Preview
DATE FILED: December 15, 2021 10:46 PM
District Court, City and County of Denver, Colorado
FILING ID: 60A736D9D2CC0
CASE NUMBER: 2021CV32890
City and County Building, Room 256
1437 Bannock Street
Denver, Colorado 80202
On Appeal from the Denver County Court
The Honorable Kerri Lombardi
Case No. 18 M 1075
THE PEOPLE OF THE STATE OF COLORADO,
Plaintiff-Appellee,
COURT USE ONLY
v.
DAVID JARRETT,
Defendant-Appellant.
Case Number: 21 CV 32890
Jeff M. Van der Veer, Reg. No. 43837
Deputy District Attorney Courtroom: 5B
Beth McCann, Denver District Attorney
201 West Colfax Avenue, Dept. 801
Denver, CO 80202
720.913.9000
jeff.vanderveer@denverda.org
Answer Brief
TABLE OF CONTENTS
Table of Contents ............................................................................................................... i
Table of Authorities ........................................................................................................... ii
Issues Presented For Review ............................................................................................. 1
Statement of the Case ........................................................................................................ 2
Summary of the Argument ................................................................................................ 5
Argument .......................................................................................................................... 6
I. The trial court never lost jurisdiction. ................................................................... 6
A. Standard of Review and Issue Preservation .................................................... 6
B. Discussion ...................................................................................................... 6
II. The fact that the complaint was filed by probation (and not the district attorney)
does not mean that Jarrett can avoid his plea agreement. .................................... 10
A. Standard of Review and Issue Preservation .................................................. 10
B. Discussion .................................................................................................... 10
Conclusion ....................................................................................................................... 14
Certificate of Service ........................................................................................................15
i
TABLE OF AUTHORITIES
Cases
A.S. v. People, 2013 CO 63 ................................................................................................. 11
AA Wholesale Storage, LLC v. Swinyard, 2021 COA 46 .................................................... 11
Black v. Black, 2020 COA 64M .......................................................................................... 8
Carerra v. People, 2019 CO 83 ............................................................................................ 6
Finney v. People, 2014 CO 38 ............................................................................................ 10
Keller v. People, 29 P.3d 290 (Colo. 2000) ................................................................... 10, 13
People v. Allen, 952 P.2d 764 (Colo. App. 1997) .................................................................. 7
People v. Carbajal, 198 P.3d 102 (Colo. 2008) .................................................................... 9
People v. Collier, 151 P.3d 668 (Colo. 2006) ........................................................................ 8
People v. Johnson, 999 P.2d 825 (Colo. 2000) ................................................................... 12
People v. Madison, 2018 COA 62 .......................................................................................13
People v. Sims, 2019 COA 66 .............................................................................................. 8
People v. Weeks, 2021 CO 75 ..............................................................................................13
Rodriguez v. New Mexico, 12 F.3d 175 (10th Cir. 1993) ...................................................... 12
St. James v. People, 948 P.2d 1028 (Colo. 1997) ............................................................... 12
Statutes .............................................................................................................
§ 18-1.3-102, C.R.S. (2019) ....................................................................................... passim
ii
Other Authorities
13 Williston on Contracts § 39:15, Westlaw (4th ed.) ...................................................... 14
iii
ISSUES PRESENTED FOR REVIEW
1. The deferred judgment statute contemplates that a revocation proceeding
should include an “[a]pplication for entry of judgment.” Here, the defendant agreed that
his deferred judgment would be revoked if he violated any terms of probation. When he
violated those terms, a “Complaint to Revoke Probation” was filed, and the People
pursued revocation based on that complaint. Did the complaint qualify as an “application
for entry of judgment”?
2. The deferred judgment statute allows either a probation officer or a district
attorney to file an application to revoke a deferred judgment. The parties’ plea agreement
stated that the “[t]he District Attorney may make application for entry of judgment.” In
this case, the probation officer filed the initial complaint to revoke, which was then
pursued by the district attorney. Was this a material and substantial breach of the parties’
plea agreement?
1
STATEMENT OF THE CASE
The crime. In January 2018, David Jarrett went into a public library, grabbed a
security guard from behind, and pushed her towards the ground. (CF Suppressed, p 3.)
During that assault, he grabbed the victim’s vagina. (Id.)
Jarrett was charged with unlawful sexual conduct and harassment. (CF, pp 1, 41.)
The disposition. On February 11, 2019, Jarrett and the People reached a two-part
disposition. First, he pled guilty to harassment. (See id., pp 83–89.) Second, he agreed to a
deferred judgment on the unlawful sexual conduct charge—one that allowed the court to
set the term of the deferred judgment. (Id., p 83)
The court issued its sentence on May 20, 2019. (See generally R. Tr. 5/20/19.) For
the harassment conviction, Jarrett had to pay fines and costs. (Id., pp 2:23–3:5, 13:5–7;
CF, pp 168–69.) For the unlawful sexual conduct charge, the court imposed a two-year
deferred judgment, which would be supervised by probation. (R. Tr. 5/20/19, p 13:7–11.)
