For the second time in as many months, another convicted resident who was being held in community corrections escaped a felony charge for not returning to authorities when required.
Citing a precedent set in a Mesa County case last month, a three-judge panel of the Colorado Court of Appeals ruled that District Judge Richard Gurley was correct when he dismissed a charge of felony escape for Austin Urquhart, referring the matter to county court on a lesser misdemeanor count of unauthorized absence. Gurley did that because of a new law approved by the Colorado Legislature earlier this year designed to free up jail space for nonviolent offenders.
The judge cited another case out of Mesa County that the Court of Appeals decided in November. In that case, a three-judge panel of the appeals court ruled that defendant Jesse Gregory cannot be charged with felony escape for removing an electronic monitoring device without authorization, saying the state’s new Prison Population Reduction and Management Act bars the use of felony escape under certain nonviolent circumstances.
Prosecutors tried to argue that because Urquhart’s case occurred before the act was enacted, Gurley shouldn’t have dismissed the felony escape charge. But the judge made that ruling because the case against Urquhart was still pending after Gov. Jared Polis signed the act into law in March.
“Governor Polis signed the Prison Reduction Act into law after Gregory allegedly removed his electronic monitoring device but while Gregory’s case was still pending,” Judge David Yun wrote in Thursday’s ruling in the Urquhart case, which was joined by Judges David Furman and Elizabeth Harris. “Under (the act), a person ‘placed in an intensive supervision program … is not in custody or confinement for purposes of’ the escape statute,” Yun wrote in a footnote to the ruling.
“Thus, such a person is criminally liable for unauthorized absence under (the act) rather than escape.”
The appeals court noted that the maximum sentence for class 3 felony escape is 12 years in state prison; the maximum sentence for unauthorized absence is six months in county jail.
Mesa County District Attorney Dan Rubinstein said his office chose not to appeal the Gregory ruling because there already are other cases pending before the Colorado Supreme Court that could decide the issue, particularly when it comes to applying the new law retroactively.
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December 21, 2020 at 02:15PM
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