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    Jeremy Keith SHARROW, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 16SC88
    Supreme Court of Colorado.
    April 8, 2019 Rehearing Denied April 22, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Ned R. Jaeckle, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois , 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956). This declaration of timeless reverence is now imbedded in the marrow of our nation and woven into the tapestry of our criminal justice system. State and federal jurisdictions alike apply it widely beyond the trial context. But it is not without parameters. As sensitive as courts have been to the plight of indigent defendants, they have recognized that the protection afforded such defendants must be balanced against certain fundamental state interests, including in sentencing. The inherent tension between the unique challenges faced by indigent defendants and the State's sentencing interests is at the core of the question we confront today: Does it violate due process or equal protection to revoke a defendant's probation and sentence him to imprisonment if his failure to comply with probation was not willful and was caused instead by a lack of financial resources?

¶2 In Bearden v. Georgia , the United States Supreme Court held that when a probationer fails to pay a fine or restitution as a condition of probation, "despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment." 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Although we have never had occasion to apply Bearden , we do not write on a clean slate. In the decade-plus preceding Bearden , we concluded in a trilogy of cases that probation can be revoked for failure to make a payment only when such failure is unreasonable or willful. See Strickland v. People , 197 Colo. 488, 594 P.2d 578, 579-80 (1979) (restitution payments); People v. Romero , 192 Colo. 106, 559 P.2d 1101, 1101-02 (1976) (ordered attorney fees); People v. Silcott , 177 Colo. 451, 494 P.2d 835, 836-37 (1972) (child support payments).

¶3 But neither Bearden nor any of our prior cases resolved the question raised by the defendant, Jeremy Keith Sharrow, in this appeal because the trial court did not revoke his probation and impose imprisonment based on his failure to fulfill a financial obligation as a condition of his probation. Rather, it did so because it found that he had violated nonpayment conditions of his probation: he moved from his established residence without his probation officer's authorization and he was terminated from a sex-offender-treatment program he was required to complete. Sharrow claimed that these violations were not unreasonable or willful because they were caused by his indigency-he could afford to pay for neither rent nor treatment.

¶4 Does Bearden apply to Sharrow's circumstances? Does our jurisprudence? A division of the court of appeals concluded that neither does and ruled that, since the probation conditions that Sharrow violated did not involve a required payment, the trial court was not compelled to determine whether his probation violation was "unreasonable and willful." People v. Sharrow , No. 13CA1164, slip op. at 5 (Colo. App. Dec. 24, 2015). Therefore, concluded the division, Sharrow's due process claim fell short. Id. , slip op. at 8.

¶5 In this appeal, Sharrow contends that his imprisonment following the revocation of his probation not only violated his due process rights, but also his right to equal protection. We conclude that Sharrow's constitutional rights were not violated, but our analysis differs from the division's.

¶6 Today we adopt the rule announced in Bearden for all probation revocation proceedings in which the defendant asserts that he lacked the financial means to comply with a nonpayment condition of probation. We hold that when a probationer defends against an alleged violation of a nonpayment condition of probation based on his lack of financial means, the trial court cannot revoke probation and impose imprisonment without first determining whether he failed to comply with probation willfully or failed to make sufficient bona fide efforts to acquire resources to comply with probation. If the trial court finds that the defendant willfully refused to comply with probation or failed to make sufficient bona fide efforts to acquire resources to do so, it may revoke probation and impose imprisonment. On the other hand, if the trial court finds that the defendant could not comply with probation despite sufficient bona fide efforts to acquire resources to do so, it must consider alternatives to imprisonment. Only if alternate measures are not adequate to fulfill the State's sentencing interests, including in punishment, deterrence, rehabilitation, and community safety, may the court imprison an indigent defendant who, notwithstanding sufficient bona fide efforts to comply with probation, nevertheless failed to do so. By the same token, even if the trial court finds that an indigent defendant is not at fault for failing to comply with probation because he made sufficient bona fide efforts to acquire resources to do so, imprisonment following the revocation of probation is appropriate if there is no adequate alternative to fulfill the State's sentencing interests.

¶7 During his probation revocation hearing, Sharrow presented evidence of both his indigency and his efforts to find a job in order to generate sufficient income to allow him to comply with probation. But the trial court found, with record support, that Sharrow did not make sufficient bona fide efforts to obtain employment. Therefore, it did not violate Sharrow's constitutional rights by revoking his probation and imposing imprisonment. Because the division upheld the trial court's decision, we affirm, albeit on other grounds.

I. Procedural History

¶8 After sexually assaulting a fourteen-year-old child, Sharrow pled guilty in January 2010 to one count of sexual assault (victim under fifteen), a felony, and one count of unlawful sexual contact, a misdemeanor. Pursuant to the parties' plea agreement, the trial court dismissed the remaining charges, placed Sharrow on a four-year deferred judgment and sentence ("deferred judgment") on the sexual assault count, and imposed the following concurrent sentences: four years of sex offender intensive supervision probation (SOISP) and sixty days in jail on the sexual assault count; and five years of intensive supervision probation (ISP) on the sexual contact count.

¶9 Between 2010 and 2013, the probation department filed three separate complaints seeking to revoke Sharrow's deferred judgment and probation. We describe each complaint and its related litigation in some detail to place Sharrow's appeal in context.

A. First Complaint

¶10 In July 2010, Sharrow's probation officer filed a complaint to revoke Sharrow's deferred judgment and probation based on numerous alleged violations. As pertinent here, the probation officer asserted that Sharrow had moved to a different residence without prior approval and had been terminated from offense-specific treatment. In October 2011, the trial court (with a new judge presiding) held an evidentiary hearing, at the end of which it found that "sufficient allegations [had] been proven" by the prosecution. The trial court thus revoked Sharrow's deferred judgment and probation, and entered a judgment of conviction on the guilty plea to the sexual assault count.

¶11 During the ensuing resentencing hearing, Sharrow explained that the primary reason for leaving his residence and moving in with a friend, Brenda Geiger, "was not having enough money to pay for rent." In determining whether to place Sharrow back on supervised probation in lieu of imprisonment, the trial court indicated that it found "very, very troubling" that Sharrow had absconded from probation for five months. However, based in part on Geiger's remarks, the trial court gave Sharrow "one more chance," though it did its best to impress upon him that he was "on the doorstep of prison" and that no other probation violations would be tolerated:

I will give him one more chance at probation, but Mr. Sharrow, we must be clear.... Any violation of any term and condition, no matter how technical it may seem to you, in my opinion, warrants the Probation Department filing another complaint against you. You've had your chance. This time you operate without a net. There's nowhere to go but prison.... Any violation of any term of your probation will be considered by me sufficient to place you in prison. There are no excuses.

Notably, the trial court informed Sharrow that money would continue to "be a big obstacle." But, upon being asked whether he "still want[ed] to do this," Sharrow responded, "Yes." Thus, the trial court resentenced Sharrow to SOISP for an indeterminate period of at least ten years on the sexual assault conviction and to ISP for five years on the sexual contact conviction, to be served concurrently.

B. Second Complaint

¶12 Four months later, in February 2012, Sharrow's probation officer filed another complaint to revoke probation, alleging numerous violations, including that Sharrow had changed residence without authorization again and had failed to seek or maintain lawful employment. In October 2012, after the complaint was amended to add an allegation that Sharrow had been terminated from another offense-specific-treatment program, the matter proceeded to an evidentiary hearing in front of a third judge, who found that Sharrow had violated some conditions of his probation.

¶13 During the resentencing hearing, defense counsel presented a letter from RSA, Inc. (RSA), a treatment program willing to work with Sharrow. The prosecution expressed concern with placing Sharrow on probation again, including because Sharrow was going to "have to pay for [his] treatment," which was "an issue ... last time" and one of the reasons "he was terminated from treatment," and there was no indication as to how that issue would be addressed.

¶14 Although the trial court shared the prosecution's concerns, it nevertheless gave Sharrow a "third" chance on probation, cautioning him that it would be his "last." As the judge put it, "[i]t's either success here, or to be blunt, probably 10 years once I send you to prison [on an indeterminate sentence with a minimum term of two years] before you'll even have a chance to ask the parole commission to consider you" for release. Sharrow was again placed on SOISP for an indefinite term of at least ten years on the sexual assault conviction. On the sexual contact conviction, the trial court resentenced him to 300 days in the county jail, but awarded him 300 days credit for time served.

¶15 Importantly, after Sharrow was resentenced, the probation officer informed the trial court that, like other programs, RSA had shared living arrangements (SLAs), but unlike other programs, RSA required defendants to find an apartment, put down a deposit, and pay for the first month's rent. The probation officer was worried that Sharrow was going to run into the same problem he had experienced before-not having an approved residence in which to live after his release from jail. According to the probation officer, the probation department had already spent $5,855 toward Sharrow's residence at a motel while he was previously enrolled in SLAs in conjunction with treatment programs, and it would "take some money to come up with a deposit and his first month's rent to actually get into a shared living arrangement at RSA." Defense counsel responded that everyone understood that Sharrow "ha[d] to get a job, ... ha[d] to make some money, [and] ha[d] to pay for this." But she asked that the probation department give him a little time to do so by temporarily paying for a motel again. She further requested that Sharrow be allowed to have contact with Geiger so that she could provide much-needed support, including transportation and clothing.

