CHAPTER 7: SELECTED CRIMINAL PROCEDURES - Table of Contents
7.1 - Preliminary Hearings • 7.2 - Pretrial Conferences • 7.3 - Pretrial Motions Processs • 7.4 - Use of Statements • 7.5 - Use of Seized Evidence • 7.6 - Eyewitness Identification Procedures • 7.7 - Interlocutory Appeals • 7.8 - Sentencing • 7.9 - Boulder Integrated Treatment Court
Many judges say that sentencing criminal defendants in the toughest part of the job. There are many important considerations, and often these considerations compete with each other. The emotions of the defendant and the victim are often high. And there may be a wide range of substantially different sentencing options available to the judge. These factors combine to make the job of sentencing difficult and the resulting sentence one that is often second-guessed.
THE PHILOSOPHY OF SENTENCING
The philosophical underpinnings of punishment - why society can and should punish wrong doing - is beyond the scope of this manual, but a statement of the general principles underlying our sentencing scheme may help explain the statutes governing sentencing and the decision-making process in which judges engage.
The Colorado legislature has set out the purposes of the criminal code with respect to sentencing in ¤ 18-1-102.5. That section reads:
(1) The purposes of this code with respect to sentencing are: (a) To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;
(b) To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;
(c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses; and
(d) To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders.
Most theories of sentencing involve the same, or very similar, purposes. Punishment, subsection (a), is often referred to as retribution. Crime prevention, subsection (c), is often referred to as deterrence, and applies to the individual defendant as well as to others generally. All of these principles are designed with the protection of society in mind; that principle is so fundamental that it is not explicitly mentioned in the Colorado statute.
AN OVERVIEW OF THE SENTENCING PROCESS
The imposition of a sentence in Colorado is generally performed by the judge who has heard other matters in the case. Some other states allow juries that have convicted an individual to impose sentence. Colorado allows juries in capital cases to decide whether the defendant should be executed or receive a life sentence.
In most minor cases - traffic, petty and misdemeanor offenses - the judge imposes sentence immediately after accepting a guilty plea or immediately following a guilty verdict from a jury. The judge will listen to anything the prosecutor and defense attorney have to say, hear any statement any victim of the offense wishes to offer, listen to anything the defendant wishes to say, and will then impose sentence.
In more serious cases, including virtually all felonies, the judge imposes sentence only after reviewing a presentence investigation report. This report, prepared by the probation department and provided to the court and counsel, attempts to present an objective evaluation of the defendant, and includes a recommendation as to what sentence the probation officer deems appropriate. The court considers this report, along with the comments of the prosecutor, defense lawyer, victim and defendant before imposing sentence.
With a few exceptions noted below, a judge can impose a fine, or probation, or both a fine and probation, or can impose a sentence to incarceration, with or without a fine. Sentences to incarceration for misdemeanor and traffic offenses are served in the county jail. Sentences to incarceration for felony offenses are served in the Colorado Department of Corrections (D.O.C.) or in a community corrections facility, commonly referred to as a halfway house.
The general description of the sentencing process is set out in the Colorado Revised Statutes in Article 11 of Title 16. The ranges of sentences that are available to a judge are set forth in ¤18-1.3-401 for felonies, ¤18-1.3-501 for misdemeanors and ¤18-1.3-503 for petty offenses.
With the exception of class 1 felonies - which carry a sentence of death or life in prison without parole - and class petty offenses - which carry a sentence of only a fine - the court can generally grant probation to anyone convicted of a crime. There are certain exceptions to this general rule. A person with two prior felony convictions is not eligible for probation unless the prosecutor consents. A person who is convicted of certain types of serious offenses - generally, crimes of violence - may not be eligible for probation. But the vast majority of defendants who come in front of the court for sentencing are eligible for probation.
The legislature has set forth the criteria that a trial court should consider when deciding whether to grant or deny probation to a particular defendant. These criteria are set forth in ¤ 18-1.3-203 as follows:
18-1.3-203 - Criteria for granting probation.
