(c) (I) Phase II, which may be administered during the last three months of the period of institutional confinement and during which time the department of corrections is authorized to transfer an offender to a twenty-four-hour custody residential program that serves youthful offenders.

(II) In connection with the component described in subparagraph (I) of this paragraph (c), the department of corrections is authorized to operate or to contract with a prerelease residential program for those sentenced as youthful offenders. The department of corrections or the contract provider shall provide for twenty-four-hour custody of offenders in phase II.

(d) (I) Phase III, which is to be administered for the period of community supervision that remains after the completion of phase II and during which the offender is monitored during reintegration into society.

(II) After the department determines appropriate phase III placement, the department shall notify, no later than thirty days prior to placement, the local law enforcement agency for the jurisdiction in which the offender shall be placed for phase III. The notice shall include the offender's name, the crime committed by the offender, the disposition of the offender's case, and the basis for the placement. The local law enforcement agency may appeal the placement, if the placement is in a jurisdiction other than the jurisdiction where the offender was convicted, it may appeal to the executive director of the department at least fifteen days prior to the placement. Except that the local law enforcement agency may not appeal, if the placement is in the jurisdiction where the offender was residing at the time the offense was committed. If there is an appeal, after considering the department's basis for placement and the local law enforcement's basis for appeal, the executive director shall make the final determination of the placement.

(3.4) In addition to the powers granted to the department of corrections in subsection (3.3) of this section, the department of corrections may:

(a) Transfer a youthful offender to an appropriate facility for the purpose of accomplishing the offender's redirection goals, as long as the transfer does not jeopardize the safety and welfare of the offender;

(b) Operate an emancipation program and provide other support or monitoring services and residential placement for offenders participating in phase II and phase III under the youthful offender system for whom family reintegration poses difficulties. The department of corrections shall provide reintegration support services to an offender placed in an emancipation house.

(c) Contract with any public or private entity, including but not limited to a school district, for provision or certification of educational services. Offenders receiving educational services or diplomas from a school district under an agreement entered into pursuant to this paragraph (c) shall not be included in computing the school district's student performance on statewide assessments pursuant to section 22-7-409, C.R.S., or the school district's levels of attainment of the performance indicators pursuant to article 11 of title 22, C.R.S.

(3.5) The executive director of the department of corrections shall have final approval on the hiring and transferring of staff for the youthful offender system. In staffing the youthful offender system, the executive director shall select persons who are trained in the treatment of youthful offenders or will be trained in the treatment of youthful offenders prior to working with such population, are trained to act as role models and mentors pursuant to paragraph (c) of subsection (3) of this section, and are best equipped to enable the youthful offender system to meet the principles specified in subsection (3) of this section. The executive director shall make a recommendation to the department of personnel regarding the classification of positions with the youthful offender system, taking into account the level of education and training required for such positions.

(4) The youthful offender system shall provide for community supervision which shall consist of highly structured surveillance and monitoring and educational and treatment programs. Community supervision shall be administered by the department of corrections, and revocation of the inmate's supervision status shall be subject to the provisions of subsections (2) and (5) of this section.

(4.3) The youthful offender system shall provide sex offender treatment services for an offender who is sentenced to the youthful offender system and who has a history of committing a sex offense as defined in section 16-11.7-102 (3), C.R.S., or who has a history of committing any other offense, the underlying factual basis of which includes a sex offense. Prior to July 1, 2002, the sex offender treatment services provided pursuant to this subsection (4.3) shall comply with any existing national standards for juvenile sex offender treatment. On and after July 1, 2002, the sex offender treatment services provided pursuant to this subsection (4.3) shall comply with the sex offender treatment standards adopted by the sex offender management board pursuant to section 16-11.7-103, C.R.S.