¶16 After learning that it would cost $700 to house Sharrow in a motel for another month, the trial court agreed "to bend the rules" and ordered the probation department "to fund one month ... and one month only" at a motel. It further ordered that Geiger be allowed to have "substantial contact" with Sharrow to assist him with transportation and clothing as he attempted to qualify for the SLAs at RSA. Because the trial court viewed Geiger as Sharrow's "lifeline to try and get him into a normal life," it also authorized her to bring him food and have social visits with him. Before adjourning, the trial court warned Sharrow that he had one month, until January 5, 2013, "to get some money" for the SLAs at RSA. The trial court reiterated that this was "Sharrow's responsibility," as he had "asked to be placed [at] RSA."

C. Third Complaint

¶17 Less than two months after Sharrow's probation was reinstated, a third complaint to revoke probation was filed by his new probation officer. The amended version of that complaint alleged, among other things, that Sharrow had moved from his established residence without permission yet again and had been terminated by RSA. The fourth judge to preside over Sharrow's post-plea proceedings held an evidentiary hearing during which the probation officer and Sharrow both testified. The probation officer stated that, pursuant to the trial court's order, Sharrow had received a voucher to pay for four weeks of rent at a motel. He added that he had then obtained approval from his supervisor to pay for two more weeks of rent at the same motel "to get [Sharrow] a little bit more opportunity" to find a job in the hopes that Sharrow would soon be able to stand on his own two feet.

¶18 For his part, Sharrow explained that he left the motel and moved into a shelter because, after using the two vouchers provided by the probation department, which paid for his motel room for six weeks, he still lacked the funds to pay for rent. As for his termination from RSA, Sharrow said that he attempted to attend most of the individual and group therapy sessions, but was turned away by RSA for lack of funds. However, the probation officer noted that Sharrow could have attended "study hall" for free at RSA, but had failed to do so. According to the probation officer, study hall "allows another level of containment or accountability" for probationers who cannot afford to pay for the individual or group treatment sessions.

¶19 Of particular relevance here, both the probation officer and Sharrow discussed Sharrow's financial situation and his efforts to acquire the resources to comply with probation. Sharrow testified that he tried to get a job, but was unable to do so. He cited his conviction as a sex offender and his lack of transportation as hurdles he could not overcome. The probation officer countered that Sharrow had not sought employment every day, had not "show[n] much of an effort for someone who [was] essentially [in] dire strai[ts]," and seemed to have an expectation that "probation [would] continue to fund him." In short, the probation officer believed that "looking for a job was not that important" to Sharrow.

¶20 At the end of the hearing, the trial court found that the evidence established that Sharrow had violated his probation by moving from his residence without the consent of his probation officer and by failing to actively attend and participate in RSA's sex-offender-treatment program. The trial court then addressed Sharrow's contention that "[his] inability to pay ... was the basis of all of his violations [of probation] and that it would violate his fundamental [right to] due process" to have his probation revoked and to be resentenced to imprisonment "for not being able to pay":

That argument would have more weight if I were convinced that Mr. Sharrow had done everything he can to try and earn money. And I think the clear testimony and implication from his probation officer was that he didn't appear to be making the best effort that he could make to obtain employment. And so that argument about ... being [revoked] because he can't pay, I think assumes that he is doing everything he can to get a job. And I am not convinced that he was and his probation officer wasn't convinced that he was doing everything that he could.... And again I [am] not convinced that Mr. Sharrow made the best effort that he could make to try to get a job.... So I find that the People have proven that the defendant is guilty of violating the amended complaint as charged.

The trial court resentenced Sharrow to imprisonment for an indeterminate period with a minimum term of at least two years.

¶21 Sharrow appealed the trial court's order. He did not dispute that he moved from his established residence without permission or that he was terminated from RSA's treatment program. Instead, he argued that his sentence to imprisonment following his probation revocation violated his due process rights because there was insufficient evidence to demonstrate that his failure to comply with probation was "unreasonabl[e] or willful[ ]." Sharrow , slip op. at 5. A division of the court of appeals disagreed, concluding that the trial court was not required to determine whether his violation of probation was unreasonable and willful or whether he had the ability to pay rent and for RSA's treatment program. Id. , slip op. at 7-8. In so doing, the division distinguished the cases on which Sharrow relied- Bearden , Strickland , Romero , and Silcott -on the ground that they "involve[d] ... a [probation] condition that required a monetary payment." Id. , slip op. at 5-6. The division found People v. Colabello , 948 P.2d 77 (Colo. App. 1997), more persuasive. Id. , slip op. at 6-7. In Colabello , another division of the court of appeals determined that Strickland does not require a trial court "to find that a defendant 'willfully or unreasonably' failed to comply with any terms of probation other than payment of restitution." 948 P.2d at 80. Because the term of probation at issue there was the successful completion of appropriate treatment, "a critical prerequisite to allowing [Colabello] back into the community," the division ruled that the "well-intentioned but unsuccessful attempt at completion" of such treatment was not sufficient to "maintain ... probationary status." Id. at 79-80.

¶22 Agreeing with Colabello 's rationale, the division here held that the right to due process did not require a finding that Sharrow acted unreasonably or willfully in violating his probation. Sharrow , slip op. at 8. The division recognized "the seeming unfairness" of its decision, but explained that "the law in this area is clear" and it was not its role to make a policy change. Id. In any event, noted the division, the trial court considered Sharrow's financial situation and found that he had failed to make adequate efforts to secure employment and earn money. Id. , slip op. at 8-9.

¶23 Sharrow then brought this appeal.

II. Analysis

¶24 Sharrow claims that the trial court's imprisonment sentence following the revocation of his probation violated his constitutional rights to due process and equal protection. He urges us to reverse the judgment of the court of appeals and to rule, instead, that the trial court was required to determine whether his noncompliance with probation was willful or unreasonable. Moreover, continues Sharrow, to the extent the trial court considered his financial situation, it failed to apply the correct legal standard in deciding whether he made good faith efforts to obtain the resources to comply with probation. In advancing these contentions, Sharrow relies primarily on Strickland , Romero , and Silcott , though he also leans heavily on Bearden .

¶25 On the other side of the equation, the prosecution asks us to affirm the judgment of the court of appeals. Relying on the probation revocation statute, section 16-11-206(3), C.R.S. (2018), it argues that inquiry into a defendant's financial ability is required only when the alleged probation violation involves a requirement "to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations." The prosecution contends that, since Sharrow's probation revocation was not grounded in the failure to make such a required payment, it was within the trial court's discretion whether to continue or revoke his probation. Alternatively, asserts the prosecution, the trial court allowed Sharrow to present evidence of his lack of financial means and of his bona fide efforts to obtain resources to comply with probation, but ultimately found that he failed to meet his burden of establishing an inability to pay. In this regard, the prosecution maintains that when a probationer asserts in a revocation proceeding that he lacked the financial ability to comply with probation, the burden of proof must shift to him.

¶26 We first discuss the standard of review governing this appeal. We then segue to Bearden . After examining Bearden , we adopt the rule it announced for all probation revocation proceedings in which the defendant asserts that he lacked the financial means to comply with a nonpayment condition of probation. We end by applying Bearden and concluding that Sharrow's constitutional claims cannot prevail because the record supports the trial court's finding that he failed to make sufficient bona fide efforts to acquire resources to comply with probation. As we explain, though, today's decision does not alter the prosecution's burden of proof in a probation revocation hearing.

A. Standard of Review

¶27 The interpretation of the United States Constitution is a "question[ ] of law, which we review de novo." People v. Higgins , 2016 CO 68, ¶ 7, 383 P.3d 1167, 1169. Although trial courts have broad discretion in sentencing hearings, "constitutional challenges to sentencing determinations" are likewise "reviewed de novo." Villanueva v. People , 199 P.3d 1228, 1231 (Colo. 2008).

¶28 In general, a "trial court's factual findings" are entitled to deference on appeal. People v. Bailey , 2018 CO 84, ¶ 17, 427 P.3d 821, 826. Thus, we do not disturb factual findings "if they are supported by competent evidence in the record." Id. (quoting People v. Castaneda , 249 P.3d 1119, 1122 (Colo. 2011) ).

B. Bearden v. Georgia

¶29 We start our analysis by examining Bearden v. Georgia . Because the Supreme Court's holding serves as the foundation for our decision, we delve into it in depth.

