Understanding Escape Crimes In Colorado – Escape From Community Corrections
By H. Michael Steinberg – Colorado Criminal Defense Lawyer – Attorney
Colorado – Community Corrections Walkaways – Escape Convictions – Do They Have To Run Consecutively To The First Or “Original” Sentence?
Understanding Escape Crimes In Colorado – Escape From Community Corrections – Some of the most complex cases in the Colorado criminal justice system involve the crime of Escape. Assuming that the evidence is there for the State to prove an Escape charge – the most important question becomes whether the sentence must run concurrently or consecutively to the Defendant’s ongoing sentence from the original case..
Many Colorado Escape cases involve sentences to a Colorado Community Corrections facility.
Community Corrections Programs can be complex and the laws surrounding them are equally complex.
Colorado Laws On Escape Charges
I write a great deal about Colorado criminal law and my articles have at least one consistent theme – if you want to truly understand the law and know the law – read the law.
In this area – Colorado Escape Crimes – the laws to read are among the following:
To locate each law and read it in it’s latest version – use this LINK
§ 18-8-201. Aiding escape
§ 18-8-208. Escapes
§ 18-8-208.1. Attempt to escape
§ 18-8-209. Concurrent and consecutive sentences
Escape and Offenses Relating to Custody – Will The Sentence Run Concurrently Or Consecutively To The Original Sentence?
One of the most significant questions raised in Colorado Escape cases is this – “If I am convicted of Escape, Aiding Escape or Attempt to Escape, will the sentence run concurrently or consecutively to my “original” sentence – that is – the sentence FROM WHICH I escaped.
To understand the answer to this question we begin with the following law 18-8-209 (Comments by me are designated with the [HMS – ]:
18-8-209. Concurrent and Consecutive Sentences (In Escape Cases)
[HMS – Most of the time, a sentence for Escape, in the absence of a plea bargain, must run CONSECUTIVELY to the underlying case.]
(1) Except as otherwise provided in subsection (2) of this section, any sentence imposed following conviction of an offense under sections 18-8-201 to 18-8-208 or section 18-8-211 (HMS Section 18-8-211 is for Riots in detention facilities) shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by those sections.
[HMS – BUT, if the original sentence was a direct sentence to Community Corrections or was or was in an intensive supervision parole program, then:]
(2) If an offender was serving a direct sentence to a community corrections program pursuant to section 18-1.3-301 or was in an intensive supervision parole program pursuant to section 17-27.5-101, C.R.S., at the time he or she committed an offense specified in section 18-8-201 or 18-8-208, the sentence imposed following a conviction of said offense may run concurrently with any sentence the offender was serving at the time he or she committed said offense.
Understanding The Concept Behind The Colorado Crime Of Escape
Escape is best understood as:
“the voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice.”
It is best described as “an attitude of mind as well as an act.”
One does not “escape without the desire and intent to avoid confinement.” It is also considered to be a “continuing offense” which continues “until the escapee has been returned to custody or the attempt to escape has been thwarted or abandoned.”
Importantly, the statute of limitations does not begin to run until an escapee is returned to custody. And the mental state for the crime of escape in Colorado is a general – not a specific intent crime.
The mental state of the Colorado crime of Escape is “knowingly” committing the crime. The mental state of knowingly is applied to a Defendant’s conduct of escaping from custody or confinement.
Escape, broken into it’s essential components, consists of the following essential elements:
(1) A voluntary act;
(2) which constitutes a departure from one of the forms of lawful custody or confinement..
(3) by a prisoner; and is
(4) committed “knowingly”, (i.e., with an awareness on the part of the prisoner that his or her conduct is of the nature proscribed).
For a person to be “in custody” they must be at least “under arrest” – physical control over the arrestee must have been effected.
Devastating Results Can Occur If There Is A Conviction For A Colorado Escape Charge In The Absence Of A Plea Bargain
The very punishing law in this area is often a surprise to the person who has walked away – or even run from custody. With only a few exceptions – the law is clear and unambiguous. In the absence of a plea agreement, the sentence imposed for an escape conviction must be consecutive only to any sentence the defendant was serving at the time of the escape and not to a sentence subsequently imposed.
