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Understanding Colorado Criminal Law – Should You Accept A Deferred Prosecution – Diversion Agreement?

By H. Michael Steinberg – Colorado Criminal Defense Lawyer

Plea bargaining in Colorado criminal cases or across the country is a complex and often difficult task because of the many variables and unknowns in the process. A deferred prosecution offer means that the accused defendant need never plead guilty in the case. Instead an agreement is struck with the prosecutor - in most instances - where, if certain conditions are met such as the payment of a large amount of restitution - the case will be dismissed.Understanding Colorado Criminal Law – Should You Accept A Deferred Prosecution – Diversion Agreement? – Plea bargaining in Colorado criminal cases or across the country is a complex and often difficult task because of the many variables and unknowns in the process. A deferred prosecution offer means that the accused defendant need never plead guilty in the case. Instead an agreement is struck with the prosecutor – in most instances – where, if certain conditions are met such as the payment of a large amount of restitution – the case will be dismissed.

While that might sound tempting – the experienced Colorado criminal defense lawyer may advise you to fight the case at trial for the reasons examined below.

The Complex Statute That Governs Colorado Deferred Prosecutions – 18-1.3-101

Always, always, always start with the law. What follows is an annotated reprint of the present version of Colorado’s Deferred Prosecution Law -18-1.3-101. I have annotated portions of it to introduce and explain certain of the more important sections.

§ 18-1.3-101. Pretrial Diversion

[HMS – Section (1) explains why deferred prosecutions make sense in certain circumstances in Colorado criminal cases.]

(1) Legislative intent. The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant’s ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system.

Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney’s office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney’s office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney’s office must comply with the provisions of this section.

[HMS – Section (2) explains the process of entering into a diversion agreement which includes how long the agreement can span.]

(2) Period of diversion. In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years.

The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney.

[HMS – The next sections (3) and (4) gives prosecutors authority – within limits – to set up policies for utilizing the deferred prosecution. These sections are then followed by restrictions in certain cases such as domestic violence and sex crimes which are either restricted or totally excluded from deferred prosecution agreements.]

(3) Guidelines for eligibility. Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction. In determining whether an individual is appropriate for diversion, the district attorney shall consider:

(a) The nature of the crime charged and the circumstances surrounding it;

(b) Any special characteristics or circumstances of the defendant;

(c) Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and

(d) Whether the public interest will be best served by diverting the individual from prosecution.

(4) Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program. The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S.

[HMS – Section (5) addresses the use of the diversion or deferred prosecution agreement in Colorado Domestic Violence cases and it restricts the use of these agreements unless certain conditions are met such as consulting with a lawyer and the completion of a domestic violence treatment evaluation and risk assessment and the person then meets the other criteria for entering into a deferred prosecution.]

(5) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3(1) , is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103(4) , C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program.

[HMS – Section (6) is like section (5) except that it applies to sex crimes – Section (5) addresses the use of the diversion or deferred prosecution agreement in Colorado Sex Crimes cases and it restricts the use of these agreements unless certain conditions are met such as consulting with a lawyer and the completion of a sex offense specific treatment evaluation and risk assessment by a state certified instructor and the person then meets the other criteria for entering into a deferred prosecution.]

(6) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003(5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sex-offense-specific evaluation, which includes the use of a sex-offense specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103(4) , C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program. Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7- 102(2) (a) (II) and 16-22-103(2) (d), C.R.S., the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period.

[HMS – Section (7) lists the sex crimes that are excluded from any possibility of entering into a deferred prosecution or other diversion type agreement.]

(7) Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section:

(a) Sexual assault as described in section 18-3-402 ;

(b) Sexual assault on a child as described in section 18-3-405 ;

(c) Any sexual offense committed against an at-risk adult or an at-risk juvenile, as described in section 18-6.5-101(1) and (1.5);

(d) Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901(3) (e);

(e) Enticement of a child, as described in section 18-3-305 ;

(f) Sexual exploitation of a child as described in section 18-6-403 ;

(g) Procurement of a child for exploitation, as described in section 18-6-404 ;

(h) Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3 ; or

(i) Any child prostitution offense in part 4 of article 7 of this title.

(8) Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to “deferred prosecution” in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section.

[HMS – straightforward – a waiver of the right to a speedy trial and wide open terms and conditions of the agreement.]

(9) Diversion agreements.

(a) All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant’s attorney if the defendant is represented by an attorney, and the district attorney.

(b) The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement. Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204(2) (a) (V), or participation in restorative justice practices as defined in section 18-1-901(3) (o.5).

Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice.

(c) The diversion agreement may require an assessment of the defendant’s criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney. Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services.

[HMS Section (9)(d) (and Section (10) (e) below are quiet little sections that a lawyer may overlook. They are very important if there is a violation of the deferred prosecution – diversion agreement. These sections provide that if a statement of the facts is filed as a part of the diversion “deal” and the accused later is proven to have violated that agreement – the statement can be used AT THE TRIAL THAT FOLLOWS the loss of the diversion agreement.]

