COLORADO COURT OF APPEALS                                        2017COA97


Court of Appeals No. 17CA0749
El Paso County District Court Nos. 15CR3126, 15CR4048 & 16CR6133
Honorable Michael P. McHenry, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Trevelle Keshawn Johnson,

Defendant-Appellant.


                             APPEAL DISMISSED

                                  Division A
                         Opinion by JUDGE BERNARD
                            Hawthorne, J., concurs
                              Harris, J., dissents

                           Announced July 13, 2017


Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant
Attorney General, Denver, Colorado; Daniel H. May, District Attorney, Doyle
Baker, Senior Deputy District Attorney, Brien Cecil, Senior Deputy District
Attorney, Tyler Uhlenbrock, Deputy District Attorney, Colorado Springs,
Colorado, for Plaintiff-Appellee

Davide C. Migliaccio, Alternate Defense Counsel, Colorado Springs, Colorado,
for Defendant-Appellant
¶1    Does the same set of rules govern a court’s decision to set

 bond in the following two categories of cases? The first category

 includes cases in which the court sets bond for persons who have

 been charged with felonies and who are awaiting trial. The second

 category includes cases in which defendants have pled guilty to

 felonies, courts have sentenced them to probation or placed them

 on deferred judgments, and the prosecution then files motions to

 revoke the defendants’ probation or deferred judgments.

¶2    We answer the question “no” — meaning that the same set of

 rules does not apply to the two categories — for two interconnected

 reasons.

¶3    First, defendants in the two categories stand on opposite

 banks of the criminal justice Rubicon. Defendants in the first

 category are presumed to be innocent. But (1) defendants in the

 second category have admitted their guilt, so the presumption of

 innocence is long gone; (2) such defendants are not entitled to many

 of the fundamental rights that those in the first category enjoy; and

 (3) probation revocation and revocation of deferred judgment

 proceedings are focused on whether the sentences that courts

 originally imposed are still appropriate.


                                    1
¶4    Second, Colorado’s constitution and the pertinent bond

 statutes recognize this separation between the two categories. In

 the first category, the law requires courts to set bond for defendants

 who await trial, subject only to a few clearly delineated exceptions.

 In the second category, the law gives courts discretion to set bond.

¶5    In this case, probationer, Trevelle Keshawn Johnson, asks us

 to review the revocation court’s decision to deny him bond in two

 cases. He filed a petition requesting such review under section

 16-4-204, C.R.S. 2016.

¶6    We dismiss probationer’s petition, see § 16-4-204(3)(d),

 because we conclude that (1) his two cases fell into the second

 category; (2) the revocation court therefore had discretion to deny

 his request for bond in those cases; and (3) the court did not abuse

 its discretion when it denied his request for bond because the

 record supported its decision.

                           I.     Background

¶7    In El Paso County criminal case number 15CR3126,

 probationer pled guilty to the class five felony of menacing. With

 the prosecution’s consent, the court entered a deferred judgment




                                    2
  and ordered probationer to submit to the supervision of the

  probation department for four years.

¶8     In El Paso County criminal case number 15CR4048,

  probationer pled guilty to the class six felony of criminal

  impersonation. The court sentenced him to probation for four

  years, adding that this four-year period would be consecutive to the

  four-year deferred judgment in the menacing case.

¶9     Probationer entered into these plea dispositions on the same

  day in October 2015.

¶ 10   While probationer was serving his probation and deferred

  judgment in these two cases, the prosecution charged him in El

  Paso County criminal case number 16CR6133 with, among other

  crimes, first degree felony murder and robbery. He was arrested

  and jailed on November 22, 2016. He was held without bond in

  that case pending his combined preliminary hearing and bond

  hearing.

¶ 11   The record that we have is not entirely clear, but it appears

  that, after probationer’s arrest in the murder case, the prosecution

  filed motions to revoke his deferred judgment in the menacing case

  and his probation in the criminal impersonation case. The record


                                     3
  does not contain these motions, but we can piece together what

  they alleged from other documents and transcripts in the record. It

  looks like they alleged that probationer had violated the terms of his

  deferred judgment and his probation because he had committed the

  offenses with which he had been charged in the murder case.

¶ 12   In late November 2016, the revocation court issued an arrest

  warrant in the menacing case because of allegations that

  probationer had not complied with the terms of his probation. The

  same thing happened in early December 2016 in the criminal

  impersonation case. The minute orders in the record indicate that

  probationer was booked into jail on both cases because of a “WFTC

  Warrant Failure to Comply.” (Defendant was simultaneously in

  custody based on his arrest in the murder case.)

¶ 13   The trial court held a combined preliminary hearing and bond

  hearing in the murder case in mid-February 2017. Although the

  court found probable cause to believe that probationer had

  committed these crimes, it also found that the prosecution had not

  established that proof of his guilt was evident or that the

  presumption was great that a jury would convict him. The court

  therefore set bond at $75,000. Probationer’s trial in the murder


                                    4
  case is pending, and he is obviously presumed to be innocent of the

  charges in that case.

¶ 14   In early March 2017, the revocation court held a hearing to

  determine whether it would grant probationer’s request for bond in

  the menacing case and in the criminal impersonation case.

¶ 15   Probationer asserted that the revocation court should set bond

  in both cases because (1) the only allegation in the motions to

  revoke his probation and his deferred judgment was that he had

  been charged with new crimes in the murder case; (2) he was

  presumed innocent of those new crimes because the charges had

  not yet been resolved; (3) he had done well while on probation and

  on the deferred judgment because he had appeared at all his

  appointments and because he had a job; (4) he could “get

  employment” if the court released him on bond; (5) he had been

  born and raised in the local community, and his family supported

  him; and (6) he was only nineteen years old.

