Colorado Felony Sentencing Today

Phil Cherner

Leslie Pagett

789 Sherman #660

Denver CO 80203

303-860-7686

phil@philcherner.com

leslie@philcherner.com

February, 2006

INTRODUCTION

              Since the last article on this subject was published in 1995, there have been significant changes in the area of sex offender sentencing and collateral consequences. The overall sentencing scheme remains 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, 2005.

            This is a work in progress. Ideas and corrections are always welcome and should be sent to the authors.

BACKGROUND

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

            On conviction of a felony, the court has the following alternatives in imposing sentence: (1) a sentence of death; (2) a sentence to imprisonment, including a mandatory period of parole; (3) a sentence for persons convicted of a sex offense pursuant to C.R.S. §18-1.3-1004; (4) a sentence to the Youth Offender System; (5) a fine; (6) probation, including intensive supervision, confinement in the county jail, home detention and restitution; (7) community corrections; or (8) 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. 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, 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.

              In 1985 the legislature doubled the presumptive ranges and removed the mandatory parole provision. In 1991, the General Assembly formally recognized the cost of financing the prison system by passing C.R.S. § 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 "expenditure neutral."

              While there are now six classes of felonies, 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.

Colorado D.O.C.'s Prison Population

              In 1995, the average daily D.O.C.'s population was 10,564 inmates. This figure included those actually in prison, as well as the 200 or so who were backlogged in county jails awaiting bed space in the D.O.C. It also included 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. In 2004-05, it cost an average of $26, 813 annually to house an inmate. The average construction cost for a new prison bed is $86, 360. For a special needs and high level custody beds the average cost is $125,000. The approximate cost for a low security bed is $65,000. In 1995 projections showed a D.O.C. population of 14,543 inmates by January 1, 2000, an increase of 35.7 percent from the current numbers. In fact, the projection was underestimated by just under 1000 inmates. By 2000 the average daily inmate population was 15, 441. In December 2005, the D.O.C.’s total inmate population was 20,228. By 2011 the D.O.C. estimates the inmate population will be 29,314.

            The D.O.C. operates twenty-three facilities throughout the state, including the Youthful Offender System facility. These range from residential/minimum restrictive security level facilities up through the maximum security facility, the Colorado State Penitentiary in Canon City. Additionally, there are seven privately operated facilities under contract wth the D.O.C. housing inmates in medium security prisons and below. By the D.O.C.'s count, 43.9 percent of the inmates are serving sentences for violent crimes. By far the most prevalent convictions are for drug abuse (20.3 percent), while the percentage of incarceration for other non-violent crimes has remained consistent or steadily decreased. For example, in 1995 the percent of those incarcerated for burglary was 11.6 percent, and in 2004 it was 7.4 percent, while those serving time for theft remained consistent (7.5 percent in 1995 and 2004).

            Colorado's prison population reflects the racial discrimination prevalent in the society at large. Colorado is approximately 4 percent black and 17 percent Hispanic, yet the D.O.C. population is 21 percent black and 29 percent Hispanic. The D.O.C.'s most restrictive facilities, the Colorado State Penitentiary, and Centennial Correctional Facility have the lowest percentage of Anglo inmates (36.4 percent and 35.6 percent respectively) of any D.O.C. facility.

The Sentencing Scheme

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

Crimes that present an extraordinary risk of harm to society shall include the following:

1) Aggravated robbery, CRS § 18-4-302; 2) Child Abuse, CRS § 18-6-401; 3) CRS § 18-18-405 (controlled substances, but not simple possession); 4) CRS § 18-1.3-406 (crimes of violence); 5) Stalking, CRS § 18-9-111(4); 6) Sale of materials to manufacture controlled substances, CRS § 18-18-412.7.

            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 the 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. 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). 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. Felonies that are exempted from this scheme are sex offenses, crimes of violence and drug distribution. 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. 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.

              Today, six factors require an aggravated range sentence. The defendant: (1) was convicted of a crime of violence under C.R.S. § 18-1.3-406; (2) was on parole for another felony at the time of commission of the felony; (3) was on probation or was on bond while awaiting sentencing following revocation of probation for another felony at the time of the commission of the felony; (4) was under confinement, in prison or a correctional institution as a convicted felon, or was an escapee from any correctional institution for another felony at the time of the commission of a felony; or (5) at the time of commission of the felony, was on appeal bond following conviction for a previous felony; (6) the defendant was on probation for or on bond while awaiting sentencing following revocation of probation for a delinquent act that would have constituted a felony if committed by an adult.

