Colorado Felony Sentencing-an Update

• Publication year: 1985
• Pages: 2163

14 Colo.Law. 2163 Colorado Lawyer 1985.

1985, December, Pg. 2163. Colorado Felony Sentencing-An Update

Vol. 14, No. 9, Pg.2163

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Colorado Felony Sentencing---An Update

by Philip A. Cherner

[Please see hardcopy for image]

Philip A. Cherner, Denver, is a deputy state public defender.

In 1979 the General Assembly adopted what is known as the "Gorsuch bill,"(fn1) which radically changed felony sentencing in Colorado. Wide sentencing ranges with indeterminate periods of confinement were replaced with narrow ranges and certain release dates. The role of the Parole Board was minimized by fixing parole of one year for all inmates and mandating parole after completion of a fixed percentage of the actual sentence.

In the six years that followed the Gorsuch bill, public clamor for longer sentences forced a continuing reappraisal of the theories it embodied. This culminated in a massive change in the felony sentencing scheme for offenses committed on or after July 1, 1985.(fn2) This article summarizes the current state of the law and traces the evolution of the 1985 amendments. Major trends noted are the increasing number of statutes referencing special circumstances of the offender or the victim, longer authorized sentences for all felonies and renewed authority of the Parole Board to determine release dates.

The sentencing judge continues to have three major sentencing alternatives: the Department of Corrections, community corrections and probation.(fn3) In addition, the 1985 amendments have authorized a fourth alternative---the imposition of fines.(fn4)

THE BASIC SENTENCING SCHEME

In Colorado, felony offenses are divided into five classes for sentencing purposes. In theory, this eliminates the need to legislate a specific penalty for each offense; each statute defining a felony references the class of crime, and the class indicates the penalty.

The classifications are presented in Table 1:

TABLE 1

Class ofPresumptive Sentence

Felony(Before 7/1/85) (After 7/1/85)(fn5)

1life or deathno change(fn6)

28-12 years8-24 years

34-8 years4-16 years

42-4 years2-8 years

51-2 years1-4 years

By statute, offenders sentenced to the Department of Corrections ("DOC") must be sentenced within these presumptive ranges unless the court finds extraordinary mitigating or aggravating circumstances.(fn7) If these are present, the sentence may be one-half the presumptive bottom or up to twice the presumptive top. For example, the range of sentence for a class two felony, including the extraordinary range, is from four to forty-eight years. As can be seen from Table 1, the new amendments have doubled the presumptive maximum.

Also with the 1985 amendments, a life sentence means there is no parole eligibility for forty years (it had been ten until 1977 when it was changed to twenty).(fn8)

The amendments reinstituted fines for felony offenders.(fn9) The applicable ranges are set forth in Table 2:

TABLE 2

Class of FelonyFine

1none

2$5,000 to $1,000,000

3$3,000 to $750,000

4$2,000 to $500,000

5$1,000 to $100,000

In this author's opinion, fines are of questionable value in the criminal arena. Undoubtedly they are needed to punish corporate offenders and there are cases where it is appropriate to fine offenders to deprive them of the fruits of their illegal conduct. However, there are comparatively few corporate offenders, and Colorado now has at least three forfeiture statutes that provide ample authority to deprive criminals of ill-gotten gains.(fn10) Thus, it is hard to ignore the argument that fines represent a means by which the wealthy offender can be punished monetarily, while the poor offender can pay in the currency of years

Extraordinary Aggravating Factors

There are two kinds of aggravating factors: permissive and mandatory. Permissive aggravating factors are intentionally not defined by statute since they were designed to allow the court to impose an unusually short or unusually long sentence when appropriate in rare situations.(fn11)

The presence of a mandatory "extraordinary aggravating factor" requires the court to impose an aggravated sentence if a sentence to incarceration is imposed at all.

The statutory mandatory aggravators are as follows:(fn12)

1) The offender is on bond or was charged with a felony when the instant offense was committed and subsequently is convicted of the earlier offense.

2) The offender is on felony probation,(fn13) parole or deferred judgment(fn14) at the time of the commission of the offense.

3) The offender is under confinement or in prison as the result of a felony or escape at the time of commission of the offense.(fn15)

4) The offender is convicted (pursuant

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to CRS § 16-11-309) of a "crime of violence."

