Benz v. People, 99SC223.
| Citation | 5 P.3d 311 |
| Decision Date | 03 July 2000 |
| Docket Number | No. 99SC223.,99SC223. |
| Parties | Richard S. BENZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
Cleaver & Cleaver, Thoburn G. Cleaver, III, Boulder, Colorado, Ingrid J. DeFranco, Boulder, Colorado, Attorneys for Petitioner.
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Lauren A. Edelstein, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.
We granted certiorari in this case1 to review the resentencing of Richard S. Benz (Benz) following his initial acceptance and subsequent rejection from a community corrections program. We hold that section 17-27-103(7), 6 C.R.S. (1999), provides for the sentencing court, as the referring agency, to conduct the administrative review process if the community corrections board or program has not done so. Here, the sentencing court provided the review contemplated by statute when it acted upon Benz's rejection from community corrections. Thus, we affirm the judgment of the court of appeals. See People v. Benz, 983 P.2d 117 (Colo.App.1999)
.
On April 22, 1997, Benz pled guilty to one count of Sexual Assault on a Child by a Person in a Position of Trust, see § 18-3-405.3, 6 C.R.S. (1999), and was sentenced to sixteen years in a community corrections facility. Following a court-ordered psychosexual evaluation, the sentencing court ordered that the defendant participate in a residential program for sex offenders, called Teaching Humane Existence (THE). At Benz's original sentencing hearing, the prosecution argued for a sentence to community corrections representing the maximum under the sexual assault on a child statute, which defines the offense as a Class 3 extraordinary risk felony.2 The prosecution asked the sentencing court to make the conditions of compliance with THE an explicit condition of Benz's sentence, and the court so ordered. THE's staff initially believed Benz to be cooperating in his treatment. However, two sets of polygraph results revealed the possibility that he had engaged in prohibited sexual interaction with his roommate at the facility. Furthermore, the examinations indicated a ninety-nine percent probability that Benz was widely deceptive throughout all areas of the questioning.
Prompted by the results of the polygraphs as well as Benz's other infractions of the facility's rules, THE notified the Boulder County Probation Department on July 24, 1997, of Benz's rejection from the program. In a letter to Benz's probation officer, staff wrote that the results of Benz's polygraph examinations formed the basis for their decision that Benz could not be safely contained or treated at the THE facility:
The letter continued:
Community corrections, by definition, requires the offender to have contact with the community. The ability to establish a reliable containment system is quintessential to retention in our programs. The termination of Mr. Benz from our programs was predicated upon our determination we could not adequately contain Mr. Benz.
Benz appeared for a resentencing hearing in Boulder County District Court on August 14, 1998. At the resentencing hearing, Benz, through counsel, asked the court for a continuance to allow a defense polygraph expert to confer with community corrections staff in order to ascertain whether procedures followed by THE's polygraph examiner yielded reliable results for sex offenders such as Benz. The court denied the motion following consideration on the record of Benz's community corrections and psychosexual evaluations showing his high risk to the community and low capacity for treatment. The court then imposed a twelve-year sentence to the Department of Corrections.
At the end of the proceeding, Benz argued that he was not afforded the statutory review required of the community corrections board prior to his termination from the program and resentencing. The sentencing court denied Benz's motion as well as a subsequent Motion to Reconsider on the same issue.
The court of appeals affirmed the sentence to the Department of Corrections, holding that the sentencing court had performed the statutorily required review in its capacity as the "referring agency" under section 17-27-103(7). We agree and affirm the judgment of the court of appeals.
We hold that section 17-27-103(7) provides that the sentencing court, as the referring agency, may conduct the administrative review process when the community corrections board or program does not. Here, the sentencing court provided the review contemplated by statute following Benz's rejection from community corrections.
Community corrections programs are governmental or private entities that contract with the state for the housing and treatment of lower-risk offenders. See § 17-27-104, 6 C.R.S. (1999). The programs generally provide sentencing courts with the option of a "sentencing medium that is more severe than probation, but not as harsh as incarceration." People ex rel. Van Meveren v. District Court, 195 Colo. 34, 36, 575 P.2d 4, 6 (1978). As we noted in Lawson v. Zavaras, 966 P.2d 581, 585 (Colo.1998), "community corrections programs make use of a variety of different approaches in addressing the educational, vocational, and treatment needs of offenders placed in the programs." Community corrections programs therefore may incorporate both residential and non-residential options, depending upon the type of offender and the purposes and scope of the treatment. See id. at 585-86.
There are three ways in which an offender may be placed in community corrections: 1) a trial court may sentence a person directly to community corrections ("direct placement offender"); 2) an offender may serve in community corrections as a condition of probation; or 3) the Department of Corrections (DOC) may refer someone to community corrections if he or she is statutorily eligible pursuant to section 17-27-105(2), 6 C.R.S. (1999) ("transitional offender"). See People v. Wilhite, 817 P.2d 1017, 1019 (Colo. 1991)
. For transitional offenders, the "referring agency," see, e.g., § 17-27-103(7), is the DOC, while the sentencing court is the "referring agency" for direct placement offenders. In this case, because Benz is a direct placement offender, we address the sentencing court's role as the referring agency.
The legislature has frequently revised the statutory scheme regarding community corrections. Under different versions of the community corrections statutes, different procedural requirements have applied.
In Wilson v. People, 747 P.2d 638, 641-42 (Colo.1987), we interpreted a version of the statutes that allowed resentencing of an offender rejected by community corrections "pending a determination by the appropriate court or executive authorities as to whether or not the offender shall remain in community corrections." § 17-27-114, 8A C.R.S. (1986). Reasoning that the statutes contemplated the possible referral of a rejected offender to a different community corrections program, we held that implicit in the statute was the need for an evidentiary hearing on the reasons for the rejection. We articulated standards for that hearing, which included permitting the defendant to present evidence and requiring the state to prove the reason for termination from community corrections by a preponderance of the evidence. See Wilson, 747 P.2d at 641-43
.
In 1989, in response to our decision in Wilson, the General Assembly revised the community corrections statutes, adding a sentence to sections 17-27-114(2) and 17-27-103(3), 8A C.R.S. (1990 Supp.). These revisions stated that "[t]he sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing." Ch. 149, secs. 7, 8, §§ 17-27-103, 17-27-114, 1989 Colo. Sess. Laws 862, 864-65; Hearings on House Bill 1091 before the Senate Judiciary Committee (February 27, 1989); Wilhite, 817 P.2d at 1021-23.
We reviewed a claim brought under the revised statute in Wilhite, 817 P.2d at 1021-22, concluding that the additional language gave the community corrections facility discretion to reject the defendant before or after acceptance for "any reason or no reason at all." We determined that the defendant's due process claim was without merit, as the statute's award of broad discretion to a community corrections board created "no right or justifiable expectation" sufficient to trigger due process protections. Id. at 1022. Applying the same statute, we held in People v. Abdul, 935 P.2d 4, 8 (1997), that the ruling in Wilhite regarding evidentiary hearings encompassed resentencing hearings, and a court may resentence an offender following rejection from community corrections without a hearing of any kind.
In 1993, the legislature repealed sections 17-27-103(3) and 17-27-114 of the community corrections...
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