Felony Sentencing in Colorado
| Publication year | 1989 |
| Pages | 1689 |
| Citation | Vol. 09 No. 1989 Pg. 1689 |
1989, September, Pg. 1689. Felony Sentencing In Colorado
This is the third in a series of articles on felony sentencing in Colorado, exclusive of the death penalty.(fn1) Since 1985 substantial changes in the overall scheme have been enacted and the general trend appears to be one of longer authorized sentences and a diffusion of the rigid classification scheme.
Upon conviction of a felony the court has the following alternatives in imposing sentence: a sentence to imprisonment; fines; probation and other probation-related alternatives (including intensive supervision, confinement in the county jail, home monitoring, deferred judgments and restitution); and community corrections. Following a discussion of these topics, sentencing procedure, time computation, post-conviction remedies and parole policies are surveyed.
Most, but not all, felonies(fn2) are divided into six classes. The sentencing ranges are set forth in the table below.
A prison sentence is formally to the custody of the Executive Director of the Department of Corrections ("DOC"), and is for a fixed term in lieu of a range. For example, a permissible sentence for a class four felony is six years.
In the original Gorsuch bill the court was authorized to impose from half the presumptive minimum to twice the presumptive maximum upon a finding that the offence (including the circumstances of the offender) was "extraordinary," a term that was slowly defined by case law.(fn4) Such sentences came to be known, for lack of a better term, as "permissive" extraordinary range sentences. The court retains authority to impose such sentences.(fn5)
In contrast, a series of factors mandating extraordinary aggravated sentences was created by the General Assembly starting in 1981.(fn6) The presence of any of these, until mid-1988, requires a sentence of at least one day longer than the maximum allowable in the presumptive range. Currently, a sentence of at least the mid-point in the presumptive range is required if a prison sentence is imposed.(fn7) These statutory or mandatory aggravating factors are as follows:(fn8)
Philip A. Cherner, Denver, is associated with the firm of Stayton & Brennan. The author wishes to acknowledge the research assistance of Michael Bergen.
I. The Defendant is convicted of a crime of violence under section 16-11-309, C.R.S.;
II. The Defendant was on parole for another felony at the time of commission of the felony;(fn9)
III. The Defendant was on probation for another felony at the time of the commission of the felony;(fn10)
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;(fn11)
IV.5 At the time of the commission of the felony, the Defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony;(fn12)
V. The Defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony at the time of the commission of a felony;
VI. The Defendant was under a deferred judgment and sentence for another felony at the time of the commission of the felony;
VII. At the time of the commission of the felony, the Defendant was on parole for having been adjudicated a delinquent child for an offense which would constitute a felony if committed by an adult.
A short line of cases grappled with this problem: If the aggravating factor is already an element of the offense, can the General Assembly constitutionally mandate an increased term of imprisonment, without violating double jeopardy principles? The answer was eventually "yes," but not without some legal meandering. One Colorado appellate case does not require an extraordinary range sentence for escape, since being in custody is already an element of the offense.(fn13) It has, however, been limited severely to its facts. Thus, an aggravated sentence for possession of contraband was upheld even though the defendant's custodial status was an element of the offense.(fn14) A related line of cases has permitted sentences for crimes of violence, even where the use of the weapon was an element of the offense.(fn15)
With one important exception, these statutory aggravating factors do not mandate a prison term. They only require that if a prison term is imposed it be in the extraordinary range. The exception is conviction of a "crime of violence,"(fn16) defined by CRS § 16-11-309 as:
"Using, or possessing and threatening the use of, a deadly weapon in the commission or attempted commission of':(fn17)
1) any crime against an elderly(fn18) or handicapped(fn19) person;(fn20)
2) any murder, first or second degree assault, kidnapping, sexual assault, robbery,(fn21) first degree arson, first or second degree burglary, escape or criminal extortion;(fn22)
3) causing death or serious bodily injury(fn23) to someone other than the perpetrators during the commission or attempted commission of the crimes enumerated in 2);(fn24)
4) causing bodily injury(fn25) in the course of an a felony unlawful sexual offense;(fn26) or
5) using force threats or intimidation during the unlawful sexual offense.(fn27)
As noted above, conviction of a crime of violence carries a mandatory prison term of at least the mid-point in the presumptive range for the substantive offense.(fn29) However, there are two loopholes. The lesser is the provision in the crime of violence statute that allows the court to disregard the mandatory sentence provision within ninety days of sentencing in an exceptional situation.(fn30) The greater loophole is apparent from the wording of CRS § 18-1-105(10), which gives the court unlimited authority to suspend any sentence. Compare that to the phrase in CRS § 16-11-309 that says the sentence must be imposed "without suspension." Since the authority to suspend was created in 1988, no case has resolved the apparent conflict.
Additional confusion is caused by the fact that many of the statutes defining violent crimes contain a provision that anyone convicted of said crimes "must be sentenced in accordance with the provisions of 16-11-309." This conflicts with the requirement in § 16-11-309(4)-(6) that the charge must be separately pleaded and proven. For example, second degree murder is a class two felony with a presumptive range of 8-24 years and an extraordinary aggravated range of 16-48 years. Obviously, conviction of second degree murder and mandatory sentencing under § 16-11-309 carries a sixteen-year minimum unless the sentence can be suspended under CRS § 18-1-105(10). However, what if the prosecutor, as is not uncommon, agrees to dismiss the mandatory sentence count in exchange for a guilty plea to the substantive crime? Is the court bound by § 16-11-309 anyway? Most courts seem to take the position that they are not, but there is no appellate decision on point.(fn31)
The habitual criminal statute remains unchanged.(fn32) An offender charged with any felony and who is shown to have three or more prior felony convictions arising out of separate criminal episodes receives a life sentence (the "big" habitual statute). An offender convicted of a felony who has two prior felony convictions within ten years of the date of the new offense for crimes arising out of separate criminal episodes must receive a sentence of between 25 and 50 years,(fn33) provided that the new offense carries at least a five-year maximum term (the "little" habitual statute). Thus, offenders charged with class six felonies are ineligible for prosecution under the little habitual criminal statute.(fn34) The prior convictions must predate the instant offense, but need not have happened sequentially.(fn35)
Given the severe punishment inflicted for conviction under the big habitual criminal statute, several cases grapple with a cruel and unusual punishment analysis.(fn36) As yet, no sentence has been set aside, although a life sentence has been defined as a forty-year minimum only since 1985.(fn37)
Another sentence carrying a potential life sentence is the Colorado Sex Offenders Act of 1968.(fn38) The Act provides for a sentence of from one day to life for a sex offender who is found after a hearing to be a threat to the public.(fn39) His release date is then determined by the Parole Board.(fn40) Apparently, because such offenders receive no additional treatment and because of the uncertainty of the ultimate release date, the Act is seldom invoked by either party.
Over the years, the General Assembly...
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