24CA0528 Peo v Pabon 08-27-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0528 Jefferson County District Court No. 22CR1712 Honorable Lindsay VanGilder, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Jayeson Manuel Pabon, Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE SCHUTZ
Lipinsky and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 27, 2026
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Kit Timothy Beikmann, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrew Vierra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jayeson Manuel Pabon, appeals the district court’s order revoking his probation and resentencing him to the custody of the Department of Corrections (DOC). We affirm.
I. Background and Procedural History
¶2 In February 2023, Pabon pleaded guilty to second degree assault. The district court sentenced him to a stipulated term of sixteen years in the custody of the DOC, with the DOC sentence suspended on the condition that he successfully complete eight years of probation. One of the probation conditions required Pabon to complete treatment at the Other Side Academy (Other Side), a two-year residential program specializing in substance abuse treatment. In July 2023, Other Side requested that Pabon be transferred to a program that had mental health and therapeutic resources to better meet Pabon’s needs.
¶3 In response to the request, the district court modified Pabon’s probation conditions to allow him to participate in the Short-Term
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Alternative Residential Treatment (START)1 program, which had the mental health resources necessary to treat Pabon.
¶4 START is a ninety-day program in which clients are housed at Intervention Community Corrections Services (ICCS)2 and receive clinical services. For the program’s first forty-five days, probationers generally cannot work or attend “outside activities” other than probation appointments or court proceedings. During START, Pabon was also prohibited from having a phone in certain areas, including his room. Before Pabon entered the program, START personnel explained the cell phone policy to him and he signed a contract agreeing to this and the START program’s other rules.
1 During the probation revocation hearings, some of the witnesses
referred to Strategic Individualized Remediation Treatment, which is an outpatient care treatment program for people involved in the criminal justice system. See Colo. Behav. Health Admin., Strategic Individualized Remediation Treatment (STIRT) Program, https://perma.cc/YSH8-MTXR. Read in context, however, it is clear that this testimony related to the treatment program that the parties referred to as START in their appellate briefs. 2 ICCS is a community corrections agency that provides a variety of
services, including, in pertinent part, residential offender management and substance abuse monitoring. Intervention, Inc., Intervention Community Corrections Services, https://perma.cc/UA9F-SJFB.
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¶5 During a facility headcount, a START employee discovered a cell phone in Pabon’s room and confiscated it. The staff notified Josey Hall, an ICCS program supervisor, who searched the phone’s contents. Hall discovered sexually suggestive text messages between Pabon and a contact identified as “Khalifa.” She suspected the messages were either a conversation with Pabon’s case manager or fabricated by Pabon.3 Hall was concerned that, if authentic, some of the text messages could be construed to suggest that a START employee violated the Prison Rape Elimination Act (PREA), 34 U.S.C. §§ 30301-30309, by engaging in a sexual relationship with a START resident.
¶6 Ultimately, the investigation revealed that, while at the program, Pabon had used TextNow, a messaging application that allows users to send text messages from different phone numbers. TextNow users can create accounts with an email address or phone number and send text messages through the application.
¶7 START investigators determined that Pabon used his TextNow account to fabricate text messages that appeared to come from his
3 Pabon told investigators that “Khalifa” was a name he used to identify an unrecognized phone contact.
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case manager. Using this ruse, Pabon sent various sexual messages to his phone number, screenshotted these messages, and then sent the screenshots to his girlfriend.
¶8 Based on the results of the investigation, START staff determined that Pabon had violated various START program rules, including the prohibition against acts of forgery, which the START program characterizes as a class one rule violation — its most serious category of violations. An ICCS case manager supervisor conducted a hearing to determine whether Pabon had violated START’s rules. Pabon, who participated in the hearing, denied authoring the text messages, claiming that anyone — including his roommates — could have sent them.
¶9 After the hearing, START staff found that Pabon had violated START Program Rule 104 (rule 104), which states, “[A] resident violates this [rule] when they create or alter[] a document with intent to lie, deceive, misrepresent; or through[] trickery, or false claims, attain[] anything for personal gain or benefit.” As a result of this finding and other rule violations, Pabon was discharged from the program.
