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Understanding The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101

By Colorado Drug Crimes Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Understanding The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101 begins with a close look at the reasons why a State of Colorado DA Prosecutors to offer this tool at all. The law was completely revised in 2013 and contains the intentions behind the program (below).  Simply put – it is intended to give mostly “first time” offenders an opportunity – in non-violent crimes – to prevent a criminal record from occurring or to seal a record after the case has been dismissed under the program.

 The Colorado Plea Bargain Of The Deferred Prosecution  - Adult Pre-Trial Diversion Program Under § 18-1.3-101

The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101

The Colorado diversion offer is the best single offer – short of an immediate dismissal of new criminal charges. Most diversion or deferred prosecution programs follow the same kind of procedure.

A deferred prosecution is like a contract – an agreement between a person who has been – or who is about to be charged with a crime and the DA or other prosecutor such as the Colorado attorney general.

This Colorado deferred prosecution – (now called Adult Pretrial Diversion) – agreement requires that – within a specified period of time, – the accused must complete all of the conditions contained in the agreement. Once the conditions of the agreement are completed and evidence of said completion is provided to the DA and the Court – the DA MUST – according to this legal contract – drop the charges against the accused.

Defendants who are eligible for and who have been offered a deferred prosecution – (now called Adult Pretrial Diversion) can avoid an adjudication (a criminal conviction) and the sentencing that follows that conviction by completing the requirements of the deferred prosecution agreement contract with the D.A.’s Office.

Understanding The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101 - The Conditions Of A Colorado Deferred Prosecution Agreement

The typical diversion “contract” requires the participant in:

(1) Alcohol and drug assessment and comply with any recommended treatment;

(2) In domestic violence cases – either domestic violence or other generalized aggression treatment;

(3) In child abuse cases – Counseling and perhaps parenting classes;

(4) (In every case) – the payment of any restitution that may be owed.

(5) Perform community service work;

(6) Have psychological / psychiatric or other counseling if the evaluator deems it necessary.

(7) Cannot possess firearms or other weapons while in the program.

Understanding The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101 - The Failure To Complete A Diversion Contract Successfully

If a participant fails the program and does not meet the terms of the “contract,” the contract is terminated and the case returned to court for the entry of a not guilty plea and a trial. As compared to a deferred judgement and sentence agreement – there is no immediate conviction for establishing a violation of a diversion or deferred prosecution – as no plea of guilt has been entered. In a deferred judgement and sentence – once the violation is proven the case goes straight to sentencing.

Other conditions may include a no contact order with the victim, not breaking any other laws for the length of the deferred prosecution and possible monitoring by pre-trial court services.

Colorado Enacts 2013 State Financed Diversion Programs

In August of 2013 – the Colorado State Legislature COMPLETELY REVISED Colorado’s Diversion Statute – the new law is made effective on August 7, 2013. The law is exceedingly well written and needs little or no analysis. If a jurisdiction – county accepts state funds to initiate one of these programs – it must abide by the following law.

The new law repeals the pre -2013 adult deferred prosecution sentencing option and then replaces it with an adult diversion program. A defendant and a district attorney may enter into a diversion agreement for up to 2 years prior to initiating a proceeding with the criminal case against the defendant.

During the period of the diversion the defendant is subject to the supervisory conditions of the diversion agreement. If the defendant successfully completes the diversion period, the court shall dismiss with prejudice the charges against the defendant.

BUT – If the defendant violates a condition of the diversion agreement, the prosecution may initiate revocation of diversion agreement proceedings against the defendant.

Here Is The Complete Law Authorizing A Deferred Prosecution In Colorado (with HMS – comments and analysis)

18-1.3-101. [Effective 8/7/2013] Pretrial diversion

(1) (The Law’s) Legislative intent.

The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant’s ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system.

Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney’s office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney’s office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney’s office must comply with the provisions of this section.

[HMS – The next section sets the possible period – or length of the diversion program].

(2) (The) Period of diversion.

In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years.

The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney.

[HMS – The next section sets outlines the guidelines for acceptance into an adult diversion program set up under this law and that accepts Colorado state money]

(3) (The) Guidelines for eligibility.

Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion, and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction.

In determining whether an individual is appropriate for diversion, the district attorney shall consider:

(a) The nature of the crime charged and the circumstances surrounding it;

(b) Any special characteristics or circumstances of the defendant;

(c) Whether diversion is consistent with the defendant’s rehabilitation and reintegration;

and

(d) Whether the public interest will be best served by diverting the individual from prosecution.

(4) Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program.

[HMS – The next section grants the right to consult with a lawyer before consenting to a diversion offer].

The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S.

[HMS – The next section sets the guidelines that apply in Colorado domestic violence cases].

(5) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3 (1), is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program.

[HMS -The next section sets the guidelines for the application of the program in Colorado Sex Crime cases].

(6) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003

(5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sex-offense specific evaluation, which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program

Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7-102 (2) (a) (II) and 16-22-103 (2) (d), C.R.S., the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period.

(7) Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section:

(a) Sexual assault as described in section 18-3-402;

(b) Sexual assault on a child as described in section 18-3-405;

(c) Any sexual offense committed against an at-risk adult or an at-risk juvenile, as described in section 18-6.5-101 (1) and (1.5);

(d) Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901 (3) (e);

(e) Enticement of a child, as described in section 18-3-305;

(f) Sexual exploitation of a child as described in section 18-6-403;

(g) Procurement of a child for exploitation, as described in section 18-6-404;

(h) Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; or

(i) Any child prostitution offense in part 4 of article 7 of title 18.

(8) Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to “deferred prosecution” in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section.

[HMS – The next section sets the standards for a Colorado Adult Diversion Agreement].

(9) The Diversion Agreement.

(a) All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant’s attorney if the defendant is represented by an attorney, and the district attorney.

(b) The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement.

Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204 (2) (a) (V), or participation in restorative justice practices as defined in section 18-1-901 (3) (o.5). Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice.

(c) The diversion agreement may require an assessment of the defendant’s criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney.

[HMS – The next section sets out the kind of requirements that can be made conditions of an adult diversion program].

Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services.

(d) The diversion agreement may include a statement of the facts the charge is based upon authored by the defendant and agreed to by the defendant’s attorney if the defendant is represented by an attorney and the district attorney.

[HMS – The next section sets out a questionable provision that permits the use of admissions of fact made in the diversion program against the defendant in a later trial – this section – I believe – may be unconstitutional].

The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed.

(e) A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion. A defendant’s or counsel’s statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged.

(f) If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings.

[HMS – The next section sets out the possible diversion outcomes – the good- the bad – the ugly.]

(10) Diversion outcomes.

(a) During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement.

[HMS – The next section discusses a SUCCESS in an adult diversion program].

(b) Upon the defendant’s satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons

A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.

(c) At any point after a diversion agreement is entered a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense, using the procedure described in section 24-72-308, C.R.S. Unless otherwise prohibited under section 24-72-308 (3) (a), C.R.S., the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement.

[HMS – The next section discusses a FAILURE in the diversion program].

(d) If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution.

[HMS – The next section discusses the rights of a defendant in a hearing to attempt to PROVE A FAILURE in the diversion program].

The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred.

The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing pursuant to section 16-11-206, C.R.S., shall apply

The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding. If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue.

If the court finds the district attorney has not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement.

(e) If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence.

Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose.

The Colorado Plea Bargain Of The Deferred Prosecution – Adult Pre-Trial Diversion Program Under § 18-1.3-101

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H. Michael Steinberg Esq.
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