(1) The court, subject to the provisions of this title, in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:
(a) There is undue risk that during a period of probation the defendant will commit another crime; or (b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 16-11-101; or
(c) A sentence to probation will unduly depreciate the seriousness of the defendant's crime or undermine respect for law; or
(d) His past criminal record indicates that probation would fail to accomplish its intended purposes; or
(e) The crime, the facts surrounding it, or the defendant's history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation.
(2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section:
(a) The defendant's criminal conduct neither caused nor threatened serious harm to another person or his property;
(b) The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property;
(c) The defendant acted under strong provocation;
(d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant's conduct;
(e) ) The victim of the defendant's conduct induced or facilitated its commission;
(f) The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained;
(g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(h) The defendant's conduct was the result of circumstances unlikely to recur;
(i) The character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime;
(j) The defendant is particularly likely to respond affirmatively to probationary treatment;
(k) The imprisonment of the defendant would entail undue hardship to himself or his dependents;
(l) The defendant is elderly or in poor health;
(m) The defendant did not abuse a public position of responsibility or trust;
(n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise.
If the judge decides to grant probation, the judge can put a wide variety of conditions on that probation. Most importantly, it is always a condition of probation that the person not commit any new offenses. It is always a condition of probation that the defendant pay restitution for any damage he or she caused.
Depending on the seriousness of the offense, and the need for supervision of the conditions of probation, the judge can order that probation be either supervised or unsupervised. Supervision can be performed by either the probation department for the judicial district or by one of several private probation supervision providers who have contracted with the State of Colorado to perform this function.
In addition, the judge can impose a wide variety of other conditions that are aimed at ensuring that the defendant leads a law-abiding life. Among the conditions explicitly listed are requirements that the defendant 1) work or go to school, 2) participate in medical and/or psychiatric treatment, 3) pay costs, fines and fees, 4) refrain from the use of drugs, alcohol and/or weapons, 5) stay away from the victim and/or the victim's family and 6) any other condition reasonably related to the defendant's rehabilitation and the purposes of probation.
A judge also has the power to require a defendant to spend time in jail as a condition of probation. The amount of time is generally limited to 90 days in felony cases and 60 days in misdemeanor cases. If the defendant is allowed to participate in a work or education release program in the jail, the maximum amount of jail that may be imposed as a condition of probation is increase to two years.
Courts may the option of sentencing an individual to intensive supervision probation (ISP). ISP is designed for individuals who present a higher risk than the typical probation candidate, and/or individuals who have an unusually high number of conditions being placed upon their probation. Higher levels of supervision can include electronic monitoring to ensure that the defendant is at work or at home when required.
Our felony sentencing scheme divides felonies up into six classes, with class 1 being the most serious and class 6 the least serious. Each class of felony has a presumptive sentence. A sentencing court that denies probation will sentence the offender to a sentence within this presumptive range unless the court finds exceptional circumstances. Generally, a finding of exceptional circumstances doubles the sentencing range: exceptionally mitigating circumstances may justify a sentence as low as half the presumptive range and exceptionally aggravating circumstances may justify a sentence as high as twice the presumptive range. In addition, certain offenses have been declared to be extraordinary risk (ER) crimes. The upper end of the presumptive range is increased as to those crimes that have been designated extraordinary risk crimes. In addition, all classes of felony except class 1 carry the possibility of a fine. The basic penalties are set out below.
The statutes provide that in certain circumstances involving specified crimes of violence, the Court must sentence the defendant to a term of prison that is at least as long as the midpoint in the presumptive range, but not longer than twice the maximum presumptive term. Such mandatory sentences are required in two types of cases: when the prosecution has charged and proven a crime of violence as defined in ¤ 18-1.3-406, C.R.S., and when the legislature has specifically authorized such a sentence as the penalty for the particular crime.
