In May of 2020, we published a post – Prison Followed By Probation – An Illegal Sentence (hyper link to the original post) – regarding the Colorado Supreme Court’s decision in Allman v. People, 451 P.3d 826 (Colo. 2019). Since that post, there have been significant developments regarding Allman issues throughout the state. As such, we wanted to provide both a recap and update from our perspective.
For decades courts throughout Colorado sentenced individuals to both prison and probation within the same case. These sentences were imposed pursuant to plea agreements and following convictions at trial. On September 23, 2019, the Colorado Supreme Court announced Allman v. People, holding that such hybrid sentences are illegal.
The immediate effect of Allman was two-fold. First, courts could no longer sentence individuals to both prison and probation within the same case.
Second, and perhaps more importantly, the Allman decision invalidated hundreds, if not thousands, of hybrid sentences that are still being served throughout the state of Colorado. Pursuant to Allman, anybody serving such a sentence is entitled to relief. Relief, according to the Supreme Court, requires a resentencing hearing. At resentencing, the court could impose a prison sentence or a probation sentence BUT NOT BOTH.
Over the last eighteen (18) months since Allman was decided, many people serving these illegal sentences have returned to Court. While the holding in Allman is clear, the response from prosecutors and judges dealing with these cases has been anything but. Some cases have resolved through negotiations. Others proceeded to hearings. At hearings, some courts have simply terminated probation and corrected the mittimus. Other courts have found that a request to correct the illegal sentence constituted a breach of the underlying plea agreement. In those cases, the convictions were vacated, and the matters were reset for trial.
In September of 2020, the Colorado Court of Appeals decided People v. Ehlebracht, 480 P.3d 727 (Colo. App. 2020). This case created a new wrinkle to the Allman analysis. Ehlebracht carves out a narrow exception to the holding in Allman. According to Ehlebracht, hybrid prison / probation sentences are NOT illegal as to individuals convicted of certain sex offenses who were sentenced under the Lifetime Supervision Act. There are a number of cases pending hearings on Allman challenges throughout the state that have now been temporarily sidelined because of the Ehlebracht decision. Our firm currently represents two such clients.
The Ehlebracht decision is undoubtedly a setback for some who otherwise were entitled to resentencing under Allman. That said, we hope and expect that Ehlebracht is only temporary. Currently, there are a number of matters that implicate Ehlebracht that are working their way up to the Supreme Court. Any of these cases give the Supreme Court the opportunity to overturn the Court of Appeals so that once again Allman applies to all individuals who are serving a hybrid sentence.
It should also be noted that Ehlebracht, as it currently stands, only applies to a small fraction of the illegal, hybrid sentences currently being served throughout the state.
Mulligan Breit McConnell, LLC and specifically, Marshall Breit, has been deeply invested in Allman issues since this the fall of 2019. We have successfully represented numerous individuals serving illegal sentences based on Allman challenges. Through both litigation and negotiations, Marshall has achieved tremendous outcomes for his clients resulting in early, immediate termination of probation, thousands of dollars saved in supervision fees, and in some cases, significantly expediting the client’s eligibility to de-register.
This is a new, constantly evolving, and nuanced area of criminal law. Mulligan Breit McConnell, LLC has the subject matter expertise and institutional knowledge – as trial and post-conviction attorneys- to successfully pursue Allman challenges. From our perspective every person serving a hybrid prison / probation sentence must raise an Allman challenge. While there is tremendous potential upside to pursuing these claims, doing so can also be done with minimal risk to the client.