As part of that deferred judgment, Jarrett was ordered to (among other things) comply
with sex offender probation, attend counseling and treatment, maintain sobriety, refrain
from any further violations, and register as a sex offender. (Id., pp 13:13–16:3.) If Jarrett
breached any of those conditions, then the court would enter the conviction. (Id., p 12:2–
23; CF, p 84.)
2
The revocation. Within a few months, Jarrett had breached several conditions of his
probation.1 On November 13, 2019, his probation officer filed a “Complaint to Revoke
Probation” in this case and requested a warrant for Jarrett’s arrest. (CF, pp 111–15.)
Jarrett was eventually arrested and brought before the court on June 25, 2020,
where he denied the allegations in the complaint to revoke. (See id., p 160.) Over the
course of the next year, the revocation hearing was repeatedly delayed—sometimes at
Jarrett’s request, sometimes for Jarrett’s failure to appear. (See id., pp 159–60; see also R.
Tr. 8/10/21, pp 7:9–20, 9:25–12:3.) On April 8, 2021, the defense again continued the
revocation hearing, which was re-set for July 1, 2021. (CF, p 160.) On that date, Jarrett
raised new arguments to dismiss his deferred charge. First, he contended that the
“Complaint to Revoke Probation”—which had been filed almost two years before—
didn’t qualify as an “[a]pplication for entry of judgment and imposition of sentence”
under the deferred judgment statute, section 18-1.3-102(2), C.R.S. (2019). (Id., pp 159,
131–33.) According to Jarrett, that “application” was a statutory prerequisite and, since
the term of his deferred judgment had recently ended, the court had “lost jurisdiction” to
adjudicate the revocation. (Id.) Alternatively, he argued that his stipulation for deferred
judgment required the district attorney to file the complaint to revoke—but, because a
1
Specifically, Jarrett had (1) been arrested and charged with a new misdemeanor, (2) been
discharged from sex offender treatment for failure to attend, (3) submitted multiple
positive marijuana tests (and missed other required screenings), (4) failed to pay fines,
fees, and court costs, and (5) failed to pay restitution. (CF, pp 111–12.)
3
probation officer filed the complaint, his deferred judgment should be “dismiss[ed].” (Id.,
pp 133–34.)
At a subsequent hearing, the court denied Jarrett’s motion. (See generally R. Tr.
8/10/21.) It recognized that the complaint to revoke probation and accompanying warrant
for Jarrett’s arrest amounted to a “motion to revoke the deferred judgment.” (Id., pp
10:16–11:9.) The court further noted that it had “repeatedly set over the show cause
hearing for [Jarrett’s] benefit,” and that Jarrett had “fail[ed] to appear” on another
occasion, which effectively “extend[ed] the [two-year] deferred judgment.” (Id., pp
11:12–12:1.)
After the court denied his motion to dismiss, Jarrett admitted the probation
violations. (Id., pp 13:15–15:14.) The court then entered conviction on the unlawful sexual
conduct charge, sentenced Jarrett to 120 days in jail, and gave him credit for time
served—which took care of the entire term. (Id., p 16:3–11; CF, pp 157–59.)
Jarrett now appeals his conviction.
4
SUMMARY OF THE ARGUMENT
Whatever technical appeal Jarrett’s arguments may have is trumped by practical
legal principles.
First, he contends that the deferred judgment statute requires an “[a]pplication for
entry of judgment,” and that the “Complaint to Revoke Probation” didn’t qualify. But
it’s the substance (not the title) of a filing that controls its effect. And here, the success of
Jarrett’s deferred judgment explicitly hinged on him complying with probation; the
complaint to revoke that probation was clearly a request to enter the deferred judgment.
Second, Jarrett contends that his plea agreement required the district attorney to
file a complaint to revoke the deferred judgment—and that he should be allowed out of
that agreement because probation filed the complaint. But, to succeed on an alleged breach
of a plea deal, the defendant must identify a breach that is both material and substantial.
Jarrett offers no practical difference between (1) the district attorney filing the initial
complaint, and (2) probation filing the initial complaint (which is then pursued by the
district attorney). Further, even if this were a legitimate breach (which it isn’t), Jarrett
waived any claim by waiting almost a year and a half to bring this supposed problem to the
court’s attention.
Jarrett’s conviction should be affirmed.
5
ARGUMENT
I. The trial court never lost jurisdiction.
Jarrett first contends that, because the proceeding was based on a “Complaint to
Revoke Probation” (and not an “[a]pplication for entry of judgment”), the trial court
never had the authority to revoke the deferred judgment—and it therefore lost
jurisdiction once the deferred judgment’s two-year period ended. (OB at 6–9.) This
hyper-technical argument fails.
A. Standard of Review and Issue Preservation
The opening brief frames its argument as one of jurisdiction but, at its core,
Jarrett’s claim is that the trial court acted outside its statutory authority; this presents a
question of law that is reviewed de novo. E.g., Carerra v. People, 2019 CO 83, ¶¶ 13–14.
Jarrett preserved this argument. (CF, pp 131–34.)
B. Discussion
Jarrett’s claim amounts to this:
The trial court imposed a two-year deferred judgment that was supervised
by probation.
Section 18-1.3-102(2) provides that, if there’s a breach of the deferred
judgment, then “[a]pplication for entry of judgment and imposition of
sentence may be made by the district attorney or probation officer at any
time within the term of the deferred judgment.”