¶30 As a condition of probation, Bearden was required to pay a $500 fine and $250 in restitution, for a total of $750. Bearden , 461 U.S. at 662, 103 S.Ct. 2064. He was to pay $100 the day of the sentence, $100 the next day, and the remaining $550 within four months. Id. Bearden borrowed $200 from his parents to make the initial two $100 payments, but was unable to make any other payments. Id. at 662-63, 103 S.Ct. 2064. He was laid off from work a month after he was sentenced, and with only a ninth-grade education and an inability to read, he was unable to get another job, although he "tried repeatedly" to do so. Id.

¶31 A few months after the balance of the fine and restitution came due, the State filed a petition to revoke Bearden's probation. Id. at 663, 103 S.Ct. 2064. Following an evidentiary hearing, the trial court revoked Bearden's probation and sentenced him to serve the remaining portion of his probationary period in prison. Id. The Georgia Court of Appeals affirmed, rejecting Bearden's claim that imprisoning him based on his financial inability to pay the fine and restitution violated the Equal Protection Clause of the Fourteenth Amendment. Id. The Georgia Supreme Court subsequently denied review. Id.

¶32 The question presented in Bearden was whether the Fourteenth Amendment prohibits a State from "revok[ing] a defendant's probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate." Id. at 665, 103 S.Ct. 2064. The Court recognized that resolution of the issue required a careful balance between, on the one hand, "the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence" for a defendant and, on the other, "the impermissibility of imprisoning a defendant solely because of his lack of financial resources." Id. at 661, 103 S.Ct. 2064. Regardless of whether Bearden's claim was viewed through the equal protection lens or the due process lens, the Court explained that its merits could not be addressed "by resort to easy slogans or pigeonhole analysis." Id. at 666, 103 S.Ct. 2064. Instead, the Court had to consider "such factors as 'the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.' " Id. at 666-67, 103 S.Ct. 2064 (quoting Williams v. Illinois , 399 U.S. 235, 260, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (Harlan, J., concurring)).

¶33 In resolving Bearden's appeal, the Court invoked the rule it had established the previous decade in Williams and Tate v. Short , 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) : "the State cannot 'impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.' " Bearden , 461 U.S. at 667, 103 S.Ct. 2064 (quoting Tate , 401 U.S. at 398, 91 S.Ct. 668 ). Significantly, the Bearden Court "carefully distinguished" between the imposition of imprisonment based exclusively on a defendant's lack of resources to pay "from the situation where a defendant [is] at fault in failing to pay." Id. at 668, 103 S.Ct. 2064. The State cannot "imprison a person solely because he lack[s] the resources to pay" a fine or restitution, the Court said, echoing its earlier pronouncements. Id. at 667-68, 103 S.Ct. 2064. But the Court made clear that, since nothing "precludes imprisonment" when the defendant's refusal to pay is willful, id. at 668, 103 S.Ct. 2064 (quoting Williams , 399 U.S. at 242 n.19, 90 S.Ct. 2018 ), there is no "constitutional infirmity" in imprisoning a defendant who has the means to pay, but nevertheless fails to do so, id. (quoting Tate , 401 U.S. at 400, 91 S.Ct. 668 ).

¶34 The presence or absence of fault, however, is not the end of the analysis under Bearden . As the Court acknowledged, the State "has a fundamental interest in appropriately punishing persons-rich and poor-who violate its criminal laws." Id. at 669, 103 S.Ct. 2064. Consequently, poverty cannot bestow immunity from prison on an indigent defendant, even when his failure to make a payment is without fault. Id. And, while the decision to grant a defendant probation in the first place reflects the trial court's determination that imprisonment was not necessary to fulfill the State's penological interests, a defendant's "failure to make reasonable efforts to repay his debt to society" while on probation may indicate that the original determination warrants reevaluation, as "imprisonment may now be required to satisfy the State's interests." Id. at 670, 103 S.Ct. 2064.

¶35 Of course, the State's sentencing interests, including in punishment, may be attainable by alternative means. Id. at 671-72, 103 S.Ct. 2064. For that reason, the adequacy of such means must be considered before a trial court may imprison an indigent probationer who has made sufficient bona fide efforts to pay. Id. at 672, 103 S.Ct. 2064.

¶36 Considering all of the pertinent factors together, the Court in Bearden held as follows:

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment.... If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Id. at 672-73, 103 S.Ct. 2064. Because the trial court had automatically resentenced Bearden to prison "without considering the reasons for the inability to pay" or alternative means to achieve the State's sentencing interests, the Court reversed the judgment of the Georgia Court of Appeals and remanded the matter for further proceedings. Id. at 674, 103 S.Ct. 2064. The Court instructed the trial court to determine on remand whether Bearden had made sufficient bona fide efforts to pay and, if so, whether alternate punishment was adequate to meet the State's sentencing interests. Id.

C. Adopting the Rule in Bearden for Probation Revocation Proceedings Involving Nonpayment Conditions of Probation

¶37 This is our first opportunity to adopt the rule in Bearden . We do so for all probation revocation proceedings in which the defendant asserts that he lacked the financial means to comply with a nonpayment condition of probation.

¶38 The linchpin of the decision in Bearden was the presence or absence of fault in an indigent defendant's failure to make a payment required as a condition of probation. For the Court, this distinction had "critical importance." Id. at 668, 103 S.Ct. 2064. When a probationer willfully refuses to pay despite having the financial means to do so or fails to make sufficient bona fide efforts to obtain resources to pay, the State is justified in revoking probation and imposing imprisonment. Id. But when a probationer makes all reasonable efforts to pay and yet cannot do so through no fault of his own, "it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods" of punishment are available. Id. at 668-69, 103 S.Ct. 2064. It is the lack of fault that provides a substantial reason to justify or mitigate the violation of probation and makes imprisonment inappropriate. See id. at 669, 103 S.Ct. 2064. To deprive an indigent probationer of his conditional freedom merely "because, through no fault of his own, he cannot pay" is "contrary to the fundamental fairness required by the Fourteenth Amendment." Id. at 672-73, 103 S.Ct. 2064.

¶39 We see no reason to distinguish between a payment that is required as a condition of probation and a payment that is required to satisfy a nonpayment condition of probation. If it is unconstitutional to automatically imprison an indigent defendant solely because, through no fault of his own, he cannot pay a fine or restitution as a condition of probation, it must be equally unconstitutional to automatically imprison an indigent defendant solely because, through no fault of his own, he cannot pay to remain in a particular residence or to complete sex-offender treatment as a condition of probation. In both scenarios it is fundamentally unfair and offensive to the Fourteenth Amendment to automatically deprive the defendant of his conditional freedom simply because, through no fault of his own, he lacks the financial means to comply with probation. Simply put, the right to equal justice is infringed in both situations.

¶40 We are not persuaded by the prosecution's attempt to distinguish Bearden on the ground that Colorado law does not sanction the automatic imprisonment of someone whose probation has been revoked, vesting trial courts instead with discretion "to continue ... probation." True, our trial courts are not required to impose imprisonment or another form of incarceration upon the revocation of probation-they may regrant probation or choose a different resentencing option that does not involve incarceration. But Georgia law did not require the automatic imposition of a jail sentence following Bearden's probation revocation either. Id. at 662-63, 103 S.Ct. 2064. Yet, the Court reversed the judgment of the Georgia Court of Appeals affirming the trial court's decision to resentence Bearden to imprisonment without determining the reasons for his inability to pay or the adequacy of alternative sentencing options. Id. at 674, 103 S.Ct. 2064. The trial court there was specifically directed to make these determinations on remand. Id.

¶41 In other words, the trial court in Bearden failed to exercise its discretion and "automatically turned a fine into a prison sentence," thereby violating Bearden's Fourteenth Amendment rights. Id. This is the very evil we seek to avert today. Absent today's opinion, a Colorado trial court, despite having discretion, or perhaps because of it, could automatically revoke probation and impose imprisonment solely because, through no fault of his own, an indigent defendant cannot pay to remain in a designated residence or complete treatment.

¶42 Guided by the rationale in Bearden , we hold that when a probationer defends against an alleged violation of a nonpayment condition of probation based on his lack of financial means, the trial court cannot revoke probation and impose imprisonment without first determining whether he failed to comply with probation willfully or failed to make sufficient bona fide efforts to acquire resources to comply with probation. If the trial court finds that the defendant willfully refused to comply with probation or failed to make sufficient bona fide efforts to acquire resources to do so, it may revoke probation and impose imprisonment. On the other hand, if the trial court finds that the defendant could not comply with probation despite sufficient bona fide efforts to acquire resources to do so, it must consider alternatives to imprisonment. Only if alternate measures are not adequate to fulfill the State's sentencing interests, including in punishment, deterrence, rehabilitation, and community safety, may the court imprison an indigent defendant who, notwithstanding sufficient bona fide efforts to comply with probation, nevertheless failed to do so. By the same token, even if the trial court finds that an indigent defendant is not at fault for failing to comply with probation because he made sufficient bona fide efforts to acquire resources to do so, imprisonment following the revocation of probation is appropriate if there is no adequate alternative to fulfill the State's sentencing interests.

