The Second Amendment to the United States Constitution protects the right of Americans to keep and bear arms. Recently, there has been significant U.S. Supreme Court decisions affecting what restrictions the government can place on an individual’s right to keep firearms.

One such restriction that has been upheld by the U.S. Supreme Court is the federal statute prohibiting convicted felons from possessing firearms, 18 U.S.C. § 922(g)(1). In addition to federal laws restricting gun rights, Colorado state law makes it a felony for a person who was previously convicted of a felony or a misdemeanor crime of domestic violence. C.R.S.  18-12-108(1).

Both state and federal law is clear that a person who has been convicted of a felony is stripped of their Second Amendment right to possess guns. But what about those who received deferred adjudication?

What is Colorado Deferred Adjudication?

Under Colorado state law, certain offenders are allowed to plead guilty to a crime but avoid entry of a judgment of conviction. This is known as deferred adjudication under Colorado Revised Statute 18-1.3-102(1)(a). The statute provides:

In any case in which the defendant has entered a plea of guilty, the court in accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense.

Once the deferred adjudication statute has been invoked, the defendant may enter into a written stipulation approved by the parties and the court, and the “conditions imposed on the stipulation shall be similar in all respects to conditions permitted as part of probation.”

If the defendant complies with the stipulated conditions, the prior guilty plea “shall be withdrawn, and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” C.R.S. § 18-1.3-102(2). The Colorado Supreme Court has held that a deferred judgment is a continuance of the defendant’s case in lieu of the imposition of sentence. Kazadi v. People, 2012 CO 73 ¶ 20.

Colorado Possession of Weapons by Previous Offenders

Colorado state law prohibits a person that has been previously convicted for a felony or misdemeanor crime of domestic violence from possessing a firearm. C.R.S. § 18-12-108(1).

Federal Prohibition on Possession of a Firearm by Convicted Persons

Similar to Colorado law, federal law prohibits a person convicted of an offense punishable by more than one year from possessing a firearm. 18 U.S.C. § 922(g)(1).

Does Deferred Judgment Qualify as a “Conviction?”

Both Colorado and federal statutes restrict individuals who have been previously convicted.

Under Colorado law, the acceptance of a guilty plea is defined as “a conviction for the offense.” C.R.S. § 16-7-206(3). The Colorado Supreme Court has held that a trial court’s acceptance of a guilty plea prior to deferred judgment and sentence “yields a conviction.” M.T. v. People, 269 P.3d 1219, 1221–22 (Colo. 2012).

For some state law purposes, a defendant “generally is no longer ‘convicted’” after completion of a deferred sentence. McCulley v. People, 463 P.3d 254, 258 (Colo. 2020). In People v. Allaire, the Colorado Court of Appeals considered whether a deferred adjudication may be considered a conviction under § 18-12-108. 843 P.2d 38 (Colo. App. 1992). The court noted that the law “contains no reference to judgment or judgment of conviction.” As such, the court held that the “previously convicted” element of § 18-12-108 is satisfied by proof of a guilty plea and deferred judgment, and that a judgment of conviction and sentencing are not required. Accordingly, a deferred adjudication may qualify as a prior conviction under C.R.S. § 18-12-108, prohibiting the possession of firearms by a convicted person.

Federal law is a bit murkier. Whether deferred adjudication under Colorado law qualifies as a “conviction” for § 922(g) purposes appears to be an open question of law. The United States District Court for the District of New Mexico has addressed deferred adjudication under New Mexico law and held that, although deferred adjudication fell outside the scope of New Mexico’s state felon-in-possession statute, the federal statute does not categorically exclude individuals who received deferred sentences and orders of dismissal. United States v. Reese, No. 09-CR-2982 JEC (D.N.M. Aug. 17, 2011). As such, the district court found that the prior deferred adjudication qualified as a “conviction” under 18 U.S.C. § 922(g)(1).

In another federal case, the United States District Court for the District of Colorado held that a deferred adjudication qualified as a “criminal justice sentence” for sentencing enhancement purposes. United States v. Norman, 129 F.3d 1393, 1401–02 (10th Cir. 1997).

Accordingly, under Colorado law, a deferred adjudication qualifies as a “conviction” for state and federal purposes. If the offense is punishable by more than 12 months imprisonment, the deferred adjudication appears to likely qualify as a “conviction” for federal firearm prohibition. However, there are no reported federal cases directly on point dealing with the Colorado deferred adjudication statute and felon-in-possession laws.

Additionally, the Colorado State Public Defender has weighed in on the issue. In their 2019 treatise titled, “The Consequences of Conviction: Sanctions Beyond the Sentence Under Colorado Law,” the Colorado Public Defender discussed firearm restrictions. Id. at pp. 25–26. The Public Defender says the following regarding a deferred judgment and firearms:

Deferred judgment and sentence, pursuant to section 18-1.3-102, is a prior conviction. Although the law is unsettled, this appears to be true even if the deferred judgment and sentence is successfully completed.

A person who receives deferred judgment for a charge that carries a maximum sentence greater than one year would likely be prohibited from possessing a firearm under federal statute. The same is true for someone who pleads guilty to a misdemeanor which qualifies as a crime of domestic violence under Colorado law.

Protect Yourself and Your Rights with Experienced Attorneys

 Approximately one-third of adult Americans report owning a gun. It is essential that you have legal representation that understands your Second Amendment rights and how a deferred adjudication can impact you. If you or someone you know have questions about a case or gun ownership, reach out to Evergreen Attorneys today for a free consultation.