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The Ins & Outs Of Colorado Parole Revocation Hearings – How They Work -What To Expect

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Parole Revocation Hearings – How They Work -What To Expect – The decision of the Colorado Department Of Corrections to issue an arrest warrant and to seek a revocation of parole (with a description of how the parole revocation process works) – is the subject of this article.

The Colorado parole revocation process is complex with many turns and twists and it is a process that places an enormous amount of discretion on the shoulders of the Parole Board Hearings Officer (AHO) who presides over the revocation hearing.

The vast majority of parolees are returned to prison – not because they committed a new offense – but rather as a result of a violation of the technical conditions of parole. These condition violations are called “technical violations.”  A technical violation is a failure to abide by the rules mandated at the time of the parolees release on parole.  Examples include reporting, abiding by the curfew, associating with others on Parole, and drug violations.

Colorado Recent “Round-Ups” of Colorado Parole Absconders

Recently (2014) as a result of the murder of the Colorado Department Of Corrections Chief Tom Clements – Colorado initiated a focused “round up” of Colorado parole absconders.

An average 136 parolees abscond every month. Eight teams of two parole officers were designated in 2014 to search the state and also search out of state to respond to parole violations.

Further – as a result of the murder – the Colorado Department of Corrections has taken a much harder line at Colorado parole revocation hearings. Parolees are being returned to prison for technical violations of their parole at greatly increased rates.

The new Colorado Fugitive Apprehension Unit is tasked with tracking down parole absconders. The Colorado Department of Parole has clearly has been stricter in sentences – also known as “adjustments: that have recently been handed out as a result of Colorado parole revocation proceedings.

The Possible Major Outcomes Of A Colorado Parole Revocation Hearing

If a Colorado Parole Board Member or AHO determines that a Colorado parolee violated a condition of parole, the decisions are the Officer may:

1. Revoke the parole,

2. Continue the parole in effect, or

3. Continue the parole with modified parole conditions.

When Can A Parolee Be Arrested For A Colorado Parole Violation?

This is the law –§ 17-2-103. Arrest of parolee – revocation proceedings

These procedures “administrative revocation guidelines” apply to ALL Colorado parole revocation hearings.

A “Complaint” – is defined as a formal document containing allegations of a violation of one or more conditions of Parole. It usually leads to an arrest.

Colorado Parolee can be arrested when:

• • There is a warrant commanding that such parolee be arrested;
  • There is probable cause to believe that a warrant for the parolee’s arrest has been issued in this state or another state for any criminal offense or for violation of a condition of parole; or
  • An offense under the laws of this state has been or is being committed by the parolee in the presence of the parole officer.
  • The parole officer has probable cause to believe that a crime has been committed and that the parolee has committed such crime; or
  • The parole officer has probable cause to believe that the parolee has violated a condition of his parole, or
  • The parole officer has probable cause to believe that the parolee is leaving or about to leave the state, or that the parolee will fail or refuse to appear before the board to answer charges of violations of one or more conditions of parole, or that the arrest of the parolee is necessary to prevent physical harm to the parolee or another person or to prevent the commission of a crime; or
  • The parolee has been tested for the illegal or unauthorized use of a controlled substance and the result of such test is positive.

So, the arrest occurs IF – a warrant based on a finding of probable cause that a parolee has violated a condition of his or her parole. An arrest warrant is not required BUT if a parolee is arrested – they are held in a county jail or a pre-parole facility or program pending action by the community parole officer as follows.

The Ten Day Rule

After arrest – “Not later than ten working days” later the parole officer must complete his or her investigation and either:

(a) File a complaint before the board in which the facts are alleged upon which a revocation of parole is sought; or

(b) Order the release of the parolee and request that any warrant be quashed and that any complaint be dismissed, and parole shall be restored; or

(c) Order the release of the parolee and issue a summons requiring the parolee to appear before the board at a specified time and place to answer charges of violation of one or more conditions of parole.

A Summons – Rather Than An Arrest – Can Also Be Used To Bring A Parolee Into The Colorado Parole Revocation Process

If a parole officer has reasonable grounds to believe that a condition of parole has been violated by any parolee, he or she may issue a summons and complaint to revoke requiring the parolee to appear before the board at a specified time and place to answer charges of violation of one or more conditions of parole.

If The Parolee Is In Custody And A Complaint To Revoke Has Been Filed – The 30 Day Rule And “Good Cause”

The law – § 17-2-103 (7)

If a Colorado parolee is in custody – or the parolee was arrested and then released pending the hearing – the hearing on revocation must be held within a reasonable time thereafter but cannot exceed thirty days after the parolee is arrested; UNLESS the Parole Board may has “good cause” to delay it further than 30 days. The same is true if the parolee is issued a summons.

