Peo v. Hollingsworth

Opinion

23CA0539 Peo v Hollingsworth 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0539

El Paso County District Court No. 18CR2873

Honorable Monica J. Gomez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Travis Glenn Hollingsworth,

Defendant-Appellant.

APPEAL DISMISSED IN PART

AND ORDER AFFIRMED

Division III

Opinion by JUDGE DUNN

Yun and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Colorado Legal Defense Group, Mark T. Savoy, Denver, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Travis Glenn Hollingsworth, appeals the district

court’s order revoking his probation and resentencing him in

violation of Crim. P. 11(b)(6). We dismiss the appeal in part and

otherwise affirm.

I. Background

¶ 2 The prosecution charged Hollingsworth with sexual assault,

second degree assault, and unlawful sexual contact based on

allegations that he physically and sexually assaulted his wife.

¶ 3 As part of a plea agreement, Hollingsworth pleaded guilty to

second degree assault and unlawful sexual contact. In exchange,

the prosecution dismissed the sexual assault count. The district

court sentenced Hollingsworth to five years of supervised probation.

One of the probation conditions required Hollingsworth to complete

sex offender treatment.

¶ 4 Less than one year later, probation filed a complaint to revoke

Hollingsworth’s probation (the 2020 complaint). The 2020

complaint alleged that Hollingsworth had been discharged from

Wisdom Works Counseling Services (WWCS) for failure to progress

in his sex offender treatment program. Specifically, WWCS

discharged Hollingsworth from treatment “due to his denial of his

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sexual offense.” However, probation later withdrew the 2020

complaint when Hollingsworth began treatment with a new

provider, Bijou Treatment and Training Institute (BTTI).

¶ 5 About two years later, probation filed a second complaint to

revoke Hollingsworth’s probation (the 2022 complaint). The 2022

complaint alleged that BTTI discharged Hollingsworth for failure to

progress in his sex offender treatment program. In a letter to

Hollingsworth’s probation officer, BTTI explained that Hollingsworth

was resistant to participate in his treatment, he struggled to take

ownership of his offense, and his attendance was problematic.

¶ 6 After an evidentiary hearing, the district court concluded that

Hollingsworth violated the conditions of his probation (as to the

unlawful sexual contact count only) and revoked his probation on

that count for failure to comply with sex offender treatment. The

court resentenced him on that count to five years of probation along

with sixty days of jail and again ordered him to complete sex

offender treatment.

¶ 7 Hollingsworth appeals the order revoking his probation and

resentencing him in violation of Crim. P. 11(b)(6).

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II. Discussion

¶ 8 Hollingsworth contends the district court erred by (1)

“sentencing” him with “little to no factual basis” in violation of Crim.

P. 11(b)(6), and (2) revoking his probation based on “behavior” that

was “outside of the scope of the plea agreement.” Because his first

contention is not properly before us, we dismiss that portion of the

appeal. We affirm the district court’s revocation of his probation.

A. Crim. P. 11(b)(6)

¶ 9 A district court shall not accept a guilty plea unless it

determines, among other things, that a factual basis for the plea

exists. Crim. P. 11(b)(6). However, a defendant may waive the

establishment of a factual basis for the charge to which he pleads

guilty. Id.; see also People v. Medina, 2021 COA 124, ¶ 18.

¶ 10 As we understand it, Hollingsworth asserts that the district

court failed to comply with Crim. P. 11(b)(6) when it originally

“sentenced” him and when it “resentenced” him following revocation

of his probation. But Crim. P. 11(b)(6) applies to a defendant’s plea.

See Crim. P. 11(b)(6) (“The court shall not accept a plea of guilty . . .

without first determining . . . [t]hat there is a factual basis for the

plea.”) (emphasis added); see also Medina v. People, 2023 CO 46,

4

¶ 19 (noting that Crim. P. 11 “govern[s] the procedures by which a

defendant may plead guilty” and “[c]ompliance with Crim. P. 11

‘normally will satisfy constitutional due process concerns’” (quoting

People v. Dist. Ct., 868 P.2d 400, 404 (Colo. 1994))). And Crim. P.

11(b) does not apply to revocation proceedings. See Finney v.

People, 2014 CO 38, ¶ 24 (concluding that “a probationer facing

revocation does not enter a ‘plea’ to a violation, but rather, is

required to ‘admit or deny’ the charges,” and therefore, Crim. P.

11(b) does not apply).