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¶ 10 Pabon’s probation officer later filed a complaint to revoke his probation for multiple violations, including breaking START rules, missing a scheduled appointment, visiting unauthorized locations on six different occasions, and failing to complete court-ordered substance abuse and domestic violence programs.
¶ 11 The district court set the matter for a probation revocation hearing. After hearing the evidence, which included testimony from START employees and Pabon, the court made detailed factual findings. The court found that Hall’s testimony regarding the source and content of the messages was credible and Pabon’s contrary testimony — that the text messages were created by some other person — was not credible. Ultimately, the court concluded that the prosecution proved by a preponderance of the evidence that Pabon violated the terms of his probation. The court then imposed the previously stipulated term of sixteen years in DOC custody and credited Pabon with 380 days of presentence confinement credit (PSCC), which did not include any time that Pabon spent in the START program.
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II. Burden of Proof
¶ 12 Pabon contends that the district court applied the wrong burden of proof when it found that he violated his probation by committing conduct that could, in some circumstances, be considered a criminal act. Pabon argues the court should have applied the “beyond a reasonable doubt” standard rather than the preponderance standard. We disagree.
A. Additional Facts
¶ 13 Before starting his sentence, Pabon was advised of the probation conditions and signed and initialed an acknowledgment of those conditions. Condition eight required Pabon to “actively participate in, cooperate with, and successfully complete any referral, evaluation, assessment or recommended program. These programs may include but are not limited to[] placement in a residential or outpatient program, counseling or treatment for drugs or alcohol, mental health, domestic violence, cognitive behavioral, offense specific or anger management.” Additionally, during Pabon’s intake at ICCS, he was advised of START’s rules, including its phone policy.
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¶ 14 At the probation revocation hearing, Hall testified that inappropriate sexual contact between a START employee and a program participant could be viewed as a felony offense by the staff member under PREA. Thus, START staff concluded that Pabon’s impersonation of a staff member was a serious rule violation justifying his termination from the program. Hall also testified that Pabon’s lack of accountability or transparency about writing the messages made her uncomfortable with his remaining in START.
¶ 15 Pabon testified that he received the text messages from an unidentified number and, based on contextual clues, deduced that his case manager sent him the messages. Pabon stated that, once the messages became sexual in nature, he told the sender to stop and then saved the messages under the name “Khalifa.” He also admitted taking screenshots of the texts and sending them to his girlfriend because he said he wanted to have “honest” communications with her about matters of a sexual nature.
¶ 16 Pabon denied sending himself the messages and claimed that, because he logged into TextNow on both the ICCS computers and his phone, which other START participants could have accessed to use his TextNow account.
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¶ 17 As it relates to the rule 104 violation, the district court found as follows:
[T]here is evidence based on the content of the messages between TextNow and Mr. Pabon’s personal number that support[s] [the]
conclusion that they were sent and received from the same person or account. Specifically, the content would require somebody to know Mr. Pabon’s circumstances, past locations, and it presumably would also require the person to know Mr. Pabon’s personal number in order to send the TextNow message . . . .
. . . I have not been presented any indication of what a motive of a random third party would be to send this type of messaging that Mr.
Pabon then forwards on to his current significant other. And so the [c]ourt does find credible the testimony that there is indication that these text messages were fabricated and sent with some intention to utilize them in his current relationship.
¶ 18 Thus, the court concluded that the prosecution proved, by a preponderance of the evidence, that Pabon violated the terms of his probation based on the rule 104 violation, as well as his unauthorized absences, missed urinalysis tests, and failure to complete substance abuse and domestic violence programs. Accordingly, the court revoked Pabon’s probation sentence. See 16-11-206(5), C.R.S. 2025 (“If the court determines that a violation
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of a condition of probation has been committed, it shall . . . either revoke or continue the probation.”).
