Exceeding Presumptive Maximum Sentences in Colorado
| Publication year | 2015 |
| Pages | 43 |
| Citation | Vol. 44 No. 12 Pg. 43 |
Articles
Criminal Law
Exceeding Presumptive Maximum Sentences in Colorado
By Daniel P. Rubinstein, Gordon P. Gallagher.
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver About the Authors
This article explores the multitude of ways in which a sentence can exceed the presumptive maximum in Colorado criminal cases and the procedures required for such increases to be constitutionally sufficient, as well as several collateral issues.
Under Colorado law, most criminal charges have a presumptive statutory maximum sentence that a court may not exceed without proof of additional facts.[1] This article examines the ways a presumptive maximum may be exceeded, the procedures required to do so constitutionally, and a host of related issues every criminal practitioner or judge needs to know when dealing with a case in which exceeding a presumptive maximum is a consideration.
The Colorado legislature has divided crimes into classes, with each class assigned a presumptive range.[2] These ranges are presumptive only; a sentencing court has the discretion to go down to half the presumptive minimum if it finds "extraordinary mitigating" circumstances, or up to twice the presumptive maximum if it finds "extraordinary aggravating" circumstances.[3]
Colorado sentencing statutes also recognize three types of situations in which the presumptive range is automatically altered. First, some crimes are designated as "extraordinary risk" crimes, which automatically increases their presumptive and extraordinary aggravating circumstances maximum by a designated amount (essentially up to a possible one-third increase to both the presumptive and extraordinary aggravating circumstances ranges).[4] Second, the presence of certain facts about the defendant at the time of the crime may trigger enhancement of the sentence, the effect of which is to double the presumptive maximum but leave the presumptive minimum in place.[5] Finally, the presence of other facts about the defendant or about the crime itself may trigger aggravation of the sentence, the effect of which is to increase the presumptive minimum to the midpoint of the original range and double the presumptive maximum.[6]
Practitioners should be aware of the ways in which the above listed circumstances can interact with one another. Take, for example, an extraordinary risk crime (which changes the presumptive and extraordinary aggravating circumstances ranges by increasing the top end of the range by one-third). That crime could also be subject to enhancement or aggravation, or could even be habitualized. Each of these possible changes can dramatically alter the sentencing range available or required depending on individual circumstances.
Until 2000, this sentencing architecture was fairly straightforward. The sentencing judge determined whether facts existed that made a crime an extraordinary risk crime or required enhancement or aggravation. The sentencing judge also determined whether there were mitigating or aggravating circumstances to justify discretionarily departing from the presumptive range.
This approach changed on June 26, 2000, when the U.S. Supreme Court decided Apprendi v. New Jersey.[7] The Apprendi Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. The Apprendi Court based this conclusion on the Sixth Amendment's right to a jury trial and on its conclusion that such facts are in effect elements of the crime that must be proved to the jury beyond a reasonable doubt. Because there are innumerable facts that go into any sentencing decision, Apprendi sparked a plethora of opinions examining which facts were "sentencing factors" that could be decided by the judge, and which facts were instead elements of the crime that needed to be decided by the jury.
Four years later, Blakely v. Washington[8] applied Apprendi to the state of Washington's exceptional sentence range under its state sentencing guidelines, a range similar to and later interpreted to be constitutionally equivalent to Colorado's aggravated range.[9] Blakely held that Washington judges could not sentence defendants beyond the maximum of that range based on any fact, other than the fact of prior conviction, unless the jury found that fact to be true beyond a reasonable doubt. After Blakely, the Apprendi dichotomy between facts that are sentencing factors and facts that are elements is sometimes labeled "Blakely-exempt facts" (sentencing factors that can be decided by the judge) versus "Blakely-compliant facts" (aggravating facts that must be decided by the jury).
Significant additional case law has accrued since 2004 addressing the Apprendi/Blakely problem in the context of sentencing guidelines and presumptive ranges, including Alleyne v. United States[10] (holding that any fact, other than a prior conviction, that increases a mandatory minimum sentence for that crime is an element of the crime and not a sentencing factor and must thus be submitted to the jury). In analyzing the effect of Apprendi and Blakely on Colorado's sentencing statutes, it is useful to break up the three kinds of automatic increases—extraordinary risk crimes, enhancement, and aggravation—into the following categories, which are based not on the kind of increase, but rather on the kind of fact that drives them:
1) facts connected to the commission of the crime;
2) prior convictions requiring a convicted defendant's sentence to be increased for which there is a specific procedure set forth by statute; and
3) enhancement of a defendant's sentence based on a prior criminal history for which there is no set statutory procedure.
For each of these categories, Colorado appellate courts have decided whether particular facts are Blakely exempt or Blakely compliant—that is, whether they are treated as sentencing factors (which may be decided by the judge) or as elements of the crime (which must be decided by the jury).
Facts Connected to the Commission of the Crime
In general, if a specific fact is connected to the commission of the crime, the method of proving that fact would require Blakely compliance and thus be proved to a jury beyond a reasonable doubt.
Domestic Violence
This area poses two separate lines of analysis: first, what needs to be proven so that a crime can be considered an act of domestic violence; and second, what does it take to be convicted as a habitual domestic violence offender (this second area will be dealt with below under "Habitual Domestic Violence").
With regard to the initial finding as to whether a crime is an act of domestic violence, that finding is only relevant to this discussion if such a finding has Blakely implications. A reading of two Colorado cases, People v. Jaso[11] and People v. Disher,[12] while not completely definitive on the issue, strongly suggests that the domestic violence determination is a Blakely-compliant fact—that is, that this is a determination the Sixth Amendment requires to be made by the jury based on proof beyond a reasonable doubt.
The punishment implications of a domestic violence crime are set forth in CRS § 18-6-801(l)(a), which requires a domestic violence sentence to include "a treatment program and a treatment evaluation . . . ." If, in fact, this counseling requirement is an increase to the minimum sentence, Alleyne would be implicated and thus Blakely.
Assuming this to be the case, the next stop is CRS § 18-6-800.3, which reads:
(1) "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
(2) "Intimate relationship" means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.
In other words, one can commit an act of domestic violence by doing one of the following: (1) actually committing or threatening to commit a violent act against someone with whom an intimate relationship has occurred; or (2) committing some other crime under the coercion, control, etc. theory against someone with whom an intimate relationship has occurred.
Under method one, a jury would need to make findings in two areas. First, was the violent act crime committed or threatened (e.g., third-degree assault)? Second, was there an intimate relationship meeting the definition of subsection (2) of the statute as set forth above? Under method two, a determination would be made as to three areas. First, was a nonviolent crime committed (e.g., criminal mischief)? Second, was it done to coerce, control, etc.? Third, was there an intimate relationship? A proper reading of case law makes all of these factors under both possible methods Blakely compliant. Indeed, the Colorado Model Jury Instructions were revised and adopted September 1, 2014 and included a...
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