The statutes also require a mandatory minimum prison sentence, with a maximum of not more than twice the maximum presumptive term, when the crime was committed under the circumstances listed in ¤ 18-1.3-401(9) as mandatory extraordinary aggravating circumstances. These circumstances include being on parole, probation, in confinement, or on an appeal bond for another felony when the crime was committed. Section 18-1.3-401(10) lists certain crimes that are extraordinary risk crimes, and authorizes longer sentences for these offenses than would otherwise be the case.
The statutes also provide for increased sentences for those adjudged as habitual criminals under ¤ 18-1.3-801 et seq. The Court must impose a life sentence and the offender cannot be paroled for 40 years if the offender is convicted of a class 1 or 2 felony or a class 3 crime of violence and has been twice convicted previously for any similar offenses. In addition, the Court must impose a sentence of three times the maximum of the presumptive range for the class of felony of which a person is convicted if that person is convicted of a class 1, 2, 3, 4, or 5 felony and, within 10 years of the date of the commission of that offense, has been twice convicted of other distinct felonies. Furthermore, the Court must impose a sentence of four times the maximum of the presumptive range for the class of felony of which such person is convicted if that person has been three times previously convicted of distinct felonies. The offender must be charged by separate counts alleging each prior conviction and the court must determine that the offender has suffered the previous convictions at a separate hearing after he has been convicted of the new substantive offense before he can be adjudged as a habitual criminal.
C.R.S. ¤ 18-6.5-103 also provides for increased sentences for those convicted of committing a crime against an at-risk victim. The legislature has determined that certain victims are deserving of extra protection, and therefore, the sentencing for crimes committed against these at-risk victims is more serious. For example, the classifications of criminally negligent homicide, first degree assault, second degree assault, third degree assault, robbery, sexual assault on a child, sexual assault on a child by one in a position of trust, or sexual assault on a client by a psychotherapist are all increased one class when committed against an at-risk victim. Thus, the sentences increase accordingly.
Every felony sentence except a life sentence, includes a period of parole. The length of parole is based on the class of felony. Class 2 and 3 felonies generally include five years of parole; class 4 felonies include three years of parole, class 5 felonies include two years of parole, and class 6 felonies include one year of parole.
This sentencing scheme has been in effect since 1993. Different ranges apply to crimes committed before July 1, 1993.
SEX OFFENDER SENTENCING
This section attempts to provide the reader with an overview of the sentencing of sex offenders. This guide is not intended to be detailed breakdown of Colorado's statutes nor its administrative regulations on this subject matter. Detailed questions on this topic that are not addressed in this manual can be asked of the District Attorney, the Probation Department, or the Department of Corrections. This section addresses the sentencing scheme in effect for those offenses committed on or after November 1, 1998. This sentencing scheme is found in the C.R.S. ¤ 18-1.3-901 and the subsequent statutes.
Under the sentencing provisions of this sentencing scheme, any offender who is convicted of, or pleads guilty or no contest to a class 4 or higher felony sex offense and is sentenced to prison, must be sentenced to an indeterminate term in prison. An offender who is not sentenced to prison is subject to an indeterminate period on intensive probation. A person sentenced under this scheme is subject to being supervised, in prison or on parole or probation, for the rest of his or her life. Class 5 and lesser sex offenses do not require indeterminate sentencing or indeterminate supervision. Sentencing provisions in those cases are the same as for other felony charges.
If the defendant is convicted of a class 2 felony sexual assault, the court must sentence the defendant to prison for an indeterminate sentence with a minimum of at least the midpoint in the presumptive range (16 years) and a maximum of the defendant's natural life. The minimum term of the sentence can be 16 years or greater. Probation, even Sexual Offender Intensive Supervised Probation (SOISP) is not available for an F2 Sexual Assault conviction. Any prison sentence is followed by a mandatory indeterminate period of parole.
If the defendant is convicted of a class 3 felony sexual assault that is a crime of violence, the court must sentence the defendant to prison with an indeterminate term of at least the midpoint of the presumptive range (10 years) and a maximum of the defendant's natural life. Again, the minimum term can be ten years or greater. If the defendant is convicted of a class 3 felony sexual assault that is not a crime of violence, the Court has the discretion to sentence the defendant to an indeterminate term of at least the minimum of the presumptive range (4 years) and a maximum of the defendant's natural life, followed by a mandatory indeterminate parole. However, the Court could also choose an indeterminate SOISP sentence of at least 20 years to life.
