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People v. Johnson

Court of Appeals of Colorado, Division A

July 13, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Trevelle Keshawn Johnson, Defendant-Appellant.

         El Paso County District Court Nos. 15CR3126, 15CR4048 & 16CR6133 Honorable Michael P. McHenry, Judge

          Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado; Daniel H. May, District Attorney, Doyle Baker, Senior Deputy District Attorney, Brien Cecil, Senior Deputy District Attorney, Tyler Uhlenbrock, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee

          Davide C. Migliaccio, Alternate Defense Counsel, Colorado Springs, Colorado, for Defendant-Appellant

          OPINION

          BERNARD, JUDGE

         ¶ 1 Does the same set of rules govern a court's decision to set bond in the following two categories of cases? The first category includes cases in which the court sets bond for persons who have been charged with felonies and who are awaiting trial. The second category includes cases in which defendants have pled guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the defendants' probation or deferred judgments.

         ¶ 2 We answer the question "no" - meaning that the same set of rules does not apply to the two categories - for two interconnected reasons.

         ¶ 3 First, defendants in the two categories stand on opposite banks of the criminal justice Rubicon. Defendants in the first category are presumed to be innocent. But (1) defendants in the second category have admitted their guilt, so the presumption of innocence is long gone; (2) such defendants are not entitled to many of the fundamental rights that those in the first category enjoy; and (3) probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate.

         ¶ 4 Second, Colorado's constitution and the pertinent bond statutes recognize this separation between the two categories. In the first category, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second category, the law gives courts discretion to set bond.

         ¶ 5 In this case, probationer, Trevelle Keshawn Johnson, asks us to review the revocation court's decision to deny him bond in two cases. He filed a petition requesting such review under section 16-4-204, C.R.S. 2016.

         ¶ 6 We dismiss probationer's petition, see § 16-4-204(3)(d), because we conclude that (1) his two cases fell into the second category; (2) the revocation court therefore had discretion to deny his request for bond in those cases; and (3) the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

         I. Background

         ¶ 7 In El Paso County criminal case number 15CR3126, probationer pled guilty to the class five felony of menacing. With the prosecution's consent, the court entered a deferred judgment and ordered probationer to submit to the supervision of the probation department for four years.

         ¶ 8 In El Paso County criminal case number 15CR4048, probationer pled guilty to the class six felony of criminal impersonation. The court sentenced him to probation for four years, adding that this four-year period would be consecutive to the four-year deferred judgment in the menacing case.

         ¶ 9 Probationer entered into these plea dispositions on the same day in October 2015.

         ¶ 10 While probationer was serving his probation and deferred judgment in these two cases, the prosecution charged him in El Paso County criminal case number 16CR6133 with, among other crimes, first degree felony murder and robbery. He was arrested and jailed on November 22, 2016. He was held without bond in that case pending his combined preliminary hearing and bond hearing.

         ¶ 11 The record that we have is not entirely clear, but it appears that, after probationer's arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case. The record does not contain these motions, but we can piece together what they alleged from other documents and transcripts in the record. It looks like they alleged that probationer had violated the terms of his deferred judgment and his probation because he had committed the offenses with which he had been charged in the murder case.

         ¶ 12 In late November 2016, the revocation court issued an arrest warrant in the menacing case because of allegations that probationer had not complied with the terms of his probation. The same thing happened in early December 2016 in the criminal impersonation case. The minute orders in the record indicate that probationer was booked into jail on both cases because of a "WFTC Warrant Failure to Comply." (Defendant was simultaneously in custody based on his arrest in the murder case.)

         ¶ 13 The trial court held a combined preliminary hearing and bond hearing in the murder case in mid-February 2017. Although the court found probable cause to believe that probationer had committed these crimes, it also found that the prosecution had not established that proof of his guilt was evident or that the presumption was great that a jury would convict him. The court therefore set bond at $75, 000. Probationer's trial in the murder case is pending, and he is obviously presumed to be innocent of the charges in that case.

         ¶ 14 In early March 2017, the revocation court held a hearing to determine whether it would grant probationer's request for bond in the menacing case and in the criminal impersonation case.