¶ 16   The prosecution replied that section 16-4-103(5), C.R.S. 2016,

  which lists criteria that a court should consider when setting and

  selecting the type of bond, applied to probationer’s request for bond.

  (We conclude below that a different statute controls the resolution


                                    5
  of this petition, but it appears to us that the revocation court

  implicitly focused on the proper statute.)

¶ 17   The prosecution then added that (1) probationer had

  “significant incentive to [flee] the jurisdiction” because he was on

  probation “when he committed the crimes” charged in the murder

  case; (2) there was a “possibility of [additional] violations of the law”

  if the court released probationer on bail; (3) the revocation court

  had “a very good indication that [he would] continue to violate” any

  bond conditions that the court might impose; (4) probationer had

  told the police in the murder case that he did not know that the

  robbery would result in a homicide, but he added that he and his

  accomplice had been “robbing people for marijuana”; (5) smoking

  marijuana violated the conditions of probationer’s deferred

  judgment in the menacing case and his probation in the criminal

  impersonation case; (6) he had previously failed to appear in court

  three times in unrelated misdemeanor cases; (7) he had not

  reported to his probation officer during the time that he was

  “running from the law,” which appears to be a reference to when the

  events in the murder case had occurred; (8) one of the victims in

  the menacing case had told the prosecutor that he wanted the court


                                      6
  to deny probationer’s request for bond; and (9) the mother of the

  murder victim in the murder case asked the court to deny

  probationer’s request for bond.

¶ 18     The prosecutor then told the revocation court that it would be

  “justified in continuing to hold [probationer] without bond based on

  his pattern of violating conditions of his supervision,” and his

  probation officer could not “watch him all the time.”

¶ 19     The revocation court denied probationer’s request for bond in

  the menacing case and the criminal impersonation case. It thought

  that it had a “much higher degree of certainty” as to the likely

  outcome of the motion to revoke the deferred judgment in the

  menacing case and the motion to revoke probation in the criminal

  impersonation case than the outcome of the pending charges in the

  murder case. Indeed, the court added that it was making a

  “separate judgment” in the former two cases from that in the latter

  one.

¶ 20     The court added that it saw a “philosophical distinction”

  between preconviction and postconviction cases. This distinction

  also applied to the judgment that the court was required to make

  about whether probationer presented an excessive risk to the


                                     7
  community. (We note that the transcript in the record contains

  several puzzling word choices. For example, the transcript

  indicates that the court used the word “recessive” when discussing

  probationer’s risk to the community. But we are confident from the

  context of this language that the court was discussing “excessive”

  risk.)

¶ 21       At the end of the hearing, the revocation court set a date in

  April 2017 for a hearing on the prosecution’s motions to revoke

  probationer’s deferred judgment and his probation. On that day,

  probationer asked the court to continue the hearing on the

  revocation motions until after the charges in the murder case had

  been resolved. So, according to the record before us, probationer

  remains in custody, without regard to whether he could make the

  $75,000 bond in the murder case, because the revocation court

  denied his request for bond in the menacing case and in the

  criminal impersonation case.

                                 II.   Analysis

¶ 22       Probationer asserts that the revocation court was

  “constitutionally and statutorily required” to set bond in the

  menacing case and the criminal impersonation case “under the


                                        8
  circumstances present” in those cases. The court therefore “abused

  its discretion and exceeded its jurisdiction” when it “refus[ed] to

  set . . . bond.” As a result, probationer “is being unconstitutionally

  held without bond.”

¶ 23    His contention focuses on Colorado Constitution article II,

  section 19(1), and section 16-4-101(1), C.R.S. 2016. He asserts

  that the motions to revoke in the menacing case and the criminal

  impersonation case are “new charges.” He therefore has a right to

  bond on these “new charges,” he continues, because he has not yet

  been “convicted” of them. See Colo. Const. art. II, § 19(1) (“All

  persons shall be bailable by sufficient sureties pending disposition

  of charges . . . .”); § 16-4-101(1) (“All persons shall be bailable by

  sufficient sureties . . . .”).

¶ 24    We generally review a trial court’s decision to grant or to deny

  bond for an abuse of discretion. See, e.g., People v. Hoover, 119

  P.3d 564, 566 (Colo. App. 2005). But probationer also presents us

  with a legal question, which we review de novo. People v. Blagg,

  2015 CO 2, ¶ 11.

¶ 25    We disagree with probationer’s contentions for the following

  reasons.


                                      9
¶ 26   First, the “shall be bailable” language found in Colorado

  Constitution article II, section 19(1) “gives the criminally accused

  the right to a bail bond, pending adjudication of the charges against

  him . . . .” Blagg, ¶ 12 (emphasis added). The roots of the “shall be

  bailable” language are found in the presumption of innocence. See

  Stack v. Boyle, 342 U.S. 1, 4 (1951)(The “traditional right to freedom

  before conviction permits the unhampered preparation of a defense,

  and serves to prevent the infliction of punishment prior to

  conviction. Unless this right to bail before trial is preserved, the

  presumption of innocence, secured only after centuries of struggle,

  would lose its meaning.”)(citation omitted).

