Peo v. Boldt

23CA1054 Peo v Boldt 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1054
Garfield County District Court No. 18CR83
Honorable James B. Boyd, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gunther Boldt, Jr.

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE J. JONES
Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 7, 2024

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Defiance Law Firm, Peter A Rachestky, Laura L Horst, Glenwood Springs,
Colorado, for Defendant-Appellant
¶1 Defendant, Gunther Boldt, Jr., appeals the district court’s

order revoking his deferred judgment and sentence. We affirm.

I. Background

¶2 As part of a plea agreement, Boldt pleaded guilty to felony

theft between $5,000 and $20,000 and misdemeanor

unemployment (false statement). The court granted him a three-

year deferred judgment and sentence on the felony theft charge,

which required that he adhere to certain conditions, and sentenced

him to probation for two years on the misdemeanor charge.

¶3 As part of the deferred judgment and sentence, Boldt was

required to, among other things, complete (1) a mental health

evaluation and any recommended treatment; (2) a drug and alcohol

evaluation and any recommended treatment; and (3) forty-eight

hours of community service within the first two years of the

deferred judgment and sentence. He was also required to pay

restitution totaling $35,162.47.

¶4 Just before the three-year deferred judgment period expired,

Boldt’s probation officer filed a complaint alleging that Boldt had

violated certain conditions of his deferred judgment and sentence.

The complaint alleged that Boldt failed to (1) provide proof of

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completion of substance use or mental health treatment; (2)

complete community service; and (3) pay restitution.

¶5 At the revocation hearing, the district court heard testimony

from the probation officer’s supervisor and Boldt. When it appeared

to defense counsel that the probation supervisor was testifying to

certain contents of the probation file that hadn’t been disclosed,

defense counsel objected on foundation and due process grounds.

Defense counsel explained that she had requested the probation file

before the hearing but had only received eight pages of narrative

from Boldt’s probation officer. The prosecutor responded that the

probation supervisor’s testimony was limited to the narratives

defense counsel had received, the complaint, and the sentencing

order (which the court had taken judicial notice of at the beginning

of the hearing), and said those were the only documents the

prosecutor had as well. The court overruled the foundation

objection and indicated that if there were disclosure issues, it would

address them after the testimony concluded.

¶6 After the hearing, the district court revoked Boldt’s deferred

judgment and sentence in a written order, finding that he violated

“his obligation to obtain a mental health assessment” and “the

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requirement to make payments towards restitution.” However, the

court found that the People had “not shown by a preponderance of

the evidence that [Boldt] willfully and unreasonably failed to

complete his useful public service.”

¶7 The district court disagreed with Boldt’s assertion that his due

process rights had been violated when the prosecution failed to

disclose the full probation file, explaining that “[it] might have been

a basis for a continuance had one been requested. It was not a due

process violation.” The court further found that the only evidence

on which the prosecution relied at the hearing, but had not

disclosed, was the signed sentencing order listing the probation

conditions. The court noted that, “[i]f there was a due process

violation, it would be limited to the use in evidence of that signed

order.” Therefore, the court did not consider this evidence when it

found that Boldt had violated the terms of his deferred judgment

and sentence.

II. Discussion

¶8 Boldt contends that the revocation proceeding violated his

constitutional right to due process because (1) the probation file

and the signed order containing the conditions of probation weren’t

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disclosed to him before the revocation hearing and (2) the probation

supervisor, rather than the probation officer, testified at the

hearing. He also contends that the court erred by finding a

violation and revoking his deferred judgment and sentence. We

disagree with all three contentions and therefore affirm the court’s

order revoking Boldt’s deferred judgment and sentence.

A. Applicable Law and Standard of Review

¶9 The prosecution bears the burden of proving a violation of a

deferred judgment and sentence by a preponderance of the

evidence. See § 18-1.3-102(2), C.R.S. 2024. “Whether a defendant

has violated a condition of a deferred judgment and sentence is a

factual determination for the trial court.” People v. Rivera-Bottzeck,

119 P.3d 546, 548 (Colo. App. 2004). If the court finds a violation,

it must revoke the deferred judgment, enter the conviction, and

sentence the defendant. People v. Wilder, 687 P.2d 451, 453 (Colo.

1984); Rivera-Bottzeck, 119 P.3d at 548.

¶ 10 We will affirm the court’s finding of a violation if it is

supported by sufficient evidence in the record, reviewing its factual

findings for clear error. See Rivera-Bottzeck, 119 P.3d at 549; Adair

v. People, 651 P.2d 389, 391 (Colo. 1982); see also People v. Nelson,

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2014 COA 165, ¶ 17 (we review a district court’s factual findings for

clear error).

¶ 11 Whether a defendant was denied due process is a question of

law we review de novo. People v. Calderon, 2014 COA 144, ¶ 23. If

the claim was preserved by objection, we apply a constitutional

harmless error standard in determining whether reversal is

required. Hagos v. People, 2012 CO 63, ¶ 11.

B. Analysis

¶ 12 A defendant facing revocation of a deferred judgment and

sentence isn’t entitled to the full range of constitutional guarantees

afforded to defendants in criminal prosecutions. People v. Allen,

973 P.2d 620, 622 (Colo. 1999). Rather, the defendant is entitled

only to the following process:

(1) written notice of the alleged violations; (2)
disclosure of the evidence against the
probationer; (3) opportunity to be heard in
person and to present witnesses and
documentary evidence; (4) the right to confront
and cross-examine adverse witnesses; and (5)
a written or oral statement on the record by
the fact finder as to the evidence relied on and
the reasons for revocation.