         ¶ 15 Probationer asserted that the revocation court should set bond in both cases because (1) the only allegation in the motions to revoke his probation and his deferred judgment was that he had been charged with new crimes in the murder case; (2) he was presumed innocent of those new crimes because the charges had not yet been resolved; (3) he had done well while on probation and on the deferred judgment because he had appeared at all his appointments and because he had a job; (4) he could "get employment" if the court released him on bond; (5) he had been born and raised in the local community, and his family supported him; and (6) he was only nineteen years old.

         ¶ 16 The prosecution replied that section 16-4-103(5), C.R.S. 2016, which lists criteria that a court should consider when setting and selecting the type of bond, applied to probationer's request for bond. (We conclude below that a different statute controls the resolution of this petition, but it appears to us that the revocation court implicitly focused on the proper statute.)

         ¶ 17 The prosecution then added that (1) probationer had "significant incentive to [flee] the jurisdiction" because he was on probation "when he committed the crimes" charged in the murder case; (2) there was a "possibility of [additional] violations of the law" if the court released probationer on bail; (3) the revocation court had "a very good indication that [he would] continue to violate" any bond conditions that the court might impose; (4) probationer had told the police in the murder case that he did not know that the robbery would result in a homicide, but he added that he and his accomplice had been "robbing people for marijuana"; (5) smoking marijuana violated the conditions of probationer's deferred judgment in the menacing case and his probation in the criminal impersonation case; (6) he had previously failed to appear in court three times in unrelated misdemeanor cases; (7) he had not reported to his probation officer during the time that he was "running from the law, " which appears to be a reference to when the events in the murder case had occurred; (8) one of the victims in the menacing case had told the prosecutor that he wanted the court to deny probationer's request for bond; and (9) the mother of the murder victim in the murder case asked the court to deny probationer's request for bond.

         ¶ 18 The prosecutor then told the revocation court that it would be "justified in continuing to hold [probationer] without bond based on his pattern of violating conditions of his supervision, " and his probation officer could not "watch him all the time."

         ¶ 19 The revocation court denied probationer's request for bond in the menacing case and the criminal impersonation case. It thought that it had a "much higher degree of certainty" as to the likely outcome of the motion to revoke the deferred judgment in the menacing case and the motion to revoke probation in the criminal impersonation case than the outcome of the pending charges in the murder case. Indeed, the court added that it was making a "separate judgment" in the former two cases from that in the latter one.

         ¶ 20 The court added that it saw a "philosophical distinction" between preconviction and postconviction cases. This distinction also applied to the judgment that the court was required to make about whether probationer presented an excessive risk to the community. (We note that the transcript in the record contains several puzzling word choices. For example, the transcript indicates that the court used the word "recessive" when discussing probationer's risk to the community. But we are confident from the context of this language that the court was discussing "excessive" risk.)

         ¶ 21 At the end of the hearing, the revocation court set a date in April 2017 for a hearing on the prosecution's motions to revoke probationer's deferred judgment and his probation. On that day, probationer asked the court to continue the hearing on the revocation motions until after the charges in the murder case had been resolved. So, according to the record before us, probationer remains in custody, without regard to whether he could make the $75, 000 bond in the murder case, because the revocation court denied his request for bond in the menacing case and in the criminal impersonation case.

         II. Analysis

         ¶ 22 Probationer asserts that the revocation court was "constitutionally and statutorily required" to set bond in the menacing case and the criminal impersonation case "under the circumstances present" in those cases. The court therefore "abused its discretion and exceeded its jurisdiction" when it "refus[ed] to set . . . bond." As a result, probationer "is being unconstitutionally held without bond."

         ¶ 23 His contention focuses on Colorado Constitution article II, section 19(1), and section 16-4-101(1), C.R.S. 2016. He asserts that the motions to revoke in the menacing case and the criminal impersonation case are "new charges." He therefore has a right to bond on these "new charges, " he continues, because he has not yet been "convicted" of them. See Colo. Const. art. II, § 19(1) ("All persons shall be bailable by sufficient sureties pending disposition of charges . . . ."); § 16-4-101(1) ("All persons shall be bailable by sufficient sureties . . . .").

         ¶ 24 We generally review a trial court's decision to grant or to deny bond for an abuse of discretion. See, e.g., People v. Hoover, 119 P.3d 564, 566 (Colo.App. 2005). But probationer also presents us with a legal ...


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