Peo v. Olivas

23CA1552 Peo v Olivas 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1552
El Paso County District Court No. 20CR1931
Honorable Lin Billings Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Antonio Lee Olivas,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE TOW
Welling and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 19, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Antonio Lee Olivas, appeals the district court’s

order revoking his sentence to the Youthful Offender System (YOS)

and imposing his previously suspended sentence to the custody of

the Department of Corrections (DOC). We affirm.

I. Background

¶2 When he was sixteen years old, Olivas shot and killed

someone during a robbery. The prosecution charged him as an

adult with first degree murder. Olivas pleaded guilty to second

degree murder with a stipulated sentence of thirty years in the

custody of the DOC, which sentence would be suspended pursuant

to the YOS statute, § 18-1.3-407, C.R.S. 2025, on the condition that

Olivas successfully complete a seven-year term in the YOS.

¶3 Olivas was screened for a mental health disorder or

intellectual and developmental disability that would prevent him

from successfully completing his sentence in the YOS, and he was

found capable of completing the YOS program.

¶4 Throughout his time in the YOS, Olivas failed to follow the

rules. He violated the Code of Penal Discipline three times,

including by assaulting another offender in November 2022. In

response to this misconduct, in December 2022, a YOS suitability

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team held a suitability hearing and recommended revoking Olivas’s

YOS placement. (We discuss further below what a suitability

hearing entails.) After reviewing the documents related to the

suitability hearing, the YOS warden agreed with the

recommendation. Olivas unsuccessfully pursued an internal

appeal of that decision. The executive director of the DOC then

recommended that Olivas be returned to the district court for a

revocation proceeding. On that recommendation, the People filed a

motion to revoke Olivas’s placement in the YOS and impose his

suspended DOC sentence.

¶5 Before the revocation proceeding, defense counsel moved to

dismiss the revocation motion, contending that Olivas was not

afforded due process during the suitability hearing. Defense

counsel also requested a resentencing hearing, contending that the

imposition of Olivas’s DOC sentence without one would violate his

due process rights.

¶6 During the revocation proceeding, the district court noted that

Olivas’s due process challenge to the suitability hearing should

have been brought under C.R.C.P. 106 and 106.5; nevertheless, the

court later noted that Olivas was afforded due process during the

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suitability hearing. The court also did not conduct a resentencing

hearing, thereby implicitly rejecting Olivas’s argument that failing to

do so would violate due process. The district court found that

Olivas failed to comply with the terms and conditions of his YOS

sentence and imposed the suspended thirty-year DOC sentence.

II. Suitability Hearing Due Process

¶7 Olivas contends that (1) he was not afforded due process at

the suitability hearing, and (2) the district court erred by revoking

his YOS sentence based on the suitability hearing. We discern no

error.

¶8 We review constitutional challenges to sentencing decisions de

novo. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).

¶9 The YOS statute provides that the DOC may return a youthful

offender to the district court for revocation and resentencing to the

DOC if the offender cannot successfully complete their YOS

sentence because they (1) pose a danger to themself or others;

(2) are incapable of doing so due to a behavioral or mental health

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disorder;1 (3) are incapable for any other reason; or (4) fail to

comply with the YOS terms and conditions. § 18-1.3-407(5)(a)-(c);

see People v. Omar, 2023 COA 13M, ¶¶ 18-20. The YOS statute

directs the DOC to implement a procedure for doing so.

§ 18-1.3-407(5)(c).

¶ 10 Under the procedure the DOC has devised in fulfilling that

statutory obligation, revocations are initiated through a “suitability

hearing” conducted by a multidisciplinary board. DOC Admin. Reg.

1600-01(IV)(H)(1) (effective Apr. 1, 2021).2 The regulation provides

that offenders are “afforded all due process rights to include an

appeal process.” Id. Per the YOS statute, the executive director of

the DOC reviews any revocation decision. § 18-1.3-407(5)(a). If the

executive director upholds the revocation decision, the matter is

1 If an offender is incapable of successfully completing their

sentence in the YOS due to a behavioral or mental health disorder
or an intellectual and developmental disability, the district court
may either impose the offender’s original DOC sentence or
reconsider and reduce the offender’s DOC sentence.
§ 18-1.3-407(5)(b)(I), C.R.S. 2025. However, if an offender is found
to be unable to complete their YOS sentence for other reasons, they
“shall receive imposition of the original sentence to the [DOC].”
§ 18-1.3-407(5)(c) (emphasis added).
2 The applicable regulation has since been amended. We cite the

version of the regulation in effect at the time of Olivas’s suitability
hearing.

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forwarded to the district attorney of record. See § 18-1.3-407(5)(c).

The People may then initiate a revocation proceeding in the district

court to revoke the offender’s YOS sentence and impose the

suspended DOC sentence. Id.

¶ 11 Although the YOS statute does not specify what due process

protections a defendant must receive during the revocation

proceeding in district court, a division of this court has held that

“minimum due process protections are required at a YOS revocation

proceeding.” People v. McCoy, 939 P.2d 537, 540 (Colo. App. 1997).

Specifically, due process in a revocation proceeding requires

(1) written notice of the claimed violations;
(2) disclosure to [the] defendant of the evidence
against [them]; (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 factfinder as to the evidence relied on and
reasons for the revocation.