¶ 27   As we explain in more detail below, the presumption of

  innocence does not apply to the issues in this appeal because

  probationer stands convicted of criminal impersonation and

  menacing. The motions to revoke his probation and his deferred

  judgment do not focus on whether the law presumes him to be

  innocent of the crimes with which the prosecution charged him in

  the murder case. Instead, those motions concern the entirely

  different issue of whether the sentences that the court originally




                                     10
  imposed in the menacing case and the criminal impersonation case

  were still appropriate.

¶ 28   Second, probationer recognizes, of course, that there are

  exceptions to this “shall be bailable” language. As is pertinent to

  our analysis, Colorado Constitution article II, section 19(2.5) creates

  one of them. “The court may grant bail after a person is convicted,

  pending sentencing or appeal, only as provided by statute enacted

  by the general assembly . . . .” § 19(2.5)(a) (emphasis added). And

  a court cannot exercise its discretion to grant bond in this

  circumstance unless it finds that (1) the defendant “is unlikely to

  flee and does not pose a danger to the safety of any person or the

  community,” § 19(2.5)(b)(I); and (2) an appeal “is not frivolous or is

  not pursued for the purpose of delay,” § 19(2.5)(b)(II).

¶ 29   This exception to the “shall be bailable” language means that

  “[t]here is no constitutional right to bail after conviction in

  Colorado.” People v. Roca, 17 P.3d 835, 836 (Colo. App. 2000). Or,

  to put it another way, Colorado’s “constitution does not establish a

  right to bail after trial; it merely allows the legislature to authorize

  post-trial bail, and only for certain defendants . . . .” Hoover, 119

  P.3d at 566.


                                      11
¶ 30   In response to section 19(2.5)(a), the legislature has defined

  the circumstances in which a person is eligible for bond after being

  convicted. As is pertinent to our analysis, section 16-4-201.5(1)

  and (2), C.R.S. 2016, say the same things as section 19(2.5)(a),

  (b)(I), and (b)(II) of our constitution say. Indeed, as our supreme

  court has recognized, since 1972

            matters concerning the types and conditions of
            both pretrial and post-conviction bail bonds,
            the requirements for setting and modifying
            those bonds, and the review of such settings or
            modifications, as well as matters concerning
            the forfeiture, termination, and enforcement of
            bail bonds and exoneration from bond liability
            have, within constitutional limitations, see
            Colo. Const. art II, § 19, been governed by
            statute in this jurisdiction.

  People v. Jones, 2015 CO 20, ¶ 7.

¶ 31   (We note that there is at least one other statutory statement

  about bond that applies to certain probation revocation hearings.

  Section 16-11-205(3), C.R.S. 2016, states that, after a probation

  officer arrests a probationer without a warrant, “[a]ny probationer

  so arrested . . . may be admitted to bail pending [a] probation

  revocation hearing.” (Emphasis added.) This statute does not apply

  to this case because probationer was not “so arrested.” He was



                                     12
  instead arrested pursuant to a warrant. Such arrests are different

  circumstances that are covered by a different subsection, section

  16-11-205(6), which does not make any reference to bond.)

¶ 32   Third, there is no doubt that probationer stood convicted after

  he pled guilty to a deferred judgment in the menacing case, see

  Hafelfinger v. Dist. Court, 674 P.2d 375, 376 (Colo. 1984)(“In the

  context of the bail bond statute, a plea of guilty, when accepted by

  the court which grants a deferred judgment and sentence,

  constitutes a conviction.”), and after he pled guilty in the criminal

  impersonation case, see § 16-7-206(3), C.R.S. 2016 (“The

  acceptance by the court of a plea of guilty . . . acts as a conviction

  for the offense.”); Swift v. People, 174 Colo. 259, 263, 488 P.2d 80,

  82 (1971)(noting that in its general, popular, and “frequently . . .

  ordinary” sense, the word “conviction” means the establishment of

  guilt by a trial verdict or a guilty plea before sentence or

  judgment)(citation omitted).

¶ 33   Fourth, the revocation of probation or of a deferred judgment

  “is not part of a criminal prosecution and constitutes only a

  reconsideration of the original sentence.” People v. Preuss, 920 P.2d

  859, 860 (Colo. App. 1995). The purpose of probation revocation


                                     13
  proceedings is not “to punish a defendant for a new crime.” Id. at

  861. Instead, their purpose is to “ascertain an appropriate

  sentence for an offense of which defendant has already been

  convicted and for which probation was granted.” Id.

¶ 34   To put it another way, “the concern” in a probation revocation

  hearing “is whether the alternatives to incarceration which have

  been made available to a defendant remain viable for him.” People

  ex rel. Gallagher v. Dist. Court, 196 Colo. 499, 502, 591 P.2d 1015,

  1017 (1978). “[A] probation revocation order operates not as a

  determination of guilt or innocence as to the question of whether

  the defendant violated the terms of his probation, but primarily as a

  reassessment of the correctness of the original sentence.” Id.;

  accord People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008).

¶ 35   The same “concern” applies to the revocation of a deferred

  judgment. “[I]n the imposition of a previously deferred judgment

  and sentence, as in a probation revocation, the trial court need only

  ascertain the appropriate sentence for an offense to which the

  defendant has already pleaded guilty.” People v. Lopez, 97 P.3d

  223, 225-26 (Colo. App. 2004).




                                   14
¶ 36   Fifth, a probationer facing a revocation hearing “is not entitled

  to claim the full range of constitutional guarantees available to one

  who has not yet been convicted of a crime.” People v. Atencio, 186

  Colo. 76, 78, 525 P.2d 461, 462 (1974); see also Morrissey v.

  Brewer, 408 U.S. 471, 480 (1972)(“We begin with the proposition

  that the revocation of parole is not part of a criminal prosecution

  and thus the full panoply of rights due a defendant in such a

  proceeding does not apply to parole revocations.”).

