People v. Karwacki.
2023 COA 3. No. 21CA0094. Probation Revocation Proceedings—Motion to Disqualify—Appearance of Partiality.
January 12, 2023
Karwacki was sentenced in 2018 to 10 years of probation. He later admitted to probation violations, and the court revoked and reinstated his 10-year probation, with 60 days in the jail weekend program. In 2019, the sheriff’s department wrote a letter informing the court that Karwacki had been terminated from the jail weekend program for failing to show up. The court issued an order directing the probation department to review the sheriff’s department’s letter and file a probation revocation complaint (the order). The probation department filed a complaint noting the jail weekend program violation but recognizing that Karwacki was complying with other probation conditions. Karwacki failed to appear at a subsequent hearing, the court issued a warrant for his arrest, and he was picked up on the warrant. The court held a probation revocation hearing at which the probation officer’s testimony suggested that, because of the court’s order, he did not try alternative methods to bring Karwacki into compliance with his probationary terms before filing the complaint. Based on this testimony, defense counsel moved for the judge’s recusal. The judge denied the motion, acknowledging that he had issued the order directing the probation department to file the revocation complaint but stating that he did not view his order as taking an active role or indicating any kind of bias. The court then revoked Karwacki’s probation and sentenced him to 12 years in Department of Corrections custody.
On appeal, Karwacki argued that the district court erred in denying the disqualification motion because its order directing the probation department to file a revocation complaint created, at a minimum, the appearance of partiality. Under CRS § 16-11-205, only probation officers or district attorneys may institute probation revocation proceedings, at their discretion. A judge who initiates such proceedings creates the appearance of partiality and substantially affects the fairness of the proceedings. Accordingly, the district court lacked authority to order the probation department to file a probation revocation complaint. Further, the judge’s actions resulted in the revocation of Karwacki’s probation, thus prejudicing him, so the error is not harmless. Therefore, another judge should be substituted to conduct any further proceedings.
The revocation order was reversed, the sentence was vacated, and the case was remanded for further proceedings before a different judge.