GUSTAFSON
LAW
OFFICE
Colorado Springs, Colorado
El Paso County
Robert D. Gustafson
* Attorney at Law *
Colorado Springs |
WELCOME
perhaps I will
become your attorney |
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COLORADO DEFERRED SENTENCING |
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Phone (719) 260-1002
Fax (719) 260-1003 **
Toll Free (800) 410-1002 |
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COLORADO DEFERRED
SENTENCE
DUI * FELONY
* MISDEMEANOR
* PETTY
OFFENSE
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TRAFFIC OFFENSE |
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felony
** misdemeanor ** petty offenses ** DUI
** DWAI ** DEAC ** traffic offenses
Colorado Springs Criminal Defense
Lawyer and Traffic Defense Lawyer
Attorney Trial Practice 30+
years Colorado State Courts, Colorado Springs Municipal Court &
Colorado DMV License Hearings & Appeals |
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representation inquiries are invited & most
welcome **
questions from public seeking free
advice or information declined
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first consultation terms |
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does not accept installment payments * full payment is due at the
time attorney is retained * major charge cards accepted |
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Deferred Sentence
What Is This? ** How Does It
Work? |
Deferred Sentence
Is This a Conviction? |
Post Sentencing
Attorney Representation Policy |
Sealing of Deferred Sentence
Records
Traffic Records - Summary |
Sealing of Deferred Sentence
Records
Misdemeanor or Felony Criminal Records - Summary |
CAVEAT: brief explanation of
deferred sentencing as an aid to client understanding ** not
intended to be a definitive statement
webpage does not address all issues ** webpage is not a thorough examination of issues
presented or which may arise ** consult legal counsel |
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attorney does not accept
criminal & traffic cases after sentencing unless he defended the underlying case
non-acceptance includes
probation revocation, deferred sentence revocation, parole violation or
appeal ** eligible
sealing
and
collateral attack
cases accepted |
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CRIMINAL & TRAFFIC COURT COSTS |
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| above links direct to costs
* * link on right to
state website |
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COLORADO STATE COURT WEBSITE |
| link to Colorado
Judicial Branch website - current costs |
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DEFERRED SENTENCE |
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a. Guilty Plea. When a defendant enters into a
deferred sentencing agreement, he / she enters a plea of guilt or nolo
contendere.
Guilty plea entails the defendant admitting each element of the offense
to which a plea is entered, and stating a factual basis or sometimes the
court will accept a waiver of factual basis. Imposition of sentence is delayed during the period of deferment. |
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| NOLO CONTENDERE
PLEA ** NO CONTEST PLEA ** ALFORD PLEA |
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1. A nolo
contendere plea, also called a no contest plea or plea non vult
contendere, literally means "I do not wish to contend." Black's
Law Dictionary 1074 (8th ed. 2004). Nolo contendere is a common
law plea. Hudson v. United States, 272 U.S. 451, 453, 47
S.Ct. 127, 71 L.Ed. 347 (1926); Young v. People, 53 Colo. 251,
125 P. 117 (1912). In its early form, the plea was considered an
implied confession of guilt entered only with leave of the court in
light misdemeanors. K.A. Drechsler, Annotation, Plea of nolo
contendere or non vult contendere, 152 A.L.R. 253 (2004). In
modern usage, a plea of nolo contendere is considered substantially,
though not technically, a plea of guilty acceptable for a variety of
offenses. Id. at 256-57. |
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2.
The plea serves a practical function in the
administration of justice. Id. at 295. A defendant
may wish to plead nolo contendere simply because she does not want to
contest her guilt or innocence for personal reasons. People
v. Goodwin, 41 Colo.App. 23, 25, 582 P.2d 1065, 1067 (1978).
A plea of nolo contendere also allows the parties to avoid the expense
and delay of trial. Furthermore, the defendant is able to avoid
the notoriety and publicity of a trial, problems with lack of
witnesses, limit the maximum penalty to which she would be exposed at
trial, and avoid estoppel in a subsequent civil proceeding.
Drechsler, supra, at 295. |
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3.
Nolo pleas may also be referred to as "Alford"
pleas, originating from the United States Supreme Court decision in
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970). There, the Court held that a defendant could plead
guilty while protesting his innocence — so long as his plea was
constitutionally valid. Alford, 400 U.S. at 31, 91 S.Ct.
160; see also ABA Standards, supra, at § 14-1.1(a) commentary
at 14. Thus, the nolo contendere plea may be a compromise plea
that benefits both the defendant and the prosecutor. People
v. Darlington, 105 P.3d 230 (Colo. 2005) |
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4.
