The Colorado Supreme Court announced on Monday it will decide whether to overrule its 33-year-old conclusion that defendants serving time in a non-residential community corrections program are not entitled to deduct that time if they are resentenced to prison.

At least three of the court’s seven members must agree to hear a case on appeal.

According to the state, approximately 3,600 people are serving sentences in community corrections at any given time. Designed to be stricter than probation but not as harsh as prison, community corrections allows defendants to live in the community and receive support, while still being confined in a residential facility.

Defendants may progress into non-residential community corrections, where they live on their own but still experience supervision and abide by program rules.

In 1991, the Supreme Court addressed the question of what happens when a defendant serves time in non-residential community corrections, but violates the terms and is resentenced to prison. By 5-2, the court ruled such defendants are not entitled to have their non-residential time deducted from their prison sentence.

Chief Justice Joseph R. Quinn noted the law forbade judges from increasing the original sentence, but defendants can only benefit from time served in “confinement.” The court’s majority viewed defendants serving non-residential sentences as similar to parolees, whose circumstances are “very different from that of confinement.”

“To credit the community correctional offender with time served on nonresidential status would result in the anomaly of granting credit for presentence ‘confinement’ for a period of time during which the offender was never actually ‘confined’ in any meaningful sense of that term,” Quinn wrote in People v. Hoecher.

Decades later, Ryan Wallace Bonde served a residential, then a non-residential sentence in community corrections for an impaired driving offense. In May 2020, Bonde racked up more violations and Larimer County terminated him from community corrections.

District Court Judge Laurie Dean resentenced Bonde to four years in prison. While she gave him some credit for his time in community corrections, she did not deduct the entirety of his non-residential time from the new sentence.

Bonde appealed, arguing the Supreme Court’s conclusion in Hoecher was no longer valid. Because the court likened people serving non-residential sentences to parolees, and the legislature had since changed the law to entitle certain parolees to sentence deductions, Bonde argued the court’s underlying logic led to a different result three decades later.

A three-judge panel for the Court of Appeals waved aside that claim.

“We read Hoecher as doing no more than analogizing a nonresidential offender to a parolee to frame the court’s analysis, contextualize it within the statutory scheme, and elucidate the legislature’s intent,” wrote Judge W. Eric Kuhn in August, “not binding the outcome to how a parolee’s time is treated.”

Bonde turned to the Supreme Court, again arguing the current treatment of parolees should apply to defendants in his position. Further, even a defendant in non-residential community corrections is confined “within the state of Colorado” through multiple restrictions on his liberty.

The Supreme Court will decide whether to stand by its prior ruling.

The case is Bonde v. People.