The parole revocation complaint must be filed no less than two business days prior to the Parole Hearing, unless – again – “good cause” is shown for a later time.

The Next Question: Was The Revocation A Technical Violation – Or The Commission Of A New Crime?

New Crime Violations As A Violation Of Parole

If the violation of parole is based on the commission of a new crime violated the board will usually revoke parole and have the parolee transported to a place of confinement designated by the DOC executive director.

Technical Violations As A Violation Of Parole

If the violation of parole is NOT based on a new crime but a violation of a condition of parole – the board may:

• revoke parole and place the parolee in a place of confinement determined by the DOC executive director;

• revoke parole for up to 180 days and place the offender in a community corrections facility, a place of confinement within the DOC, or any private facility under contract to the DOC;

• revoke parole for up to 90 days and place the offender in any private facility under contract to the DOC; or

• revoke parole for up to 180 days and place the offender in a return to custody facility;

Technical Violation As A Violation Of Parole – On Parole Class 5 or Class 6 Felony

If the board determines that the parolee has violated any condition of parole, other than a new crime, and the parolee was on parole for a class 5 or class 6 non – violent felony except for menacing or unlawful sexual behavior or an offense against an at- risk adult or juvenile or a domestic violence offense, the board may:

• revoke parole for up to 180 days;

Technical Violation As A Violation Of Parole – Other Than Crime Of Violence

if the board determines the parolee violated any condition of parole, other than a new crime, and the parolee was not on parole for a crime of violence, the board may:

• revoke parole for up to 180 days in a place of confinement determined by the DOC executive director;

• revoke parole for up to 180 days and place the offender in a community corrections program, or

• revoke parole for up to 180 days and place the parolee in a return to custody facility.

When Can A Colorado Parole Revocation Hearing Be Continued?

A Board Member, or administrative hearing officer, may find good cause to continue a Revocation Hearing until a later date.

A Parolee may ALSO request the continuance of his or her Revocation Hearing and present evidence demonstrating good cause therefore to the applicable Member or administrative hearing officer.

A finding of “good cause” is at the sole discretion of the applicable Hearings Officer.

If the Parolee is arrested for certain offenses as stated in § 17-2-103.5(1)(c), C.R.S., a Hearing shall be held, unless a criminal charge is still pending, in which case the Hearing shall be delayed until a disposition regarding the criminal charge.

Continuances Where The Colorado Parole Violation Is Based On The Commission Of A New Crime

If certain crimes are alleged to have been committed by the parolee the Parole Board is required to continue the revocation hearing.

A list of these crimes is contained in section 17-2-103.50. Essentially these offenses include the possession of a deadly weapon, or being charged with:

• • • a felony, a crime of violence as defined in section 16-1-104(8.5), or
    • a misdemeanor assault involving a deadly weapon or
    • resulting in bodily injury to the victim, or
    • sexual assault in the third degree as defined in section 18-3-404.

Where these form the basis or even part of the allegations of a parole violation – the parole board must delay the revocation hearing until the criminal charges have been resolved. If the violations are only technical violations the Colorado parole board need not continue the revocation hearing.

What Are The Criteria Used By The Parole Board Hearings Officer To Sentence The Parolee For Violation Parole?

To understand the sentencing phases – sometimes called the “adjustment” phase of a Colorado parole hearing one starts with exactly what parole is:

“Parole”- is the conditional Release of an Inmate from prison pursuant to certain terms and for a determinate period of time, before the full sentence has been served, where the Inmate is determined to be eligible for parole under Colorado laws.

The guidelines used to determine how to sentence a parolee are laid out in –§ 17-22.5-404. Parole Guidelines.

Section (5) (a) of that law reads as follows:

In conducting a parole revocation hearing, the state board of parole and the administrative hearing officer shall consider, where available, evidence-based practices and shall consider, but need not be limited to, the following factors:

(I) A determination by the state board of parole that a parolee committed a new crime while on parole, if applicable;

(II) The parolee’s actuarial risk of re-offense;

(III) The seriousness of the technical violation, if applicable;

(IV) The parolee’s frequency of technical violations, if applicable;

(V) The parolee’s efforts to comply with a previous corrective action plan or other remediation plan required by the state board of parole or parole officer;

(VI) The imposition of intermediate sanctions by the parole officer in response to the technical violations that may form the basis of the complaint for revocation; and

(VII) Whether modification of parole conditions is appropriate and consistent with public safety in lieu of revocation.

A New Requirement For Intermediate Sanctions For Technical Violations

As a result of recent legislative changes that apply to Colorado parole revocation proceedings – the Parole Board Member that acts as the sentencing authority at the revocation hearing must adhere to the following requirement that “appropriate intermediate sanctions” are used for technical violations… here is the law:

17-22.5-404. Parole Guidelines

The state board of parole or the administrative hearing officer shall not revoke parole for a technical violation unless the board or administrative hearing officer determines on the record that appropriate intermediate sanctions have been utilized and have been ineffective or that the modification of conditions of parole or the imposition of intermediate sanctions is not appropriate or consistent with public safety and the welfare of society.

