2013 COA 96
Colo. Ct. App.2013Background
- Ruch was convicted of stalking (group of charges) and placed on six years of intensive supervised probation.
- In 2010, probation officer added typical sex-offender terms requiring contact with officer, residence approval, consent for information releases, and participation in a sex-offender treatment program.
- Ruch objected to the amended terms, including Fifth Amendment concerns about counseling requirements, but the court amended probation to include the terms.
- In 2010, the probation officer moved to revoke based on alleged violations of the amended terms; hearings occurred August 2010, with Ruch invoking Fifth Amendment rights.
- The trial court revoked probation and sentenced Ruch to four years; on appeal, the court held some grounds valid and others implicating the Fifth Amendment, remanding for determination whether the remaining violations alone would sustain revocation.
- On remand, the court should assess whether revocation would have occurred based solely on three non-counseling violations and, if so, whether the same sentence would be imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation was proper for the first three violations. | Ruch argues insufficient evidence for the three non-counseling violations. | Ruch contends the evidence (including hearsay) does not support revocation. | Remand for determination on sufficiency of three non-counseling violations. |
| Whether counseling requirement violated Fifth Amendment rights. | Ruch invoked Fifth Amendment and argues punishment for exercising it. | State asserts no invocation or waiver issues; counseling was permissible. | Probation counseling violated Fifth Amendment when used as basis for revocation. |
| Whether triple hearsay evidence supported probation violation. | Triple hearsay can be sufficient in probation revocation where the defendant has opportunity to rebut. | Hearsay alone is insufficient without opportunity to rebut; still, evidence here was rebuttable. | Triple hearsay deemed sufficient under circumstances; due process satisfied because rebuttal opportunity existed. |
| What remedy is appropriate given the erroneous consideration of the counseling violation. | Revocation should be affirmed if still warranted by other violations. | Remand to determine if three non-counseling violations would sustain revocation. | Remanded to determine whether revocation would have occurred based solely on the remaining three violations. |
Key Cases Cited
- People v. Maestas, 199 P.3d 713 (Colo. 2009) (right to counsel and purposes of continuances; counsel of choice)
- Anaya v. People, 764 P.2d 779 (Colo. 1988) (fair opportunity to obtain counsel of choice)
- People v. Munsey, 232 P.3d 113 (Colo. App. 2009) (continuance to seek new counsel; no abuse of discretion)
- People v. Brown, 328 P.3d 187 (Colo. App. 2011) (continuance denial; abuse of discretion factors)
- Loveall, 231 P.3d 408 (Colo. 2010) (probation revocation standard and hearsay probative value)
- Byrd v. People, 58 P.3d 50 (Colo. 2002) (due process rights in probation revocation hearings)
- Antelope, 395 F.3d 1128 (9th Cir. 2005) (self-incrimination and counseling in probation context; use immunity)
- Guatney, 183 P.3d 620 (Colo. App. 2007) (similar probation terms; Fifth Amendment considerations)
- Guatney II, 214 P.3d 1049 (Colo. 2009) (Supreme Court appraisal of Guatney logic; probation term reasoning)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (probation revocation due process framework)