Effect of a Nolo Contendere Plea in Colorado.
Over half of the states recognize the plea of nolo contendere. In
Colorado, the defendant "may plead guilty, not guilty . . ., or with
the consent of the court, nolo contendere." Crim. P. 11; see also §
16-7-205, C.R.S. (2004). We have held that, for the purpose of a
criminal case, a plea of nolo contendere is fully equivalent to a plea
of guilty. See People v. Birdsong, 958 P.2d 1124, 1127
(Colo. 1998); Jones, 196 Colo. at 264, 584 P.2d at 84;
People v. Carpenter, 709 P.2d 72, 73 (Colo.App. 1985). The
sole distinction we have made between a guilty plea and a plea of nolo
contendere is that the latter gives the defendant the advantage of not
being estopped from denying her fault in a civil action based upon the
same facts. Jones, 196 Colo. at 264, 584 P.2d at 83.
Where the defendant knowingly, voluntarily, and understandingly pleads
nolo contendere she may be punished just as if she had entered a plea
of guilty. See Alford, 400 U.S. at 36 n. 8, 91 S.Ct. 160;
Meier v. People, 133 Colo. 338, 340, 296 P.2d 232, 233 (1956);
Young, 53 Colo. at 253, 125 P. at 118. Therefore,
there is no distinction between a plea of nolo contendere and a plea
of guilty for sentencing purposes. emphasis added People
v. Canino, 181 Colo. 207, 210, 508 P.2d 1273, 1274 (1973); see
also ABA Standards 14-1.1 commentary (judge may impose the same
sentence as if defendant had pleaded guilty). Thus, we have
allowed nolo contendere pleas liberally and have treated them as
guilty pleas for all purposes.
Once the court has accepted the plea, it is equivalent to a plea of
guilty and the court's power to punish is in no way limited except as
provided by law. Drechsler, supra, at 277.
Darlington, supra. |
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5. A nolo
contendere plea is acceptable under the deferred sentencing statute,
CRS 18-1.3-102. The court recognized a plea of nolo contendere
as the full equivalent to a guilty plea for all purposes within the
criminal justice system and found that a nolo contendere plea on a
deferred sentence is in accord with the legislative intent.
Darlington, supra. |
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Attorney
notation. A plea of no contest or nolo contendere is
typically utilized in one of two circumstances. |
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a. The most
common circumstance is a defendant who in good conscience can not
admit each and every element of the offense to which a plea is
entered, but decides to avail himself / herself of the disposition and
avoid the potential sanctions if the case were to be taken to trial
with entry of a guilty verdict and straight sentencing. Put in
very simple terms - "I cain't admit guilt, but ima wishin' to limit my
possibell conserquences, so I'll let yer treat me as tho I'm a guilty.
I'm afeard of what mite a happin ifn I were ter go to trial and sew I wanna take the safe rode.
No contest." |
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b. A second
fairly common circumstance is concurrent civil liability.
Although disposition in a criminal case may not be admitted into
evidence in a civil lawsuit, statements by the defendant in the
criminal case may be used for impeachment purposes. Nolo
contendere plea is a mechanism to avoid testimony impeachment in a
civil trial. |
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Attorney
notation. If a defendant did not admit guilt but
entered a a plea of nolo contendere, in criminal case deferred
sentencing or revocation and subsequent sentencing proceedings, do not
anticipate that you will be treated differently from or more favorably
than a person who entered a plea of guilt. |
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b. Period of Deferment. The deferred sentence
will be set for a specific period of time - i.e.: six months, one year, eighteen
months, two years, etc. |
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DEFERRED
SENTENCE - MAXIMUM PERIOD OF TIME
CRS 18-1.3-102(1) |
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Felony - period not to exceed four
years from the date of entry of a plea |
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Misdemeanor - period not to exceed
two years from the date of entry of a plea
this includes petty
offenses and traffic offenses |
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Period may be extended for an
additional time up to one hundred eighty days if the failure to pay
restitution is the sole condition of supervision which has not been
fulfilled, because of inability to pay, and the defendant has shown a
future ability to pay. |
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| EXTENSION OR
ENLARGEMENT OF TIME BEYOND STATUTORY LIMITS |
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A deferred judgment is created and
authorized by statute and a trial court lacks authority to impose a
deferred judgment outside of the statute's limitations. The trial
court exceeded its jurisdiction by extending defendant's deferred
judgment beyond the statutory limits. People v. Carbajal, 198
P.3d 102 (Colo. 2008). Attorney
paraphrase. Court lack jurisdiction (power) to extend
the deferred sentence beyond the above statutory limitations.