B. Standard of Review and Applicable Law
¶ 19 We review questions of statutory interpretation and the district court’s legal conclusions de novo. People v. McKimmy, 2014 CO 76,
¶ 19. Pabon’s claim that the court applied the wrong burden of proof is unpreserved. We review unpreserved claims for plain error. Hagos v. People, 2012 CO 63, ¶ 14. Under that standard, reversal is required only if the alleged error “so undermined the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment.” People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003).
¶ 20 A probation revocation hearing serves a different function than a criminal trial. People v. Johnson, 2017 COA 97, ¶ 37. The purpose of a revocation hearing is to consider the defendant’s conduct after an adjudication of guilt on the underlying criminal charges. Byrd v. People, 58 P.3d 50, 55 (Colo. 2002). Because probation is a privilege rather than a right, any violation of a probation condition can result in revocation. Id. Generally, the prosecution has the burden of proving a probation violation by a
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preponderance of the evidence. See § 16-11-206(3). But the prosecution must prove the commission of a new criminal offense beyond a reasonable doubt unless the probationer has already been convicted of the offense in a criminal proceeding, in which case the existence of the conviction must be proved by a preponderance of the evidence. Id.
¶ 21 In contrast, “[i]n criminal cases, the prosecution is required to ‘prove every factual element necessary to constitute the crime charged beyond a reasonable doubt.’” People v. Knobee, 2020 COA 7, ¶ 21 (quoting Vega v. People, 893 P.2d 107, 111 (Colo. 1995)).
¶ 22 In People v. Moses, 64 P.3d 904, 906 (Colo. App. 2002), a division of this court confronted the same issue that Pabon presents: “[W]hich burden of proof applies when a probationer’s alleged violation of a specifically enumerated condition of probation might in and of itself constitute a criminal offense”? Applying established statutory construction principles, the court reasoned that section 16-11-206(3)
does not require proof beyond a reasonable doubt when it is alleged that a specific and discretionary [probation] condition has been breached, even though the breaching conduct may also be a criminal offense. Thus,
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[section] 16-11-206(3) provides that when the basis of revocation is a defendant’s violation of a condition of probation, . . . the applicable standard of proof is a preponderance of the evidence.
Id. at 907.
C. The Parties’ Contentions
¶ 23 Pabon contends that the district court erred by failing to apply the beyond a reasonable doubt standard to the allegation that he violated rule 104 because the alleged conduct that violated the rule could also have potentially supported a criminal charge.
¶ 24 The People counter that the district court applied the proper burden of proof because Pabon’s revocation was not based on the commission of a criminal offense and the alleged conduct is not necessarily a crime just because rule 104 contains some statutory language from the criminal code.
D. Analysis
¶ 25 Following the well-reasoned opinion in Moses, we conclude that the preponderance of the evidence standard applied to these revocation proceedings. See id.
¶ 26 We are unpersuaded by Pabon’s attempt to distinguish Moses. He argues that the probation condition Moses violated — use of a
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controlled substance — was a discretionary condition without a direct counterpart in criminal law. In contrast, he argues, violating a program condition is a standard probation term and rule 104 encompasses some types of conduct that could constitute forgery.
¶ 27 First, we reject Pabon’s contention that rule 104 is a standard probation condition. The specific content of the rule appears to have been created and adopted by the START program. Second, conduct that violates rule 104 does not necessarily constitute criminal forgery. See § 18-5-102(1), C.R.S. 2025 (setting forth the elements of forgery); see also Starr v. Indus. Claim Appeals Off., 224 P.3d 1056, 1062 (Colo. App. 2009) (“There are many acts which constitute fraud that are actionable at both law and equity[, but] which do not amount to violations of the criminal law. . . .” (quoting Scott v. Scott Paper Co., 195 So. 2d 540, 541-42 (Ala. 1967))). For example, unlike section 18-5-102(1), rule 104 does not require proof of a defendant’s intent to defraud.
¶ 28 Moreover, Pabon was not charged with the crime of forgery, he was only accused of violating rule 104. Nor was he convicted of fraud or any similar criminal offense based on his conduct during START. We therefore conclude that this probation condition falls
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within the principles announced in Moses, and the district court did not err — much less plainly err — by applying the preponderance of the evidence standard. See Moses, 64 P.3d at 906.
