Allen Gasper is the Senior Partner in the Gasper Law Group, Colorado Springs.
In considering potential plea offers in District Court cases in Colorado, a question arises about the possibility of reconsideration of sentence in the future and the best approach to establishing a “track record” for the court to consider in determining whether the defendant is a good candidate for reconsideration of sentence. Boot Camp provides a vehicle for proving a defendant’s acceptance of responsibility and desire to change in a manner sufficient to establish a positive view toward society reintegration.
As part of a plea agreement, the District Attorney may agree to allow the defendant to file a Colorado Criminal Procedure Rule 35(b) motion upon successful completion of the Colorado Department of Corrections Boot Camp Program. If the defendant qualifies (court recommendation is helpful) for the Boot Camp Program, the Executive Director of the Department of Corrections may assign an inmate to this regimented training program pursuant to C.R.S. §17-40-102(2). After successful completion of the program, the defendant would appear before the original sentencing court for reconsideration of sentence pursuant to the plea agreement. It is important to note that the Colorado Criminal Procedure Rule 35(b) Motion must be filed within one hundred twenty (120) days from the original sentencing date – asking the court to hold the motion in abeyance until the inmate has completed the program. Failure to file the Motion within the time period specified would preclude the defendant from asking for reconsideration of his sentence, regardless of defendant’s status in the Boot Camp Program.
Not every charge is eligible for the Boot Camp Program. Also, the original charge against the defendant is the charge that will control eligibility for acceptance to the program – regardless of the final charge to which the defendant pleads by agreement. This means that if the original charge filed against the defendant falls within the list of ineligible charges below, the defendant will be ineligible for the Boot Camp Program, even if the defendant pleads to an amended charge which would not necessarily preclude the defendant from the program.
Pursuant to Colorado Revised Statute § 17-27.7-103 (1): “[T]he executive director shall assign to a regimented inmate training program only those inmates who are non-violent offenders thirty years of age or younger who are not serving a sentence, and have not served a previous sentence, in a correctional facility for an unlawful sexual behavior offense described in part 2 of article 3 of title 18, C.R.S., or a child abuse offense described in part 4 of article 6 of title 18 C.R.S. or who are not presently serving a sentence for a nonviolent offense that was reduced from an unlawful sexual behavior offense described in section 16-22-102(9), C.R.S., a crime of violence described in section 18-1.3.406, C.R.S., an assault offense described in part 2 of article 3 of title 18, C.R.S., or a child abuse offense described in part 4 of article 6 of title 18, C.R.S., as a result of a plea agreement or who are not aliens subject to removal order. Any offender assigned to the program shall be free of any physical or mental defect which wold jeopardize his or her ability to complete the program. The department may eliminate any offender from the program upon a determination by the department that a physical or mental defect will prevent full participation in the program by such offender.”
No more than 100 offenders may be assigned to the program at any given time and no more than 400 offenders shall be assigned to the program in any one calendar year. However, the executive director may replace those offenders who fail to complete the program with other offenders who are deemed eligible.
If the original charge against the defendant does not preclude his participation, Boot Camp provides a viable avenue to successful reconsideration by the Court and should be examined closely for its inclusion in a felony plea agreement. It should be noted that acceptance in the Boot Camp Program is not guaranteed, even if recommended by the sentencing judge and supported by the plea agreement.
By Allen C. Gasper, J.D.
The Gasper Law Group