Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 13CA1164
Attorneys for Petitioner: Megan A. Ring, Public Defender Ned
R. Jaeckle, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Gabriel P. Olivares, Assistant Attorney General Denver,
"There can be no equal justice where the kind of trial a
man gets depends on the amount of money he has."
Griffin v. Illinois, 351 U.S. 12, 19 (1956). This
declaration of timeless reverence is now imbedded in the
marrow of our nation and woven into the tapestry of our
criminal justice system. State and federal jurisdictions
alike apply it widely beyond the trial context. But it is not
without parameters. As sensitive as courts have been to the
plight of indigent defendants, they have recognized that the
protection afforded such defendants must be balanced against
certain fundamental state interests, including in sentencing.
The inherent tension between the unique challenges faced by
indigent defendants and the State's sentencing interests
is at the core of the question we confront today: Does it
violate due process or equal protection to revoke a
defendant's probation and sentence him to imprisonment if
his failure to comply with probation was not willful and was
caused instead by a lack of financial resources?
In Bearden v. Georgia, the United States Supreme
Court held that when a probationer fails to pay a fine or
restitution as a condition of probation, "despite
sufficient bona fide efforts to acquire the resources to do
so, the court must consider alternate measures of punishment
other than imprisonment." 461 U.S. 660, 672 (1983).
Although we have never had occasion to apply
Bearden, we do not write on a clean slate. In the
decade-plus preceding Bearden, we concluded in a
trilogy of cases that probation can be revoked for failure to
make a payment only when such failure is unreasonable or
willful. See Strickland v. People, 594 P.2d 578,
579-80 (Colo. 1979) (restitution payments); People v.
Romero, 559 P.2d 1101, 1101-02 (Colo. 1976) (ordered
attorney fees); People v. Silcott, 494 P.2d 835,
836-37 (Colo. 1972) (child support payments).
But neither Bearden nor any of our prior cases
resolved the question raised by the defendant, Jeremy Keith
Sharrow, in this appeal because the trial court did not
revoke his probation and impose imprisonment based on his
failure to fulfill a financial obligation as a condition of
his probation. Rather, it did so because it found that he had
violated nonpayment conditions of his probation: he
moved from his established residence without his probation
officer's authorization and he was terminated from a
sex-offender-treatment program he was required to complete.
Sharrow claimed that these violations were not unreasonable
or willful because they were caused by his indigency-he could
afford to pay for neither rent nor treatment.
Does Bearden apply to Sharrow's circumstances?
Does our jurisprudence? A division of the court of appeals
concluded that neither does and ruled that, since the
probation conditions that Sharrow violated did not involve a
required payment, the trial court was not compelled to
determine whether his probation violation was
"unreasonable and willful." People v.
Sharrow, No. 13CA1164, slip op. at 5 (Colo.App. Dec. 24,
2015). Therefore, concluded the division, Sharrow's due
process claim fell short. Id., slip op. at 8.
In this appeal, Sharrow contends that his imprisonment
following the revocation of his probation not only violated
his due process rights, but also his right to equal
protection. We conclude that Sharrow's constitutional
rights were not violated, but our analysis differs from the
Today we adopt the rule announced in Bearden for all
probation revocation proceedings in which the defendant
asserts that he lacked the financial means to comply with a
nonpayment condition of probation. We hold that when
a probationer defends against an alleged violation of a
nonpayment condition of probation based on his lack of
financial means, the trial court cannot revoke probation and
impose imprisonment without first determining whether he
failed to comply with probation willfully or failed to make
sufficient bona fide efforts to acquire resources to comply
with probation. If the trial court finds that the defendant
willfully refused to comply with probation or failed to make
sufficient bona fide efforts to acquire resources to do so,
it may revoke probation and impose imprisonment. On the other
hand, if the trial court finds that the defendant could not
comply with probation despite sufficient bona fide efforts to
acquire resources to do so, it must consider alternatives to
imprisonment. Only if alternate measures are not adequate to
fulfill the State's sentencing interests, including in
punishment, deterrence, rehabilitation, and community safety,
may the court imprison an indigent defendant who,
notwithstanding sufficient bona fide efforts to comply with
probation, nevertheless failed to do so. By the same token,
even if the trial court finds that an indigent defendant is
not at fault for failing to comply with probation because he
made sufficient bona fide efforts to acquire resources to do
so, imprisonment following the revocation of probation is
appropriate if there is no adequate alternative to fulfill
the State's sentencing interests.
During his probation revocation hearing, Sharrow presented
evidence of both his indigency and his efforts to find a job
in order to generate sufficient income to allow him to comply
with probation. But the trial court found, with record
support, that Sharrow did not make sufficient bona fide
efforts to obtain employment. Therefore, it did not violate
Sharrow's constitutional rights by revoking his probation
and imposing imprisonment. Because the division upheld the
trial court's decision, we affirm, albeit on other
After sexually assaulting a fourteen-year-old child, Sharrow
pled guilty in January 2010 to one count of sexual assault
(victim under fifteen), a felony, and one count of unlawful
sexual contact, a misdemeanor. Pursuant to the parties'
plea agreement, the trial court dismissed the remaining
charges, placed Sharrow on a four-year deferred judgment and
sentence ("deferred judgment") on the sexual
assault count, and imposed the following concurrent
sentences: four years of sex offender intensive supervision
probation (SOISP) and sixty days in jail on the sexual
assault count; and five years of intensive supervision
probation (ISP) on the sexual contact count.