III. Sufficiency of the Evidence
¶ 29 Pabon also contends that there was insufficient evidence that he violated the terms and conditions of his probation, including rule 104.
A. Standard of Review and Applicable Law
¶ 30 Sufficiency of the evidence claims are reviewed de novo. McCoy v. People, 2019 CO 44, ¶ 63. In doing so, “[w]e consider ‘whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.’” Id. (quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)). However, as previously discussed, in a probation revocation proceeding, the prosecution is only required to prove the charged probation violation by a preponderance of the evidence. Knobee, ¶ 21.
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¶ 31 When a revocation decision is based on disputed facts, we review the district court’s factual findings for clear error. See People v. Nelson, 2014 COA 165, ¶ 17. Factual findings are clearly erroneous only if devoid of record support. Id.
B. The Parties’ Contentions
¶ 32 Pabon argues that there was insufficient evidence to prove — whether by a preponderance of the evidence or beyond a reasonable doubt — that he violated the terms of his probation. He points to several alleged deficiencies in the prosecution’s case, including that (1) the prosecutor failed to present the confiscated phone or screenshots of the alleged text messages; (2) the court relied exclusively on testimony from Hall, who could only provide the “basic substance of the messages,” not the exact wording of the texts; (3) Hall’s testimony about the substance of the messages was hearsay; and (4) the prosecution failed to present any testimony from an expert to explain how TextNow can be used to generate and send texts.
¶ 33 The People counter that there was sufficient evidence to support the court’s finding that Pabon violated his probation conditions. We agree with the People.
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C. Analysis
¶ 34 The district court received testimony from which a reasonable person could conclude that Pabon had a phone in his bedroom, in violation of START’s rules. Similarly, a reasonable person could conclude that Pabon used his phone to create text messages that appeared to originate from his case manager in order to suggest that she and Pabon were in a sexual relationship. Those text messages violated rule 104.
¶ 35 As the court noted in its findings, the sender of the text messages had to be intimately familiar with Pabon’s probation requirements and his whereabouts. And it was undisputed that the message sender was logged into Pabon’s TextNow account. Other than Pabon’s conclusory speculation that one of his roommates might have accessed the TextNow account using an ICCS computer, he offered no evidence suggesting that someone else sent the messages. Moreover, Pabon admitted to screenshotting the text messages and sending them to his girlfriend.
¶ 36 As to the lack of screenshots of the messages presented at the hearing, Pabon acknowledged Hall’s testimony that: (1) the messages were generated on his phone by someone with knowledge
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of his recent activities and personal life; (2) the messages were not sent by Pabon’s case manager; and (3) Pabon sent screenshots of the messages to his girlfriend.
¶ 37 Hall’s inability to recall the exact language of the texts did not render her testimony inadmissible. She testified based on her personal knowledge of the text messages after reading them. Moreover, she did not testify that the messages were sent from Pabon’s phone. Such testimony is not hearsay because it was not offered to prove the truth of the text message contents. See CRE 801(c). In any event, “[i]n assessing the sufficiency of the evidence, we must consider all the evidence admitted at trial, including the erroneously admitted evidence.” People v. Hard, 2014 COA 132, ¶ 39.
¶ 38 Finally, the substance of the messages is largely irrelevant because Pabon admitted at the probation hearing that the text messages appeared on his phone and were generated using the TextNow application he had downloaded to his phone and used. Pabon also acknowledged that the texts were fabricated and contained inappropriate sexual content, and that he sent them to his girlfriend. From this evidence and Pabon’s failure to offer a
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plausible alternative explanation, a reasonable person could conclude that Pabon fabricated the text messages.