6
Jarrett’s revocation began with a “Complaint to Revoke Probation.”
A “Complaint to Revoke Probation,” according to Jarrett, is not an
“[a]pplication for entry of judgment.”
Because the prosecution never filed an “application,” the trial court had no
statutory authority to revoke his deferred judgment.
The argument depends on a faulty legal premise—i.e., that an “[a]pplication for
entry of judgment” under section 18-1.3-102(2) must be a filed document specifically
titled “Application for Entry of Judgment,” or something to that effect.2 That’s simply
not the case. The statute says nothing about what this “application” needs to be titled; in
fact, it doesn’t require the “application” to be made in the form of a written document. It
simply says that an “[a]pplication for entry of judgment and imposition of sentence may
be made by the district attorney or probation officer.”3
The “Complaint to Revoke Probation” satisfied this provision. Contrary to
Jarrett’s argument, the “district court’s subject matter jurisdiction does not hinge on the
2
The opening brief implicitly suggests that acceptable alternative titles for an
“[a]pplication for entry of judgment” would be a “motion to revoke a deferred
judgment” or a “petition to revoke the deferred judgment.” (See OB at 7, 8.)
3
The statute’s only other reference to this “application” notes that the court can rule on
the alleged breach “upon application” and with “notice…of not less than seven days to
the defendant.” See § 18-1.3-102(2). As cases have recognized, this “application” is
meant to give the defendant “clear notice of the violations charged.” E.g., People v. Allen,
952 P.2d 764, 766–67 (Colo. App. 1997). Jarrett certainly received that in this case. (CF,
pp 111–15, 159–60.)
7
particular appellation used by the prosecutor to describe a legal document.” People v.
Sims, 2019 COA 66, ¶ 19. Rather, it is the “substance” of the document that controls its
effect. People v. Collier, 151 P.3d 668, 670 (Colo. 2006); see also Black v. Black, 2020 COA
64M, ¶ 73 (“[T]he substance of a filing, and not its designation given by a party,
determines its character and weight.”).
Here, the “substance” of the “Complaint to Revoke Probation” was clear. Again,
Jarrett’s disposition included a two-year deferred judgment; as part of that arrangement,
Jarrett knew that he would be put on probation, that he would have to adhere to
conditions of probation, and that any breach of those conditions meant that “the Court
shall enter a judgment of conviction on his…previously entered plea of guilty.” (CF, pp
83–84; R. Tr. 5/20/19, pp 12:2–23.) And just six months into that two-year term, Jarrett’s
probation officer filed the “Complaint to Revoke Probation” in this particular case—a
document explaining that (1) he was on “DJ PROB[ATION],” (2) he was subject to
particular conditions, and (3) he had breached those conditions in five specific ways. (CF,
pp 111–15.) The accompanying document also called for his arrest. (See id.) Clearly, this
document was asking the court to enter judgment on his deferred sentence, and it notified
him of the reasons. To hold otherwise would improperly elevate form over substance.4
See, e.g., Sims, 2019 COA 66, ¶ 19; Collier, 151 P.3d at 670.
4
To that end, the trial court found that the complaint was “essentially a motion to revoke
the deferred judgment.” (R. Tr. 8/10/21, p 11:5–6.)
8
The opening brief suggests that the Colorado Supreme Court has “flatly rejected
this reasoning.” (OB at 9 (citing People v. Carbajal, 198 P.3d 102, 106 (Colo. 2008)).) Not
so: Carbajal looked at whether the “deferred judgment statute divests a trial court of its
authority to hear revocation petitions filed…after the deferred judgment expires.” 198 P.3d at
106–07 (emphasis added). In other words, in Carbajal, the prosecution and probation did
nothing to initiate revocation proceedings during the deferred judgment term.
We’re faced with a totally different question. Here, there’s clearly a timely filing,
and the prosecution clearly pursued the revocation during the deferred judgment term.
(The “Complaint to Revoke Probation” was filed six months into the two-year deferred
judgment term.) Rather, the question is whether the prosecution—through that
document or otherwise—made an “[a]pplication for entry of judgment” under section
18-1.3-102(2). Despite the opening brief’s suggestion, Carbajal has nothing to say on that
point.
Ultimately, the complaint to revoke probation was a request to enter the deferred
judgment. (Jarrett’s probation was specifically imposed as a condition of the deferred
judgment—and, as Jarrett was repeatedly told, any breach of those conditions would result
in the revocation of the deferred judgment.) And even if there was some sort of ambiguity
in the filing (there wasn’t), that was resolved from June 25, 2020 (Jarrett’s first
appearance) onwards—where the district attorney was clearly pursuing the revocation of
the deferred judgment. (See CF, pp 159–60.)
9
Because there was an “[a]pplication for entry of judgment,” Jarrett’s argument
fails.
II. The fact that the complaint was filed by probation (and not the district
attorney) does not mean that Jarrett can avoid his plea agreement.
Next, the opening brief contends that Jarrett’s “case should be dismissed because
the request [to revoke the deferred judgment] was made by probation”—and not the
district attorney. (OB at 9–12.) Jarrett’s logic is that, although the statute explicitly
provides that either entity can initiate the revocation, his plea agreement contemplated
that the district attorney would file the complaint. (See id.) This logic doesn’t hold up to
scrutiny.
