(1) The court, subject to the provisions of this title and title 16, C.R.S., and having considered the purposes of sentencing described in section 18-1-102.5, in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:
(a) There is undue risk that during a period of probation the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 18-1.3-104; or
(c) A sentence to probation will unduly depreciate the seriousness of the defendant's crime or undermine respect for law; or
(d) His or her past criminal record indicates that probation would fail to accomplish its intended purposes; or
(e) The crime, the facts surrounding it, or the defendant's history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation.
(2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section:
(a) The defendant's criminal conduct neither caused nor threatened serious harm to another person or his or her property;
(b) The defendant did not plan or expect that his or her criminal conduct would cause or threaten serious harm to another person or his or her property;
(c) The defendant acted under strong provocation;
(d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant's conduct;
(e) The victim of the defendant's conduct induced or facilitated its commission;
(f) The defendant has made or will make restitution or reparation to the victim of his or her conduct for the damage or injury which was sustained;
(g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(h) The defendant's conduct was the result of circumstances unlikely to recur;
(i) The character, history, and attitudes of the defendant indicate that he or she is unlikely to commit another crime;
(j) The defendant is particularly likely to respond affirmatively to probationary treatment;
(k) The imprisonment of the defendant would entail undue hardship to himself or herself or his or her dependents;
(l) The defendant is elderly or in poor health;
(m) The defendant did not abuse a public position of responsibility or trust;
(n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise.
(3) Nothing in this section shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing.
Source: L. 2002: Entire article added with relocations, p. 1377, 2, effective October 1. L. 2011: IP(1) amended, (HB 11-1180), ch. 96, p. 283, 3, effective August 10.
Editor's note: This section is similar to former 16-11-203 as it existed prior to 2002.
Cross references: For provisions concerning the presentence or probation investigation, see 16-11-102 and Crim. P. 32(a).
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).
Annotator's note. Since 18-1.3-203 is similar to 16-11-203 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed 39-16-6, C.R.S 1963, and 39-16-6, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.
The granting of probation involves the exercise of discretion on the part of a trial judge. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).
It is not a matter of right for a defendant. It is a matter of grace and suspends conditionally what otherwise would be a harsher decree. Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967).
Probation is a privilege rather than a right. It suspends conditionally what might be a harsher judgment. It is, in effect, a contract made by the court and sanctioned by the statute with the convicted person. Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969).
Judge considers community, offense, and offender. A trial judge in the exercise of his discretion in a probation matter considers three facets of the problem - the community, the offense, and the offender, in that order - and if upon consideration of these factors he concludes that the applicant is a worthy risk for probation, he has the power to grant it. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).
The setting, nature, and circumstances of an offense, particularly as they furnish a clue to the personality of an offender, whether an offense is violent or nonviolent, and the motives actuating a defendant in committing an offense are components which a trial court will evaluate when considering the offense as a factor in the question of granting probation, as well as the background of a defendant and information corroborating or denying the defendant's will to reform and his ability to adjust himself to community life. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).
The public interest in safety and deterrence, when considered in isolation, might well justify an alternative to sentencing in the case of a first-time offender, at least in crimes not causing or threatening serious harm to the person or property of others. People v. Scott, 200 Colo. 402, 615 P.2d 35 (1980).
Although the absence of a prior felony conviction or significant criminal involvement, by itself, certainly may constitute a mitigating factor worthy of consideration, it is only one factor and is not conclusive on the sentencing decision. People v. Scott, 200 Colo. 402, 615 P.2d 35 (1980).
Trial court did not err or impermissibly infringe upon defendant's fifth amendment rights in denying him the privilege of probation when defendant would not, during the pendency of his appeal and in the course of sex offender treatment, admit responsibility for his crime. People v. Whitlock, 2014 COA 162, 412 P.3d 667.
Trial court did not err in stating that it had considered the factors set forth in this section prior to imposing sentence. This section requires the court to consider factors similar to those allowed under the sentencing statute, and the court did not abuse its discretion in doing so. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).
Power to suspend sentence not affected by failure to grant probation. So long as the circumstances would have justified a grant of probation and the defendant was eligible for probation, the fact that the judge did not impose it does not vitiate his power to suspend sentences. People v. Henderson, 196 Colo. 441, 586 P.2d 229 (1978), overruled on other grounds in People v. District Court, 673 P.2d 991 (Colo. 1983).
Surrounding circumstances of defendant's alien status may be relevant to a sentencing court's decision whether to grant or deny probation. Although consideration of defendant's status as a foreign national, in and of itself, is improper, the fact that defendant is in the United States illegally may, under certain circumstances, provide substantial and compelling reasons to depart from sentencing guidelines and deny probation. People v. Hernandez-Clavel, 186 P.3d 96 (Colo. App. 2008).
Applied in People v. Martinez, 657 P.2d 967 (Colo. App. 1982).