¶ 37   Indeed, there are “critical differences between criminal trials

  and probation revocation hearings[.]” Atencio, 186 Colo. at 79, 525

  P.2d at 462. The rights of “a probationer facing revocation” are

  “‘significantly reduced’ when compared to a defendant facing

  substantive criminal charges.” Finney v. People, 2014 CO 38, ¶ 27

  (quoting Byrd v. People, 58 P.3d 50, 56 (Colo. 2002)). For example,

  probationers do not have the right to a jury trial at a probation

  revocation hearing or the right to plead not guilty by reason of

  insanity. Id. They may not have the protection of the Fourth

  Amendment’s exclusionary rule or the protections of the Miranda

  rule, named for Miranda v. Arizona, 384 U.S. 471 (1966). Finney, at

  ¶ 27. And the prosecution can ask the court to use their invocation


                                    15
  of the Fifth Amendment against them if they rely on it to refuse to

  answer questions. Id.

¶ 38   These same limitations apply to deferred judgment revocation

  hearings. See § 18-1.3-102(2), C.R.S. 2016 (noting that a motion to

  revoke a deferred judgment is subject to the “procedural safeguards

  required in a revocation of probation hearing”). Indeed, Finney

  concerned a revocation of a deferred judgment. See Finney,

  ¶¶ 22-24.

¶ 39   Sixth, courts in other jurisdictions have held that probationers

  do not have a right to bond in probation revocation proceedings.

  See In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970)(“[T]he Eighth

  Amendment does not guarantee a right to bail pending revocation of

  probation.”); Martin v. State, 517 P.2d 1389, 1398 (Alaska 1974)(A

  probation revocation proceeding is not a criminal prosecution that

  adjudicates guilt or innocence, so the Alaska Constitution did not

  give a probationer the right to bail before a probation revocation

  hearing.); Genung v. Nuckolls, 292 So. 2d 587, 588 (Fla. 1974)(“[A]

  probationer . . . does not have a constitutional right to bail in

  probation . . . revocation proceedings.”); State v. Burgins, 464

  S.W.3d 298, 304 n.2 (Tenn. 2015)(“A defendant who has been


                                     16
  convicted of a crime does not have a constitutional right to bail.

  The trial court, however, in its discretion and pursuant to

  applicable law, may grant bail to a defendant in a probation

  revocation proceeding.”); Ex parte Ainsworth, 532 S.W.2d 640, 641

  (Tex. Crim. App. 1976)(“[A] probationer is not entitled to bail as a

  matter of right pending a hearing on the State’s motion to revoke

  probation, but . . . a person so situated may be admitted to bail by

  the court in the exercise of its discretion.”).

¶ 40   Applying these principles to this case, we conclude that

  probationer did not have a right to bond in the menacing case and

  the criminal impersonation case because

           he had been convicted in those cases, see § 16-7-206(3);

             Hafelfinger, 674 P.2d at 376; Swift, 174 Colo. at 263, 488

             P.2d at 82;

           the probation revocation and the deferred judgment

             revocation motions that he faced were designed (1) to

             “ascertain an appropriate sentence” in both cases,

             Preuss, 920 P.2d at 861; see also Lopez, 97 P.3d at

             225-26; (2) to decide whether “alternatives to

             incarceration . . . remain viable,” Gallagher, 196 Colo. at

                                      17
            502, 591 P.2d at 1017; and (3) to “reassess[] . . . the

            correctness of the original sentence,” id.;

          the probation and deferred judgment revocation motions

            were not (1) “part of a criminal prosecution,” Preuss, 920

            P.2d at 860; (2) designed to punish probationer for a new

            crime, see id.; and (3) designed to “determin[e] . . . guilt

            or innocence as to the question of whether the defendant

            violated the terms of his probation,” Gallagher, 196 Colo.

            at 502, 591 P.2d at 1017; and

          (1) there are “critical differences between criminal trials

            and probation revocation hearings,” Atencio, 186 Colo. at

            79, 525 P.2d at 462; (2) probationer was not entitled to

            the full panoply of constitutional protections afforded to

            people who have not been convicted of crimes, see id.;

            and indeed (3) his rights were “‘significantly reduced’

            when compared to a defendant facing substantive

            criminal charges,” Finney, ¶ 27 (quoting Byrd, 58 P.3d at

            56).

¶ 41   We next conclude that section 19(2.5)(a) and section

  16-4-201.5(1) apply to this case because probationer had been

                                    18
  “convicted” and he was “pending sentencing.” See Gallagher, 196

  Colo. at 502, 591 P.2d at 1017; Lopez, 97 P.3d at 225-26; Preuss,

  920 P.2d at 860. This means that the revocation court had

  discretion to grant probationer’s request for bond because both

  section 19(2.5)(a) and section 16-4-201.5(1) state that “[t]he court

  may grant bail after a person is convicted, pending sentencing . . . .”

  But the revocation court’s discretion was qualified by section

  19(2.5)(b)(I) and section 16-4-201.5(2)(a). Both provisions state that

  a court “shall not set bail that [they] . . . otherwise allow[]” unless

  the court also finds that a probationer “is unlikely to flee and does

  not pose a danger to the safety of any person or the

  community . . . .” § 19(2.5)(b)(I); § 16-4-201.5(2)(a).

¶ 42   The revocation court discussed whether probationer

  represented a danger to the safety of any person or to the

  community. Indeed, the record indicates that the court found that

  he posed an excessive risk to the community’s safety.