Mandatory Sentences for Crimes of Violence

              With one exception, the preceding statutory aggravating factors do not mandate a prison term. They only require that if a prison term is imposed, it must be at least the midpoint of the presumptive range, but no more than the maximum in the extraordinary range. The exception is a conviction for a crime of violence. C.R.S. § 18-1.3-406(2)(a)(I) defines a "crime of violence" as any of certain enumerated crimes in which a person used, or possessed and threatened the use of, a deadly weapon, or caused serious bodily injury or death to any other person except another participant. A crime of violence also covers any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation or force against the victim, or committed a sexual offense against a child as defined in C.R.S. § 18-3-411 (1).

            Pursuant to C.R.S. § 18-1.3-406, an offender sentenced for a” crime of violence” must be sentenced to a term of imprisonment no less than the midpoint of the presumptive range and no greater than twice the ordinary maximum (i.e., the top of the aggravated range). The court must impose such a sentence, but upon appropriate findings may reconsiders the sentence at a later time.

              The interplay between this mandatory sentencing statute and the substantive crime definitions can be confusing. The statute, C.R.S. §18-1.3-406, provides separate counts must allege the commission of a crime of violence, and the allegations must be tried by the factfinder (the jury), but this is no longer the law.

              Litigation in the 1980s cast doubt over the constitutionality of CRS §16-11-309 (the then mandatory sentencing for violent crimes statute). The General Assembly responded by passing legislation which effectively deleted the need for the separate counts for nine specified offenses. The mechanism used was less than clear (the phrase, "the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S." was inserted into each of the nine offenses). The court in People v. Terry provided some certainty by finding the language requiring a separate charging document and a separate conviction under the crime of violence statute in C.R.S. §16-11-309 did not apply to the specified offenses.

               Since the 1986 Terry case, the General Assembly has broadened the number of offenses that come within its ambit. Thus, today, a number of crimes carry a mandatory minimum sentence of no less than half of the midpoint in the presumptive range, whether or not a specific violation of CRS § 18-1.3-406 is charged in a separate count. Practitioners must be keenly aware of the risks of a conviction for the "Terry" crimes. Such a sentence is not only mandatory, but lengthy.

Permissive Sentence Aggravation

              The Gorsuch drafters, hoping to reduce the disparity in sentences around the state, prescribed narrow ranges, believing that very few offenses would mandate a lengthier sentence. These cases were considered to be "extraordinary." Over the years, the concept that only a few offenders each year would be sentenced in the extraordinary range has been steadily eroded and no longer exists.

              The erosion began in 1981 with the repeal of the requirements that the court make written findings to justify a sentence in the extraordinary aggravated range, and that only such sentences be subject to an automatic (and non-adversary) appeal. For a time, a line of cases held that a fact which proved an element of the offense could not, in and of itself, also support an extraordinary range sentence, but in People v. Sanchez, the court found no double jeopardy or equal protection bar to such a sentence.

              The Sanchez opinion upheld maximum consecutive sentences for vehicular assault where the trial court had found that the defendant's blood alcohol level, speed, nature of the injuries inflicted and the fact that the defendant was driving in the wrong lane justified a sentence in the aggravated range. Other opinions found justification for an aggravated range sentence in the defendant's criminal history. Consequently, a court could impose an aggravated range sentence in any case where the facts so warrant. The procedure by which such a sentence must be imposed has, however, changed recently.

            In 2000 the U.S. Supreme Court decided Apprendi v. New Jersey. Apprendi held that, except for the fact of a prior conviction, facts supporting an increase in a sentence beyond the statutory maximum must be charged, tried to a jury and proven beyond a reasonable doubt. However, the case seemed to have little if any effect on the imposition of sentences on Colorado defendants. In People v. Allen, the court of appeals broadly rejected an Apprendi challenge to Colorado’s felony sentencing scheme.