(d) The diversion agreement may include a statement of the facts the charge is based

upon authored by the defendant and agreed to by the defendant’s attorney if the defendant is represented by an attorney and the district attorney. The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed.

(e) A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion. A defendant’s or counsel’s statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged.

(f) If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings.

[HMS -The good news and the bad news in Colorado Diversion – Deferred Prosecution agreements.]

(10) Diversion outcomes.

(a) During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement.

[HMS – The good news – complete dismissal of the case with prejudice – meaning these charges can never be filed again along with the right to seal the case.]

(b) Upon the defendant’s satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose.

A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.

(c) At any point after a diversion agreement is completed, a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense using the procedure described in section 24-72-702 , C.R.S. Unless otherwise prohibited under section 24-72-702(4) (a), C.R.S., the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement.

[HMS – The bad news – the following are the procedures if there is a violation of the deferred prosecution – diversion agreement – same protections as a probation violation hearing.]

(d) If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution. The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred.

The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing pursuant to section 16-11-206 , C.R.S., shall apply.

The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding.

If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue. If the court finds the district attorney has not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement.

[HMS – Section (9)(d) (and Section (10) (e) below are quiet little sections that a lawyer may overlook. They are very important if there is a violation of the deferred prosecution – diversion agreement. These sections provide that if a statement of the facts is filed as a part of the diversion “deal” and the accused later is proven to have violated that agreement – the statement can be used AT THE TRIAL THAT FOLLOWS the loss of the diversion agreement.]

(e) If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence. Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose.

C.R.S. § 18-1.3-101

Understanding The Deferred Prosecution – Diversion or Non-Prosecution Agreement

To review, a deferred prosecution or non-prosecution agreement is a plea bargain where the parties negotiate a “deal” to resolve a criminal investigation usually before charges are filed -but sometimes after charges have been filed. The deferred prosecution plea bargain consists of a contract – legally binding on the parties that results in the State not proceeding with a prosecution of criminal charges if the accused fully completes the terms of the contract. The case is either never filed – or if it has already been filed – it is dismissed with prejudice (it can never be refiled).

While restitution is usually one of the primary reasons for a deferred prosecution – the agreement is completely without limitations as noted in the law itself reprinted above.

While it may appear at first to be a good deal for both sides – there are tactical considerations that the accused may want to consider before agreeing to the Colorado Deferred Prosecution.

Taking A Hard Look At The Colorado Deferred Prosecution – Diversion Agreement

It seems as if the reasoned approach of the accused to the deferred prosecution agreement would be to “jump” at the opportunity to accept the “deal.” But before that happens – consider the following bulleted points:

  • The primary reason for the prosecutor to offer a deferred prosecution agreement is to avoid the possibility of taking a case to trial and losing. Where the government cannot prove guilt “beyond a reasonable doubt” to a judge or jury the prosecutor is only too happy to resolve the case in a formal Deferred Prosecution Agreements.
  • The DA may not have a strong enough case to prove the accused’s guilt beyond a reasonable doubt and maybe forced to “cut a deal” to get the case off his or her desk.
  • The DA may be too busy or too lazy to – in marginal cases – to do a thorough pre-filing investigation of the case and to put together a case necessary to win at trial. The deferred prosecution is a way to get the case out of the office when it actually should never be filed under any circumstances.
  • A criminal case forces the DA to make a decision to wither dismiss or to prosecute. A deferred prosecution allows that prosecutor to avoid the need to do their job
  • The evidence in a case that has been resolved by a deferred prosecution is never “tested” by the criminal justice system – any legal theories for the prosecution or the defense never make it to court – the case is whatever “the prosecutor says it is.”
  • The accused is still labeled as a “criminal” in the eyes of the family, friends and peers. There is a stigma that remains when there is a deferred prosecution because – by accepting the agreement – there is an implied agreement that something “criminal” has occurred.

Before accepting the Colorado deferred prosecution – diversion agreement – thoroughly consult with your lawyer and make a decision to “call the prosecutors’ bluff” or to take the deal – but make certain you have considered every side of the deal and the impact such an agreement will have on your self image, your family, friends and peers. Then take the deal or reject it knowing you have considered the offer carefully.

Understanding Colorado Criminal Law – Should You Accept A Deferred Prosecution – Diversion Agreement?

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at  hmsteinberg@hotmail.com   – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

If you are charged with A Colorado crime or you have questions about the topic of this article – Understanding Colorado Criminal Law – Should You Accept A Deferred Prosecution – Diversion Agreement?, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg - Over 30 Years MedallionH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

 


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Understanding Colorado Criminal Law - Should You Accept A Deferred Prosecution - Diversion Agreement?
Article Name
Understanding Colorado Criminal Law - Should You Accept A Deferred Prosecution - Diversion Agreement?
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Plea bargaining in Colorado criminal cases or across the country is a complex and often difficult task because of the many variables and unknowns in the process. A deferred prosecution offer means that the accused defendant need never plead guilty in the case. Instead an agreement is struck with the prosecutor - in most instances - where, if certain conditions are met such as the payment of a large amount of restitution - the case will be dismissed.
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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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