Extension beyond the statutory limit is not permitted even if the
prosecution and defendant consent. |
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WHAT DOES
THIS MEAN & HOW DOES IT APPLY TO MY CASE?
Request for extension or enlargement of time usually occurs when the
defendant has been unable to comply with the terms and conditions
within the time set forth in the deferred sentence agreement.
Examples would be failure to complete the alcohol education and
therapy or useful public service. Failure to complete other
conditions may apply to any given case.
Under no circumstance may
the court extend the deferred sentence beyond the statutory limits set
forth above. The court lacks jurisdiction (power) to do so.
Moral of the story. Get busy and comply.
Alternative is revocation of deferred sentence and conviction -
perhaps incarceration to jail or prison as relevant. |
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c.
Conditions of Deferment.
During the deferred sentence, conditions will likely be imposed. |
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1. Conditions
frequently includes no violations of criminal law, but may exclude
minor traffic infractions of 4 points or less. |
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2. The defendant
may be ordered to refrain from and not consume alcohol. |
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3. When a persons enters a plea to an
offense or is found guilty of an offense at trial and is placed upon
supervised probation, unsupervised probation, supervised deferred
sentence or unsupervised deferred sentence, statutory restrictions and
obligations are imposed by Colorado law. Refer to
CRS 18-1.3.204
to read the conditions of probation / deferred sentence statute verbatim. |
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| Highlights |
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a. Defendant may
not become intoxicated and may not ingest, inhale or inject illicit
drugs. |
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b.
Permission of the court, probation officer or supervision agent is
required for travel outside Colorado, or a permanent move outside the
city of residence at the time of the deferred sentence plea. |
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c. Defendant must
notify the court, probation department or other supervising agent of a
residential move within the same city as he or she lived at the time
of plea entry, must provide similar notice of change of contact home
or cell phone and must provide similar notice of change of employment
and work phone. |
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d. Defendant must
refrain from possessing a firearm, destructive device, or other
dangerous weapon unless granted written permission by the court or
probation officer while on deferred sentence. |
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e. Defendant must
support his or her family if relevant and pay child support. |
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f. Defendant must
pay fines and costs and if relevant, supervision fees noted below. |
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4. The defendant
may be ordered to complete
alcohol education or therapy,
alcohol or drug treatment,
Alcoholics Anonymous (AA) meetings,
Victim Impact Panel (MADD),
useful public service,
anger
management classes,
domestic violence classes or
other treatment relevant to rehabilitation. |
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5. Restitution
will be ordered if any third person has sustained damage as a result
of a defendant's action. CRS 18-1.3-205 |
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6.
The conditions imposed in the stipulation shall be
similar in all respects to conditions permitted as part of probation.
CRS 18-1.3-102(2) |
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d.
Supervision. Deferred
sentence may be supervised by the probation department, or it may be
unsupervised. If supervised, the present statutory supervision
fee is $50 per month. |
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e.
Satisfactory Compliance.
Upon satisfactory completion of the deferred sentence, the defendant's
plea of guilt will be withdrawn and the relevant charges which were
deferred will be dismissed. If all charges were deferred, the
case itself will be dismissed.
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1. In district
and county courts (state courts), dismissal upon satisfactory
completion will usually be done automatically by the court without
further action on the defendant's part so long as the defendant has
satisfactorily complied with all conditions of the deferred sentence
agreement. |
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2. In Colorado
Springs Municipal Court the defendant must personally be present at a
court return date unless he or she is notified by the prosecution that
appearance is not necessary. |
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3. Given the fact
sentence has not been imposed, in traffic cases the infraction or
offense is not identified on the consumer driving abstract.
Therefore, insurance companies, employers or other civil agencies
would not see the infraction or offense on your driving record. |
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4. DMV does
maintain a criminal justice driving abstract which reflects all
alcohol related traffic charges and final disposition, including
deferred sentence. This would be available only to police,
prosecutors, probation departments and courts. |
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5. Although the
case may be dismissed, records will continue to exist and will likely
be found in a background check. Refer to
sealing criminal justice records. |
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Background check examples: post secondary
educational program acceptance, employment, security clearance, professional licensing
CRS
24-72-305.4, volunteering at your child's or grandchild's
school, daycare or social group activities such as boyscouts, girlscouts,
etc.