¶43 Where the probationer's failures are related to the very reasons probation was granted and, consequently, frustrate the purposes of probation, such failures directly thwart the State's sentencing interests and render revocation "fair and appropriate even if the probationer did not willfully violate his probation conditions." United States v. Warner , 830 F.2d 651, 657 (7th Cir. 1987) (relying on Bearden , 461 U.S. at 668 n.9, 103 S.Ct. 2064 ). For example, "it may indeed be reckless for a court to permit a person convicted of driving while intoxicated to remain on probation once it becomes evident that efforts at controlling his chronic drunken driving have failed." Bearden , 461 U.S. at 668 n.9, 103 S.Ct. 2064. Regardless of the reasons for that probationer's failures, allowing him to remain on probation or regranting him probation because he undertook bona fide efforts to comply with it would constitute a "threat to the safety or welfare of society." Id . The same holds true for a sex offender who, despite bona fide efforts to complete the required treatment, fails to do so. "Ultimately, it must be remembered that the sentence was not imposed for a circumstance beyond the probationer's control 'but because he had committed a crime.' " Id. (quoting Williams , 399 U.S. at 242, 90 S.Ct. 2018 ).

¶44 We are cognizant that, unlike the failure to discharge a fine or restitution in Bearden , a defendant's indigency will not always be relevant where, as here, nonpayment conditions of probation are alleged to have been violated. Therefore, when the condition of probation allegedly violated is not a required payment, the trial court is under no obligation to inquire sua sponte about the reasons for the defendant's alleged failure to comply with probation. Rather, it is incumbent on the defendant to assert that his lack of financial means prevented him from complying with a nonpayment condition of probation. This begs the question as to who bears the burden of proof in a probation revocation proceeding in which the defendant advances such a claim. The prosecution asks us to incorporate the burden-shifting procedure we endorsed in People v. Afentul , 773 P.2d 1081, 1085 (Colo. 1989). We decline to do so.

¶45 Our decision in Afentul was tethered to the language of the deferred judgment statute then in effect, 16-7-403(2), C.R.S. (1986), addressing a defendant's failure "to make restitution" as a condition of a deferred judgment. Id. (citing section 16-7-403(2), which read as follows: "When, as a condition" of a deferred judgment, "the court orders the defendant to make restitution, evidence of failure to pay the said restitution shall constitute prima facie evidence of a violation"). Given that Sharrow's appeal does not implicate the failure to pay restitution as a condition of a deferred judgment, the current iteration of the deferred judgment statute ( section 18-1.3-102(2), C.R.S. (2018) ) and Afentul are inapposite.

¶46 The part of section 16-11-206(3) on which the prosecution relies, which addresses a "probationer's failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations," is equally inapplicable. Because the conditions of probation Sharrow violated did not involve his failure to make any such payment, the prosecution's reliance on that part of section 16-11-206(3) is misplaced.

¶47 Instead, a different part of section 16-11-206(3) applies. That part of the subsection lays the burden of proof squarely at the feet of the prosecution when the alleged violation does not relate to a failure to pay court-ordered compensation, fees, costs, restitution, or reparations. See § 16-11-206(3). It provides that, at a probation revocation hearing, "the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt" if the defendant has not "been convicted thereof in a criminal proceeding." Id.

¶48 Keeping the burden of proof at the prosecution's table is not only consistent with section 16-11-206(3) -it is also fair. In cases such as this one, the prosecution's burden of proof will always be by a preponderance of the evidence, not the more rigorous beyond-a-reasonable-doubt standard. Moreover, at a revocation hearing, the probation officer should be very familiar with the probationer's financial situation. We expect that a probation officer will be able to testify about the defendant's needs, financial means, and requests for financial assistance, as well as any communications related to those requests, any financial assistance provided, and any efforts the defendant may have made toward obtaining employment or otherwise acquiring resources to comply with probation. After considering all the evidence presented, the trial court will be in a suitable position to make the determinations we require today, mindful that the burden to prove a violation of a nonpayment condition of probation ultimately rests with the prosecution.

¶49 In sum, today we adopt the holding in Bearden for all probation revocation hearings in which the defendant asserts that he lacked the financial means to comply with a nonpayment condition of probation. However, nothing in this opinion should be interpreted as altering the prosecution's burden of proof in a revocation proceeding.

D. Application

¶50 During his revocation hearing, Sharrow presented evidence of his indigency and the efforts he undertook to obtain employment in order to acquire resources to comply with probation. But the trial court found, with record support, that Sharrow's attempts to obtain employment did not constitute sufficient bona fide efforts. We defer to this determination and conclude that the trial court's revocation of probation and resentence to imprisonment neither unfairly deprived Sharrow of his conditional freedom nor infringed on his constitutional rights to due process and equal protection.

¶51 Sharrow complains that the trial court applied the wrong legal standard in concluding that he failed to make sufficient bona fide efforts to obtain a job. The trial court, asserts Sharrow, was required to find that: (1) a job for which he was qualified was available; (2) the job would have produced enough income to allow him to comply with probation; and (3) he unjustifiably refused to take the job. This three-part test has its genesis in Strickland and Romero . See Strickland , 594 P.2d at 579 ; Romero , 559 P.2d at 1102. However, Strickland and Romero preceded Bearden , and Bearden did not delineate how a trial court should go about determining what constitutes sufficient bona fide efforts to obtain employment or to otherwise acquire resources to comply with probation. Nor do we think it wise to micromanage trial courts in this area or to restrict their discretion. We are comfortable that trial courts are quite capable of exercising their discretion in ascertaining whether an indigent defendant has undertaken sufficient bona fide efforts to obtain a job or to otherwise acquire resources to comply with probation. This is especially the case given that a probation officer will typically possess extensive information about such efforts, if any.

III. Conclusion

¶52 We conclude that the trial court did not violate Sharrow's rights under the Fourteenth Amendment when it revoked his probation and resentenced him to prison. Therefore, we affirm the judgment of the court of appeals, albeit on different grounds.

      Our holding is circumscribed to a defendant's financial inability to comply with conditions of probation which, on their face, do not establish a monetary obligation. We decline to adopt the Bearden rule with respect to a defendant's failure to comply with payment-related conditions of probation given that Colorado law already addresses a defendant's indigency in that context. See, e.g. , § 18-1.3-702(2)(b), C.R.S. (2018) (When a trial court "imposes a sentence, enters a judgment, or issues an order" requiring the defendant "to pay any monetary amount," the court must advise the defendant that if he "lacks the present ability to pay the monetary amount due without undue hardship" to him or his dependents, "the court shall not jail the defendant for failure to pay."); Crim. P. 32(c)(3)(I) (same). To avoid repetition, though, throughout this opinion we sometimes refer to probation, conditions of probation, and violations of probation in general and refrain from specifying each time that we mean nonpayment conditions of probation or violations of such conditions.

      The probation officer acknowledged that Geiger had offered Sharrow a job as a cook at a bar and grill establishment she owned. However, he testified that this was primarily a bar that served food, and probationers are generally not allowed to possess alcohol.

      We granted certiorari on the following two issues:
      1. Whether the court of appeals erred in concluding that, in the circumstances of this case, the trial court did not need to find that the petitioner had the financial ability to comply with the obligations of his probation before revoking probation.
      2. If so, whether the trial court applied the correct standard to find that the petitioner has the ability to pay.

      "Due process and equal protection principles converge in the ... analysis in these cases." Bearden , 461 U.S. at 665, 103 S.Ct. 2064. To ascertain if there has been a violation of a defendant's right to equal protection, the court "must determine whether, and under what circumstances, a defendant's indigent status may be considered in the decision whether to revoke probation." Id. at 665-66, 103 S.Ct. 2064. "This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine." Id. at 666, 103 S.Ct. 2064. Although the Court in Bearden suggested that due process may provide the most appropriate approach, see id. at 666 n.8, 103 S.Ct. 2064, in the end, it did not have to choose between the due process and equal protection approaches because they require similar considerations in this context. Id. at 666-67, 103 S.Ct. 2064.

      Relying on Williams and Tate , in Kinsey v. Preeson , 746 P.2d 542, 549-50 (Colo. 1987), we declared unconstitutional Colorado's "body execution statute," section 13-59-103, C.R.S. (1987), which contemplated imprisonment for failure to satisfy a civil judgment within the prescribed timeframe.

      We refer to the imposition of "imprisonment" following the revocation of probation because Sharrow received a prison sentence to the Department of Corrections after his probation was revoked. However, since what we aim to ward off is the unfair deprivation of an indigent probationer's conditional freedom, our holding applies with equal force to jail sentences and direct community corrections sentences following the revocation of probation for violation of a nonpayment condition of probation.