A. Standard of Review and Issue Preservation
Jarrett’s argument involves the interpretation of the parties’ stipulation and the
deferred judgment statute. Those issues are reviewed de novo. E.g., Finney v. People, 2014
CO 38, ¶ 12; Keller v. People, 29 P.3d 290, 297 (Colo. 2000).
Jarrett presented this argument to the trial court. (R. Tr. 8/10/21, p 4:2–15; CF, pp
133–34.)
B. Discussion
The foundation of Jarrett’s argument is that the parties’ deferred judgment
agreement “eliminated any possibility that probation” could ask for the deferred
judgment to enter. (OB at 10.) That’s not true. As the opening brief acknowledges, the
10
deferred judgment statutes explicitly allows either the “the district attorney or a
probation officer” to submit the request for revocation. See § 18-1.3-102(2). Jarrett argues
that the parties’ written agreement amends this statutory option because it states that
“[t]he District Attorney may make application for entry of judgment and imposition of
sentence.” (CF, p 84 (emphasis added).) But the agreement’s use of the term “may”
doesn’t foreclose the other option that the statute contemplates. See A.S. v. People, 2013
CO 63, ¶ 21 (recognizing that the term “may” is “generally indicative of a grant of
discretion or choice among alternatives”); AA Wholesale Storage, LLC v. Swinyard, 2021
COA 46, ¶ 29 (same).
Further, even if we accept Jarrett’s premise—i.e., that the agreement required the
district attorney to be the one who applies for entry of the deferred judgment—that
requirement was fulfilled. Yes, a probation officer filed the initial complaint to revoke.
(CF, pp 111–12.) But, as the case’s history reveals, from that point forward the district
attorney adopted and pursued that complaint—continually pushing for a revocation
hearing, and ultimately convincing the court to revoke Jarrett’s deferred judgment. (CF,
pp 159–63; see generally R. Tr. 8/10/21.) In other words, while the probation officer
11
certainly applied for the deferred judgment to enter, the district attorney did the same
thing by pursuing that judgment.5
But even if Jarrett were correct that probation’s filing of the complaint somehow
breached the written plea, that alleged breach wouldn’t allow him to dissolve the
agreement:
[N]ot every breach by a party releases the other party from its
promises under the agreement. A party is released from its
plea agreement obligations in situations where the other party
materially and substantially breaches an obligation under the
plea agreement.
St. James v. People, 948 P.2d 1028, 1032 (Colo. 1997) (emphasis added); see also People v.
Johnson, 999 P.2d 825, 829 (Colo. 2000) (“When a party has materially and substantially
breached its own obligations under the plea agreement, this discharges the opposing party
from its obligations.”); Rodriguez v. New Mexico, 12 F.3d 175, 175 (10th Cir. 1993)
(recognizing that “only breaches of material promises will allow a court to conclude that a
plea was involuntarily induced and thus constitutionally infirm”).
Here, even if probation’s filing of the initial complaint was some sort of technical
breach, it certainly wasn’t “material” or “substantial.” The opening brief doesn’t
identify any prejudice because there was none: there is no material or substantive
5
As noted above, the deferred judgment statute doesn’t provide that the “[a]pplication
for entry of judgment” needs to be in any particular format, nor does it state that the
application has to be in writing. See § 18-1.3-102(2).
12
difference between (1) the district attorney filing an initial complaint and (2) probation
filing an initial complaint, which is then adopted and prosecuted by the district attorney.
Finally, there’s one more way to address this issue. Jarrett correctly recognizes
that plea agreements are treated like contracts. (OB at 11 (citing Keller, 29 P.3d at 295).)
But he forgets an important contractual concept—waiver:
A party may waive a contract provision where the party is
entitled to assert a particular right, knows the right exists, but
intentionally abandons that right.
People v. Madison, 2018 COA 62, ¶ 20, overruled on other grounds by People v. Weeks, 2021
CO 75.
So let’s assume Jarrett was entitled to assert a “right” to have the district attorney
file the complaint for revocation. He certainly knew the right existed. (It’s allegedly based
on a provision in the agreement that he signed.) And he abandoned that right through
inaction: probation filed its complaint November 2019, and although the district attorney
was clearly prosecuting the revocation while Jarrett was participating, he didn’t raise this
issue until July 2021—after his deferred judgment term had allegedly expired. In other
words, he waited to claim a breach until the prosecution could no longer give him what he
was allegedly due under the agreement (i.e., an “application” filed by the district
attorney). This isn’t how contractual demands are supposed to work. See Madison, 2018
CO 62, ¶ 21 (“The purpose of the waiver doctrine is ‘to prevent the waiving party from
lulling the other party into a belief that strict compliance with a contractual duty will not
13
be required and then either suing for noncompliance or demanding compliance for the
purpose of avoiding the transaction.’” (quoting 13 Williston on Contracts § 39:15,
Westlaw (4th ed.)).
For each of these reasons, Jarrett’s claim that his deferred judgment should be
“dismissed” fails.
CONCLUSION
Jarrett’s conviction should be affirmed.
Date: December 15, 2021.
