facilitate the calculation of any time credits pursuant to part 3 or part 4 of article 22.5 of this title.

(10) The administrator of any community corrections program shall enforce any order relating to the payment of restitution, court costs, fees, or community service which is ordered by the sentencing court. Such administrator shall establish a payment contract and schedule for each offender placed in the community corrections program.

(11) The administrator of each community corrections program shall report to the division of criminal justice and the community corrections board of the jurisdiction in which such program is located on the offenders who have escaped from custody as such term is described in section 17-27-106 (1). The division of criminal justice is authorized to prepare forms for these reports.

(12) The administrators of a community corrections program established pursuant to this section may implement a mental illness screening program to screen the persons accepted and placed in the community corrections program. If the administrators choose to implement a mental illness screening program, the administrators shall use the standardized screening instrument developed pursuant to section 16-11.9-102, C.R.S., and conduct the screening in accordance with procedures established pursuant to said section.

Source: L. 93: Entire article R&RE, p. 711, § 1, effective July 1. L. 94: (9) amended, p. 929, § 2, effective April 28. L. 95: (11) added, p. 81, § 2, effective March 23. L. 96: (4) amended, p. 132, § 1, effective July 1. L. 2002: (12) added, p. 574, § 2, effective May 24; (9) amended, p. 1508, § 168, effective October 1.

Editor’s note: This section is similar to former §§ 17-27-103 and 17-27-104 as they existed prior to 1993.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (9), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Annotator’s note. Since § 17-27-104 is similar to §§ 17-27-104, 17-27-106, 17-27-107, and 17-27-114 as they existed prior to the 1993 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

Section provides a statutory right to an “administrative review process” when an offender placed in a community corrections program is rejected after acceptance. People v. Rogers, 983 P.2d 121 (Colo. App. 1999), rev’d on other grounds, 9 P.3d 371 (Colo. 2000).

Section 17-27-103 authorizes the sentencing court, as the referring agency, to conduct the administrative review process if the community corrections board or program has not done so. Benz v. People, 5 P.3d 311 (Colo. 2000); People v. Rogers, 9 P.3d 371 (Colo. 2000).

Defendant’s rights to due process were not violated where the administrative review requirements were satisfied. The defendant was notified of the grounds for termination from the community corrections program and the trial court reviewed the information from the program. People v. Benz, 983 P.2d 117 (Colo. App. 1999), aff’d, 5 P.3d 311 (Colo. 2000).

Determination of whether offender shall remain in community corrections is a two-step process. First, the sentencing court determines whether a violation of a placement condition has occurred, and second, if the violation has occurred, whether the offender should remain in community corrections. Wilson v. People, 747 P.2d 638 (Colo. 1987).

While it is a better practice to continue the revocation hearing until after the trial on the new charge, there is no abuse of discretion by proceeding with the hearing before disposition of the criminal charge. People v. Harrison, 771 P.2d 23 (Colo. App. 1989), cert. granted, 785 P.2d 916 (Colo. 1989), cert. denied, 790 P.2d 843 (Colo. 1990).

Trial court is without jurisdiction to order a defendant to make monthly restitution payments. Former § 17-27-107 (1), which relate to the requirements set forth in subsection (10) of this section, required that a defendant sentenced to the community corrections agree to the terms and conditions under a contract with the agency, and required that the contract conform with specified statutes concerning the establishment of and the manner and time of payment of restitution. The plain language of the former section required that the court establish the amount of restitution and, if a defendant is directly sentenced to community corrections, that community correction establish the terms and conditions of payment of restitution. People v. Randolph, 852 P.2d 1282 (Colo. App. 1992).

Under subsection (3), a community corrections sentence can be revoked for any reason or for no reason at all. People v. Rodriguez, 55 P.3d 173 (Colo. App. 2002).

Subsection (6) does not give rise to a private tort remedy. Although this article imposes duties on administrators of community corrections facilities, those duties are owed directly to the relevant judicial or executive authorities. Members of the general public are incidental beneficiaries of the statute, but are owed no actionable duty by its specific terms. Davenport v. Community Corr. of the Pikes Peak Region, Inc., 942 P.2d 1301 (Colo. App. 1997), aff’d, 962 P.2d 963 (Colo. 1998).

Under subsection (9), at the time an offender is resentenced, the administrator of the community corrections program must provide to the sentencing court a written summary of the number of days the offender was a resident in that program. People v. Lopez, 961 P.2d 602 (Colo. App. 1998).