(4.5) The consent of the parent, parents, or legal guardian of an offender under the age of eighteen years who has been sentenced to the youthful offender system pursuant to this section shall not be necessary in order to authorize hospital, medical, mental health, dental, emergency health, or emergency surgical care. In addition, neither the department nor any hospital, physician, surgeon, mental health care provider, dentist, trained emergency health care provider, or agent or employee thereof who, in good faith, relies on such a minor offender's consent shall be liable for civil damages for failure to secure the consent of such an offender's parent, parents, or legal guardian prior to rendering such care. However, the parent, parents, or legal guardian of a minor offender described in this subsection (4.5) may be liable, as provided by law, to pay the charges for the care provided the minor on said minor's consent.

(5) (a) Except as otherwise provided by paragraph (b) of this subsection (5), the department of corrections shall implement a procedure for the transfer of an offender to another facility when an offender in the system poses a danger to himself or herself or others. The executive director of the department of corrections shall review any transfer determination by the department prior to the actual transfer of an inmate, including a transfer back to the district court for revocation of the sentence to the youthful offender system. A transfer pursuant to this paragraph (a) shall be limited to a period not to exceed sixty days, at which time the offender shall be returned to the youthful offender facility to complete his or her sentence or returned to the district court for revocation of the sentence to the youthful offender system. In no case shall an offender initially sentenced to the youthful offender system be held in isolation or segregation or in an adult facility for longer than sixty consecutive days without action by the sentencing court.

(b) (I) An offender who is thought to have a mental illness or developmental disability by a mental health clinician, as defined by regulation of the department of corrections, may be transferred to another facility for a period not to exceed sixty days for diagnostic validation of said illness or disability. At the conclusion of the sixty-day period, the psychiatrists or other appropriate professionals conducting the diagnosis shall forward to the executive director of the department of corrections their findings, which at a minimum shall include a statement of whether the offender has the ability to withstand the rigors of the youthful offender system. If the diagnosis determines that the offender is incapable of completing his or her sentence to the youthful offender system due to a mental illness or developmental disability, the executive director shall forward such determination to the sentencing court. Based on the determination, the sentencing court shall review the offender's sentence to the youthful offender system and may:

(A) Impose the offender's original sentence to the department of corrections; or

(B) Reconsider and reduce the offender's sentence to the department of corrections in consideration of the offender's mental illness or developmental disability.

(II) Any offender who is resentenced pursuant to this paragraph (b) shall continue to be treated as an adult for purposes of sentencing and shall not be sentenced pursuant to article 2 of title 19, C.R.S.

(III) In no event shall the sentencing court, after reviewing the offender's sentence to the youthful offender system pursuant to this paragraph (b), increase the offender's sentence to the department of corrections due to the offender's diagnosis of mental illness or determination of developmental disability.

(IV) Any offender who is diagnosed as having mental illness or determined to have a developmental disability and is therefore incapable of completing his or her sentence to the youthful offender system may be housed in any department of corrections facility deemed appropriate by the executive director or transferred in accordance with procedures set forth in section 17-23-101, C.R.S., pending action by the sentencing court with regard to the offender's sentence.

(c) The department of corrections shall implement a procedure for returning offenders who cannot successfully complete the sentence to the youthful offender system, or who fail to comply with the terms or conditions of the youthful offender system, to the district court. An offender returned to the district court pursuant to paragraph (a) of this subsection (5) or because he or she cannot successfully complete the sentence to the youthful offender system for reasons other than mental illness or a developmental disability, or because he or she fails to comply with the terms or conditions of the youthful offender system, shall receive imposition of the original sentence to the department of corrections. After the executive director of the department upholds the department's decision, the offender may be held in any correctional facility deemed appropriate by the executive director; except that an offender who cannot successfully complete the sentence to the youthful offender system for reasons other than mental illness or a developmental disability, or because he or she fails to comply with the terms or conditions of the youthful offender system, shall be transferred, within thirty days after the executive director upholds the department's decision, to a county jail for holding prior to resentencing. The department shall notify the district attorney of record, and the district attorney of record shall be responsible for seeking the revocation or review of the offender's sentence and the imposition of the original sentence or modification of the original sentence pursuant to sub-subparagraph (B) of subparagraph (I) of paragraph (b) of this subsection (5). The district court shall review the offender's sentence within one hundred twenty days after notification to the district attorney of record by the department of corrections that the offender is not able to complete the sentence to the youthful offender system or fails to comply with the terms or conditions of the youthful offender system.

