Chapter 7 - § 7.2 • GENERAL SENTENCING PROCEDURE

• Jurisdiction: Colorado

§ 7.2 • GENERAL SENTENCING PROCEDURE

§ 7.2.1—General Procedure

Before imposing a sentence, the trial court should hear any evidence either side wishes to present, entertain arguments from defense counsel and the prosecutor, and hear any statement from the victim and the defendant. The court should then explain and impose its sentence. With statutes becoming more expansive in various areas, including victims' rights and restitution, the court must adopt procedures to ensure compliance and avoid challenges for improper sentences.

If sentencing has been set over, the court should restate the charge for which the defendant was found guilty or pleaded guilty and ensure that the plea was providently entered (see Chapter 2, "Guilty Pleas"). The court may wish to re-advise a pro se defendant of his or her rights in connection with sentencing, including the right to counsel.

The court should then make any necessary findings of fact, including any recommendations or stipulations, and disclose any factors the court will consider that are not on the record.

Finally, the court should impose the sentence, concisely explaining its reasoning. In sentencing persons to incarceration in felony cases, the Colorado Supreme Court requires trial courts to state the basic reasons for the sentence. People v. Watkins, 613 P.2d 633, 637 (Colo. 1980); People v. Luu, 983 P.2d 15 (Colo. App. 1998). This requirement is intended to ensure that the defendant understands the sentence and to assist in meaningful appellate review. Watkins, 613 P.2d 633. There is no such requirement when sentencing offenders for misdemeanor or traffic offenses, but it makes sense for the court to do so, especially in cases in which the court is imposing an unusual sentence or a sentence that involves significant incarceration.

If probation is being granted, the court must state the length of probation and the conditions of probation. Probation-related topics are discussed in § 7.6.

If a sentence to incarceration is imposed, the court must state the length of the incarceration, address the issue of pretrial confinement credit, and issue appropriate orders regarding when and how that sentence will be served. Jail sentences are addressed in more detail in § 7.4. The trial court should credit the defendant for pre-sentence confinement. This issue is addressed in more detail in § 7.4.3. If the defendant is being sentenced for more than one offense, the trial court must decide whether the sentences will run concurrently or consecutively. This issue is addressed in § 7.4.5.

The trial court must determine whether restitution is owed and, if so, how much. Often, this issue is addressed through plea negotiation or by discussion between the defendant and a restitution coordinator employed by the court or the district attorney. Restitution is addressed in § 7.8.

The trial court should advise the defendant of his or her post-conviction rights pursuant to Crim. P. 32(c). If a defendant has been convicted at trial, the court must advise him or her of the right to seek review of the conviction; determine whether the defendant is indigent; and, if so, inform the defendant of the right to the assistance of appointed counsel and the right to obtain a record on appeal without payment of costs.

The court must inform the defendant of his or her rights concerning appellate review of the sentence and the right to seek a post-conviction...