CRS
24-72-305.3, caregiver functions,
CRS
24-72-305.3, foreign travel visa, firearm possession or
ownership (gun collection, hunting or target practice)
Federal
Brady Bill, Colorado
weapons law
POWPO, concealed
weapon permit - this mentions only a few common possibilities. |
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Adoptions - step parent adoption, relative adoption or straight adoption -
mandatory background checks of DHS TRAILS, CBI and FBI are required. |
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Every arrest with
jailhouse booking, and every
domestic violence
criminal case
court filing, and every
domestic abuse restraining order
civil case
court filing results in a report to
the
Colorado Bureau of Investigation CBI
Central Registry. Background check of this database can be conducted
by anyone at any time -
CBI records check database is
not difficult to find. |
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Every
shoplifting or theft
criminal case or other criminal case
court filing (including
prostitution) results in records with
the law enforcement agency, prosecution records and court records.
State judicial records can be checked via
LexisNexis or
CoCourts
or BISI
and
Denver Court. Municipal courts are
not yet on-line, but accessible to the public with a phone call or written
request under the Colorado Open Records Act - CRS 24-72-200.1, et. seq. or
the Colorado Criminal Justice Records Act - CRS 24-72-301, et. seq. |
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Existence of criminal justice records can be
quite harmful to a person, particularly if the case involved domestic
violence or abuse, crime involving violence or injury to another person,
crime of dishonesty, crime of moral turpitude or other sexual matter, or
crime involving substance abuse. Refer to
sealing link and to
waiver of right to seal criminal
justice records if such a clause is contained in your deferred sentencing
agreement. |
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f.
Modification
of deferred sentence agreement, terms or conditions. |
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| MODIFICATION -
EXTENSION OR ENLARGEMENT OF TIME WITHIN STATUTORY LIMITS |
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Trial court lacks authority under CRS 18-1.3-102 to act unilaterally
to modify the terms of a stipulation without the district attorney's
consent. People v. Ward-Garrison, 72 P.3d 423 (Colo. App.
2003); Walker-Lawrence v. District Court of Teller County, 74
P.3d 521 (Colo. App. 2003). |
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Extension of deferred
judgment was previously discretionary within the broad discretionary
power of the court. People v. Blackorby, 41 Colo. App. 251, 583
P.2d 949 (1978). However that case was decided prior to 1985
amendment to CRS 18-1.3-102(1) and is no longer valid law. |
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WHAT DOES
THIS MEAN & HOW DOES IT APPLY TO MY CASE?
Request for extension or enlargement of time usually occurs when the
defendant has been unable to comply with the terms and conditions
within the time set forth in the deferred sentence agreement.
Examples would be failure to complete the alcohol education and
therapy or useful public service. Failure to complete other
conditions may apply to any given case.
If a defendant moves for
an extension or enlargement of time to complete particular conditions
within the maximum times set forth above, the court has jurisdiction
(power) to do so, but by law may not grant that request absent consent
of the District Attorney Office.
a. This is different from probation where a defendant may move
for extension or enlargement of time to complete a condition and the
court may grant the request above objection of the prosecutor.
Horse of a different color - it doesn't work that way with a deferred
sentence.
b. Example: 48 hours useful public service ordered to be
completed within 6 months - defendant fails to timely complete and
before the due date, the defendant moves for extension (more time to
complete). Sufficient time exists within the 2 year misdemeanor
or traffic offense or 4 year felony offense maximum limitations.
However, in a deferred sentence the court may not extend the time for
completion absent consent of the prosecutor.
c. Moral of the story.
Get busy and comply. Alternative is revocation of deferred
sentence and conviction - perhaps jail. Prosecutors will not
likely consent to an extension. |
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| MODIFICATION -
SHORTENING PERIOD OF DEFERRED SENTENCE - EARLY TERMINATION |
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Trial court does not have authority to act unilaterally with deferred
sentence agreements, including shortening a stipulated length of a
deferred sentence and a sentence agreement without the district
attorney's consent. People v. C.G., 12 P.3d 861 (Colo. App.
2000).
Attorney paraphrase. Courts lack jurisdiction
(power) to order early termination of deferred sentence unless the
prosecutor consents. |
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| MODIFICATION -
WAIVER OF RIGHTS TO SEAL CRIMINAL JUSTICE RECORDS |
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All deferred sentence plea agreements with the El Paso
County DA Office contain a standard clause that the defendant agrees "to
give up any future right I may have, whether provided by C.R.S.