Respectfully submitted,
BETH MCCANN
Denver District Attorney
s/Jeff M. Van der Veer
JEFF M. VAN DER VEER
Deputy District Attorney
Appellate Division
14
CERTIFICATE OF SERVICE
I certify that on December 15, 2021, I electronically filed the Answer Brief through
the Colorado Courts E-Filing system, which will send notification to all persons
registered in this case.
s/Jeff M. Van der Veer
15
Preview
DATE FILED: December 15, 2021 10:46 PM District Court, City and County of Denver, Colorado FILING ID: 60A736D9D2CC0 CASE NUMBER: 2021CV32890 City and County Building, Room 256 1437 Bannock Street Denver, Colorado 80202 On Appeal from the Denver County Court The Honorable Kerri Lombardi Case No. 18 M 1075 THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee, COURT USE ONLY v. DAVID JARRETT, Defendant-Appellant. Case Number: 21 CV 32890 Jeff M. Van der Veer, Reg. No. 43837 Deputy District Attorney Courtroom: 5B Beth McCann, Denver District Attorney 201 West Colfax Avenue, Dept. 801 Denver, CO 80202 720.913.9000 jeff.vanderveer@denverda.org Answer Brief TABLE OF CONTENTS Table of Contents ............................................................................................................... i Table of Authorities ........................................................................................................... ii Issues Presented For Review ............................................................................................. 1 Statement of the Case ........................................................................................................ 2 Summary of the Argument ................................................................................................ 5 Argument .......................................................................................................................... 6 I. The trial court never lost jurisdiction. ................................................................... 6 A. Standard of Review and Issue Preservation .................................................... 6 B. Discussion ...................................................................................................... 6 II. The fact that the complaint was filed by probation (and not the district attorney) does not mean that Jarrett can avoid his plea agreement. .................................... 10 A. Standard of Review and Issue Preservation .................................................. 10 B. Discussion .................................................................................................... 10 Conclusion ....................................................................................................................... 14 Certificate of Service ........................................................................................................15 i TABLE OF AUTHORITIES Cases A.S. v. People, 2013 CO 63 ................................................................................................. 11 AA Wholesale Storage, LLC v. Swinyard, 2021 COA 46 .................................................... 11 Black v. Black, 2020 COA 64M .......................................................................................... 8 Carerra v. People, 2019 CO 83 ............................................................................................ 6 Finney v. People, 2014 CO 38 ............................................................................................ 10 Keller v. People, 29 P.3d 290 (Colo. 2000) ................................................................... 10, 13 People v. Allen, 952 P.2d 764 (Colo. App. 1997) .................................................................. 7 People v. Carbajal, 198 P.3d 102 (Colo. 2008) .................................................................... 9 People v. Collier, 151 P.3d 668 (Colo. 2006) ........................................................................ 8 People v. Johnson, 999 P.2d 825 (Colo. 2000) ................................................................... 12 People v. Madison, 2018 COA 62 .......................................................................................13 People v. Sims, 2019 COA 66 .............................................................................................. 8 People v. Weeks, 2021 CO 75 ..............................................................................................13 Rodriguez v. New Mexico, 12 F.3d 175 (10th Cir. 1993) ...................................................... 12 St. James v. People, 948 P.2d 1028 (Colo. 1997) ............................................................... 12 Statutes ............................................................................................................. § 18-1.3-102, C.R.S. (2019) ....................................................................................... passim ii Other Authorities 13 Williston on Contracts § 39:15, Westlaw (4th ed.) ...................................................... 14 iii ISSUES PRESENTED FOR REVIEW 1. The deferred judgment statute contemplates that a revocation proceeding should include an “[a]pplication for entry of judgment.” Here, the defendant agreed that his deferred judgment would be revoked if he violated any terms of probation. When he violated those terms, a “Complaint to Revoke Probation” was filed, and the People pursued revocation based on that complaint. Did the complaint qualify as an “application for entry of judgment”? 2. The deferred judgment statute allows either a probation officer or a district attorney to file an application to revoke a deferred judgment. The parties’ plea agreement stated that the “[t]he District Attorney may make application for entry of judgment.” In this case, the probation officer filed the initial complaint to revoke, which was then pursued by the district attorney. Was this a material and substantial breach of the parties’ plea agreement? 