Peo v. Perez

• Court: Colorado Court of Appeals
• Decided: October 10, 2024
• Docket: 22CA0074
• Status: Unknown

Opinion

22CA0074 Peo v Perez 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0074 Arapahoe County District Court No. 10CR1091 Honorable Darren Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Medardo Eliezar Perez,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE BROWN Welling and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 10, 2024

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Evan W. Jones, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Medardo Eliezar Perez, appeals the district court’s

order revoking his probation. We affirm the order.

I. Background

¶2 A jury convicted Perez of one count of sexual assault on a

child, and the district court sentenced him to two years to life in

prison. The district court subsequently reconsidered Perez’s

sentence, vacated his prison sentence, and resentenced him to ten

years to life of Sex Offender Intensive Supervision Probation.

¶3 As relevant here, Perez’s probation officer filed a petition to

revoke his probation in October 2018, alleging that Perez violated

his probation by (1) failing to report to an appointment with his

probation officer; (2) failing to apprise probation of his whereabouts

when he left his residence for a few days; (3) hitchhiking; (4) failing

to attend and actively participate in sex offender treatment; and

(5) refusing to wear an electronic monitoring device, specifically an

ankle monitor.

¶4 Due to a variety of factors, including competency issues, the

revocation hearing was not held until November 2021. Perez was

unable to post bond and remained confined during the pendency of

the revocation proceeding.

1 ¶5 At the revocation hearing, defense counsel requested that

Perez be released on a personal recognizance bond to allow him to

access evidence in a storage unit; Perez alleged the evidence was

relevant to defending himself in the revocation proceeding.

Although counsel informed the court that this evidence included

hours of audio recordings that Perez claimed were exculpatory, she

could not provide any specifics about how that evidence was

relevant to the charges, much less exculpatory. The district court

denied Perez’s request.

¶6 Counsel then informed the court that Perez did not want to

proceed with the hearing without what he claimed was his

exculpatory evidence. The district court construed counsel’s

statement as a request to continue the hearing, noted that counsel

had been appointed more than six months prior, and questioned

counsel about when she learned of the evidence. Counsel told the

court that she had learned of the evidence before the hearing but

declined to disclose any details because she believed discussing it

with the court would violate attorney-client privilege. The court

denied the continuance.

2 ¶7 Based on evidence presented at the hearing — including

testimony from Perez’s probation officer that Perez missed an

appointment with her, refused to wear an ankle monitor, and did

not participate in sex offender treatment — the district court

determined that Perez had committed four of the five violations

alleged in the complaint, revoked his probation, and sentenced him

to six years to life in prison.

II. Discussion

¶8 Perez contends that the district court erred by revoking his

probation. Specifically, he asserts that the court abused its

discretion when it denied his request for a continuance to obtain

exculpatory evidence, thereby denying him the right to present a

defense. We disagree.

A. Standard of Review and Applicable Law

¶9 We will not disturb a trial court’s ruling on a motion for a

continuance absent a clear abuse of discretion. People v. Ahuero,

2017 CO 90, ¶ 11. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair. Id.

¶ 10 There is no mechanical test to determine if “the denial of a

request for a continuance constitutes an abuse of discretion.”

3 People v. Roybal, 55 P.3d 144, 150 (Colo. App. 2001). Instead, we

evaluate the circumstances confronting the court at the time the

motion is made, focusing on the reasons “presented to the trial

judge at the time the request is denied.” Ahuero, ¶ 11 (citation

omitted). “The defendant bears the burden of establishing that the

denial of the continuance actually prejudiced [them].” People v.

Finney, 2012 COA 38, ¶ 47, aff’d on other grounds, 2014 CO 38.

¶ 11 Further, although a defendant in a probation revocation

proceeding is not entitled to the full range of constitutional

guarantees afforded to defendants in criminal prosecutions, they

are still entitled to certain minimum due process protections,

including the right to be heard in person, to present witnesses and

documentary evidence, and to cross-examine adverse witnesses.

Byrd v. People, 58 P.3d 50, 56 (Colo. 2002).

B. Analysis

¶ 12 Counsel moved to continue the probation revocation hearing

to obtain hours of purportedly exculpatory audio recordings from a

storage unit. For four reasons, we conclude that the district court

did not abuse its discretion by denying the continuance.

4 ¶ 13 First, neither Perez nor his counsel explained how the

evidence would impact the probation violation allegations, which

related primarily to Perez’s failure to report to appointments, allow

for tracking his whereabouts, or attend treatment. Indeed, it is

hard to fathom how “[seventeen] and a half hours of digital audio

recordings” could provide Perez a defense to those allegations. And

Perez explained only that people had been following him “because

they claim that [he] exposed them for the murder of an elderly

woman” and that the secret service had acquired “[p]roof.”

¶ 14 Second, counsel was unable to tell the court how long the

evidence had been in the storage locker, how long counsel had

known about the evidence, or why no efforts had yet been

undertaken to obtain it.

¶ 15 Third, counsel did not explain why additional time would

result in obtaining the evidence Perez wanted. The circumstances

presented to the court suggested that Perez was the only person

who could access the evidence. But the court denied Perez’s

request for a personal recognizance bond — a ruling Perez does not

challenge on appeal — so it does not appear that anything would

5 have changed had the court continued the hearing. Perez would

have remained confined during the continuance.

¶ 16 Fourth, the revocation had been pending for three years,

making further delay for the reasons argued unjustified.

¶ 17 To the extent Perez also argues that the court’s decision

violated his right to present a defense, we are not persuaded. At the

revocation hearing, the prosecution presented two witnesses:

Perez’s probation officer and the probation supervisor who advised

Perez about the terms and condition of his probation. Defense

counsel cross-examined both witnesses and admitted phone

records to verify Perez’s attempts to keep in contact with probation.

And Perez testified at the hearing and explained (1) why he missed a

probation appointment and had not begun the sex offender

treatment program; (2) his efforts to keep probation apprised of his

whereabouts; and (3) his reasons for leaving the Denver area and

refusing to wear an ankle monitor. We conclude that these

procedures satisfied Perez’s due process rights. See id. at 56.

III. Disposition

¶ 18 We affirm the district court’s order.

JUDGE WELLING and JUDGE MOULTRIE concur.