October 29, 2019 — The Colorado Supreme Court’s recent ruling that found people cannot be sentenced to both prison and probation for the same case is expected to have limited impact in the 7th Judicial District.
“It may affect a few cases, but we don’t have any way of figuring out what cases might be impacted by that. The court will have to bring it up, or a defendant, or if by some reason we become aware of it, we would ourselves moved to fix an illegal sentence,” District Attorney Dan Hotsenpiller said.
“It’s not something we’ve done much of at all. I’ve always taken the position it was illegal, so I discouraged it.”
The State of Colorado can petition for a rehearing on the case; the initial deadline was Monday but it has now been extended to Nov. 6. The Colorado Attorney General’s Office is continuing to reach out to district attorneys on possible next steps, Lawrence Pacheco, director of communications for the office, said.
How many cases might be affected statewide hasn’t been established.
The Colorado Supreme Court ruled Sept. 23 in the case of Frederick Allman, who had been convicted in Boulder County of seven counts of identity theft, two counts of forgery, attempted ID theft, aggravated motor vehicle and theft from an at-risk elder.
He received a 15-year prison term and five years of parole (post-release supervision through the Department of Corrections). For the forgery, he was sentenced to 10 years of probation, consecutive to the prison sentence, but concurrent with his parole.
Allman appealed the identity theft convictions and also raised issues with his sentence. He sought a state supreme court review after the Court of Appeals affirmed the judgment and sentence.
Although Colorado Supreme Court justices rejected Allman’s argument that identity theft is a continuing offense, so his convictions for eight counts should have “merged” at sentencing, they in effect agreed with his argument concerning the prison and probation sentence.
“We hold that when a court sentences a defendant for multiple offenses in the same case, it may not impose imprisonment for certain offenses and probation for others,” the justices wrote, remanding Allman’s case to the trial court for re-sentencing.
A court’s authority to impose a sentence rests in state law, but the statute governing probation does not explicitly provide authority to sentence to both imprisonment and probation in a multi-count case, the ruling says.
For one, “the determination that probation is an appropriate sentence for a defendant necessarily requires a concordant determination that imprisonment is not appropriate,” the justices found. “ … The probation statute gives courts guidance and discretion in choosing to grant probation. However, it requires a choice between prison and probation.”
Hotsenpiller said it was his understanding that the law prevented prison and probation sentences in a single case.
“I felt like if someone was being sentenced to prison, then they were not appropriate to be placed on probation and that’s not what we should be doing. I have not legally analyzed this for years, but decades ago, I remember learning you can’t do this, it doesn’t work,” he said.