1 STATEMENT OF THE CASE The crime. In January 2018, David Jarrett went into a public library, grabbed a security guard from behind, and pushed her towards the ground. (CF Suppressed, p 3.) During that assault, he grabbed the victim’s vagina. (Id.) Jarrett was charged with unlawful sexual conduct and harassment. (CF, pp 1, 41.) The disposition. On February 11, 2019, Jarrett and the People reached a two-part disposition. First, he pled guilty to harassment. (See id., pp 83–89.) Second, he agreed to a deferred judgment on the unlawful sexual conduct charge—one that allowed the court to set the term of the deferred judgment. (Id., p 83) The court issued its sentence on May 20, 2019. (See generally R. Tr. 5/20/19.) For the harassment conviction, Jarrett had to pay fines and costs. (Id., pp 2:23–3:5, 13:5–7; CF, pp 168–69.) For the unlawful sexual conduct charge, the court imposed a two-year deferred judgment, which would be supervised by probation. (R. Tr. 5/20/19, p 13:7–11.) As part of that deferred judgment, Jarrett was ordered to (among other things) comply with sex offender probation, attend counseling and treatment, maintain sobriety, refrain from any further violations, and register as a sex offender. (Id., pp 13:13–16:3.) If Jarrett breached any of those conditions, then the court would enter the conviction. (Id., p 12:2– 23; CF, p 84.) 2 The revocation. Within a few months, Jarrett had breached several conditions of his probation.1 On November 13, 2019, his probation officer filed a “Complaint to Revoke Probation” in this case and requested a warrant for Jarrett’s arrest. (CF, pp 111–15.) Jarrett was eventually arrested and brought before the court on June 25, 2020, where he denied the allegations in the complaint to revoke. (See id., p 160.) Over the course of the next year, the revocation hearing was repeatedly delayed—sometimes at Jarrett’s request, sometimes for Jarrett’s failure to appear. (See id., pp 159–60; see also R. Tr. 8/10/21, pp 7:9–20, 9:25–12:3.) On April 8, 2021, the defense again continued the revocation hearing, which was re-set for July 1, 2021. (CF, p 160.) On that date, Jarrett raised new arguments to dismiss his deferred charge. First, he contended that the “Complaint to Revoke Probation”—which had been filed almost two years before— didn’t qualify as an “[a]pplication for entry of judgment and imposition of sentence” under the deferred judgment statute, section 18-1.3-102(2), C.R.S. (2019). (Id., pp 159, 131–33.) According to Jarrett, that “application” was a statutory prerequisite and, since the term of his deferred judgment had recently ended, the court had “lost jurisdiction” to adjudicate the revocation. (Id.) Alternatively, he argued that his stipulation for deferred judgment required the district attorney to file the complaint to revoke—but, because a 1 Specifically, Jarrett had (1) been arrested and charged with a new misdemeanor, (2) been discharged from sex offender treatment for failure to attend, (3) submitted multiple positive marijuana tests (and missed other required screenings), (4) failed to pay fines, fees, and court costs, and (5) failed to pay restitution. (CF, pp 111–12.) 3 probation officer filed the complaint, his deferred judgment should be “dismiss[ed].” (Id., pp 133–34.) At a subsequent hearing, the court denied Jarrett’s motion. (See generally R. Tr. 8/10/21.) It recognized that the complaint to revoke probation and accompanying warrant for Jarrett’s arrest amounted to a “motion to revoke the deferred judgment.” (Id., pp 10:16–11:9.) The court further noted that it had “repeatedly set over the show cause hearing for [Jarrett’s] benefit,” and that Jarrett had “fail[ed] to appear” on another occasion, which effectively “extend[ed] the [two-year] deferred judgment.” (Id., pp 11:12–12:1.) After the court denied his motion to dismiss, Jarrett admitted the probation violations. (Id., pp 13:15–15:14.) The court then entered conviction on the unlawful sexual conduct charge, sentenced Jarrett to 120 days in jail, and gave him credit for time served—which took care of the entire term. (Id., p 16:3–11; CF, pp 157–59.) Jarrett now appeals his conviction. 4 SUMMARY OF THE ARGUMENT Whatever technical appeal Jarrett’s arguments may have is trumped by practical legal principles. First, he contends that the deferred judgment statute requires an “[a]pplication for entry of judgment,” and that the “Complaint to Revoke Probation” didn’t qualify. But it’s the substance (not the title) of a filing that controls its effect. And here, the success of Jarrett’s deferred judgment explicitly hinged on him complying with probation; the complaint to revoke that probation was clearly a request to enter the deferred judgment. Second, Jarrett contends that his plea agreement required the district attorney to file a complaint to revoke the deferred judgment—and that he should be allowed out of that agreement because probation filed the complaint. But, to succeed on an alleged breach of a plea deal, the defendant must identify a breach that is both material and substantial. Jarrett offers no practical difference between (1) the district attorney filing the initial complaint, and (2) probation filing the initial complaint (which is then pursued by the district attorney). Further, even if this were a legitimate breach (which it isn’t), Jarrett waived any claim by waiting almost a year and a half to bring this supposed problem to the court’s attention. Jarrett’s conviction should be affirmed. 5 ARGUMENT I. The trial court never lost jurisdiction. Jarrett first contends that, because the proceeding was based on a “Complaint to Revoke Probation” (and not an “[a]pplication for entry of judgment”), the trial court never had the authority to revoke the deferred judgment—and it therefore lost jurisdiction once the deferred judgment’s two-year period ended. (OB at 6–9.) This hyper-technical argument fails. A. Standard of Review and Issue Preservation The opening brief frames its argument as one of jurisdiction but, at its core, Jarrett’s claim is that the trial court acted outside its statutory authority; this presents a question of law that is reviewed de novo. E.g., Carerra v. People, 2019 CO 83, ¶¶ 13–14. Jarrett preserved this argument. (CF, pp 131–34.) B. Discussion Jarrett’s claim amounts to this: The trial court imposed a two-year deferred judgment that was supervised by probation. Section 18-1.3-102(2) provides that, if there’s a breach of the deferred judgment, then “[a]pplication for entry of judgment and imposition of sentence may be made by the district attorney or probation officer at any time within the term of the deferred judgment.” 