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    Colorado Criminal Law Guide – Enhanced Sentencing – When Can A Sentence Exceed The Maximum Sentence?

    By H. Michael Steinberg Denver Colorado Criminal Defense Lawyer – Attorney

    Colorado Criminal Law Guide - Enhanced Sentencing - When Can A Sentence Exceed The Maximum SentenceColorado Criminal Law Guide – Enhanced Sentencing – When Can A Sentence Exceed The Maximum Sentence? – Usually a person charged with a crime in Colorado can rely on what are known as the presumptive range of sentencing. This article will address the exceptions that can lead to – that is exceed much harsher sentences called enhanced or aggravated sentences.

    The following charts explain Colorado sentencing laws:

    The Presumptive Statutory Maximum Sentences

    Under Colorado law, most criminal charges have a presumptive statutory maximum sentence that a court cannot normally exceed. The law divides felony and misdemeanor crimes into classes. Each class is assigned a presumptive range.

    These ranges are found in the law as follows:

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    A Judge has the discretion to sentence below the presumptive range (with extraordinary mitigating circumstances) and above the presumptive range (with extraordinary aggravating circumstances).

    But there are situations where the presumptive range of sentencing is “automatically” increased or “enhanced.”

    Exception 1 – Colorado Extraordinary Risk Crimes

    The Colorado criminal code specifically designates certain crimes as “extraordinary risk” crimes. If a crimes is codified as an “extraordinary risk crime” there is an automatic increase in the presumptive sentencing range.

    CRS § 18-1.3-401(10)(a) provides a list of crimes as “extraordinary risk crimes”

    Crimes presenting an “extraordinary risk” of harm to society include the following:

    1. Aggravated Robbery, CRS § 18-4-302

    2. Child Abuse, CRS § 18-6-401

    3. Crimes of Violence, CRS § 18-1.3-406

    4. Stalking, CRS § 18-9-111(4)

    Exception 2 – “Status” Of The Defendant At The Time Of The Crime – CRS § 18-1.3-401(9)

    Another sentence enhancement over the presumptive sentencing scheme turns on the presence of certain facts about the defendant at the time of the crime. The following factors trigger enhancement of the sentence – doubling the presumptive maximum but leaving the presumptive minimum in place.

    The law – CRS § 18-1.3-401(9) – lists the circumstances that trigger an increase, for example if a Colorado Defendant was under a felony deferred judgment at the time of the alleged commission of a new crime.

    CRS § 18-1.3-401(9)

    …..

    (9) The presence of any one or more of the following sentence-enhancing circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the minimum in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony:

    (a) At the time of the commission of the felony, the defendant was charged with or was on bond for a felony in a previous case and the defendant was convicted of any felony in the previous case;

    (a.5) At the time of the commission of the felony, the defendant was charged with or was on bond for a delinquent act that would have constituted a felony if committed by an adult;

    (b) At the time of the commission of the felony, the defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony;

    (c) The defendant was under a deferred judgment and sentence for another felony at the time of the commission of the felony;

    (c.5) At the time of the commission of the felony, the defendant was on bond in a juvenile prosecution under title 19, C.R.S., for having pled guilty to a lesser delinquent act when the original delinquent act charged would have constituted a felony if committed by an adult;

    (c.7) At the time of the commission of the felony, the defendant was under a deferred judgment and sentence for a delinquent act that would have constituted a felony if committed by an adult;

    (d) At the time of the commission of the felony, the defendant was on parole for having been adjudicated a delinquent child for an offense which would constitute a felony if committed by an adult.

    The Impact Of The Apprendi – Blakely Cases – The Jury Must Find The Factual Sentence Enhancer For A Judge To Impose A Greater Punishment

    Prior to the year 2000, Colorado sentencing was straightforward – following the categories outlined above. But in 2000, the U.S. Supreme Court decided Apprendi v. New Jersey.

    The Apprendit decision, construing the Sixth Amendment’s right to a jury trial, 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.

    Then, in 2004, the Supreme Court decided Blakely v. Washington which restricted judges from sentencing Defendants beyond the maximum of the presumptive sentencing 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.

    These new cases created a new way of interpreting criminal statutes. Today Judges must distinquish between facts that are:

    1. Sentencing factors (“Blakely-exempt facts” – sentencing factors that can be decided by the Judge)

    and

    2. Facts that are elements (“Blakely-compliant facts” – “aggravating” facts that must be decided by the jury and proven beyond a reasonable doubt).