Applied in People v. Nix, 45 Colo. App 195, 610 P.2d 1088 (1980).

17-27-106

17-27-106: Escape from custody from a community corrections program.

(1) (a) If an offender fails to remain within the extended limits of such offender’s confinement or placement or fails to return within the time prescribed to any community corrections program to which such offender was assigned or transferred or if any offender who participates in a program established under the provisions of this article leaves such offender’s place of employment or, having been ordered by the executive director of the department of corrections or the chief probation officer of the judicial district to return to the community corrections program, neglects or fails to do so, such offender shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S., and all reductions in sentence authorized by part 2 of article 22.5 of this title shall be forfeited.

(b) (I) In addition to the forfeiture of all reductions in sentence authorized by part 2 of article 22.5 of this title, any person convicted of escape from custody from a community correction program in violation of paragraph (a) of this subsection (1) shall also forfeit all reductions in sentence authorized by section 18-1.3-301 (1) (i), C.R.S.

(II) Repealed.

(2) The division of criminal justice is hereby authorized to provide notice to appropriate law enforcement agencies and the sentencing court, if applicable, that there is probable cause to believe that an offender has escaped from custody.

Source: L. 93: Entire article R&RE, p. 716, § 1, effective July 1. L. 95: Entire section amended, p. 81, § 3, effective March 23. L. 99: (1) amended, p. 661, § 2, effective July 1. L. 2001: (1)(b)(II) repealed, p. 527, § 2, effective May 22. L. 2002: (1)(b)(I) amended, p. 1508, § 170, effective October 1.

Editor’s note: (1) This section is similar to former § 17-27-108 as it existed prior to 1993.

(2) Subsection (1) was amended in House Bill 93-1190. Those amendments were superseded by the repeal and reenactment of the entire article in House Bill 93-1233.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(b)(I), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Annotator’s note. Since § 17-27-106 is similar to § 17-27-108 as it existed prior to the 1993 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

Section applies to work release facilities. This section covers both traditional penitentiary type institutions operated by the state department of corrections and less traditional correctional facilities such as work release facilities. People v. Lucero, 654 P.2d 835 (Colo. 1982).

The failure to return to a work release facility upon the expiration of a 10-hour pass is punishable as escape under § 18-8-208. People v. Lucero, 654 P.2d 835 (Colo. 1982).

Leaving a community corrections facility without authorization constitutes escape under § 18-8-208 because offender is still in custody and subject to the authority of the court. People v. Brown, 695 P.2d 776 (Colo. App. 1984).

Person who absconds from a non-residential community corrections placement commits the crime of escape in violation of this section and § 18-8-208. By its plain language, the section applies to all types of community corrections placements, including non-residential community corrections programs. People v. Forester, 1 P.3d 758 (Colo. App. 2000).

A parolee may be convicted of escape even if there is a legal defect in the process of confinement. Such defects are to be challenged through appropriate legal means rather than through unauthorized departure from a custodial facility. People v. Lanzieri, 25 P.3d 1170 (Colo. 2001).

Delegating supervisory power to probation department and community corrections facility is not an unlawful delegation of the court’s sentencing authority as the offender is still in custody and subject to authority of the court. People v. Brown, 695 P.2d 776 (Colo. App. 1984).

17-27-107

17-27-107: Administrative procedure act not to apply.

The provisions of this article shall not be subject to the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.

Source: L. 93: Entire article R&RE, p. 717, § 1, effective July 1.

Editor’s note: This section was contained in an article that was repealed and reenacted in 1993. Provisions of this section, as it existed in 1993, are similar to those contained in 17-27-112 as said section existed in 1992, the year prior to the repeal and reenactment of this article.

17-27-108

17-27-108: Division of criminal justice in the department of public safety – duties – community corrections contracts.

(1) The division of criminal justice of the department of public safety is authorized to administer and execute all contracts with units of local government, community corrections boards, or nongovernmental agencies for the provision of community corrections programs and services.

(2) (a) The division of criminal justice is authorized to establish standards for community corrections programs operated by units of local government or nongovernmental agencies. Such standards shall prescribe minimum levels of offender supervision and services, health and safety conditions of facilities, and other measures to ensure quality services. The standards shall be promulgated or revised after consultation with representatives of referring agencies, community corrections boards, and administrators of community corrections programs.