Between 2010 and 2013, the probation department filed three
separate complaints seeking to revoke Sharrow's deferred
judgment and probation. We describe each complaint and its
related litigation in some detail to place Sharrow's
appeal in context.
In July 2010, Sharrow's probation officer filed a
complaint to revoke Sharrow's deferred judgment and
probation based on numerous alleged violations. As pertinent
here, the probation officer asserted that Sharrow had moved
to a different residence without prior approval and had been
terminated from offense-specific treatment. In October 2011,
the trial court (with a new judge presiding) held an
evidentiary hearing, at the end of which it found that
"sufficient allegations [had] been proven" by the
prosecution. The trial court thus revoked Sharrow's
deferred judgment and probation, and entered a judgment of
conviction on the guilty plea to the sexual assault count.
During the ensuing resentencing hearing, Sharrow explained
that the primary reason for leaving his residence and moving
in with a friend, Brenda Geiger, "was not having enough
money to pay for rent." In determining whether to place
Sharrow back on supervised probation in lieu of imprisonment,
the trial court indicated that it found "very, very
troubling" that Sharrow had absconded from probation for
five months. However, based in part on Geiger's remarks,
the trial court gave Sharrow "one more chance,"
though it did its best to impress upon him that he was
"on the doorstep of prison" and that no other
probation violations would be tolerated:
I will give him one more chance at probation, but Mr.
Sharrow, we must be clear. . . . Any violation of any term
and condition, no matter how technical it may seem to you, in
my opinion, warrants the Probation Department filing another
complaint against you. You've had your chance. This time
you operate without a net. There's nowhere to go but
prison. . . . Any violation of any term of your probation
will be considered by me sufficient to place you in prison.
There are no excuses.
the trial court informed Sharrow that money would continue to
"be a big obstacle." But, upon being asked whether
he "still want[ed] to do this," Sharrow responded,
"Yes." Thus, the trial court resentenced Sharrow to
SOISP for an indeterminate period of at least ten years on
the sexual assault conviction and to ISP for five years on
the sexual contact conviction, to be served concurrently.
Four months later, in February 2012, Sharrow's probation
officer filed another complaint to revoke probation, alleging
numerous violations, including that Sharrow had changed
residence without authorization again and had failed to seek
or maintain lawful employment. In October 2012, after the
complaint was amended to add an allegation that Sharrow had
been terminated from another offense-specific-treatment
program, the matter proceeded to an evidentiary hearing in
front of a third judge, who found that Sharrow had violated
some conditions of his probation.
During the resentencing hearing, defense counsel presented a
letter from RSA, Inc. (RSA), a treatment program willing to
work with Sharrow. The prosecution expressed concern with
placing Sharrow on probation again, including because Sharrow
was going to "have to pay for [his] treatment,"
which was "an issue . . . last time" and one of the
reasons "he was terminated from treatment," and
there was no indication as to how that issue would be
Although the trial court shared the prosecution's
concerns, it nevertheless gave Sharrow a "third"
chance on probation, cautioning him that it would be his
"last." As the judge put it, "[i]t's
either success here, or to be blunt, probably 10 years once I
send you to prison [on an indeterminate sentence with a
minimum term of two years] before you'll even have a
chance to ask the parole commission to consider you" for
release. Sharrow was again placed on SOISP for an indefinite
term of at least ten years on the sexual assault conviction.
On the sexual contact conviction, the trial court resentenced
him to 300 days in the county jail, but awarded him 300 days
credit for time served.
Importantly, after Sharrow was resentenced, the probation
officer informed the trial court that, like other programs,
RSA had shared living arrangements (SLAs), but unlike other
programs, RSA required defendants to find an apartment, put
down a deposit, and pay for the first month's rent. The
probation officer was worried that Sharrow was going to run
into the same problem he had experienced before-not having an
approved residence in which to live after his release from
jail. According to the probation officer, the probation
department had already spent $5, 855 toward Sharrow's
residence at a motel while he was previously enrolled in SLAs
in conjunction with treatment programs, and it would
"take some money to come up with a deposit and his first
month's rent to actually get into a shared living
arrangement at RSA." Defense counsel responded that
everyone understood that Sharrow "ha[d] to get a job, .
. . ha[d] to make some money, [and] ha[d] to pay for
this." But she asked that the probation department give
him a little time to do so by temporarily paying for a motel
again. She further requested that Sharrow be allowed to have
contact with Geiger so that she could provide much-needed
support, including transportation and clothing.
After learning that it would cost $700 to house Sharrow in a
motel for another month, the trial court agreed "to bend
the rules" and ordered the probation department "to
fund one month . . . and one month only" at a motel. It
further ordered that Geiger be allowed to have
"substantial contact" with Sharrow to assist him
with transportation and clothing as he attempted to qualify
for the SLAs at RSA. Because the trial court viewed Geiger as
Sharrow's "lifeline to try and get him into a normal
life," it also authorized her to bring him food and have
social visits with him. Before adjourning, the trial court
warned Sharrow that he had one month, until January 5, 2013,
"to get some money" for the SLAs ...