People v. Wilhite

817 P.2d 1017, 15 Brief Times Rptr. 1457, 1991 Colo. LEXIS 698, 1991 WL 198074

• Court: Supreme Court of Colorado
• Decided: October 7, 1991
• Docket: 91SA58
• Status: Published

Opinions

Justice MULLARKEY

delivered the Opinion of the Court.

The defendant, Barry D. Wilhite, appeals the trial court’s order denying him an evi-dentiary 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 resentenc-ing.” We affirm.¹

I.

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.

II.

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 ease pursuant to section 17-27-105(l)(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-ll-204(2)(c), 8A C.R.S. (1986). See People v. Akin, 783 P.2d 267, 268 (Colo.1989) (discussing the three types of placements). 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 resen-tence 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 revoked because of an alleged violation of a rule of condition of placement. The language of section 17-27-114(1) requires the sentencing court to make a “determination” as to the existence of the alleged violation and, if the violation is established, whether an offender should remain in community corrections, rather than to remove him summarily from the program. Our resolution of this case on the basis of statutory construction makes it unnecessary to reach the issue of whether constitutional requirements of due process of law also mandate a hearing.

Wilson, 747 P.2d at 643.

Following our ruling in the Wilson case, the legislature amended both sections 17-27-103(3) and 17-27-114(2) by adding a final sentence which states: “The sentencing court is not required to provide the offender with an evidentiary hearing prior to re-sentencing.” §§ 17-27-103(3); 17-27-114(2), 8A C.R.S. (1990 Supp.). Tape recorded hearings on these amendments indicate that the legislature passed the amendments in full awareness of our decision in Wilson, and with the intent to deny probationers and direct placement offenders a mandatory hearing, notwithstanding our decision. Hearings on House Bill 1091 before the Senate Judiciary Committee (February 27, 1989). See also Akin, 783 P.2d at 268, n. 2.

III.

Wilhite argues that the denial of an evi-dentiary hearing violates his due process and equal protection rights under the United States and Colorado Constitutions. U.S. Const. Amend. XIV; Colo. Const. Art. II, § 25. In addition, the defendant contends that the trial court erred by not allowing testimony as to the differential treatment afforded transitional offenders. We disagree.

A.

First, the defendant claims that he has a liberty interest in remaining at community corrections and is therefore entitled to due process protections. In support of his contention the defendant relies principally upon Wilson v. People, 747 P.2d 638. As discussed above, this court held in Wilson that the defendant was entitled to a hearing under the language of the statute. Since our finding was based on the language of the statute, and that interpretation was rejected by the General Assembly, there is now no statutory right to a hearing.

The United States Supreme Court has held that the Constitution does not require hearings when a prisoner is transferred to more restrictive confinement unless there is some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976). Here, the defendant could have had no reasonable expectation that he would be transferred only for misbehavior because the statute very clearly gives the community corrections facility discretion to reject the defendant before or after acceptance for any or no reason. Since the statute expressly states that the sentencing court is not required to provide the offender with an evidentiary hearing prior to resentenc-ing, there is no right or justifiable expecta- ' tion created by a state law, and the defendant’s due process claim is without merit.

B.

The defendant also challenges the constitutionality of the statutes on equal protection grounds and argues that the trial court erred in prohibiting him from presenting testimony relevant to this claim. His argument is that, in denying direct placement offenders an evidentiary hearing which the transitional offenders receive under the Department of Corrections rules, the statute deprives him of equal protection of the laws.

We recognize that the equal protection clause guarantees that those similarly situated will receive the same treatment by the government. J.T. v. O’Rourke, 651 P.2d 407, 413 (Colo.1982); J. Nowak & R. Rotunda, Constitutional Law 570 (4th Ed.1991). However, here we reject the defendant’s claim. First, we find that the defendant has not been treated differently from the transitional offenders because he has failed to show that the transitional offenders who commit a similar offense actually are entitled to a hearing under Department of Corrections rules.

As we noted above, the Department of Corrections rules provide a discretionary, not mandatory, hearing for a transitional offender who is rejected for committing the defendant’s alleged offense. As amended, the statutes applicable to the defendant do not prohibit the sentencing court from conducting an evidentiary hearing. Rather, such a hearing now is discretionary rather than mandatory. §§ 17-27-103(3); 17-27-114, 8A C.R.S. (1990 Supp.). Thus, there is no different treatment of the two groups.