Id. (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

¶ 12 Olivas does not argue that he was denied these protections

during the revocation proceeding in the district court. Nor can he.

Olivas was given written notice and an opportunity to be heard, he

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presented evidence and confronted the People’s witnesses, and the

district court made its own findings3 supporting revocation of

Olivas’s YOS sentence.

¶ 13 Instead, Olivas contends that he was also entitled to these

minimum due process protections at his suitability hearing. We

disagree.

¶ 14 McCoy provides that these due process protections apply “at a

YOS revocation proceeding” in the district court. 939 P.2d at 540.

Notably, the division in McCoy did not extend these due process

protections to suitability hearings. Nor would doing so make sense.

The need for these protections in the context of revocation of a YOS

placement arises from the fact that such a revocation decision will

likely result in the inmate being placed in a more restrictive

confinement. Id.; cf. Morrissey, 408 U.S. at 480 (acknowledging

that revocation of parole deprives an individual of conditional

liberty).

3 Though the district court did not reduce its findings to writing, the

findings are memorialized in the transcript of the proceedings.
Olivas does not contend that this fact amounts to a lack of written
findings that deprived him of due process.

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¶ 15 But the outcome of the suitability hearing does not result in

the loss of the YOS inmate’s liberty. It is merely a recommendation

that must be reviewed by the executive director of the DOC.

§ 18-1.3-407(5)(c). And even the executive director’s decision does

not result in imposition of the suspended prison sentence. That

can only happen after the revocation hearing in the district court —

where, as noted, the inmate is entitled to receive the required due

process protections. Thus, it cannot be said that Olivas was denied

any due process protections during the revocation process.

III. Constitutional Challenge to YOS Statute

¶ 16 Olivas contends that the YOS statute is unconstitutional

because it violates the separation of powers clause of article III of

the Colorado Constitution. The People contend that Olivas did not

preserve this argument. We agree with the People and thus decline

to address this challenge.

¶ 17 Before the district court conducted the revocation proceeding,

Olivas filed a motion “to grant re-sentencing due to violations of

[his] constitutional rights under the due process clause of the [Fifth]

Amendment,” in which he requested a resentencing hearing to

determine his DOC sentence. His argument was that “imposition of

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[his] full suspended sentence without a resentencing hearing would

violate due process.”

¶ 18 As part of this argument, Olivas contended that “[i]f the court

interprets that it does not have discretion to impose a sentence

other than the currently-suspended sentence for [him], the [DOC] is

the only body with power to alter [his] sentence.” He further argued

that “[i]f [his] suspended sentence is ruled to be mandatory, this

would create a wholly unique situation in the criminal justice

system, not present for any other type of sentencing situation,”

because imposition of “the full length of his DOC sentence would be

determined by DOC, not the judiciary.” He stated that “[s]uch a

ruling would deprive him of due process in reconsidering the

sentence” and contended that the district court had authority to

grant him a resentencing hearing.

¶ 19 Olivas also made general statements about the law in support

of this argument. He noted that the judicial branch has the

exclusive power to impose sentences within the limits imposed by

the General Assembly, and that the executive branch is responsible

for carrying out the mandate of the sentence. He also said that the

offender is entitled to a resentencing hearing in other revocation

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statutes. Finally, he stated, “In the current design, the [DOC] and

YOS, and thus the Executive Branch, [are] usurping the power of

the Court. This violates the state and federal constitutional

separation of powers doctrine.”

¶ 20 At the hearing on this motion, counsel made no mention of the

separation of powers doctrine. More importantly, when beginning

its ruling, the district court observed that defense counsel had

specifically noted that he was not challenging the constitutionality

of the YOS statute, so the court would not consider any such

argument. Defense counsel did not disagree with or attempt to

correct the court.

¶ 21 We conclude that Olivas waived any argument that the statute

violates the separation of powers doctrine. He clearly knew of the

argument, having referenced it in his written motion. Yet he elected

to not assert it during the hearing. And he did not correct the court

when it characterized his argument as eschewing any assertion that

the statute was unconstitutional. By doing so, Olivas intentionally

relinquished a known right. See People v. Rediger, 2018 CO 32,

¶ 39.

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¶ 22 At the very least, Olivas only mentioned the separation of

powers doctrine in passing in his written motion. He then made no

effort to expound on or develop that challenge during the hearing.

And he did not press for a ruling on the point. Thus, even if not

waived, his challenge is unpreserved, and we do not review

unpreserved facial constitutional challenges to statutes. See

Martinez v. People, 244 P.3d 135, 140 (Colo. 2010) (“To preserve a

Colorado Constitutional argument for appeal, . . . a defendant must

make an objection sufficiently specific to call the attention of the

trial court to the potential Colorado Constitutional error.”);

McDonald v. People, 2024 CO 75, ¶ 10 n.2 (declining to address an

unpreserved constitutional argument).4

IV. Disposition

¶ 23 The order is affirmed.

JUDGE WELLING and JUDGE LIPINSKY concur.

4 Even if we were to review the unpreserved argument, we would

only reverse if the error were plain (i.e., obvious), meaning that it
contravened a clear statutory command, a well-settled legal
principle, or established Colorado case law. People v. Crabtree,
2024 CO 40M, ¶¶ 41-42. And because Olivas points us to no
authority — and we are aware of none — that clearly establishes
that the YOS statute violates the separation of powers doctrine, we
would be unable to find plain error here.

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