Understanding the Colorado Crime of Escape 18-8-208 and Attempted Escape 18-8-208.1

One of the most complicated, and therefore frightening, situations confronting a person is incarcerated at a community corrections program or work release sentence is when that person having “walked away” from a sentence he or she is serving, is charged with the crime of “escape” from custody.

A recent Denver Post Article addresses the complexity of Colorado’s sentencing laws. Among the most complex of these laws are the laws that address sentencing for the crimes of Escape and Attempted Escape.

The key punishment issue arising out of a conviction for an escape based crime is whether the sentence imposed will run consecutively (following the sentence being served) or concurrently (running at the same time as the underlying sentence).

The general rule is this, absent a plea agreement that negotiates the Defendant out of the majority of escape charges the sentence for an escape conviction must run consecutively to or tacked onto the original sentence being served by the Defendant. This is a severe form of punishment.

Understanding the risks for persons caught up in the Colorado criminal justice system means knowing how much “time” they are facing if there is a conviction.

The crime of escape or attempted escape is based on the “fundamental purpose” of preventing the “evasion of the due course of justice.” Charging the crimes of escape are intended to “deter and punish” the Defendant if that Defendant flees while being held for another crime.

The crime of escape is a crime of general, not specific, intent.

All crimes are made up of “elements.” Escape is no excption it’s elements are:

A voluntary act (the physical act involved such as walking away from community corrections); which constitutes a departure from one of the forms of lawful custody or confinement specified in the escape statute charged. By a prisoner; and committed “knowingly” that is with an awareness on the part of the prisoner that his or her conduct is of the nature proscribed.

Here, for the crime of escape, the required mental state of the crime is the mental state of “knowingly” and that important element applies only to a Defendant’s conduct of escaping from custody or confinement.

“Walking away” or leaving a community corrections facility without authorization constitutes escape under § 18-8-208 because the prisoner is still considered in custody and subject to the authority of the Court. This law applies to all forms of absconding from community corrections, residential community corrections and non-residential community corrections.

In 2010 there was an important, but subtle, change to the Colorado escape laws.

The new law 18-8-208.1 Attempted Escape permits a sentence to that charge to be served concurrently with the sentence being served at the time of the escape.

Colorado law no longer requires consecutive sentences in ALL cases of escape. Whether the sentence for an attempted escape has to be served consecutively or concurrently is now, under certain very narrow circumstances, left to a Judge’s sentencing discretion,… to repeat under very narrow fact patterns.

Consider the inmate who walks away from a direct sentence to community corrections a “half-way” house. The question is this… must the Court impose a consecutive sentence to the sentence he is serving if that inmate accepts a plea agreement to attempted escape?

Under a recent decision of the Colorado Court of Appeals as of November of 2015 the answer is no.

If the Judge is aware that a Defendant was serving a sentence at the time he escaped, that Judge has the discretion to sentence the Defendant to a concurrent sentence and not to a mandatory consecutive sentence as a matter of law.

The Colorado Appellate Courts have said:

The consecutive sentencing provision in section 18-8-208.1(2) is triggered only after a subsequent conviction for a felony charge pending at the time of the attempted escape.

The Defendant in this new case (People v. Evans 2015) walked away from a sentence he was serving at community corrections and was sentenced under 18-8-208.1 Attempted Escape. Therefore the consecutive sentencing mandate found in 18-8-209(1) did not apply as that section only applies to offenses under sections 18-8-201 to 18-8-208 or section 18-8-211 and does not apply to an offense committed in violation of section 18-8-208.1(2).

Here is the relevant law in question 18-8-208.1 Attempt to Escape.

1. Except as otherwise provided in subsection (1.5) of this section, if a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he or she commits a class 4 felony. The sentence imposed pursuant to this subsection (1) shall run consecutively with any sentences being served by the offender.
   1.5 - If a person, while in custody or confinement following conviction of a felony and either serving a direct sentence to a community corrections program pursuant to section 18-1.3-301 (HMS half way house Community Corrections Sentence), or having been placed in an intensive supervision parole program pursuant to section 17-27.5-101, C.R.S., knowingly attempts to escape from his or her custody or confinement, he or she commits a class 5 felony. The sentence imposed pursuant to this subsection (1.5) may run concurrently or consecutively with any sentence being served by the offender.
2. If a person, while in custody or confinement and held for or charged with but not convicted of a felony, knowingly attempts to escape from said custody or confinement, he commits a class 5 felony. If the person is convicted of the felony or other crime for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (2) shall run consecutively with any sentences being served by the offender.
3. If a person, while in custody or confinement following conviction of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. The sentence imposed pursuant to this subsection (3) shall run consecutively with any sentences being served by the offender.
4. If a person, while in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a petty offense and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. If the person is convicted of the misdemeanor or petty offense for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (4) shall run consecutively with any sentences being served by the offender.
5. The sentences imposed by subsections (1), (1.5), and (2) of this section and the minimum sentences imposed by subsections (3) and (4) of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407.
6. A person who participates in a work release program, a home detention program, as defined in section 18-1.3-106 (1.1), a furlough, an intensive supervision program, or any other similar authorized supervised or unsupervised absence from a detention facility, as defined in section 18-8-203.
7. Any person held in a staff secure facility, as defined in section 19-1-103 (101.5), C.R.S., shall be deemed to be in custody or confinement for purposes of this section.

But then you must look at Section 18-8-209(1), C.R.S. 2015, which directly addresses concurrent and consecutive sentences.

18-8-209 (1) provides:

(1) Except as otherwise provided in subsection (2) of this section, any sentence imposed following conviction of an offense under sections 18-8-201 to 18-8-208 or section 18-8-211 shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by those sections.

