Because probation is an opportunity for a defendant to avoid serving the harsher sentence of incarceration, a defendant must apply for it, and the receipt of probation is a privilege, not a right. People v. Smith , 2014 CO 10, ¶ 8, 318 P.3d 472, 475 (citing Holdren v. People, 168 Colo. 474, 452 P.2d 28, 30 (1969) ). A trial court may not impose a sentence of probation without the defendant's consent, and the defendant must "choose to accept the court's terms" and conditions of probation.
Because probation is an opportunity for a defendant to avoid serving the harsher sentence of incarceration, a defendant must apply for it, and the receipt of probation is a privilege, not a right. People v. Smith , 2014 CO 10, ¶ 8, 318 P.3d 472, 475 (citing Holdren v. People, 168 Colo. 474, 452 P.2d 28, 30 (1969) ). A trial court may not impose a sentence of probation without the defendant's consent, and the defendant must "choose to accept the court's terms" and conditions of probation.
Parties in probation revocation proceedings present the probationer's activities to the court consistent with relaxed rules of evidence. Holdren v. People, 168 Colo. 474, 479, 452 P.2d 28, 30 (1969); Gehl v. People, 161 Colo. 535, 539, 423 P.2d 332, 334 (1967). The court determines whether a violation occurred and then exercises its discretion and expeditiously determines whether continuing probation is effective in rehabilitating the probationer or whether the probationer should be resentenced to confinement. See Ressin, 620 P.2d at 719; Maine v. Reed, 686 A.2d 1067, 1069 (Me. 1996). In making this determination, the sentencing court balances the probationer's interest in demonstrating a responsible lifestyle with society's interest in seeking protection against the possibility of recidivism.
Probation is a privilege, not a right. Holdren v. People, 168 Colo. 474, 478, 452 P.2d 28, 30 (1969). If a probationer violates any condition of an order of probation, the order may be revoked. Id. See also §§ 16-11-205 and — 206, 8A C.R.S. (1986 1993 Supp.). The issues for determination in a probation revocation proceeding are whether the defendant has violated a valid condition of his or her probation and, if so, what action is appropriate in light of the violation.
Heath v. State, supra; Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975). Putting the two principles together, it follows that Dearing was correctly required to admit that he had pled guilty to, and thus that he had committed an offense which occurred during his probation. Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969) squarely so holds. In that case, the defendant had pled nolo to a charge of taking indecent liberties with a child, which took place while he was on probation.
The refusal to discuss compliance or noncompliance with such a term was a factor a judge could properly have considered in determining whether a probationer violated probation. In Holdren v. People, 168 Colo. 474, 452 P.2d 28 (Sup.Ct. 1969), the judge at a probation revocation proceeding asked the probationer if he had been drinking, to which the probationer answered in the affirmative. On appeal the probationer claimed the question violated his privilege against self-incrimination.
Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Holdren v. People, 452 P.2d 28 (Colo. 1969); Jesseph v. People, 164 Colo. 312, 435 P.2d 224 (Colo. 1967).
Liberally construed and taken as true, Plaintiff's allegations do not state a violation of his substantive due process rights with respect to the Court's action in revoking his probation for failing to successfully complete a sex offender treatment program. Under Colorado law, probation is a privilege, not a right. Holdren v. People, 168 Colo. 474, 478, 452 P.2d 28, 30 (1969). If a probationer violates any condition of an order of probation, the order may be revoked.
Moreover, it has been held that the danger of a revocation of probation does not constitute "incrimination" within the meaning of the Fifth Amendment. See Holdren v. People, 168 Colo. 474, 452 P.2d 28 (1969). IV.
Byrd v. People, 58 P.3d 50, 56 (Colo.2002). For example, a probationer has no right to a jury at a revocation proceeding, id. (citing § 16–11–206(1), C.R.S. (2002)); he cannot plead “not guilty by reason of insanity,” id. (citing People ex rel. Gallagher v. Dist. Court, 196 Colo. 499, 502, 591 P.2d 1015, 1016 (1978)); courts presiding over revocation hearings are not required to give Curtis advisements on the right to testify, id. (citing Allen, 973 P.2d at 622); the rules of evidence are relaxed, id. at 55 (citing Holdren v. People, 168 Colo. 474, 479, 452 P.2d 28, 30 (1969)); the exclusionary rule is inapplicable absent government activity that constitutes bad faith or egregious misconduct, id. at 56 (citing People v. Ressin, 620 P.2d 717, 720–21 (Colo.1980)); statements obtained in violation of Miranda may be nevertheless admissible, id. (citing State v. Mason, 56 Or.App. 164, 641 P.2d 1139, 1141 (1982)); and a probationer's invocation of the Fifth Amendment to decline to answer specific questions at a revocation proceeding may nevertheless be used against him, id. (citing Asherman v. Meachum, 957 F.2d 978, 981–83 (2d Cir.1992)).