(6) The department of corrections shall establish and enforce standards for the youthful offender system. Offenders in the youthful offender system, including those under community supervision, shall be considered inmates for the purposes of section 17-1-111, C.R.S.

(7) The number of offenders in any program element under the youthful offender system shall be determined by the department within available appropriations.

(8) The department of corrections may and is encouraged to contract with any private or public entity for the provision of services and facilities under the youthful offender system.

(9) On or before November 1, 1993, the department, in conjunction with the division of criminal justice, shall develop and the department shall implement a process for monitoring and evaluating the youthful offender system. In implementing such system, the department may contract with a private agency for assistance.

(10) (a) (Deleted by amendment, L. 2002, p. 881, § 19, effective August 7, 2002.)

(b) The division of criminal justice shall independently monitor and evaluate, or contract with a public or private entity to independently monitor and evaluate, the youthful offender system. On or before November 1, 2002, and on or before November 1 every two years thereafter, the division of criminal justice shall report its findings, or the findings of the contract entity, to the judiciary committees of the senate and the house of representatives. The department of corrections shall cooperate in providing the necessary data to the division of criminal justice or an entity designated by the division of criminal justice to complete the evaluation required in this section.

(11) Any district attorney in the state shall maintain records regarding juveniles who are sentenced to the youthful offender system and such records shall indicate which juveniles have been filed on as adults or are sentenced to the system and the offenses committed by such juveniles.

(11.5) (a) (I) An offender who is sentenced to the youthful offender system shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof.

(II) Collection of the biological substance sample shall occur as soon as possible after being sentenced to the youthful offender system, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request.

(b) The department of corrections or its designee or contractor may use reasonable force to obtain biological substance samples in accordance with paragraph (a) of this subsection (11.5).

(c) Any moneys received from offenders pursuant to paragraph (a) of this subsection (11.5) shall be deposited in the offender identification fund created in section 24-33.5-415.6, C.R.S.

(d) The Colorado bureau of investigation is directed to conduct the chemical testing of the biological substance samples obtained pursuant to this subsection (11.5).

(12) The general assembly recognizes that the increased number of violent crimes committed by juveniles and young adults is a problem faced by all the states of this nation. By creating the youthful offender system, Colorado stands at the forefront of the states in creating a new approach to addressing this problem. The general assembly also declares that the cost of implementing and operating the youthful offender system will create a burden on the state's limited resources. Accordingly, the general assembly directs the department of corrections to seek out and accept available federal, state, and local public funds, including project demonstration funds, and private moneys and private systems for the purpose of conducting the youthful offender system.

(13) Repealed.

Source: L. 2002: Entire article added with relocations, p. 1406, § 2, effective October 1. L. 2003: (5)(c) amended, p. 983, § 19, effective April 17. L. 2004: (1)(c) amended and (13) repealed, pp. 243, 244, §§ 2, 3, effective April 5; (3.4)(c) amended, p. 1662, § 14, effective June 3. L. 2006: IP(5)(b)(I) amended, p. 1399, § 49, effective August 7; (11.5)(a)(I) amended, p. 1690, § 10, effective July 1, 2007. L. 2008: (4.3) and (4.5) amended, p. 39, § 1, effective March 13; (1)(b) and (2)(a)(I) amended, p. 1507, § 3, effective May 28. L. 2009: (3.4)(c) amended, (SB 09-163), ch. 293, p. 1546, § 55, effective May 21; (1)(b), (1)(c), (1)(d), (2)(a)(I), (2)(a)(II), (2)(a)(III), (2)(a.5), (2)(b), (3.3), (3.4)(a), (3.4)(b), (3.5), IP (5)(b)(I), (5)(c), (11.5)(a)(I), (11.5)(c), and (12) amended, (HB 09-1122), ch. 77, p. 280, § 5, effective October 1.

