Sentencing Dilemmas

• Publication year: 2000
• Pages: 67
• Citation: Vol. 29 No. 10 Pg. 67

29 Colo.Law. 67 Colorado Lawyer 2000.

2000, October, Pg. 67. Sentencing Dilemmas

---

67

Vol. 29, No. 10, Pg. 67

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 67]

Specialty Law Columns
Criminal Law Newsletter
Sentencing Dilemmas
by Phil Cherner

Colorado?s sentencing scheme has evolved from the simplicity of when it was enacted in 1979 to a bewildering complexity of statutes and court decisions. The danger of misunderstanding the sentence range individuals face can create serious problems in plea negotiation and trial strategy for both the prosecution and defense, as well as for counsel and the court at sentencing hearings

This article provides background information on Colorado?s felony sentencing scheme and describes how it works currently. The article also discusses sentencing for sex offenders and Colorado?s parole/community corrections conundrum

Historical Background

Prior to 1979, the Colorado felony sentencing scheme was based on indeterminate sentencing. The judge would impose a sentence of incarceration by specifying a minimum and maximum number of years. The discretion of the Parole Board to allow parole was governed by these two numbers; the Board could release an inmate no sooner than a percentage of the minimum number of years and hold the inmate for no longer than the maximum number of years, less certain earned time and good time discounts. For example, the permissible range of incarceration for the class 3 felony of aggravated robbery was from 5 to 40 years. Therefore, any sentence of at least 5 years and no more than 40 years was valid. The higher the lower number was, the longer it was before the Board could release the inmate on parole

In 1979, the Gorsuch Bill1 established a determinate sentencing system. In an effort to make sentences more uniform statewide, the range of sentences available to the judge was narrowed, and indeterminate sentences were replaced by sentences to a specific term. The Parole Board?s discretion in setting the release date was abolished. Release was automatic after service of the sentence, less accumulated earned time and good time credits (which, as a practical matter, meant after service of 50 percent of the sentence, less earned time). A judge could impose a sentence outside the presumptive range only if "extraordinary mitigating or aggravating circumstances" existed.2 Therefore, for an aggravated-robbery defendant, the law now provided a presumptive sentencing range of from 4 to 8 years, and an extraordinary range of no less than half the minimum (or 2 years) and no more than double the maximum (or 16 years). The sentence had to be a fixed number (for example, 5 years) within that range. Release on parole was automatic after service of half the sentence (2½ years), less a few weeks earned time.

Two major changes occurred to the Gorsuch scheme in 1985. The General Assembly doubled the top of the presumptive sentencing ranges for most felonies3 and returned discretion to the Parole Board to release, or refuse to release, an inmate at any time after service of the sentence, less earned time and good time.4 For example, the sentencing range for an aggravated-robbery defendant became from 4 to 16 years in the presumptive range and from 2 to 32 years in the extraordinary aggravated or mitigated range.

Assuming the defendant received a 5-year sentence, the Board could place the defendant on parole supervision after he or she served 2½ years, less earned time. However, the Board also could refuse to release the defendant up until the inmate had served the full 5-year sentence, less earned time. In the latter case, the inmate would be discharged from the sentence without serving parole because he or she was not released early. The renewed Parole Board discretion turned what had been a determinate number under the original 1979 Gorsuch enactment into a sentence that now looked quite a bit like the old indeterminate sentence.

Another major change occurred in 1993 when the General Assembly mandated that any period of parole be in addition to, and not part of, the term of years the sentencing court imposed. Thus, regardless of whether the hypothetical defendant served 5 years or 10 years, he or she would still have to serve a period of time on parole supervision (which is 5 years for a class 3 felony). This latest scheme has taken on the name "mandatory parole," a phrase that has led to confusion because it is the same label used to refer to the "automatic-release" scheme embodied in the original Gorsuch legislation.

The 1993 amendments also included a reduction in the sentencing range for most offenses.5 Offenses for which the penalty ranges were not reduced became "extraordinary risk" crimes.6 Because aggravated robbery is an extraordinary risk offense7 the authorized presumptive sentence remained a single number between 4 and 16 years, plus an additional 5 years of parole.

In addition to "extraordinary mitigation and aggravation" and "extraordinary risk" crimes, a third category of crimes underwent change. For years prior to Gorsuch, Colorado had a statute mandating a sentence to prison for commission of a "crime of violence." CRS § 16-11-309 contained a detailed definition of "crime of violence." The term generally included certain offenses, such as aggravated robbery, during which a deadly weapon is used. Under Gorsuch, this statute originally required imposition of at least the minimum sentence to prison (that is, it denied probation). For example, the minimum sentence for aggravated robbery was 4 years. The statute was amended to require imposition of at least the minimum sentence in the extraordinary aggravated range, which is one day more than the maximum sentence in the presumptive (or ordinary) range, to a maximum of twice the top of the presumptive range.

Thus, for aggravated robbery, the minimum sentence would be from 16 years and a day to 32 years. Later amendments reduced the minimum sentence for a person convicted of a "crime of violence" to the midpoint of the presumptive range (or an authorized sentence of between 10 and 32 years for aggravated robbery). Over the years, amendments to CRS § 16-11-309 have broadened the definition of "crime of violence;" therefore, the date of an offense is critical in determining the applicability of the statute.

When a Mandatory Sentence is Mandatory

CRS § 16-11-309(4) provides that "in any case in which the accused is charged with a crime of violence, . . . the indictment or information shall so allege in a separate...