24-72-308 or by any other law, to have those records sealed by court
order." This has been in the El Paso DA Office deferred sentence
agreements for decades and must be eliminated in plea negotiations, or
the deferred agreement will contain such a clause. Bad idea if the
case is otherwise
eligible for sealing. Prosecutors in
other counties or jurisdictions may or may not have such a clause
"pre-canned" into their deferred sentence agreements or may insert for
any particular case. For information and case law regarding such a
clause and subsequent sealing, refer to
waiver. |
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g. Failure to Comply. |
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| NON-COMPLIANCE -
REVOCATION |
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... upon a breach by the defendant of any condition regulating the
conduct of the defendant, the court shall enter judgment and impose
sentence upon such guilty plea. When, as a condition of the
deferred sentence, the court orders the defendant to make restitution,
evidence of failure to pay the said restitution shall constitute prima
facie evidence of a violation. Whether a breach of condition has
occurred shall be determined by the court without a jury upon
application of the district attorney or a probation officer and upon
notice of hearing thereon of not less than five days to the defendant
or the defendant's attorney of record. Application for entry of
judgment and imposition of sentence may be made by the district
attorney or a probation officer at any time within the term of the
deferred judgment or within thirty days thereafter. The burden
of proof at such hearing shall be by a preponderance of the evidence,
and the procedural safeguards required in a revocation of probation
hearing shall apply. CRS 18-1.3-102(2)
When a defendant signs a
stipulation by which it is provided that judgment and sentence shall
be deferred for a time certain, he or she thereby waives all rights to
a speedy trial, as provided in CRS 18-1-405. CRS 18-1.3-102(3)
A warrant for the arrest
of any defendant for breach of a condition of a deferred sentence may
be issued by any judge of a court of record upon the report of a
probation officer, or upon the verified complaint of any person,
establishing to the satisfaction of the judge probable cause to
believe that a condition of the deferred sentence has been violated
and that the arrest of the defendant is reasonably necessary.
The warrant may be executed by any probation officer or by a peace
officer authorized to execute warrants in the county in which the
defendant is found. CRS 18-1.3-102(4) |
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Trial court had no authority to revoke a deferred judgment sua sponte.
In absence of an application by the district attorney, specifically
required by subsection (2), revocation was improper. People
v. Berquist, 916 P.2d 629 (Colo.App. 1996). |
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WHAT DOES
THIS MEAN & HOW DOES IT APPLY TO MY CASE?
1. The court of its own initiative may not revoke a deferred
sentence. A complaint must be filed by the prosecutor, probation
officer or case supervisor.
2. Speedy trial
(delay caused by the deferred sentence) is not a defense.
3. The district
attorney or a probation officer must file the complaint or motion to
revoke during the term of the deferred judgment or within thirty days
thereafter. If the complaint or motion to revoke is filed more
than thirty days after the end of the deferred sentence, that is a bar
to further prosecution.
4. The court lacks
the power to modify the terms of the deferred sentence within
statutory time limits absent prosecution consent - see above.
5. The court court
may not exceed statutory time limits even with consent - see above.
6. The defendant has previously
entered a plea of guilt, therefore the right to trial by jury or trial
to the court has been waived (given up). The judge will hear
evidence and enter ruling regarding revocation without a jury.
The sole issue is whether the defendant complied with all conditions
of the deferred sentence, or whether he / she violated or otherwise
failed to comply.
7. If the court finds by a
preponderance of the evidence that defendant has failed to comply, the
court must revoke the deferred sentence and impose judgment of
conviction. The judge has no discretion regarding revocation of
deferred sentence and entry of judgment of conviction if the evidence
supports violation or breach.
8. Upon revocation of deferred
sentence, the court must then impose sentence.
Unless there is
some specific statutory prohibition, the court may place the defendant
on probation or may impose incarceration (jail or prison as relevant).