(b) (I) The division of criminal justice shall audit community corrections programs to determine levels of compliance with standards promulgated pursuant to paragraph (a) of this subsection (2). Such audits shall include an evaluation of compliance with the reporting requirements pursuant to section 17-27-104 (11).

(II) (A) Before July 1, 2003, such audits shall occur at least once in each three-year period, unless waived by the executive director of the department of public safety.

(B) On and after July 1, 2003, the division of criminal justice shall implement a schedule for auditing community corrections programs that is based on risk factors such that community corrections programs with low risk factors shall be audited less frequently than community corrections programs with higher risk factors. In no event shall such audits occur less frequently than at least once in each five-year period. Prior to July 1, 2003, the division of criminal justice shall create classifications of community corrections programs that are based on risk factors as those factors are established by standards of the division of criminal justice.

(III) Written reports of such audits shall be provided to the administrator of the program which is audited, the local community corrections board, and referring agencies. Such written reports shall include findings of noncompliance with contractual obligations, including the standards promulgated pursuant to paragraph (a) of this subsection (2), and shall identify those material findings that, if not corrected within a reasonable time, will result in a recommendation to terminate the contract to operate the program. As used in this subparagraph (III), “material findings” includes those findings related to:

(A) Public safety, including but not limited to offender monitoring and rehabilitation;

(B) Health and life safety pertaining to but not limited to staff and offenders;

(C) Efficiency and effectiveness of programs’ internal control systems;

(D) Statutory compliance; and

(E) Fiduciary duties and responsibilities.

(3) The division of criminal justice shall allocate appropriations for community corrections to local community corrections boards and community corrections programs in a manner which considers the distribution of offender populations and supports program availability proportionate to such distribution and projected need.

(4) Prior to April 1, 2003, and on and after July 1, 2006, the division of criminal justice may authorize up to five percent of community corrections appropriations to be spent by units of local government and community corrections boards in support of administrative costs incurred pursuant to this article. On and after April 1, 2003, through June 30, 2006, the division of criminal justice may authorize up to four percent of community corrections appropriations to be spent by units of local government and community corrections boards in support of administrative costs incurred pursuant to this article. Such moneys for administrative costs may be applied to support functions authorized in section 17-27-103, to supplement administrative expenses of community corrections programs which have contracted with or are under the jurisdiction of a unit of local government, or to support other direct or indirect costs of involvement in community corrections.

(5) The division of criminal justice is authorized to transfer up to ten percent of annual appropriations among or between line items for community corrections program services. Advance notice of such transfers shall be provided to the general assembly, the governor, the executive director of the department of corrections, and the chief justice of the supreme court.

(6) The division of criminal justice shall provide technical assistance to community corrections boards, community corrections programs, and referring agencies.

Source: L. 93: Entire article R&RE, p. 717, § 1, effective July 1. L. 95: (2) amended, p. 81, § 4, effective March 23. L. 2002: (2)(b)(II) amended, p. 103, § 1, effective March 26. L. 2003: (4) amended, p. 429, § 1, effective April 1.

Editor’s note: This section is similar to former §§ 17-27-106 and 17-27-115 as they existed prior to 1993.

18-1.3-301

18-1.3-301: Authority to place offenders in community corrections programs.

(1) (a) Any judge of a district court may refer any offender convicted of a felony to a community corrections program unless such offender is required to be sentenced pursuant to section 18-1.3-406 (1) or a sentencing provision that requires a sentence to the department of corrections. If an offender who is sentenced pursuant to section 18-1.3-406 (1) has such sentence modified upon the finding of unusual and extenuating circumstances pursuant to such section, such offender may be referred to a community corrections program if such offender is otherwise eligible for such program and is approved for placement pursuant to section 17-27-103 (5), C.R.S., and section 17-27-104 (3), C.R.S. For the purposes of this article, persons sentenced pursuant to the provisions of sections 19-2-908 (1) (a) (I) and (1) (c) (I) (B) and 19-2-910 (2), C.R.S., shall be deemed to be offenders.

(b) In making a direct sentence to a community corrections program, the sentencing court may impose a sentence to community corrections which includes terms, lengths, and conditions pursuant to section 18-1.3-401. The sentencing court may also refer any offender to a community corrections program as a condition of probation pursuant to section 18-1.3-202. Any placement of offenders referred as a direct sentence or as a condition of probation shall be subject to approval pursuant to section 17-27-103 (5), C.R.S., and section 17-27-104 (3), C.R.S.