¶ 43   We further conclude that the record supports this finding. For

  example, the court found probable cause to believe that probationer

  had committed, among other crimes, felony murder and robbery,




                                     19
  and the prosecution quoted probationer as saying that he and his

  accomplice had been robbing people for marijuana.

¶ 44   We therefore finally conclude that the revocation court did not

  abuse its discretion when it denied probationer’s request for bond

  in the menacing case and the criminal impersonation case. The

  court’s decision was not manifestly arbitrary, unreasonable, or

  unfair, and it did not misconstrue or misapply the law. See People

  v. Fallis, 2015 COA 75, ¶ 4 (evaluating a defendant’s petition to

  review bond conditions under section 16-4-204 for an abuse of

  discretion).

¶ 45   We address one final point, which is whether probationer was

  entitled to bond because the motions to revoke his probation and

  his deferred judgment were based on a new crime, i.e., the murder

  case. But, as we have demonstrated above, the reason for the

  revocations does not matter because the revocation court has to

  “reassess[] . . . the correctness of the original sentence.” The court

  will not “determin[e] . . . guilt or innocence as to the question of

  whether [probationer] violated the terms of his probation.”

  Gallagher, 196 Colo. at 502, 591 P.2d at 1017.




                                     20
¶ 46   There is no principled way to distinguish between giving

  probationers a right to bond if revocation motions are based on new

  offenses and giving revocation courts discretion to deny them bond

  if revocation motions are based on technical violations. As we

  recognized in the previous paragraph, the issue in probation

  revocation hearings focuses on whether the original sentence is still

  correct, not on issues of guilt or innocence. See id.

¶ 47   We understand that, in Finney, our supreme court stated that

  “a revocation defendant facing a new substantive criminal offense is

  entitled to a penalty advisement under section 16-7-206 because

  the defendant is being ‘charged with an offense.’” Finney, ¶ 21. We

  see this as no more than a recognition that probationers in such

  circumstances should be advised of the consequences of their pleas.

  Finney did not discuss the issue of bond in probation and deferred

  judgment revocation proceedings, so it did not have an opportunity

  to address the applicability of section 19(2.5)(a) and section 16-4-

  201.5.

¶ 48   The petition filed under section 16-4-204 is dismissed.

       JUDGE HAWTHORNE concurs.

       JUDGE HARRIS dissents.


                                    21
       JUDGE HARRIS, dissenting.

¶ 49   A defendant is eligible for bond under one of two statutes:

  section 16-4-102, C.R.S. 2016 — which governs bond “before

  conviction” — or section 16-4-201, C.R.S. 2016 — which governs

  bond “after conviction.” The majority announces a new rule that a

  defendant awaiting adjudication of a petition to revoke probation or

  a deferred judgment is subject to section 16-4-201 (bond “after

  conviction”) because he has been convicted of the underlying

  offense for which he received a sentence of probation or a deferred

  judgment. That argument may have some appeal at first blush, but

  it is soundly refuted by the relevant statutes. Because we are

  bound by the applicable statutory text, which makes clear that a

  probationer is entitled to bond in accordance with section 16-4-102,

  I respectfully dissent.

¶ 50   Defendant, Trevelle Keshawn Johnson, pleaded guilty to felony

  menacing, a class 5 felony, and criminal impersonation, a class 6

  felony, and the court entered a deferred judgment in the former

  case and imposed a sentence of probation in the latter. While he

  was on probation, Johnson was charged with felony murder and

  robbery. His probation officer filed a petition to revoke Johnson’s


                                   22
  probation and deferred judgment based on the new criminal

  charges.

¶ 51        After a hearing in the murder case, the court ordered Johnson

  released on a $75,000 bond. But when Johnson requested a bond

  pending adjudication of the probation violations (the same conduct

  for which he had just been granted bond), the court deemed him

  ineligible for pre-hearing release because, the court reasoned, he

  was seeking postconviction bond.

¶ 52        The majority embraces this anomalous result by (1) focusing

  on the underlying convictions, rather than the unadjudicated

  allegations in the revocation petition (which provide the basis for

  keeping Johnson in jail); and (2) disregarding language in various

  statutes that directs the trial court to set bond for probationers in

  accordance with the pretrial bond statute.

       I.    Johnson is Not Seeking Bail After Conviction Under Section
                                     16-4-201

¶ 53        According to the majority, Johnson’s request for bond is

  governed by section 16-4-201 (entitled “[b]ail after conviction”)

  because he has been convicted of menacing and criminal

  impersonation. To be sure, Johnson’s guilty pleas in those two



                                       23
  cases resulted in “convictions,” which is all the cases cited by the

  majority say. See Hafelfinger v. Dist. Court, 674 P.2d 375, 376

  (Colo. 1984) (statute prohibiting personal recognizance bond if

  defendant has a prior felony conviction applied to probationer, who

  sought to be released on a personal recognizance bond pending his

  revocation hearing, because his guilty plea in the underlying offense

  counted as a “conviction”); Swift v. People, 174 Colo. 259, 263, 488

  P.2d 80, 82 (1971) (concluding that, in its technical sense,

  “conviction” means adjudication of guilt and sentencing, but in its

  ordinary legal sense, the word “conviction” means establishment of

  guilt, including by guilty plea, prior to and independent of judgment

  and sentence).

¶ 54   But from that unremarkable premise, the majority reaches the

  troubling conclusion that a probationer facing revocation

  proceedings is situated identically to a defendant seeking

  postconviction bond because, in both instances, all that is left for

  the court to do is to “ascertain an appropriate sentence.”

