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In Landmark Opinion, Colorado Supreme Court Announces Courts May Not Sentence Defendant to Both Prison and Probation in Multi-Count Cases

by Richard Resch

The Supreme Court of Colorado unanimously held that sentencing courts may not impose imprisonment for certain offenses and probation for others when sentencing for multiple offenses in the same case.

Frederick Leroy Allman was convicted of numerous charges, including seven counts of identity theft and two counts of forgery. The court sentenced him to 15 years in prison, followed by a five-year period of parole. In addition, on one of his forgery convictions, the court sentenced him to 10 years of probation to be served consecutively to his imprisonment but concurrently with his parole.

Allman appealed his identity theft convictions and challenged several aspects of his sentencing. The court of appeals rejected all his claims and affirmed; he appealed to the Colorado Supreme Court.

On appeal before the Court, he argued that identity theft is a continuing offense, and thus his conviction on multiple counts should have merged for sentencing purposes. The Court rejected this argument.

It explained that determining whether an offense is continuing “is a matter of statutory interpretation.” People v. Perez, 367 P.3d 695 (Colo. 2016). Quoting Toussie v. United States, 397 U.S. 112 (1970), the Court instructed that an offense is continuing when “the explicit language of the substantive criminal statute compels such a conclusion.” A reading of the statute in question, Colo. Rev. Stat. § 18-5-902(1)(a) (2019), clearly reveals an absence of any “language that explicitly defines identity theft as a continuing offense,” the Court observed. It then analyzed the statute as a whole, interpreting each individual provision, to determine whether the legislature nevertheless intended that the offense be treated as a continuing one. The Court concluded it did not and held that identity theft under the statute is not a continuing offense.

The Court then turned its attention to the crux of its opinion, viz., “whether a court can sentence a defendant to both imprisonment and probation in a multi-count case.” It began its analysis by noting that providing the punishment for crimes is the “prerogative of the legislature.” Vensor v. People, 151 P.3d 1274 (Colo. 2007). A court may “exercise discretion in sentencing only to the extent permitted by statute.” Id. The Court explained that sentencing courts lack “inherent powers to impose” probation. Consequently, the Court refined the question at issue to whether the governing statute allows for both imprisonment and probation.

The plain language of the probation statute, § 18-1.3-203, is silent on this specific issue, which led the Court to conclude that a court may not impose both imprisonment and probation. It reasoned that a court’s determination that probation is an appropriate sentence necessarily means that imprisonment is not appropriate. That is, they are mutually exclusive. The Court observed that the statute provides ample guidance and discretion in deciding whether probation is appropriate, but ultimately, the sentencing court must choose prison or probation. The Court explained: “The legislature intended to allow courts to choose only one or the other. Probation is an alternative to prison.”

The Court was sympathetic to the People’s argument that both prison and probation should be permitted where the sentencing court believes it’s in the defendant and public’s best interests to provide a longer period of rehabilitation than the mandatory parole period. It conceded there’s logic in that argument, but the legislature “did not leave that decision to the courts.”

Next, the People argued that the probation statute is offense specific, meaning the parole period applies to one offense while the probationary period applies to another offense, thereby not running afoul of the legislatively required rehabilitation period. The Court rejected this argument as well, stating that it “disregards the structure of the parole scheme as established by the legislature.” By statute, the period of parole is linked to the most serious crime when a defendant is sentenced to prison in a multi-count case. § 18-1.3-401(1)(a)(V)(E). Despite the number of counts, only one period of parole is permitted under the statute. Therefore, the Court concluded “the legislature intended the rehabilitative period for a defendant to be case specific, not offense specific.”

To bolster its position, the Supreme Court noted that the legislature has prescribed how long a court may order confinement as a condition of probation. By statute, a court may sentence a defendant to confinement up to 90 days or up to two years with work release in conjunction with probation. § 18-1.3-202(1); § 18-1.3-207(1). According to the Court, this is clear evidence that the legislature never intended for the courts to have the authority to sentence a defendant to both prison and probation. If that were not the case, then the foregoing statutory limits on confinement to 90 days and up to two years with work release “would be rendered meaningless in multi-count cases,” the Court explained.

Additionally, the probation statute mandates that “the order placing a defendant on probation shall take effect upon entry.” § 18-1.3-202(1)(a). This means that the legislature “intended for a sentence to probation to begin immediately” and not “to run consecutively to a sentence of imprisonment,” according to the Court.

Finally, the Court determined that the practical consequences of allowing a sentence of both prison and probation serve as further evidence that the legislature never intended courts to have such sentencing authority. When a defendant is released on parole, he or she is under the supervision of the executive branch. On the other hand, a defendant on probation is under the supervision of the judicial branch. A defendant under the supervision of two separate branches of government could be subject to “competing terms and conditions for both,” the Court observed and concluded: “The legislature could not have intended for defendants to be simultaneously subject to two separate branches of government during their post-incarceration supervision.”

Based on the foregoing analysis, the Colorado Supreme Court held 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.”

Accordingly, the Court affirmed the court of appeals’ judgment in part, reversed in part, and remanded with directions to return the case to the trial court for resentencing. Allman v. People, 2019 CO 78 (2019).

Writer’s note: The Court’s opinion has reportedly resulted in considerable confusion for all affected parties. According to Mesa County District Attorney Daniel Rubinstein, “My biggest concerns are that we can no longer do this and what do we do with those we’ve already done it to? What if they’re already in prison? Are they all released? If the sentence is invalidated, we could be back at square one, or worse.” Prosecutors believe defendants who entered into plea agreements are most affected by the opinion. They can rescind their original agreement, reaffirm it, or even “start over.” Since 95% of all criminal cases result in a plea deal, the number of defendants affected could run into the thousands. Defendants who went to trial and were convicted will likely be resentenced, but the underlying conviction will remain unchanged.


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