(b.5) As a condition of every placement in a community corrections program, the court shall require the offender, as a condition of placement, to execute or subscribe a written prior waiver of extradition stating that the offender consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that the offender is arrested in another state upon an allegation that the offender has violated the terms of his or her community corrections placement, and acknowledging that the offender shall not be admitted to bail in any other state pending extradition to this state.

(c) A probation officer, in making a presentence report to the court pursuant to section 16-11-102, C.R.S., or in making a report to the court after a probation violation, may recommend the utilization of a community corrections program in sentencing or resentencing an offender.

(d) If an offender is rejected by a community corrections board or a community corrections program before placement in a program, the court shall promptly resentence the offender. If a sentence to the department of corrections was imposed upon the offender prior to the referral of the offender to community corrections, the resentence shall not exceed the sentence which was originally imposed upon the offender.

(e) If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender’s sentence does not exceed the sentence which was originally imposed upon the offender.

(f) The probation department of the judicial district in which a community corrections program is located shall have jurisdiction over all offenders sentenced directly to a community corrections program. Such probation department shall initiate arrest warrants, process reports or other official documents regarding offenders at the direction of the court, coordinate with community corrections boards and community corrections programs, review offender supervision and treatment, authorize offender transfers between residential and nonresidential phases of placement, and carry out such other duties as the court directs.

(g) The sentencing court may make appropriate orders for the detention, transfer, or resentencing of any offender whose placement in a community corrections program is terminated pursuant to section 17-27-103 (7), C.R.S., or section 17-27-104 (5), C.R.S. As to any offender held pursuant to section 17-27-104 (6), C.R.S., in a jail operated by a unit of local government in a county other than where the offender’s original conviction occurred, the sentencing court shall order the transfer of the offender to the jail of the county where the original conviction occurred as soon as possible. The sentencing court is not required to provide the offender with an evidentiary hearing pertaining to the rejection of placement in a community corrections program prior to resentencing.

(h) The sentencing court shall have the authority to modify the sentence of an offender who has been directly sentenced to a community corrections program in the same manner as if the offender had been placed on probation.

(i) (I) An offender sentenced directly to a community corrections program by the sentencing court pursuant to this subsection (1) may be eligible for time credit deductions from the offender’s sentence not to exceed ten days for each month of placement upon a demonstration to the program administrator by the offender that the offender has made consistent progress in the following categories:

(A) Maintenance of employment, education, or training, including attendance, promptness, performance, cooperation, care of materials, and safety;

(B) Development and maintenance of positive social and domestic relations;

(C) Compliance with rules, regulations, and requirements of residential or nonresidential program placement;

(D) Completion and compliance with components of the individualized program plan; and

(E) Demonstration of financial responsibility and accountability.

(II) The administrator of each community corrections program shall develop objective standards for measuring progress in the categories listed in subparagraph (I) of this paragraph (i), shall apply such standards consistently to evaluations of all such offenders, and shall develop procedures for recommending the award of time credits to such offenders.

(III) The administrator of each community corrections program shall review the performance record of each offender directly sentenced to such program. Such review shall be conducted at intervals to be determined by each program administrator. Such reviews shall be conducted at least once every six months, but may be conducted at more frequent intervals as determined by the program administrator. If the program administrator determines that the offender engaged in criminal activity during the time period for which the time credits were granted, the program administrator may withdraw the time credits granted during such period. Prior to the time of the offender’s release, the program administrator shall submit to the sentencing court the time credit deductions granted, withdrawn, or restored consistent with the provisions of this paragraph (i). Such time credit deductions shall be submitted on standardized forms prepared by the division of criminal justice of the department of public safety that include verification by the program administrator that the time credit deductions are true and accurate. The sentencing court shall certify such time credit deductions as part of the offender’s permanent record. Any time credits authorized under this paragraph (i) shall vest upon certification of time credit deductions by the sentencing court at the time of the offender’s release from the program.

(IV) An offender shall not be credited with more than one-half the allowable time credits for any month or portion thereof unless the offender was employed or was participating in training, education, or treatment programs which precluded the ability to remain employed. This subparagraph (IV) shall not apply to those offenders excused from such employment or training by the program administrator or for medical reasons.

(V) No time credit deductions shall be granted to any offender for time spent in jail, whether awaiting sentencing, placement in the program, disciplinary action, or as a result of a subsequent arrest, unless such time spent in jail was a prearranged component of the offender’s individualized program plan and the offender has made consistent progress in the categories listed in subparagraph (I) of this paragraph (i).