      Bearden mentioned only two State interests in sentencing: punishment and deterrence. 461 U.S. at 671-72, 103 S.Ct. 2064. But we do not read Bearden as having identified an exhaustive list of such interests. In Colorado, our legislature has established that the purposes of sentencing include: punishment, deterrence, the prevention of crime and the promotion of respect for the law, reduction of the potential that the offender will engage in criminal conduct after completion of his sentence, and rehabilitation. § 18-1-102.5(1), C.R.S. (2018) (listing these and other purposes).

      Section 16-7-403(2) has since been repealed. The current version of the statute now appears at section 18-1.3-102(2), C.R.S. (2018). The relevant language has not been substantively altered.

      In Afentul , we construed this statutory language as contemplating a burden-shifting procedure. We said that evidence that the defendant fails to pay restitution is "prima facie evidence" that he violated a condition of his deferred judgment, and once prima facie evidence has been presented by the prosecution, "the burden ... shifts to the defendant to establish by a preponderance of the evidence that he was financially unable to make the payments at the time they should have been made." 773 P.2d at 1085.

      Given the trial court's finding that Sharrow failed to make sufficient bona fide efforts to obtain employment, we need not address whether adequate alternatives to revocation and imprisonment existed.


source: Caselaw Access Project

license: Public Domain

text:
    HINSDALE COUNTY BOARD OF EQUALIZATION and Board of Assessment Appeals, State of Colorado, Petitioners v. HDH PARTNERSHIP ; Lawrence Ausherman; Hondros Family Real Estate, LLC; Mark L. Ish ; Herb Marchman; and Teresa M. Mull Revocable Trust, Respondents
    Supreme Court Case No. 17SC862
    Supreme Court of Colorado.
    April 8, 2019
    Attorneys for Petitioner Hinsdale County Board of Equalization: Schumacher & O'Loughlin, LLC, Michael P. O'Loughlin, Gunnison, Colorado
    Attorneys for Petitioner Board of Assessment Appeals: Philip J. Weiser, Attorney General, Krista M. Maher, Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado
    Attorneys for Respondents: Hoskin Farina & Kampf, Michael J. Russell, Andrew H. Teske, Karoline M. Henning, Grand Junction, Colorado
    En Banc
   JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 The Lake Fork Hunting and Fishing Club (the Club) in Hinsdale County, Colorado, consists of 1,400 acres divided into twenty-nine parcels called "Ranches" that are owned in fee simple. Each owner holding a deed to a Ranch becomes a member of the Club and is subject to a host of restrictive covenants and bylaws through which the Club exercises significant control over the property. The question before us is whether the restrictive covenants and bylaws render the Club the true "owner" of the Ranch parcels and therefore liable for property taxes, even though the Ranch owners hold record title to those parcels. The answer is no.

¶2 Respondents are four Ranch owners who, with notice of the Club's restrictive covenants and bylaws, purchased deeds conferring record title to their respective Ranches. In 2015, the Hinsdale County Assessor conducted valuations of the Respondents' Ranches and assessed property taxes to their parcels. Respondents protested these valuations and assessments to the Hinsdale County Board of Equalization (the BOE), which denied their petitions. Respondents then appealed the BOE's determination to the Board of Assessment Appeals (the BAA), arguing that because of the Club's restrictive covenants and bylaws, the Club is the true owner of those parcels and should be held responsible for real property taxes. The BAA denied the Respondents' appeal and affirmed the Assessor's valuation of the Ranch parcels.

¶3 The Ranch owners then appealed the BAA's decision to the court of appeals, which reversed the BAA's order. HDH P'ship v. Hinsdale Cty. Bd. of Equalization , 2017 COA 134, ¶¶ 3, 51, --- P.3d ----. The court of appeals looked beyond the Ranch owners' record title and examined the Club's restrictive covenants and bylaws. Given the extent of the Club's control over the property, the court concluded that the Club is the true owner of the parcels for purposes of property taxation and viewed the Ranch owners' interests as akin to mere licenses to conduct certain activities on the Club's property. Id. at ¶¶ 24-26.

¶4 We granted certiorari review, and now reverse the judgment of the court of appeals. Colorado's property tax scheme reflects legislative intent to assess property taxes to the record fee owners of real property. The Respondents in this case hold record title to their Ranch parcels, which they own in fee simple and can freely sell. They purchased their Ranch parcels with notice of, and subject to, the Club's restrictive covenants and bylaws, which they can vote to amend or repeal. Because Respondents voluntarily agreed to the restrictive covenants and bylaws that facilitate the collective use of their property for recreational purposes, we hold that they cannot rely on these same restrictive covenants and bylaws to avoid property tax liability that flows from their record title ownership. Accordingly, the court of appeals erred in relying on the Club's restrictive covenants and bylaws to conclude that the Club is the "owner" of the Ranch parcels and that the Ranch owners hold mere licenses to use Club grounds. The court further erred in holding that the Assessor therefore improperly valued the Respondents' parcels.

I. Facts and Procedural History

¶5 The Lake Fork Hunting and Fishing Club sits on 1,400 acres in Hinsdale County, Colorado. The Club was established in 1979 when the original developer recorded a "Declaration and Establishment of Covenants, Conditions, Reservations, and Restrictions for Lake Fork Hunting and Fishing Club" and subdivided the land.

¶6 The Club property is divided into twenty-nine parcels, or Ranches, that range in size from 35 to 155 acres. The Ranches are owned in fee simple; Ranch owners may freely sell their Ranch parcels and keep the proceeds. Each owner holding a deed to a Ranch becomes a member of the Club. Club membership follows record title to a Ranch and cannot be separately sold, assigned, or transferred, except for one "floating membership" created by the Club's bylaws that is not attached to a Ranch.

¶7 Club members in good standing can seek election to a three-member Board of Governors that manages the Club's affairs, including its grounds, cabins, funds, and the election of Club officers.

¶8 Through restrictive covenants, bylaws, and rules, the Club exercises significant control over the property. Notably, the Declaration provides that the Club reserves for the enjoyment and benefit of Club members "exclusive hunting and fishing rights and privileges, including all rights of ingress and egress upon and across the entire property, including all Ranches." This reservation allows all Ranch owners to hunt, fish, and camp throughout the entire 1,400 acres without regard to Ranch property lines. In a similar vein, the Club reserves the exclusive right to construct and maintain utilities, roads, lakes, ditches, bridges, and fences; pasture livestock on the entire property, including individual Ranches; impound, store, and divert waters of the Lake Fork of the Gunnison River across the Ranches for the benefit of Club members; and maintain easements necessary to upkeep the Club's skeet and trap field, golf driving range, and airport runway. The Declaration also imposes several restrictions on the Ranch parcels. For example, Ranches cannot be conveyed in smaller lots or subdivided; no trailers or mobile homes are permitted on the property without written permission of the Board of Governors; and no part of the property can be used for mining or drilling activities.

¶9 The Club's bylaws and rules further regulate use of the Club grounds (defined as Club property and all Ranches). Among other things, these bylaws and rules limit the number of guests a member may invite to the Club for hunting and fishing, and the number of days a guest may hunt or fish. Members must register themselves and their guests when using the Club grounds. Only "members in good standing" are entitled to the Club's privileges. And the Board of Governors can suspend the privileges of a member who violates the Club's regulations or "for any conduct which in the opinion of the Board, is improper or prejudicial to the welfare of or reputation of the Club."

¶10 Importantly, although the Ranch owners take their parcels subject to the Club's covenants and bylaws, they can vote to amend or repeal those covenants and bylaws, or even terminate the Declaration in its entirety. As an example of the Ranch owners' self-governance, a supermajority of Ranch owners voted in 1999 to amend the Declaration to prohibit the construction of any residences on an individual Ranch.

¶11 Respondents HDH Partnership, Lawrence Ausherman, Mark L. Ish, Herb Marchman, Hondros Family Real Estate, LLC, and Teresa M. Mull Revocable Trust (collectively, Respondents) own Ranches in the Club. The Respondents purchased their Ranches via general warranty or quitclaim deeds and hold record title to their Ranches. It is undisputed that Respondents had notice of the restrictive covenants when they purchased their respective parcels.

¶12 In 2015, the Hinsdale County Assessor conducted new valuations of the Ranch parcels and assessed property taxes to the Ranch owners. Respondents protested the valuations and assessments to the BOE, which denied Respondents' petitions. Respondents appealed the BOE's decision to the BAA, arguing that although they hold record title to the Ranches, they do not actually enjoy the traditional incidents of ownership, which instead are retained by the Club. Therefore, Respondents contended, the Club should be considered the "owner" of those parcels for purposes of property taxation.

