Colorado Felony Sentencing: Law and Practice

JurisdictionColorado,United States
CitationVol. 24 No. 12 Pg. 2669
Pages2669
Publication year1995
24 Colo.Law. 2669
Colorado Lawyer
1995.

1995, December, Pg. 2669. Colorado Felony Sentencing: Law and Practice




2669


Vol. 24, No. 12, Pg. 2669

Colorado Felony Sentencing: Law and Practice

by Phil Cherner

© Phil Cherner 1995

Since the last article on this subject was published in 1989,(fn1) there have been significant changes in the area of victims' rights, sentence categorization and length, and collateral consequences. The overall sentencing scheme has become quite complex. This article covers the various sentencing alternatives for Colorado felons, collateral consequences and the sentencing process. The article does not cover the death penalty. Unless otherwise indicated, this article describes the law applying to offenses committed on or after July 1, 1995.


BACKGROUND

A felony is defined by the Colorado Constitution as any offense for which an offender can be sentenced to the penitentiary.(fn2) The court's authority to sentence is statutory. Prior to Burns v. District Court, cases had held there was inherent authority to suspend a sentence; it is now clear that only the General Assembly can authorize the suspension of sentences.(fn3)

On conviction of a felony, the court has the following alternatives in imposing sentence:(fn4) (1) a sentence to imprisonment, including a mandatory period of parole; (2) a sentence to the Youth Offender System; (3) a fine; (4) probation, including intensive supervision, confinement in the county jail, home detention and restitution; (5) community corrections; or (6) a suspended sentence.


A Brief History

A brief history of the felony sentencing process may be helpful in understanding the current framework. Prior to 1979, Colorado had five classes of felonies. The sentence for a given crime was determined by the class to which the crime belonged. The sentence included a top and bottom number of years to be served. These numbers bracketed the parole board's authority. The bottom number determined the date before which the parole board could not act. The top number determined the maximum date beyond which the offender could not be held, regardless of the parole board's action. The bottom number is the parole eligibility date ("P.E.D."), and the top number is the discharge date.

In an effort to add some certainty and uniformity to felony sentencing, in 1979 the legislature passed what is known as the Gorsuch Law.(fn5) The Gorsuch scheme retained the five classes of felonies, but dramatically narrowed the available ranges. Using a class two felony as an example, the new range was from eight to twelve years, although the statute authorized a 50 percent downward and 100 percent upward departure for extraordinary cases. The narrow range came to be known as the presumptive range and the extreme ranges, above and below that, the extraordinary range.

The Gorsuch scheme also changed the function of the parole board. With the exception of a narrow class of cases,(fn6) the statute mandated parole after completion of the sentence, less earned time. Phrased another way, the parole board had no discretion to refuse to release on parole an inmate who had accumulated appropriate credits. Thus, the judge became, in most cases, the true sentencing authority. An inmate sentenced to twelve years under the Gorsuch scheme who behaved well could expect to be paroled a few weeks short of six years.

Since 1979, the most dramatic changes were the 1985 doubling of the presumptive ranges(fn7) and the removal of the mandatory parole provision.(fn8) In 1991, the General Assembly formally recognized the cost of financing the prison system by passing CRS § 2-2-703. This statute provides that no legislative enactment that will increase the overall length of stay for inmates in the Department of Corrections ("D.O.C.") may be passed unless the additional needed beds are funded for the first five years following passage of the bill. In practice, this has meant that an act that increases a sentence range for a given crime often contains a reduction of sentence for some other crime in an attempt to be "revenue neutral."

Nominally, there are now six classes of felonies, but in reality there are special sentencing rules for a multitude of crimes. Penalties and definitions are amended annually, so the reader is cautioned that the applicable statute is invariably the one that was in effect on the date of the offense.(fn9)


Colorado D.O.C.'s Prison Population

In June 1995, the D.O.C.'s population was 10,802 inmates.(fn10) This figure includes those actually in prison, as well as


[Please see hardcopy for image]

Phil Cherner, Denver, is a partner in the firm of Cherner & Blackman.