¶ 39 The various evidentiary deficiencies — i.e., what the prosecution did not prove — go to the weight of the evidence, a determination entrusted to the fact finder. See People v. McIntier, 134 P.3d 467, 471 (Colo. App 2005) (“[I]t is the fact finder’s function in a criminal case to consider and determine what weight should be given to all parts of the evidence and to resolve conflicts, testimonial inconsistencies, and disputes in the evidence.”). And ultimately, the district court found Hall’s testimony credible and Pabon’s speculative explanations not credible. See People v. Conner, 148 P.3d 235, 240 (Colo. App. 2006) (“It was for the trial court to determine the credibility of [the] defendant and his probation officer and the weight to be given their testimony.”). Because the court’s findings enjoy record support, we will not second-guess them. See id.
¶ 40 Finally, the absence of expert testimony explaining how TextNow works was inconsequential because Pabon himself provided this information:
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[Defense Attorney]: Okay. Does the TextNow app allow you to send text messages from a number that’s not yours?
[Pabon]: Yeah. . . .
[Defense Attorney]: Okay. And when you text, it comes from the number assigned —
[Pabon]: Yeah.
[Defense Attorney]: — by . . . .
[Pabon]: Whatever number you pick.
This explanation was consistent with the prosecution’s theory of the case.
¶ 41 In sum, there was substantial evidence from which a reasonable person could find that Pabon violated the START program’s rules. The district court therefore did not err by concluding there was sufficient evidence to terminate Pabon’s probation sentence.4 See § 16-11-206(3).
IV. Due Process Claim
¶ 42 Pabon also contends that he was denied due process because START staff failed to preserve his phone and the text messages, and
4 In view of this conclusion, we need not address the remaining
grounds the court found to support its revocation of Pabon’s probation.
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the district court admitted hearsay statements concerning the phone’s contents. We are unpersuaded.
A. Standard of Review and Applicable Law
¶ 43 Pabon’s due process claim is unpreserved, so we review it for plain error. See Hagos, ¶ 14. A plain error must be obvious and substantial. Id. “While a probationer enjoys minimum procedural due process rights at a revocation hearing, ‘he is not entitled to the full panoply of constitutional guarantees available to one who has not been convicted of a crime.’” Byrd, 58 P.3d at 56 (citation omitted). At a revocation hearing, “[a]ny evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.” § 16-11-206(3). Due process is generally “satisfied by subjecting the probation officer to cross-examination about proffered hearsay and affording the [probationer] an opportunity to present witnesses and testify in [their] own behalf.” People v. Loveall, 231 P.3d 408, 415 (Colo. 2010) (first alteration in original) (citation omitted).
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B. The Parties’ Contentions
¶ 44 Pabon contends that the court plainly erred and violated his due process rights by admitting Hall’s testimony without providing him access to the text messages or phone. He argues that the failure to preserve the phone and text messages prejudiced his defense because he was deprived of the opportunity to point out possible inconsistencies in Hall’s testimony. For example, he reasons that the phone contained evidence that would have supported his testimony that he believed he was messaging a third party or, in the alternative, that the timestamps of the messages could have established inconsistencies in Hall’s testimony.
¶ 45 The People counter that Pabon’s due process rights were not violated because he received notice of the factual and legal grounds for revocation and had the opportunity to subpoena records, cross-examine witnesses, and testify on his own behalf.
C. Analysis
¶ 46 A defendant in a revocation hearing must be provided with some measure of due process. See People v. Manzanares, 85 P.3d 604, 610 (Colo. App. 2003). To demonstrate a due process violation, the defendant must show that they were “given little or no
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opportunity to test the accuracy of the hearsay evidence or the credibility of the declarant[] from whom it was gleaned.” Loveall, 231 P.3d at 415.
¶ 47 As previously noted, we perceive no error in the district court’s admission of Hall’s testimony about the phone’s contents. And contrary to Pabon’s assertion, he had the opportunity to test the accuracy of Hall’s testimony through cross-examination. Moreover, he admitted to the incriminating portions of the messages (disputing only their authorship), cross-examined Hall, and testified concerning the source of the messages.