¶13 The BAA rejected Respondents' arguments. It observed that Respondents obtained interests in their Ranches through deeds transferring real property, and that as holders of those deeds, Respondents had the unrestricted right to sell their Ranch parcels and keep the proceeds. The BAA also observed that Ranch owners enjoy other quintessential incidents of ownership, such as the right to possess and use the entire 1,400-acre Club grounds (including to hunt and fish), and the right to exclude non-members from Club grounds. Indeed, it found that the use of the entire Club grounds is a benefit that Respondents purposefully bargained for when purchasing property rights within the Club's grounds. The BAA thus viewed the Club's restrictions as the Ranch owners' exercise of their liberties and self-governance, finding that the restrictions "are entirely self-imposed as they can be amended or terminated at any time by the majority vote of the Ranch owners." Finally, it rejected Respondents' attempt to classify their property rights as mere licenses or timeshares, reasoning that Respondents can sell, transfer, or dispose of their parcels as they see fit, and that their access to Club grounds is not time-limited.

¶14 Respondents appealed the BAA's decision to the court of appeals, which reversed the BAA's order. HDH P'ship , ¶¶ 3, 51. The court first concluded that record title is not determinative of property ownership. Id. at ¶¶ 16-17. It reasoned that, although section 39-5-102(1), C.R.S. (2018), directs assessors to ascertain ownership "from the records of the county clerk and recorder," such records are merely "prima facie evidence of all things appearing therein." Id. at ¶ 16 (citing § 39-1-115, C.R.S. (2018) ). Because "prima facie" means "[a]t first sight; on first appearance but subject to further evidence or information," see prima facie, Black's Law Dictionary (10th ed. 2014), and because section 39-5-122(2), C.R.S. (2018), allows a person who believes property has been erroneously assessed to him or her to "appear before the assessor and object," the court concluded that record title "merely creates a rebuttable presumption" of ownership. HDH P'ship , ¶¶ 16-17.

¶15 The court then decided it was required to look beyond "form," or record title, and examine the "substance" of Respondents' and the Club's rights to determine who should be held responsible for taxes. See id. at ¶¶ 18-27. It concluded that, because the Club has a high degree of control over the grounds, and because Respondents may only use the grounds subject to the Club's control and regulation, the Club is the true owner of the parcels (and therefore liable for property taxes), while Respondents' fee title interests are akin to mere licenses. See id. at ¶¶ 21-27.

¶16 The court also summarily rejected the BOE's contention that the Colorado Common Interest Ownership Act (CCIOA) required the Assessor to assess the parcels individually, reasoning that section 38-33.3-105(2), C.R.S. (2018), applies only to common interest communities created after June 30, 1992, unless they have elected CCIOA treatment. Id. at ¶ 39 (citing §§ 38-33.3-115, - 117, -118, C.R.S. (2018) ). The court noted that the Club was created in 1979 and has not elected CCIOA treatment. Id.

¶17 Finally, based on its conclusion that the Club is the true property owner and that Respondents hold only licenses to use Club grounds, the court held that the Assessor improperly valued the parcels. Id. at ¶ 46.

¶18 We granted the BOE's and the BAA's petitions for a writ of certiorari to review the court of appeals' decision. We now reverse the judgment of the court of appeals and reinstate the BAA's order.

II. Standard of Review

¶19 A taxpayer who challenges an assessment bears the burden to prove, by a preponderance of the evidence, that the assessor's valuation is incorrect. Cantina Grill, JV v. City & Cty. of Denver Bd. of Equalization , 2015 CO 15, ¶ 15, 344 P.3d 870, 876. An appellate court may set aside an order of the BAA only if it finds an abuse of discretion, or that the order was arbitrary and capricious, based upon clearly erroneous factual findings, unsupported by substantial evidence in the record, or otherwise contrary to law. See § 24-4-106(7), C.R.S. (2018); Boulder Cty. Bd. of Comm'rs v. HealthSouth Corp ., 246 P.3d 948, 951 (Colo. 2011). We review questions of law and statutory interpretation de novo. Boulder Cty. , 246 P.3d at 951.

III. Analysis

¶20 Petitioners argue that the court of appeals erred in holding that the Club is the true owner of the Ranches for purposes of property tax liability, and in holding that Respondents, who are the record title owners of the Ranches, possess mere licenses to use Club grounds. We agree.

¶21 We begin by discussing how the relevant statutory tax scheme reflects the legislature's intent to assess property taxes to the record title owners of real property. We explain why the cases relied on by the court of appeals are inapplicable here. We then discuss why the restrictive covenants and bylaws here do not strip Respondents of their ownership interest in their respective parcels and note the policy implications of the court of appeals' ruling to the contrary.

A. Tax Statutes Reflect Legislative Intent to Hold Record Title Owners Accountable for Property Taxes

¶22 Colorado's tax statutes reflect the legislature's intent to levy property tax on the record fee owner of real property. To begin, section 39-5-104, C.R.S. (2018) requires county assessors to appraise and value "each tract or parcel of land" separately. The assessor must then mail a notice of valuation to "each person who owns land." § 39-5-121(1)(a)(I), C.R.S. (2018). Section 39-5-102(1), in turn, provides that "[o]wnership of real property shall be ascertained by the assessor from the records of the county clerk and recorder." Importantly, this provision does not authorize the assessor to mail a notice of valuation to a party that does not hold record ownership. By their plain language, these statutes provide that assessors must value and tax separate parcels of real property and assess taxes on the parcel owner as determined by the county's real property records.

¶23 The court of appeals' decision in Traer Creek-EXWMT LLC v. Eagle County Board of Equalization , 2017 COA 16, 401 P.3d 569, comports with our reading of the property tax scheme. In that case, the court of appeals affirmed the dismissal of a commercial lessee's challenge to a property tax valuation. Traer Creek , ¶ 1, 401 P.3d at 571. Traer Creek was contractually obligated to pay property taxes for a parcel it leased; however, the owner typically paid the property taxes and Traer Creek reimbursed the owner. Id. at ¶ 2, 401 P.3d at 571. After the owner received a notice of valuation regarding the parcel, Traer Creek initiated a protest to challenge it, arguing that it had standing because it "owned" an interest in property, albeit a leasehold interest. Id. at ¶¶ 3, 10, 401 P.3d at 571-72.

¶24 The court of appeals rejected Traer Creek's argument, explaining that "[w]hen the valuation in question concerns the fee interest in real property, the statutory phrase 'owns land' is most naturally understood as referring to a fee owner, not someone with a mere leasehold interest in property." Id. at ¶ 11, 401 P.3d at 572 (quoting § 39-5-121(1)(a)(I) ). The division reasoned that section 39-5-102(1) confirms this understanding of ownership because it provides that "[o]wnership of real property shall be ascertained by the assessor from the records of the county clerk and recorder." Id. at ¶ 12, 401 P.3d at 572. Such records, the division noted, "typically identify fee owners." Id. And "only fee owners of real property are liable to the taxing authority for taxes assessed pursuant to a valuation of real property." Id. (emphasis omitted). The division also observed that it is the record fee owners who receive notice of, and have the authority to challenge, the valuation of their real property. Id. at ¶¶ 13-16, 401 P.3d at 572-73 (citing §§ 39-5-121(1)(a), - 122 ; §§ 39-8-106, - 108, C.R.S. (2018) ). Thus, "the fee owner is the only party given statutory standing to object to and protest the assessor's valuation of real property in fee." Id. at ¶ 15, 401 P.3d at 572.

¶25 As the Traer Creek division recognized, property tax valuation and assessment in Colorado is premised on the notion that the party holding record title to the property is the fee owner responsible for property taxes. See id. ; see also § 39-5-102(1). Even where there are multiple interests in a specific property (such as Traer Creek's leasehold interest), the "unit assessment rule" requires all estates in a parcel of real property to be assessed together, and taxes are assessed to the record fee owner as though it was an unencumbered fee. Cantina Grill , ¶ 20, 344 P.3d at 877 ; City & Cty. of Denver v. Bd. of Assessment Appeals , 848 P.2d 355, 358 (Colo. 1993) ; see also § 39-1-106, C.R.S. (2018) ("For purposes of property taxation, it shall make no difference that the use, possession, or ownership of any taxable property is qualified, limited, not the subject of alienation, or the subject of levy or distraint separately from the particular tax derivable therefrom."). The responsibility of apportioning the tax among various interest holders rests with the private parties who own those interests, and can be resolved as a contractual matter between landlord and tenant. City & Cty. of Denver , 848 P.2d at 359-60. Notably, this approach avoids the "administrative nightmare" of requiring an assessor to look beyond record title to examine the terms of leases to allocate multiple interests in the taxable property. Id.

B. Cases That Look Beyond "Forms and Labels" In Other Contexts Are Inapposite Here

¶26 The court of appeals did not reference Traer Creek . Instead, it reasoned that the records of the county clerk and recorder are merely "prima facie evidence of all things appearing therein," and therefore, record title "merely creates a rebuttable presumption [of property ownership], not a conclusive determination," HDH P'ship , ¶ 16 (citing § 39-1-115 ). Relying on a handful of cases, the court then concluded that it must look beyond "form[s] and labels" to determine "real ownership." Id. at ¶¶ 18-20 (citing Cantina Grill , 2015 CO 15, 344 P.3d 870 ; Mesa Verde Co. v. Bd. of Cty. Comm'rs , 178 Colo. 49, 495 P.2d 229 (1972) ; City of Golden v. Aramark Educ. Servs., LLC , 2013 COA 45, 310 P.3d 262 ; Bernhardt v. Hemphill , 878 P.2d 107 (Colo. App. 1994) ; Gunnison Cty. v. Bd. of Assessment Appeals , 693 P.2d 400 (Colo. App. 1984) ; Vill. at Treehouse, Inc. v. Prop. Tax Adm'r , 2014 COA 6, 321 P.3d 624 ). But the court mistakenly relied on these cases to conclude that it was required to look beyond record fee title to determine who is the true "owner" of the Ranches in this case.