This last factor mandates a sentence of imprisonment as well as a sentence in the aggravated range. Probation is not permitted. If a fine is imposed, it must be in addition to incarceration.(fn16)

A "crime of violence" has been redefined almost annually by the General Assembly.(fn17) The phrase currently encompasses certain crimes or attempted crimes if the offender used or possessed and threatened the use of a deadly weapon during the commission of the offense or during the immediate flight therefrom, or if the commission of any of the specified offenses results in death or serious bodily injury to the victim.(fn18) The crimes involved are as follows:

Murder

First or second degree assault

Unlawful sexual offenses, except first degree sexual assault(fn19)

Kidnapping

Robbery and aggravated robbery(fn20)

First degree arson

First or second degree burglary

Extortion

Escape

The provisions of the statute also apply to anyone committing a crime against the elderly or the handicapped in which a deadly weapon is used or its use is threatened.

A "crime of violence" must be plead as a separate count, even though its elements are contained within the substantive offense.(fn21)

The terms of CRS § 16-11-309 notwithstanding, its application may have been severely limited by the recent Court of Appeals decision in People v. Montoya.(fn22) Montoya recognized an inherent problem in the statute: if the substantive offense requires use of a deadly weapon as an element, how can an increased (aggravated) sentence under § 16-11-309 for use of the weapon be mandated? Montoya holds that in such a situation, the increased sentence is unconstitutional as a violation of equal protection. Since the statute often has been used in prosecutions in which the use of a deadly weapon was already an element of the substantive offense (e.g., aggravated robbery and first or second degree assault), the statute's efficacy may have been substantially lessened.(fn23)

SPECIAL CIRCUMSTANCES LEGISLATION

Habitual Criminals

From a statutory standpoint, the habitual criminal statute remains unchanged.(fn24) An offender charged with any felony and who is shown to have three prior felonies receives life (the "big" habitual criminal statute). An offender charged with a felony who has two prior felony convictions in the last ten years (the "little" habitual criminal statute) must receive a sentence of between twenty-five and fifty years.(fn25)

Since these sentences were enacted prior to the Gorsuch bill, they have posed some technical problems under the presumptive sentencing laws. It is unclear, for example, whether a 25-to-50-year sentence requires the sentencing judge to impose any sentence within that range (such as 32 years), a range sentence (such as from 30 to 35) or the entire range (from 25 to 50). Case law teaches only that the habitual criminal sentence is imposed in lieu of and not in addition to the usual sentence for the substantive offense.(fn26) The "prior" convictions must predate the instant offense, but do not have to have happened sequentially.(fn27)

The concept of cruel and unusual punishment under the Eighth Amendment has been applied to habitual criminals. In People v. Hernandez,(fn28) the Supreme Court applied the analysis used in Solem v. Helm,(fn29) which used a proportionality review. In assessing the constitutionality of a sentence, such a review requires the sentencing court to consider (1) the gravity of the offense and the harshness of the penalty; (2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions. With the onset of forty-year life sentences, much litigation is expected in this area. As yet, no Colorado appellate decision has overturned a habitual criminal sentence on cruel and unusual punishment grounds.

Other Special Offenders

In recent years, the General Assembly has repeatedly passed statutes imposing sentencing conditions, in addition to those contained in the five classes of felonies. A prime example is mandatory sentencing for a crime of violence, discussed above. This statute predates the Gorsuch bill and, as originally written, denied an offender any sentence except incarceration. Gorsuch amended the statute to require a presumptive sentence. It was further amended in 1981 to mandate not only a sentence, but an extraordinary one.(fn30)

There are many examples of special circumstances sentencing. In controlled substance prosecutions, distribution of cocaine is treated as an ordinary class three felony unless the amount in question exceeds twenty-four grams, in which case the offender may not be granted probation.(fn31) "Special offenders," as defined in CRS § 18-18-107 and loosely described as pushers or major dealers, must be sentenced in the aggravated range of a class two felony. Habitual sex offenders against children and habitual child abusers must be similarly sentenced.(fn32) Repeat shoplifters are treated as a special category for sentencing purposes.(fn33)

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