What There Is Only An Attempt To Escape?
What follows is the inchoate (incomplete) crime for the Attempt To Escape
First – here is a CHART that explains the different levels of punishment for Colorado Felonies (click on the chart to enlarge).
And here is the law as of 2016:
18-8-208.1. Attempt To Escape
(1) Except as otherwise provided in subsection (1.5) of this section, if a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he or she commits a class 4 felony. The sentence imposed pursuant to this subsection (1) shall run consecutively with any sentences being served by the offender.
(1.5) If a person, while in custody or confinement following conviction of a felony and either serving a direct sentence to a community corrections program pursuant to section 18-1.3-301, or having been placed in an intensive supervision parole program pursuant to section 17-27.5-101, C.R.S., knowingly attempts to escape from his or her custody or confinement, he or she commits a class 5 felony. The sentence imposed pursuant to this subsection (1.5) may run concurrently or consecutively with any sentence being served by the offender.
(2) If a person, while in custody or confinement and held for or charged with but not convicted of a felony, knowingly attempts to escape from said custody or confinement, he commits a class 5 felony. If the person is convicted of the felony or other crime for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (2) shall run consecutively with any sentences being served by the offender.
[HMS – Misdemeanor Attempts are covered below.]
(3) If a person, while in custody or confinement following conviction of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. The sentence imposed pursuant to this subsection (3) shall run consecutively with any sentences being served by the offender.
(4) If a person, while in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a petty offense and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. If the person is convicted of the misdemeanor or petty offense for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (4) shall run consecutively with any sentences being served by the offender.
(5) The sentences imposed by subsections (1), (1.5), and (2) of this section and the minimum sentences imposed by subsections (3) and (4) of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407.
(6) A person who participates in a work release program, a home detention program, as defined in section 18-1.3-106 (1.1), a furlough, an intensive supervision program, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203(3), and who is required to report back to the detention facility at a specified time shall be deemed to be in custody.
(7) Any person held in a staff secure facility, as defined in section 19-1-103 (101.5), C.R.S., shall be deemed to be in custody or confinement for purposes of this section.
If The Crime Of Escape Is Completed – It Is Prosecuted Under 18-8-208
18-8-208 Escapes
(1) A person commits a class 2 felony if, while being in custody or confinement following conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.
(2) A person commits a class 3 felony if, while being in custody or confinement following conviction of a felony other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.
(3) A person commits a class 4 felony if, while being in custody or confinement and held for or charged with but not convicted of a felony, he knowingly escapes from said custody or confinement.
[HMS – Misdemeanor Escapes]
(4) A person commits a class 3 misdemeanor if, while being in custody or confinement following conviction of a misdemeanor or petty offense or a violation of a municipal ordinance, he or she knowingly escapes from said place of custody or confinement.
(4.5) A person commits a class 3 misdemeanor if he or she has been committed to the division of youth corrections in the department of human services for a delinquent act, is over eighteen years of age, and escapes from a staff secure facility as defined in section 19-1-103 (101.5), C.R.S., other than a state-operated locked facility.
(5) A person commits a class 1 petty offense if, while being in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense or violation of a municipal ordinance, he or she knowingly escapes from said custody or confinement.
(6) A person who knowingly escapes confinement while being confined pursuant to a commitment under article 8 of title 16, C.R.S.:
(a) Commits a class 1 misdemeanor if the person had been charged with a misdemeanor at the proceeding in which the person was committed;
(b) Commits a class 1 misdemeanor if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person does not travel from the state of Colorado;
(c) Commits a class 5 felony if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person travels outside of the state of Colorado.
[HMS – If you come back voluntarily – the following section is important:]
(7) In a prosecution for an offense under subsection (6) of this section, it shall be a defense for any person who, while being confined pursuant to a commitment under article 8 of title 16, C.R.S., escapes and who voluntarily returns to the place of confinement.