Location – Where Does The Colorado Parole Revocation Hearing Take Place?

Depends… the hearing is usually at the courthouse where in the county where the parolee’s controlling DOC sentence occurred or the county of the parolee’s confinement after arrest.

Here is the law.

§ 17-2-103 (2) (a) A board hearing relating to the revocation of parole shall be held, at the discretion of the board, in the courthouse or other facility that is acceptable to the board in the county in which the alleged violation occurred, the county of the parolee’s confinement, or the county of the parolee’s residence if not confined.

The Colorado Parole Revocation Hearing Process – What Can You Expect? – The Players:

1. The Colorado Parole Hearing – Administrative Judge Officer

This is a member of the Colorado Parole Board who is responsible for conducting the parole revocation hearing.

The judge over the hearing is supposed to be a neutral and detached fact finder whose charge it is to determine the relevant facts of the parole revocation case and to objectively summarize and then rule on the evidence presented.

 2. The Parolee’s Parole Officer

The Colorado Parole officer assigned to present the case presents the evidence of the parole revocation. He or she has the authority to issue subpoenas an will notify all parties involved in the hearing.

3. The District Attorney’s Representative (Optional)

The district attorney of the county in which the Hearing is held may be in attendance to present the case under Section17-2-103(2)(c), C.R.S.

4. The Parolee’s Lawyer

The parolee has the right to a lawyer on his or her behalf. They have the responsibility to zealously advocate for their client; to present and examine witnesses; to analyze and to address each allegation in the complaint to revoke parole; and to argue for the least restrictive punishment should the revocation complaint be sustained.

5. Witnesses For An Against The State

Witnesses may be called for and against the state of Colorado during the hearing. Like a trial – they are sworn to tell the truth and are subject to cross examination.

Victims may attend a parole revocation hearing in person or by telephone, or they can submit a written comment.

 The Actual Colorado Parole Revocation Hearing

The Colorado parole revocation hearing is very basic. Like all hearings in court many types of evidence can be offered. The rules of evidence which are usually very rigid in a courtroom are greatly relaxed in the parole revocation hearing.

At the start of the hearing – the Parole Division Board Member asks if the parolee if they would like their rights read to them or if they will waive the reading of the rights. The hearing officer reviews each violation alleged in the complaint to revoke the parole.

At that point – the parolee may “admit” – “admit with an explanation” or “deny” each violation.

If there is a denial of an allegation in the complaint – the hearing proceeds to the presentation of evidence. If the parolee admits the violations – the lawyer for the parolee or the self represented parolee has the opportunity to explain their side of what happened.

The “Litigated” Colorado Parole Revocation Hearing

If the parolee does not admit the violation and the parole revocation proceeds to a litigated hearing – evidence – usually in the form of documents – the violation report, the testimony of witnesses and similar types of evidence are admitted during the hering.

While there may be objections to evidence – the rules of evidence are much more relaxed than a real criminal trial. This hearing is in the nature of what is known as “minimal due process – the parolee is given the opportunity to confront and cross- examine the witnesses testimony and the other evidence brought against them.

After the parole officer is finished presenting his or her case, it is the parolee’s turn present their case – again usually in the form of testimony, witnesses, affidavits, letters, pictures and the like.

It is important to note here – that the parole officer has the burden of proving the complaint with or without the help of a District Attorney. The burden of proof is much less than the criminal standard – actually it is the civil burden of proof – known as “proof by a preponderance of the credible evidence.” One violation of parole – even if there are several alleged in the complaint – is enough to sustain the violation of probation.

After both sides have rested their cases – the Colorado Parole Board Member will usually make a finding.

If the Hearing Officer finds that the parole officer has not sustained his or her burden of proof by a preponderance of the credible evidence (“not guilty”)then parole cannot be revoked.

If the violation of parole is based on a new crime the criminal offense must be established by a reasonable doubt unless the Parolee has already been convicted in a criminal proceeding.

It is important to note here that if the violation of the condition of Parole is a new crime and the Parolee is charged in a pending criminal case, the testimony given in a Parole Revocation Proceeding where the charge is a new criminal act IS NOT admissible in the criminal case before a court.

Also if the Parolee has already been convicted of a criminal offense while on Parole, the Parole Board Member hearing the case will accept proof of that conviction as conclusive of the violation and proceed directly to the sentencing phase of the parole violation.

Any evidence having probative value shall be admissible in all proceedings related to a Parole violation Complaint, regardless of its admissibility under the exclusionary rules of evidence, if the Parolee is accorded a fair opportunity to rebut hearsay evidence.

