Colorado Criminal Law – Understanding Mandatory Sentencing For Violent Crimes
Colorado Criminal Law – Understanding Mandatory Sentencing For Violent Crimes – Understanding Colorado’s mandatory sentencing laws for crimes of violence is critical to making the decision on whether a trial is a viable option when the evidence in a case against you is strong.
Colorado Has Had Mandatory Prison (Department of Corrections – DOC)Sentencing For Crimes of Violence For Decades
There is a particular subset of Colorado felonies labeled “crimes of violence.” This group of felonies carry with them – upon a conviction – a mandatory sentence to prison. They also can carry longer periods of actual incarceration in prisons because of the way the Colorado prison system awards credits for time actually served in prison.
Mandatory sentencing means that a Judge MUST sentence you if you are convicted of a Colorado crime of violence to the mandatory minimum sentence for that particular crime as provided in the law.
Always Start With The Law – 18-1.3-406.
18-1.3-406. Mandatory Sentences for Violent Crimes
[HMS – (1)(a) is the key provision and explains the mandatory nature of a sentence for a Colorado crime of violence. It also provides for the “escape hatch” provision which allows a judge – within 91 days of sentence – to reconsider the sentence and relieve the accused of the harsh provisions of the law]
(1) (a) Any person convicted of a crime of violence shall be sentenced pursuant to the provisions of section 18-1.3-401(8) to the department of corrections for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range provided for such offense in section 18-1.3-401(1) (a), as modified for an extraordinary risk crime pursuant to section 18-1.3-401(10), without suspension;
[HMS – Here is the “escape hatch” language..]
…except that, within ninety-one days after he or she has been placed in the custody of the department of corrections, the department shall transmit to the sentencing court a report on the evaluation and diagnosis of the violent offender, and the court, in a case which it considers to be exceptional and to involve unusual and extenuating circumstances, may thereupon modify the sentence, effective not earlier than one hundred nineteen days after his or her placement in the custody of the department. Such modification may include probation if the person is otherwise eligible therefor. Whenever a court finds that modification of a sentence is justified, the judge shall notify the state court administrator of his or her decision and shall advise said administrator of the unusual and extenuating circumstances that justified such modification.
The state court administrator shall maintain a record, which shall be open to the public, summarizing all modifications of sentences and the grounds therefor for each judge of each district court in the state. A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense, as defined in section 18-1.3-1003(5), committed on or after November 1, 1998, that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401(1) (a) (V) (A) up to a maximum of the person’s natural life, as provided in section 18-1.3-1004(1).
(2) (a) (I) “Crime of violence” means any of the crimes specified in subparagraph (II) of this paragraph (a) committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person:
(A) Used, or possessed and threatened the use of, a deadly weapon; or
(B) Caused serious bodily injury or death to any other person except another participant.
(II) Subparagraph (I) of this paragraph (a) applies to the following crimes:
(A) Any crime against an at-risk adult or at-risk juvenile;
(C) First or second degree assault;
(E) A sexual offense pursuant to part 4 of article 3 of this title;
(F) Aggravated robbery;
(G) First degree arson;
(H) First degree burglary;
(J) Criminal extortion; or
(K) First or second degree unlawful termination of pregnancy.
(b) (I) “Crime of violence” also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim. For purposes of this subparagraph (I), “unlawful sexual offense” shall have the same meaning as set forth in section 18-3-411(1), and “bodily injury” shall have the same meaning as set forth in section 18-1-901(3) (c).
(II) The provisions of subparagraph (I) of this paragraph (b) shall apply only to felony unlawful sexual offenses.
(c) As used in this section, “at-risk adult” has the same meaning as set forth in section 18-6.5-102(2), and “at-risk juvenile” has the same meaning as set forth in section 18-6.5-102(4).
(3) In any case in which the accused is charged with a crime of violence as defined in subsection (2) (a) (I) of this section, the indictment or information shall so allege in a separate count, even though the use or threatened use of such deadly weapon or infliction of such serious bodily injury or death is not an essential element of the crime charged.
(4) The jury, or the court if no jury trial is had, in any case as provided in subsection (3) of this section shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime or whether such serious bodily injury or death was caused by the accused. If the jury or court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was caused by the accused, the penalty provisions of this section shall be applicable.
(5) In any case in which the accused is charged with a crime of violence as defined in subsection (2) (a) (II) of this section, the indictment or information shall so allege in a separate count, even though the use of threat, intimidation, or force or the infliction of bodily injury is not an essential element of the crime charged.
(6) The jury, or the court if no jury trial is had, in any case as provided in subsection (5) of this section shall make a specific finding as to whether the accused did or did not use threat, intimidation, or force during the commission of such crime or whether such bodily injury was caused by the accused. If the jury or court finds that the accused used threat, intimidation, or force or that such bodily injury was caused by the accused, the penalty provisions of this section shall be applicable.