(VI) Notwithstanding any other provision of this paragraph (i), time credits shall not reduce the sentence of any offender sentenced directly to a community corrections program by a period of time which is more than twenty-five percent of the sentence or twenty-five percent of the sentence after adjustments are calculated for any credits outlined by the mittimus.

(j) Except as otherwise provided in paragraph (k) of this subsection (1), any offender sentenced to the department of corrections subsequent to placement in a community corrections program is entitled to credit against the term of confinement as described in section 17-27-104 (9), C.R.S. The court shall make a finding of the amount of such time credits and include such finding in the mittimus that orders the offender to be placed in the custody of the department of corrections. The department of corrections shall apply credits for residential placement in a community corrections program in the same manner as credits for time served in a department of corrections facility.

(k) Any offender who escapes from a residential community corrections program or who absconds from a nonresidential community corrections program shall forfeit any time credit deductions earned pursuant to paragraph (i) of this subsection (1). Within thirty days after an offender’s escape or abscondment, the program administrator shall submit to the sentencing court a statement on the form described in subparagraph (III) of paragraph (i) of this subsection (1) of the time credit deductions that would have been earned by the offender.

(2) (a) The executive director of the department of corrections may transfer any offender who is eligible pursuant to this subsection (2) to a community corrections program if such offender is accepted for placement by a community corrections board pursuant to section 17-27-103, C.R.S., and a community corrections program pursuant to section 17-27-104, C.R.S.

(b) Unless the offender has an active felony warrant or detainer or has refused community placement, the executive director of the department of corrections shall refer for placement in a community corrections program:

(I) Any offender who successfully completes a regimented inmate discipline program pursuant to article 27.7 of title 17, C.R.S., within twenty-eight months prior to the offender’s parole eligibility date;

(II) Any offender who is not serving a sentence for an offense referred to in section 18-1.3-406 and who has displayed acceptable institutional behavior sixteen months prior to such offender’s parole eligibility date; and

(III) Any other offender who has displayed acceptable institutional behavior one hundred eighty days prior to such offender’s parole eligibility date.

(c) Prior to placement of an offender in any community corrections program, the executive director of the department of corrections shall give the first right to refuse placement of such offender to the community corrections board and community corrections programs in the community where the offender intends to reside after release from custody of the department of corrections or parole by the state board of parole.

(d) As to any offender held in a county jail pursuant to section 17-27-104 (6), C.R.S., the executive director of the department of corrections shall order transfer of such offender to a facility of the department of corrections as soon as possible.

(3) The state board of parole may refer any parolee for placement in a community corrections program. Such placement, if approved by the community corrections board pursuant to section 17-27-103, C.R.S., and the community corrections program pursuant to section 17-27-104, C.R.S., may be made a condition of release on parole or as a modification of the conditions of an offender’s parole after release or upon temporary revocation of parole pursuant to section 17-2-103 (11), C.R.S.

(4) District courts, county courts, and other local criminal justice officials may enter into agreements with community corrections programs which include the use of such programs to supervise offenders awaiting trial for felony or misdemeanor offenses, offenders convicted of misdemeanors, or offenders under deferred judgments. Such agreements are subject to review and approval by the community corrections board of the jurisdiction in which any community corrections program making such agreement is located. Any such use of a community corrections program may be supported with funding from local governments, public or private grants, offender fees, and other sources other than the state general fund.

Source: L. 2002: Entire article added with relocations, p. 1386, § 2, effective October 1. L. 2003: (1)(a) amended, p. 1429, § 14, effective April 29. L. 2006: (1)(b.5) added, p. 342, § 6, effective July 1.

Editor’s note: This section is similar to former § 17-27-105 as it existed prior to 2002.

ANNOTATION

Law reviews. For article, “Colorado Felony Sentencing”, see 11 Colo. Law. 1478 (1982). For article, “Review of New Legislation Relating to Criminal Law”, see 11 Colo. Law. 2148 (1982).

Annotator’s note. Since § 18-1.3-301 is similar to § 17-27-105 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.

Two prior felony convictions do not foreclose a court from sentencing a defendant to a community correctional program. People ex rel. VanMeveren v. District Court, 195 Colo. 34, 572 P.2d 483 (1977) (decided under repealed § 27-27-105).