Incarceration is not necessarily mandatory upon deferred sentence
revocation. The court may impose
probation with terms and conditions, or may simply impose a jail
sentence. Jail sentence as a condition of probation with other
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CRS 18-1.3-102 mandates that court
impose sentence and does not leave such imposition to the court's
discretion. People v. Adair, 44 Colo. App. 423, 620 P.2d
46 (1980), aff'd in part and rev'd in part on other grounds, 651 P.2d
389 (Colo. 1982). "Sentence" does not mean imprisonment. A
"sentence" generally refers to that part of a judgment which describes
the punishment imposed by the court following the defendant's
conviction for a criminal offense. To constitute a "sentence",
the punishment need not take the form of imprisonment. People
v. Turner, 644 P.2d 951 (Colo. 1982). |
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Attorney
notation. Incarceration is a probability in the event
of deferred sentence revocation. A defendant who received a
deferred sentence typically received a very favorable plea disposition
and then "blew it." The ISIJ defense is not
particularly persuasive - I Spaced It, Judge. Defendant not only admitted to violating the
law, but was given opportunity to make amends and essentially thumbed
his or her nose at the authority of the court (judge). Think in
terms of the "one bite rule." Take a second bite out of
the apple and you find a half of a worm at your bite mark - you know
where the other half is. If a legitimate reason existed for
non-compliance such as hospitalization or documented ill health, the
court is more likely to exercise leniency. Comply with the terms of your deferred
sentence, file proof with the court and keep of copy of completion
proof in your records for 5 years. |
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DEFERRED SENTENCE |
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IS THIS A CONVICTION?
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In determining whether a deferred sentence is a
"conviction," the key factor to be considered is the legislative
intent behind the use of the word in the statute involved.
A person who has successfully completed the period of deferred sentence would no
longer be "convicted" within the meaning of CRS 16-7-403(2).
When the plea is withdrawn, the earlier acceptance of the guilty plea by the
court is vitiated and CRS 16-7-206(3) does not apply. Moreover, CRE 410 would apply to such
a situation: "Except as otherwise provided by statutes of the State of
Colorado, evidence of a guilty plea, later withdrawn,... to the crime charged or
any other crime,... is not admissible in any civil or criminal action, case, or
proceeding against the person who made the plea or offer." Thus, evidence
of the guilty plea is no longer admissible after successful completion of the
period of the deferred sentence. Hafelfinger v. District Court, 674 P.2d
375, 377 Headnote 3 (Colo. 1984).
For purposes of the habitual criminal statues, it is
evident from the language of the statute that a plea of guilty, a guilty
verdict, or a finding of guilt by the trial judge, alone could not effective be
used to enhance the punishment for the reason that the conviction process is
incomplete. Until there has been an adjudication of guilty the entry of
judgment, the fact of guilt has not been judicially declared. People v.
Jacquez, 196 Colo. 569, 588 P.2d 871, 873, 874 (1979).
On the contrary, in some circumstances, we have considered
a guilty plea alone enough to constitute a "conviction." A plea of
guilty differs in purpose and effect from a mere admission or an extra-judicial
confession; it is in itself a conviction. Like a verdict of a jury it is
conclusive. More is not required; the court has nothing to do but give judgment
and sentence. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71
L.Ed. 1009 (1927) (re: possession of firearms).
Pursuant to
CRS
16-7-403(1)
there is a difference between
conviction and judgment. A defendant is "convicted" upon the
acceptance by the trial court of his guilty plea. A deferred sentence permits a
defendant to plead guilty without the entry of a judgment of conviction. People
v. Widhalm, 642 P.2d 498, 500 (Colo. 1982).
For purposes of eligibility for a personal recognizance
bail bond, the Hafelfinger court held the successfully completed deferred
sentence constituted a "conviction" - the defendant was ineligible.
If DUI charges were later brought arising out
of new circumstances, although not admissible in the prosecutor's case in chief,
for sentencing purposes a prior offense in which a defendant entered a plea of guilt to
a deferred sentence could be considered to be a prior
conviction. This exists even though sentence is deferred; the defendant successfully
complete all requirements and the plea is later withdrawn. People v.
Lichtenwalter, 520 P.2d 583 (Colo. 1974); People v. Cornelison, 616
P.2d 173 (Colo. App. 1980).
How do appellate courts reconcile their rulings that a deferred sentence
plea which resulted in successful completion and dismissal is a not a
conviction, but it is considered to be a conviction for multiple
purposes in other criminal cases? Appellate logic is unfathomable,
so counsel reads the case law as follows. A prior deferred
sentence successful completion which resulted in plea withdrawal and
case dismissal will be construed as a prior conviction for any criminal
case purpose, with the exception of civil cases to
seal criminal justice records under
CRS 24-72-308. Some judges will not use a prior dismissed deferred
sentence to enhance sentencing on a new case, but counsel advises
clients not to count on that.
Are deferred sentence cases which have been dismissed and subsequently
sealed considered to be a prior conviction? Refer to potential
future appellate logic.
Counsel does not practice employment law. Consult an employment
lawyer regarding whether disclosure must be made on a job application or
security clearance regarding conviction questions and deferred sentence
which has been successfully completed, plea withdrawn and criminal case
dismissed.
