The Colorado Supreme Court clarified on Monday that county court judges may order defendants into custody while they appeal their misdemeanor convictions.

The justices pointed out the Colorado Constitution explicitly forbids judges from setting bail pending appeal if they find the defendant is a danger to the community, as was the case with Richard Lewis.

In November 2023, a jury in Denver County Court found Lewis guilty of multiple misdemeanors for sexual assault. He received 12 months in the county jail plus five years of sex offender probation as a sentence.

Before trial, Lewis had been out on a personal recognizance bond. At sentencing, Lewis indicated he would appeal his convictions and asked to remain free on bond until a district court judge could review the case.

In response, Presiding Judge Kerri Lombardi cited Colorado’s law governing bail pending appeal. In instances where bail is allowed, a judge must decline to let defendants remain free if they are likely to flee, pose a danger to the community or the appeal would be frivolous.

Lombardi said she had “significant concerns about the safety of the community,” and also believed any appeal of Lewis’ sentence would be frivolous. She refused to allow Lewis to remain free until the conclusion of his appeal.

Lewis turned directly to the Supreme Court to challenge Lombardi’s decision, noting the justices had never addressed the issue before.

Among other things, he argued Lombardi violated the Supreme Court’s own precedent. In a 2014 decision, People v. Steen, the court responded to a Boulder County District Court judge — now-Justice Maria E. Berkenkotter — who declined to pause the defendant’s probationary sentence while she reviewed the appeal of his county court conviction.

The Supreme Court’s majority at the time noted criminal defendants have the right to appeal, but appealing a misdemeanor conviction from a county court would be meaningless if defendants had to start serving their brief sentences right away — and potentially complete their entire punishment before a district judge could rule on the appeal.

But in a Sept. 9 opinion, Chief Justice Monica M. Márquez, who also authored the decision in Steen, explained that pausing a defendant’s sentence pending appeal and denying the defendant bail pending appeal are two different concepts, with the latter expressly governed by the state constitution.

Therefore, a county court judge has the authority to stay a defendant’s jail sentence while simultaneously ordering him into custody.

“Accordingly, having found that Lewis presented a danger to the community, the county court properly denied bail,” Márquez wrote.

The case is People v. Lewis.