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The right of the probation department to extend a period of probation can be a very confusing issue for those on probation in the State of Colorado. What follows is an actual case an Colorado Court of Appeals case that explains the law in this area.
The Facts of the Case:
The Probation Officer appears to have coerced an agreement from the Defendant to extend his period of probation – but the Court found NO COERCION.
Defendant testified that his probation officer told him that if he did not sign the request to extend his probation, she would file a motion to revoke his probation, that he would go in front of the judge, and that he would probably go to prison. Defendant further testified that he had been through the probation revocation process twice before he signed the request to extend his probation. Defendant acknowledged that his probation officer had not threatened him.
The court found that defendant’s consent to the extension of his probation was made knowingly and voluntarily and resulted from defendant’s choice to extend his probation rather than have a hearing Before the judge on that issue.
The court further concluded that a court’s extension of probation with a defendant’s consent did not require the application of the same standards as a probation revocation hearing; that Crim. P. 11 was not applicable to the consensual extension of probation; and that defendant’s consent to the extension did not amount to an admission of a probation violation
The Defendant argued that he was denied his “rights” of due process because his consent to an extension of probation was not knowing and voluntary. He contended that, at a minimum, the full scope of due process required a hearing with notice, disclosure of evidence, an opportunity to be heard and present evidence, and the right to cross-examine adverse witnesses.
The Difference Between a Probation Revocation and a “Consensual” Agreement to Extend The Period of Probation
Colorado’s statutory scheme suggests that while due process must be accorded to defendants in probation revocation and probation extension proceedings, where a defendant consents to an extension, there is no requirement for a hearing or other proceedings designed to assure that a defendant is making a knowing and voluntary decision.
The trial court has the authority to “grant the defendant probation for such period and upon such terms and conditions as it deems best.”
The court may thereafter extend a defendant’s probationary term “[f]or good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it.”
But the provisions of the statute concerning notice, a hearing, and a showing of good cause are not applicable if the defendant consents to the extension.
In contrast, a parole revocation hearing must meet the following minimum due process requirements:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers;
(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Due process rights are less significant in probation extension proceedings than they are in probation revocation proceedings.
In Colorado the right to “due process” does not require that the court hold a hearing before extending defendant’s probation. In this case, the Colorado Courts have held that this properly determined that his consent to the extension was valid.
In this case the defendant was familiar with the probation revocation process and had already participated in two probation revocation hearings when he signed the request to extend his probation. The probation officer advised defendant that he was entitled to a hearing before his probation was extended. The probation officer testified that she read the request to defendant, and there is no evidence that defendant was unable to read the request himself.
There was also no evidence that the probation officer threatened or coerced defendant into signing the request. Defendant admitted at the hearing on remand that his probation officer did not threaten him in any way. Further, there is no evidence that defendant was a minor or under any disability.
In Summary – the Colorado Courts have decided that the evidence supports the trial court’s finding that defendant’s consent to extend his probation term was made knowingly and voluntarily. Under the circumstances presented here, defendant was accorded sufficient due process by the trial court in reaching that conclusion.
The record suggests that defendant chose to extend his probation rather than proceed to a revocation hearing, which could have resulted in the revocation of his probation.