¶27 The substance-over-form doctrine is one of a group of judicially created anti-abuse doctrines that have developed in federal tax jurisprudence over the last century. Courts have applied the doctrine along with other, closely related (and often overlapping) doctrines such as the business purpose, economic substance, sham transaction, and step transaction to break abusive tax shelters. See Joseph Bankman, The Economic Substance Doctrine , 74 S. Cal. L. Rev. 5, 7 (2000) ; see also Linda D. Jellum, Codifying and "Miscodifying" Judicial Anti-Abuse Tax Doctrines , 35 Va. Tax Rev. 579, 590-91 (2014). Courts use these doctrines to call out questionable transactions undertaken to minimize or avoid income tax by requiring a transaction to comply with the underlying purpose of a tax statute and not just its language. Jellum, supra , at 590. But the substance-over-form doctrine is inapplicable here.

¶28 The passage quoted by the court of appeals from City of Golden observed that courts have "refused to permit the transfer of formal legal title to shift the incidence of taxation attributable to ownership of property where the transferor continues to retain significant control over the property transferred." HDH P'ship , ¶ 18 (quoting City of Golden , ¶ 31, 310 P.3d at 269 ). This passage from City of Golden was lifted from the U.S. Supreme Court's decision in Frank Lyon Co. v. United States , which noted that in applying the substance-over-form doctrine "the Court has looked to the objective economic realities of a transaction rather than to the particular form the parties employed." 435 U.S. 561, 572-73, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978). But there is no questionable transaction here shifting formal legal title to minimize or avoid taxation. The Club did not, for example, transfer fee title in the parcels to the Ranch owners but then retain such significant incidents of ownership that it would be unfair or inequitable to transfer the tax burden to the Ranch owners and not to tax the Club.

¶29 This court's decisions in Mesa Verde and Cantina Grill likewise do not support the court of appeals' approach here. Both of those cases concerned a unique application of the unit assessment rule allowing assessment of property taxes to private concessioners operating businesses on otherwise tax-exempt, government-owned land. Mesa Verde , 495 P.2d at 231-32 ; Cantina Grill , ¶¶ 1-4, 20-22, 344 P.3d at 873-74, 877. As we explained in Cantina Grill , where the fee owner of real property is the government and therefore not subject to taxation, the unit assessment rule permits taxation of the private possessory interest in the land and improvements, given the absence of a fee owner who pays the full taxes. Cantina Grill , ¶ 21, 344 P.3d at 877 (citing Bd. of Cty. Comm'rs v. Vail Assocs., Inc. , 19 P.3d 1263, 1279 (Colo. 2001) ); see also § 39-1-107(4), C.R.S. (2018) ("The property tax on a possessory interest in real or personal property that is exempt from taxation under this article shall be assessed to the holder of the possessory interest and collected in the same manner as property taxes assessed to owners of real or personal property.").

¶30 In Mesa Verde , we examined whether, for ad valorem tax purposes, the concessioner was the "owner" of improvements it had built in Mesa Verde National Park to carry on its service business to the public. 495 P.2d at 231. We noted that although the United States held legal title to the improvements, the parties' contract gave the concessioner a "possessory interest in all concessioner's improvements consisting of all incidents of ownership," including the right to sell, transfer, assign, encumber, or mortgage its possessory interest, and to operate the properties for private profit. Id. at 232-33. We reasoned that because the concessioner possessed "the most significant incidents of ownership," it would be "especially unjust" to allow the concessioner to "escape state taxation merely because the United States held legal title." Id. at 233. In other words, we looked beyond legal title in Mesa Verde to ensure that a private party's possessory interests in otherwise tax-exempt government property did not escape taxation.

¶31 More recently, in Cantina Grill , we addressed taxation of concessioners' private possessory interests in tax-exempt city-owned airport land. ¶ 1, 344 P.3d at 873-74. As with Mesa Verde , we looked beyond the government's legal title to examine the nature of the concessioners' possessory interests because the tax-exempt status of the government fee owner meant that ordinary application of the unit assessment rule would not capture those possessory interests. Id. at ¶¶ 22, 29-31, 344 P.3d at 877, 879.

¶32 In short, we looked beyond title in Mesa Verde and Cantina Grill to assess taxable private possessory interests in otherwise tax-exempt land. But those cases do not mandate a substance-over-form approach in the ordinary fee title ownership situation here, particularly in the absence of a transaction or arrangement undertaken to minimize or avoid taxation.

¶33 The court of appeals' decision in Gunnison County concerned both the tax-exempt nature of government property and a transaction. There, Gunnison County needed to renovate its courthouse and jail facilities.

Gunnison Cty. , 693 P.2d at 402. To enable those repairs, the county entered into a lease-purchase agreement under which it conveyed title to its courthouse and jail to a private party who funded improvements to those facilities; the county then leased the property back under renewable one-year leases with an option to purchase for a nominal amount at the end of the lease. Id. When the county assessor assessed property taxes against the courthouse and jail, the county paid the taxes pursuant to its lease but then petitioned for an abatement or refund, arguing that the courthouse and jail were county property and therefore tax-exempt. Id.

¶34 Citing Mesa Verde , the court of appeals looked beyond record title and concluded that the county had retained sufficient control of the property to render it tax-exempt, reasoning that it occupied and controlled the property, controlled construction and improvements on the property, maintained and insured the property, and held an option to purchase the property for a nominal amount at the end of the lease. Gunnison Cty. , 693 P.2d at 404 (citing Colo. Const. art. X, § 4 ). Although the record title holder in Gunnison County ultimately was not liable for property taxes, the court of appeals' application of the substance-over-form doctrine focused on a transaction that nominally shifted title from the county to a private party. Moreover, the outcome there must be understood in the same general context as Mesa Verde and Cantina Grill . Given the circumstances of the lease-purchase arrangement, including that the property remained occupied and used by the tax-exempt county that originally owned the property, the division understandably upheld the trial court's determination that the property came within the public property tax exemption under article X, section 4 of the Colorado Constitution. Id.

¶35 The other cases relied on by the court of appeals are also inapplicable.

¶36 In Village at Treehouse , the court of appeals held that development rights to build condominium units purchased from a homeowners' association constituted a taxable real property interest for ad valorem tax purposes, even though the transferor association retained rights in the common elements. ¶¶ 8-18, 321 P.3d at 624, 626-27. But Village at Treehouse did not clearly follow a substance-over-form principle. See id. at ¶ 16, 321 P.3d at 627. In fact, that decision is consistent with the "record title" approach because the conveyance of the development right there was recorded. Id. And in any event, Village at Treehouse aligns with the notion of imputing tax liability to all interests in real property, unless lawfully exempted. See § 39-1-102(16), C.R.S. (2018) (" 'Taxable property' means all property, real and personal, not expressly exempted from taxation by law.").

¶37 Finally, in Bernhardt , the court of appeals held that a timeshare contract did not create a real property interest. 878 P.2d at 113. But Bernhardt is inapposite because it involved a claim to contractual timeshare rights in a motel, not the taxability of a property owner's fee interest in land. Id. at 111-13.

¶38 In sum, the court of appeals mistakenly relied on these cases to conclude that it was required to look beyond record fee title to determine who is the true "owner" of the Ranches. The-substance-over-form doctrine is inapplicable here; as noted above, this case does not concern a questionable transaction taken to minimize or avoid taxation or otherwise improperly shift tax liability to the Ranch owners. Certainly, the cases relied on by the court of appeals do not suggest that a record fee owner of real property may not be the true "owner" for property tax purposes merely because restrictive covenants and bylaws limit certain aspects of the owner's fee interest.

C. The Restrictive Covenants and Bylaws Did Not Strip Respondents of Fee Ownership of the Ranches or Their Property Tax Liability

¶39 After determining that it was required to look beyond fee title to determine the "real ownership" of the Ranch parcels, the court of appeals examined the restrictive covenants on the Ranch parcels to conclude that the Club is the true owner for property tax purposes, and that the Ranch owners' rights amount to "mere license to use Club Property, not fee ownership." HDH P'ship , ¶¶ 21-30. We disagree with the court's reasoning and conclusion.