If the defendant is convicted of a class 4 felony sexual assault, the court may sentence the defendant to either prison or place the defendant on SOISP. If prison is the Court's choice, the defendant will be sentenced to an indeterminate term of at least the minimum of the presumptive range (2 years) and a maximum of the defendant's natural life, followed by mandatory indeterminate parole. If SOISP is the Court's choice, the defendant will be sentenced to an indeterminate period of probation for at least 10 years and as long as the life of the defendant. The conditions are identical to those in the F3 range.
An exception to this general rule is that the District Attorney can preclude a court from granting probation to any defendant who has at least two prior separately brought and tried felony convictions. This exception applies to all sentences, not just those imposed in cases involving sexual assaults.
SOISP is a rigorous form of supervising offenders who have been granted the right to be in the community. As noted, this supervision lasts for an indeterminate time; it can last for the rest of the offender's life. In addition to the standard conditions of probation discussed above, SOISP also includes requirements that the offender 1) register with the local law enforcement agency and inform that agency of all moves, 2) submit a blood sample for DNA testing, 3) have no contact with children under 18 unless expressly approved by the supervising team, 4) stay away from schoolyards, parks, playgrounds and other areas primarily used by children under 18, 5) not possess sexually oriented material or use computers or phones to access such material, 6) and a host of other conditions that are aimed at monitoring the behavior of the sex offender.
The amount of time a convicted defendant will serve after being sentenced to prison depends on a number of factors in addition to the length of the sentence imposed.
The statutes on sentencing and the computation of the amount of time an inmate actually serves have been amended many times. The date on which the offense was committed usually determines which law is used to determine the time to be served. The court imposes the sentence at a hearing and records that sentence on an order called a mittimus. The mittimus accompanies the inmate to the Department of Corrections (DOC). The DOC decides where to place the inmate, how to supervise the inmate, and is responsible for the time computation for discharging the inmate to parole. The parole board has the authority to determine whether an inmate who is eligible for parole should be released to parole supervision prior to the expiration of the prison sentence. Most of the statutes relating to time computation and the granting or denial of parole are found in Article 22.5 of Title 17 in the Colorado Revised Statutes.
Defendants sentenced to prison have a statutory right to credit against their sentences for any time spent in custody prior to the imposition of the sentence as a result of the offense for which they are sentenced. This "credit for time served" or “pre-sentence confinement credit” includes time in custody prior to making bail, or as a condition of a probation that is later revoked, or as part of a community corrections sentence that is later converted to a prison sentence. This statutory credit does not apply if the defendant was already serving a sentence or on parole for a previous offense when he/she committed the new offense, in which cases the time served is credited against the previous sentence, not the new one. It also does not apply to sentences to county jail. The court is to record pre-sentence confinement credit on the mittimus.
For most felonies, the current general rule is that the potential parole eligibility date is determined by subtracting "good time" and "earned time" from the total sentence imposed by the judge. Good time, generally 50 percent of the sentence imposed, is granted to inmates who behave properly in prison and do not violate DOC rules and regulations. "Earned time" of up to ten days for each month of incarceration may be awarded by the DOC based on documented progress by the inmate under department requirements in areas including work and training, group living, counseling, and goals set during the diagnostic evaluation. Earned time may be granted, withheld, withdrawn, or restored based on the inmate's performance record. Earned time cannot reduce the sentence imposed by more than 25 per cent. If the inmate earns these credits, he/she should be generally be eligible for parole after serving 3/8ths of the original sentence. However, certain inmates sentenced for violent offenses who have a record of prior violent offenses must serve at least 75 % of their sentences before becoming eligible for parole.
