People v. Benz, 97CA1777.

• Decision Date: 21 January 1999
• Docket Number: No. 97CA1777.,97CA1777.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard S. BENZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 117

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard S. BENZ, Defendant-Appellant.

No. 97CA1777.

Colorado Court of Appeals, Div. III.

January 21, 1999.

Rehearing Denied February 25, 1999.

Certiorari Granted September 13, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Lauren A. Edelstein, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Cleaver & Cleaver, Thoburn G. Cleaver, Boulder, for Defendant-Appellant.

Opinion by Judge JONES.

Defendant, Richard Benz, appeals the sentence imposed following his termination from a community corrections program. On appeal, defendant argues that he was improperly terminated from community corrections without sufficient administrative review and a finding of "cause" for his termination. We conclude that defendant was terminated for cause after receiving the informal administrative review to which he was entitled. Therefore, we affirm.

Defendant pled guilty to sexual assault on a child and was sentenced to 16 years in community corrections.

Approximately two months later, defendant was removed from community corrections and placed in custody at the county jail. Defendant's case manager at the community corrections treatment facility sent a letter to the probation department explaining that defendant had been terminated because a polygraph examination indicated he was being deceptive in answering questions concerning other offenses. The letter was signed by the program director who indicated she had reviewed the decision to "Reject After Acceptance." A second letter to the probation department from the vice-president of the corporation operating the community corrections treatment program explained that defendant posed an "unacceptable risk for community placement" because of his deceptive polygraph responses.

When defendant appeared before the court for resentencing he sought a continuance in order to gather evidence challenging the reliability of the polygraph testing procedures employed by the community corrections program. The court denied defendant's request for a continuance and resentenced him to the custody of the Department of Corrections for 12 years. After resentencing, and again in a motion to reconsider, defendant objected to the resentencing, arguing that he had been terminated from community corrections without receiving notice and an opportunity for a hearing before the community corrections board. The trial court denied defendant's motion and this appeal followed.

A "community corrections program" is a public or private "community-oriented program that provides supervision of offenders." Section 17-27-102(3), C.R.S.1998.

In Wilson v. People, 747 P.2d 638 (Colo. 1987), our supreme court held that, under the community corrections statutes then in effect, a probationer sentenced to community corrections was entitled to a hearing before his community corrections placement could be revoked because of an alleged violation of a rule or condition of placement. The court interpreted the statute to require the sentencing court to determine the existence of the alleged violation and further to decide, if the violation was established, whether the offender should remain in community corrections.

Thereafter, in People v. Wilhite, 817 P.2d 1017 (Colo.1991), the supreme court observed that the General Assembly had amended the community corrections statutes in response to Wilson v. People, supra.

The court thus held that, under the amended statutes, a defendant had neither a constitutional nor a statutory right to an evidentiary hearing when resentenced after termination from community corrections. In reaching that conclusion, the court explained that:

The United States Supreme Court has held that the Constitution does not require hearings when a prisoner is transferred to more restrictive confinement unless there is some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior.... Here, the defendant could have had no reasonable expectation that he would be transferred only for misbehavior because the statute very clearly gives the community corrections facility discretion to reject the defendant before or after acceptance for any or no reason.

People v. Wilhite, supra, 817 P.2d at 1021-22.

In People v. Abdul, 935 P.2d 4 (Colo.1997), the supreme court reaffirmed People v. Wilhite, supra,

again holding that a defendant directly sentenced to community corrections could be terminated for any reason or no reason at all. The court pointed out that the community corrections statutes had again been amended in 1993 but did not address those amendments because they were inapplicable to that defendant.

Most recently, in Lawson v. Zavaras, 966 P.2d 581 (Colo.1998), a habeas corpus case, the supreme court held that a defendant rejected after acceptance from a work-release community corrections program does not have a liberty interest in remaining in the program because the residential nature of the program is more akin to incarceration than to probation or parole. The court disposed of the petitioner's claimed due process violations "without knowing whether he exercised his right to the administrative review process" established in the 1993 amendments to the community corrections statutes. Lawson v. Zavaras, supra,

(fn. 8).

Here, unlike in Lawson v. Zavaras, supra,

defendant did seek to invoke the new administrative review procedures presently set forth in the community corrections statutes. Thus, it is necessary for us to determine whether, as defendant asserts, the new administrative review procedures give rise to any liberty interest subject to due process protections.

Under the present statutory framework, a defendant sentenced to community corrections who is accepted and subsequently rejected has no right to "any further hearing" in the trial court prior to resentencing. Section 17-27-105(1)(e), C.R.S.1998; People v. Abdul, supra.

However, such a defendant does now have a very limited statutory right to administrative review of a post-acceptance termination action:

A community corrections board has the authority to reject after acceptance the placement of any offender in a community corrections program within the jurisdiction of such board. If the referring agency does not provide an administrative review process relating to such rejection after acceptance, the community corrections board shall provide an administrative review process for any offender who is rejected after acceptance by such board. The community corrections board shall provide written notification of the rejection after acceptance of any offender to the referring agency and the administrator of the community corrections program in which the offender is placed.

Section 17-27-103(7), C.R.S.1998.

"Administrative review process" is defined as:

a sequence of actions that includes written notification to an offender of the

...