(7) (a) In any case in which the accused is charged with a crime of violence as defined in this section and the indictment or information specifies the use of a dangerous weapon as defined in sections 18-12-101 and 18-12-102, or the use of a semiautomatic assault weapon as defined in paragraph (b) of this subsection (7), upon conviction for said crime of violence, the judge shall impose an additional sentence to the department of corrections of five years for the use of such weapon. The sentence of five years shall be in addition to the mandatory sentence imposed for the substantive offense and shall be served consecutively to any other sentence and shall not be subject to suspension or probation.
(b) For the purposes of this subsection (7), “semiautomatic assault weapon” means any semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition.
To fully understand the ranges for “normal” felonies – click on this chart to see the “presumptive” sentences for Colorado felonies:
The Abuse By Colorado District Attorneys Of The Crimes Of Violence Statute
As in all negotiations – such as plea bargaining – DA’s use whatever leverage they have to coerce guilty pleas. The primary weapon they have in their quiver of arrows – is the Colorado Mandatory Sentencing Laws.
Here is the most frequently sited example I can use:
Suppose you are in a local bar. An obnoxious guy is “hitting” on your girlfriend and – while he never touches her – he is repulsive in every way possible. Suppose he drunkenly or maybe vene intentionally “jostles” you. You react by punching him in the eye. While the punch is not hard – it breaks the bones around the eye – or the nose – which are very delicate. That is the crime of Second Degree Assault.
If you do not plea bargina the case to the misdemeanor Third Degree Assault and take the case to trial – if you lose – the Judge must sentence you to a minimum of years in the Department of Corrections upon a conviction for the Second Degree Assault charge. You cannot rely on any Judge permitting you to leave prison under the “escape hatch” provisions because the Judge may refuse to do so. .
The Colorado State Legislature Has Made Attempts To Repeal Some Of The Mandatory Sentencing Laws
As of 2016 – the year of this article – The Colorado State Legislature has mostly failed at repealing or amending these laws. While there are scores of unjust results in these cases, with Judge’s pleading for discretion to sentence according to the mitigation in a case, finding that the “punishment did not fit the crime,” it is still political dynamite to amend or repeal these laws.
In 2016, Senate Bill 16-098, Concerning Restoring Judicial Discretion in Criminal Sentencing” never made it out of committee.
District Attorneys, such as Arapahoe County District Attorney George Brauchler, publicly oppose any such amendments – warning that to do so “would create a danger to public safety by potentially allowing the most violent offenders to avoid jail time.” The tough on crime approach is popular with his constituent voters and it is a winning line when politicians run for office. A recent press release by his office complains about a result from a case I tried that resulted in avoiding a mandatory crime of violence sentence for child abuse.
The Compassionate View – Pat Steadman
Colorado Senator Pat Steadman should be praised for his understanding of this issue and his courage to – through legislation – try to return discretion to Colorado Judges.
“Part of the problem is that we’ve become too rigid in our sentencing laws with mandatory minimums and sentence enhancements and all these special circumstances to add a few years here and add a few years there,”
“I call that justice with a sledgehammer because the courts are set up to actually administer the determination of guilt and determination of sentencing,”
“When we have a mandatory minimum, – we don’t trust the judges and the courts to get it right.”
“…mandatory minimums have not been good for justice. They’ve eliminated the ability to do case-by-case reviews.”
The Reasons Why Mandatory Sentences Should Be Abolished
1. The concept behind mandatory minimums is outdated. Decades of research demonstrates thatwe have the ability to both punish and rehabilitate and use the occasion to address problems that affect the individual and the community.
2. Imprisoned individuals are not only lost to their families, children, and communities for those years, but emerge from prison with little or no education and skills that enable them to assimilate back into society.
3. These sentences do not work. Current research proves that incarceration has only a limited impact on crime rates and that future crime reduction as a result of additional prison expansion is not only smaller it is more expensive to achieve.
“There is little evidence that longer sentences have more than a marginal effect in reducing recidivism—a key performance indicator of a state’s correctional system.”
4. We need to trust our Trial Court Judges with “unfettered discretionary authority” in fashioning sentences on a case-by-case basis.
5. Mandatory minimum sentencing laws paint ALL persons meeting the basic criteria for the mandatory sentence with a “broad brush.” The individual characteristics of the person convicted are ignores – thus seeing all people with “one lense.”
6. Research points to the “community-based sentence” as more effective than prison in many instances.
Colorado Criminal Law – Understanding Mandatory Sentencing For Violent Crimes
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
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