¶ 55   That conclusion disregards the fact that, as a probationer,

  Johnson has a conditional liberty interest, and he cannot be

  deprived of that interest without due process. People v. Scura, 72


                                    24
  P.3d 431, 433 (Colo. App. 2003) (“These constitutional safeguards

  are required because a revocation may cause probationers or

  parolees to be placed in a more restrictive confinement, thereby

  impinging upon a liberty interest. And a defendant at liberty, even

  conditionally, may not be deprived of that liberty without due

  process.”); see also People v. Whitlock, 2014 COA 162, ¶ 33 (A

  person granted probation “has attained a ‘liberty interest,’ which

  may not be taken away from him in the absence of due process.”).

¶ 56   Thus, contrary to the majority’s suggestion, the purpose of

  revocation proceedings is not simply for the court to reimpose a

  sentence. Before the court may reconsider the initial sentence to

  probation, it must first find that the government has met its burden

  to prove that the probationer committed the violations alleged in the

  petition. Only then may the court modify the sentence and impose

  a more restrictive punishment. See § 16-11-206(5), C.R.S. 2016 (“If

  the court determines that a violation of a condition of probation has

  been committed, it shall, within seven days after the said hearing,

  either revoke or continue the probation.”) (emphasis added); see

  also People v. Ruch, 2013 COA 96, ¶ 32 (“Revocation of a

  defendant’s probation involves a two-step process. First, the trial


                                    25
  court must determine whether the defendant violated the conditions

  of his or her probation. . . . Second, if the trial court determines

  that the defendant violated the terms of probation, it then has the

  discretion to revoke probation based on the violation.”), rev’d on

  other grounds, 2016 CO 35.

¶ 57   In this way, probationers are unlike postconviction

  defendants. With respect to the latter category, the government has

  carried its burden to prove the conduct that allows the court to

  curtail the defendant’s liberty. The next step is sentencing. But

  with respect to pre-revocation hearing probationers, the government

  has merely alleged the misconduct, and therefore the defendant has

  not forfeited his liberty interest. The next step is a hearing at which

  the government must prove the misconduct.

¶ 58   Neither People v. Preuss, 920 P.2d 859 (Colo. App. 1995), nor

  Gallagher v. District Court, 196 Colo. 499, 591 P.2d 1015 (1978), the

  cases relied on by the majority, calls this critical distinction into

  question.

¶ 59   Preuss concerned the question of whether a sentence imposed

  on revocation of probation may, consistent with the Double

  Jeopardy Clause, be ordered to run consecutively to the sentence


                                     26
  imposed for the new criminal conduct on which the revocation was

  based. 920 P.2d at 860. A division of this court answered that

  question in the affirmative, reasoning that a probation revocation

  proceeding is not a separate criminal prosecution for purposes of

  double jeopardy analysis. Rather, any penalty imposed in the initial

  case amounts to a resentencing. Id. at 860-61.

¶ 60   In Gallagher, the defendant attempted to enter a not guilty by

  reason of insanity plea at his revocation hearing. 196 Colo. at 501,

  591 P.2d at 1016. The supreme court determined that the plea was

  not available under the simplified revocation procedures because

  the purposes of a full criminal trial and a probation revocation

  hearing were different. At a revocation hearing, once a violation is

  established, the court’s focus is not on guilt or innocence, but on

  whether probation is still a viable alternative. Id. at 502, 591 P.2d

  at 1016.

¶ 61   I accept the conclusions reached in both cases, but neither

  decision supports the majority’s view that revocation proceedings

  concern only re-evaluation of the original sentence, as though

  resentencing is an exercise independent of the existence of a

  violation of probation. As the supreme court has made clear, “[t]he


                                    27
  issues for determination in a probation revocation proceeding are

  whether the defendant has violated a valid condition of his or her

  probation and, if so, what action is appropriate in light of the

  violation.” People v. Ickler, 877 P.2d 863, 866 (Colo. 1994)

  (emphasis added).

¶ 62   Thus, in my view, the majority is focusing on the wrong

  “convictions.” Undeniably, Johnson was convicted of menacing and

  criminal impersonation. But what matters is whether he has been

  “convicted” of the violations — in other words, whether the

  misconduct that might result in a further penalty has been

  adjudicated and resolved, leaving nothing more for the court to do

  except impose sentence. If not, then Johnson is not in a

  postconviction posture for purposes of the bond statute.

¶ 63   The language of the statute bears this out. Section

  16-4-201(1)(a) permits a defendant to be released on bail after a

  conviction and “pending determination of a motion for a new trial or

  motion in arrest of judgment or during any stay of execution or

  pending review by an appellate court.” Under section

  16-4-201.5(2)(b), C.R.S. 2016, a defendant cannot be released on

  postconviction bond unless the court specifically finds that his


                                    28
  “appeal is not frivolous or is not pursued for the purpose of delay.”

  Section 16-4-202, C.R.S. 2016, sets forth the factors a court should

  consider in determining whether to grant an “appeal bond,”

  including the defendant’s likelihood of success on appeal, see

  § 16-4-202(1)(i), and section 16-4-203(1), C.R.S. 2016, instructs

  that, after considering those factors, the court may either “[d]eny

  the defendant appeal bond” or “[g]rant the defendant appeal bond.”

  Finally, section 16-4-204, C.R.S. 2016, permits appellate review of

  any order setting terms and conditions of bond or “appeal bond,”

  pursuant to “section 16-4-109 or 16-4-201.”