What follows are the Sections that require consecutive sentencing as referenced in the statute:

• § 18-8-201. Aiding escape
• § 18-8-201.1. Aiding escape from an institution for the care and treatment of persons with mental illness
• § 18-8-202. Inducing prisoners to absent selves
• § 18-8-203. Introducing contraband in the first degree
• § 18-8-204. Introducing contraband in the second degree
• § 18-8-204.1 . Possession of contraband in the first degree
• § 18-8-204.2. Possession of contraband in the second degree
• § 18-8-205. Aiding escape from civil process
• § 18-8-206. Assault during escape
• § 18-8-207. Holding hostages
• § 18-8-208. Escapes
• § 18-8-209. Concurrent and consecutive sentences
• § 18-8-211. Riots in detention facilities

If there is a conviction for the crime of Attempt to Escape (for example walking away from a community corrections sentence,- that is the Defendant is already serving a sentence to community corrections) he is NOT being held for a pending felony charge, therefore the second sentence of section 18-8-208.1(2) does not apply.

Under these circumstances the Judge is NOT required to impose a consecutive sentence unless it is one of the crimes listed above (18-8-201 to 18-8-208 or section 18-8-211.)

Since Section 18-8-208.1 is NOT included within the stated range, a consecutive sentence is not required.

1. A person commits a class 2 felony if, while being in custody or confinement following conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.
2. A person commits a class 3 felony if, while being in custody or confinement following conviction of a felony other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.
3. A person commits a class 4 felony if, while being in custody or confinement and held for or charged with but not convicted of a felony, he knowingly escapes from said custody or confinement.
4. A person commits a class 3 misdemeanor if, while being in custody or confinement following conviction of a misdemeanor or petty offense or a violation of a municipal ordinance, he or she knowingly escapes from said place of custody or confinement.
   
   4.5 - A person commits a class 3 misdemeanor if he or she has been committed to the division of youth corrections in the department of human services for a delinquent act, is over eighteen years of age, and escapes from a staff secure facility as defined in section 19-1- 103 (101.5), C.R.S., other than a state-operated locked facility.
5. A person commits a class 1 petty offense if, while being in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense or violation of a municipal ordinance, he or she knowingly escapes from said custody or confinement.
6. A person who knowingly escapes confinement while being confined pursuant to a commitment under article 8 of title 16, C.R.S.:
   1. Commits a class 1 misdemeanor if the person had been charged with a misdemeanor at the proceeding in which the person was committed;
   2. Commits a class 1 misdemeanor if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person does not travel from the state of Colorado;
   3. Commits a class 5 felony if the person had been charged with a felony at the proceeding in which the person was committed, if in the escape the person travels outside of the state of Colorado.
7. In a prosecution for an offense under subsection (6) of this section, it shall be a defense for any person who, while being confined pursuant to a commitment under article 8 of title 16, C.R.S., escapes and who voluntarily returns to the place of confinement.
8. In a prosecution for an offense under subsection (6) of this section, it shall be a defense for any person who, while being confined pursuant to a commitment under article 8 of title 16, C.R.S., escapes and who voluntarily returns to the place of confinement.
9. A person commits a class 5 felony if he knowingly escapes while in custody or confinement pursuant to the provisions of article 19 of title 16, C.R.S.
10. The minimum sentences provided by sections 18-1.3-401, 18-1.3-501, and 18-1.3-503, respectively, for violation of the provisions of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407. The provisions of this subsection (9) do not apply to subsection (4.5) of this section.
11. A person who is placed in a community corrections program for purposes of obtaining residential treatment as a condition of probation pursuant to section 18-1.3-204 (2.2) or 18-1.3-301(4) (b) is not in custody or confinement for purposes of this section.

1. Except as otherwise provided in subsection (2) of this section, any sentence imposed following conviction of an offense under sections 18-8-201 to 18-8-208 or section 18-8-211 shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by those sections.
2. If an offender was serving a direct sentence to a community corrections program pursuant to section 18-1.3-301 or was in an intensive supervision parole program pursuant to section 17-27.5-101, C.R.S., at the time he or she committed an offense specified in section 18-8-201 or 18-8-208, the sentence imposed following a conviction of said offense may run concurrently with any sentence the offender was serving at the time he or she committed said offense.

1. 1. If an offender fails to remain within the extended limits of such offender’s confinement or placement or fails to return within the time prescribed to any community corrections program to which such offender was assigned or transferred or if any offender who participates in a program established under the provisions of this article leaves such offender’s place of employment or, having been ordered by the executive director of the department of corrections or the chief probation officer of the judicial district to return to the community corrections program, neglects or fails to do so, such offender shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S., and all reductions in sentence authorized by part 2 of article 22.5 of this title shall be forfeited.
   2. 1. In addition to the forfeiture of all reductions in sentence authorized by part 2 of article 22.5 of this title, any person convicted of escape from custody from a community correction program in violation of paragraph (a) of this subsection (1) shall also forfeit all reductions in sentence authorized by section 18-1.3-301(1) (i), C.R.S. (II) Repealed.
2. The division of criminal justice is hereby authorized to provide notice to appropriate law enforcement agencies and the sentencing court, if applicable, that there is probable cause to believe that an offender has escaped from custody.

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About The Author: H. Michael Steinberg Email the Author at [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer and we encourage you to “vet” our firm. Over the last 30 plus years by focusing ONLY on Colorado criminal law H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way Understanding The Colorado Crime Of Escape 18-8-208 and Attempted Escape 18-8-208.