6 Jarrett’s revocation began with a “Complaint to Revoke Probation.” A “Complaint to Revoke Probation,” according to Jarrett, is not an “[a]pplication for entry of judgment.” Because the prosecution never filed an “application,” the trial court had no statutory authority to revoke his deferred judgment. The argument depends on a faulty legal premise—i.e., that an “[a]pplication for entry of judgment” under section 18-1.3-102(2) must be a filed document specifically titled “Application for Entry of Judgment,” or something to that effect.2 That’s simply not the case. The statute says nothing about what this “application” needs to be titled; in fact, it doesn’t require the “application” to be made in the form of a written document. It simply says that an “[a]pplication for entry of judgment and imposition of sentence may be made by the district attorney or probation officer.”3 The “Complaint to Revoke Probation” satisfied this provision. Contrary to Jarrett’s argument, the “district court’s subject matter jurisdiction does not hinge on the 2 The opening brief implicitly suggests that acceptable alternative titles for an “[a]pplication for entry of judgment” would be a “motion to revoke a deferred judgment” or a “petition to revoke the deferred judgment.” (See OB at 7, 8.) 3 The statute’s only other reference to this “application” notes that the court can rule on the alleged breach “upon application” and with “notice…of not less than seven days to the defendant.” See § 18-1.3-102(2). As cases have recognized, this “application” is meant to give the defendant “clear notice of the violations charged.” E.g., People v. Allen, 952 P.2d 764, 766–67 (Colo. App. 1997). Jarrett certainly received that in this case. (CF, pp 111–15, 159–60.) 7 particular appellation used by the prosecutor to describe a legal document.” People v. Sims, 2019 COA 66, ¶ 19. Rather, it is the “substance” of the document that controls its effect. People v. Collier, 151 P.3d 668, 670 (Colo. 2006); see also Black v. Black, 2020 COA 64M, ¶ 73 (“[T]he substance of a filing, and not its designation given by a party, determines its character and weight.”). Here, the “substance” of the “Complaint to Revoke Probation” was clear. Again, Jarrett’s disposition included a two-year deferred judgment; as part of that arrangement, Jarrett knew that he would be put on probation, that he would have to adhere to conditions of probation, and that any breach of those conditions meant that “the Court shall enter a judgment of conviction on his…previously entered plea of guilty.” (CF, pp 83–84; R. Tr. 5/20/19, pp 12:2–23.) And just six months into that two-year term, Jarrett’s probation officer filed the “Complaint to Revoke Probation” in this particular case—a document explaining that (1) he was on “DJ PROB[ATION],” (2) he was subject to particular conditions, and (3) he had breached those conditions in five specific ways. (CF, pp 111–15.) The accompanying document also called for his arrest. (See id.) Clearly, this document was asking the court to enter judgment on his deferred sentence, and it notified him of the reasons. To hold otherwise would improperly elevate form over substance.4 See, e.g., Sims, 2019 COA 66, ¶ 19; Collier, 151 P.3d at 670. 4 To that end, the trial court found that the complaint was “essentially a motion to revoke the deferred judgment.” (R. Tr. 8/10/21, p 11:5–6.) 8 The opening brief suggests that the Colorado Supreme Court has “flatly rejected this reasoning.” (OB at 9 (citing People v. Carbajal, 198 P.3d 102, 106 (Colo. 2008)).) Not so: Carbajal looked at whether the “deferred judgment statute divests a trial court of its authority to hear revocation petitions filed…after the deferred judgment expires.” 198 P.3d at 106–07 (emphasis added). In other words, in Carbajal, the prosecution and probation did nothing to initiate revocation proceedings during the deferred judgment term. We’re faced with a totally different question. Here, there’s clearly a timely filing, and the prosecution clearly pursued the revocation during the deferred judgment term. (The “Complaint to Revoke Probation” was filed six months into the two-year deferred judgment term.) Rather, the question is whether the prosecution—through that document or otherwise—made an “[a]pplication for entry of judgment” under section 18-1.3-102(2). Despite the opening brief’s suggestion, Carbajal has nothing to say on that point. Ultimately, the complaint to revoke probation was a request to enter the deferred judgment. (Jarrett’s probation was specifically imposed as a condition of the deferred judgment—and, as Jarrett was repeatedly told, any breach of those conditions would result in the revocation of the deferred judgment.) And even if there was some sort of ambiguity in the filing (there wasn’t), that was resolved from June 25, 2020 (Jarrett’s first appearance) onwards—where the district attorney was clearly pursuing the revocation of the deferred judgment. (See CF, pp 159–60.) 