Parole eligibility does not mean that the inmate has a right to be released. The inmate must apply for parole, and the parole board has discretion to determine whether parole should be granted. In order to release an inmate on parole, the parole board must find "that there is a strong and reasonable probability that the person will not thereafter violate the law and that his release from institutional custody is compatible with the welfare of society." The board must consider the risk of violence to the public as well as any other circumstances, including the input of the victim, the offender's conduct in prison, the inmate's demonstration of good faith efforts to pay any restitution, to be employed, to be in training or school, to provide child support, and whether the inmate has harassed the victim.
The good time calculation is applied to the pre-sentence confinement credit. Earned time is determined based on compliance with department of corrections requirements, so it cannot be awarded during pre-sentence confinement because the defendant is not then in the DOC. However, earned time can be awarded during a community corrections sentence, and such credits are applied if the sentence is converted to a prison sentence if they are noted on the mittimus.
The sentencing judge usually has the discretion to have sentences for different offenses run "concurrently," which means they are served at the same time, or "consecutively," which means one follows the other. Sentences on several convictions, including consecutive sentences, are treated as one continuous sentence for purposes of determining parole eligibility.
For most felonies, the defendant must now serve a prescribed period of mandatory parole in addition to and follows a sentence to prison. The length of the parole varies from 1 to 5 years, depending upon the class of felony. This mandatory parole requirement applies whether the inmate has served part or all of the prison sentence. Whether parole is granted prior to the discharge of the prison sentence is generally discretionary with the parole board. Exceptions exist for many sexual offenses, for which parole may be granted for an indeterminate term up to life of the offender, and for class 1 felonies, for which there can be no parole. If an inmate is serving consecutive sentences for multiple offenses, the period of parole is the mandatory length for the highest class felony for which he was convicted.
Parole involves supervision under specified conditions that are designed to provide assistance for the successful reintegration of the offender into the community while recognizing the need for public safety. If the parolee violates the conditions of parole, the parole board has the authority to continue the parole in effect, modify the conditions of parole, or revoke the parole and return the offender to prison for any period of time up to the time remaining on the period of parole, with the possibility of re-parole. Upon a determination by the parole board that the offender has been sufficiently rehabilitated and reintegrated into society, the parole board is authorized to discharge the parole early.
ALTERNATIVES TO PRISON
Some defendants fall into a category of persons who need more supervision than can be offered by probation, even ISP, but do not seem to need full-time incarceration, which is very expensive and which often is not capable of addressing certain needs of either society or the defendant. For these individuals, community corrections often makes sense.
Community corrections facilities are commonly referred to as halfway houses. Traditionally, halfway houses were used to house inmates who were being released from prison and needed a place to stay and support system to help them integrate themselves back into society. However, community corrections facilities are now used to house individuals who have been sentenced directly to the facility because the court deemed the person an unacceptably high risk for straight probation, but not such a high risk that a sentence to prison was warranted.
Community corrections facilities are typically run by a private services provider, who contracts with the State of Colorado to provide a facility for, and the supervision of, person in the facility. These facilities are not secure facilities - they are often renovated homes or apartment buildings - but they do provide much more supervision than can be provided by probation. An inmate in a community corrections facility must be in the facility at all times except those times when the inmate has permission to be at work, school counseling or other approved activity. As an inmate proves that he or she is trustworthy, privileges can be increased until the point in time where the inmate is deemed an acceptable risk to be placed in the non-residential portion of the community corrections facility.
Community corrections facilities are far less expensive than prison, and generally provide opportunities for employment and treatment that are not available in prison. On the other hand, since the facilities are not secure, a community corrections placement may present more risk to the public. Balancing these interests is often a very difficult endeavor for the sentencing judge.