¶ 48 Pabon relies on Loveall, in which the supreme court held that a defendant in a revocation hearing was denied due process because he was not afforded a fair opportunity to rebut hearsay evidence. 231 P.3d at 415-16. In Loveall, two nurses wrote letters to law enforcement describing the defendant’s probation violations. Id. at 411. The nurses did not testify at the revocation hearing; instead, the defendant’s probation officer testified about the content of the letters. Id. at 415. However, the prosecution failed to provide the defendant with the nurses’ letters, a summary of the letters’ content, or the nurses’ names until just before the hearing. Id.
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Based on these facts, the court concluded that the defendant was denied due process. Id. at 416.
¶ 49 Pabon argues that the failure to produce his phone and screenshots of the messages is akin to the denial of due process in Loveall. But unlike in Loveall, Pabon had the opportunity to read and inspect the text messages before his phone was seized. Indeed, he admitted sending them to his girlfriend. Pabon was also present at the START hearing where the phone’s contents and the messages were discussed at length. And Pabon knew or should have known that Hall would likely testify at the revocation hearing, and what her testimony would entail. Pabon’s counsel also had the opportunity to cross-examine Hall at the revocation hearing, and Pabon himself testified about the contents of the text messages and how they were created.
¶ 50 Thus, Pabon had a meaningful opportunity at the revocation hearing to challenge Hall’s testimony regarding the phone’s contents and the text messages. See § 16-11-206(3). We therefore perceive no violation of Pabon’s due process rights, much less error that would rise to the level of plain error.
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V. PSCC Claim
¶ 51 Pabon contends that the district court erred by not granting him PSCC for the fifty-seven days he spent in the START program as presentence confinement. We disagree.
A. Standard of Review and Applicable Law
¶ 52 We review de novo whether a defendant is entitled to PSCC. People v. Pimble, 2015 COA 112, ¶ 5. “A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of [their] sentence for the entire period of such confinement.” § 18-1.3-405, C.R.S. 2025. “The defendant bears the burden of establishing entitlement to PSCC.” People v. Fransua, 2016 COA 79, ¶ 7, aff’d, 2019 CO 96.
¶ 53 To receive PSCC, a defendant must “have been actually confined prior to the ultimate disposition of the criminal charge and there must have been a substantial nexus between the confinement and the charge for which the sentence is ultimately imposed.” People v. Hoecher, 822 P.2d 8, 12 (Colo. 1991) (emphasis added). The parties do not dispute that the second requirement is satisfied in this case. Thus, we limit our inquiry to the first — whether Pabon was actually confined during his time in the START program.
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¶ 54 When a defendant spends time in jail, in a DOC facility, or as a resident in a community corrections facility, they are entitled to PSCC under section 18-1.3-405. At the opposite end of the spectrum, a defendant serving a standard probation sentence is generally not entitled to PSCC. See Beecroft v. People, 874 P.2d 1041, 1045 (Colo. 1994).
¶ 55 Pabon’s time in the START program falls somewhere between these two boundaries. He was sentenced to probation but was required to attend the START program, where some of his liberties were restricted. The question is whether those restrictions rose to the level of “confinement.”
¶ 56 The People point to Beecroft, in which the supreme court affirmed the trial court’s denial of PSCC for time the defendant served on probation while attending a drug treatment program at a private facility. In upholding the denial of PSCC, the supreme court reaffirmed its prior reasoning in Hoecher:
[I]f the nonresident community correctional offender complies with the rules and terms of the nonresidential supervision during the entire period of nonresidential supervision, the offender should be credited with that period of time in satisfaction of the community correctional sentence. If, however, the
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nonresident community correctional offender violates the conditions of the community correctional placement, then the time between the offender’s release from residential status and the termination of the offender[]’s nonresidential status should not be considered as any part of the term of the community correctional placement for the purpose of [PSCC] upon resentencing.
Id. at 1046 (quoting Hoecher, 822 P.2d at 12).
B. The Parties’ Contentions
¶ 57 Because Pabon’s liberties were not as restricted as someone serving a DOC, jail, or residential community corrections sentence, and because Pabon violated the START program’s rules and did not successfully complete the program, the People argue that the district court properly denied him PSCC for his time in START.