            Then in 2004, the U.S. Supreme Court applied the rule of Apprendi to Washington state’s sentencing scheme in Blakely v.Washington. The Blakely Court focused on the definition of a “statutory maximum” sentence to which a defendant is exposed by a jury verdict or guilty plea; and (2) the distinction between elements of an offense, which must be tried to a jury, and sentencing factors, which need not be. The Court stated that “our precedents make clear, however, that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

            The Colorado Supreme Court has recently applied the Apprendi/Blakely rule in Lopez v. People, The defendant in Lopez pled guilty to possession of a controlled substance, a class four felony, and was placed on deferred judgment. At the original sentencing hearing the factual basis for the plea agreement was the probable cause affidavit and the presentence report. Neither of the documents were in the record nor did the record indicate that the defendant admitted to the facts contained in the documents.

            Lopez was subsequently charged with vehicular homicide, DUI, and Reckless Driving. He was found guilty of the charges by a jury. The prosecution then filed a motion to revoke the deferred judgment based on the guilty verdict in the vehicular homicide case. At the sentencing hearing the judge aggravated Lopez’ sentence on the vehicular homicide and aggravated the sentence for the possession charge. Lopez appealed the twelve year possession sentence. The Court of Appeals found that the sentencing court had authority to aggravate Lopez’ sentence pursuant to C.R.S. § 18-1.3-401(6), and had made adequate findings on the record to support the sentence. The Court of Appeals dismissed Lopez’ argument that any facts used to increase his sentence must be admitted or tried to a jury under Apprendi.

            Although C.R.S. §18-1.3-401(6) does not specify particular facts that permit imposition of a sentence above the presumptive range, it imposes an express condition on departure from that range. Paragraph (6) states:

In imposing a sentence to incarceration, the court shall impose a definite sentence which is within the presumptive ranges set forth in subsection (1) of this section unless it concludes that extraordinary mitigating or aggravating circumstances are present, are based on evidence in the record of the sentencing hearing and the presentence report, and support a different sentence which better serves the purposes of this code with respect to sentencing, as set forth in section 18-1-102.5. If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.

            The Colorado Supreme Court found in Lopez that C.R.S. § 18-1.3-401(6) is constitutional if properly applied. Under Lopez a defendant’s sentence can be aggravated if the facts are Blakely-exempt, or Blakely-compliant. Blakely-exempt factors are those facts are prior conviction facts. Blakely-compliant facts that a sentencing court may rely upon when considering whether to extend a sentence beyond the presumptive range: (1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial factfinding for sentencing purposes; and, (4) facts regarding prior convictions.

            The Court further stated that the holding would only apply to those cases that were pending on direct appeal on the date Lopez was decided. The Court further suggested that the legislature could take legislative action in response to Apprendi and Blakely, judges, and prosecutors could insist that defendants admit to facts in order to aggravate the sentence, and juries could be asked by interrogatory to determine facts potentially needed for aggravated sentencing.

Habitual Criminal

              First enacted following World War II, Colorado's habitual criminal statute at times has been as draconian as any in the country. For example, Colorado at one time required a sentence of life without parole if there were three prior felony convictions. The habitual criminal penalties were so severe that, in the 1980s, the courts began to question whether the statute violated an individual's right to be free from cruel and unusual punishment under the Eighth Amendment. The statute mandated a harsh penalty regardless of the severity of the underlying offense.

               In 1993, the General Assembly responded to these concerns by substantially revising the penalty structure. To be eligible for sentencing under what is known as the "big" habitual criminal statute, an individual must have three prior felonies separately brought and tried and arising from separate and distinct episodes in this state or elsewhere. The sentence is four times the presumptive maximum for the instant crime. The "little" habitual criminal statute provides a sentence of three times the presumptive maximum if the instant felony is a class one through class five felony, and if the offender has two prior felonies within ten years. Thus, the penalty is scaled to the severity of the instant offense. Life (with forty-year parole eligibility) is required for a second habitual criminal adjudication. The habitual criminal sentence supplants the routine sentence for the substantive crime.

              In 1994, Colorado, as many other states, enacted a "three strikes" provision. Any offender convicted of a class one or class two felony (or a class three felony that is defined as a crime of violence under C.R.S. §18-1.3-801(1)) and who has two previous convictions of these same types of crimes must be sentenced to life. An offender so sentenced is eligible for parole after no less than forty years. This appears to be a case of overkill because the existing little habitual criminal law, even after the 1993 changes, provides, for example, that an offender committing a class two sexual assault with two prior violent offenses within ten years must receive a sentence of seventy-two years.