9 Because there was an “[a]pplication for entry of judgment,” Jarrett’s argument fails. II. The fact that the complaint was filed by probation (and not the district attorney) does not mean that Jarrett can avoid his plea agreement. Next, the opening brief contends that Jarrett’s “case should be dismissed because the request [to revoke the deferred judgment] was made by probation”—and not the district attorney. (OB at 9–12.) Jarrett’s logic is that, although the statute explicitly provides that either entity can initiate the revocation, his plea agreement contemplated that the district attorney would file the complaint. (See id.) This logic doesn’t hold up to scrutiny. A. Standard of Review and Issue Preservation Jarrett’s argument involves the interpretation of the parties’ stipulation and the deferred judgment statute. Those issues are reviewed de novo. E.g., Finney v. People, 2014 CO 38, ¶ 12; Keller v. People, 29 P.3d 290, 297 (Colo. 2000). Jarrett presented this argument to the trial court. (R. Tr. 8/10/21, p 4:2–15; CF, pp 133–34.) B. Discussion The foundation of Jarrett’s argument is that the parties’ deferred judgment agreement “eliminated any possibility that probation” could ask for the deferred judgment to enter. (OB at 10.) That’s not true. As the opening brief acknowledges, the 10 deferred judgment statutes explicitly allows either the “the district attorney or a probation officer” to submit the request for revocation. See § 18-1.3-102(2). Jarrett argues that the parties’ written agreement amends this statutory option because it states that “[t]he District Attorney may make application for entry of judgment and imposition of sentence.” (CF, p 84 (emphasis added).) But the agreement’s use of the term “may” doesn’t foreclose the other option that the statute contemplates. See A.S. v. People, 2013 CO 63, ¶ 21 (recognizing that the term “may” is “generally indicative of a grant of discretion or choice among alternatives”); AA Wholesale Storage, LLC v. Swinyard, 2021 COA 46, ¶ 29 (same). Further, even if we accept Jarrett’s premise—i.e., that the agreement required the district attorney to be the one who applies for entry of the deferred judgment—that requirement was fulfilled. Yes, a probation officer filed the initial complaint to revoke. (CF, pp 111–12.) But, as the case’s history reveals, from that point forward the district attorney adopted and pursued that complaint—continually pushing for a revocation hearing, and ultimately convincing the court to revoke Jarrett’s deferred judgment. (CF, pp 159–63; see generally R. Tr. 8/10/21.) In other words, while the probation officer 11 certainly applied for the deferred judgment to enter, the district attorney did the same thing by pursuing that judgment.5 But even if Jarrett were correct that probation’s filing of the complaint somehow breached the written plea, that alleged breach wouldn’t allow him to dissolve the agreement: [N]ot every breach by a party releases the other party from its promises under the agreement. A party is released from its plea agreement obligations in situations where the other party materially and substantially breaches an obligation under the plea agreement. St. James v. People, 948 P.2d 1028, 1032 (Colo. 1997) (emphasis added); see also People v. Johnson, 999 P.2d 825, 829 (Colo. 2000) (“When a party has materially and substantially breached its own obligations under the plea agreement, this discharges the opposing party from its obligations.”); Rodriguez v. New Mexico, 12 F.3d 175, 175 (10th Cir. 1993) (recognizing that “only breaches of material promises will allow a court to conclude that a plea was involuntarily induced and thus constitutionally infirm”). Here, even if probation’s filing of the initial complaint was some sort of technical breach, it certainly wasn’t “material” or “substantial.” The opening brief doesn’t identify any prejudice because there was none: there is no material or substantive 5 As noted above, the deferred judgment statute doesn’t provide that the “[a]pplication for entry of judgment” needs to be in any particular format, nor does it state that the application has to be in writing. See § 18-1.3-102(2). 12 difference between (1) the district attorney filing an initial complaint and (2) probation filing an initial complaint, which is then adopted and prosecuted by the district attorney. Finally, there’s one more way to address this issue. Jarrett correctly recognizes that plea agreements are treated like contracts. (OB at 11 (citing Keller, 29 P.3d at 295).) But he forgets an important contractual concept—waiver: A party may waive a contract provision where the party is entitled to assert a particular right, knows the right exists, but intentionally abandons that right. People v. Madison, 2018 COA 62, ¶ 20, overruled on other grounds by People v. Weeks, 2021 CO 75. So let’s assume Jarrett was entitled to assert a “right” to have the district attorney file the complaint for revocation. He certainly knew the right existed. (It’s allegedly based on a provision in the agreement that he signed.) And he abandoned that right through inaction: probation filed its complaint November 2019, and although the district attorney was clearly prosecuting the revocation while Jarrett was participating, he didn’t raise this issue until July 2021—after his deferred judgment term had allegedly expired. In other words, he waited to claim a breach until the prosecution could no longer give him what he was allegedly due under the agreement (i.e., an “application” filed by the district attorney). This isn’t how contractual demands are supposed to work. See Madison, 2018 CO 62, ¶ 21 (“The purpose of the waiver doctrine is ‘to prevent the waiving party from lulling the other party into a belief that strict compliance with a contractual duty will not 13 be required and then either suing for noncompliance or demanding compliance for the purpose of avoiding the transaction.’” (quoting 13 Williston on Contracts § 39:15, Westlaw (4th ed.)). For each of these reasons, Jarrett’s claim that his deferred judgment should be “dismissed” fails. CONCLUSION Jarrett’s conviction should be affirmed. Date: December 15, 2021. Respectfully submitted, BETH MCCANN Denver District Attorney s/Jeff M. Van der Veer JEFF M. VAN DER VEER Deputy District Attorney Appellate Division 14 CERTIFICATE OF SERVICE I certify that on December 15, 2021, I electronically filed the Answer Brief through the Colorado Courts E-Filing system, which will send notification to all persons registered in this case. s/Jeff M. Van der Veer 15