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Sharrow v. People

Supreme Court of Colorado, En Banc

April 8, 2019

Jeremy Keith Sharrow, Petitioner
The People of the State of Colorado, Respondent

          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, Colorado



         ¶1 "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?

         ¶2 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).

         ¶3 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.

         ¶4 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.

         ¶5 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 division's.

         ¶6 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.[1] 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.

         ¶7 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 grounds.

         I. Procedural History

         ¶8 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.

         ¶9 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.

         A. First Complaint

         ¶10 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.

         ¶11 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.

         Notably, 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.

         B. Second Complaint

         ¶12 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.

         ¶13 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 addressed.

         ¶14 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.

         ¶15 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.

         ¶16 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 ...

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