Individual sentenced pursuant to § 42-2-206 (1) may be considered for community correctional program. People v. Scott, 200 Colo. 365, 615 P.2d 680 (1980).

Where defendant is serving three concurrent sentences, one of which is for a violent crime, the defendant is not eligible for community corrections placement more than six months before his parole eligibility date. People v. Santisteven, 868 P.2d 415 (Colo. App. 1993).

The parole board, not a parole officer, has the authority to direct that an offender attend a community corrections program as a condition of parole. People v. Lanzieri, 996 P.2d 156 (Colo. App. 1999), rev’d on other grounds, 25 P.3d 1170 (Colo. 2001).

Sentence to community correctional facility is not the same as a sentence to probation. People v. Johnson, 42 Colo. App. 350, 594 P.2d 601 (1979); People v. Kastning, 738 P.2d 807 (Colo. App. 1987).

“Original sentence” construed. Where court suspended the execution, but not the imposition, of a four-year term in the department of corrections on condition that defendant serve two years in a community corrections facility, the court was not thereafter precluded from resentencing defendant to four years in the department because the “original sentence” was four years, not two. People v. Seals, 899 P.2d 359 (Colo. App. 1995).

Court cannot increase original sentence. There is nothing in this article which authorizes the court to increase the length of the original sentence. People v. Johnson, 42 Colo. App. 350, 594 P.2d 601 (1979).

For this reason, a defendant is entitled to credit for time served in community corrections on direct sentence if he is later rejected. People v. Washington, 709 P.2d 100 (Colo. App. 1985).

Trial court is without jurisdiction to reimpose a sentence that extends beyond the length of the original sentence. People v. Herrera, 734 P.2d 136 (Colo. App. 1986); Downing v. People, 895 P.2d 1046 (Colo. 1995).

Where the defendant originally received a sentence to three years of probation, which was revoked, followed by a sentence to six years of community corrections, from which the defendant was rejected, the “original sentence” referred to in subsection (1)(e) means the sentence to community corrections. Since this section deals only with resentencing following the failure of community corrections placement, the sentence “originally imposed”, referred to in subsection (1)(e), is the sentence to community corrections, not any prior sentence to probation. Because the defendant received a hearing and representation of counsel when he was resentenced to community corrections, he was not entitled to a further hearing or counsel when the community corrections sentence was revoked and he received a sentence to the department of corrections, which did not exceed the length of the sentence to community corrections. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).

Effect of changing a sentence from concurrent to consecutive because of defendant’s escape was not extending the sentence beyond the length originally ordered. Defendant who escaped from community corrections program while serving concurrent sentences, who subsequently completed one sentence but failed to clear the second arrest warrant, was subject to being sentenced to the department of corrections for the length of the original sentence. People v. Taylor, 7 P.3d 1030 (Colo. App. 2000).

When the court revokes an offender’s sentence to community corrections, subsection (1)(e) read in conjunction with subsection (1)(h) authorizes the sentencing court to increase the offender’s sentence, provided that the court holds a hearing. Romero v. People, 179 P.3d 984 (Colo. 2007).

Imposing a sentence increase under subsection (1)(e) does not violate the double jeopardy clauses of the United States and Colorado constitutions because defendant lacked a legitimate expectation of finality in the sentence. Romero v. People, 179 P.3d 984 (Colo. 2007).

Because subsection (1)(h) authorizes the trial court, following defendant’s termination from community corrections, to sentence him or her in the “same manner as if [he or she] had been placed on probation”, the trial court, under such circumstances, is authorized to run a defendant’s sentence consecutively to the sentence in the other case. People v. Adams, 128 P.3d 260 (Colo. App. 2005).

Term “offender’s sentence” in subsection (1)(e) refers to the length of time the trial court sentences an offender to the department of corrections and does not include any period of mandatory parole that attaches to that sentence by operation of § 18-1-105 (1)(a)(V). People v. Johnson, 13 P.3d 309 (Colo. 2000).

The mandatory period of parole is not included in calculating the length of a defendant’s term of imprisonment to which he is resentenced after termination from community corrections and, therefore, does not exceed the original sentence. People v. Snare, 7 P.3d 1025 (Colo. App. 1999).

Trial court did not violate this section when it imposed the six-year department of corrections sentence, even though that sentence requires an additional mandatory three-year period of parole. People v. McGraw, 30 P.3d 835 (Colo. App. 2001).

