Sharrow v. People, 2019 CO 25

Background

Jeremy Sharrow pleaded guilty to sexual assault (victim under 15) and unlawful sexual contact; received deferred judgment and intensive supervision probation with sex-offender treatment requirements.
Over 2010–2013 probation, Sharrow repeatedly moved without approval and was terminated from required sex-offender treatment because he lacked funds for shared-living arrangements and program fees.
Probation filed three revocation complaints; at the third hearing the trial court found violations and resentenced Sharrow to an indeterminate prison term (minimum two years).
Sharrow argued his violations were caused by indigency and that revocation/imprisonment without finding his failure was not willful or unreasonable violated due process and equal protection.
The Colorado Court of Appeals affirmed without applying Bearden; the Colorado Supreme Court granted certiorari and adopted Bearden for nonpayment probation conditions, then affirmed on the ground Sharrow failed to make sufficient bona fide efforts to comply.

Issues

Issue	Plaintiff's Argument (Sharrow)	Defendant's Argument (People)	Held
Whether Bearden requires inquiry when indigency prevents compliance with nonpayment probation conditions	Trial court must determine whether failure to comply was willful or due to inability to pay; if not willful and bona fide efforts shown, alternatives to imprisonment must be considered	Colorado statute limits required financial-inquiry protections to payment-related probation conditions; court has discretion otherwise	Court adopts Bearden for nonpayment conditions: when indigency is asserted, court must determine willfulness or bona fide efforts before imprisoning
Who bears burden of proof when indigency is asserted in revocation of nonpayment condition	Sharrow: burden should shift to defendant to prove inability to comply	People: prosecution should bear burden or at least may rely on statutory procedures shifting burden in payment cases	Held prosecution retains burden to prove violation by preponderance for nonpayment-condition revocation; defendant must assert indigency to trigger Bearden inquiry
Whether trial court applied correct standard in evaluating Sharrow’s efforts to obtain employment/resources	Sharrow: court should apply Strickland/Romero-style three-part test (job available, would yield enough income, unjustified refusal)	People: trial court may assess sufficiency of bona fide efforts without rigid formula	Held trial court did not misapply law; courts have discretion to evaluate bona fide efforts without micromanaging a fixed test
Whether revocation and imprisonment violated Sharrow’s Fourteenth Amendment rights given record	Sharrow: his indigency caused violations so revocation/imprisonment was unconstitutional	People: record shows Sharrow did not make sufficient efforts to obtain employment or use free program options; revocation was supported	Held record supports trial court finding Sharrow failed to make sufficient bona fide efforts; no constitutional violation

Key Cases Cited

Bearden v. Georgia, 461 U.S. 660 (Indigent probationer may not be imprisoned for nonpayment absent willfulness or failure to make bona fide efforts; alternatives must be considered)
Griffin v. Illinois, 351 U.S. 12 (Equal justice principle: trial quality must not depend on wealth)
Williams v. Illinois, 399 U.S. 235 (State cannot automatically convert a fine into jail solely because defendant is indigent)
Tate v. Short, 401 U.S. 395 (Similar prohibition on converting fines to jail based solely on indigency)
Strickland v. People, 594 P.2d 578 (Colo. 1979) (pre-Bearden Colorado rule on revocation for failure to make restitution payments)
Romero v. People, 559 P.2d 1101 (Colo. 1976) (payment-related probation revocation principles)
Silcott v. People, 494 P.2d 835 (Colo. 1972) (payment-related probation revocation principles)
United States v. Warner, 830 F.2d 651 (7th Cir. 1987) (probation revocation may be appropriate even absent willfulness when public safety or probation goals are frustrated)
People v. Colabello, 948 P.2d 77 (Colo. App. 1997) (held Strickland did not apply to nonpayment treatment-completion condition)
People v. Afentul, 773 P.2d 1081 (Colo. 1989) (interpreting deferred-judgment statute to create burden-shifting for restitution/nonpayment contexts)
Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987) (applying Williams/Tate principles to invalidate imprisonment for inability to satisfy civil judgment)