MISDEMEANOR AND PETTY OFFENSE SENTENCING
The basic penalties for misdemeanor convictions are set out in C.R.S. ¤ 18-1.3-501, and for petty offenses in C.R.S. ¤ 18-1.3-503. Misdemeanor and petty offense sentences are generally served in the county jail, not the penitentiary. Misdemeanors are divided into three classes, with class 1 being the most serious and class 3 being the least serious, and petty offenses are divided into two classes. Just as with felonies, a court may impose a fine in addition to, or instead of, a jail sentence. And there are some extraordinary risk misdemeanors that carry a greater penalty. The basic penalties are set forth below:
TRAFFIC OFFENSE SENTENCING
Traffic offenses are generally divided into two classes, 1 and 2. C.R.S. ¤ 42-4-1701 provides that Class 1 traffic offenses are punishable by a fine between $100 and $1000 and up to one year in jail, and Class 2 traffic offenses are punishable by a fine between $10 and $300 and up to ninety days in jail. Minor traffic offenses that have been categorized as traffic infractions are punishable by a fine between $15 and $100 by the same statute.
However, many of the more serious traffic offenses have a penalty provision written right in to the substantive offense. Traffic offenses are discussed in Section 5.5 of this Manual. Some of the penalties applicable to the more common serious traffic offenses are described below.
Driving Under Restraint (DUR) generally carries a fine between $50 and $500 and a jail sentence between 5 days and six months. The minimum jail sentence is mandatory unless the trial court finds, or the parties agree, that the driving occurred in response to an emergency situation and should be waived. If the restraint has been issued against the driver because of an alcohol related problem, the minimum sentence is increased to 90 days.
Driving with no proof of insurance (NPOI) carries the penalties of a class 1 traffic offense (a fine between $100 and $1000 and up to one year in jail) as well as the option that the court sentence the defendant to perform up to 40 hours of community service. In addition, the NPOI statute provides that the minimum fine is mandatory. A person who receives a second or subsequent conviction for NPOI within two years of a previous conviction faces a minimum fine of $200.
Leaving the scene of an accident, often called “hit and run” carries several different possible sentencing ranges depending on whether there was another vehicle involved and whether there was personal injury in addition to property damage. C.R.S. ¤ 42-4-1601 provides that a hit and run that involves bodily injury is a class 1 misdemeanor, one that involves serious bodily injury is a class 5 felony, and one that involves death is a class 4 felony. Otherwise, a hit and run is generally a class 2 traffic offense.
Sentencing for driving under the influence and driving with ability impaired is somewhat more complex. Basically, the sentencing statute increases the possible sentence based on the number and types of alcohol-related convictions. Remember that the Motor Vehicle Division is the agency charged with issuing, suspending and revoking driver's licenses, not the court. The penalties that can be imposed by the court are set forth below.
A jail sentence, except for the minimum term, may be suspended on the condition that the defendant comply with all of the conditions imposed by the court. The conditions will always include an alcohol/drug evaluation, a Level I or II treatment program, and the performance of at least the minimum number of useful public service hours. For a second or subsequent offense, the conditions will additionally always include abstinence for a year.
The minimum useful public service is mandatory. It is not required that a judge impose a fine for any of these offenses. When a judge does impose a fine, a surcharge in the amount of 37% will be added to the total. Remember that costs of more than $400 will be due in every case.
Every sentence includes restitution that is, repayment for the damages caused, or the property taken, or the losses incurred by the victim of the crime. Whether a defendant pleads guilty or is found guilty at trial, the trial court will determine the amount of restitution and order the defendant to pay that amount. The procedures for determining the amount of restitution and the method by which collection of restitution can be enforced are set out in part 6 of Colorado sentencing scheme, C.R.S. ¤ 18-1.3-601 through 603.
Collecting restitution is sometimes difficult. If the defendant does not have a job, or if the defendant's basic living expenses use up all of his or her income, there may simply not be any money to collect to reimburse the victim. The period of probation or parole may be extended in an attempt to collect restitution, but at some point the criminal case must end, and any unpaid restitution is turned into a civil judgment that can be collected through the normal collection processes if the defendant has the means to repay the losses in the future.
Restitution includes not just the immediate damages, but also all other losses suffered by the victim that were "proximately caused" by an offender's conduct." The courts have interpreted this to include such items as burial costs and travel expenses associated with the burial incurred by the family of a murder victim, wages lost by a victim dues to the defendant's conduct, an dinterest on stolen money.
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