Editor's note: (1) This section is similar to former § 16-11-311 as it existed prior to 2002.

(2) This section was amended in 2002 prior to its relocation on October 1, 2002. For that history, see the source note to § 16-11-311.

(3) Section 6 of chapter 77, Session Laws of Colorado 2009, provides that the act amending subsections (1)(b), (1)(c), (1)(d), (2)(a)(I), (2)(a)(II), (2)(a)(III), (2)(a.5), (2)(b), (3.3), (3.4)(a), (3.4)(b), (3.5), the introductory portion to (5)(b)(I), and subsections (5)(c), (11.5)(a)(I), (11.5)(c), and (12) applies to offenses committed on or after October 1, 2009. The act was passed without a safety clause and the act, or portions thereof, may not take effect if the people exercise their right to petition under article V, section 1 (3) of the state constitution. For further explanation concerning the effective date, see page ix of this volume.

Annotator's note. Since § 18-1.3-407 is similar to § 16-11-311 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.

Although this section no longer specifies the procedural framework governing revocation of a youth offender sentence, minimum due process protections are still required. Due process requires only: (1) Written notice of the claimed violations; (2) disclosure to defendant of the evidence against him or her; (3) a fair opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adversarial witnesses, unless there is good cause to deny such a right; (5) a neutral and detached hearing officer or judge; and (6) a written statement by the fact finder as to the evidence relied on and reasons for the revocation. People v. McCoy, 939 P.2d 537 (Colo. App. 1997).

Due process not denied because the grounds for revocation were established by hearsay evidence. People v. McCoy, 939 P.2d 537 (Colo. App. 1997); People v. Bostelman, 141 P.3d 891 (Colo. App. 2005), rev'd on other grounds, 162 P.3d 686 (Colo. 2007).

Plain language of section simply makes clear that youthful offender system facilities are to be available for youthful offenders of both genders, and toward that end, it mandates separate housing for male and female offenders, but it does not create an enforceable due process right to have the trial court consider youthful offender system sentencing. People v. Espinoza, 990 P.2d 1117 (Colo. App. 1999).

Trial courts are vested with the discretion to identify the youthful offenders who should be sentenced to the youthful offender system, and a trial court sentencing a juvenile on a direct-filed charge of a violent crime also retains discretion to impose a sentence to the department of corrections. People v. Espinoza, 990 P.2d 1117 (Colo. App. 1999).

Court's comment to defendant at sentencing did not constitute a blanket policy or an abuse of discretion but was an explanation of the conclusion that despite defendant's young age, in light of the viciousness of his crimes, he was not an appropriate candidate for the youthful offender system. People v. Espinoza, 990 P.2d 1117 (Colo. App. 1999).

Revocation of a youth offender sentence requires the imposition of the original sentence, and a trial court is without authority to modify the original sentence. People v. McCoy, 939 P.2d 537 (Colo. App. 1997).

The filing of a complaint or other written motion is not the sole procedure for initiating revocation of a youth offender sentence. Although defendant's administrative hearing was not held and the motion to revoke was not filed until after the expected completion date of the youth offender sentence, defendant's arrest and custodial status tolled the completion date pending resolution of the pending charges. As a result, the trial court retained jurisdiction. People v. Efferson, 122 P.3d 1038 (Colo. App. 2005).

The trial court erred in determining that it lacked jurisdiction to revoke defendant's youthful offender system sentence when defendant did not successfully complete such sentence but the department of corrections mistakenly issued an unconditional discharge of defendant. People v. Miller, 25 P.3d 1230 (Colo. 2000); People v. Valdez, 68 P.3d 484 (Colo. App. 2002).