Second, direct placement offenders and transitional offenders are not similarly situated for purposes of equal protection analysis. The two types of offenders are governed by different rules because transitional offenders are in the custody of the Department of Corrections and direct placement offenders are not. The method by which each group is placed in community corrections and the reasons behind such placement are distinct. Transitional offenders have been incarcerated in Department of Corrections’ facilities and, through time served and good behavior, have earned their way into community corrections. Direct placements, by contrast, have been given the benefit of the doubt and have been diverted to community corrections from initial incarceration in the Department of Corrections.

Furthermore, the two groups are not similarly situated in light of the ends which an evidentiary hearing would achieve. In this context, an evidentiary hearing has a limited purpose. It cannot have the effect of overturning the decision of the community corrections facility to reject an offender. As discussed above, the statute gives sole discretion to the community corrections facility to reject an offender either before or after accepting him. See § 17-27-103(3), 8A C.R.S. (1990 Supp.). Thus, for the direct placement offender, the purpose of an evidentiary hearing is to assist the sentencing court in deciding where next to place thé offender. Akin, 783 P.2d at 269 (“The sentencing court’s only option is to resen-tence the offender, by adopting any alternative sentence which might have been imposed, including a sentence to another community corrections facility that agrees to accept the offender.”) (emphasis in original).

In eliminating the mandatory evidentiary hearing for direct placement offenders, the legislature found that a hearing after rejection by a community corrections facility would be duplicative of the sentencing hearing. It reasoned that usually only a short period of time will have passed since the original sentencing hearing. The legislature recognized that one factor will have changed since the original sentencing hearing because rejection of a direct placement offender by a community corrections facility eliminates that placement as a sentencing option. Tape Recorded Hearings on House Bill 1091 Before the Senate Judiciary Committee (February 27, 1989). Thus, the sentencing court normally will be fully apprised of its remaining sentencing options without a second hearing and the sentencing court retains jurisdiction to hold an evidentiary hearing, if necessary or appropriate.

A transitional offender is not in the same position. The hearing provided by the Department of Corrections rules is an administrative hearing, not a second court hearing. Thus, the legislative concerns which prompted the statutory amendments do not come into play. The transitional offender’s sentencing hearing occurred years earlier and is of little or no relevance at this stage. It is his record of institutional behavior which is relevant to his level of confinement, various privileges and eligibility for parole. An inmate in the custody of the Department of Corrections has a strong interest in challenging any claimed misconduct. This is perhaps particularly true for an inmate who, like a transitional offender, is nearing the end of his sentence. While the Department of Corrections is not required to provide its inmates with eviden-tiary hearings, it is within its discretion to do so. See Marioneaux v. Colo. State Penitentiary, 465 F.Supp. 1245 (D.Colo. 1979).

The defendant argues that a direct placement offender has a similar interest in ensuring that he is not wrongly accused of misconduct by the community corrections facility. Any such interest, however, is much less significant than that of the transitional offender. The Department of Corrections’ policy decision to provide hearings to its inmates does not invalidate the legislature's decision to deny mandatory court hearings to direct placement offenders.

Finally, we reject the defendant’s argument that the trial court should have held an evidentiary hearing on his equal protection claim. Whether or not to admit evidence is within the sound discretion of the trial court. People v. Lowe, 660 P.2d 1261, 1264 (Colo.1983). In light of the foregoing discussion, we find no abuse of discretion.

IV.

The trial court’s order is affirmed. The defendant has no due process liberty interest in a hearing before he is sentenced to the Department of Corrections. There is no deprivation of equal protection of the laws and the trial court did not err in refusing to admit evidence in support of the defendant’s equal protection claims.

QUINN, J., dissents. ERICKSON and LOHR, JJ., join in the dissent.

1 . § 13-4-102(l)(b), 6A C.R.S. (1987), gives this court jurisdiction over appeals when the constitutionality of a statute is at issue.

2 . The offense of which the defendant was accused in this case did not fall within the category of class I offenses.