Unless sealed, records of the law enforcement agency,
district attorney and court will reflect the original charges, charges dismissed
as a result of plea negotiations, offense(s) to which a plea of guilt or nolo
contendere was entered and also reflect
case dismissal disposition upon successful completion of the deferred sentence.
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1. If a defendant
obtains another offense, an existing deferred sentence may be
considered by the sentencing judge in the later case, particularly if
the new charges are related to the same type of offense. Jail is
likely if you are again charged with a similar offense. A
deferred sentence is your "one bite out of the apple" - do not re-offend. |
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2. If a
criminal justice records search is later conducted
with or without an individual's written consent for purpose of education, employment or
security clearance or other purpose, records would be accessible if not sealed. When the
entire case is dismissed after deferred sentence, all charges and
disposition may be subject to being sealed absent waiver of that right.
Refer to the
Sealing
Criminal Justice Records page and to
waiver of right to seal criminal
justice records for more detailed information |
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Federal Brady Bill
domestic violence
misdemeanor or felony
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CRS 18-12-108
Colorado law - weapon prohibition
felony
conviction and deferred sentence
domestic violence - misdemeanor or felony |
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Colorado
Law - Possession of Weapon by Previous Offender
CRS 18-12-108
felony
conviction and deferred sentence or
domestic violence - misdemeanor or felony
definition
of various weapons is contained in
CRS
18-12-101
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refer to the above verbatim statute
link for convenience only - statute may have been
amended since published herein - do not
rely upon applicability to current date
site visitors may
research
CURRENT STATUTORY LAW |
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case on point regarding deferred
sentencing as prior conviction for weapon prohibition
CRS 18-12-108
People v. Dewitt, 10CA1271 (Colo.App. 9-15-2011) |
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In
Dewitt, the
defendant carried a partially concealed handgun into a grocery store
and behaved in such an irate fashion that police were called.
Defendant testified he believed his prior felony cases had been
dismissed upon successful completion of deferred sentence, and
therefore he did not know of his prior convictions and believed he did
not have a prior conviction. Among other issues on appeal,
Dewitt challenged that knowledge of the prior conviction was required
and that a deferred sentence is not a conviction within the context of
the criminal statute
CRS 18-12-108. |
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The prior conviction element of the
offense uses the term "conviction" which, when used without any
reference to judgment, means merely the establishment of guilt by plea
or verdict. People v. Allaire, 843 P.2d 38, 41 (Colo.
App. 1992) (citing Page 21 Hafelfinger v. Dist. Court, 674 P.2d
375 (Colo. 1984)) (the felony conviction element of CRS
18-12-108(1) is satisfied by proof of a guilty plea and deferred
judgment; a judgment of conviction and sentencing are not required).
emphasis added In either instance — guilty plea or guilty
verdict — a defendant will necessarily have knowledge of the
conviction because he or she would have entered the plea or observed
the jury's verdict. |
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Our conclusion that "knowingly" does
not apply to the prior conviction element is reinforced by the purpose
of the possession of weapon by prior offender (POWPO) statute, which
is to limit the possession of firearms by persons whose past conduct
has demonstrated their unfitness to be entrusted with such dangerous
instrumentalities. See People v. Montez, ___ P.3d ___,
___ (Colo. App. No. 07CA0139, Mar. 18, 2010) (cert. granted Nov. 8,
2010); People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).
The statute prohibits all convicted felons from possessing a firearm
to avoid "substantial risk of harm to the public," see Allen,
111 P.3d at 520, and it would be inconsistent with this purpose to
require proof of a defendant's knowledge of his or her convicted felon
status before prohibiting the possession of a firearm. |
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Express mental state of "knowingly"
in the amended POWPO statute applies only to the element that the
defendant knowingly possessed the weapon and that he or she understood
that the object possessed was a weapon. The only mens rea
requirement for a conviction is knowledge that the instrument
possessed is a firearm. |
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The mens rea or mental state element
of the statute does not require that the prosecution must prove that
that at the time of the alleged offense the defendant knew he or she
had a prior felony conviction. No requirement exists that the
defendant knew of the prior conviction(s). Prior conviction is
established by evidence of conviction. States with similarly
worded POWPO statutes have consistently declined to apply the express
mental state in the statute to the prior felony conviction element of
the offense. |
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Attorney notation. It is now clear that if the prior
offense qualifies statutorily, a deferred sentence which has been
subsequently dismissed upon successful completion is sufficient to
support the prior conviction element under the Colorado
previous offender weapons statute.
