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