2014 COA 144
Colo. Ct. App.2014Background
- Joel Antonio Calderon pleaded guilty in 2010 to attempted first-degree trespass of an automobile and was sentenced to two years intensive supervised probation with 90 days in jail.
- Shortly after sentencing, a probation revocation complaint was filed; Calderon was released from jail to ICE custody and subsequently deported before meeting his probation officer.
- At the revocation hearing the probation officer testified she never met Calderon and alleged she was informed he was deported and arrested on reentry with a stolen passport.
- The district court found a probation violation, revoked probation, and resentenced Calderon to two years intensive supervised probation; Calderon moved for reconsideration arguing lack of identity proof and reliance on hearsay about deportation.
- The district court denied reconsideration; Calderon appealed. The appellate majority reversed the revocation and remanded to reinstate the original probation sentence because Calderon lacked written or actual notice of probation conditions and lacked written notice in the revocation complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal due to deportation | People: appeal moot because Calderon deported and likely barred from reentry | Calderon: record doesn’t show permanent bar; outstanding warrant and new revocation complaint mean practical effects remain | Not moot: record doesn’t establish permanent bar; appeal could have practical effect if Calderon reenters |
| Sufficiency of notice of probation conditions | People: revocation proper | Calderon: never received written or actual notice of conditions (was deported before signing/meeting) | Reversal: statute requires written notice or actual notice; Calderon had neither |
| Written notice of claimed violation in revocation complaint | People: complaint sufficient | Calderon: complaint failed to identify specific condition violated; relied on hearsay about deportation | Reversal: due process/statute require written notice of specific alleged violations; complaint deficient |
| Whether probation term expired so discharge required | Calderon: probation period elapsed, discharge warranted | People: filing tolls probation | Held for People: revocation proceedings tolled probation since complaint filed; term not expired |
Key Cases Cited
- People v. Garcia, 89 P.3d 519 (Colo. App. 2004) (mootness where deportation permanently bars reentry)
- People v. McMurrey, 39 P.3d 1221 (Colo. App. 2001) (declining to decide moot issues)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (probationers entitled to written notice of claimed violations)
- People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980) (written notice of probation conditions required; actual notice may substitute)
- People v. Robles, 209 P.3d 1173 (Colo. App. 2009) (review of sufficiency of written notice is mixed question of law and fact)
- People v. McKitchens, 655 P.2d 858 (Colo. App. 1982) (failure to provide written notice of alleged violation requires reversal)
- People v. Renfrow, 605 P.2d 915 (Colo. 1980) (defendant entitled to be present when sentence reduced)
- People v. Nelson, 9 P.3d 1177 (Colo. App. 2000) (court may correct mittimus without defendant's presence when not imposing new sentence)
- United States v. Mercurris, 192 F.3d 290 (2d Cir. 1999) (deportation can render an appeal moot where no redressable collateral consequences remain)
- United States v. Vera-Flores, 496 F.3d 1177 (10th Cir. 2007) (deportation made appeal moot where reentry was remote)
- United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007) (appeal moot where defendant deported and could not be present for resentencing)