CRS 24-72-308(1)(d) (sealing
statute) provides "Upon the entry of an order to seal the records, the
petitioner and all criminal justice agencies may properly reply, upon
any inquiry in the matter, that no such records exist with respect to
such person." The sealing statute also provides for unsealing of
criminal justice records. "Inspection of the records included in
an order sealing criminal records may thereafter be permitted by the
court only upon petition by the person who is the subject of such
records or by the prosecuting attorney and only for those purposes
named in such petition."
CRS 24-72-308(1)(e) Under
the sealing statute, basic identification information is not sealed.
Therefore, upon a records check, law enforcement will have a heads up
to investigate further and perhaps request unsealing.
The appellate court in Dewitt
held a deferred sentence which resulted in dismissal is deemed a prior
conviction for purpose of
POWPO, but
did not address whether a deferred sentence dismissal which has been
subsequently sealed would be construed as a prior conviction and
support conviction under the Colorado previous offender weapons
statute. To counsel's knowledge, whether a deferred sentence
which has been dismissed and sealed will be considered
to be a prior conviction is an issue of first
impression which has not yet been decided by Colorado appellate
courts.
In
debt collection, appellate courts
have ruled the statute of limitations bars enforcement, but does not
extinguish the debt. Appellate courts may use analogous
reasoning that the sealing statute bars seeing or disclosure of the
records unless unsealed, but does not extinguish or eliminate the
underlying conviction. Given appellate rulings which have been
unfavorable to defense, that type of reasoning in future court
opinions is a very
real possibility.
Attorney would not personally wish to be the defendant in the test
case.
On the conservative side since the issue remains undecided, counsel
believes the only safe approach to possession of a weapon is jury
trial and not guilty verdict or flat dismissal by the court not the
result of a deferred sentence, such as suppression of all the
evidence. Criminal justice records should then be
sealed. Otherwise, counsel believes possession of
a weapon is imprudent and may result in criminal charges even if the
dismissed deferred sentence case has been sealed. |
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SEALING OF DEFERRED SENTENCE
TRAFFIC RECORDS |
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SUMMARY
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Sealing of traffic charges is treated differently than criminal
charges. As a general rule, traffic records are excluded and may not be
sealed. CRS
24-72-308 and CRS
42-2-121 The DMV is required to keep a separate file of all
abstracts of court records regarding dismissals and lesser alcohol offense or
non-alcohol offense convictions where the original charges were alcohol or drug
related traffic charges, i.e.: DUI, DEAC or DWAI. These
separate records are available only to criminal justice agencies. The statute in
the above paragraph regarding
sealing
criminal justice records provides it
shall not apply to records pertaining to any class 1 or class 2 misdemeanor
traffic offense or to any class A or class B traffic infraction. CRS
24-72-308(3). Given the traffic exception to
sealing
criminal justice records
statute and records required to be kept by the DMV regarding alcohol related
traffic charges, in counsel's opinion the court would not seal record of a traffic
deferred sentence even after dismissal. Exception - minor with BAC below
0.05.
Refer to the
Sealing
Criminal Justice Records page for more detailed information
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SEALING OF DEFERRED SENTENCE
MISDEMEANOR
or FELONY RECORDS |
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SUMMARY
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Upon successful completion of the period of deferred
sentence, you may have the right to file suit in the district court of the
county of offense to seal the records. CRS
24-72-308. This is a separate lawsuit a person must bring to seal records; it
does not happen automatically upon deferred dismissal. If the records are not sealed, you, persons with
your written authorization, law enforcement agents, prosecutors, probation
officers and courts have
access to the records. The general public may also have access
rights under Colorado Open Records law and Colorado Criminal Justice Records law. Upon sealing of records, you
and criminal justice agencies may properly rely that no such records exist. Inspection thereafter may only be permitted by court order after petition by the
person who is the subject of the records or by a prosecutor seeking to review the records.
CRS
24-72-308(1)(d)&(e). When a defendant has successfully completed the deferred sentence
and dismissal is entered, he / she may wish to petition the district court to seal
the records. Conviction of a felony or misdemeanor could have
sentencing consequences if the person were again charged with a crime of a similar
nature, or other consequences if a
criminal justice records search
is later conducted with or without your written consent for purpose of adoption,
volunteering at a child's or grandchild's school, education, employment or security clearance.
Some criminal offenses have been excluded and may not be sealed.
CRS
24-72-308
refer to the
Sealing
Criminal Justice Records page for more detailed information and
to
waiver of right to seal criminal
justice records if such a clause is contained in your deferred sentencing
agreement
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