¶ 64   Under the plain language of the statute, “bail after conviction”

  means bail after adjudication of the merits, pending an appeal. See

  People v. Jones, 2015 CO 20, ¶ 15 (Section 16-4-201 “authorizes

  the continuation of a defendant’s pretrial bond or his release on

  another statutorily approved type of bond pending the

  determination of a motion for a new trial or in arrest of judgment, or

  during any stay of execution, or pending review by an appellate

  court.”). Section 16-4-201 cannot apply to Johnson because he has

  not resolved the allegations for which he is being held in jail, and he

  did not seek bail pending determination of a new trial (or hearing)


                                    29
  or during a stay of execution, or pending review by an appellate

  court. At this stage of the proceedings — before the revocation

  hearing — Johnson has nothing to appeal. How, then, could he be

  granted an appeal bond?

¶ 65   This question raises a related issue. The majority says that

  the “presumption of innocence does not apply” here because

  Johnson is no longer presumed innocent of the underlying offenses.

  True, but beside the point. Under Colorado law, at the revocation

  hearing, the prosecution bears the burden of proving new criminal

  conduct beyond a reasonable doubt and all other alleged violations

  by a preponderance of the evidence. See § 16-11-206(3). The

  presumption of innocence and the prosecution’s burden are

  “logically similar,” see Taylor v. Kentucky, 436 U.S. 478, 484 (1978),

  meaning that where the prosecution has the burden of proof, the

  presumption of innocence is necessarily triggered. Johnson,

  therefore, is presumed innocent of the felony murder and robbery

  charges, which form the basis of the petition to revoke probation

  and the deferred judgment. The presumption is overcome only after

  the prosecution proves the violation conduct or the probationer

  admits to it.


                                    30
¶ 66     So, if the “roots of the ‘shall be bailable’ language are found in

  the presumption of innocence,” as the majority posits, a probationer

  is “bailable” under sections 16-4-101 and -102, C.R.S. 2016, until

  the presumption is overcome. At that point, he is no longer

  presumed innocent of the violation conduct and joins the ranks of

  “postconviction” defendants who must seek an appeal bond under

  section 16-4-201. Johnson, then, is not in a “postconviction”

  posture until after the revocation hearing.

   II.    Johnson is Entitled to Bail Before Conviction” Under Section
                                   16-4-102

¶ 67     In determining that Johnson’s request for bond is governed by

  16-4-201, the majority shrugs off statutory provisions that confirm

  Johnson’s right to bail under section 16-4-102. Indeed, the

  majority’s analysis proceeds as though the question is entirely open

  when, in fact, two statutes governing revocation of probation

  provide a definitive answer.

¶ 68     Under section 16-11-205, C.R.S. 2016, probation revocation

  proceedings may be initiated by either the arrest of the probationer,

  see § 16-11-205(1), (6), or by the issuance of a summons, see

  § 16-11-205(2); see also People v. Galvin, 961 P.2d 1137, 1138-39



                                      31
  (Colo. App. 1997) (explaining different ways revocation proceedings

  may be initiated). The arrest may be with a warrant,

  § 16-11-205(6), or without one, § 16-11-205(1)(b)-(f).

¶ 69   Section 16-11-205(3) instructs that, if the probation officer

  makes a warrantless arrest, “the probationer shall be taken without

  unnecessary delay before the nearest available judge,” and that

  “[a]ny probationer so arrested shall have all of the rights afforded by

  the provisions of this code to persons incarcerated before trial of

  criminal charges and may be admitted to bail pending probation

  revocation hearing.”

¶ 70   The majority dismisses this provision in a parenthetical,

  noting that Johnson was arrested pursuant to a warrant, a

  circumstance covered by section 16-11-205(6). That provision

  describes the circumstances under which a warrant will issue and

  how it may be executed, but, as the majority observes, “does not

  make any reference to bond.”

¶ 71   So, by the majority’s reading, a probationer arrested without a

  warrant must be treated as a pretrial detainee, and subject to

  section 16-4-102, while a probationer otherwise identically situated,

  but arrested pursuant to a warrant, is considered a “postconviction”


                                    32
  detainee and subject to section 16-4-201. The majority does not

  explain, and I cannot imagine, why the statute would treat those

  two categories of probationers differently for purposes of bond

  eligibility. As a fundamental matter of statutory construction, we

  must avoid an interpretation of a statute that leads to an illogical or

  absurd result, see, e.g., Stanley v. Dist. Attorney, 2017 COA 33,

  ¶ 10, or that raises equal protection concerns, see Juhl v. People,

  172 P.3d 896, 901 (Colo. 2007).

¶ 72   But a more logical and harmonious reading of those provisions

  is possible. See People v. Dist. Court, 713 P.2d 918, 921 (Colo.

  1986) (“Where possible, the statute should be interpreted so as to

  give consistent, harmonious, and sensible effect to all its parts. If

  separate clauses within a statute may be reconciled by one

  construction but would conflict under a different interpretation, the

  construction which results in harmony rather than inconsistency

  should be adopted.”) (citations omitted). In my view, section 16-11-

  205 makes clear that a probationer is bailable pending his

  revocation hearing. Either he is summoned to a hearing, in which

  case the issue of bond is moot, or he is arrested and must be

  treated as a pretrial detainee for bond purposes. § 16-11-205(3).


                                    33
  The reason section 16-11-205(6), which addresses issuance of a

  warrant, does not reiterate section 16-11-205(3)’s directive about

  bond is because an arrest warrant generally sets forth a bond

  amount.

