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DEFERRED SENTENCE IS THIS IS THIS A CONVICTION? synopsis of how cases progress through court system Municipal Court Criminal Offenses Municipal Court Criminal Traffic Offenses State Court Criminal Misdemeanor and Petty Offenses State Court Traffic Infractions State Court Criminal Felony Offenses State Court Traffic Offenses

In determining whether a deferred sentence is a "conviction," the key factor to be considered is the legislative intent behind the use of the word in the statute involved.         A person who has successfully completed the period of deferred sentence would no longer be "convicted" within the meaning of CRS 16-7-403(2).  When the plea is withdrawn, the earlier acceptance of the guilty plea by the court is vitiated and CRS 16-7-206(3) does not apply.  Moreover, CRE 410 would apply to such a situation: "Except as otherwise provided by statutes of the State of Colorado, evidence of a guilty plea, later withdrawn,... to the crime charged or any other crime,... is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer."  Thus, evidence of the guilty plea is no longer admissible after successful completion of the period of the deferred sentence. Hafelfinger v. District Court, 674 P.2d 375, 377 Headnote 3 (Colo. 1984).         For purposes of the habitual criminal statues, it is evident from the language of the statute that a plea of guilty, a guilty verdict, or a finding of guilt by the trial judge, alone could not effective be used to enhance the punishment for the reason that the conviction process is incomplete.  Until there has been an adjudication of guilty the entry of judgment, the fact of guilt has not been judicially declared.  People v. Jacquez, 196 Colo. 569, 588 P.2d 871, 873, 874 (1979).         On the contrary, in some circumstances, we have considered a guilty plea alone enough to constitute a "conviction."  A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is in itself a conviction.  Like a verdict of a jury it is conclusive.  More is not required; the court has nothing to do but give judgment and sentence.  Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L.Ed. 1009 (1927) (re: possession of firearms).         Pursuant to CRS 16-7-403(1) there is a difference between conviction and judgment.  A defendant is "convicted" upon the acceptance by the trial court of his guilty plea.  A deferred sentence permits a defendant to plead guilty without the entry of a judgment of conviction.  People v. Widhalm, 642 P.2d 498, 500 (Colo. 1982).         For purposes of eligibility for a personal recognizance bail bond, the Hafelfinger court held the successfully completed deferred sentence constituted a "conviction" - the defendant was ineligible.         If DUI charges were later brought arising out of new circumstances, although not admissible in the prosecutor's case in chief, for sentencing purposes a prior offense in which a defendant entered a plea of guilt to a deferred sentence could be considered to be a prior conviction.  This exists even though sentence is deferred; the defendant successfully complete all requirements and the plea is later withdrawn.  People v. Lichtenwalter, 520 P.2d 583 (Colo. 1974); People v. Cornelison, 616 P.2d 173 (Colo. App. 1980).         How do appellate courts reconcile their rulings that a deferred sentence plea which resulted in successful completion and dismissal is a not a conviction, but it is considered to be a conviction for multiple purposes in other criminal cases?  Appellate logic is unfathomable, so counsel reads the case law as follows.  A prior deferred sentence successful completion which resulted in plea withdrawal and case dismissal will be construed as a prior conviction for any criminal case purpose, with the exception of civil cases to seal criminal justice records under CRS 24-72-308.  Some judges will not use a prior dismissed deferred sentence to enhance sentencing on a new case, but counsel advises clients not to count on that.         Are deferred sentence cases which have been dismissed and subsequently sealed considered to be a prior conviction?  Refer to potential future appellate logic.         Counsel does not practice employment law.  Consult an employment lawyer regarding whether disclosure must be made on a job application or security clearance regarding conviction questions and deferred sentence which has been successfully completed, plea withdrawn and criminal case dismissed.         Unless sealed, records of the law enforcement agency, district attorney and court will reflect the original charges, charges dismissed as a result of plea negotiations, offense(s) to which a plea of guilt or nolo contendere was entered and also reflect case dismissal disposition upon successful completion of the deferred sentence.

1.  If a defendant obtains another offense, an existing deferred sentence may be considered by the sentencing judge in the later case, particularly if the new charges are related to the same type of offense.  Jail is likely if you are again charged with a similar offense.  A deferred sentence is your "one bite out of the apple" - do not re-offend.   2.  If a criminal justice records search is later conducted with or without an individual's written consent for purpose of education, employment or security clearance or other purpose, records would be accessible if not sealed. When the entire case is dismissed after deferred sentence, all charges and disposition may be subject to being sealed absent waiver of that right.  Refer to the Sealing Criminal Justice Records page and to waiver of right to seal criminal justice records for more detailed information

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Federal Brady Bill domestic violence misdemeanor or felony   CRS 18-12-108 Colorado law - weapon prohibition felony conviction and deferred sentence domestic violence - misdemeanor or felony