¶ 11 Hollingsworth’s contention therefore actually targets the

validity of his guilty plea — his original conviction. But

Hollingsworth didn’t file a Crim. P. 35(c) to challenge his guilty plea.

See People v. Rockwell, 125 P.3d 410, 414 (Colo. 2005) (“[M]otions

that challenge the validity of a defendant’s plea or the manner in

which it was taken are properly brought under Crim. P. 35(c).”).

Because the only issue before us is the order revoking and

resentencing Hollingsworth to probation, and because Crim. P.

11(b) doesn’t apply to revocation proceedings, we dismiss the appeal

as to Hollingsworth’s contention that the district court failed to

comply with Crim. P. 11(b)(6).

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B. Probation Revocation

¶ 12 Whether a defendant violated any condition of probation is a

question of fact that the prosecution must establish by a

preponderance of the evidence. People v. Gravina, 2013 COA 22,

¶ 15. We review questions of fact for clear error, meaning “factual

findings are ‘binding unless so clearly erroneous as not to find

support in the record.’” People v. Turner, 2022 CO 50, ¶ 19 (quoting

Melssenn v. Auto-Owners Ins. Co., 2012 COA 102, ¶ 16). Once it is

determined that the defendant has violated a condition of

probation, the district court has discretion whether to revoke his

probation. People v. Fair, 2013 COA 41, ¶ 12. We will not disturb

the court’s decision to revoke probation unless that determination

is contrary to the manifest weight of the evidence. Gravina, ¶ 15.

¶ 13 Hollingsworth asserts that the record doesn’t support the

district court’s finding that he violated probation because the

treatment providers (WWCS and BTTI) discharged him from

treatment for “denying acts outside of the underlying offense to

which he pleaded guilty” — namely, for refusing to admit that he

sexually assaulted his wife. In support, he points to the letters

from WWCS and BTTI, which he asserts convey that his rejection

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from treatment was based on the failure to admit to the dismissed

count of sexual assault.

¶ 14 As an initial matter, Hollingsworth’s discharge from sex

offender treatment by WWCS was the basis for the 2020 complaint

— a complaint that was ultimately withdrawn — not the 2022

complaint, which was based on his discharge from BTTI. Thus,

Hollingsworth’s discharge from treatment by WWCS was not before

the district court in the 2022 probation revocation proceedings.

And based on our review of the record provided, we see nothing to

suggest that the court considered the 2020 WWCS discharge to

revoke Hollingsworth’s probation in 2022.

1

¶ 15 We likewise reject Hollingsworth’s assertion that the district

court impermissibly revoked his probation based on BTTI’s

discharge that, he maintains, required him to admit conduct that

was “outside of the scope of the plea agreement.”

1

The record doesn’t include all of the transcripts from the 2022

revocation proceedings. See C.A.R. 10(d)(3) (“The appellant must

include in the record transcripts of all proceedings necessary for

considering and deciding the issues on appeal.”). We therefore

presume that omitted portions of the record support the court’s

order. See People v. Duran, 2015 COA 141, ¶ 12.

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¶ 16 Nothing in BTTI’s discharge letter states that Hollingsworth

was forced to admit to conduct that formed the basis for the

dismissed sexual assault charge as opposed to the unlawful sexual

contact charge. Rather, the letter asserts that Hollingsworth was

discharged from treatment due to his “non-compliance” for having

“made minimal progress” and being “resistant” overall to participate

in treatment. The letter details that Hollingsworth struggled with

owning the offense “as he wrote about it” and has “regressed” to

“denial of his offense and victim blaming.” Moreover, the letter

outlines eleven absences from various group and individual

treatment sessions and five “warning/zero tolerance letters,” and

concludes that Hollingsworth is a community safety risk due to his

lack of progress in treatment.

¶ 17 Based on this record, we perceive no abuse of discretion in the

district court’s decision to revoke Hollingsworth’s probation. The

court found that Hollingsworth violated the condition requiring him

to successfully complete sex offender treatment, and this finding

has substantial record support. See People v. Ickler, 877 P.2d 863,

867 (Colo. 1994) (a court may revoke probation for failure to comply

with a sex offender treatment program); People v. Lientz, 2012 COA

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118, ¶ 44 (a court may revoke probation if a probationer violates

any condition of probation).

III. Disposition

¶ 18 The appeal is dismissed in part and the order revoking

probation is affirmed.

JUDGE YUN and JUDGE MOULTRIE concur.