¶ 73   Under Crim. P. 4(b)(1)(IV), a warrant must “[h]ave endorsed

  upon it the amount of bail if the offense is bailable.” See also Crim.

  P. 9(b)(1) (warrant issued upon indictment shall conform to

  requirements of Rule 4(b)(1)). I acknowledge that Rules 4 and 9

  apply to the initiation of new criminal cases, but there is no

  indication in any rule or statute that the form of a warrant issued to

  initiate a revocation proceeding is subject to a different rule.

¶ 74   Thus, when a probationer is arrested on a warrant, he will

  generally be released on bond pursuant to the terms of the warrant

  itself. To the extent he is detained (either because the bond amount

  is not endorsed on the warrant or the arrest was made without a

  warrant), the probationer shall be treated like a pretrial detainee

  and must be brought in front of a judge to be released on bail under

  terms and conditions set by the court.

¶ 75   The majority reminds us that a revocation proceeding differs

  from a full-fledged trial, and that some states have held that a


                                     34
  probationer does not have a constitutional right to bail. I assume

  these pronouncements are offered for the purpose of supporting its

  position that probationers should not be treated like pretrial

  detainees. But in light of the statute’s directive to the contrary, the

  pronouncements are not compelling.

¶ 76   I believe that section 16-11-205, on its own, establishes that a

  probationer is entitled to bond “before conviction” under section 16-

  4-102. Still, to the extent section 16-11-205 is less than definitive,

  any ambiguity is cleared up by section 16-11-206.

¶ 77   That provision provides:

              At the first appearance of the probationer in
              court or at the commencement of the hearing,
              whichever is first in time, the court shall
              advise the probationer as provided in section
              16-7-207 insofar as such matters are
              applicable; except that there is no right to a
              trial by jury in proceedings for revocation of
              probation.

  § 16-11-206(1), as amended by Ch. 264, sec. 34, § 16-11-206, 2017

  Colo. Sess. Laws 1392; see also § 18-1.3-102(2), C.R.S. 2016 (In a

  proceeding to revoke a deferred judgment, “the procedural

  safeguards required in a revocation of probation hearing shall

  apply.”).



                                    35
¶ 78   Under section 16-7-207, C.R.S. 2016, the court must “inform

  the defendant and make certain that the defendant understands

  [that] . . . [t]he defendant has a right to bail, if the offense is

  bailable, and the amount of bail that has been set by the court.”

  § 16-7-207(1)(e).

¶ 79   True, 16-11-206(1) contemplates that certain “matters”

  covered in section 16-7-207 may not be “applicable” to revocation

  hearings, but the right to bail is not one of them. Section 16-7-207

  consists of two distinct subsections. All of the rights delineated in

  subsection (1), with the exception of the right to a jury trial, appear

  to be applicable to revocation proceedings. See § 16-7-207(1)(a)-(g)

  (the court must inform the defendant that he has the right to

  remain silent and the right to be represented by counsel, that any

  plea must be voluntary, and of the charges against him). By

  singling out the right to a jury trial as the “matter” that does not

  apply to revocation hearings, see § 16-11-206(1) (“except that there

  is no right to a trial by jury in proceedings for revocation of

  probation”), as amended by 2017 Colo. Sess. Laws at 1392, the

  legislature has signaled that the other rights do apply. See Cain v.

  People, 2014 CO 49, ¶ 13 (statute’s inclusion of a single exception


                                       36
  demonstrates General Assembly’s intent to exclude other potential

  exceptions).

¶ 80   Pursuant to the unambiguous language of sections 16-11-206

  and 16-7-207, a probationer “has a right to bail, if the offense is

  bailable.” All offenses are bailable, with the exception of a handful

  of offenses delineated in section 16-4-101. See Jones, ¶ 7 (Sections

  16-4-101 and 102 “affirm that all persons, with certain narrowly

  defined exceptions, are bailable.”).

¶ 81   Johnson is being detained pursuant to warrants issued in his

  class 5 felony menacing case and his class 6 felony criminal

  impersonation case. There does not appear to be any dispute that

  these offenses are “bailable” under section 16-4-101. Thus, he is

  eligible for bond under section 16-4-102.

¶ 82   In her response to Johnson’s petition for review, the Attorney

  General argues not that Johnson is subject to section 16-4-201

  (bail after conviction), but that the district court had discretion to

  deny Johnson bond under section 16-4-103(5), C.R.S. 2016,

  notwithstanding the fact that Johnson’s underlying offenses were

  “bailable.” I disagree.




                                     37
¶ 83   Section 16-4-103, entitled “Setting and selection type of bond

  — criteria,” lists factors the court may consider in “making a

  determination of the type of bond and conditions of release.” See

  § 16-4-103(5). According to the Attorney General, the court could

  properly rely on these factors to deny bail. But subsection (1) of

  section 16-4-103 makes clear that the court must set a bond if the

  person is bailable. See § 16-4-103(1) (“[T]he court . . . shall

  determine the type of bond and conditions of release unless the

  person is subject to the provisions of section 16-4-101.”); see also

  Jones, ¶ 7 (“[A]s long as the offense for which [a person] was

  arrested is bailable, [he] “shall have bond and conditions of release

  set by the court.”). Thereafter, the court may look to the other

  provisions of section 16-4-103 in determining appropriate terms

  and conditions of bond. The court has discretion to fashion the

  conditions of release, but not to deny bail in the first instance.

¶ 84   Because I conclude that the court erred in refusing to set a

  bond in this case, I would remand with instructions to the court to

  release Johnson on bail under terms and conditions the court

  deems appropriate.




                                     38