(8) A person commits a class 5 felony if he knowingly escapes while in custody or confinement pursuant to the provisions of article 19 of title 16, C.R.S.
(9) The minimum sentences provided by sections 18-1.3-401, 18-1.3-501, and 18-1.3-503, respectively, for violation of the provisions of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407. The provisions of this subsection (9) do not apply to subsection (4.5) of this section.
[HMS – Again, an important exception to the mandatory consecutive sentence – is if the original sentence is to a Colorado Community Corrections Program:]
(11) A person who is placed in a community corrections program for purposes of obtaining residential treatment as a condition of probation pursuant to section 18-1.3-204 (2.2) or 18-1.3-301(4) (b) is not in custody or confinement for purposes of this section.
There Is Also A Very Specific Colorado Statute That Addresses Escapes From Community Corrections Programs
17-27-106. Escape from Custody from a Community Corrections Program
(1) (a) If an offender fails to remain within the extended limits of such offender’s confinement or placement or fails to return within the time prescribed to any community corrections program to which such offender was assigned or transferred or if any offender who participates in a program established under the provisions of this article leaves such offender’s place of employment or, having been ordered by the executive director of the department of corrections or the chief probation officer of the judicial district to return to the community corrections program, neglects or fails to do so, such offender shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S., and all reductions in sentence authorized by part 2 of article 22.5 of this title shall be forfeited.
(b) (I) In addition to the forfeiture of all reductions in sentence authorized by part 2 of article 22.5 of this title, any person convicted of escape from custody from a community correction program in violation of paragraph (a) of this subsection (1) shall also forfeit all reductions in sentence authorized by section 18-1.3-301(1) (i), C.R.S.
(2) The division of criminal justice is hereby authorized to provide notice to appropriate law enforcement agencies and the sentencing court, if applicable, that there is probable cause to believe that an offender has escaped from custody.
Escape From Colorado Work Release Programs
This law also applies to escapes from Colorado work release facilities. For example – if an inmate fails to return on a 10 hour pass from a work release program – that is also an escape under Colorado law.
Clearly walking away from a residential community corrections facility without authorization is an escape under § 18-8-208. This is because the offender is still considered to be “in custody” and subject to the authority of the court.. Even the person who absconds from a non-residential community corrections placement commits the crime of escape under 18-8-208.
Finally What If You Aid Someone In An Escape?
Be very very careful here. If you know someone who has absconded from their sentence – and you assist them or even try to assist them to escape – you can be charged under the following law:
18-8-201 Aiding Escape
(1) Any person who knowingly aids, abets, or assists another person to escape or attempt to escape from custody or confinement commits the offense of aiding escape.
(2) “Escape” is deemed to be a continuing activity commencing with the conception of the design to escape and continuing until the escapee is returned to custody or the attempt to escape is thwarted or abandoned.
(3) “Assist” includes any activity characterized as “rendering assistance” in section 18-8-105.
(4) Aiding escape is a class 2 felony if the person aided was in custody or confinement as a result of conviction of a class 1 or class 2 felony.
(5) Aiding escape is a class 3 felony if the person aided was in custody or confinement and charged with or held for any felony or convicted of any felony other than a class 1 or class 2 felony.
(6) Aiding escape is a class 1 misdemeanor if the person aided was in custody or confinement and charged with, held for, or convicted of a misdemeanor or a petty offense.
Understanding Escape Crimes In Colorado – Escape From Community Corrections
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Understanding Escape Crimes In Colorado – Escape From Community Corrections.
Other Articles of Interest:
- Aiding an escape 18-8-201 (6)
- Escape 18-8-208 (6) (a) and (b)
- Possession of contraband in the second degree 18-8-204.2 (2)
- Colorado Prison (DOC) Sentences- Inmate Custody Classification Levels -H. Michael Steinberg
- Colorado Felony Sentencing For Crimes Of Violence 18-1.3-406 CRS