¶ 58 Pabon, in contrast, leans heavily on People v. Chavez, 122 P.3d 1036, 1037 (Colo. App. 2005). In that case, a division of this court affirmed the denial of PSCC to a defendant who was released on bond prior to his conviction but was required to wear an electronic monitor and was subject to a curfew between 10 p.m. and 6 a.m. Id. Along the way to affirming the denial of PSCC, the division stated that a defendant is entitled to PSCC if they spent time “as a resident in a community corrections facility . . . , even if
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it was a condition of probation or was part of a work release program, because ‘these facilities substantially limit an individual’s liberty.’” Id. at 1037-38 (quoting Beecroft, 874 P.2d at 1045).
¶ 59 Pabon argues that because the START program required him to attend certain treatments, restricted his ability to travel freely in the community, limited his access to his phone, and encumbered other individual liberties, his time there should be considered confinement.
C. Analysis
¶ 60 Pabon did not present evidence at the sentencing hearing describing how his liberties were restricted during the START program. The record reflects, however, the program’s general parameters:
The START program is a 90-day residential program designed to help probationers in need of stabilization through housing, mental health services, employment, and substance abuse treatment. Probationers are housed at [ICCS]
and Behavioral Treatment Services . . .
provides clinical services to the probationers.
During the first 45 days of the program, probationers complete a clinical assessment and an individualized treatment plan.
Probationers attend 9-10 hours of clinical treatment contacts per week (group [and]
individual sessions), meet with a case manager
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weekly, and are monitored for substance use.
Probationers do not work or attend other outside activities during the first 45 days, other than probation appointments or court.
During the second 45 days of the program, probationers attend 4-5 hours of clinical treatment contacts per week and begin preparation for employment, housing, and outpatient treatment services.
¶ 61 Thus, START participants are required to attend nine to ten hours of clinical treatment per week and meet with a case manager each week. And participants are prohibited from working or attending “outside activities” during the first forty-five days of the program. Additionally, as previously noted, Pabon’s phone use was restricted and his phone was subject to search.
¶ 62 The evidence also established, however, that Pabon did not comply with many of the program restrictions. As previously detailed, he used his phone in his room and did so in a manner that violated START’s rules, including its prohibition against forgery. The probation revocation motion also alleged that Pabon received multiple community passes to attend programs, but did not adhere to the passes’ restrictions:
[Pabon] had checked out of ICCS to go to the [Edgewater Library] to attend treatment classes on the following dates: August 5, 2023,
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August 14, 2023, August 19, 2023, August 23, 2023, August 26, 2023, and August 30, 2023.
After review of [Pabon’s] GPS, [he] had traveled to multiple locations including a residence near the library, The Big Bunny Motel, Aviation Park, and the Walker-Branch Park.
[Pabon] was not authorized to travel to these locations and was only authorized to go to the Edgewater Library.
And the district court found that the evidence presented at the revocation hearing supported these additional rule violations.
¶ 63 Based on these facts, Beecroft controls. We are not persuaded otherwise by the statement in Chavez relied upon by Pabon. To the extent there is any daylight between the supreme court’s reasoning in Beecroft and the division’s statement in Chavez, we are bound to follow Beecroft. See People v. Allen, 111 P.3d 518, 520 (“[W]e are bound by the decisions of the Colorado Supreme Court.”). Moreover, the statement Pabon relies on from Chavez is dicta because the division ultimately held that Chavez was not entitled to PSCC.
¶ 64 Finally, after finding that the evidence presented at the sentencing hearing did not establish that the START program restricted Pabon’s liberties to the level of confinement, the district court invited Pabon to submit additional information to support his
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confinement argument. But Pabon did not provide any additional factual or legal argument in support of his contention. Based on these facts, the district court did not err by concluding that Pabon failed to meet his burden of proving that he was confined while in the START program. See Fransua, ¶ 7.
VI. Disposition
¶ 65 The district court’s order is affirmed.
JUDGE LIPINSKY and JUDGE YUN concur.