¶40 The court of appeals observed that the Club exerts a high degree of control over the Club grounds through restrictive covenants and bylaws, and that the Ranch owners may only use the grounds subject to the Club's regulation. Id. at ¶ 21. Given the extent of the Club's control, the court concluded that the Club enjoys most of the traditional benefits of real property ownership. Id. at ¶¶ 25-26.

¶41 The court then likened the Ranch owners' rights to mere licenses, relying on another division's reasoning in Roaring Fork Club, LLC v. Pitkin County Board of Equalization , 2013 COA 167, 342 P.3d 467. There, the question was whether a private golf club's sold membership constituted an interest in land akin to a leasehold subject to property tax under the unit assessment rule. Roaring Fork , ¶¶ 1, 35, 342 P.3d at 468, 472. Roaring Fork Club members had "a personal privilege to perform any of a series of acts on the club's property, including playing golf, fishing, dining, or working out at the fitness facility." Id. at ¶ 41, 342 P.3d at 473. But members had no right to possession, could not receive rents or profits from the club's property, and could not "exclude any others from the club's property who would use it in the same way." Id. at ¶¶ 38, 40, 342 P.3d at 472-73. Furthermore, memberships could be revoked for non-payment of dues or violation of club rules. Id. at ¶ 41, 342 P.3d at 473. The Roaring Fork division ultimately concluded that the memberships were merely licenses, and not taxable real property interests in land. Id. at ¶¶ 36-42, 342 P.3d at 472-73.

¶42 Here, equating the Ranch owners' fee title ownership with the benefits of the golf club's membership in Roaring Fork , the court of appeals concluded that the Ranch owners' rights are akin to holding a mere license because the Club "enjoys most of the traditional benefits of real property ownership." HDH P'ship , ¶¶ 21, 25-26, 30.

¶43 The court of appeals' reliance on Roaring Fork was misplaced. First, Roaring Fork did not concern a substance-over-form analysis vis-à-vis record fee title. Second, as the division in Roaring Fork noted, a license is not an ownership interest in land. ¶ 31, 342 P.3d at 472 ; compare Radke v.Union Pac. R.R. Co., 138 Colo. 189, 334 P.2d 1077, 1087 (1959) ("[S]trictly speaking [a license] is not property or a property right, nor does it create a vested right."), with Title, Black's Law Dictionary (10th ed. 2014) (defining title as "[t]he union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself"). Third, the membership agreement at issue in Roaring Fork is wholly unlike the record fee ownership of the Ranch parcels held by Respondents here. The golf club membership agreement in Roaring Fork stated that it was "a revocable license" to use the club and its facilities, and not "an equity or ownership interest" in the property. ¶ 7, 342 P.3d at 469. It made clear that members did not receive any property or ownership interest in the club or its property, and that membership in the club did not convey an entitlement to "vote or participate" in the club's management. Id.

¶44 Respondents' fee interests in this case are not mere licenses. The Ranch owners purchased their Ranches via general warranty or quitclaim deeds and hold record title to their ranch parcels in fee simple. In short, Respondents hold vested property rights in land. Even under the restrictive covenants and bylaws, the Club cannot revoke their rights in fee simple or inhibit their ability to sell their parcels and retain the proceeds.

¶45 And in any event, as recognized by the BAA, the restrictions on the Ranch owners' use of the property are self-imposed. Indeed, these restrictive covenants and bylaws purposefully facilitate the Ranch owners' collective use of their Ranch properties for hunting, fishing, and other recreational purposes. It is undisputed that Respondents had notice of the restrictive covenants when they purchased their respective parcels. It is also undisputed that the Ranch owners may vote to amend or repeal the restrictive covenants and bylaws or even terminate the Declaration. Moreover, Club members in good standing may run for seats on the Board of Governors, and may vote for and remove Board members, and thus have a say in management of the Club. If anything, the record before us indicates that Ranch owners have chosen to ensure the collective recreational use of their hunting and fishing grounds by voting to amend the Declaration to prohibit the construction of a residence on any individual Ranch. In short, by purchasing deeds to their Ranch parcels with notice of the restrictive covenants and bylaws, Respondents got what they bargained for, and we hold that they cannot rely on these same restrictive covenants and bylaws to avoid property tax liability that flows from their record title ownership.

¶46 Finally, by holding that the determination of ownership of real property requires looking beyond legal title to the nature of restrictive covenants or other encumbrances that run with the land, we note that the court of appeals' approach could have unintended consequences for real property owners, county assessors, title insurers, and homeowners' associations because it injects uncertainty into who "owns" taxable real property in Colorado. The opinion below could significantly burden county assessors, who often have limited resources. The uncertainty of ownership may also create problems for title insurers to assess risks. Finally, homeowners' associations and similar entities that enforce restrictive covenants could face uncertainties about whether they have crossed the line into the role of "true ownership" of property for tax purposes. These policy implications further convince us not to apply a substance-over-form approach to the facts of this case.

¶47 In sum, we hold the court of appeals erred in concluding that the Club is the "owner" of the Ranch parcels and that the Ranch owners' rights amount to mere license to use Club property, not fee ownership, and in concluding that the Assessor therefore improperly valued the Ranch parcels.

D. Colorado Common Interest Ownership Act

¶48 The court of appeals held that CCIOA section 38-33.3-105(2), which governs taxation of common interest community properties, applies to common interest communities created only after June 30, 1992, unless they have elected CCIOA treatment. HDH P'ship , ¶ 39. Since the Club was created in 1979, the court concluded that section 38-33.3-105(2) was inapplicable to its analysis. Id.

¶49 However, section 38-33.3-117(1)(c), C.R.S. (2018), titled "Applicability to preexisting common interest communities," lists CCIOA section 38-33.3-105 as applying to "all common interest communities created within this state before July 1, 1992, with respect to events and circumstances occurring on or after July 1, 1992." (Emphasis added.) We agree with the parties that the court of appeals erred in holding that CCIOA section 38-33.3-105(2) applies to common interest communities created only after June 30, 1992. But because we have already concluded that individual Ranch owners-not the Club-are subject to taxation, we need not decide whether CCIOA otherwise applies to the Club parcels.

IV. Conclusion

¶50 For the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the BAA's order.

JUSTICE GABRIEL concurs in the judgment, and JUSTICE HOOD joins in the concurrence in the judgment.

JUSTICE GABRIEL, concurring in the judgment.

¶51 Although I agree with much of the majority's analysis in this case, as well as with the result that it reaches, for two reasons, I cannot subscribe to the majority's discussion in Part III(B) of its opinion of the cases that look beyond "forms and labels" to determine actual property ownership.

¶52 First, I am not persuaded that the doctrine is necessarily limited to cases involving "questionable transaction[s]" taken to minimize or avoid taxation, maj. op. ¶ 38, or in which private concessioners operate businesses on otherwise tax-exempt, government-owned land, and I fear the unintended consequences of what I believe may be an overly broad limitation.

¶53 Second and perhaps more important, in my view, the majority's discussion of this issue is unnecessary. The conclusion that the majority reaches in this case is amply supported by the fact that Respondents took record title voluntarily and with knowledge of the restrictive covenants and bylaws on which they now seek to rely to disclaim ownership. In these circumstances, I would adhere to the "cardinal principle of judicial restraint" of which then-Judge and now-Chief Justice John Roberts has reminded us: "[I]f it is not necessary to decide more, it is necessary not to decide more." PDK Labs. Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).

¶54 For these reasons, I respectfully concur in the judgment only.

I am authorized to state that JUSTICE HOOD joins in this concurrence.

      The BOE and BAA each filed petitions for certiorari review, presenting similar questions. We granted certiorari review of the BOE's petition on the following issue:
      1. Whether the court of appeals erred in determining that the homeowners association that manages a subdivision, rather than the fee title owners of the subdivision parcels, is subject to real property taxation due to the covenants that permit the association to restrict property access for nonpayment of association assessments.
      We also granted certiorari review of the BAA's petition on the following issue:
      2. Whether the court of appeals erred in deciding that record title owners of real property are not the true owners of the property and are therefore not responsible for property taxes, and that, instead, an entity that enforces covenants on the property is the true owner.

      The "floating membership" is not at issue in this case.

      Respondent HDH Partnership owns one Ranch parcel; Respondents Ausherman, Ish, and Marchman collectively own one Ranch parcel; Hondros Family Real Estate, LLC owns a 1/3 interest in each of three Ranch parcels; and Respondent Teresa M. Mull Revocable Trust owns a 1/3 interest in one Ranch parcel.

      Consequently, these common law doctrines are the subject of some debate because they represent a decidedly nontextual approach to the interpretation of tax statutes. Jellum, supra , at 589-90; see also Bankman, supra , at 5.

      Respondents also claim that the "floating membership" demonstrates the irrelevance of the record title form. They argue that the floating membership enjoys "exactly the same rights," even though such membership holds no title to the land. We are unpersuaded. The single floating membership-unlike deed ownership-is a contractual right to use Club grounds created by the Club's bylaws. In contrast to Ranch ownership, Club members can vote to terminate the floating membership by amending the bylaws.