Sentencing Of The Parolee If The Colorado Revocation Of Parole Complaint Is Proven

Basically then – a”Revocation Hearing” – can be defined as a Hearing held on a Complaint to determine whether:

(1) Parole should be revoked and then

(2) whether the Parolee should be returned to a CDOC facility.

If there is a finding that – by a preponderance of the credible evidence – a parolee has violated a condition of their parole, the hearing moves on to the “adjustment” or sentencing phase” of the hearing.

The focus of this next phase is to determine what should be done to the parolee – that often turns on how well the parolee has done on parole PRIOR to revocation.

This phase includes a statement – usually by the parolee’s parole officer – that specifies how well or how poorly the parolee has done on parole. It includes – of course – the parolee’s criminal history, the parolee’s payment of fees, fines, and restitution, the parolee’s home situation, any indication of drug use, and generally how the parolee has complied with the many conditions of parole.

Other elements include the use of electronic monitoring, and the use of “intermediate sanction” facilities such as a half way house in lieu of returning the parolee to prison.

The parolee’s lawyer and or the parolee is then given the opportunity to present argument and evidence in the form of letters, witnesses and other forms of evidence attesting to what are referred to as “mitigating” or “extenuating” circumstances.

The Parole Board Member may then decide what the sentence is – or he or she may take the case under advisement and rule on the sentence later.

A Waiver Of An Immediate Decision By The Board As To Sentencing

Sometimes it can be in your best interest to waive the right an immediate sentencing on the parole revocation.

While a Parolee found guilty of a violation of has a statutory right to have a final decision on the sentence within five working days of the revocation, it may make sense – to give the Parole Board more time to add a new condition of Parole or to seek acceptance into a treatment program, to waive that five day rule.

With a waiver of the five day rule – the Parole Division is obligated to investigate the new program or other new condition of Parole and then report back to the Board no later than 45 days following the waiver of the five day rule.

After the report is received as to acceptance of the Parolee into a new treatment program or any other new condition of Parole, the Board should act within 15 days by issuing a new order of parole.

If The Parole Board Hearings Officer Decides There Has Been A Violation Of A Condition Of Parole But Still Decides NOT To Revoke Parole – That Decision Is Reviewable

If the hearing officer finds a Parolee guilty of the conduct charged, but decides against revoking Parole, the record of the Hearing MUST BE REVIEWED within 15 days of the decision by two independent Members of the Colorado Boar of Parole.

If You Lose – Appealing A Loss At A Colorado Parole Revocation Hearing

An Appeal of a Colorado Parole Revocation Decision is a practical nullity. The parole revocation hearing is itself a very informal process here in Colorado. While there are procedures in place for an appeal – a parole revocation is nearly always sustained.

The best approach is to retain counsel to advocate AT the hearing itself to argue the mitigation in the case and for a lighter sentence.

But If You Decide To Appeal A Colorado Parole Revocation…

The appeal of a decision to revoke Parole must be filed within 30 days of the decision.

If the parolee is in custody – they must remain in custody during the pending appeal process.

Two Members of the Parole Board, NOT the Parole Board Member who presided over the hearing must review the record within 15 working days after the filing of the appeal.

These Two Parole Board Members must notify the Parolee of their decision in writing within 10 working days after such decision has been made.

Here Are The Standards They Are Grounds For Appeal

The grounds for appealing a negative decision are:

• • An irregularity in the proceedings by which any Inmate was prevented from having a fair Revocation Hearing;
  • An abuse of discretion or misconduct by the person who conducted the Revocation Hearing;
  • An arbitrary and capricious decision by the person who conducted the Revocation Hearing;
  • Accident or surprise, which ordinary prudence could not have guarded against;
  • Newly-discovered evidence;
  • Error or change in law; or
  • Discharge of sentence.

Under What Circumstances Can A Hearing Be Reopened? – A Discretionary Review

Irrespective of the formal appeal – the Parole Board may also – at its discretion – grant a new Hearing.

If the parolee receives notice that the panel decision is to revoke parole he or she then has 60 days from the date of the decision to request “a reopening” of the case for ” any substantial error in the process or upon newly discovered information.”

Beyond the 60 days, a request to reopen the revocation hearing or to reinstate supervision is allowed ONLY if there were “exceptional circumstances” such as:

• A Judicial (court based) reversal of a conviction where the criminal offense was an underlying factor in the revocation decision,

• A Judicial (court based) order requiring a hearing, or

• If parole was revoked without a hearing or waiver as required by law.

Upon receiving a request for reopening, the Board either:

1. Grants the motion and orders the hearing reopened,

2. Denies the motion, or

3. Reverses the previous revocation decision.

The Ins & Outs Of Colorado Parole Revocation Hearings – How They Work -What To Expect

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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.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

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