Colorado Felony Sentencing
| Publication year | 1982 |
| Pages | 1478 |
| Citation | Vol. 11 No. 6 Pg. 1478 |
1982, June, Pg. 1478. Colorado Felony Sentencing
The Colorado felony sentencing scheme was extensively revised in 1979 to remove the great disparity in sentencing then permitted.(fn1) For example, the penalty for a Class 3 felony under the "old" law was from five to forty years, plus a fine.(fn2) The "new" law shrinks this to from four to eight years and only corporations can be fined.(fn3) A sentencing judge can exceed these presumptive ranges only upon a finding of "extraordinary circumstances."(fn4) To further promote uniformity, the General Assembly mandated automatic nonadversary appeals of extraordinary sentences.
This article summarizes the law of felony sentencing in Colorado, exclusive of the death penalty. Since the enactment of the new law, a number of significant developments has taken place, the foremost of which is the General Assembly's enactment of a statutory list of "extraordinary aggravating circumstances." The legislature has also repealed the automatic nonadversary appeal provision.(fn5) The overall effect of statutory changes since 1979 has been to narrow slightly the range of sentencing alternatives.
The following alternatives are available to the sentencing court:(fn6)
---Probation and/or suspended sentence
---Incarceration in the Department of Corrections
---Death
---Payment of a fine if the defendant is a corporation
---A sentence to community corrections
---Payment of costs pursuant to statute
---A sentence as a sex offender
---A sentence as a habitual criminal
---Any other court order authorized by law
Prior to imposition of sentence, the court generally orders a presentence investigation (also called a probation report).(fn7) Each report must include, but is not limited to, information as to the defendant's family, background, education, history, employment record and past criminal record, as well as an evaluation of the alternative dispositions available for the defendant and the amount of restitution to be ordered.(fn8) Psychiatric examinations may also be required. The preparation of this report can be waived with the exception of the computation of restitution. The report must also include a computation of the number of days of presentence confinement to which the defendant is entitled.(fn9)
The following table describes sentences to the Department of Corrections for offenses committed on or after July 1, 1979.(fn10)
As can be seen, virtually all Colorado felonies are classified with Class 1 the most serious and Class 5 the least serious. All sentences to imprisonment for felonies (except as a condition of probation or to community corrections facilities) are to the Executive Director of the Department of Corrections ("Department"). The Director then has the authority to transfer an inmate to any one of the various Department facilities. All inmates begin their stay with the Department at the Diagnostic Unit in Canon City, which prepares a summary of the inmate's program.(fn11)
The sentence in the presumptive range is the sentence that must be given by the sentencing court unless the court finds aggravating or mitigating circumstances, and these circumstances must be "extraordinary.(fn12) When such circumstances are present, the trial court may impose a sentence as low as half the presumptive minimum or as great as twice the presumptive maximum. In imposing extraordinary sentences, the trial court must make findings on the record which would justify the sentence.(fn13) Some of the factors the courts have approved in imposing extraordinary sentences are an individual's record of prior convictions, the brutality of the crime and the minimal chances of rehabilitation.(fn14)
Under a recent statute, C.R.S. 1973, § 18-1-105(9), certain characteristics of the defendant's status are per se extraordinary aggravating circumstances. These include:
(I) The defendant is convicted of a crime of violence under section 16-11-309, C.R.S. 1973;
(II) The defendant was on parole for another felony at the time of commission of the felony;
(III) The defendant was on probation for another felony at the time of the commission of the felony;
(IV) The defendant was charged with or was on bond for a previous felony at the time of the commission of the felony, for which previous felony the defendant was subsequently convicted;
(V) The defendant was under confinement, in prison, or in any correctional institution within the state as a convicted felon, or an escapee from any correctional institution within the state for another felony at the time of the commission of a felony.(fn15)
It is important to note, however, that for most offenses the statute does not require that the defendant be sentenced to the Department of Corrections. Unless convicted of a crime of violence pursuant to C.R.S. 1973, § 16-11-309, the statute mandates a longer sentence only if sentence is imposed.(fn16) Probation eligibility is not affected. A "crime of violence" is:
[A] crime in which the defendant used, or possessed and threatened the use of a deadly weapon during the commission of any crime committed against an elderly or handicapped person or the crime of murder, first or second degree assault, kidnapping, sexual assault, robbery, first degree arson, first or second degree burglary, escape, or criminal extortion, or during the immediate flight therefrom, or who caused serious bodily injury or death to any person, other than himself or another participant, during the commission of any such felony or during the immediate flight therefrom, or who caused serious bodily injury or death to any person, other than himself or another participant, during the commission of any such felony or during the immediate flight therefrom.(fn17)
Accomplices and principals alike are subject to the statute's provisions, but it does not appear to apply to the inchoate crimes of attempt and conspiracy. However, one sentenced pursuant to the statute may still apply to the court for reconsideration and, under certain circumstances, this may be granted. Upon reconsideration, the defendant may be sentenced as if he was not convicted of a "crime of violence," but the trial court must notify the state court administrator of the reasons for the modification.(fn18)
Defendants convicted of violating the special offender provision of the new
The practitioner should also be aware of the provisions for sentencing juveniles who are before the District Court as adults. Depending on how they reach the adult court, certain special sentencing alternatives are available. Some juveniles are prosecuted as adults after their case is transferred to adult court pursuant to C.R.S. 1973, § 19-1-104(4)(a). In this situation the child, if convicted, may be sentenced as an adult or in any other manner authorized by the Children's Code and his case may be remanded to juvenile court for sentencing. However, a child convicted of a Class 1 felony or a crime of violence must be sentenced as an adult.(fn20)
On the other hand, if the child is before the adult court pursuant to a direct filing, the sentencing court is not bound by the mandatory sentencing statute.(fn21)
Unaffected by Colorado presumptive sentencing legislation are two special categories of offenders. Those adjudged to be habitual offenders are punished by a term of not less than twenty-five nor more than fifty years (two prior felonies carrying a maximum penalty of more than five years which occurred within ten years of the new offense) or life (three prior felonies; no time limit). A defendant given a twenty-five-year minimum sentence would be eligible for parole in approximately twelve years.(fn22)
Anyone convicted of a sex offense as that term is defined in § 16-13-202 may be sentenced to an indeterminate term of one day to life pursuant to the Colorado Sex Offenders Act. The Act is triggered by either the court, the defendant or the prosecutor requesting commencement of proceedings within twenty days of the conviction. The status of one committed under the Act is reviewed after six...
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