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the 200 or so who are backlogged in county jails awaiting bed space in the D.O.C. It also includes the more than 1,000 inmates serving D.O.C. sentences in facilities in Minnesota and Texas. In 1979, there were only 2,556 D.O.C. inmates. It costs approximately $21,000 annually to house an inmate and $70,000 to build a prison cell. Current projections show a D.O.C. population of 14,543 inmates by January 1,2000, an increase of 35.7 percent from the current numbers

The D.O.C. operates twenty-one facilities throughout the state. These range from residential/minimum restrictive security level facilities up through the maximum security facility, the Colorado State Penitentiary in Cañon City.(fn11) By the D.O.C.'s estimate, only 31 percent of the inmates are serving sentences for violent crimes. By far the most prevalent convictions are for burglaries (11.6 percent) and drug abuse (11.2 percent). More than one-third of the inmates are serving sentences for class four felonies and 18 percent for class five felonies.

Colorado's prison population reflects the racial discrimination prevelant in the society at large. Colorado is approximately 4 percent black and 13 percent Hispanic, yet the D.O.C. population is 25 percent black and 26 percent Hispanic. The D.O.C.'s most restrictive facility, the Colorado State Penitentiary, has the lowest percentage of Anglo inmates (36.9 percent) of any D.O.C. facility.


The Sentencing Scheme

Colorado's felony sentencing scheme, now containing six classes of felonies, is shown with the applicable ranges in years in the following chart.

The chart shows presumptive and extraordinary ranges for sentences. By definition, the extraordinary aggravated range is the range from the midpoint of the presumptive range to twice the presumptive maximum. The extraordinary mitigated range is from half the bottom of the presumptive range to the bottom. For example, second degree burglary of a dwelling is a class three felony. The presumptive range sentence is from four to twelve years. An extraordinarily mitigated sentence would be anywhere from two to four years. A sentence imposed in the extraordinary aggravated range would be from eight years to twenty-four years.

Every inmate must serve a period of parole. The current scheme requires no early release and, in fact, there is no entitlement to early release. An inmate may be required to serve a full sentence imposed by the court, and then a period of parole. This latter period is in addition to, not in lieu of, the sentence. Under the current sentencing scheme (differentiated from that in effect for crimes committed from 1979 to 1993), the inmate's release to a period of parole terminates the prison sentence.(fn12) Thus, the inmate really receives two sentences from the court: one to prison and one to parole.


SENTENCES TO IMPRISONMENT

Extraordinary Risk Crimes

In addition to the six classes of felonies, the legislature has prescribed a plethora of specific sentencing penalties related to individual or groups of crimes. The most prevalent of these is for "extraordinary risk" crimes. Prior to 1993, an inmate could refuse parole, serve his or her entire sentence in the D.O.C. and eventually reach a discharge date and be returned to society without any supervision.

To insure that all inmates are placed on a period of parole after their release from D.O.C., the General Assembly amended the statute to require a period of parole for every sentence (see the section on parole below).(fn13) To compensate for the additional period of supervision, the legislature shortened the sentence ranges for some class 3-6 felonies by an average of 25 percent.(fn14) Felonies that are exempted from this scheme are sex offenses, crimes of violence and drug distribution.(fn15) Thus, the extraordinary risk crimes retain their pre-1993 sentencing ranges.


Mandatory Sentence Aggravators

Another large exception carved out of the general sentencing scheme is that of the mandatory sentence aggravators. Under the original Gorsuch scheme, the court had the authority to impose a sentence in excess of the ordinary maximum on a written finding of extraordinary circumstances.(fn16) However, the statute did not further define extraordinary.

In 1981, the General Assembly established a list of factors, any one of which would mandate a sentence in the extraordinary range. These were largely tied to the offender's status, such as being (1) on parole at the time of the offense, (2) on probation for another offense at the time of the offense, (3) on bond for another offense, or (4) on a deferred judgment for a previous felony offense.(fn17)

Over the years, the legislature has amended, added to and deleted items


Sentencing Ranges for Colorado Felonies Committed on or after July 1, 1995 (in years)

Extraordinary Risk Crimes(fn*) All Felonies


Felony Class Presumptive Range Extraordinary Range Presumptive Range Extraordinary Range Fine Range Mandatory Parole Period(fn**)

1 Life or Death n/a n/a n/a n/a

2 8-24 4-48 n/a n/a $5K-$1,000K 5 years

3 4-12 2-24 4-16 2-32 $3K-$750K 5 years

4 2-6 1-12 2-8 1-24 $2K-$500K 3 years

...

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