Colorado Law - Possession of Weapon by Previous Offender CRS 18-12-108 felony conviction and deferred sentence or domestic violence - misdemeanor or felony  definition of various weapons is contained in CRS 18-12-101

refer to the above verbatim statute link for convenience only - statute may have been amended since published herein - do not rely upon applicability to current date  **  site visitors may research CURRENT STATUTORY LAW

case on point regarding deferred sentencing as prior conviction for weapon prohibition CRS 18-12-108 People v. Dewitt, 10CA1271 (Colo.App. 9-15-2011)   In Dewitt, the defendant carried a partially concealed handgun into a grocery store and behaved in such an irate fashion that police were called.  Defendant testified he believed his prior felony cases had been dismissed upon successful completion of deferred sentence, and therefore he did not know of his prior convictions and believed he did not have a prior conviction.  Among other issues on appeal, Dewitt challenged that knowledge of the prior conviction was required and that a deferred sentence is not a conviction within the context of the criminal statute CRS 18-12-108.   The prior conviction element of the offense uses the term "conviction" which, when used without any reference to judgment, means merely the establishment of guilt by plea or verdict.  People v. Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (citing Page 21 Hafelfinger v. Dist. Court, 674 P.2d 375 (Colo. 1984)) (the felony conviction element of CRS 18-12-108(1) is satisfied by proof of a guilty plea and deferred judgment; a judgment of conviction and sentencing are not required).  emphasis added  In either instance — guilty plea or guilty verdict — a defendant will necessarily have knowledge of the conviction because he or she would have entered the plea or observed the jury's verdict.   Our conclusion that "knowingly" does not apply to the prior conviction element is reinforced by the purpose of the possession of weapon by prior offender (POWPO) statute, which is to limit the possession of firearms by persons whose past conduct has demonstrated their unfitness to be entrusted with such dangerous instrumentalities.  See People v. Montez, ___ P.3d ___, ___ (Colo. App. No. 07CA0139, Mar. 18, 2010) (cert. granted Nov. 8, 2010); People v. Allen, 111 P.3d 518, 520 (Colo. App. 2004).  The statute prohibits all convicted felons from possessing a firearm to avoid "substantial risk of harm to the public," see Allen, 111 P.3d at 520, and it would be inconsistent with this purpose to require proof of a defendant's knowledge of his or her convicted felon status before prohibiting the possession of a firearm.   Express mental state of "knowingly" in the amended POWPO statute applies only to the element that the defendant knowingly possessed the weapon and that he or she understood that the object possessed was a weapon.  The only mens rea requirement for a conviction is knowledge that the instrument possessed is a firearm.   The mens rea or mental state element of the statute does not require that the prosecution must prove that that at the time of the alleged offense the defendant knew he or she had a prior felony conviction.  No requirement exists that the defendant knew of the prior conviction(s).  Prior conviction is established by evidence of conviction.  States with similarly worded POWPO statutes have consistently declined to apply the express mental state in the statute to the prior felony conviction element of the offense.   Attorney notation.  It is now clear that if the prior offense qualifies statutorily, a deferred sentence which has been subsequently dismissed upon successful completion is sufficient to support the prior conviction element under the Colorado previous offender weapons statute.   CRS 24-72-308(1)(d) (sealing statute) provides "Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person."  The sealing statute also provides for unsealing of criminal justice records.  "Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition."  CRS 24-72-308(1)(e)  Under the sealing statute, basic identification information is not sealed.  Therefore, upon a records check, law enforcement will have a heads up to investigate further and perhaps request unsealing.   The appellate court in Dewitt held a deferred sentence which resulted in dismissal is deemed a prior conviction for purpose of POWPO, but did not address whether a deferred sentence dismissal which has been subsequently sealed would be construed as a prior conviction and support conviction under the Colorado previous offender weapons statute.  To counsel's knowledge, whether a deferred sentence which has been dismissed and sealed will be considered to be a prior conviction is an issue of first impression which has not yet been decided by Colorado appellate courts.   In debt collection, appellate courts have ruled the statute of limitations bars enforcement, but does not extinguish the debt.  Appellate courts may use analogous reasoning that the sealing statute bars seeing or disclosure of the records unless unsealed, but does not extinguish or eliminate the underlying conviction.  Given appellate rulings which have been unfavorable to defense, that type of reasoning in future court opinions is a very real possibility.  Attorney would not personally wish to be the defendant in the test case.   On the conservative side since the issue remains undecided, counsel believes the only safe approach to possession of a weapon is jury trial and not guilty verdict or flat dismissal by the court not the result of a deferred sentence, such as suppression of all the evidence.  Criminal justice records should then be sealed.  Otherwise, counsel believes possession of a weapon is imprudent and may result in criminal charges even if the dismissed deferred sentence case has been sealed.

SEALING OF DEFERRED SENTENCE TRAFFIC RECORDS SUMMARY

SEALING OF DEFERRED SENTENCE MISDEMEANOR or FELONY RECORDS SUMMARY

        Upon successful completion of the period of deferred sentence, you may have the right to file suit in the district court of the county of offense to seal the records. CRS 24-72-308.  This is a separate lawsuit a person must bring to seal records; it does not happen automatically upon deferred dismissal.  If the records are not sealed, you, persons with your written authorization, law enforcement agents, prosecutors, probation officers and courts have access to the records.  The general public may also  have access rights under Colorado Open Records law and Colorado Criminal Justice Records law.  Upon sealing of records, you and criminal justice agencies may properly rely that no such records exist.  Inspection thereafter may only be permitted by court order after petition by the person who is the subject of the records or by a prosecutor seeking to review the records. CRS 24-72-308(1)(d)&(e).  When a defendant has successfully completed the deferred sentence and dismissal is entered, he / she may wish to petition the district court to seal the records.  Conviction of a felony or misdemeanor could have sentencing consequences if the person were again charged with a crime of a similar nature, or other consequences if a criminal justice records search is later conducted with or without your written consent for purpose of adoption, volunteering at a child's or grandchild's school, education, employment or security clearance.