New 2016 Colorado Law Restores Discretion To Judges Sentencing In Crimes Of Violence Cases – 18-1.3-406

By H. Michael Steinberg Colorado Assault And Violent Crimes Criminal Defense Lawyer

New 2016 Colorado Law Restores Discretion To Judges Sentencing In Crimes Of Violence Cases 18-1.3-406 – Effective July 1, 2016, a new Colorado Law restores the discretion in the sentencing decision in crimes of violence which was taken from Colorado judges decades ago.

When Governor Hickenlooper signed Colorado Senate Bill 16-51 into law the new law will mean that Colorado judges can now decide for themselves whether persons convicted of more than one crime of violence in a single criminal case will receive concurrent or consecutive Department of Corrections sentences.

Under the prior Colorado law, a person convicted of 2 or more separate crimes of violence arising out of the same incident, had to serve the resulting sentences consecutively (one after the other) rather than concurrently (at the same time).

As of July 1, 2016, A Trial Judge court will have the discretion to require the Defendant to serve the resulting sentences concurrently. The new law is limited to three of the many Colorado crimes of violence. Those crimes are:

1. Aggravated robbery,

2. Assault in the second degree, or

3. Escape.

Colorado Felony Sentencing For Crimes Of Violence 18-1.3-406 CRS

What follows is the changed section of the law – 18-1.3-406

18-1.3-406. Mandatory Sentences for Violent Crimes

(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;

..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. Except as described in paragraph (c) of this subsection (1), a court shall sentence 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 his or her sentences are served consecutively rather than concurrently.

(c) The court may require a defendant to serve his or her sentences consecutively rather than concurrently if the defendant is convicted of two or more separate crimes of violence arising out of the same incident and one of such crimes is:

(I) Aggravated robbery, as described in section 18-4-302;

(II) Assault in the second degree, as described in section 18-3-203; or

(III) Escape, as described in section 18-8-208.

SECTION 2. Effective date – applicability. This act takes effect July 1, 2016, and applies to offenses committed on or after said date.

(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;

(B) Murder;

(C) First or second degree assault;

(D) Kidnapping;

(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;

(I) Escape;

(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 cialis online overnight.5-102(4).

(3) In any case in which the accused is charged with a crime of violence as defined in subsection (2) (a) 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) (b) (I) 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.