People v. Wilhite
| Decision Date | 07 October 1991 |
| Docket Number | No. 91SA58,91SA58 |
| Citation | 817 P.2d 1017 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barry D. WILHITE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Douglas D. Barnes, Victor I. Reyes, Deputy State Public Defenders, Pueblo, for defendant-appellant.
The defendant, Barry D. Wilhite, appeals the trial court's order denying him an evidentiary hearing to challenge his rejection by a privately-operated community corrections facility. He argues that sections 17-27-103(3) and 17-27-114(2), 8A C.R.S. (1990 Supp.), are unconstitutional because both statutes provide that a "sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing." We affirm. 1
Wilhite entered a plea of guilty to the offense of criminal attempt to possess a Schedule II controlled substance in violation of sections 18-2-101 and 18-18-105, 8B C.R.S. (1986), a class 4 felony. The plea agreement provided that the defendant would be sentenced to community corrections for a term not to exceed five years, with a one-year minimum residential period. On October 13, 1989, the sentencing court accepted the plea agreement and sentenced the defendant to a Pueblo-based community corrections facility operated by Rocky Mountain Community Corrections, Inc. (Rocky Mountain), a private nongovernmental agency. Rocky Mountain notified the court on November 21, 1989, that it was revoking its acceptance of the defendant because the defendant had tested positive for cocaine use under three urinalysis screenings taken during the month of October. The defendant was transferred to Pueblo County Jail pending a resentencing hearing by the court.
On November 22, 1989, the defendant moved for an evidentiary hearing. He argued that the section of the statute allowing a court to resentence an offender without an evidentiary hearing was unconstitutional. A hearing was held on the defendant's motion on December 6, 1989. The trial court rejected the defendant's argument, finding that the due process clause was not triggered since the defendant had neither a constitutionally recognized due process right to an evidentiary hearing nor a state created liberty interest. In addition, the court found that with respect to the equal protection argument, there is no evidence of different treatment among all diversional inmates, and the fact that there is different treatment between transitional and diversional inmates does not create additional rights for diversional inmates. The trial court issued a written order denying the motions, and on December 18, 1989, the defendant was resentenced to three years in the custody of the Department of Corrections. The defendant now appeals the trial court ruling.
Before considering Wilhite's argument, we will describe briefly community corrections placements and the statutory amendments now before us. Community corrections is a comprehensive plan which provides state funds to local governmental and private agencies for both the diversion and reintegration of offenders from correctional institutions. The Colorado Division of Criminal Justice, Community Corrections in Colorado: 1986 (July 18, 1986) at 1. "Community corrections programs provide 'the sentencing judge with a broader range of alternatives and with a sentencing medium that is more severe than probation, but not as harsh as incarceration.' " Wilson v. People, 747 P.2d 638, 639 (Colo.1987) (quoting People ex rel. VanMeveren v. District Court, 195 Colo. 34, 575 P.2d 4, 6 (1978)).
There are three methods by which an offender may be placed in community corrections. The first method is through direct placement by the sentencing court, as was done in the present case pursuant to section 17-27-105(1)(a), 8A C.R.S. (1986). Second, an offender may be placed into a community corrections facility by transitional placement, section 17-27-106(4)(a), 8A C.R.S. (1986). This occurs when an inmate, who has been incarcerated in a Department of Corrections facility, exhibits good behavior and is moved to community corrections as a transition before being paroled. The final method of placement of an offender into a community corrections facility is as a condition of probation under section 16-11-204(2)(c), 8A C.R.S. (1986). See People v. Akin, 783 P.2d 267, 268 (Colo.1989) (). In this opinion, we will refer to the first two categories as "direct placement offenders" and "transitional offenders."
A community corrections facility is given full authority under section 17-27-103(3) to "accept, reject or reject after acceptance the placement of any offender in its community correctional facility." If an offender is accepted and then rejected, as in this case, the status of that individual is determinative as to the procedures and events which follow.
Transitional offenders remain under the custody of the Department of Corrections, and thus are subject to the Department of Corrections Code of Penal Discipline. Under these rules, a transitional offender who is rejected after being accepted into a community corrections facility is returned to the Department of Corrections and may receive an evidentiary hearing at the discretion of the Department of Corrections, "except that an inmate shall have the right to have class I offenses heard by a hearing board." 2 Colorado Department of Corrections, Code of Penal Discipline § 201-1 (1984). At the hearing, the transitional offender may represent himself or may be assisted by another inmate or staff members and is given the opportunity to present evidence. The transitional inmate is also given the opportunity to have his representative investigate the facts before the hearing. Colorado Department of Corrections, Code of Penal Discipline § 203-1, para. 7(e)(2), (g)(2)(a) (1984). However, even if the Department of Corrections hearing board finds that the person did not commit the alleged violation, the community corrections facility cannot be required to reinstate the inmate.
In Wilson v. People, 747 P.2d 638, we considered whether a probationer was entitled to an evidentiary hearing after he was rejected by a community corrections facility for allegedly violating the facility's rules. We interpreted section 17-27-114, 8A C.R.S. (1986), as contemplating an informal hearing before resentencing.
Wilson grounded his appeal on both sections 17-27-103 and 17-27-114, 8A C.R.S. (1986). As then in effect, section 17-27-103(3) stated:
The corrections board may establish and enforce standards for the operation of any community correctional facilities and community correctional programs and for the conduct of offenders. The corrections board and the department or the judicial district shall establish procedures for screening offenders who are to be placed in any community correctional facility or community correctional program. Such procedures may include the use of an objective risk assessment scale to classify offenders in terms of their risk to the public. The corrections board has the authority to accept, reject, or reject after acceptance the placement of any offender in its community correctional facility or program pursuant to any contract or agreement with the department or a judicial district. If an offender is rejected by the corrections board after initial acceptance, the offender shall remain in the facility or program for a reasonable period of time pending receipt of appropriate orders from the sentencing court or the department for the transfer of such offender. The sentencing court is authorized to make appropriate orders for the transfer of such offender to the department and to resentence such offender and impose any sentence which might originally have been imposed without increasing the length of the original sentence.
Similarly, section 17-27-114 stated:
(1) Where the administrator of a community correctional facility or any other appropriate supervising authority has cause to believe that an offender placed in a community correctional facility has violated any rule or condition of his placement in that facility or any term of his post release supervision under section 17-27-105 or cannot be safely housed in that facility, the administrator or other authority shall certify to the appropriate judicial or executive authority the facts which are the basis for his belief and execute a transfer order to any sheriff, undersheriff, deputy sheriff, police officer, or state patrol officer which authorizes such sheriff, undersheriff, deputy sheriff, police officer, or state patrol officer to transport the offender to the county jail in the county in which the facility is located where he shall be confined pending a determination by the appropriate court or executive authorities as to whether or not the offender shall remain in community corrections. Offenders so confined may apply for bond only where they have been confined due to an alleged violation of a condition of the post release supervision contemplated by section 17-27-105.
(2) If the sentencing court determines that the offender shall not remain in community corrections, the court is authorized to make appropriate orders for the transfer of such offender from the county jail to a correctional facility and to resentence such offender and impose any sentence which might originally have been imposed without increasing the length of the original sentence.
In holding that there was a right to a hearing before revocation, we concluded that:
The defendant was entitled to a hearing before his community corrections placement could be...
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