Trial court had the authority under former §§ 16-11-204 (4) and 17-27-105 (1)(h) (now §§ 18-1.3-204 (4) and 18-1.3-301 (1)(h)) to modify defendant’s community corrections sentence before it expired. The court retained this authority after defendant’s release date passed because re-sentencing proceedings were initiated prior to that date. People v. Knott, 83 P.3d 1147 (Colo. App. 2003).

Because defendant’s post-release supervisory period was imposed at a sentence reduction hearing and not at original sentencing, such period is not counted as part of the original sentence for the purpose of resentencing a person pursuant to this section. People v. Carroll, 779 P.2d 1375 (Colo. App. 1989).

The reference to “time credits” in subsection (1)(j) is intended to include both “earned time” and “good time” credits. People v. McCreadie, 938 P.2d 528 (Colo. 1997).

Subsection (1)(j) requires the sentencing court to include the written summary prepared by the administrator of a community corrections program in the mittimus or attach it thereto. People v. Lopez, 961 P.2d 602 (Colo. App. 1998).

If an offender violates a rule or condition of community corrections placement while on nonresidential status, the offender is not entitled upon resentencing to credit for time served while on nonresidential status. People v. Hoecher, 822 P.2d 8 (Colo. 1991) (overruling People v. Herrera, 734 P.2d 136 (Colo. App. 1986)); People v. Galvin, 835 P.2d 603 (Colo. App. 1992).

Time served on direct sentence to community corrections is the equivalent of time served in the custody of the department of corrections, therefore once the defendant is sentenced to a state correctional facility, all time served in residential community corrections must be credited to the defendant’s sentence. People v. Galvin, 835 P.2d 603 (Colo. App. 1992).

Defendant has no statutory right to a mandatory resentencing hearing after termination from a direct placement at community corrections, as the legislative history supports the conclusion that general assembly intended to prevent duplication of the sentencing hearing. The legislative history also indicates that the term “evidentiary” was added to distinguish judicial hearing from any administrative hearings conducted by community corrections. People v. Abdul, 935 P.2d 4 (Colo. 1997) (decided under law in effect prior to the 1993 repeal and reenactment of this article).

Defendant’s due process claim was without merit since subsection (1)(g) expressly states that the sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing and, therefore, there is no right or justifiable expectation created by state law. The defendant could have had no reasonable expectation that he would be transferred only for misbehavior because the statute very clearly gives the community correctional facility discretion to reject the defendant before or after acceptance for any reason. People v. Wilhite, 817 P.2d 1017 (Colo. 1991); People v. Abdul, 935 P.2d 4 (Colo. 1997) (decided under law in effect prior to the 1993 repeal and reenactment of this article).

Direct placement offender who was denied an evidentiary hearing was not treated differently from transitional offenders and thereby denied equal protection of the laws since subsection (1)(g) does not deny such a hearing but makes it discretionary rather than mandatory; and direct placement offenders and transitional offenders are not similarly situated for purposes of equal protection analysis. People v. Wilhite, 817 P.2d 1017 (Colo. 1991).

The denial of a resentencing hearing under subsection (1)(e) has been found to be constitutional under Wilhite, and this section does not violate defendant’s right to due process and specifically, his rights to confrontation and to assistance of counsel. People v. James, 940 P.2d 1092 (Colo. App. 1996).

Subsection (2) does not allow for a hearing or other determination as to whether an individual poses a flight risk notwithstanding the existence of a detainer. Rivera-Bottzeck v. Ortiz, 134 P.3d 517 (Colo. App. 2006).

The word “felony” does not modify the word “detainer” in the phrase “felony warrant or detainer” in subsection (2)(b); thus, an inmate with an active immigration and naturalization service detainer cannot be referred for placement in a community corrections program under subsection (2)(b). Rivera-Bottzeck v. Ortiz, 134 P.3d 517 (Colo. App. 2006).

Trial court did not err in summarily resentencing defendant to the custody of the department of corrections since, although the trial court retains its discretion to grant a hearing at the time of resentencing, and such may be the better practice in appropriate cases, the granting of a hearing is not constitutionally required. People v. James, 940 P.2d 1092 (Colo. App. 1996).

Applied in People v. Abila, 670 P.2d 432 (Colo. App. 1983); People v. Patrick, 683 P.2d 801 (Colo. App. 1983); People v. Rodriguez, 55 P.3d 173 (Colo. App. 2002).