Finney v. People, 2014 CO 38, ¶ 28.

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¶ 13 Boldt argues that his due process rights were violated because

the probation department failed to disclose the probation file and

the sentencing order signed by Boldt with attached conditions of his

deferred judgment and sentence before the revocation hearing. But

the record shows that the only evidence presented at the hearing

was derived from the eight pages of narratives from Boldt’s

probation officer (which Boldt received before the hearing), Boldt’s

own testimony, and the signed sentencing order and attached

conditions (which the court expressly refused to consider). Because

the probation file wasn’t admitted as evidence at the hearing and

the court didn’t rely on the signed sentencing order with the

attached conditions in revoking Boldt’s deferred judgment and

sentence, Boldt’s due process rights weren’t violated.

¶ 14 To the extent Boldt asserts a due process violation based on

the prosecution’s failure to disclose a separate document containing

the terms and conditions of his deferred judgment and sentence, we

can find no violation because Boldt himself testified that he was

aware of those terms and conditions.

¶ 15 Finally, to the extent Boldt asserts that he was deprived of the

right to effective assistance of counsel by these alleged

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nondisclosures, we won’t consider this claim. See People v.

Huggins, 2019 COA 116, ¶ 17 (“When a defendant does not raise an

issue in a postconviction motion or during the hearing on that

motion, and the postconviction court therefore does not have an

opportunity to rule on the issue, as a general rule, the issue is not

properly preserved for appeal and we will not consider it.”).

¶ 16 Boldt next contends that his due process rights were violated

because the probation supervisor, rather than the probation officer

who directly supervised Boldt, testified at the hearing. To begin, we

note that the parties dispute whether Boldt preserved this

constitutional claim. But we don’t need to resolve the dispute

because we conclude that the district court didn’t err.

¶ 17 At a revocation hearing, hearsay evidence is admissible to

prove the violation if “minimum due process requirements are met.”

People v. Loveall, 231 P.3d 408, 414-15 (Colo. 2010). Under this

standard, the defendant must be “accorded a fair opportunity to

rebut hearsay evidence.” § 16-11-206(3), C.R.S. 2024. When, as in

this case, a revocation is based on a violation other than an alleged

crime, a defendant has a fair opportunity to rebut the evidence, and

thus his due process rights are satisfied, if (1) the testifying witness

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is subject to cross-examination about the proffered hearsay and (2)

the defendant is given an opportunity to present witnesses and

testify on his own behalf. Loveall, 231 P.3d at 415. But due

process isn’t satisfied if “the defendant is given little or no

opportunity to test the accuracy of the hearsay evidence or the

credibility of the declarants.” Id.

¶ 18 We disagree with Boldt that his due process rights were

violated. The district court afforded Boldt a “fair opportunity to

rebut hearsay evidence.” § 16-11-206(3). His counsel had an

opportunity to — and did — thoroughly cross-examine the

probation supervisor. Boldt agreed to testify when called by the

prosecution. See Byrd v. People, 58 P.3d 50, 56-57 (Colo. 2002) (If

called by the prosecution as a witness, “[t]he Fifth Amendment

permits a probationer to decline to answer specific questions at the

revocation hearing, but this refusal to answer may be used against

her to revoke probation.”). And his counsel could have called

witnesses on Boldt’s behalf, although counsel did not do so. Given

the process afforded to Boldt, we conclude that the court didn’t err

by relying on the probation supervisor’s testimony to find that Boldt

violated his deferred judgment and sentence. See People v. Turley,

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109 P.3d 1025, 1026 (Colo. 2004) (the defendant had a fair

opportunity to rebut hearsay evidence by cross-examining a

probation officer who didn’t have personal knowledge of the alleged

violations).

¶ 19 But even if the court erred by relying on the probation

supervisor’s testimony — and assuming the claim was preserved

and therefore reviewable under a constitutional harmless error

standard — we conclude that any error was harmless beyond a

reasonable doubt. Boldt himself testified that he was aware of the

requirements that he complete a mental health evaluation and pay

restitution. He admitted that he completed the evaluation after the

period of his deferred judgment and sentence had ended. And while

he testified that he had financial difficulties in paying the full

amount of restitution by the conclusion of his deferred judgment

and sentence, which the court credited, the court found, and the

record supports, that he could have made some amount of a

monthly payment on a payment plan toward restitution but didn’t.

See Williams v. People, 2019 CO 101, ¶ 17 (“[W]hen a defendant

introduces some evidence of her inability to pay restitution, a

district court must make the ability-to-pay findings under section

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18-1.3-702(3)(c)[, C.R.S. 2024,] before revoking a deferred judgment

for failure to pay.”) Thus, this independent evidence established, by

a preponderance of the evidence, that Boldt had failed to timely

complete a mental health evaluation and pay restitution as

required. See People v. Howell, 64 P.3d 894, 897 (Colo. App. 2002)

(assuming, without deciding, that the court’s admission of evidence

violated the defendant’s due process right, reversal wasn’t required

when other evidence established the probation violation).

¶ 20 Finally, having concluded that Boldt’s own testimony

established that he violated two conditions of his deferred judgment

and sentence, we necessarily reject his claim that the evidence was

insufficient to support the court’s revocation. See Wilder, 687 P.2d

at 453 (concluding the trial court erred by not revoking the deferred

judgment when the court found that the “defendant voluntarily

admitted violating four conditions of the deferred judgment”).

III. Disposition

¶ 21 The order is affirmed.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.

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