Determinate Sentencing to the Department of Youth Services
Sentences to DYSAny sentence to DYS must be determinate and a mandatory minimum sentence to DYS commitment is authorized only if the juvenile qualifies as a special offender under section 19-2-908. People in the Interest of J.C. 2018 COA 22.
DYS, however, has the authority to release the juvenile on parole at any time prior to completion of the determinate sentence. **19-1-103(40.5), C.R.S 2017.
The juvenile will be on parole for six months. Upon completion of the period of parole supervision, the juvenile shall be deemed to have discharged the juvenile's sentence to commitment in the same manner as if the sentence were discharged pursuant to law. * 19-2-1002, C.R.S. 2017.
For a juvenile committed to the department of human services (due to an adjudication for an offense specified in section 19-2-1002(5)(b)), the hearing panel may extend the period of parole supervision up to an additional fifteen months if the hearing panel makes findings of special circumstances that warrant an extended period.
Standard commitment pursuant to section 19-2-921(4)Standard commitment is for a determinate period of up to two years, although the department may petition the court to extend the commitment for an additional period not to exceed two years.
The opinion in J.C. highlights that the juvenile court only has the authority to determine the maximum time the juvenile should stay in custody while DYS has discretion and complete authority to release the juvenile at any time after the period of commitment has started.
At the disposition hearing, juvenile counsel should try to reduce that maximum number.
This can be done, for example, by contacting DYS and treatment providers and providing the court with information on how much time the juvenile would likely need to complete treatment. (For instance, counsel could argue that a 16-month sentence is more than adequate to provide the juvenile with sufficient time to get through treatment.)
DYS will advise that they need a significant amount of time on the sentence to incentivize the juvenile to get done with treatment and out of DYS. Accordingly, DYS discourages short sentences to DYS (e.g. 90 days). If the court is considering a short sentence, counsel should advise the court that DYS would recommend a probationary or other non-commitment sentence, rather than a short commitment.
Special offenders commitment pursuant to section 19-2-516Commitment for mandatory offender, repeat juvenile, and violent offenders is out-of-home placement or commitment for not less than one year, but not more than two, unless the court finds an alternative sentence would be more appropriate. ** 19-2-908(1)(a); 19-2-921(4), C.R.S. 2017.
The court is required to provide a maximum determinate sentence of at least 12 months and up to two years. Juvenile defense counsel should understand that the statutory mandatory commitment relates only to the mandatory maximum sentence allowed by the court.
DYS has confirmed this interpretation. If you have a client that has finished all his requirements at DYS and is being held at DYS only because of the mandatory commitment, this can be challenged through Crim. P. 35(a).
Aggravated offenders* commitment pursuant to section 19-2-601(5)The court may commit the juvenile for a determinate period of 5 years for an offense other than a class 1 or 2 felony; for a class 2 felony, the court shall commit the juvenile for a determinate period of between 3 and 5 years; for a class 1 felony, the court shall commit the juvenile for a determinate period of between 3 and 7 years.
The court is required to provide a maximum determinate sentence for the aggravated offender.
"After a juvenile who is sentenced pursuant to ..... this section has been in the custody of the department of human services for three years or more, the department may petition the court for an order authorizing the department to place the juvenile on juvenile parole upon approval by the juvenile parole board...." * 19-2-601(6)(a), C.R.S. 2017.
Consecutive sentencesA juvenile adjudicated for offenses defined in sections 18-8-201 to 18-8-208, 18-208.1, or 18-8-211, may serve a sentence consecutive to any sentence the juvenile was serving at the time of the prohibited conduct. These offenses include escape, aiding escape, introducing contraband in the first or second degree, possession of contraband in the first or second degree, assault during escape, holding hostages, attempt to escape, and riots in detention facilities.
However, consecutive sentences do not affect DYS ability to release early on parole. If you have a client who has finished his requirements at DYS and is being held at DYS only because of consecutive sentences, this can be challenged through Crim. P. 35(a).
Juveniles serving indeterminate sentences or non-special/aggravated mandatory minimumsAny former or current juvenile client that is serving an indeterminate sentence, i.e., a 0 to 2-years sentence, needs to be advised that their sentence is illegal and that they can request a new sentence by filing a Crim. P. 35(a). While theoretically speaking a 0 to 2-years sentence has the same effect as a determinate 2-year sentence, the illegality of their sentence provides the juvenile with an opportunity to receive a lower sentence by the juvenile court. It also restarts the deadline for postconviction relief pursuant to Crim. P 35(c) (although there may be a laches issue).
The same is true for aggravated offenders serving a 3 to 5-year sentence, special offenders serving a 1 to 2-year sentence, and standard offenders serving a mandatory minimum sentence.