    In analyzing the effect of Apprendi and Blakely on Colorado’s sentencing statutes, it is useful to separate out the three kinds of automatic increases that can increase a Defendant’s exposure to an increased sentencing range. They are:

    I. Extraordinary Risk Crimes (which by definition have higher sentencing maximums),

    2. Status Enhancements (such as when a Defendant is on parole and commits a new felony),

    (HMS – and Blakely “facts”- which can be categorized as:)

    3. All Other Forms Of Sentence Aggravation

    Understanding The Impact Of Blakely – A Closer Analysis Of “Blakely” Facts

    The Blakely rule is as follows:

    if a specific fact is connected to the commission of the crime, the method of proving that fact requires Blakely compliance and thus must be proved to a jury beyond a reasonable doubt. :

    The analysis of whether a fact that acts as a sentence enhancer or aggravator is a Blakely exempt or Blakely compliant fact turns on whether that fact is treated as a sentencing factor (which may be decided by the judge) or as an element of the crime (which must be decided by the jury).

    An Example – Colorado Domestic Violence Cases And Blakely Issues

    Colorado domestic violence cases pose two key issues relevant to a Blakely analysis:

    The “dv tag” attaches when a jury finds that the crime with which they are charged is “an act of domestic violence.” A jury finding of an act of domestic violence requires an enhancement of the otherwise standard sentence for the underlying crime.

    The punishment for a jury finding of an act of domestic violence crime is set forth in CRS § 18-6-801(l)(a), which requires that the sentence for having been convicted by an act of domestic violence must include

    “a treatment program and a treatment evaluation . . . .”

    This “counseling requirement” increases the punishment to the minimum sentence.

    For a person to be convicted of an act of domestic violence, the jury must be convinced of the following under CRS Section 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.

    An “act of domestic violence” occurs then 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.

    The Blakely Rule Applied In Colorado Domestic Violence Jury Trials

    To enforce the Blakely Rule – Judges, in Colorado Domestic Violence cases instruct the Jury using the following jury “interogatory:”

    6-8:01. INTERROGATORY – TRIGGERING MISDEMEANOR OFFENSE OF DOMESTIC VIOLENCE (HABITUAL DOMESTIC VIOLENCE OFFENDER)

    If you find the defendant not guilty of [insert name of misdemeanor offense(s)], you should disregard this instruction and sign the verdict form to indicate your not guilty verdict.

    If, however, you find the defendant guilty of [insert name of misdemeanor offense(s)], you should sign the verdict form to indicate your finding of guilt, and answer the following verdict question on the verdict form:

    Did the defendant commit an act of domestic violence? (Answer “Yes” or “No”)

    The defendant committed an act of domestic violence only if:

    1. the underlying factual basis of [insert name of misdemeanor offense(s)] included [an] act[s] of domestic violence.

    The prosecution has the burden to prove the numbered condition beyond a reasonable doubt.

    After considering all the evidence, if you decide the prosecution has met this burden, you should mark “Yes” in the appropriate place, and have the foreperson sign the designated line of the verdict form.

    After considering all the evidence, if you decide the prosecution has failed to meet this burden, you should mark “No” in the appropriate place, and have the foreperson sign the designated line of the verdict form.

    Other Examples

    Other Blakely examples include:

    A charge of Third-Degree assault and the victim is either a Peace Officer or a Mental Health Professional engaged in the performance of his duties, (sentence is increased to a sentence greater than the maximum for a class 1 misdemeanor, but not greater than twice the maximum). CRS §18-1.3-501.

    A Third-degree Assault Against a Pregnant Woman mandates jail of a minimum of at least six months CRS § 18-1.3-501(6).

    Possession of a Weapon by a Previous Offender – the Blakely element is the requirement that a jury decide that the prior conviction must still be proven to a jury beyond a reasonable doubt. CRS § 18-3-415.5(5).

    Summary And Conclusion – Colorado Criminal Law Guide – Enhanced Sentencing – When Can A Sentence Exceed The Maximum Sentence?

    Colorado criminal defense lawyers must remain vigilant to properly identifying and protecting their clients’ constitutional rights by properly identifying Blakely facts that must be proven to the jury beyond a reasonable doubt BEFORE that client’s sentence can be enhanced.

    Colorado Criminal Law Guide – Enhanced Sentencing – When Can A Sentence Exceed The Maximum Sentence?

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    The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

    If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

    Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

    Over 40 Years Specializing in Colorado Criminal LawABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

    [email protected]

    A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

    “A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

    You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law Guide – Enhanced Sentencing – When Can A Sentence Exceed The Maximum Sentence?

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    Colorado Criminal Law Guide - Enhanced Sentencing - When Can A Sentence Exceed The Maximum Sentence?
    Article Name
    Colorado Criminal Law Guide - Enhanced Sentencing - When Can A Sentence Exceed The Maximum Sentence?
    Description
    - Usually a person charged with a crime in Colorado can rely on what are known as the presumptive range of sentencing. This article will address the exceptions that can lead to - that is exceed much harsher sentences called enhanced or aggravated sentences.
    Author

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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
    E-Mail:  [email protected]
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